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2010 DIGILAW 1318 (RAJ)

Shivdan Surawat v. State of Rajasthan

2010-07-28

VINEET KOTHARI

body2010
JUDGMENT 1. - The case comes up on an application under Article 226(3) of the Constitution of India. However, with the consent of parties, the matter was heard finally at this stage. 2. By this petition, the petitioner working as Nurse Gr.II having been appointed on 13.7.1983 under the Rajasthan Medical and Health Service Rules, 1965 has prayed that he is serving as such at Primary Health Centre, Bikampur District Bikaner & he want to remain at the same position by opting to become member of the Rajasthan Rural Medical & Health Subordinate Service Rules, 2008. Learned counsel for the petitioner urged that Rule 5 of the said Rules of 2008 provides for giving option to those already appointed as Nurse Gr.II to opt to become member of said service under the said Rules of 2008. However, since the respondent State did not ask for or invited any option from the existing employees governed by the earlier Rules of 1965, which is different from the existing Rules of 2008 and both continue to exist, therefore, the petitioner could not opt to become member of service to be governed by the later Rules of 2008 and in the absence of same persons recruited upon due selection and appointed as Rural Nurse Gr.II vide order Annex.2 dated 10.8.2009 could not displace the petitioner. 3. On the other hand, Mr. Y.P. Khileri, learned counsel appearing for the respondent submitted that Rule 5 of the aforesaid Rules of 2008 does not envisage calling of option from the members of service covered by the Rules of 1965 separately. Rule 5 of the aforesaid Rules of 2008 does not envisage calling of option from the members of service covered by the Rules of 1965 separately. Rule 5 of Rules of 2008 is reproduced hereunder for ready reference : "5. Initial Constitution of Service-The service shall consist of (a) persons who were regularly recruited to the post specified in Schedule under the Rajasthan Medical and Health Subordinate Service Rules, 1965, and opt for this service within three months of commencement of these rules and whose option is accepted by the Government; (b) persons recruited to the service in accordance with the provisions of these rules." 4. Learned counsel for the respondent submits that Rule 5 on its own force stipulates that persons, who were regularly recruited to the post specified in Schedule under the Rajasthan Medical & Health Subordinate Service Rules, 1965 may opt for this service (Service covered by Rules of 2008) within three months of commencement of these rules (which date is 18.2.2008) and if such option is accepted by the Government then only such persons can become members of service to be governed by Rules of 2008. Clause (b) of Rule 5 are the persons recruited to the service in accordance with the provisions of Rules of 2008 under which appointments were made vide order Annex.2 dated 10.8.2009. 5. Having heard the learned counsels, this Court finds considerable force in the submission of learned counsel for the respondents. 6. Rule 5 of the Rules of 2008 as quoted above does not envisage calling of option from the members of service covered by the 1965 Rules and with the commencement of Rules of 2008 w.e.f. 18.2.2008 within three months, the petitioner ought to have given his option for becoming the member of service under clause (a) of Rule 5 of the Rules of 2008. Therefore, the contention of learned counsel for the petitioner that in the absence of such option being invited, the petitioner could not give any such option is without any force and is hereby rejected. 7. Learned counsel for the petitioner in the alternative submitted that since the vacancies still exist in the cadre of Rural Nurse Gr.ll at the place where petitioner is working, he may be given an opportunity even now to give his option for becoming member of service covered by Rules of 2008 in terms of Rule 5 (a) of the Rules and the State Government may be directed to take a decision on such option now to be given by the petitioner, the period of three months as stipulated in the said Rule 5(a) may be relaxed, as the petitioner remained under bonafide belief. 8. This prayer of the petitioner can be accepted even now, as there appears to be no serious impediment in it. 9. 8. This prayer of the petitioner can be accepted even now, as there appears to be no serious impediment in it. 9. Accordingly, this writ petition is disposed of with liberty to the petitioner to give option in terms of clause (a) of Rule 5 of the Rules of 2008 quoted above within two weeks from today and the State Government shall communicate its decision to the petitioner on such option within four weeks thereafter. If the option given by the petitioner is accepted by the State Government then the petitioner may be permitted to become member of the Service in terms of Rule 5 (a) of the Rules of 2008. However, if the option cannot be accepted and is liable to be rejected by the competent authority of the State Government, then such authority will pass speaking order in the matter. Till such decision is taken by the competent authority of the State Government on the option of the petitioner, the petitioner may not be relieved from the present place of posting for a period of six weeks from today. No order as to cost.Writ Petition Disposed of as Above. *******