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2006 DIGILAW 348 (RAJ)

Chandan Lilani v. State of Rajasthan

2006-02-02

R.S.CHAUHAN, S.N.JHA

body2006
Judgment S.N. Jha, CJ.-The dispute in this writ petition relates to recruitment on the post of Junior Accountant. The petitioners, 29 in number, have approached this Court seeking inter alia (a) declaration that the notification dated 05.07.1979 restricting recruitment to the post of Junior Accountant to persons who had passed Junior Diploma Course Examination and were holding the post of Upper Division Clerk (UDC) on 312.1977 as ultra vires Articles 14 and 16 of the Constitution of India and a further declaration that all persons who had passed the Junior Diploma Course Examination and holding the post of UDC on 05.07.1979 are eligible for recruitment on the post, (b) for issuance of appointment orders to the petitioners on the post, and for assigning due seniority to the petitioners on the basis of year of their passing Junior Diploma Course Examination with all consequential benefits. 2. Before stating facts of the case, it may be appropriate to notice the relevant rules contained in Rajasthan Subordinate Accounts Service Rules, 1963 (in short, Recruitment Rules,) governing recruitment etc. on the posts comprising the Subordinate Accounts Service i.e., Assistant Accounts Officer, Accountant and Junior Accountant. Rule 4 of the Recruitment Rules provides for composition and strength of service while Rule 5 deals with the initial Constitution of service. Rule 6 lays down the method of recruitment. It provides that the recruitment to the service shall be made “in the manner specified in column 3 of the schedule by recruitment in accordance with Part IV of these Rules.” Proviso (ii) appended to Rule 6 provides for special recruitment on the post of Junior Accountant “from amongst the persons who have passed the Junior Diploma Course Examination and Accounts Clerks according to the criteria and in the manner laid down in Part V of these rules.” 3. It may be mentioned here that the words “the persons who have passed the Junior Diploma Course Examination and” in Proviso (ii) were inserted by notification F. 2(3) DOP/A-II/78, dated 05.07.1979 (hereinafter referred to as the impugned notification). The result of the said amendment was that for persons who had passed Junior Diploma Course Examination also became eligible for recruitment to the post of Junior Accountant by way of special recruitment, besides the Accounts Clerks, in the manner laid down in Part V of the Recruitment Rules. The result of the said amendment was that for persons who had passed Junior Diploma Course Examination also became eligible for recruitment to the post of Junior Accountant by way of special recruitment, besides the Accounts Clerks, in the manner laid down in Part V of the Recruitment Rules. Whereas provisions for regular recruitment are contained in Part IV, as indicated in the main part of Rule 6, the provisions relating to special recruitment are contained in Part V comprising Rule 27. In consonance with amendment in Proviso (ii) to Rule 6, similar amendment was made by notification dated 05.07.1979 in Sub-rule (1) of Rule 27 inserting the words “or the Junior Diploma Course Examination”. The rule so amended reads as under:- “A person who, after having passed the Accountants Clerks Examination, “or the Junior Diploma Course Examination” was holding the post of Upper Division Clerk or Accounts Clerk on 31.03.1977 including one who having become eligible for promotion in the regular line, had been promoted to a post higher than Upper Division Clerk in a substantive/officiating/ temporary/ad hoc capacity or had been transferred to other department or gone on deputation on equivalent or higher post on the said date shall be eligible for appointment to the post of Junior Accountant.” 4. It may be mentioned here that by the impugned notification dated 05.07.1979 a new Sub-rule (1-A) was added to Rule 27 in terms of which persons who have passed the Junior Diploma Course Examination before 312.1977 and were eligible for appointment to the post of Junior Accountant in terms of Sub-rule (i). Sub-rule (1-A) is subject matter of challenge so far it restricts the eligibility of the Junior Diploma holders to those who had passed the examination before 312.1977. Sub-rule (1-A) is subject matter of challenge so far it restricts the eligibility of the Junior Diploma holders to those who had passed the examination before 312.1977. Sub-rule (1-A) may also be quoted as under:- “(1-A) The persons who have passed the Junior Diploma Course Examination before 312.1977 and are eligible for appointment to the post of Junior Accountant referred to in Sub-rule (1) and have good record of service and no departmental enquiry is pending against them shall be screened by the committee consisting of the Deputy Secretary to the Government, Finance (Excise) Department as Chairman, the Deputy Secretary to the Government in the Department of Personnel and Administrative Reforms nominated by the Special Secretary to the Government in the Department of Personnel and Administrative Reforms and the Chief Accounts Officer, Rajasthan as members and the committee shall recommend to the appointing authority the names of such persons who have been adjudged suitable for appointment to the post of Junior Accountant.” 5. On 18.08.1982 Rule 27 underwent further amendment by addition of new Sub-rule (1-B) in terms of which persons who had passed the Junior Diploma Course Examination before 30.06.1981 and were holding the post of Upper Division Clerk or Accounts Clerk on 30.06.1981 including those who having become eligible for promotion in the regular line had been promoted to a post higher than Upper Division Clerk in a substantive/officiating/temporary/ad hoc capacity or had been transferred to other Department or gone on deputation on equivalent or highest post on the said date and also have good record of service and no departmental enquiry is pending against them, became eligible for appointment to the post of Junior Accountant. 6. It may not be out of place to mention here that the petitioners were recruited on the post of Junior Accountant under Sub-rule (1-B) of Rule 27 of the recruitment rules on 17.08.1982. The private respondents on the other hand stood recruited on the post in terms of Sub-rule (1-A) earlier. It is in this context that while challenging the vires of the rules, the petitioners seek directions to assign them proper seniority on the basis of year of their passing the Junior Diploma Course Examination. 7. The case of the petitioners is that they were initially appointed on the post of Lower Division Clerk in different departments of the Government of Rajasthan. 7. The case of the petitioners is that they were initially appointed on the post of Lower Division Clerk in different departments of the Government of Rajasthan. The Universities in Rajasthan namely, Sukhadia University, Udaipur, Jodhpur University, Jodhpur and Rajasthan University, Jaipur are imparting Junior Diploma Course at the instance of Government of Rajasthan. The petitioners passed the said Junior Diploma Course Examination in different years between 1959 to 1971. The Rajasthan Subordinate Offices Ministerial Staff Rules, 1957 encadered the post known as Accounts Clerk, the recruitment on which was not made but as a practice, LDC/UDCs in particular department who had passed the requisite Accounts Examination other than the Junior Diploma Course were posted as Accounts Clerks. In the case of LDCs they were given the scale of UDC and special pay. The UDCs were given only special pay on their posting as Accounts Clerk. On 31.01.1973 the Rajasthan Subordinate Accounts Service Rules, 1963 was amended and the post of Junior Accountant was encadered. The post was required to be filled up 100% by direct recruitment through competitive examination to be conducted by the Rajasthan Public Service Commission. According to the petitioners the level of examination of the Junior Diploma Course was higher than the Accounts Clerk and the Junior Accountant Examination and, therefore, those who had passed the Junior Diploma Course Examination should have been made eligible for recruitment on the post of Junior Accountant on the basis of such qualification. The petitioners have referred to the amendments in the recruitment rules in the matter of special recruitment to the post of Junior Accountant and challenged the incorporation of the Junior Diploma Course Examination as a qualification for recruitment on the post of Jr. Accountant in Rule 6 as well as Sub-rule (1-A) of Rule 27 to the extent it restricts the eligibility of such diploma holders who had passed Junior Diploma Course Examination by 312.1977 and were holding the post of UDC or Accounts Clerks. 8. In the reply the respondents have stated that the comparison between two examinations namely UDC examination and Junior Accountant Examination is without any justification. The syllabus prescribed vide Schedule-II to the Rajasthan Subordinate Accounts Service Rules, 1963 for examination for the post of Junior Accountant comprised of three optional subjects, namely, English, Hindi and General Knowledge and Daily Science and Mathematics as compulsory subjects. The syllabus prescribed vide Schedule-II to the Rajasthan Subordinate Accounts Service Rules, 1963 for examination for the post of Junior Accountant comprised of three optional subjects, namely, English, Hindi and General Knowledge and Daily Science and Mathematics as compulsory subjects. So far as Junior Diploma Course Examination is concerned, the examination used to be conducted by different Universities on the basis of different syllabus and, therefore, the courses and examinations cannot be compared. The Junior Accountant Examination is meant for the in-service candidates and those who passed such examination became eligible for appointment on the Accounts Post, and on that basis entitled to receive special pay. The Junior Diploma Course Examination was independent course in which teaching was imparted by different Universities passing of which made the persons eligible for recruitment on any post as per rules of recruitment. In justification of the impugned notification dated 05.07.1979, the respondents have stated that the amendments were made to undo the anomaly in the recruitment of UDC, who had passed the Junior Diploma Course Examination. By virtue of the amended rules, those who had passed the Junior Diploma Course Examination prior to 30.06.1981 became eligible for appointment on the post of Junior Accountant. Such appointments were made in February and July, 1983. As against this the Junior Accountants directly recruited through the Public Service Commission were appointed earlier in September, 1980 and, therefore, they are entitled to seniority. 9. On behalf of the petitioners it was submitted that there was no justification to fix any cut off date like 312.1977 while prescribing Junior Diploma Course Examination as qualification for appointment on the post of Junior Accountant and, further, there could be no justification to restrict the eligibility to those who were already holding the post of UDC. It was submitted that promotion on the post of UDC was dependent on the availability of vacancies in different departments and, therefore, making only UDCs who had passed the Junior Diploma Course Examination eligible for recruitment to the post of Junior Accountant affected the chances of recruitment. In this regard reliance was placed on Mohd. Usman vs. State of A.P., AIR 1971 SC 1801 . 10. Mohd. Usman (Supra), was a converse case. The subject matter of dispute was recruitment to the post of Sub-Registrars Grade II. In this regard reliance was placed on Mohd. Usman vs. State of A.P., AIR 1971 SC 1801 . 10. Mohd. Usman (Supra), was a converse case. The subject matter of dispute was recruitment to the post of Sub-Registrars Grade II. In terms of the relevant rule the recruitment was to be made from the ministerial staff comprising of LDCs and UDCs. The controversy was whether treating the LDCs at par with UDCs for purpose of eligibility for recruitment to the higher post of Sub-Registrar was legal. The High Court struck down the rule as being violative of Article 14 of the Constitution and as a consequence, quashed the recruitment of the respondents. The question which arose for consideration in the Supreme Court was whether clubbing of the posts of LDC and UDC for the purpose of recruitment on the post of Grade II. Sub-Registrar was violative of the equality clause under Article 14 of the Constitution on any ground. The rule treated the posts at par and that had been called in question. Thus, while in the case of Mohd. Usman the question was whether the rule treating the posts of LDCs and UDCs at par was violative of Article 14 of the Constitution or not, the question in the instant case is whether making UDCs who had passed the Junior Diploma Course Examination eligible for promotion to the post of Junior Accountant was justified or not. It is settled law that while interpreting a rule of while making judicial review of an administrative action the Court has first to see whether the rule can be upheld or whether the action can be sustained on one ground or the other. The Court is not supposed to take its own decision without considering the sustainability of the rule or action as if sitting as an appellate Court. In the instant case, thus, it is to be seen whether rule and the resultant actions are arbitrary or illegal. 11. It is to be kept in mind that the recruitment as per Rule 6 is to be made in the manner as specified in Column 3 of the schedule in accordance with Part IV of the recruitment rules. In the instant case, thus, it is to be seen whether rule and the resultant actions are arbitrary or illegal. 11. It is to be kept in mind that the recruitment as per Rule 6 is to be made in the manner as specified in Column 3 of the schedule in accordance with Part IV of the recruitment rules. As regards the post of Junior Accountant, the schedule provides 100% direct recruitment through competitive examination subject to the following proviso:- “(i) Out of total number of vacancies of Junior Accountants to be filled in by first competitive examination, vacancies to the extent of 22, shall be reserved for persons belonging to category (b) in Column 4, (ii) in filling vacancies the candidates belonging to category (b) of Column 4 shall be considered for appointment on passing the written examination only, irrespective of their relative rank as compared with other candidates; and (iii) if sufficient number of candidates are not available from the category of persons for whom 22 vacancies have been reserved as under proviso (1) above, the remaining vacancies may also be filled from amongst candidates declared “successful” through competitive examination in accordance with Part IV of these rules.” 12. In Column 4, the condition of eligibility for direct recruitment has been prescribed as degree in Arts, Science or Commerce of a University established by law in India or declared by the ordinance to be equivalent. The Upper Division Clerks of the Local Fund Audit Department whose service were terminated by the Government in the year 1975 and who were appointed as Upper Division Clerks temporarily against the vacant posts of Junior Accountants by the Chief Accounts Officer, Rajasthan Jaipur in July, 1977 could be recruited to the post. 13. The special recruitment by promotion, as the name itself would suggest, was a special recruitment if suitable persons were not available in service. As seen above, it envisaged recruitment from amongst the Accounts Clerks; by the impugned amendment, those who had passed the Junior Diploma Course Examination were made eligible for such special recruitment. These recruitments were made earlier in point of time. Thus, the private respondents stood promoted on 17.08.1982. The petitioners filed the present writ petition in 1993 i.e., after 11 years. In the meantime, the petitioners also got promotion by virtue of Sub-rule (1-B) or Rule 27. These recruitments were made earlier in point of time. Thus, the private respondents stood promoted on 17.08.1982. The petitioners filed the present writ petition in 1993 i.e., after 11 years. In the meantime, the petitioners also got promotion by virtue of Sub-rule (1-B) or Rule 27. As pointed on behalf of the respondents, many of the private respondents must have retired from the service or would be at the verge of retirement. Likewise, many of the petitioners must have retired or would be at the verge of retirement. Not only the respondents but the petitioners too might have been promoted to the higher posts. We do not think it would be proper to make any interference at this stage. Settled things should not be unsettled. Reference may be made to High Court of M.P. vs. Mahesh Prakash & Ors., 1995 (1) SCC 203 , and K.A. Abdul Majeed vs. State of Kerala & Ors., 2001 (6) SCC 292 . 14. In the above premises we find no merit in this writ petition which is accordingly dismissed.