- (1.) These two writ petitions have been filed by petitioners Mahipal Singh & Mahesh Chand Rastogi with the prayer that impugned orders dated 13/4/2011 and 1/6/2011 passed by the Rajasthan Civil Services Appellate Tribunal, Jaipur be set-aside and the respondents be directed to grant Pay Scale No.9 i.e. 4000-100-6000 to them from the date of their initial appointment/promotion on the post of Laboratory Technician i.e. 18/9/2001 (corresponding pay scale as per 6th pay commission) running pay band 5200-20200 grade pay No.9 (2400) w.e.f. 1/9/2006 and accordingly revised their pay with all consequential benefits with arrears together with interest @12% p.a. till its realization to the petitioners.
(2.) Shri Ashish Saksena, learned counsel for the petitioners has argued that petitioners Mahipal Singh & Mahesh Chand Rastogi were initially appointed on the post of Literate Attendant respectively on 21/4/1993 and 29/4/1993. The Government in its Department of Medical and Health Services issued a Circular on 29/10/1985 whereby it was decided that the post of Laboratory Technician working under Collegiate Branch would be filled in by two modes i.e. 50% by direct recruitment and 50% by promotion with 5 years experience on the post of Literate Attendant amongst the Literate Attendants working in different sections of the Medical and Health Department. Petitioners-Mahipal Singh and Mahesh Chand Rastogi were promoted on the post of Laboratory Technician respectively on 18/9/2001 and 19/9/2001 against the clear vacancy in the pay scale of 3050-4590 on the basis of 5 years experience on the said post. Contention of the learned counsel for the petitioners is that on that day, petitioners should have been placed in the pay scale of 4000-100-6000 (Pay Scale No.9). Petitioners were sanctioned special pay of Rs.50/- on 18/12/2001 admissible to the post of Laboratory Technician. One Mool Chand, who was also promoted on the post of Laboratory Technician pursuant to the Circular dated 29/10/1985, was also given Pay Scale No.9 (4000-100-6000). Order of promotion has been placed on record in both the writ petitions at Ann.7 & Ann.8. Respondent department issued a Circular on 15/2/2003, which is placed on record at Ann.13 in both the writ petitions. It was by that circular, the earlier order dated 29/10/1985 was rescinded and it was resolved that in future, no employee of the Medical Collegiate Branch would be promoted to the post of Laboratory Technician merely on the basis of 5 years experience unless they obtained 9 months training of the Laboratory Technician Course till framing of the Collegiate Branch Rules; till then, the appointments /promotions will be granted as per Rajasthan Medical and Health Subordinate Service Rules, 1965 (for short, the "Rules of 1965") as amended in 1982. Both the petitioners filed appeals before the Rajasthan Civil Services Appellate Tribunal seeking a relief that they may be granted Pay Scale No.9 (4000-100-6000), which is admissible to the post of Laboratory Technician and also at par with their counter parts working in the same department. The Tribunal dismissed both the appeals by a common order dated 13/4/2011. It is argued that the Tribunal has failed to appreciate that the Rules of 1965 are not applicable to the petitioners because at the time of their promotion on 18/9/2001, services of the petitioners were governed by the Circular dated 29/10/1985, which was for Laboratory Technicians working in the Collegiate Branch. The Tribunal has wrongly taken note of the Circular dated 3/6/1982 (Ann.1) issued by the Department of Personnel illegally observing that petitioners were not qualified for appointment on the post of Laboratory Technician in the absence of 9 months training. It was argued that the notification dated 3/6/1982 was applicable to the Rules of 1965 and said rules have been made applicable to the Collegiate Branch only after issuance of Circular dated 15/2/2003. Petitioners filed review petition before the Tribunal to point out this apparent error but the review petition has also been dismissed. Learned counsel for the petitioners has argued that promotion once granted to the petitioners on the basis of the Circular dated 29/10/1985 cannot be retrospectively taken away from them. The notification dated 3/6/1982 was applicable to the Rules of 1965 whereby requirement of training of 9 months was introduced, whereas Rules of 1965 were amended in 1982 so as to include the post of Laboratory Technician in Group 'A'-VI by providing that Secondary or its equivalent with 9 months Training Certificate from Institution recognized by Government would be the eligibility for promotion with 100% source being prescribed in direct recruitment. Learned counsel submitted that this prescription even otherwise is contrary to the Circular dated 29/10/1985, which was especially issued for those working in the collegiate branch of the medical department, which specifically provided source of recruitment to be 50% by promotion from amongst the Literate Attendant metric pass having 5 years experience and 50% by direct recruitment. Writ petitions therefore be allowed in terms prayed for.
(3.) Shri Sanjeev Kumar Singhal, learned Deputy Government Counsel has opposed the writ petitions and submitted that source of recruitment for appointment on the post of Laboratory Technician is minimum qualification and experience 100% by direct recruitment provided in Schedule to the Rules of 1965, which is Secondary or its equivalent with 9 months Training Certificate from Institution recognized by the Government. Circular dated 29/10/1985 was issued in ignorance of the aforesaid rules. Literate Attendants could not have been promoted on the post of Laboratory Technician only on the basis of experience of 5 years. Petitioners therefore could not have been granted benefit of pay scale of 4000-100-6000 on that basis of eligibility qualification. While petitioner-Mahipal Singh earlier filed writ petition being S.B. Civil Writ Petition No.4067/2003, petitioner-Mahesh Chand Rastogi filed S.B. Civil Writ Petition No.4082/2003 and both the writ petitions came to be dismissed by this Court on the ground of availability of alternative remedy and therefore they cannot maintain these second writ petitions. The order dated 29/10/1985 was erroneously issued therefore it was allegedly withdrawn vide order dated 15/2/2003 and effect of withdrawal would be that wrongly extended benefit under that order would also stand withdrawn. Learned Deputy Government Counsel referred to the notification dated 18/6/2012 by which Rajasthan Subordinate Service (Recruitment and Other Service Conditions) (Amendment) Rules, 2012 have been promulgated so as to provide 10% quota earmarked for Literate Attendant and 5% quota for Laboratory Attendant with Secondary or its equivalent with 9 months training certificate as the eligibility qualification for promotion. Learned Deputy Government Counsel further submitted that there is reservation of 15% for Laboratory Technician Training Course for Class-IV working in various departments of the Medical and Health Department, as per order dated 14/10/1997 issued by the Medical and Health Department (Group-3), Government of Rajasthan. By order dated 7/1/2003, the Lab Attendants and Literate Attendants/Ward Boy working in the medical colleges of the State were also included for the purpose of reservation to the extent of 15% Laboratory Technician training course. Allegation that petitioners have been discriminated against in not being granted Pay Scale No.9 (4000-100-6000) is denied. It is, therefore, prayed that the writ petitions be dismissed.;