SBCWP No.3460/2008 Date of Order:18.01.2010 1 Of 7 IN THE HIGH COURT OF JUDICATURE FOR RAJATSHAN AT JODHPUR :: O R D E R ::: Hem Raj Bhavsar v. State of Rajasthan & others S.B. CIVIL WRIT PETITION NO.3460/2008 :: Date of order:18th January, 2010 :: PRESENT HON'BLE MR JUSICE AJAY RASTOGI Mr L.S. Jodha, for the petitioner Mr L.K. Purohit, for the respondents BY THE COURT: Instant petition has been filed by the petitioner assailing the order Annx.9 dated 10th January, 2008 whereby his application for grant of selection scale from the date of initial appointment was rejected and it was SBCWP No.3460/2008 Date of Order:18.01.2010 2 Of 7 observed that he was entitled from the date he qualified Patwar examination. 2. The petitioner was initially appointed as Patwari in the Department of Irrigation vide order Annx.1 dated 04th September, 1975. As per names nominated by the Employment Exchange, petitioner was considered for appointment as Patwari, on temporary basis. Although there was a condition that his services may be continued till Patwar pass candidates are availabile but the fact remains that by an order dated 27th April, 1977, petitioner's name was included in the seniority list of Patwaris, after being confirmed with effect from 01st March, 1977. He later on also passed Patwar examination in December, 1980. 3. Learned counsel for the petitioner submits that once the petitioner was confirmed from 01st March, 1977, that certainly makes his appointment substantive and also entitled for grant of selection grade in view of circular issued by the Government on 25th January, 1992. However, SBCWP No.3460/2008 Date of Order:18.01.2010 3 Of 7 though initially the benefit of selection scale was admissible from the date of initial appointment but in the light of judgment of Hon'ble Apex Court in 2009 (2) RLW 1481 (SC) - State v. Jagdish Chaturvedi, that only makes him entitled for the benefit of selection scale from the date of his substantive/ regular appointment. Thus, it makes the petitioner entitled for the benefit of selection scale from the date he stood confirmed in the cadre of Patwari. 4. The respondents have replied the petition in which it was averred that since it was a condition offered in the order of initial appointment i.e. 04th September, 1975 that his services will continue till Patwar pass candidates are made available and he qualified Patwar examination in December, 1980, as such, he can be considered to be substantively appointed only from the date he qualified the Patwar examination and not prior thereto. In these circumstances, his application filed for the purpose of grant of selection scale from the date of initial SBCWP No.3460/2008 Date of Order:18.01.2010 4 Of 7 appointment has rightly been rejected by the respondents, for which communication is made in 2008. 5. I have heard learned counsel for the parties and with their assistance examined the material on record. 6. It is relevant to observe that when the matter came up before this Court earlier in December, 2008, so far position of the Rules has been examined in detail and taking note thereof, the factual position makes it clear that the post of Patwari was included in the Schedule appended to Rajasthan Engineering Subordinate Services (Irrigation Branch) Rules, 1967 for the first time by amendment notification dated 28th July, 1997 and there was no requirement prior thereto to qualify Patwar examination for the purpose of substantive appointment in the cadre of Patwari. Prior to December, 1980, if the petitioner has not qualified Patwar examination, what justification was available with the respondents to confirm him in the cadre of Patwari from 01st March, 1977. SBCWP No.3460/2008 Date of Order:18.01.2010 5 Of 7 7. It goes without saying that once the petitioner is confirmed as Patwari with effect from 01st March, 1977, there will be hardly any justification with the respondents to still hold that the petitioner was not holding the post of Patwari in substantive capacity, which may deny his legitimate claim to grant him selection scale in terms of his entitlement under Government's circular dated 25th January, 1992. 8. Hon'ble Supreme Court in Jagdish Narain Chaturvedi's case (supra), while examining the circular of the Government dated 25th January, 1992, also observed that for entitlement of selection scale on completion of 9, 18 and 27 years' service has to be reckoned from the date of regular appointment and in compliance of order of Hon'ble Supreme Court, a circular has also been issued by the Government on 29th June, 2009. 9. In the facts of instant case, when the petitioner stood confirmed with effect from 01st March, 1977, in the opinion of this Court that makes the appointment of the petitioner SBCWP No.3460/2008 Date of Order:18.01.2010 6 Of 7 substantive for all practical purposes and for the benefit of selection scale in terms of circular dated 25th January, 1992, on completion of 9, 18 and 27 years' service is to be reckoned, from the date he stood confirmed in the cadre, to be more specific- with effect from 01st March, 1977. 10. Learned counsel for the petitioner further submits that his annual grade increments from year 2007 have been withheld by the respondents. It goes without saying that once he became entitled to benefits flowing thereof including selection scale, from the date he stood confirmed in the cadre i.e. 01st March, 1977. There will be no justification deny the benefit entiled under law. 11. Accordingly, the writ petition is allowed. The communication Annx.9 dated 10th January, 2008 is hereby quashed and set aside. The respondents are directed to consider case of the petitioner for grant of selection grade, with all consequential benefits, which he is entitled for under law, SBCWP No.3460/2008 Date of Order:18.01.2010 7 Of 7 from the date he stood confirmed in the cadre i.e. 01st March, 1977. Respondents shall ensure compliance within three months. No order as to costs. [AJAY RASTOGI],J. mma