CW 2156/07 //1// In the High Court of Judicature for Rajasthan at Jaipur Bench ** 1-Civil Writ Petition No.2156/2007 Smt. Manju Rani Nadheria & Ors Versus State & Ors. 2-Civil Writ Petition No.7027/2009 Smt. Anita Sharma Versus State & Ors. 3-Civil Writ Petition No.755/2009 Neera Saxena & (2) Ors Versus State & Ors. 4-Civil Writ Petition No.8855/2006 Rekha Dashora & (3) Ors Versus State & Ors. 5-Civil Writ Petition No.1450/2005 Shakuntala Joshi & (2) Ors Versus State & Ors. 6-Civil Writ Petition No.2764/2007 Indrapal & (33) Ors Versus State & Ors. 7-Civil Writ Petition No.6689/2008 Pratima Rani & (17) Ors Versus State & Ors. 8-Civil Writ Petition No.10918/2008 Mohini Vijay & (12) Ors Versus State & Ors. 9-Civil Writ Petition No.5839/2009 Smt. Indra Kala Versus State & Ors. 10-Civil Writ Petition No.6924/2009 Shakuntala Khatawda Versus State & Ors. 11-Civil Writ Petition No.14144/2008 Smt. Neelam Meena Versus State & Ors. /Reportable/ Date of Order ::: 05/03/10 Hon'ble Mr. Justice Ajay Rastogi Mr. Prahlad Singh; Mr. Hanuman Choudhary Mr. Akhil Simlote & Mr. Tanver Ahmed, for petitioners Ms Raj Sharma, Addl. Govt. Counsel for respondents State Since all these petitions involve common question, hence at joint request, were heard together and are being disposed of by present order. CW 2156/07 //2// All the petitioners were appointed as Female Supervisor prior to Rajasthan Women & Child Development (State & Subordinate) Service Rules, 1998 (“Rules, 1998”) came into force. Their grievance was that they have not been granted selection scales in terms of Finance Department’s Circular dt.25/01/1992 – as per para 4 whereof, 1st selection scale of next promotional in same service/cadre shall be payable on completion of 9 years' service – in instant case, of Assistant Child Development Project Officer (“ACDPO”) in pay scale of Rs.1640-2900/- (subsequently revised Rs.5500- 175-9000) being the first promotional post; and various Female Supervisors were promoted as ACDPO in pay scale of Rs.1640-2900/- and ACDPOs were further promoted as Child Development Project Officers (“CDPOs”) in pay scale of Rs.2000-3200/-. Upon representations having been made by Female Supervisors, State Government fixed them in pay scale of Rs.1400- 2600/- which in fact was lower to pay scale of Rs.1640-2900/- of the post of ACDPO, vide order dt.20/04/1996, which was assailed by few of petitioners (Smt. Prem Jain, Asha Jain, Santosh Jain, Sujata Saxena, Pushpa Singh, Raj Kumari Bhatnagar & Manju Rani) by way of appeal- 83/1998 which was decided vide judgment dt. 27/07/1998, wherein the learned Tribunal observed that channel of promotion from the CW 2156/07 //3// post of Female Supervisor was to the post of ACDPO; and on completion of nine years' service, they are entitled for first selection scale of pay scale of Rs.1640-2900/- and the order dt.20/04/1996 was accordingly modified. However, it was made clear that what has been observed by learned tribunal while disposing of appeal will be subject to promotional channel to be provided under the Rules pending finalization. It is relevant to mention that a week before the learned Tribunal passed the judgment, Rajasthan Women & Child Development (State & Subordinate) Service Rules, 1998 (“Rules, 1998”) were notified in Rajasthan Gazette on 18/07/1998, which appears to have not been in the knowledge of either of the parties while the appeal was being disposed of on 27/07/1998. S.No.1, 2 & 4 (relating to post of ACDPO, Senior Supervisor & Supervior) of Schedule-II (Subordinate Service) appended to Rules, 1998 being relevant for present dispute read ad infra: CW 2156/07 //4// Schedule-II (Subordinate Service) S. N o. Name of Post Sourc e of recrui tment with % Direct recrui tment/ Pro mo- tion Minimum Qualification & Experience for Direct recruitment Post from which promotion is to be made Qualification & experience for promotion Rem arks 1 2 3 4 5 6 7 8 1. Assistant Child Development Project Officer 50.00 % 50.00 % Group-I – As prescribed in the Rajasthan State & Subordinate Services (Direct recruitment by combined Examination) Rules, 1962 90% from Senior Supervisor (female/ Male); 10% from Mukhya Sevika Graduate of a University established by law in India & 5 years experience on the post mentioned in Col.No.6. 2. Senior Supervisor (Female/Male) __ 100.0 0% __ Supervisor (Female/Male) 5 years' experience on the post mentioned in Col.No.6. As per Scheme of Rules, 1998, post of Supervisor is included in Schedule-II (Subordinate Service) and as per channel of promotion provided of Supervisor was considered to the post of Senior Supervisor (Female/Male); and 2nd promotion was to the post of ACDPO from the post of Senior Supervisor having five years experience. It has been specifically averred by petitioners in para 7 (CWP-2157/2007) that post of Senior Supervisor has never been created nor sanctioned in the Department and persons are promoted even after Scheme of Rules, 1998 came into force, from the post of Supervisor to ACDPO which is the highest post in Subordinate Service, and further to the post of CDPO which is the lowest post in State Service under CW 2156/07 //5// Rules, 1998. Aforesaid averment has not been denied by respondents but pendente writ petitions, upon Rules, 1998 having been amended vide notification dt.13/10/2009, Rajasthan Women & Child Development (State & Subordinate) Service Rules, 2009 came into force with immediate effect but provisions of Column Nos. 6 & 7 against S.No.1 of Schedule II (with which the dispute herein is concerned) duly amended by Rules, 2009 came into force w.e.f. 16/07/1998, from the very inception Rules, 1998 came into effect. According to amended Schedule-II under Rules, 2009, as provided in S.No.1, promotion to the post of ACDPO could be made from Senior Supervisor or from among Supervisors having ten years’ experience for promotion to ACDPO. However, in the light of judgment dt.27/07/98 of the Tribunal, benefit of 1st selection scale of the post of ACDPO was granted to Female Supervisors on their completion of nine years but after Rules, 1998 came into force, since the liberty was granted by learned Tribunal vide judgment dt.27/07/98, the orders of 1st selection scale of pay scale of ACDPO (Rs.1640-2900/- revised to Rs.5500- 9000) stood revised by granting 1st selection scale in pay scale of Senior Supervisor (Rs.1400-2600/- duly revised to Rs.5000-8000/-) vide order dt. 24/02/2007. After revising 1st CW 2156/07 //6// selection scale from the date Rules, 1998 came into force, the respondents passed orders of their re-fixation and for making recovery from their salary; at this stage, petitioners have approached this Court assailing the orders revising their 1st selection scale granted of ACDPO and making fixation in pay scale of Senior Supervisor, impugned herein while at the same time, other writ petitions were filed seeking mandamus that petitioners being Supervisor may be granted benefit of 1st selection scale of promotional post of ACDPO (Rs.1640-2900 duly revised to Rs.5500-9000) since post of Senior Supervisor has neither been created nor sanctioned in the Department; and they may be made entitled for 2nd selection scale of the post of CDPO on completion of their 18 years’ service in terms of FD Circular dt.25/01/1992. Counsel for petitioners jointly submit that after Rules, 1998 stood amended vide Rules, 2009 and the Schedule relating to the dispute raised herein was made with retrospective effective from 16/07/98 which is the date of very inception of Rules, 1998 having come into force – by virtue thereof, Supervisors with 10 years' experience became eligible for the post of ACDPO; as such they became entitled for grant of 1st selection scale of the post of ACDPO and so also of 2nd CW 2156/07 //7// selection scale of the post of CDPO under Rules, 1998 in terms of FD Circular dt. 25/01/92. Counsel further submit that upon the orders having been passed by respondents for revising their selection scales which were earlier granted in terms of judgment dt.27/07/98 of the Tribunal, on the premise that first promotional post is of Senior Supervisor and only after being promoted as Senior Supervisor, one can be considered for promotion to the post of ACDPO in view of amendment having come into force from 16/07/98 vide notification dt.13/10/2009; such fixation being made by respondents in the scale of Senior Supervisor does not hold good and the recovery having been made in consequence thereof deserves to be quashed. Respondents have filed their reply on or about 15/02/2008, apparently before the Rules, 2009 having been notified on 13/10/2009. However, taking note of the scheme of Rules, 2009, Government Counsel submits that even Rules, 2009, to which the present controversy relates, was made with retrospective effect from 16/07/98, still first promotional post is of Senior Supervisor and by virtue of amendment in promotional channel, Senior Supervisor & Supervisor both are made eligible, but first promotional post is still of Senior Supervisor; CW 2156/07 //8// and petitioners even after the amendment having come into effect, are rightly fixed for grant of 1st selection scale of the post of Senior Supervisor and so also of 2nd selection scale of the post of ACDPO, and no error has been committed by respondent in revising selection scales of individual petitioners under orders impugned; at the same time, what has been prayed for by petitioners jointly for their fixation in 1st selection scale of the post of ACDPO and 2nd selection scale of CDPO, is contrary to the scheme of Rules, 1998/2009 and what has been urged on their behalf is without any merit. This Court has considered rival contentions made by Counsel for parties and with their assistance, examined material on record. Rules, 2009 were came into force vide notification dt.13/10/2009 duly published in official gazette dt.20/10/2009 whereby in exercise of powers conferred by the proviso to Article 309 of the Constitution of India, the Governor made the Rules further to amend Rajasthan Women & Child Development (State & Subordinate) Service Rules, 1998; namely :- “ 1- Short title & commencement: - (1) These rules may be called the Rajasthan Women & Child Development (State & Subordinate) Service (Amendment) Rules, 2009. CW 2156/07 //9// (2) They shall come into force with immediate effect except the provisions of Column numbers 6 & 7 against Serial Number 1 of Schedule II, as amended by these Rules, which shall be deemed to have come into force with effect from 16/07/1998.” Provisions of Column Nos.6 & 7 against serial No.1 of Schedule-II of Rules, 2009 being relevant for the dispute raised herein, are reproduced ad infra: Schedule-II (Subordinate Service Posts) (Rules, 2009) S . N o . Name of Post Source of recruitment with percentage Direct recruitment/ Pro moti on Qualification & Experience for Direct recruitment Post from which promotion is to be made Qualification & experience for promotion Remarks 1 2 3 4 5 6 7 8 1.Assist ant Child Develo pment Project Officer 50.00% (in accordance with provisions of Rajasthan State & Subordinate Services (Direct recruitment by combined Examination) Rules, 1999 50. 00 % Qualification as laid down in the Rajasthan State & Subordinate Services (Direct recruitment by combined Examination) Rules, 1999 Senior Supervisor Or in the event of non- availability of Senior Supervisor, the holder of the post of Supervisor (1) Graduate of a University established by law in India & (2) 5 years experience on the post of Sr. Supervisor Or Total 10 years' experience on the post of Senior Supervisor and/or Supervisor mentioned in Col.No.6. The entry at Col.No. 6 & 7 shall be deemed to have come into force w.e.f. 16/7/98 2. Senior Supervi sor __ 100 .00 % __ Supervisor 5 years' experience on the post mentioned in Col.No.6. Serial No.1 of Schedule-II of Rules, 2009 relates to the post of ACDPO and Column numbers 6 & 7 relate to the post from which promotion is to be made laying down qualification & CW 2156/07 //10// experience for promotion while column No.8 relates to remarks, which provides that the entry at Column No.6 & 7 shall be deemed to have come into force w.e.f. 16/07/98. The dispute raised herein relates to the post of ACDPO mentioned at S.NO.1 of Schedule-II and after Rules, 2009 being made with retrospective effect from 16/07/98 as regards Serial No.1 (supra), as per Col. NOs.6 & 7 of Schedule-II (Subordinate Service posts), persons holding posts of Senior Supervisor with five years’ service and other holding post of Supervisor with Ten years’ service became eligible for promotion to the post of ACDPO. S.No.2 (relating to post of CDPO) in Schedule-I (State Service) under Rules, 1998 & 2009 reads ad infra: Schedule-I (State Service) (Under Rules, 1998) S . N o . Name of Post Source of recruit ment with percent age Direct recruit ment/ Pro mo- tion Qualification & Experience for Direct recruitment Post from which promotion is to be made Qualification & experience for promotion Remarks 1 2 3 4 5 6 7 8 2. Assistant Project Officer (DWCRA) Child Developme nt Project Officer 50.00% 50.00% As prescribed in the Rajasthan State & Subordinate Services (Direct recruitment by combined Examination) Rules, 1962 Assistant Child Development Officer 5 years experience on the post mentioned in Col.No.6. Schedule-I (State Service Posts) CW 2156/07 //11// (Under Rules, 2009) S . N o . Name of Post Source of recruitment with percentage Direct recruitment/ Pro mo- tion Qualification & Experience for Direct recruitment Post from which promotion is to be made Qualificatio n & experience for promotion Remarks 1 2 3 4 5 6 7 8 2. Child Develo pment Project Officer 50.00%(in accordance with provisions of Rajasthan State & Subordinate Services (Direct recruitment by combined Examination) Rules, 1999 50.0 0% Qualification as laid down in the Rajasthan State & Subordinate Services (Direct recruitment by combined Examination) Rules, 1999 Assistant Child Development Officer Graduate with 5 years experience on the post mentioned in Col.No.6. From what has been taken note out of scheme of Rules, 2009 (supra) it clearly emerges that despite there being a post of Senior Supervisor included in Schedule-II under Rules, 1998; no person indisputably was ever promoted as Senior Supervisor, which appears to be the reason prevailed upon the Rule making authority while making amendment in the scheme vide Rules, 2009 relating to Schedule-II for being amended with retrospective effect from the very inception of Rules, 1998 having come into force from 16/07/1998, as is evident from R.1(2) of Rules, 2009 (supra); with the object that those holding post of Supervisor with 10 years' experience could be considered for promotion to the post of ACDPO; and it has not been controverted that neither the post of Senior Supervisor was ever created nor CW 2156/07 //12// sanctioned and no promotion to the post of Senior Supervisor was made under Rules, 1998 hence this fact cannot be ruled out that first promotional post being available for all practical purpose under Scheme of Rules, 1998 was of ACDPO from the post of Supervisor; and 2nd promotional post is of CDPO being lowest in State Service for those holding post of ACDPO in subordinate service under Rules, 1998. However, a question arises that one becomes eligible for grant of 1st selection scale of 1st promotional post of ACDPO on completion of nine years service; while 2nd selection scale becomes due of 2nd promotional post of CDPO, on completion of 18 years' service in terms of FD Circular dt.25/01/1992, which was introduced with an object behind it that despite an employee becomes eligible for promotion but stands stagnated for one or the other reason, to meet out such exigency, scheme of selection scale was introduced; but after present amendment having been made vide Rules, 2009 U/r 1(2) thereof, w.e.f. 16/07/98, persons holding post of Supervisor became eligible for promotion to the post of ACDPO on completion of ten years' service under Schedule-II of Rules, 2009 and if statutory Rules having been framed in exercise of powers conferred by provision to Art.309 of the Constitution, contemplates 10 years' experience as a pre-requisite for a CW 2156/07 //13// Supervisor to become eligible for first promotion to the post of ACDPO, at least administrative circulars for grant of selection scale introduced by State Government vide FD Circular dt.25/01/92 in lieu of promotion, cannot be held entitled for 1st selection of next promotional post on completion of nine years of service and is to be read in harmony of statutory Rules; and in this view whereof, in the opinion of this Court, those holding post of Supervisor will be entitled for 1st selection scale of 1st promotional post of ACDPO on completion of ten years' service under scheme of statutory Rules; and of 2nd selection scale of 2nd promotional post of CDPO on completion of further nine years' service in terms of FD Circular dt.25/01/1992. That being so, writ petitioners can be considered for grant of 1st selection of the post of ACDPO on completion of ten years' service and not prior thereto, and 2nd selection scale of the post of CDPO on further completion of nine years' service (viz. 10+9=19 years) in terms of FD Circular dt.25/01/92. Consequently, all the writ petitions succeed and are hereby allowed; orders impugned dt.12/02/08 (Ann.3-CWP-755/2009 & Ann.1 in CWP- 14144/2008); dated 18/03/2006 (Ann.1-CWP- 7027/2009); & dated 24/02/2007 (Ann.9-CWP- 2156/2007), revising selection scale granted CW 2156/07 //14// earlier and consequential notices for making recovery from their salary are hereby quashed & set aside. However, respondents are directed to consider cases of petitions for grant of 1st selection scale of the post of ACDPO on completion of ten years' service and 2nd selection scale of the post of CDPO on completion of further nine years' service (viz. total 19 years (10+9) service); and if found suitable for grant of selection scales (supra), their fixation be accordingly made along with consequential benefits and after adjustment of payment already made, arrears if any payable, be paid to them. All exercise to comply with directions (supra) be made within four months from today. No order as to costs. (Ajay Rastogi), J. K.Khatri/p14/ 2156CW07(11)RsrdSlScl-Sprvsr-Mar5.doc