Hospital (Fgvh), Adarsh Nagar, Ajmer And Resident Of House No v. State Of Rajasthan, Through The Secretary To The

Judgment

1. State Of Rajasthan, Through The Secretary To The Government, Department Of Animal Husbandry, Secretariat, Jaipur.

2. The Director, Directorate Of Animal Husbandry-Rajasthan, Pashudhan Bhawan, Opposite Nehru Garden, Tonk Road, Jaipur.

3. The Additional Director (Range), Department Of Animal Husbandry, Shastri Nagar, Ajmer.

4. The Deputy Director, Poly Clinic Veterinary Hospital, Naya Bazar, Department Of Animal Husbandry, Ajmer.

5. The Secretary, Department Of Personnel (K-3), Government Of Rajasthan, Secretariat, Jaipur. ----Respondents For Appellant(s)

: Mr. Ashish Kishore Saksena For Respondent(s) : Ms. Mahi Yadav, AAG with Ms. Sakshi Bhardwaj Mr. Vigyan Shah, AAG HON'BLE MR. JUSTICE INDERJEET SINGH HON'BLE MR. JUSTICE PRAMIL KUMAR MATHUR 26/03/2025 Order This appeal has been filed by the appellant against the order dated 06.02.2023 passed by the learned Single Judge, whereby the writ petition filed on behalf of the petitioner was dismissed against his re-fixation of salary. [2025:RJ-JP:13765-DB] (2 of 5) [SAW-351/2023] Before the learned Single Judge, the prayer made by the learned counsel for the petitioner in the writ petition reads as under:- “(I) An appropriate writ, order or direction to the respondents for declaring the order dt. 20.11.2000 (Annex-10) to the extent of declaring the service period of the petitioner i.e. 01.09.1997 to 06.09.1998 as ‘dias-non’ as illegal and arbitrary with further relief of granting the same as extra ordinary leave with consequential relief. (ii) An appropriate writ, order or direction to the respondents for declaring the order dt. 18.05.2001 (Annex-12) to be arbitrary and illegal with further relief, to declare the period i.e. 01.09.1997 to 06.09.1998 to the countable towards grant of yearly increment, leave, pension etc. (iii) An appropriate writ, order or direction to the respondents for declaring the petitioner eligible for grant of 1st ACP w.e.f. 31.07.2007 and 2nd ACP w.e.f. 31.07.2017 with consequential relief of quashing the communication dt. 06.2.2018 (Annex-14) and 30.03.2018 (Annex-15). (iv) Any other appropriate writ, order or direction to the respondents, which this hon’ble Court deems just, and proper in the circumstances of the case. (v) Cost of the writ petition.” The learned Single Judge while considering the submissions made by the learned counsel for the parties has held as under:- “The undisputed fact of this case is that the petitioner was appointed vide order dated 10.01.1997 and he sought extension from joining and finally he joined the post of Veterinary Assistant Surgeon on 31.07.1997. It appears that joining of the petitioner was not within the knowledge of the Director, Department of Animal Husbandry, thus the appointment of the petitioner was cancelled vide order dated 09.09.1997. Subsequently, knowledge of joining, the order dated 09.09.1997 was recalled and the petitioner was allowed to continue on the post on which he was appointed. This fact is not in dispute that the after getting [2025:RJ-JP:13765-DB] (3 of 5) [SAW-351/2023]

06.09.1998, petitioner remained absent from duty with effect from 01.09.1997 till 06.09.1998 and no leave of any kind was sanctioned by the respondents. When the petitioner did not join duty during this period, a charge-sheet was issued to him. Though the petitioner has been exonerated from the charge of willful absence still His Excellency the Governor passed an order on 20.11.2000 by treating the period of absence of the petitioner as ‘dias-non’ because the petitioner has not worked with the Department during this intervening period. Vide order dated 18.05.2001, the respondents passed an order stating therein that for this period of ‘dias-non’ i.e. with effect from 01.09.1997 petitioner would not be entitled to get benefits of annual grade increments, leave, pension etc., and this period was treated as void. This period was to be treated as nullity in the service record of the petitioner. It appears that the petitioner was satisfied with the orders dated 20.11.2000 and 18.05.2001, that is why, he kept silent till filing of this writ petition. It appears that the Department has extended the benefits of first selection scale by overlooking these two impugned orders and subsequently the Department realised its mistake and directed the petitioner to submit a fresh option for getting the first selection scale by excluding this period of ‘dias-non’. For the first time, the petitioner felt aggrieved by the orders dated 06.02.2018 and 30.03.2018 and approached this Court after a lapse of long years’ delay. It is the well settled principle of law that though there is no limitation for filing of writ petition under Article 226 of the Constitution of India but at the same time the aggrieved party is required to approach the Court immediately after passing of the impugned order against which he is feeling aggrieved but here in the instant case, it appears that the petitioner was satisfied with the orders dated 20.11.2000 and 18.05.2021, that is why, he has not approached this Court by way of filing any petition challenging these orders. It appears that when the respondents directed the petitioner to submit fresh option for getting the benefits of first selection scale by [2025:RJ-JP:13765-DB] (4 of 5) [SAW-351/2023] excluding this period of absence as ‘dias- non’, hence the petitioner has approached this Court. The petitioner is not entitled to get any benefit at this belated stage on merits as well as on technical grounds for the reason that the petitioner has not worked in that intervening period i.e. with effect from 01.09.1997 till 06.09.1998 and no leaves were sanctioned in favour of the petitioner for this absence period. Hence the respondents have not committed any error in treating this period as ‘dias-non’. Now the next question in this case before this Court is that can respondents recover the benefits of first selection scale extended to the petitioner. The answer to this question is that the petitioner was not at fault and he cannot be blamed because the respondents themselves have extended the benefits of first selection scale to the petitioner. The respondents cannot recover the amount already extended to the petitioner. Though the respondents can take fresh option from the petitioner for getting the benefits of first and second selection scales by treating the ‘dias- non’ period as absence period. With the aforesaid directions, this writ petition stands disposed of. The stay as other application as well application(s) (pending, if any) also stand disposed of accordingly.” We have considered the facts that the learned Single Judge has held that no recovery shall be made from the appellant- petitioner and the learned Single Judge while deciding the writ petition has considered the order passed by the Department on

18.05.2001, whereby, the period of absent of the appellant- petitioner from 01.09.1997 till 06.09.1998 was held as ‘dias-non’. In our considered view, no illegality has been committed by the respondents in re-fixation of the salary of the appellant-petitioner taking into consideration the order dated 18.05.2001 passed by the Department. [2025:RJ-JP:13765-DB] (5 of 5) [SAW-351/2023] We have also gone through the fact that the appellant- petitioner failed to challenge the order dated 18.05.2001 immediately and the same was challenged before the learned Single Judge after a delay of 17 years. In our considered view, no illegality has been committed by the learned Single Judge in passing of the order dated 06.02.2023. In that view of the matter, no case is made out for interference by this Court, hence, the present appeal stands dismissed. (PRAMIL KUMAR MATHUR),J (INDERJEET SINGH),J Upendra Pratap Singh /207