1 S.B.CIVIL WRIT PETITION NO.7742/2007 Durga Prasad v. State of Rajasthan & Ors. Date of Order :: 29 th May, 2008 HON'BLE MR.JUSTICE GOVIND MATHUR Mr. Girish Joshi, for the petitioner. Mr. O.P.Boob, for the respondents. .... By an order dated 26.11.1976 appointment was given to the petitioner on adhoc basis for a period of three months or till availability of the selected incumbents through the Rajasthan Public Service Commission, whichever is earlier. The term of appointment was extended time to time and on 23.10.1980 a type test was conducted by the Head of the Office as per the provisions of Rule 25(3) of the Rajasthan Subordinate Offices Ministerial Staff Service Rules, 1957 (hereinafter referred to as “the Rules of 1957”). The test aforesaid was qualified by the petitioner on 13.3.1981. As a consequent to qualifying the type test the petitioner was confirmed in service under an order dated 11.10.1985 passed by the Collector, Sirohi. 2 To remove stagnation in service, the Government of Rajasthan under a notification dated 25.1.1992 allowed selection grades to its employees on completion of 9, 18 and 27 years of service. The selection grade by notification aforesaid was given in lieu of promotion. The respondents allowed selection grade to the petitioner on completion of 18 years of service on 30.11.1994 under an order dated 14.2.1995. By the order dated 18.10.2007 the Collector, Sirohi informed the petitioner that the selection grade was erroneously given to him, as a consequent thereto excess amount was paid and that requires to be recovered. Aggrieved by the order dated 18.10.2007 this petition for writ is preferred. While challenging the order impugned, the argument advanced is that the selection grade was rightly given to the petitioner w.e.f. 30.11.1994 as he was continuously working since 30.11.1976. Per contra, the stand of the respondents is that the appointment of the petitioner as per the Rules was made under the order dated 11.10.1985, therefore, the second selection grade w.e.f. 30.11.1994 was erroneously given and as such the same was rightly withdrawn by the order impugned. Heard counsel for the parties. 3 The appointment of the petitioner under the order dated 26.11.1976 was on adhoc basis and that was made without adhering the procedure prescribed under the relevant Rules, those are the Rules of 1957. The appointment of the petitioner was validated as per the provisions of Rule 25(3) of the Rules of 1957 by affording an opportunity to the petitioner to qualify the departmental test, and he qualified the same on 13.3.1981. The selection grades under the notification dated 25.1.1992 are given by the Government of Rajasthan with a view to remove stagnation in service and that is in lieu of promotion. For grant of selection grades, it is necessary that either the incumbent must have promotion avenues under the relevant rules or must be holding a substantive isolated post. The appointment of the petitioner under order dated 26.11.1976 was on adhoc basis, as such till validation of the appointment he was not having any avenue for promotion. The application of notification dated 25.1.1992 was not at all available for the period the petitioner was working in adhoc capacity, dehore the Rules. The respondents, therefore, wrongly accorded selection grades to the petitioner by treating 30.11.1976 (the date on which the petitioner joined service in pursuant to the order dated 26.11.1976) as the date of his initial appointment. The date of initial appointment of the petitioner for the purpose of grant of selection grades is the date on which he qualified the 4 departmental test as per the provisions of Rule 25(3) of the Rules of 1957. As stated above, the petitioner qualified departmental test on 13.3.1981, therefore, his service for the purpose of grant of selection grades is required to be computed from the date referred above. The fixation of the petitioner's pay is required to be made by treating 13.3.1981 as the date of his initial appointment and he is required to be considered for grant of selection grades on basis of the date of his initial appointment. So far as the recovery of the amount said to be paid in excess to the petitioner is concerned, suffice to say that the same was made due to erroneous grant of selection grade, however, for that no misrepresentation was made by the petitioner. The respondents at their own treated 30.11.1976 as the date of initial appointment of the petitioner and accorded selection grades. The amount received by the petitioner in excess was not due to any fault or misrepresentation on his part and as such that is not required to be recovered. Accordingly, the respondents may determine pay of the petitioner including grant of selection grades by treating 13.3.1981 as the date of his initial appointment, however, no recovery shall be 5 made from his pay against the amount said to be paid in excess. This petition for writ stands disposed of. ( GOVIND MATHUR ),J. Kkm/ps.