1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR ORDER Mal Singh Shekhawat Vs. State of Rajasthan & Ors. S.B.CIVIL WRIT PETITION NO.5297/2006 Date of Order : : 16/10/2008 PRESENT HON'BLE MR.JUSTICE H.R.PANWAR Mr.Mukesh Rajpurohit, for the petitioner. Mr.B.L.Tiwari, Addl.Govt.Counsel for the respondents. BY THE COURT: Reportable By the instant writ petition under Article 226 of the Constitution of India, the petitioner has challenged the order Annexure-6 dated 12th January, 2006 to the extent declining him to grant the pay scale meant for the post of Tailor and fixing in the pay scale of Rs.2610-3540. The facts and circumstances giving rise to the instant writ petition are that the petitioner was initially appointed on the post of Cook by order dated 9th April, 1984 2 with the respondent department. However, there being vacancy of Tailor, the respondent Director General of Police and Commandant, 10th Battalion, RAC, Bikaner recommended to convert the petitioner's post from Cook to Tailor. The petitioner was posted as Tailor in the pay scale of Rs.710-910 vide order dated 3rd October, 1988. He was confirmed on the post of Tailor by the then Commandant 10th Battalion, RAC, Bikaner by order dated 30th June, 1990 w.e.f. from 1st March, 1990. The petitioner has been performing the duties of Tailor with the respondent Department since the date of his posting on the post of Tailor i.e. 3rd October, 1988 and was getting salary of the said post. However, subsequently, the order dated 1st March, 2000 came to be passed by the Deputy Secretary Home Department, Secretariat, Jaipur stating therein that since the petitioner did not possess the requisite certificate of ITI, therefore, could not be regularized on the post of Tailor. In pursuance thereof, by order dated 29th March, 2000, the Commandant, 10th Battallion RAC, Bikaner reverted the petitioner from the post of Tailor to that of Cook on the ground that he was not possessing the certificate of ITI and further more the recovery of amount which he received while working on the post of Tailor was ordered to be recovered. Against the order dated 1st March, 2000 passed by 3 Deputy Secretary Home Department, the petitioner filed an appeal before the Rajasthan Civil Services Appellate Tribunal, Jaipur which came to be dismissed by order dated 14th August, 2000. That order came to be challenged by the petitioner by way of filing a writ petition being S.B.Civil Writ Petition No.3350/2000 before this Court, which came to be decided by order dated 23rd July, 2003. While allowing the writ petition, the order dated 1st March, 2000 passed by the Deputy Secretary, Home Department as also the order dated 29rd March, 2000 consequence thereto passed by the Commandant 10th Battalion, RAC, Bikaner and order dated 14th August, 2000 passed by the Rajasthan Civil Services Appellate Tribunal came to be quashed. According to learned counsel for the petitioner, the respondents have decided not to challenge the order of this Court dated 23rd July, 2003 passed in the aforementioned writ petition and as such, the order has been accepted by the respondents and same has attained the finality. It is contended by learned counsel for the petitioner that when the petitioner has been accepted and regularised on the post of Tailor by the respondents and this Court already held that the petitioner is entitled for the post of Tailor then whether he is possessing the certificate of ITI or 4 not is immaterial for fixation of the salary for all the purposes. He is entitled for the salary meant for the post of Tailor i.e. Rs.3050-75-3950-80-4590. The re-fixation of the salary in the year 1998 w.e.f. 1st September, 1996 for the post of Lower Division Clerk, Machine-man, Wireman, Agriculture Supervisor, Driver, Sailor, Draftsman, Cook, Project Operator, Tailor, Plumber-II, Ironsmith-II, Dyer-II, Welder-II, Electrician-II, Mechanic-II, Fitter-II, Carpenter, I.T.I. Mistri Civil-II, Bradma Operator, Manager Devasthan (Metric) Patwari, Chief Binder, Excise Jamadar-II, Chief Jildsaj, Printer Grade-II, Compositor- II, Proof-rider Public Relation, Amin, Welfare Worker/Assistant Superintendent Hostel Multipurpose Worker male, Housekeeper, Telephone Operator (Governor Secretariat), Constable has been made in the pay scale of Rs.3050-75- 3950-80-4590 and amongst these posts, the post of Tailor is included and therefore, according to learned counsel for the petitioner, the petitioner is entitled for the said pay-scale. Learned Additional Government Counsel appearing for the respondent-State submits that since the petitioner did not possess the certificate of ITI, therefore, in view of the order Annexure-R/2 dated 18th November, 2005, the petitioner has been fixed in the pay-scale of Rs.2610-3540(2) w.e.f. 1st September, 1996. 5 From perusal of the relevant pay scale and the rules governing such pay scales, it appears that for the post of Tailor, there is only one pay scale noticed above and the pay- scale do not prescribe that a person not possessing the certificate of ITI would be paid different pay scale then what pay-scale has been prescribed for particular post. This question also came to be considered by this Court in earlier writ petition by order Annexure-3 dated 23rd July, 2003 noticing therein that the petitioner was initially appointed on the post of Cook, however, the post of Cook was converted into the post of Tailor and the petitioner was given posting on the post of Tailor in the pay-scale applicable at the relevant time i.e. Rs.710-910. The petitioner was confirmed on the post of Tailor by the respondents vide order dated 1st March, 1990 well knowing the fact that at the time of converting the post from Cook to Tailor, the petitioner was not possessing the certificate of ITI though may be necessary for such post and allowed the petitioner to work for a long time on the post of Tailor. This Court relied on two decisions referred therein of Hon'ble Supreme Court wherein it was held that if a worker is serving for long, the question whether he possesses minimum qualification or not, that question was to be considered at the stage of appointment and not at the stage of confirmation 6 when the worker gained long practical experience. If a person has been allowed to function in the higher post for 15-20 years with due deliberations, it would be certainly unjust to hold that he has no sort of claim to such post and could be reverted unceremoniously or treated as person not belonging to the service at all. In para 12 of the order Annexure-3 dated 23rd July, 2003, this Court observed as under:- “12. Thus, a bare perusal of the above two authorities makes the position clear that qualification attached to a post must have been seen at the time of appointment and not at the time of confirmation. Here in the present case, the petition is otherwise more strong in favour of the petitioner as the petitioner was initially appointed on the post of Cook vide order dated 9.4.84 and thereafter, he worked as cook till 3.10.88 and vide order dtd. 3.10.88, the petitioner after interview was appointed on the post of Tailor after converting the post of Cook into the post of Tailor and on the post of tailor he was confirmed with effect from 1.3.90 vide order dtd. 30.6.90 (Annex.2).” Thus, the question of possessing the requisite qualification for the post of Tailor i.e. certificate of ITI had already been gone into by this Court in earlier writ petition and 7 this Court has held that the petitioner has been appointed on the post of Tailor by the respondents well knowing the fact that he does not possess the minimum qualification i.e. the certificate of ITI, and more particularly when the decision of this Court Annexure-3 dated 23rd July, 2003 has not been challenged by the respondents and accepted the same, therefore, in my view, now it is not open for the respondents to say that at the time of appointing on the post of Tailor and confirmed on the post of said post, the petitioner did not possess the certificate of ITI and therefore, he is not entitled for the pay scale meant for the post of Tailor as noticed above. In this view of the matter, the order impugned qua the petitioner deserves to be set aside and writ petition deserves to be allowed. Consequently, the writ petition is allowed. The order Annexure-6 dated 12th January, 2006 to the extent denying the pay scale of the Tailor i.e. Rs.3050-75-3950-80- 4590 to the petitioner as has been fixed in the year 1998 w.e.f. 1st September, 1996 is set aside and it is directed that the post of the Tailor which the petitioner hold shall carry the salary as re-fixation has been made in the year 1998 w.e.f. 1st September, 1996 in the pay scale of Rs.3050-75-3950-80- 4590. The respondents are directed to undertake the exercise 8 for re-fixation and after computing the arrears accruing thereon, the same shall be paid to the petitioner within three months from producing the certified copy of this order. There shall be no order as to costs. (H.R.PANWAR), J. NK