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1997 DIGILAW 711 (RAJ)

Hanuman Lal Harijan v. State of Rajasthan

1997-05-29

ARUN MADAN, V.S.KOKJE

body1997
JUDGMENT 1. - A notice to show cause as to why the special appeal be not admitted was issued in response to which the respondents have appeared. With the consent of the parties, the special appeal was heard finally at the admission stage. 2. The appellant Hanuman Lal has challenged the decision of learned Single Judge, dismissing his writ petition. He entered the service of State of Rajasthan as Class IV employee in the veterinary hospital, Hingoniya, after being selected by recruitment Board on 10.3.80. Later on his service was extended vide order dated 23.1.83 until further orders. He could continue his study, after obtaining permission from the concerning authorities, and passed Prathma examination conducted by Hindi Sahitya Sammelan, Allahabad in the year 1984. This, according to the petitioner was recognised equivalent qualification to that of Secondary Examination or. Matriculation. After completing 5 years service as Class IV employee, the petitioner claimed himself to be eligible for promotion to the post of LDC. He made representations, in this regard periodically and in response, received two letters from respondent, one dated 1.6.90 and the other dated 6.11.90 informing him that the educational qualification he held, had been derecognised with effect from 1.4.85 and as he was holding the post of Sweeper, which was not the post from which promotion to the post of LDC could be granted under the provisions of Rajasthan Subordinate Offices Ministerial Staff Rules, 1957 (hereinafter referred to 'Rules of 1957'), he was not eligible for promotion to the post of LDC. After receiving these communications, the petitioner again represented to the authorities contending that as he had acquired the qualification before its derecognition and as the post he held was also a Class IV post like the post of Jamadar, Daftari, Chowkidar and Chaprasi, under the Service Rules he was clearly eligible for promotion. He also served a notice through his advocate demanding justice and ultimately he filed the writ petition. 3. In response to writ petition also, the respondents took the same stand and denied that the petitioner was eligible for consideration for promotion to the post of LDC. It was reiterated by the respondent that the educational qualification of petitioner having passed 'prathma' examination from Hindi Sahitya Sammelan, Allahabad in the year 1984 was not equivalent to Secondary School Certificate of Board of Rajasthan, Ajmer, the qualification having been derecognised w.e.f. 1.4.85. It was reiterated by the respondent that the educational qualification of petitioner having passed 'prathma' examination from Hindi Sahitya Sammelan, Allahabad in the year 1984 was not equivalent to Secondary School Certificate of Board of Rajasthan, Ajmer, the qualification having been derecognised w.e.f. 1.4.85. It was also contended that there was no vacancy in the post of LDC of the year 1985 or before, and therefore, a qualification held prior to 1985 could not be taken to be a recognised qualification for the purpose of appointment/promotion to the post of LDC, which came into existence after 1.4.85. 4. It was also contended by the respondents that the petitioner was not governed by the Rajasthan Subordinate Ministerial Staff Rules, 1957 (hereinafter referred to as 'Rules of 1957') and Rajasthan Class IV Services (Recruitment and other Service Conditions) Rules, 1963 (hereinafter referred to as 'Rules of 1963'), because he was governed by Rajasthan Animal Husbandry Subordinate Service Rules, 1977 (hereinafter referred to as 'Rules of 1977'). It was also contended that the Rules of 1957 and Rules of 1963 applied to general categories, while the Rules of 1977 specifically applied to employees of Animal Husbandry Department. It was further contended that under the Rules of 1977 which applied to employees of Animal Husbandry department promotion to the post of LDC could only be made from the post of Peon/Jamadar/Daftari etc., and that to the post of Dresser/Laboratory Attendant. A sweeper can only be given promotion to the post of Jamadar under these Rules. It was also contended that the Rules of 1957 as well as Rules of 1963 were applicable only to employees serving in the offices of State Government and not in the hospitals. Since the petitioner was working in hospital and seniority-list of employees working in hospitals is prepared district-wise and the petitioner was not working in the office of Animal Husbandry Department, therefore, the petitioner was not eligible to be promoted to the post of LDC. 5. Learned Single Judge has held that the educational qualification held by the petitioner was equivalent to Secondary School Certificate, issued by Board of Secondary Education, Rajasthan, Ajmer as it was obtained prior to 1.4.85, the date from which it was derecognised. 5. Learned Single Judge has held that the educational qualification held by the petitioner was equivalent to Secondary School Certificate, issued by Board of Secondary Education, Rajasthan, Ajmer as it was obtained prior to 1.4.85, the date from which it was derecognised. Learned Single Judge has also held that Rules of 1977 do not apply to petitioner's case as the learned Single Judge observed that a perusal of entire Rules of 1977 indicated that there was no provision either for promotion of Class IV employees nor for the manner in which the promotion could be granted except to the post of Dresser and Laboratory Attendant. Examining the case of petitioner under the provisions of Rules of 1957 and Rules of 1963, learned Single Judge has observed that in the Rules of 1963 a Schedule of posts from which the promotion to the post of Jamadar could be given were enumerated, and therefore, under the Rules of 1963 the petitioner would be eligible only for appointment to the post of Jamadar. It was further observed by the learned Single Judge that even assuming that the petitioner's case for promotion would be governed b' the Rules of 1957 he was not entitled to promotion to the post of LDC as under the Rules of 1957 the promotion has to be made form such class of employees who are governed by the Rules of 1963 and since in the Rules of 1963 the post of Sweeper is not equivalent to that of Jamadar, the petitioner would not be entitled for promotion to the post of LDC directly without first getting promotion to the post of Jamadar. In the result the writ petition was dismissed, holding the petitioner to be educationally qualified but being out of zone of consideration, as he was not holding the post of Jamadar. Aggrieved by the order of learned Single Judge, the present special appeal has been preferred. 6. Learned counsel for the appellant contended that the petitioner was governed by the Rules of 1957 and Rules of 1963. Aggrieved by the order of learned Single Judge, the present special appeal has been preferred. 6. Learned counsel for the appellant contended that the petitioner was governed by the Rules of 1957 and Rules of 1963. The Rule 7(3) of the Rules of 1957 prescribes that 12.5% of the total number of vacancies of LDCs determined under Rule 9 of the Rules of 1957 shall be reserved for being filled by promotion from amongst the regularly appointed class IV employees governed by Rajasthan Class IV Service (Recruitment and Other Service Conditions) Rules, 1963, who have put in 5 years service and who possess academic qualification prescribed in those Rules for the post of LDC. Learned counsel for the appellant contended that on the plain meaning of language of the provision it is only necessary to be a class IV employee governed by Rules of 1963 having put in 5 years service. The further qualification which the learned Single Judge has added that such a class IV employee should be a Jamadar is not there in the Rules and therefore, all Class IV employees governed by Rules of 1963 who have put in 5 years service, irrespective of the post they held in Class IV service were eligible for being considered for promotion to the post of LDC, under the quota reserved for such promotion. 7. Learned counsel for the respondent supported the decision of learned Single Judge on the grounds which have been held in favour of as well as against the respondent. It was contended by the learned counsel for the respondent that the appellant does not hold prescribed educational qualification as the qualification was derecognised on 1.4.85 and the vacancy to be filled in was not of a period earlier to 1.4.85. On the question of applicability of Rules, learned counsel for the respondent reiterated the stand taken by the respondent before the learned Single Judge that Rules of 1977 being special Rules shall have over riding effect over the Rules of 1957 and Rules of 1963, which are of general application and the petitioner's case could not be considered for promotion to the post of LDC under the Rules of 1977. 8. 8. In reply to points raised by learned counsel for the respondent while supporting the decision of learned Single Judge on grounds which were found against the respondent, learned counsel for the appellant relied on the decision dated 29.4.93 of Division Bench of this Court (Jodhpur), in case of State of Rajasthan & Others (D.B. Special Appeal No. 6/90) and other 6 appeals. 9. The learned Single Judge has held the appellant to be ineligible for direct promotion to the post of LDC. According to her the appellant could be promoted to the post of Jamadar alone. We find no basis for the view taken by the learned Single Judge. Rule 7 (3) of the Rules of 1957 reserved certain percentage of posts of Lower Division Clerk to be filled in by promotion from amongst the regularly appointed Class IV employees governed by the Rules of 1963 who have put in five years service, who possess the academic qualification prescribed under the Rules for the post of LDC. Rule 4 of the Rules of 1963 provides that the nature of posts included in the service shall be as specified in column 2 of Schedule I. Rule 5(a) of the Rules of 1963 provides that persons holding substantively the post specified in Schedule-I shall also be members of the service. In Schedule-I of the 1963 Rules no distinction is made in the various designations given to the posts in the service like Jamadar, Daftari, Library Boy, Peon, Cycle-peon, Orderlies, Waterman, Chowkidar, Farrash etc. Item 7 of the Schedule-I also includes equivalent posts sanctioned for office work in the lowest scale. This clearly means that anyone holding the lowest post in Schedule-I would also be eligible for promotion to the post of LDC under Rule 7(3) of the Rules of 1957 if he is otherwise eligible. The view taken by the learned Single Judge that the appellant would have to be a Jamadar before he can be said to be eligible for promotion under Rule 7(3) of the Rules of 1957 is untenable. 10. The learned counsel for the respondent submitted that the petitioner would be governed by the Rules of 1977 as he was employee of Animal Husbandry Department and would, therefore, be not governed by the Rules of 1957 and Rules of 1963. 10. The learned counsel for the respondent submitted that the petitioner would be governed by the Rules of 1977 as he was employee of Animal Husbandry Department and would, therefore, be not governed by the Rules of 1957 and Rules of 1963. Rule 4 (ii) of the Rules of 1977 provides that the nature of posts included in each section of the service shall be as specified.in column 2 of the Schedule. Rule 5 of the Rules of 1977 provides that all persons holding substantively the posts specified in the schedule shall also be members of the service. The class four posts are not specified in the schedule. It would, therefore, be clear that Class IV servants even in the Animal Husbandry Department were not members of Rajasthan Animal Husbandry Department were not members of Rajasthan Animal Husbandry Subordinate Service. This fact is further clarified by the mention of Class IV servants in the column 5 of the schedule for promotion to certain categories of the post in service. There is no force in the contention that the appellant is governed by the Rules of 1977 and, therefore, would not be governed by the Rules of 1957 and Rules of 1963. 11. The learned counsel for the respondent said great stress on the point regarding ineligibility of the appellant because of derecognition of the qualification which he held. She cited decisions of the Supreme Court in Ashok Kumar Sharma v. Chandra Shekhar, 1997(4) SC 99 : [ 1997(2) SLR 409 (SC)] and State of Rajasthan v. R. Dayal, JT 1997(3) SC 198 : [ 1997(2) SLR 68 (SC) ] as well as the decision of this Court reported in 1995 WLR, 695 in support of her contention that derecognition of a qualification renders the qualification useless for all purposes after the date of derecognition. She further submitted that at best the recognition could be pressed into Service even after the date of derecognition in respect of vacancies relating to the periods prior to derecognition only. She further submitted that at best the recognition could be pressed into Service even after the date of derecognition in respect of vacancies relating to the periods prior to derecognition only. The learned counsel for the appellant on the other hand relies on a Division Bench decision of this Court in State of Rajasthan v. Shiv Kazan and Another, D.B.C. Spl Appeal No. 6/90 , where in it has been held that a qualification acquired prior to the date of derecognition is not effaced by the derecognition and candidates who have acquired a qualification prior to its derecognition shall be treated as eligible. The learned Single Judge has also quoted decision in support of her contention in the impugned order. 12. Having carefully gone through the decisions cited by the learned counsel for the respondent we find that they really do not hold that a qualification acquired earlier to the derecognition becomes useless after derecognition. In Ashok Kumar Sharma's case (Supra) what is held is that eligibility of candidates has to be tested with reference to the last date of application for the post and qualifications acquired after that date would not make a candidate eligible. This principle cannot be applied in the matters of validity of eligibility qualifications acquired prior to derecognition of the same. In R. Dayal's case (Supra) what is laid down is that the vacancies in Govt. service are to be filled in on the basis of qualifications held on the date vacancies arose. This again is a case which would not apply to the present situation. The case in 1995 WLR is distinguishable on facts, as in that case eligibility for a limited purpose was conferred on a qualification by the Rules. There is no such case here. A feeble attempt was made by the learned counsel for the respondent to suggest that qualification held by the appellant would be treated only for the purpose of subject of Hindi only. No such point has been raised in the case before the learned Single Judge. 13. We see no reason to take a different view than the view taken by the Division Bench in Shiv Karan's case(Supra). If a different view is taken that will lead to an absurd situation where a candidate with the same qualification acquired at a time when the qualification was recognised by the State Govt. 13. We see no reason to take a different view than the view taken by the Division Bench in Shiv Karan's case(Supra). If a different view is taken that will lead to an absurd situation where a candidate with the same qualification acquired at a time when the qualification was recognised by the State Govt. would not receive the same treatment only because at the time of his consideration for appointment on promotion the qualification has become derecognised. The recognition of a qualification depends on fulfilment of certain standard and quality to be maintained by the examining body. When .a qualification was recognised up to a particular date' it will have to be presumed that till that date the examining body maintained such standard. It can only be taken that the examining body ceased to have maintain that standard from the date of derecognition of the qualification. In this view of the matter whenever a qualification is derecognised for the purpose of eligibility it will have totally a prospective effect and qualification acquired before derecognition would always be treated as valid qualification. 14. In the result we find that the appellant was wholly eligible for consideration for promotion to the post of LDC. The appeal is allowed, The impugned order of the learned Single Judge is set aside and the reliefs prayed for in the petition are granted. %-;Were shall, however, be no order as to costs.Appeal allowed. *******