1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. O R D E R Avadhesh Chandra Vs. State of Rajasthan & Ors. S.B.CIVIL WRIT PETITION NO.2639/1998 Date of Order : : 09/01/2009 PRESENT HON'BLE MR. JUSTICE H.R. PANWAR Mr.H.S.Sidhu, for the petitioner. Mr.B.L.Tiwari, Addl.Govt.Counsel for the respondents. BY THE COURT: By the instant writ petition under Article 226 of the Constitution of India, the petitioner has challenged the order Annexure-P/5 dated 30.07.1998 and seeks quashing of the said order with consequential benefits. Briefly stated facts to the extent they are relevant and necessary for the decision of this writ petition are that the petitioner was appointed as a Constable on 28.12.1965. Later 2 he was promoted on the post of Head Constable on 30.6.1978. He was further promoted on the post of Assistant Sub- Inspector in the month of November 1997. On completion of 18 years of service, as per the State Government order dated 25.01.1992, the petitioner was granted selection scale by the Superintendent of Police, Sri Ganganagar vide order dated 26.6.1992, Annexure-P/1. Thereafter, on completion of 27 years of service, the petitioner was granted third selection scale in pursuance of the State Government's order dated 25.01.1992 vide order dated 26.5.1993 Anneuxre-P/2. On 23.07.1992, the Inspector General of Police (Head Quarter), Rajasthan, Jaipur passed order to the effect that if an employee is awarded 'censure' then his services cannot be treated as unsatisfactory and such employees are entitled for the selection pay-scale. However, subsequently, by order Anneuxre-P/4 dated 24.08.1995, another order came to be passed by the Inspector General of Police, Rajasthan, Jaipur to the effect that the employees who have been awarded penalty of 'censure' after 24.8.1995 would not be entitled for selection scale. In pursuance thereof, the order Anneuxre-P/5 came to be passed directing to make a recovery for the amount paid to the petitioner. Hence, this writ petition. A reply to the writ petition has been filed 3 supporting the order impugned on the ground that the petitioner has been awarded the penalty of censure on 5.10.1988. Again on 5.10.1988 & 23.2.1989 and stoppage of one grade increment without cumulative effect on 26.5.1994 and therefore, it cannot be said that the petitioner's services were satisfactory and as such, the petitioner is not entitled for the selection scale and on the strength of this submission, it is submitted that the respondents are justified in making the recovery vide order impugned Annexure-P/5. I have heard learned counsel for the parties. Firstly, it is contended by learned counsel for the petitioner that penalty of imposed censure during the services of an employee cannot be considered as unsatisfactory service. Learned counsel for the petitioner has relied on a Division Bench decision of this Court in Devi Singh Vs. State of Rajasthan, 2004(2)CDR 925 (Raj.) and a decision of co- ordinate Bench of this Court in Ram Dayal Meena Vs. Distt.Collector Tonk, 2008(3) RLW 2306 (Raj). It is further contended by learned counsel for the petitioner that the second selection scale was granted to the petitioner by order dated 26.6.1992 and the third selection scale by order dated 26.5.1993. The penalty of withholding of one grade increment without cumulative effect was imposed 4 upon the petitioner on 26.5.1994. It is contended by learned counsel for the petitioner that penalty withholding one grade increment without cumulative effect by order dated 26.5.1994 has also been taken into consideration for the grant of third selection scale in the year 1993 which is not proper. Learned counsel has relied on a Division Bench decision of this Court in State of Rajasthan & Ors. Vs. Kuldeep Singh Chauhan & Ors., RLW 1998(2) Raj. 816 wherein this Court observed as under:- “(9) A conjoint reading of all paragraphs of the Circular makes it clear without any doubt that an employee who completes 9 years of service from the date of his first appointment in the existing cadre becomes entitled to get first Selection Grade, provided his service record is satisfactory. Thus, he becomes eligible to get first Selection Grade on completion of 9 years service, as such, his service record to judge his suitability for granting first Selection Grade could be of that period and not that of later period. Similar shall be the position while examining suitability for second and third Selection Grades on completion of 18 and 27 years of service. The date of Order/Circular i.e. 25.1.92 prescribes grant of Selection Grades and entitlement of the employees. The eligibility to get first, second and third Selection Grades is completion of 9, 18 and 27 years of service. Hence, suitability for grant has to be judged accordingly and the APARs of the preceding years when one become eligible to get first, second and third Selection Grade, are relevant. The contention that seven years satisfactory service record should be examined from the date of order/Circular i.e. 25.1.92 cannot be accepted as this date is not the date of eligibility. If interpretation, as contended by Shri Gupta is accepted, it would lead to absurdity and serious anomaly. For example, an employee 5 who had already completed 27 years of service on 25.1.92, having only one adverse entry in the year 1990 before he completed 27 years of service, would be denied all the three Selection Grades. In other words, in that situation he shall not be entitled to get first and second selection Grades and fixation as per the Circular, though his service record for 18 years from the date of his appointment may be unblemished and examplary. This cannot be intention of the Circular, nor the various paragraphs of the circular, if read jointly and harmoniously, lead to such conclusion. Similarly, if 7 years service record is examined from 25.1.92 for judging suitability of an employee to get benefit of Selection Grades, there may be cases where preceding seven years record from 25.1.92 may be good but prior to it highly blame-worthy. In that situation also, he shall be entitled to get benefit of all the three Selection Grades and fixation if Mr.Gupta's submission is accepted, then, if this interpretation is accepted, an employee shall be entitled to get benefit under the Order, inspite of the fact that his preceding service record is good but after it becomes highly unsatisfactory. The Tribunal has rightly observed while rejecting the contention, “now one can be granted three Selection Grades on the basis of the same 7 years service record and when some adversity is there that adversity would debar him from all the three Selection Grades on the same basis. This cannot be the intention of the notification dated 25.1.92.” Learned Additional Government Counsel appearing for the respondent-State relied on a Full Bench decision of this Court in Surajmal Soni Vs. State of Rajasthan, 1992(2) WLC 1. I have given my thoughtful consideration to the rival submissions made by learned counsel for the parties. In Devi Singh Vs. State of Rajasthan (supra), a 6 Division Bench of this Court while considering the notification of the State Government dated 25th January, 1992 held that the purpose of the scheme was to prevent stagnation within the members of service of lower category viz. Class IV employees or Ministerial & Subordinate Services. The grant of selection grade is not dependent on availability of any limited number of posts within the cadre so as to form a separate class. Nor it involves a restrictive selection or limited number of post by assessing comparative level of performance or seniority or availability of posts. The grant of selection scale follows the completion of services in the cadre for a number of years without getting any promotion to next higher post within that period. If these conditions are fulfilled, higher pay scale on the same post at the same place is granted. It was further held that the grant of selection scale under circular dt. 25.1.1992 is akin to personal promotion scheme and a personal advancement in pay scale scheme without reference to anybody else. Therefore, it did not involve any element of selection or comparative merit and therefore, the premise on the basis of which the learned Single Judge came to the conclusion that because the petitioner suffered a punishment of censure, he was not entitled to be considered for selection scale which is a promotion by merit cannot be sustained. 7 In Ram Dayal Meena Vs. Distt.Collector Tonk (supra), this Court held that the petitioner therein was rightly allowed the benefit of second selection scale by the respondents after completion of 18 years of satisfactory service. The circular dated 23rd July, 1992 does not debar an employee from getting selection scale, upon when punishment of censure is imposed. In Surajmal Soni Vs. State of Rajasthan (supra), the question came up for consideration before the Full Bench of this Court was whether while considering the case for promotion the minor penalty of stoppage of annual grade increments of one or more than one shall not be considered by the DPC and if considered as a result of which a Government Servant is not found fit to be promoted, it will amount to double jeopardy. While answering this question the Full Bench of this Court held that while considering the case for promotion the minor penalty of stoppage of annual grade increments, or for that matter any other minor penalty, shall be considered by the DPC and if as a result of consideration as aforesaid a government servant is not found fit for promotion it cannot be said that a penalty has been imposed and the doctrine of double jeopardy will not be attracted. The decision relied on by Additional Government 8 Counsel appearing for the respondents turns on its own facts and is of no help to the respondents. Since the controversy raised in the instant writ petition stands concluded by the Division Bench of this Court in Devi Singh Vs. State of Rajasthan (supra) wherein an identical controversy came to be considered and decided. Moreso in the instant case, the order impugned Annexure-P/5 has been passed without affording an opportunity of hearing to the petitioner which is in violation of principles of nature justice and on that count also, the order impugned cannot sustain. Even otherwise, since a Division Bench of this Court has decided that the grant of selection scale do not involve any element of selection or comparative merit and therefore, the punishment of censure sufferred cannot be a ground to deny the selection scale. Moreso, the respondents fell in error in taking into consideration the stopage of one grade increment without cumulative effect on 26.5.1994 for granting the third selection grade scale in the year 1993. The third selection scale is granted on completion of 27 years of service which the petitioner completed long back in the year 1992 itself and for that period he was granted third selection scale. Viewed from any stand-point, in my view, the impugned order cannot sustain and liable to be quashed. Consequently, the writ petition is allowed. The 9 impugned Anneuxre-P/5 dated 30.7.1998 is hereby quashed and it is held that the petitioner is entitled for consequential benefits. There shall be no order as to costs. Interim order dated 11.8.1998 stands vacated. (H.R. PANWAR), J. NK