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Rajasthan High Court · body

2005 DIGILAW 176 (RAJ)

Govind Ram Ailani v. State of Rajasthan

2005-01-19

N.K.JAIN, Y.R.MEENA

body2005
Judgment 1. In all these four appeals common issue regarding seniority between Stenographers recruited under direct recruitment quota on or before 01.04.1985 and the LDCs who were recruited as Stenographers on the basis of Proviso 5-A to Rule 5 of the Rajasthan Secretariat Ministerial Service Rules, 1970 (in short the Rules) who were though recruited subsequently but claimed to be senior to the Stenographers who were appointed on or before 01.04.1985. 2. Several LDCs working in the Secretariat were assigned additional work of Stenographers. For that, as per order dated 19.06.1978, they were paid Rs. 30/-per month as special allowance in addition to their own pay. On 23.05.1979, the words Steno Typist has been inserted in the Rules and the LDCs/UDCs who were performing the additional work of Stenographer, they were named as Steno Typist and some orders were issued to this effect. However, in that order, it has been made clear that their mere appointment as Steno Typist will not confer any right on them against the post of Stenographer. 3. In 1980, RPSC had issued advertisement for filling up posts of Stenographers in the Rajasthan Secretariat under the Rules. Selections were made and appointments were given to the selected Stenographers on various dates i.e., 07.02.1981, 26.02.1981 and 24.04.1981. On appointment of the direct recruits, the Stenographers/Steno Typists who were appointed on ad hoc basis from amongst the LDCs/UDCs were reverted. In 1983, a qualifying test for PAs, was also held which was passed by 14 of the Stenographers who were selected in 1980 recruitment by RPSC. 4. On 23.01.1985, an amendment has been made in Proviso 5-A to Rule 5 of the Rules allowing the appointing authority to make substantive appointment to the post of Stenographers subject to availability of vacancies from the persons who were holding the post of Stenographers/Steno Typist on temporary/ad hoc basis on or before 23.05.1979. This rule was again amended in 1987 adding therein the words “and also continuously holding the post of 23.01.1985”. This amendment made in 1987 has been challenged and has been quashed by this Court. 5. In 1992, invoking Proviso 5-A to Rule 5 of the Rules, LDCs/ UDCs who were working as Stenographers/Steno Typists on or before 23.05.1979 were considered and after their selection under that rule, they were given appointment and that appointment was confirmed on 01.04.1985. 6. This amendment made in 1987 has been challenged and has been quashed by this Court. 5. In 1992, invoking Proviso 5-A to Rule 5 of the Rules, LDCs/ UDCs who were working as Stenographers/Steno Typists on or before 23.05.1979 were considered and after their selection under that rule, they were given appointment and that appointment was confirmed on 01.04.1985. 6. A dispute has cropped up whether the LDCs/ UDCs who were selected and appointed under Proviso 5-A to Rule 5 of the Rules, can their seniority be reckoned from the initial date of Stenographer or they were appointed as Steno Typist in 1978-1979. Learned Single Judge has taken the view that the Stenographers who were appointed under Proviso 5-A to Rule 5 by the appointing authority, though in 1992, their seniority should be reckoned from the date when they were holding the additional charge of Stenographer or appointed as Steno Typist in 1978-1979. 7. Mr. S.P. Sharma, learned Counsel for the appellants submits that under Proviso 5-A to Rule 5 appointment can be given subject to the availability of vacancy and when this rule has been amended in 1985, thereafter, invoking this rule, if some appointments have been given, they can be given against the posts available at the time when they were selected by the appointing authority for appointment as Stenographers and not from the date when they were holding additional charge in 1978-1979 or were appointed on ad hoc basis as Steno typist. 8.Mr. R.P Garg, learned Counsel for the respondents submits that the LDC/UDCs who were appointed undergo Proviso 5-A to Rule 5 of the Rules, though finally selected and appointed in 1992, the vacancies were available in 1978-1979 when they were working against those vacancies, they should be given seniority from the date they were working on ad hoc basis against the vacant post of Stenographers i.e., in 1978-1979 9. The limited issue before us is as to whether the Steno Typists who were appointed under Proviso 5-A to Rule 5 of the Rules can be senior to the Stenographers who were recruited directly through the RPSC prior to 01.04.1985, though the Steno Typists who were appointed after 01.04.1985 but under Proviso 5-A to Rule 5 can be senior to the direct recruits who were appointed prior to 01.04.1985. Proviso 5-A to Rule 5 of the Rules reads as under:- “5-A. that nothing in these Rules shall preclude the Appointing Authority from making substantive appointment to the post of Stenographer or the Steno Typist, as the case may be, subject to availability of vacancies amongst the persons who were continuously holding the post of Stenographer or the Steno Typist, as the case may be, either in temporary or ad hoc capacity in the Rajasthan Secretariat on or before 23.05.1979 and also continuously holding the post on 23.01.1985”. 10. To make it clear, the words “and also continuously holding the post on 23.01.1985” added in this proviso by the amendment of 1987 has been quashed. Therefore, we have to consider the proviso excluding these words. In this Proviso 5-A, though the appointing authority has been authorised to make appointment but that will be subject to the availability of vacancy. It further requires that the appointment of Stenographers can be made only amongst the persons who were continuously holding the post of Stenographers on temporary or ad hoc basis in Rajasthan Secretariat on or before 23.05.1979. There is no dispute on the fact that the Stenographers who were appointed by the authority they were working on ad hoc basis on or before 23.05.1979. Therefore, so far as their appointment authority under Proviso 5-A to Rule 5 of the Rules. But subject to the availability of post, admittedly their appointment has been made by the appointing is concerned, there is no infirmity in their appointment by the appointing authority in 1992 and appointment has been given w.e.f. 01.04.1985 meaning thereby the posts would be available on 01.04.1985. There is no dispute on the fact that the posts were available for appointment under Proviso 5-A to Rule 5 of the Rules before 01.04.1985. But whether prior to that date, can it be said that the vacancies were available. Obviously, against all vacancies which were available, the RPSC had advertised the vacancies of Stenographers in 1980 and all those vacancies were filled in 1981. 11. When the vacancies were filled in 1981, if the appointing authority wanted to make appointment under Proviso 5-A to Rule 5 of the Rules, it can make such appointment of Stenographers only on the vacancies available at the time of appointment. 11. When the vacancies were filled in 1981, if the appointing authority wanted to make appointment under Proviso 5-A to Rule 5 of the Rules, it can make such appointment of Stenographers only on the vacancies available at the time of appointment. As the vacancies were not available in 1981, 1982 as those vacancies available in 1979 were filled in 1981, there is no justification to give seniority to the Stenographers who were appointed by the appointing authority in 1992 w.e.f. 01.04.1985. Therefore, in our considered opinion the Stenographers who were appointed after 01.04.1985 or in 1992 and the vacancies were not available after filling those vacancies by direct recruitment were not available after filling those vacancies by direct recruitment in 1981, there is no justification to assign them seniority from 1978-1979. 12. In the result, we direct that the respondent State of Rajasthan shall see the record and assign the seniority to the direct recruits on the date of their appointment and admittedly when recruitment under Proviso 5-A to Rule 5 of the Rules has been made in 1992 they cannot be given seniority over the Stenographers who were selected through RPSC and no vacancies were available in 1981. It appears that seniority has been assigned to the Stenographers who were selected under Proviso 5-A to Rule 5 w.e.f. 01.04.1985. The vacancies must be available for them. Therefore, the Stenographers who were selected and appointed under Proviso 5-A to Rule 5 of the Rules, cannot be given seniority prior to that date. If any direct recruit selected and appointed after the appointment of Stenographers who were selected and appointed under Proviso 5-A to Rule 5 of the Rules they will be senior to the direct recruits who were selected and appointed after 01.04.1985. Therefore, we direct the respondents to assign their seniority in view of our discussion. 13. All the four appeals stand disposed of accordingly with the above directions.