CW 5838/08 [1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH S.B. Civil Writ Petition No.5838/08 Badruddin Versus State & Ors. DATE OF ORDER : 02/07/2008 HON'BLE MR. JUSTICE AJAY RASTOGI Mr. Subhash Bisawa, for petitioner *** Counsel submits that petitioner initially joined service as Teacher Gr.III and later on promoted as Senior Teacher vide order dated 11th November, 1997 and since he was promoted prior to notification dated 8th June, 2001, he is entitled for protection of pay in the scale of Rs.6500- 10500 in which he was fixed by the respondents as is evident from Ann.2, but the same was arbitrarily reduced in the lower pay scale of Rs.5500-9000 which according to him is not sustainable in the light of judgment of Division Bench passed in D.B. Civil Special Appeal [Writ] No.208/06 along with 41 other connected appeals, State of Rajasthan & Ors. Vs. Raniwas Porwal, which was disposed of by a common judgment dated 13th December, 2007. Counsel further submits that after judgment was passed a legal notice was served, but grievance of the petitioner has not been considered by the respondents so far. Relevant part of judgment [supra] reads as under: “However, it may be clarified that because of the provisions made in Note 8 read with Note appended to Rule 6 a Senior Teacher drawing pay in second selection grade of 6500-10500 prior to 1.7.1998 and promoted as Senior Teacher but after 1.7.1989 who has not completed 10 years as Senior Teacher at the time of commencement of the Act his CW 5838/08 [2] pay in pay-scale of 6500-10500 was protected as personal to him, though he would become eligible to such scale under the new rules of 1998 only on completion of 10 years. In this view of the matter, the rights of the respondents even under the aforesaid provision remain intact and unaffected and it could not have any adverse effect on them. But those who have been promoted as Senior Teachers drawing their pay in Second Selection Grade of 6500-10500 will not be eligible for this pay protection because even under the Rules of 1998 as initially exist, they were to be promoted to Senior Scale, which was Rs.5500-9000 only. But because of lacuna in the Rules originally enacted, not providing any specific provision, their fixation has been wrongly made by considering all Senior Teachers to be of the same category. The initial fixation in higher pay-scale being without any mistake on their part, until Notification of amendment, the resultant recoveries of excess amount paid to them has been waived. But after correction of this lacuna on amendment of Note 8, no such protection has been granted under the Rules. If any such recovery has become due on account of continued drawing of pay by such Senior Teachers promoted after 1.7.1998, due to no mistake or misrepresentation on the part of such incumbents, they may make appropriate representation to the Government to consider their cases against recovery. Accordingly, with the aforesaid clarification the appeals are allowed. The judgment under appeal declaring Notification dated 8.7.2001 to be ultravires is set aside. However, the view which we have taken on interpretation of the Rules, the existing teachers who have been promoted as Senior Teacher in the Second Selection Grade prior to commencement of the Rules at any time but because of non-completion of 10 CW 5838/08 [3] years of service as Senior Teacher under the revised rules were required to be fixed in lower pay-scale, their continuance in the higher pay-scale was protected as pay-scale personal to them under Note to Rule 6. The rights of all the appellants stand protected to this extent. In that light, the writ petition filed by the appellants stand allowed to that extent. In the facts and circumstances of the case, there shall be no order as to costs.” Without going into merits of the matter at this stage, this court considers it appropriate to direct the petitioner to make a fresh representation to the concerned authority within a period of one month, who is directed to consider and pass speaking order within three months thereafter. Copy of their decision be communicated to petitioner also. If still petitioner feels aggrieved by their decision, he will be free to avail remedy available to him under law. With the above observations, the writ petition stands disposed of. [AJAY RASTOGI], J. FRBOHRA5838CW2008 2-7.doc