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2002 DIGILAW 287 (RAJ)

State of Rajasthan v. Nemichand, etc.

2002-02-04

ARUN KUMAR, PRAKASH TATIA

body2002
JUDGMENT 1. - These appeals arise from a common judgment dated 25.07.1997 passed by a learned Single Judge of this Court allowing the writ petitions. The petitioners in the writ petition had prayed that they be treated as Class IV employees as per the Rajasthan Service Rules, 1951 (in short, referred to hereinafter as 'the RSR') and they be given promotion to the posts of L.D.C. in accordance with the promotion rules applicable to such Class IV employees. The petitioners had also laid their claim for promotion by citing instances of certain other employees said to be similarly situated who had been given promotion as L.D.Cs. The learned Single Judge accepted these contentions of the writ-petitioners (respondents herein) and directed that the petitioners be considered or promotion to the posts of L.D.C. as per rules. There appeals have been filed by the State Government against the said judgment of the learned Single Judge. 2. The main contention raised on behalf of the appellant State Government is that the respondents are governed by a different set of rules called the Rajasthan Ground Water Subordinate Service Rules, 1973 (in short referred to hereinafter as the 'Rules of 1973') and, therefore, they are entitled to seek promotion under the said rules and not as per the general rules referred to as the RSR. 3. It is not disputed that the respondents were appointed as Technical Bearer under the Rules of 1973. The learned Single Judge unfortunately did not consider this distinction and treating the respondents as general Class IV employees gave direction that they be given promotion to the posts of L.D.C. as per the general rules. Secondly, in arriving at the said conclusion the learned Single Judge placed reliance on a plea raised by the respondents to the effect that similarly situated employees had been given promotion to the posts of L.D.C. The respondents had cited certain instances of such alleged promotions. The learned Single Judge has observed in the impugned judgment that in the counter-affidavit this plea was admitted by the State Government. We have gone through the counter-affidavit and we find that this observation of the learned Single Judge is not factually correct. It has been categorically stated in para 9 of the counter-affidavit that, "no person who was Technical Bearer was given promotion on the post of L.D.C. by the answering respondents". We have gone through the counter-affidavit and we find that this observation of the learned Single Judge is not factually correct. It has been categorically stated in para 9 of the counter-affidavit that, "no person who was Technical Bearer was given promotion on the post of L.D.C. by the answering respondents". Further, regarding the names of certain employees mentioned in para 9 of the writ petition the appellants have stated in the counter-affidavit that one of them had been directly appointed as L.D.C. while the others were Class IV employees and, therefore, they got the promotions. From these averments in the counter-affidavit, it is clear that no employee appointed under the Rules of 1973, like the present respondents, was ever given promotion to the post of L.D.C. It is not disputed by the respondents that Class IV employees governed by RSR could get promotion to the posts of L.D.C. as per the rules. However, the categorical stand of the appellants in the counter-affidavit was that the writ-petitioners were differently situated being governed by a different set of rules referred herein as the Rules of 1973 and, therefore, they had to seek promotions as per the said rules and not under the general rules viz., the RSR. Unfortunately, this aspect of the case was not considered by the learned Single Judge at all. 4. Learned counsel for the appellant drew our attention to the Rules of 1973. The posts to which the respondents were"appointed find mention in the category of Class IV posts in the Schedule appended to these rules. The Schedule also refers to the promotional post for such employees which shows that there is a channel of promotions provided for persons like the present respondents in the Ground Water Department. However, the learned counsel for appellants fairly stated at the Bar that a recommendation had been made by the Department concerned for granting better promotional avenues to the employees of the Ground Water Department like the present respondents. Therefore, according to the appellants, further proposal for granting promotional avenues is already underway. 5. From the facts narrated above, it is clear to us that the respondents were appointed in the Ground Water Department and their appointments are governed by the Rules of 1973. Therefore, according to the appellants, further proposal for granting promotional avenues is already underway. 5. From the facts narrated above, it is clear to us that the respondents were appointed in the Ground Water Department and their appointments are governed by the Rules of 1973. Even if for some period the respondents had to discharge duties as Cycle Sawar, a post falling in the general category of Class IV posts and governed by the general rules, the nature of the initial appointment of the respondents cannot be said to have changed. They got special allowance admissible to persons working on the said posts. The Rules of 1973 are special rules and in the face of special rules the general rules have to give way. The respondents have to be governed by the special rules referred to as the Rules of 1973. The other assumption contained in the impugned judgment that similarly situated persons were granted promotion to the posts of L.D.C. has been found by us to be not correct after referring to the counter-affidavit filed by the State Government i.e. the appellants. Therefore, both the reasons which prevailed with the learned Single Judge are either not correct or non-existent. 6. Accordingly these appeals are allowed. The impugned judgment dated 25.07.1997 passed by the learned Single Judge is set aside. Consequently writ petitions stand dismissed. 7. However, taking note of the statement of the learned counsel for the appellants made at the Bar about recommendation having been made for creation of channel of promotion for employees like the respondents, we do hope that the State Government will take suitable measures to grant opportunity to the respondents for further promotions and make necessary amendment in the rules in order to prevent stagnation of the respondents who have been working for long periods in the Class IV posts. There shall be no order as to costs. Spl. Appeal allowed. *******