Shiv Kumar Sharma, J. - (1.) CHALLENGE in the instant appeal is to the order dt. August 31, 2006 of the learned Single Judge, whereby writ petition preferred by the respondents has been partly allowed thus - In the result, the writ petition is partly allowed. The impugned notification dt. 18.08.1992 (Annexure -5) so far as its applicability with retrospective effect i.e. 25.01.1992 is concerned, is declared ultra vires Articles 14 and 16 of the Constitution of India. The respondents are directed to re -fix pay of the petitioners as per the main R.26 -A RSR as it existed on 02.07.1992 on the post of Accounts Officer with a further direction to grant arrears of re -fixation and pensionary benefits etc. within a period of three months from today.
(2.) CONTENSTAL facts depict that the respondents entered in the services of the appellant on the post of Accountant between 1965 to 1969 and subsequently all of them had been promoted as Assistant Accounts Officer in the year 1981 and 1982. Thereafter promoted to the post of Accounts Officer in July, 1992 against the vacancies of the year 1992 -93. On completion of 18 years of service as per notification dt. January 25, 1992, the respondents had been granted selection scale of Rs. 2000 -3500 vide order dt. February 28, 1992. Thereafter vide notification dt. August 18, 1992 Note -4 below Rules 26A of RSR was amended w.e.f. 25.01.1992 and consequently the pay was fixed/re -fixed as per the amendment and recoveries were made from the salary of respondents. Therefore, the respondents preferred the writ petition. Considering the submissions of both the parties learned Single Judge made following observations. 17. As discussed above, the main contentions of the petitioner on the issue of retrospective amendment and non -applicability of the selection grade circular dt. 25.01.1992 in view of R.26A R.S.R. are accepted and other contentions are rejected; whereas contentions of the State Government with regard to double benefit and amendment of formal nature are rejected. 18. The petitioners were granted selection scale on 28.02.1992 and further promoted on the post of Accounts Officer on 02.07.1992 and therefore, right of fixation existed and accrued in favour of the petitioners and further vested in them as per main R.26 -A RSR and the same was also granted to some of them. The amendment made vide notification dt. 18.08.1992 made effective from 25.01.1992 so far as its retrospective application part is concerned is ultra vires Articles 14 and 16 of the Constitution of India. Para 13 of the Executive instructions dt. 25.01.1992 for grant of selection scale is not applicable to the State service posts, as discussed above. Otherwise also, the said administrative instructions will not prevail over the main R.26 -A RSR. So on both the counts benefit of fixation given at the time of grant of selection scale on 18 years' service and on promotion to the Post of Accounts Officer was not liable to be withdrawn and further recovery in pursuance thereto is illegal.
(3.) MR . Bharat Vyas, learned Additional Advocate General, canvassed that the selection grade, introduced by the order dt. January 25, 1992 was in lieu of promotion. Since the respondents had already availed the benefit of fixation of pay on promotion at the time of grant of selection grade, their rights were not jeopardised. The amendment introduced vide order dt. August 18, 1992 was necessary because of the fact that there was no provision in RSR which was leading to a lot of confusion.;