VYAS, J. - (1.) THIS writ petition is the second innings of the petitioner for seeking relief against the respondents for allowing retiral benefits on the basis of selection scales already granted to him by the respondent University and for quashing Annex. 12 dated 18. 11. 2005 and Annex. 13 dated 9/13. 12. 2005.
(2.) BRIEF facts of the case are that the petitioner was appointed initially as Helper to Mechanic with effect from 3. 5. 1966 in the grade of Rs. 45-70. He was confirmed on the post of Helper to Mechanic with effect from 3. 5. 1967 vide order dated 6. 6. 1968. Initially, the petitioner was appointed in the Udaipur University and, later on, when separate Agriculture University known as Rajasthan Agriculture University, Udaipur was established the petitioner became employee of the said University which, however, was further re-named as Mohan Lal Sukhadia University and, ultimately upon formation of Maharana Pratap University of Agriculture & Technology, Udaipur the petitioner became employee of the said University. The petitioner while working as Helper was promoted to the post of Pump Operator vide order dated 7/11. 8. 1986. The said post is also known as Assistant Mechanic in pursuance of BOM's decision dated 18. 7. 1996. As per the petitioner, in the absence of rules with a view to providing benefit of higher post (promotion) the case of the petitioner was considered by the Committee set up for adjudging the suitability of the in-service Class IV employees the Vice Chancellor was pleased to appoint the petitioner to the post of Pump Operator on promotion and petitioner joined on the said promotion post on 12. 8. 1986, therefore, his pay was fixed in relevant pay-scale of Rs. 420- 740. After coming into force of the circular order dated 25. 1. 1992 for grant of selection scales, the respondent University while considering the promotion of the petitioner on the post of Pump Operator in the year 1986 did not grant the first selection scale, however, by reckoning 18 years of service, the second selection scale was granted to the petitioner in the pay-scale of Rs. 1200-2050 and third selection scale was granted to the petitioner with effect from 3. 5. 1993, so also, the fixation of pay was made after granting the third selection scale in the pay-scale of Rs. 1400-2600, Prescribed for the promotional post of Junior Mechanic as per the relevant recruitment and promotion rules. The petitioner was also allowed the fixation of pay as per the recommendation of the Vth Pay Commission and fixed at Rs. 5150/- in the pay-scale of Rs. 5000-8000 which is analogous to pre-revised pay-scale of Rs. 1400-2600. The case of the petitioner is that he was permitted to retire peacefully from the service without any dispute but two increments and dearness allowance immediately preceding the retirement were not released and on account of objection having been raised by the Accounts Section that the petitioner has been wrongly granted selection grade, the gratuity amount was not released in favour of the petitioner. It is further submitted that after retirement of the petitioner the retiral benefits were not paid to him on the ground that the petitioner had wrongly been granted the selection grades on completion of 18 and 27 years of service and he was wrongly treated as promoted on the post of Pump Operator in the year 1986. The respondents therefore proceeded to rescind the selection scales granted to the petitioner after completion of 18 and 27 years of service on the ground that the petitioner was never promoted to the post of Pump Operator in the year 1986 and, as per the respondents, the said appointment in the year 1986 was fresh appointment, therefore, for grant of selection scale the service period was to be reckoned from the date of fresh appointment on the post of Pump Operator i. e. , 12. 8. 1986. Thereby meaning that the selection scale granted to the petitioner as per circular dated 25. 1. 1992 after completion of 18 and 27 years of service while treating the petitioner's first promotion in the year 1986 on the post of Pump Operator and service tenure of the petitioner calculated right from his initial appointment on 3. 5. 1966 was wrongly done and upon this objection being raised by the respondents the benefits granted to the petitioner for grant of selection scale after completion of 18 and 27 years of service were treated to be wrong because, as per the respondents, the appointment of the petitioner on the post of Pump operator was fresh appointment and as per para 3 of the Government order dated 25. 1. 1992 service of 9, 18 and 27 years, as the case may be, shall be counted from the date of first appointment in the existing cadre in accordance with the service rules. Further, as per the respondents, if the employee subsequent to his first appointment to a post in a cadre is appointed to some other post in the same cadre on in other cadre, service from the date of the latter appointment shall be taken into consideration for the purpose of grant of selection scale. Further, it is provided in the circular order dated 25. 1. 1992 that if an employee subsequent to his first appointment to a post in a cadre/service in accordance with the provisions contained in the relevant service rules is promoted to some other cadre/service, the first appointment shall be taken into consideration for the grant of selection scale. Therefore, as per the respondents, the petitioner was wrongly granted second and third selection scales while reckoning his service period with effect from 3. 5. 1966 and while treating his fresh appointment on the post of Pump Operator as promotion, therefore, at the time of retirement, both the benefits of selection scales granted to the petitioner after completion of 18 and 27 years of service were taken back and recovery order was passed.
(3.) THE petitioner being aggrieved and dissatisfied with the illegal action of the respondent for recovery and the benefits earlier granted to him having been taken back approached this Court by way of filing S. B. Civil Writ Petition No. 1883/2005, decided on 24. 8. 2005. In the said writ petition, decided by a co- ordinate Bench, the following order was passed on 24. 8. 2005:      " Thus, this writ petition filed by the petitioners is allowed and the order dtd. 22. 3. 2005 along with PPO dtd. 24. 3. 2005 (Annex. 6) and revision of pay of the petitioner vide statement (Annex. 9a) are quashed and set aside. However, the petitioner is directed to file a fresh representation within a period of 15 days from today, and the concerned authority is directed to consider and decided the same either way in accordance with law within one month from the date of receipt of the said representation. If it is found that the petitioner is entitled for any relief in accordance with law, then the same may be given to the petitioner and if the petitioner is not found entitled to the relief sought for, then a reasoned and speaking order, strictly in accordance with law, may be passed, after affording an opportunity of hearing to the petitioner. " After passing of the above order by this Court, a representation was made by the petitioner within the stipulated time which is placed on record as Annex. 11. But, again, vide impugned order dated 18. 11. 2005 Annex. 12 and subsequent order dated 9/13. 12. 2005 (Annex. 13), the respondent University held in the order passed upon the representation that the petitioner is not entitled for second and third selection scales and treating the petitioner's initial appointment on the post of Pump Operator as on 12. 8. 1986, granted one selection scale after completion of 9 years of service on 12. 8. 1995 in the pay scale of Rs. 4000-6000 and passed order for recovery and, accordingly, passed order for granting final pension. In the present writ petition, the petitioner has challenged above orders Annex. 12 dated 18. 11. 2005 and Annex. 13 dated 9/13. 12. 2005. It is vehemently contended by learned counsel for the petitioner that the respondents cannot treat the petitioner's promotion on the post of Pump Operator as fresh appointment because the opportunity of promotion was granted to the petitioner alongwith other persons while adjudicating their suitability by the committee, meaning thereby, the said promotion cannot be treated as fresh appointment because the petitioner was granted promotion to the higher post after due consideration and adjuding the suitability by the committee set up by the University and the petitioner was granted benefit of Rule 26a of the RSR which is to be provided in the event of promotion. Therefore, the denial of selection scales granted to the petitioner after completion of 18 and 27 years of service after retirement is totally illegal and has no foundation to stand in the eye of law. It is contended by the learned counsel that the respondents are wrongly treating the petitioner's case covered under para 3 of the Finance Department order dated 25. 1. 1992 in which it is provided that, the service of nine, eighteen or twenty seven years, as the case may be, shall be counted from the date of first appointment in the existing cadre/service in accordance with the provisions contained in the Recruitment Rules; provided that if an employee subsequent to his first appointment to a post in a cadre/service, as a result of direct recruitment, is appointed to some other post in the same cadre or any other cadre, service from the date of latter appointment shall be take into consideration for the purpose of grant of Selection Grade. Therefore, when representation was filed by the petitioner in pursuance of the direction issued by this Court in the earlier writ petition (being S. B. Civil Writ Petition No. 1883/2005, decided on 24. 8. 2005), the respondents have again rejected the claim of the petitioner on the ground that the petitioner's appointment on the post of Pump Operator was fresh appointment which cannot be treated as promotion to the said post. ;