1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR S.B.CIVIL WRIT PETITION No.1156/1997 Kanhaiya Lal & Ors. vs. State of Rajasthan Date of Order: 4 th October, 2012 HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN-I Mr. Shobit Tiwari, for petitioners. Mr. Sahil Hussain for Mr.N.A. Naqvi, AAG, for respondent. ***** Heard learned counsel for the parties. 2. Petitioners have preferred this writ petition with the following prayers:- “i) By an appropriate writ, order or direction, the order dated 11.9.96 may kindly be quashed by which the nomenclature of the post has been changed. ii) By an appropriate writ, order or direction the Hon'ble Court may kindly declare that the petitioners are entitled for the pay scale of 1200-2050 in accordance to the revised pay scale Rules, 1992 made in pursuance of the recommendation of Samata Committee and the petitioner may kindly be awarded consequential benefits arising out of it.” 3. Submission of learned counsel for petitioners is that petitioners were appointed by a Selection Committee on the post of Mistry Grade-II in the pay scale No.9 i.e. 520-925 on temporary basis in the year 1983. Their services were continued from time to time. The pay scale of Mistry Grade-II was revised from 895-1720 to 1200-2050 by way of amendment in the Rajasthan Civil Services (Revised Pay Scales) Rules, 1989 with effect from 1st September, 1988 vide 2 notification dated 1st February, 1992. He submitted that vide order dated 11nt September, 1996, the nomenclature of Bio-gas Mistry Grade- II has been changed to Bio-gas Prasar Karya Karta. He submitted that subsequently in the year 1996, the services of petitioners were terminated and they have already preferred writ petition challenging their order of termination. The writ petition of the petitioners has been admitted and is pending for hearing. He submitted that so far as the present writ petition is concerned, it relates to grant of pay scale to petitioners in the pay scale of Rs. 1200-2050 in view of amendment made vide notification dated 1st February, 1992 in the Rajasthan Civil Services (Revised Pay Scales) Rules, 1989, therefore, a direction is required to be issued to the respondents to grant the pay scale of 1200-2050 with effect from 1st September, 1988 till 1996, when their services were terminated. 4. Learned counsel for petitioners also submitted that the pay scale of Mistry Grade-I was also revised from 1120-2050 to 1400-2600. The number of Mistry Grade-I preferred writ petitions before this Court for revision of their pay scale and their writ petitions were allowed by Single Bench of this Court and they 3 all were granted the revised pay scale of Mistry Grade-I i.e. 1400-2600. The State of Rajasthan thereafter preferred Special Appeals before the Division Bench against order of Single Bench and Special Appeals filed by State of Rajasthan were dismissed. Thereafter, State of Rajasthan also preferred Petition for Special Leave to Appeal (Civil) before Hon'ble Apex Court, which was also dismissed. 5. He submitted that so far as grant of revised pay scale to Mistry Grade-I in the pay scale No.12 i.e. 1400-2600 as per notification dated 1st February, 1992 in Rajasthan Civil Services (Revised Pay Scales) Rules, 1989, the same has attained finality. So far as present writ petition of Mistry Grade-II] is concerned, the same could not be disposed off along with connected writ petitions of those persons who were holding the post of Mistry Grade-I. The present writ petition has now come for hearing, whereas controversy, involved in the present case, is fully covered by a decision of Single Bench, Division Bench of this Court, which has attained finality in the case of persons holding the post of Mistry Grade-I. 6. Learned counsel for petitioners also submitted that in the cases of Mistry Grade-I, 4 the Nomenclature of post of Mistry Grade-I was also changed from “Bio-gas Mistry Grade-I” to “Bio-gas Mistry” vide order dated 9th November, 1995 (Annex.8), which was quashed by Single Bench and order of Single Bench was affirmed by Division Bench as well as Hon'ble Apex Court, while dismissing the Special Appeal as well as Petition for Special Leave to Appeal (Civil) filed by the State. 7. Learned counsel for respondents has not disputed that petitioners were appointed on the post of Mistry Grade-II in the year 1983 and they were holding the post continuously till 1996, when their services were terminated. He has not disputed that the Amended Rule vide Notification dated 1st February, 1992 is still inforce. He also does not dispute that case of Mistry Grade-I have attained finality when their writ petitions were allowed by Single Bench and Special Appeals filed by State were dismissed and, thereafter, Petition for Special Leave to Appeal (Civil) filed by State has also been dismissed. 8. The submission of learned counsel for respondents is that petitioners were not educationally qualified for the post of Mistry Grade-II, therefore, their nomenclature of their 5 post was changed vide notification dated 11th September, 1996. However, during the course of arguments, he could not satisfy this Court that the question of educational qualification of the petitioners on the post of Mistry Grade-II was not disputed during the period from 1983 to 1996. He also admitted that another writ petition of petitioners against their termination order passed in the year 1996 is pending. The present matter relates to grant of pay scale No.9 i.e. 1200-2050 in view of notification dated 1st February, 1992, whereby Rules of 1989 were amended and pay scale was revised with effect from 1st September, 1988. 9. I have considered the submissions of learned counsel for the parties. 10. So far as factual aspect of the case is concerned, there is no dispute between the parties that petitioners were appointed as Mistry Grade-II in the year 1983. They worked on the said post upto the year 1996 continuously. It is also not in dispute between the parties that nomenclature of Grade I was changed to Bio- gas Mistry vide order dated 9th November, 1995 and the said order was quashed by Single Bench of this Court and order of Single Bench was affirmed by Division Bench as well as Hon'ble 6 Apex Court. 11. The pay scale of Mistry Grade I and Mistry Grade II was revised w.e.f. 1.9.1988, vide notification dated 1.2.1992. For ready reference, the relevant portion of notification dated 1st February, 1992 amending the Rajasthan Civil Services (Revised Pay Scales) Rules, 1989 with effect from 1st September, 1988 is reproduced below :- “GOVERNMENT OF RAJASTHAN Finance (Gr.2) Department *** No.F.20(89)FD(Gr.2)/89 Jaipur, dated the 1st February, 1992 NOTIFICATION Sub :- Rajasthan Civil Services (Revised Pay Scales) Rules, 1989. “In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Rajasthan is pleased to make the following rules to amend further the Rajasthan Civil Services (Revised Pay Scales) Rules, 1989, namely:-- These rules may be called the Rajasthan Civil Services (Revised Pay Scales)(First Amendment) Rules, 1992. They shall be deemed to have come into force w.e. from 1.9.1988. In the Rajasthan Civil Services (Revised Pay Scales), Rules, 1989- in Section 'A'-Schedule I- the pay scale indicated at Serial number 10 & 11 shall be deleted. In the Rajasthan Civil Services (Revised Pay Scales) Rules, 1989- in Section 'B' – Schedule I- ................ ............... 17. Mistry (Civil) 895-1720 1200-2050 (9) Mechanical Gr.II 18. Mistry (Civil) 1120-2050 1400-2600 (12). Mechanical) Gr.I .............. ................. By Order of the Governor SD/- (Shiv Nath Singh) Officer on Special Duty(Rules)” 12. The persons holding the post of Mistry Grade I, filed S.B. Civil Writ Petition No.5390/1995, 7 Bhanwar Lal Verma & Ors. Vs. State of Rajasthan & Anr., S.B. Civil Writ Petition No.1156/1997, Kanhaiya Lal & Ors. vs. State of Rajasthan and S.B. Civil Writ Petition NO.557/1997, Sunder Lal Raigar & Ors. vs. State of Rajasthan & Ors. All the three writ petitions were allowed by Single Bench of this Court vide order dated 1st September, 2009 and order dated 9th November, 1995 changing the nomenclature of post of Bio- gas Mistry Grade I to Bio-gas Mistry was quashed and set aside and petitioners were held entitled to receive salary in the revised pay scale of Rs.1400-2600 with effect from 1st September, 1988. The operative portion of the judgment of Single Bench dated 1st September, 2009 is reproduced below :- “In the result, these writ petitions are allowed. The impugned orders dated 9.11.1995, 10.11.1995, 20.11.1995 and 22.11.1995 are quashed and set aside. The petitioners are held entitled to receive salary in the pay scale of Rs.1400-2600 w.e.f. 1.9.1998 and they are further held entitled to such salary in that pay scale throughout or in the corresponding pay scale in the subsequent Revised Pay Scale Rules. Since the recovery orders have in these cases remain stayed pursuant to stay order passed by this Court, such recovery order would stand quashed. Petitioners are also entitled to receive selection scale from the date of their absorption/substantive appointment in the absorbing department in terms of Government circular dated 25.1.1992/17.2.1998. In case, any arrear is found payable to them, the same would be paid to the petitioners with interest @ 6% per annum. Compliance of this judgment be made within three months from the date its copy is produced before the respondents. Parties shall bear their own costs.” 13. Being aggrieved with the aforesaid order of Single Bench, the State of Rajasthan preferred 8 D.B. Civil Special Appeal (Writ) No.169/2010, State of Rajasthan and Anr. vs. Bhanwar lal Verma and Ors & D.B. Civil Special Appeal (Writ) No.559/2011, State of Rajasthan and Ors vs. Sunder Lal Raigar and Ors. Both the Special Appeals preferred by State of Rajasthan were dismissed by Division Bench of this Court vide judgment dated 6th September, 2011. Para No. 8 to 11 of the judgment of Division Bench dated 6th September, 2011 are reproduced below :- “(8) From the impugned order passed by the learned Single Judge also, it transpires that the petitioners were being paid the pay scale which was being paid to the persons holding post of Mistry in various engineering departments and that the petitioners were also granted benefit of the Rajasthan Civil Services Revised Pay Scales (Amendment), 1992 by revising their pay scale from 1120-2050 to Rs.1400-2600. The appellants, much after the enforcement of the Revised Pay Scale Rules, 1989 with effect from 1.9.1988 and three years of the Notification of Rajasthan Civil Services (Revised Pay Scale) Rules, 1992 had sought to change the nomenclature of the petitioners from Mistry/Mistry Grade-1 to Bio Gas Mistry and reduced their pay scale to Rs.1200-2050. The learned Single Judge relying upon the judgment of this court in the case of Ram Ratan Chauhan & etc. vs. State of Rajasthan, SLR 2007 (5), 470 and various judgments of the Apex Court observed that the right to salary or emoluments in particular pay scale is one of the conditions of the service and such a right may flow from the statutory rules framed under the proviso to Article 309 of the Constitution and even from the executive instructions in a given case, however, as per the settled legal proposition, the vested right and the accrued right could not be withdrawn by amending the Rules retrospectively. In any case, in the instant case, the appellants had changed the nomenclature of the post of Mistry Grade-I to Bio Gas Mistry without amending the relevant Rules and only by issuing administrative order, and thus had sought to change the service conditions of the petitioners to their detriment, which was not legally permissible. In that view of the matter, we do not find any illegality or infirmity in the impugned order passed by the learned Single Judge. (9) There could not be any disagreement with the ratio of the judgments cited by the learned counsel Mr. Naqvi, however, none of the said judgments has any application to the facts of 9 the present case. The learned Single Judge has neither interferred with the financial affairs of the State, nor has directed the appellants to make payment to the petitioners on the principle of equal pay for equal work. The learned Single Judge has only set aside the arbitrary and illegal orders of the appellants in changing the nomenclature of the post by issuing an administrative order without amending the relevant Rules, and in changing service conditions of the petitioners against their interest without any justification. (10) In that view of the matter, we do not find any illegality or infirmity in the said order passed by the learned Single Judge. (11) The appeals being devoid of merits deserve to be dismissed and are accordingly dismissed.” (emphasis supplied) 14. Thereafter State of Rajasthan preferred Petition for Special Leave to Appeal (Civil) No.3500/2012, State of Rajasthan & Ors. vs. Sunderlal Raigar & Ors. against order of Division Bench. The Hon'ble Apex Court dismissed the Petition for Special Leave to Appeal(Civil) NO.3500/2012 with SLP(C) No.400/2012 preferred by State of Rajasthan vide order dated 17th February, 2012. The said order is also reproduced below :- “Upon hearing counsel, the Court made the following ORDER The Special Leave Petitions are dismissed”. 15. From the admitted facts between the parties, the petitioners were holding the post of Mistry Grade II from 1983 till 1996. Vide notification dated 1st February, 1992 as reproduced above, it is clear that pay scale of Mistry Grade II was revised from 895-1720 to 1200-2050. Similarly, the pay scale of Mistry Grade I was revised from 1120-2050 to 1400-2600. 10 16. It is relevant to mention that so far as the dispute relating to revised pay scale of Mistry Grade I is concerned, the same has attained finality, which is clear from the above referred order of Single Bench, Division Bench and Hon'ble Apex Court. 17. The present writ petition relates to grant of pay scale to Mistry Grade II, the pay scale No.9 i.e. 1200-2050 in view of notification dated 1st February, 1992, whereby Rules of 1989 were amended with effect from 1st September, 1988. There is no dispute that petitioners were holding the post of Mistry Grade II from 1983 till 1996 and pay scale of Mistry Grade II was revised to pay scale No.9 i.e. 1200-2050 and the same was not superseded subsequently as admitted by learned counsel for the respondents also. The revised pay scale to petitioners holding the post of Mistry Grade II was granted by Amending the Revised Pay Scale Rules, 1989, therefore, they had vested and accrued rights under the statutory Rules of 1989 amended vide notification dated 1st February, 1992. In these circumstances, the said used and accrued rights under statutory rules could not have been taken away by issuing an administrative order by changing the nomenclature of their posts vide order dated 11th September, 1996 (Annex.10) i.e. 11 after a period of more than four and half years. 18. The nomenclature of post of Mistry Gr.I was also changed by the State Government vide order dated 9th November, 1995, which was quashed by Single Bench of this Court and order of Single Bench has already been affirmed by Division Bench as well as Hon'ble Apex Court. In these circumstances, it is clear that present matter is fully covered by the order of Single Bench of this Court in the case of Bhanwar Lal Verma vs. State (supra) and two other writ petitions, which has been affirmed by Division Bench as well as Hon'ble Apex Court as mentioned above. 19. In these circumstances, the present writ petition deserves to be allowed and the same is hereby allowed. The order dated 11th September, 1996 (Annex.10) is quashed and set aside and it is held that petitioners are entitled to the pay scale of Mistry Grade II in the pay scale NO.9 i.e. 1200-2050 for the period with effect from 1st September, 1988 till 1996, the date of their termination from the post of Mistry Grade II. Since in connected matter, the arrears were ordered to be paid along with interest at the rate of 6% per annum therefore, it is directed that pay of the petitioners be revised at the earliest and they be paid arrears with interest 12 @ 6% per annum from the date of filing of the writ petition i.e. 7th February, 1997 till the date of actual payment. 20. Learned counsel for the respondents prayed for three months time to comply with the order of this Court. Prayer is allowed. The order be complied with within a period of three months, as prayed. 21. Stay application is also disposed off. 22. The parties are directed to bear their own costs. (NARENDRA KUMAR JAIN-I),J. /Sanjay/179 “All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.” Sanjay Solanki JUNIOR PERSONAL ASSISTANT.