NAOLEKAR, J. - (1.) THE petitioner's father Shri Jetha Ram died while working in the Public Health & Engineering Department, Bikaner. THE petitioner approached respondent No. 2, Superintending Engineer, P. H. E. D. , Bikaner Circle, Bikaner, for his appointment under the provisions of Rajasthan Recruitment of Dependents of the Government Servants dying while in Service Rules, 1975 (for short 'the Rules' ). THE petitioner was given appointment on the post of Store Munshi on workcharge basis vide order dated 7. 10. 1978 in the pay scale of Rs. 355-10-415-15-550-20-570, which was later on revised to pay scale of 490-840. Later on the petitioner made an application that he should have been appointed on the post of L. D. C. on the regular establishment. THE petitioner was given appointment on the post of L. D. C. vide order dated 6. 8. 83 in the pay scale of 490-840 on the pay of Rs. 490/- per month, which is lowest of the pay scale. However, that appointment was cancelled by order dated 30. 9. 83 and the petitioner was asked to work on the post of Store Munshi. On the petitioner's representation, the petitioner was again appointed on the post of L. D. C. vide order dated 16. 2. 84, which was a regular appointment on the regular establishment of the Department. By this stage, the petitioner has reached to the pay scale of Rs. 540/- on the post of Store Munshi.
(2.) THE only grievance made by the petitioner is, that he should have been fixed on the pay of Rs. 540/- in the pay scale of 490- 840/- when he was appointed by order dated 16. 2. 84 and not on the pay of Rs. 490/-, which is lowest in the pay scale of 490- 840, as per rule 26 of the Rajasthan Service Rules, 1951 (hereinafter referred to as 'the rules of 1951' ). According to the respondents, the petitioner's appointment to the post of L. D. C. is a fresh appointment. Rule 26 of the Rules of 1951 is not applicable to the petitioner for fixation of his pay, as the petitioner was previous to his appointment as L. D. C, was working as work-charge employee. Rule 26 of the Rules of 1951 govern the cases of the regular employees and not of work-charge employes and, therefore, fixation of pay of the petitioner and his appointment as L. D. C. on Rs. 490/- is in accordance with law. To appreciate the rival contentions, it would be appropriate to consider rule 2 (g) and rule 26, (as is relevant to this case) of the Rules of 1951, which are as under: - "2. Extent of application.- These rules apply- Provided further that these Rules shall not apply - (g) to work-charged employees, that is, persons who are not on regular establishment and are paid out of provision for expenditure on works, maintenance of works, or State trading schemes and similar other provision for funds, other than provisions under budget unit of appropriation 'pay of Officers' and 'pay of Establishment'," "rule 26. (1) A Government servant already serving in one service, cadre or department who is appointed to another service, cadre or department by direct recruitment or special selection, (including transfer other than by deputation, from one service,cadre or department to another ) and not by promotion according to service rules, shall have his initial pay fixed as follows : - Category Last pay on old post Initial pay on new post 1 2 3 (a) Substantive on a permanent Persons in category (a) shall have pay post and not officiating on fixed as in the manner stated below: - a higher post (i) if the maximum of the scale of the the new post is higher than the maximum of the old post then pay shall be fixed at the stage of the time scale of the new post next above the last substantive pay in the old post. (ii) If the maximum of the scale of the new post is equal to or lower than the maximum of the old post then pay shall be fixed at the stage of the time scale of the new post which is equal to his last substantive pay on the old post, or if there is no such stage, the stage next below that pay plus personal pay equal to the difference. " Rule 2 prescribes the extent of application of Rajasthan Service Rules, 1951, to post or service of State of Rajasthan and provides that the Rules shall not apply to the work-charge employees on account of rule 2. Work-charge employee is defined to be an employee who is not on regular establishment and is paid out of provision for expenses on works, maintenance of works, or State trading schemes and similar other provision for funds, other than provisions under budget unit of appropriation 'pay of Officers' and 'pay of Establishment'. Thus, the person working as work-charge employee not on regular establishment is not entitled to have the application of Rajasthan Seivice Rules, 1951. Rule 26 lays down that a Govt. servant who is already serving in one service, cadre or department, if appointed to another service, cadre or department by direct recruitment or special selection (including transfer other than by deputation, from one service, cadre or department to another) and not by promotion according to service rules, shall have his initial pay fixed, if appointed substantive on a permanent post and not officiating on a higher post. If the maximum of the pay scale of the new post is equal to or lower than the maximum of the pay scale of old post, his pay shall be fixed at the stage of the time scale of the new post which is equal to his last substantive pay on the old post. For the purposes of fixation of the pay under this rule, it has to be seen that the Govt. servant was already serving in one service, cadre or department of the Govt. and he has been appointed to another service, cadre or department of the State by direct recruitment. The rule does not contemplate that the incumbent should be a regular government servant appointed on regular establishment. The requirement of the rule is that he is already serving in one service, cadre or department. Rule 26 is comprehensive enough to include work-charge employment. The work-charge employment is also service of the Government and thus, work-charge employee is a servant of the Government within the meaning of rule 26. The only requirement under rule 26 is that the incumbent should be a government servant prior to his appointment to other cadre, service or department. The work-charge employees are also government servant and, therefore, their appointment to another service, cadre or department, shall squarely cover under rule 26.
(3.) RULE 2 (g) has no application to the present case. RULE 2 (g) only says that the person appointed as work-charge employee, the RULEs shall not apply. The petitioner is not claiming the fixation of the pay scale as work-charge employee, but he is claiming the fixation of the pay scale as a regular employee and there is no bar for the application of the RULEs of 1951 to the regular employees. Under clause (ii) of rule 26 when the government servant serving with the State Govt. is appointed by direct recruitment to another service, he shall be fixed at the pay scale at which he has reached in the old service. If the maximum scale of the new post is equal to or lower than the maximum of the old post. The maximum pay scale of the work-charge employee is Rs. 840/-i. e. similar to that of in the pay scale of L. D. C. on regular establishment. The petitioner has reached to the stage of Rs. 540/- while working as Store Munshi. When he has been appointed in other service, cadre or department as L. D. C. by direct recruitment, his pay shall be fixed at the stage of the time scale of the new post, which is equal to his last substantive pay of the old post at the time of his appointment. The substantive pay of the petitioner at the time of his appointment, on the old post, was Rs. 540/ -. On his appointment to the service, cadre or department by order dated 16. 2. 84, his pay shall be equal to that which he was drawing on the old post i. e. Rs. 540/- The petition is, therefore, allowed. The respondents are directed to fix the petitioner on the pay of Rs. 540/- from 16. 2. 84 and give him all necessary increments thereafter which he is entitled to. The petitioner be paid the arrears of his salary within three months from today. The parties shall bear their own costs. . ;