CW 2558/06 [1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH S.B. Civil Writ Petition No.2558/06 Ashok Kumar Sharma Versus State & Ors. DATE OF ORDER : 11/11/2008 HON'BLE MR. JUSTICE AJAY RASTOGI Mr. V.K. Mathur, for petitioner Mr. J.K. Agrawal, Addl. Govt. Counsel, for State *** Instant petition has been filed by petitioner assailing order Ann.12 dt.19th June, 2004 whereby order dt.14th June, 2001 by which he was granted benefit of selection scale on completion of 9 yrs. of service, was withdrawn without affording opportunity of hearing and a consequential order was passed by the respondents Ann.13 dt.3rd July, 2004 making recovery from the salary of the petitioner. Petitioner was initially appointed as LDC vide order dt.19th May, 1978 and later on confirmed w.e.f. 1st April, 1981 vide order dt.6th November, 1984. However, he appeared in open competition held for the post of Forester against departmental quota of 12½% vacancies reserved for ministerial staff and on his final selection, he was appointed as Forester vide order dt.23rd October, 1985 and became member of Rajasthan CW 2558/06 [2] Forest Subordinate Service Rules, 1963. Under R.27 of Rules, 1963, Forester has to qualify training which makes him eligible for further promotion under the Rules. From the material came on record, sufficient opportunity was afforded to the petitioner, of which reference has been made by the respondents extensively in their reply. But, the ultimate fact is that petitioner did not qualify the training, as such R.27(iii) of the Rules disqualifies him for further promotion. On completion of 9 yrs. of service respondents granted benefit of first selection scale to the petitioner in terms of their circular dt.25th January, 1992 which is evident from their Office Order dt.26th February, 2000 [Ann.7] and arrears in consequence thereto was also paid to him, but the same was later on withdrawn by the respondents vide order Ann.12 dt.19th June, 2004 and it was further ordered to make recovery from him with regard to arrears paid vide order Ann.13 dt.3rd July, 2004 without affording an opportunity of hearing to him. CW 2558/06 [3] Respondents have filed reply to the writ petition where it has been averred that sufficient opportunity was afforded to the petitioner to qualify the training, but since he failed to qualify as such in absence whereof, he was not entitled for promotion in terms of R.27 (iii) of the Rules and accordingly, he was not eligible for grant of selection scale and it has rightly been withdrawn by the respondents vide order Ann.12 dt.19th June, 2004. I have considered the submission of counsel for parties and perused the material on record. Petitioner after joined service as Forester in October, 1985 had completed 9 yrs. of service became entitled for grant of selection scale in terms of circular dt.25th January, 1992 vide order Ann.7 dt.26th February, 2000 and arrears after due fixation was also paid to him that certainly confer right in his favour, which could not have been divested without affording opportunity of hearing to him which is a cardinal principles of administrative law. Indisputably, while passing order Ann.12 dt.19th June, 2004, respondents have CW 2558/06 [4] failed to serve show cause notice which is a minimum requirement for compliance of principles of natural justice. In absence whereof, order Ann.12 dt.19th June, 2004 is not legally sustainable. Co-ordinate Bench of this court in Jagdish Ram Vs. State of Raj. [2006 (1) CDR 374], has observed as under: “Thus, withdrawal of selection grade granted to the petitioner is not proper. The petitioner is entitled for grant of selection grade and after having granted the selection grade in accordance with the circular dt.25.1.1992, the same could not be withdrawn without any show cause notice to the petitioner as it involves that basic rights, involving civil consequences. Therefore, the action of the respondents in withdrawing the selection grade is violative of principles of natural justice. Accordingly, the respondents are not entitled to initiate recovery proceedings pursuant to order dt.28.10.2004. In case, any recovery has already been made, the recovered amount shall be refunded to the petitioner.” Apart from it, even if submission made by counsel for respondents as alleged taken to be correct that since he failed to qualify the training that dis-entitles him for promotion in terms of R.27(iii) of the Rules, still those who are ineligible for promotion too are eligible for consideration for grant of selection scale in CW 2558/06 [5] terms of Para 5 of circular dt.25th January, 1992 which reads as under: “In case there is no post for first, second or third promotion, as the case may be, in the same service/cadre or the employee does not possess academic qualification prescribed for promotion and in respect of the isolated posts, the Selection Grades shall be as specified below:- S.No. Existing Pay Scale Selection Grade 1. 750-940 (1) 775-1025 (2) 6. 950-1680 (6) 1200-2050 (9) 15. 2000-3500 (15) 2200-4000 (16) In the instant case, petitioner has completed more than 9 yrs. of service and even if he was disqualified for promotion as he failed to qualify Forester training, as alleged than too he was entitled for selection scale in terms of Para 5, of which reference has been made supra. Consequently, writ petition stands allowed. Orders dt.19th June, 2004 [Ann.12] & dt.3rd July, 2004 [Ann.13] to the extent of petitioner are hereby quashed and set aside. If any recovery is made from the petitioner, the same shall be refunded to him. Order be complied with within two months. No order as to costs. [AJAY RASTOGI], J. FRBOHRA2558CW06 11-11.doc CW 2558/06 [6] Counsel for petitioner submits that before passing of order impugned Ann.12 dt.19th June, 2004, no opportunity of hearing was afforded to him and apart from it, even if as alleged by the respondents in absence of qualifying training that debars him from further promotion still he was entitled for selection scale in terms of Para 5 of the circular for grant of selection scale of dt.25th January, 1992 and in such circumstances the very order cancelling the benefit of selection scale granted to him is not legally sustainable. In support of his submission, counsel has placed reliance on the judgment of this court in Jagdish Ram Vs. State of Raj. [2006 (1) CDR 374].