G. S. SINGHAVI, J. - (1.) THIS order will dispose of DB Civil Writ petition No. 647/80 and 24 other connected writ petitions, details of which have been given in Schedule A
(2.) ALL the aforesaid writ Petitions are directed against the order of the Rajasthan Civil Services Appellate Tribunal dated March 20, 1979. ALL these writ petitions involve common questions of law and are based on more or less identical facts. Therefore, it would be appropriate to refer to the facts of one petition No. 647/80 State V. Rameshawarlal. The respondent No. 1 was appointed as Lower Division Clerk in the Police Department prior to 1961 and was drawing pay of Rs. 72/- per month on 31. 8. 1961. The Rajasthan Civil Services (Revised Pay Scale ) Rules, 1961 (hereinafter referred to as '1961 Rules') were enacted by the Governor in exercise of the powers conferred under proviso to Article 309 of the Constitution of India. Prior to coming into force of these Rules, some Lower Division Clerks who were working in the Anti-Corruption Branch of the Police Department, were drawing special pay in addition to their pay in the Time Scale of Lower Division Clerk. After coming into force of 1961 Rules vide Notification No. F. 2 (b) (5) FD/ (E-R)/64 dated 10. 06. 1964, the special pay of Lower Division Clerks of Anti-Corruption Branch was merged in their basic pay with effect from 1. 9. 1961. The Government in Finance Department issued Meupo No. F. 1 (8)FD (Exp-Rules)67 dated 28. 4. 1969 and thereby issued instructions for stepping up of pay of senior person in case his junior started getting higher pay on account of enforcement of Rules regarding pay fixation. In pursuance of the aforesaid memorandum dated 28. 4. 1969, the Lower Division Clerks of the Police Department submitted representation for stepping up of their pay because persons junior to them who were posted in the Anti-Corruption Branch of the Police Department started getting higher pay. On this representation by an order dated 21. 9. 1971, the pay of senior persons was stepped up with effect from 24. 10. 1969. However, later on some objections were raised and the inspector General of Police (II) Rajasthan, Jaipur ordered recovery from the pay of senior persons vide his order dated 17. 3. 1972. One Shri Hajarilal Sharma filed an appeal before the Rajasthan Civil Services Appellate Tribunal assailing the order of recovery. This appeal was accepted by the Tribunal vide its order dated 25. 1. 1977. A Writ petition filed by the petitioner against the order of the Tribunal was dismissed by the learned Single Judge vide its order dated 19. 5. 1978. That judgment of the High Court in SB Civil Writ Petition No. 85/78 has become final. However, in the meantime the Government issued another Memo No. F. 1 (a) (13) FD (Gr. II)77 dated 5. 7. 1977 laying down that the stepping up of pay of Lower Division Clerks of Police Department had been made erroneously on the basis of Memorandum dated 28. 4. 1969. When respondent No. 1 and other similarly situated employees claimed similar treatment as was given to Hajarilal, their claim was rejected by the Government in Home Department vide its letter dated 23. 6. 1978. The Government took the view that the judgment of the Tribunal and the High Court in Hajarilal's case cannot be made applicable to other cases and cases of those persons whose matters were not pending before the High Court or the Tribunal would be governed by circular dated 5. 7. 1977. Against this order dated 23. 6. 1978, the respondent No. 1 and other similarly situated persons filed separate appeals before the Tribunal. The Tribunal vide its order dated March 20, 1979 allowed 28 appeals. It quashed the communications of the Home Department dated 23. 6. 1978. After the decision of the Tribunal was rendered, on June 10, 1979, an amendment was made in the Rules of 1961, Whereby Rule 13-A was inserted with retrospective effect w. e. f. 1. 9. 1961. A copy of this notification has been placed on record as Ex. 8. The present writ petition was filed on 10. 1. 1980. A Single Bench of this court vide its order dated April 11, 198- dismissed the writ petition holding that the order of the Tribunal cannot be quashed on the basis of subsequent amendment. The court declined to grant any relief to the petitioner on the ground that by way of writ petition, a declaration about the validity of the amendment cannot be granted. The petitioner filed appeal before the Division Bench and the Division Bench in Special Appeal No. 2/80 State of Rajasthan Vs. Rameshwarlal Sharma decided on November 25, 1980 held that several important questions of law had arisen in the writ petitions, which deserve serious consideration. Accordingly, the special appeal for fresh decision by the single Bench after recording decision on all points, which may be argued by the parties. Since question relating to the constitutionality of the amendment introduced vide Notification dated 12. 6. 1979 has arisen, these matters have been placed before the Division Bench for decision in terms of Rule 55 of the Rajasthan High Court Rules, 1952.
(3.) LEARNED Additional Government Advocate vehemently argued that the special pay was given to the Lower Division Clerks serving in the Anti Corruption Branch of the Police Department because they were discharging duties of ardous nature and this benefit cannot be claimed by other persons serving in the Police Department. He further submitted that the Government was fully justified in enforcing recovery because the decision of the Tribunal and that of the High Court in Hajarilal's case cannot be applied in the case of the respondents. He further submitted that by virtue of rule 13-A which was introduced w. e. f. 1. 9. 1961, the pay fixation of the respondents has been rendered illegal and even though they might be senior, they cannot claim benefit of stepping up of pay. He submitted that the Governor was fully competent to enact a rule like Rule 13-A of 1961 Rules. On the other hand, learned counsel for respondent No. 1 urged that once the benefit had been given to the respondent No. 1 on the basis of interpretation of the Rules by the government itself, a right had come to be vested in favour of respondent no. 1 to have his pay fixed at par with his juniors and this right cannot be taken away by a retrospective amendment in the Rules. He further submitted that Rule 13 A of 1961 Rules results in hostile discrimination being practised against the persons who are similarly situated. He submitted that posting in the Anti- Corruption Branch of the Police Department was a matter of discretion of the Departmental authorities and grant of special pay only to the Lower Division Clerks serving in the Anti- Corruption Branch of the Department was based on fortuitous circumstance of mere posting at a particular point of time in the Anti-Corruption Branch. Such fortuitous circumstance cannot be made a basis for justifying a discrimination. He submitted that once the Tribunal had rendered judgment and declared that the respondent No. 1 was entitled to have his pay stepped up at par with his juniors, such judgment cannot be nullified merely by enactment of Rule with retrospective effect. In order to appreciate the controversy involved in these cases, we may refer to some provisions of 1961 Rules. Rule 5 (2) of 1961 rules contains definition of the term 'basic pay' and it reads as under : 5 (2) (1) 'basic Pay' in respect of an employee drawing pay in the pay scale protected under the Rajasthan Service (Protection of Service Conditions) Rules, 1957 means 'pay' as arrived by fixing his pay in the Rajasthan Scale of Pay prescribed for the post at a stage equal to his pay in the protected for Scale plus dearness pay protected under Rule 14 of the aforesaid Rules and if there is no such stage at the stage next below plus personal pay equal to the difference. (ii) 'basic pay' in respect of employees not covered by clause (l) above means 'pan' as defined in Rule (7) (24) (1) of the Rajasthan Service Rules. Provided where special pay forms part of existing scale and is merged in the revised scale, basic pay includes special pay. " ;