Hemant Kumar Vyas v. State of Rajasthan and Ors.) vide judgment dated

Judgment

1. State of Rajasthan through its Principal Secretary to the Government, Department of Rural Development and Panchayatiraj, Secretariat, Jaipur.

2. The Zila Parishad, Dholpur through its Chief Executive Officer.

3. The Block Development Officer, Panchayat Samiti - Saipau, District Dholpur. ----Respondents For Petitioner(s)

: Mr.Harshit Mittal For Respondent(s) : Ms.Sara Parveen JUSTICE ANOOP KUMAR DHAND Order 11/02/2025

1. Learned counsel for the petitioner submitted that the issue involved in this writ petition has already been decided by this Court while deciding S.B. Civil Writ Petition No. 21227/2018 (Hemant Kumar Vyas Vs. State of Rajasthan and Ors.) vide judgment dated 26.08.2019 by observing thus:- “1. The grievance of the petitioner in the present writ petition is with regard to his pay protection at the time of his absorption in the Panchayati Raj Department and further for grant of pay w.e.f. the date of joining in the Panchayati Raj Department.

2. Learned counsel for the petitioner submits that this Court in S.B. Civil Writ Petition No. 6911/2015 [2025:RJ-JP:5949] (2 of 6) [CW-26041/2018] (Jairam Sharma Vs. State of Rajasthan and Ors.) has decided the similar controversy by order dt. 12th April, 2017. The operative portion of the order dt. 12thApril, 2017 is reproduced hereunder:- “In the case of M. M. Bhavsar (supra), in somewhat similar circumstances and factual matrix the option of the incumbent to lower category of post under the State with pay protection was not treated as waiver of protection of pay to which incumbent was entitled on the date of absorption. In the case at hand, the petitioner opted for absorption under the Panchayati Raj Department on the post of ‘Gram Sewak’ in the backdrop of a specific contemplation as to pay protection accorded to him vide order/communication dated 21st June, 2000. The fact that the petitioner continued in the same protected pay scale and retired attaining the age of superannuation on 31st July, 2016,is also not in dispute. Thus, while the petitioner was absorbed on the post of ‘Gram Sewak’ a post in lower pay scale but with pay protection, would not amount to his waiver of the protection of pay accorded by the State respondents vide order dated 21st June, 2000. No other point was raised by the counsel for the parties for consideration of this Court. For the reasons and discussion aforesaid, the writ application succeeds and is hereby allowed. Impugned orders dated 20th October, 2010 (Annexure-6), 2nd December, 2010 (Annexure-7) and 25th March, 2011 (Annexure9), qua the petitioner; are hereby quashed. As a consequence thereof, the petitioner would be entitled all consequential benefits. No costs.” Learned counsel for the petitioner further 3. submits that the Co-ordinate Bench has also passed identical orders in S.B. Civil Writ Petition No. 19650/2017 (Thomas Varghese Vs. State of Rajasthan and Ors.) dt. 20th November, 2017 and [2025:RJ-JP:5949] (3 of 6) [CW-26041/2018] in S.B. Civil Writ Petition No. 16917/2017 (Hemraj Jatoliya Vs. State of Rajsthan and Ors.) dt. 31st October, 2017. Counsel submitted that the present writ petition filed by the petitioner also requires to be adjudicated on the same lines. Learned counsel appearing on behalf of the 4. respondents, do not dispute the legal proposition, which has been settled by this Court in the above mentioned three cases.

5. The present writ petition filed by the petitioner also deserves to be allowed in the terms of the order passed by this Court in the case of Jairaj Sharma Vs. State of Rajasthan and Ors. (Supra). The orders dt. 02/10/2010, 09/03/2012 passed by the respondents which are impugned in the writ petitions are hereby quashed and set aside and the petitioner would be entitled to get all the benefits along with interest @ 9% with effect from 1stApril, 2016 till the date of actual payment is made to the petitioner, as has been passed by this Court in the case of Thomas Varghese (supra).

6. As regards the additional prayer made by the petitioner, he may submit a representation to the respondents with regard to the same which shall be decided by the respondents strictly in accordance with law while keeping into consideration the law laid down by coordinate Bench of this Court in Jagdish Bhanoda Vs. State of Raj. & ors. (SB Civil Writ Petition No.773/2009, decided on 29/07/2009.

7. The said exercise may be carried out within a period of six months from the date of receipt of certified copy of this order. The writ petition is accordingly allowed. All 8. pending applications including stay application also stand disposed of.”

2. Learned counsel for the petitioner further submitted that prior to the judgment delivered by this Court in the case of Hemant Kumar Vyas (supra), the controversy came up before this Court in the case of Rajkumar Agrawal Vs. State of Rajasthan & Ors. while deciding S.B. Civil Writ Petition No. [2025:RJ-JP:5949] (4 of 6) [CW-26041/2018] 5400/2015 vide order dated 12.04.2017 and it was observed therein as follows:- “A glance of the instruction, as extracted herein above, would reflect that absorption of the employee on abolition of a post held by him, is to be made as far as possible on an equivalent post and on appointment on an equivalent post, pay is to be fixed on the principle as contemplated under Rule 26 (1)(a)(ii) of the Rajasthan Civil Services Rules, 1951. In the case at hand, the petitioner was not absorbed on the equivalent post, and therefore, contemplation under order/communication dated 23rd January, 2001, for protection of pay was provided. contemplation of pay protection joined the post of ‘Gram Sewak’, with the Panchayati Raj Department. Hence, the case at hand falls within the contemplation of Clause (iii) of Rules 26 (1)(a). The petitioner, accepting In the case of M. M. Bhavsar (supra), in somewhat similar circumstances and factual matrix the option of the incumbent to lower category of post under the State with pay protection was not treated as waiver of protection of pay to which incumbent was entitled on the date of absorption. In the case at hand, the petitioner opted for absorption under the Panchayati Raj Department on the post of ‘Gram Sewak’ in the backdrop of a specific contemplation as to pay protection accorded to him vide order/communication dated 23rd January, 2001. That fact that the petitioner continued in the same protected pay scale and retired attaining the age of superannuation on 30th September, 2016, is also not in dispute. Thus, while the petitioner was absorbed on the post of ‘Gram Sewak’ a post in lower pay scale but with pay protection, would not amount to his waiver of the protection of pay accorded by the State- respondents vide order dated 23rdJanuary, 2001 No other point was raised by the counsel for the parties for consideration of this Court. For the reasons and discussion aforesaid, the writ application succeeds and is hereby allowed. Impugned orders dated 20th October, 2010 (Annexure-5),and 9th March, 2012 (Annexure-8), qua the petitioner; are hereby quashed. As a [2025:RJ-JP:5949] (5 of 6) [CW-26041/2018] consequence thereof, the petitioner would be entitled all consequential benefits. No costs.”

3. It is also submitted by counsel for the petitioner that finally the Department of Rural Development and Panchayati Raj took a decision on 31.12.2021 to apply the judgment of Rajkumar Agrawal (supra) in rem in all the cases and accordingly, the copy of the said decision was circulated among the Chief Executive Officers/Additional Chief Executive Officers and Officers of all the concerned Zila Parishads. Lastly, counsel for the petitioner prayed that the instant matter may also be disposed of in the light of the judgment of this Court passed in the case of Rajkumar Agrawal (supra) and Hemant Kumar Vyas (supra).

4. Per contra, learned counsel for the respondents opposed the arguments raised by counsel for the petitioner, but she is not in a position to controvert the facts stated above and she is not in a position to convince this Court that when once the controversy involved in this matter has already been set at rest, then how this Court can take a different view.

5. In view of the submissions made above, the present writ petition filed by the petitioner is disposed of in the light of the orders passed by this Court in the cases of Rajkumar Agrawal (supra) & Hemant Kumar Vyas (supra).

6. With these observations, the writ petition stands allowed and the impugned order dated 03.01.2018 is quashed and set aside. The respondents are directed to release all the due retiral benefits including pension, gratuity with arrears along with interest @ 9% per annum with effect from 01.09.2022 till the date of actual payment. [2025:RJ-JP:5949] (6 of 6) [CW-26041/2018]

7. The respondents are further directed to complete the exercise within a period of two months from the date of receipt of a certified copy of this order.

8. Stay application as well as all pending application(s), if any, also stand disposed of.

9. Before parting with this order, it is made clear that if any amount of Contributory Provident Fund (CPF) received by the petitioner from the earlier Department and the same has not been deposited or refunded to the respondents, then this order would not be applicable in the case of the petitioner. Aayush Sharma/187 (ANOOP KUMAR DHAND),J