1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.7235/02 Moti Lal vs. State & Ors. Date of order : 28/1/2009. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Shailesh Prakash Sharma for the petitioner. Shri Zakir Hussain, Addl. Govt. Counsel for the respondents. ****** Heard learned counsel for the parties. This writ petition has been filed by the petitioner with the prayer that the respondents be directed to grant him first annual grade increment from the date of his initial appointment on 8.2.1991. Shri Shailesh Prakash Sharma, learned counsel for the petitioner has argued that petitioner was initially appointed on the post of Teacher Gr.III vide order dated 30.1.1990 on probation for a period of two years. Petitioner joined in that post on 8.2.1990. He was by order dated 4.2.1994 confirmed on that post on completion of period of probation. Subsequently, the petitioner was granted annual grade increments in his salary with effect from 2.7.1991 whereas petitioner had already 2 completed one year service on 8.2.1991, therefore, he should have been granted first annual increment on that date. Learned counsel for the petitioner argued that persons appointed with the petitioner by the common order dated 30.1.1990 have been granted annual grade increments immediately after one year. He in this connection cited the case of one Rajendra Singh whose name appeared at S.No.45 in order dated 30.1.1990. Learned counsel argued that the respondents cannot withhold grade increment to the petitioner as owing to their arbitrary order his salary of the summer vacation was withheld. It was argued that even otherwise the practice of not continuing service during the summer vacation was deprecated by the Supreme Court in number of judgements but whereas in the present case, there was not even break of service and the petitioner was treated as continued in service throughout. Shri Zakir Hussain, learned Additional Government Counsel opposed the writ petition and submitted that in view of the Circular of the respondent department, the petitioner 3 was not granted salary for the summer vacation as such grade increments is added to the salary of only such Teachers whose appointment was made before 31st December. Since appointment of the petitioner was made after 31st December i.e. on 8.2.1990, therefore, his service shall be deemed to have been continued from the new session in July. It was therefore submitted that first grade increment was rightly given to the petitioner on 2.7.1991. Learned counsel in this respect relied on the Circular of Education Department dated 18.5.2000. Having heard the learned counsel for the parties and perused the material on record, I find that the petitioner was initially appointed on 30.1.1990 and he actually joined the service on 8.2.1990. There is no legal justification for not treating his date of initial appointment when actually he was appointed and joined service. The respondents cannot by deeming fiction treat his appointment to have been made in July, changing the date of his appointment. This practice, if accepted, would result in completely ignoring the service period of 4 six months which the petitioner rendered with the respondents prior to that. The Circular dated 18.5.2000 refers to a government decision no.1 / Rule 97 of the Rajasthan Service Rules, which provided that Teachers appointed after 31st December on temporary basis would not be entitled to salary of the summer vacation, but in the present case, the appointment of the petitioner was made on substantive basis and on completion of probation he was confirmed. The aforesaid Circular cannot justify not counting the service of the petitioner from the date of his actual initial appointment. Even otherwise, the petitioner cited the case of Rajendra Singh, who has been appointed with the petitioner and who has been granted annual grade increment treating him to be in service from the date of initial appointment. Since the appointment of Rajendra Singh was made by the same order by which the petitioner was appointed, the respondents could not take a different stand in the case of the petitioner. All that has been stated by the respondents in reply to para 5 of the writ petition is that order 5 dated 25.2.1992 was passed by District Education Officer granting benefit of annual grade increment to Rajendra Singh erroneously, but they are completely silent why if the said order was erroneous, it was not withdrawn and why the same was allowed to stand. Action of the respondents is therefore clearly discriminatory and is violative of Article 14 and 16 of the Constitution of India. In the result, this writ petition is allowed. The respondents are directed to treat the service of the petitioner from the date of his initial appointment i.e. 8.2.1990 for the purpose of grant of annual grade increments and grant him first annual grade increment with effect from 8.2.1991 and make changes in the dates of all his subsequent grade increments. The petitioner would be entitled to consequential benefit for all purposes together with interest @ 6% per annum. (MOHAMMAD RAFIQ), J. RS/