1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. :: O R D E R :: S.B. CIVIL WRIT PETITION No.4566/2004 Gom Singh & Ors. Vs. State of Rajasthan & Ors. Dated of Order : 11.03.2008 HON'BLE MR. MUNISHWAR NATH BHANDARI, J. Mr. P.P. Choudhary,for the petitioner. Mr. Shyam Toshniwal, for Mr. N.M. Lodha, AAG for the State. ***** By this writ petition, petitioners have challenged circular dated 17.2.1998(Annexure-1), more specifically condition no.4(1),5 and 11. Apart from the challenge to the circular dated 17.2.1998, the petitioners have further sought directions for promotion to the post of Fisheries Development Officer by utilising direct recruitment quota for promotion and lastly a relief has been claimed pursuant to the representation made by the petitioners. Learned counsel for the petitioners submits that the post of Fisheries Development Officer is filled 50% by way of promotion and 50% 2 by way of recruitment. As per the avenue of promotion provided under the Rules, the post of Fisheries Development Officer is filled from the post of Assistant Fisheries Development Officer. The petitioners having been recruited on the post of Assistant Fisheries Development Officers, have neither been promoted nor granted selection scale which otherwise to be the scale of the promotional post, despite completion of 9 years of service. Referring to para 2 of the writ petition, learned counsel for the petitioners submits that all the seven petitioners were recruited from time to time as indicated in the writ petition. The case of the petitioners is that pursuant to the circular dated 17.2.1998, if a promotion is provided to a post in different cadre/service, then on completion of 9 years of service, selection pay scale is granted as provided under Para 5 of the circular dated 17.2.98. According to the learned counsel for the petitioners, the pay scale otherwise admissible on promotion is being denied even on completion of 9 years service because the promotional post of Fisheries Development Officer is in the State service. Thus, petitioners were provided pay scale of Rs.6500-10500 on completion of 9 years of service instead of pay scale of 8000-13500. The validity of circular dated 17.2.1998 is precisely 3 challenged on the ground that despite various judgments of Supreme Court, the respondents have not provided pay scale of promotional post or avenue of promotion to the petitioners and thereby they are facing stagnation. The further case of the petitioners is that even though, the post of Fisheries Development Officer is to be filled 50% by direct recruitment but then, direct recruitment have not been affected after the year 1974, therefore all the posts meant for direct recruitment should be filled by way of promotion by treating direct recruitment quota as dying vacancies/cadre. It is submitted that when the number of posts of Fisheries Development Officers exist, then the respondents are under an obligation to fill up all those posts which includes the posts meant for direct recruitment and if such posts are not filled by direct recruitment, then to be filled by way of promotion. Learned counsel for the petitioners referred the judgment of this Court in the case of Badri Prasad Meena Vs. State of Rajasthan decided in writ petition no.1480/99 on 20.8.2001. 4 Referring to the aforesaid judgment, learned counsel for the petitioner submits that there also, the post of Commercial Taxes Inspector Gr.I was treated as dead and thereby the promotion on the higher post was provided from the post of Commercial Taxes Inspector Gr.II. It is thus canvassed by the learned counsel for the petitioners that in the present case also, the direct recruitment quota is not being filled since long, thus treating it to be dead, the post should be filled by way of promotion. The last contention of the learned counsel for the petitioners is pertaining to anomaly in the pay scale. Referring to Schedule A appended to the writ petition, learned counsel for the petitioners submits that the pay scale provided for the post of Assistant Fisheries Development Officer is not otherwise proper and if the comparison is made with other posts and their pay scales then there exist apparent anomaly in the pay scale. The petitioners had submitted various representations to remove the anomaly but then all those representations remained undecided and till date, no decision has been conveyed by the Government on those representations. Thus, it is alternatively prayed that the petitioners 5 should be extended the benefit of higher pay scale by removing the anomaly in that respect. Learned counsel for the State however supported their action in view of the reply filed containing all relevant facts. Learned counsel for the petitioner referring to the rejoinder submits that even the ground taken in reply regarding qualification of the petitioners is being well replied in the rejoinder by stating that the petitioners possessing master degree in Biological Science,is otherwise qualified and eligible for promotion to the post of Fisheries Development Officer. It was thus contended that all the petitioners are entitled for the benefits i.e. either the benefit of the pay scale of promotional post on completion of 9 years of service, in the alternative, promotion to the post of Fisheries Development Officer against direct recruitment quota and last by granting higher pay scale after removing the anomaly of various posts. I have considered the rival submissions made by the counsel for the parties and scanned the matter carefully. 6 So far as challenge to the circular dated 17.2.1998 is concerned, since the benefit of selection scale is provided up to the subordinate services as was provided in earlier circular dated 25.1.1992. Circular provides that where a candidate is not in possession of the required qualification of the promotional post or there exist no promotional post or promotional post is in different cadre/service, then the employee would be entitled for the benefit of selection scale as per para 5 of the circular. But then the pay scale may be different than of the promotional post as otherwise figured out in para 5 of the circular. In the present case, the petitioners have not been denied benefit of selection scale but the only difficulty as has been pointed out by the petitioners is that instead of awarding pay scale of promotional post, a lower pay scale has been given to the petitioners by applying para 5 of the circular. The circular enclosed along with the writ petition as Annexure-1 shows that it pertains to the employees belonging to Class IV and subordinate services, as such for grant of selection scale, reasonable restriction can be 7 imposed. The petitioners were getting pay scale of 5500-9000 and on completion of 9 years of service, they were given the pay scale of 6500-10500 whereas promotion post is having pay scale of 8000-13500, but promotional post in State service and not in subordinate service. Circular provides restriction of pay scale of promotional post in case promotional post is in different service/cadre but in that case also, higher pay scale is provided on completion of 9 years of service, thus circular can not be struck down even when it removes stagnation. A particular pay scale can not be claimed as matter of right without promotion on the post having such a pay scale, more so when promotional post is in the different service/cadre. Hence, I do not find any illegality in the circular dated 17.2.1998. The second issue as raised by the learned counsel for the petitioners is regarding conversion of direct recruitment quota to that in the promotional quota. The basis for argument is that from the year 1974 onwards, the direct recruitment quota for the post of Fisheries Development Officer has not been filled and thereby all those unfilled posts should be treated as dead and to be filled from promotional quota. A 8 look at the Rules shows that the post of Fisheries Development Officer has to be filled 50% by promotion and 50% by direct recruitment. In view of those rules, if a direction is issued by this Court to treat direct recruitment quota as promotional quota, then the direction would definitely be in violation of the Rules, more so, when the petitioners have not challenged the rules. The fact now remains as to whether the prayer as has been made by the petitioners can be granted in the light of the judgment given by this Court in the case of Badri Prasad Meena(Supra). Perusal of the aforesaid judgment shows that the facts therein were different than of this case. In the case of Badri Prasad, the issue was of promotion from the post of Commercial Taxes Inspector Gr.II to the post of Commercial Taxes Inspector Gr.I, and thereafter to the higher post. Therein, the respondents had not filled the post of Commercial Taxes Inspector Gr.I since inception of the rules i.e. from 1971 itself and promotions were directly given to the post of Commercial Taxes Officers from the post of Commercial Taxes Inspector Gr.II. In those circumstances, this court held that the post of Commercial Taxes 9 Inspector Gr.I is dead. Since, in this case, post of Fisheries Development Officer is being filled, may be by way of promotion, it cannot be said that the post/cadre is dead for direct recruitment and otherwise till the rules are challenged and are struck down for providing direct recruitment quota, the relief as claimed by the petitioners cannot be given because it would then de hors to the rules and also violate quota - routa rule. Now comes to the issue of pay anomaly. Inasmuch as, learned counsel for the petitioner referring to Schedule A, submits that pursuant to the recommendation of various Pay Commissions,same pay scale was provided to various posts but now there exist pay anomaly on the post of Assistant Fisheries Development Officer and for that purpose, my attention was drawn towards the post of Lecturer which was carrying the pay scale of 550-1010 at the initial stage and same pay scale was of the post of Assistant Fisheries Officer. However, the said pay scale of lecturer is now running in the pay scale of Rs.6500-10500 whereas the post of Assistant Fisheries Development Officer is carrying only the pay scale of Rs.5500- 9000. Hence, it has been canvassed that there is apparent anomaly in providing the pay scale. In 10 that regard, my attention was also drawn towards the representation made to the Government and which remained undecided till date. It goes without saying that as and when the issue of pay anomaly exists, it is to be decided by the expert and in the present case, though the petitioners have made a representation but remain undecided thus it is appropriate to direct respondents to decide those representations. The petitioner would however be at liberty to make a further detailed representation, if so advised. The respondents are directed to decide issue of pay anomaly. The jurisdiction of this Court is quite limited in that regard in view of judgments of Apex Court reported in 1993 Supp(1)SCC 153 and the judgment in the case of Union of india Vs. Arun Jyoti, reported in 2007(7)SCC 472. In view of the above, so far as challenge to the circular dated 17.2.1998 is concerned, same is rejected, so also the direction for converting direct recruitment quota to that of promotional quota thus writ petition in that regard is dismissed. However, respondents are directed to decide the issue of pay anomaly and for that purpose petitioner would be at liberty to make a detailed representation. The respondents are 11 directed to decide the representations within a period of six months after considering all relevant aspects pertaining to pay anomaly, as otherwise are referred and decided by the Hon'ble Apex court in the judgments referred to above. (MUNISHWAR NATH BHANDARI), J. Praveen