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1997 DIGILAW 1427 (RAJ)

Shetan Singh v. State of Rajasthan

1997-12-01

V.G.PALSHIKAR

body1997
Honble PALSHIKAR, J.–By these writ petitions the petitioners who are working as Laboratory Assistants under the Government of Rajasthan have challenged the communication dated 29th September `97, by which the Director of Education, Rajasthan, has issued certain instructions to his Department regarding absorption of the Laboratory Assistants who are rendered surplus in the State Services. (2). The petitions involve no disputed facts and raise identical questions of law and, therefore, are being conveniently decided by this common order, as the same were heard jointly and the Court was addressed by the counsel for the petitioner in several cases, jointly. (3). Notices were ordered to issue in many of these petitions and a reply opposing the prayers has been filed on behalf of the State by Mr. M.R. Singhvi, Advocate. He opposed the petition on all grounds. (4). The learned counsel for the petitioners assailed the communication dated 29th September `97 on several grounds and prayed that for these grounds the communication is liable to be quashed by a writ of certiorari or any other appropriate writ, order or direction in that regard. According to the learned counsel for the petitioners, this communication is in gross violation of the various provisions of the Rajasthan Civil Services (Absorption of Surplus Personnel) Rules, 1969, (hereinafter referred to as `the Rules of 1969). (5). It is the contention of the petitioners that the impugned notification of 29th September `97 directs absorption of the petitioners who are Laboratory Assistants as Teachers Grade III. This post of Teacher Grade III is not equivalent post as con- templated by clause (3) of Rule 2 of `the Rules of 1969. The clause defines equivalent posts as a post carrying identical pay scale and involving similar nature of duties and responsibilities. According to the learned counsel, the duties of the Laboratory Assistants and Teacher Grade III are not similar, though the scale may be identical and hence there is basic infirmity in the order of absorption. (6). The next contention raised on behalf of the petitioners is that the Rules of 1969 require constitution of a Committee by the Government consisting of not less than three or more than 5 members for absorbing surplus personnel. No such Committee was constituted and, therefore, subsequent proceedings are vitiated. (6). The next contention raised on behalf of the petitioners is that the Rules of 1969 require constitution of a Committee by the Government consisting of not less than three or more than 5 members for absorbing surplus personnel. No such Committee was constituted and, therefore, subsequent proceedings are vitiated. It is then alleged that there is no declaration by the Committee that the posts of Tea- cher Grade III is equated to the post of Laboratory Assistants and, therefore, for violation of Rule 6, this communication is liable to be quashed. (7). It was then submitted by the learned counsel for the petitioners that these rules contemplated giving of option to the petitioners regarding accepting absorption as Teacher Grade III. For this reason also, the communication dated 29.9.97 is liable to be quashed. (8). Opposing these petitions, it was submitted by the learned counsel for the Department that the Rules of 1969 have been duly complied with. The learned counsel took me through the rules and sought to explain the manner in which the rules have been complied with. He, therefore, claimed dismissal of the petition. (9). These rival contentions, therefore, require to be adjudicated upon in light of the undisputed facts and the law applicable thereto. Taking into consideration the fact that a large number of Laboratory Assistants are affected by the impugned order and several petitions are already filed, it would be worthwhile to consider the matter at length and finally adjudicate the same and, therefore, it would be worthwhile to note inextenso the various provisions governing the matter of absorption. (10). It is not disputed by either of the parties of this litigation that the entire matter of absorption is governed by the Rajasthan Civil Services (Absorption of Surplus Personnel) Rules, 1969, as referred to above `the Rules of 1969. These Rules, thus, establish a code in itself, observation of which is necessary for legal absorption of surplus personnel. (11). Rule 2 of the Rules of 1969 reads as under and it provides for recruitment and appointment by absorption notwithstanding anything contained in rules or orders for the time being, and the conditions of service of persons appointed to various services and posts under the State :– ``2. (11). Rule 2 of the Rules of 1969 reads as under and it provides for recruitment and appointment by absorption notwithstanding anything contained in rules or orders for the time being, and the conditions of service of persons appointed to various services and posts under the State :– ``2. Scope and Applicability.–Notwithstanding anything contained in any service rules or orders for the time being in force regulating the recruitment and conditions of service of persons appointed to the various services or posts in connection with the affairs of the State, surplus personnel shall be eligible for recruitment and appointment by absorption to such service or posts in accordance with these rules subject to the availability of vacant post. Provided that - (i) nothing contained in these rules shall apply to post encadred in the All India Services, the Rajasthan Higher Judicial Service, the Rajasthan Judicial Service, the Rajasthan Secretariat Service, the Rajasthan Administrative Service, the Rajasthan Police Service, the Rajasthan Accounts Service and the Rajasthan Tehsildar Service; (ii) nothing contained in these rules shall apply to the persons holding posts of Statistician in the Directorate of Economics and Industrial Survey prior to the abolition of that department and subsequently absorbed as Statistical Assistants in the Directorate of Economics and Statistics on their having been rendered surplus and thereafter being adjudged suitable for appointment to the service under Rule 24 of the Rajasthan Statistical Subordinate Service Rules, 1971. (12). It should, therefore, be noted that the rules provide explicitly for absorption, without taking into consideration the Recruitment Rules holding the field. (13). Rule 3 deals with definitions. Clause (1) thereof defines surplus personnel or surplus employees. It reads thus:- 3. Definitions.–In these rules, unless the context otherwise requires.– (1) ``Surplus. Personnel or ``Surplus Employee means the Government servant to whom the Rajasthan Service Rules, 1951 apply and who are declared surplus by the Government or by the Appointing Authority, under directions of the Government, on their being rendered surplus to the requirements of a particular department of the Government due to the reduction of posts or abolition of offices therein as measures of economy or on administrative grounds but in whose case the Government decides not to terminate their services but to retain them in service by absorption on other posts. (14). (14). It will, thus, be seen that a surplus employee is one who is declared surplus by the Government or by the Appointing Authority under the directions of the Government on their being rendered surplus to the requirements of a particular departments of the Government. It will, therefore, be seen that declaration as surplus, must precede orders of factual absorption to be passed thereafter. (15). Rule 5 of the Rules then provides for constitution of the committee. It reads thus :– ``5. Constitution of the Committee.–The Government shall, by an order, constitute an absorption Committee consisting of not less than 3 and not more than 5 members, as may be deemed fit, for absorbing surplus personnel; Provided that the Government may by an order reconstitute the Committee or change all or any of its members, from time to time, as may be deemed fit. (16). It may be noted from the provisions of Rule 5 that the power of the Government to constitute, reconstitute or change all or any of its members from time to time is vested in the Government. It gives rise to an irresistable conclusion that the constitution of Committee is an aid created for assisting the State Government in absorption of surplus employees and is not a mandatory provision, hence existence of it is not a condition precedent necessary for further action in the matter of declaration and absorption of a surplus employee. (17). Rule 6 then contemplates declaration of equated post. It reads as under:– ``6. Declaration of equated post.–The Committee may, if it deems fit, for purposes of Rule 7, declare a post or class of posts as equated to the post held by the surplus employee immediately before his being declared surplus keeping in view the nature of duties, qualifications and pay scales attached to such post or class of posts. (18). It will be clear from Rule 6, therefore, that declaration of equated post held by the surplus employee immediately before his being declared surplus, must precede such declaration. (19). Rule 7 then provides the procedure for absorption and stipulates that the Committee if any appointed under Rule 5 shall allot surplus personnel to the depart- ment or services wherein equated equivalent or lower vacant post or posts are available. (19). Rule 7 then provides the procedure for absorption and stipulates that the Committee if any appointed under Rule 5 shall allot surplus personnel to the depart- ment or services wherein equated equivalent or lower vacant post or posts are available. Sub-clause (2) of Rule 7 stipulates that the Government may, by order, delegate the powers of the Committee to the Collector of the District in respect of the ministerial and Class IV employee serving within their respective district. Sub-rule (2) of Rule 7 reads thus: ``7. Procedure of Absorption.–(2) The Government may, by order, delegate the powers of the Committee to the Collectors of the districts in respect of the ministerial and Class IV employees serving within their respective district. (20). A perusal of this rule thus, demonstrate that the power of the State Govern- ment in the matter absorption or its surplus employees the Govt. may delegate the powers of the of Committee to the Collectors of the districts in respect of the ministerial and class IV employees serving within their respective district. (21). These Rules are framed by the State in exercise of the powers under Article 309 of the Constitution of India for regulating the absorption of surplus per- sons employed in connection with the affairs of the State. These rules are, also, therefore, framed by the State for its own guidance and for regulating the procedure by which it shall carry on the absorption and to eliminate arbitrary or capricious exercise of the powers of absorption. Consequently, by the very nature of things these rules are subservient to the interest of the State in the matter of absorption of surplus personnels in connection with the affairs of the State and in such circumstances it cannot be impugned for not strictly adhering to the general procedure prescribed by these rules for such absorption. These rules, by their very nature are directive. They also provide protection to the surplus employee. (22). Rule 9 then provides and empowers the State to reduce the number of vacant posts to be filled in by recruitment either by promotion or by direct appointment. Rule 10 provides power of relaxation. Relaxation of qualification of surplus personnel as per the relevant rules of recruitment. Rule 12 provides for holding departmental examination and imparting training to the persons recruited by absorption. Rule 10 provides power of relaxation. Relaxation of qualification of surplus personnel as per the relevant rules of recruitment. Rule 12 provides for holding departmental examination and imparting training to the persons recruited by absorption. It will be soon that the Government has the power under these Rulesto recruit by absorption person who do not possess requisite qualification under the Recruitment Rules and then train them to acquire those necessary qualifications. (23). Then comes Rule 18 which gives the option to the surplus employee to reject absorption and opt to go out of service. A perusal of all these rules and a coercive reading thereof thus, proves that these rules are a code in itself and pro- vide the entire procedure which is to be followed by the State broadly to implement the process of absorption. These rules are guidelines for absorption and are not obstructions in the matter of absorption. It is in light of these rules that the action of the State in issuing the Circular dated 29th September `97, which is to be examined. (24). The learned counsel for the petitioner assailed this circular by saying that there is infraction of these rules on various occasions and, therefore, the circular is required to be quashed. Conversely it is contended by the State that generally the rules have been followed in spirit and there is, therefore, no question of the circular being violative of any of the provisions of the rules. It is also contended that even if there is violation of the rules being directory in nature do not, vitiate the ultimate action of absorption. It is, therefore, contended by the learned counsel that the petitions are liable to be dismissed. (25). It is also contended by the learned counsel for the State that the petitioners cannot assail the order dated 29.9.97 as those are only directions issued for absor- ption of the personnel by the Department of Education after the decision that they are surplus employees as Laboratory Assistants was taken by the State. That decision having been taken by the State in accordance with the rules and communicated to all concerned by the communication dated 27.8.97, it is that decision which is to be challenged. It is not challenged in any of the petitions and the sub- sequent order cannot, therefore, be assailed on any of the grounds argued on behalf of the petitioners. It is not challenged in any of the petitions and the sub- sequent order cannot, therefore, be assailed on any of the grounds argued on behalf of the petitioners. According to the learned counsel, this objection goes to the root of the matter and should be decided first. (26). Having heard the learned counsel for both the parties at length on the merits of the case, I do not think that there should be any piecemeal decision of the contentions and, therefore, intend to decide all the contentions raised in these petitions. (27). Mr.G.K. Vyas, learned counsel for the petitioner relied on a judgment of this Court reported in RLW 1987, 342 (1) wherein considering a circular dated 20th May `78 issued under the Rules of 1969, laid down that a person can be declared surplus only after effort to adjust that employee in a similar post in the Department for which they are qualified, is not available. Relying on this decision, therefore, the contention is that no such effort was made in the present case and, therefore, the order is violative of the circular and consequently, violative of the Rules of 1969. There is no substance in the contention of Mr. Vyas as an effort to adjust surplus employee, namely, Laboratory Assistants in similar posts in the Department of Education was positively made. A perusal of the communication dated 27th August `97 Anx.r/1 at page 60 in Writ Pet. No. 3839 of 1997 is sufficient. In this decision it is stated that with reference to the letter dated 24.7.97 on the subject of absorption of Laboratory Assistants rendered surplus, the matter was considered at higher level and it was observed that those Laboratory Assistants who are rendered surplus in the Education Department are to be dealtwith in accordance with the decision taken and communicated by that letter. Three decisions were taken: (1) The earlier decisions of giving option to the concerned surplus employees was revoked and it was stipulated that as far as possible, Laboratory Assistants Grade III should be first absorbed on the vacant posts of Laboratory Assistants Grade II and III in the Sr. Secondary Schools and, thereafter, the remaining Laboratory Assistants are to be given option. Instead of doing that, it was decided that no option should be allowed to any such Laboratory Assistants. Secondary Schools and, thereafter, the remaining Laboratory Assistants are to be given option. Instead of doing that, it was decided that no option should be allowed to any such Laboratory Assistants. (2) The second decision was that of the Laboratory Assistants, those who have not passed STC, special Course will be run for them. This obviously is a decision under Rule 12 of the Rules of 1969. The earlier decision positively decides taking away of the option contemplated by Rule 18 of the Rules of 1969. This then was an order by which certain options available to a surplus employee were taken away and a provision was made for these training. In such circumstances, the contention of the learned Advocate, Mr. M.R. Singhvi for the Department that the order dated 27.8.97 is the one which requires to be challenged and it is in obedience to this order declaring the manner in which the surplus employee shall be absorbed that the order dated 29.9.97 is issued. (28). Reliance was then placed on a decision reported in AIR 1990 SC 592 (2). By this judgement the Supreme Court of India refused to put back in services teachers who were untrained and, therefore, removed from service. What has been observed by the Supreme Court in this case is quoted below:– ``The contention, however, urged for the petitioners before us is that they should be absorbed in service and they should also be provided with facilities to undergo the prescribed training. We do think that we could accept the contention. We cannot, at any rate, direct the Government to put back the petitioners into service till they are trained. No doubt the High Court in Tamboli case has directed the State Government to get the untrained teachers trained in phased programme to enable them to improve their prospects for employment. But that does not, however, mean that it is obligatory for the Government to continue the untrained teachers till they are properly trained. (29). The Supreme Court, therefore, has said that we cannot direct the Government to put back the petitioners into service till they are trained. No doubt, the High Court in that case has directed the State Government to get the untrained teachers trained in phased programme to enable them to improve their prospects for employment. This case is, therefore, clearly distinguishable. The Supreme Court, therefore, has said that we cannot direct the Government to put back the petitioners into service till they are trained. No doubt, the High Court in that case has directed the State Government to get the untrained teachers trained in phased programme to enable them to improve their prospects for employment. This case is, therefore, clearly distinguishable. It is also liable to be distinguished on the ground that the Supreme Court was dealing with the Primary Schools and looking after the welfare of the tiny tots, as mentioned by the Supreme Court in para 6. Here the persons are being absorbed in Secondary Schools where Laboratories are already existing. They will be dealing with the students who are taking instructions in different subjects. Consequently they can- not be equated to tiny tots. Therefore, this judgment is also of no avail to the petitioner. (30). The learned counsel has cited AIR 1989 SC 182 (3). However, it appears to be a wrong citation. The case appearing in that page has no relevance to the present dispute. (31). Then reference was made to AIR 1996 SC, 2173 (4) and it was averred that the Waiting List or Select List of candidates selected under the Recruitment Rules of 1971 is still operative and, therefore, appointments first must be made from that List and thereafter, persons like the petitioners, i.e. Laboratory Assistants may be absorbed. It is, therefore, alleged that the order of absorption made directly, is unsustainable in law. I fail to appreciate this contention. In the present case, there is no question of any Select List or Waiting List being available and operated. Assuming it to be so, theRules of 1969 specifically empowers the State to reduce recruitment quota. In the face of this decision, the ratio of the Supreme Court helps more the respondents State than the petitioner. The respondent State has taken a conscious decision to reduce the quota of direct recruitment, as will be seen from the instructions in the impugned Circular dated 29.9.97. Para 7 of this Circular specifically stipulates that after absorption of the Laboratory Assistants, posts of Teachers Grade III, remaining vacant, be filled in accordance with the Seniority Selection List prepared under the Rules and the vacancies be brought down to zero. Para 7 of this Circular specifically stipulates that after absorption of the Laboratory Assistants, posts of Teachers Grade III, remaining vacant, be filled in accordance with the Seniority Selection List prepared under the Rules and the vacancies be brought down to zero. In the face of this decision, therefore, the case is of no assistance to the petitioners and the contention that no absorption order could be made fails, even if it is assumed that the order dated 29.9.97 is the order of absorption. (32). Thereafter, relying on the decision of the Supreme Court in AIR 1996 1173 (5), it was argued by the learned counsel for the petitioner that by directing absor- ption of the petitioners in the Education Department, the State Government is frustrating the need of each Department to make recruitment in accordance with its requirement and procedure laid down by law for so doing. I cannot accept this argument, it is unsustainable. What has been done by the Supreme Court in the aforesaid decision is to set aside the direction by the High Court for appointments of Class III and Class IV employees of Mines and Geology Department. This direction of the High Court of the State was set aside on the ground that it would interfere with the needs and the prescribed procedure of each department and would frustrate those needs. In the present case, the State Government itself has, in exer- cise of its powers, decided to reduced the quota for direct recruitment of Teachers Grade III by some extent. The needs of the Department are not in any manner being frustrated as the Department will get the required number of Teachers either by absorption or by direct recruitment. This decision also is, therefore, of no use to the petitioners. (33). Taking into consideration the Scheme of the rules as discussed above, it is obvious that the decision holding the petitioners as surplus was taken on 27th August `97 and that decision is not challenged. What has been challenged now, is the directions issued by the Directorate to implement the decision taken on 27.8.97. (33). Taking into consideration the Scheme of the rules as discussed above, it is obvious that the decision holding the petitioners as surplus was taken on 27th August `97 and that decision is not challenged. What has been challenged now, is the directions issued by the Directorate to implement the decision taken on 27.8.97. Even if it is assumed for the sake of argument that the earlier decision of 27th August `97 merges in the directions issued by the Director and, therefore, challenge to that communication dated 27.9.97 is not effective challenge, both to that communication as also to the decision dated 27.8.97 taken earlier. It cannot be said that there is any lacuna, illegality or impropriety in either of the two documents. The decision has been taken in following the spirit of the Rules of 1969. (34). It has been pleaded in the reply that as a matter of fact, the Government has acted strictly in accordance with the rules and Circulars issued thereunder and the Government has taken the decision to safeguard their right and for securing of their welfare, so that they are not thrown out of job. It will be seen that no injury of any kind would be caused to the Library Assistants by the absorption. In fact, those of them who are Labrarians get some avenues of promotion by way of Teacher Grade II or Lecturer and can better their prospects. None looses job, there is in fact, therefore, no injury caused to the petitioners by the impugned order which is liable to be set aside by quashing the said order. Even if it is argued that certain hypertechnical infractions of the rules have taken place, looking to the welfare of the peti- tioners, their permanent absorption in the Government service, giving them better scope for further promotions. No interference in the present petitions is called for. The same, therefore, fail and are dismissed.