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Rajasthan High Court · body

2010 DIGILAW 1997 (RAJ)

Rai Singh v. State of Rajasthan

2010-12-03

ARUN MISHRA, KAILASH CHANDRA JOSHI

body2010
JUDGMENT Hon'ble JOSHI, J.—Heard finally with the consent of the learned counsel for the parties. 2. The appellants have put in question the sustainability of the order dt. 2.9.2008 passed by the Single Bench in S.B. Civil Writ Petition No. 6109/2008 decided with forty eight other writ applications. The prayer has been made by the appellants to declare ultra vires Rules 13(v) of the Rajasthan Panchayati Raj Prabodhak Service Rule, 2008, hereinafter referred to as "the Rules of 2008". A prayer has also been made to quash the advertisement dt. 31.5.2008. 3. The appellants are teachers working in the Non-Govt. Aided Institutions and their service conditions are governed by the Rajasthan Non-Government Educational Institutions Act, 1989, hereinafter referred to as "the Act of 1989 and the Rules framed thereunder in the year 1993. As per Section 29 of the Act of 1989, the appellants are at par with the Govt. employees working in the Govt. institutions on regular basis in the matter of payment of pay scales. It is submitted that as per Rule 14 of the Rules of 2008, the teaching experience required was the same for all. The appellants possessed the teaching experience as mentioned in Rule 14 alongwith the category of persons, enumerated in the special condition of Rule 13(v) of the Rules of 2008. Rule 13(v) of the Rules of 2008 provides special relaxation as to age that the persons working under the Educational Projects in the State viz; Rajiv Gandhi Pathshala, Shiksha Karmi Board, Lok Jumbish Pariyojana, Sarva Shiksha Abhiyan & District Primary Education Programme shall be deemed to be within the age limit, had they been within the age limit when they were initially appointed, though they may have crossed the age limit at the time of direct recruitment of Prabodhak. Appellants submitted that the classification, which has been made denying the similar benefit of age as given to the employees working in various projects, is, per se, discriminatory. The State Government has given aid to the extent of 80% to the Non-Govt. Educational Institutions. There is no rhyme or reason so as to exclude the persons for relaxation of age on similar basis as provided under Rule 13(v) of the Rules of 2008. The Controlling Authority is the State Govt. for all practical purposes. No object can be achieved by denying the right of concession to the teachers in the Non-Govt. Educational Institutions. There is no rhyme or reason so as to exclude the persons for relaxation of age on similar basis as provided under Rule 13(v) of the Rules of 2008. The Controlling Authority is the State Govt. for all practical purposes. No object can be achieved by denying the right of concession to the teachers in the Non-Govt. Educational Institutions. The Rule is illegal & arbitrary and the classification made cannot be said to be reasonable one. The exclusion of the class to which the appellants belong, has no rationale behind it. 4. In the return, filed by respondents No. 1 to 3 in D.B. Civil Special Appeal No. 303/2009, it is contended that Rules 13of the Rules of 2008 provides that a candidate for direct recruitment must have attained the minimum age of 23 years and not above 35 years on the first day of January following the last date for receipt of applications. The petitioners were not entitled for consideration, as they were over age. The persons working in the projects is a separate class altogether, as such, proviso (v) to Rule 13 cannot be said to be illegal or ultravires. The para teachers and Shiksha Sahayogis were engaged as Volunteers in rural and far flung areas of the State and they have acquired good experience in such areas. Thus, relaxation has been given to them under Rule 13(v) of the Rules of 2008. This Court has held that para teachers and Shiksha Sahayogis is a separate class than the persons working in other Schools. 5. The Single Bench has referred to the nature of service rendered by the category of persons covered under Rule 13(v) of the Rules of 2008 and has also considered the nature of service in the Non-Govt. Educational Institutions and has found that these are two different class altogether. The writ applications have been dismissed. Dissatisfied thereby, these intra Court appeals have been preferred. 6. S/Shri Manoj Bhandari, P.S. Chundawat, R.S. Choudhary, L.S. Jodha, K.S. Yadav, Pankaj Gupta & Pradhyuman Singh, learned counsel appearing on behalf of the appellants, have submitted that the classification made under Rule 13(v) of the Rules of 2008 is discriminatory. The teaching experience required for the persons covered under Rule 13(v) and teachers in Non-Govt. Educational Institutions, is the same as per Rule 14 of the Rules of 2008. Thus, there could not have been any discrimination. The teaching experience required for the persons covered under Rule 13(v) and teachers in Non-Govt. Educational Institutions, is the same as per Rule 14 of the Rules of 2008. Thus, there could not have been any discrimination. There is no rhyme or reason to discriminate the teachers of non-Govt. aided Institutions, as they are at par with the State Govt. employees as per Section 29 of the Act of 1989. Reliance has been placed on the decision of the Apex Court in Commissioner, Municipal Corporation, Hyderabad vs. P. Mary Manoranjani, (2008) 2 SCC 758 to contend on behalf of the appellants that it is not open to the State to grant any exemption in regard to compliance of the statutory requirement. In making appointments, the State is obligated to comply with the same as also with the statutory requirements, if any. Reliance has also been placed on the decision in D.S. Nakara vs. Union of India, (1983) 1 SCC 305 , where it was ordered that pensioners form a class as a whole and cannot be micro-classified by an arbitrary, unprincipled and unreasonable eligibility criterion for the purpose of grant of revised pension. Thus, it is contended on the strength of the said decisions that classification does not qualify the principles enunciated by the Apex Court. Consequently, the Rule deserves to be declared ultra vires. 7. Mr. R.L. Jangid, A.A.G., appearing for the State, has supported the judgment of the Single Bench. He has contended that the project employees cannot be compared with the employees serving in the Govt. Institutions and the aided Non-Governmental Institutions, which form a different class altogether. Their services are co terminus with the project. They are working in the rural far flung areas and have gained experience to retain them in such far flung areas, where they are working. The relaxation has been given of the age, had they been appointed in the category of the persons enumerated in Rule 13(v) within the age limit prescribed under the Rules of 2008. The Single Bench has considered various aspects in extensive details. No case for interference has been made out in these intra court appeals. The classification cannot be said to be illegal, unreasonable or arbitrary. It has rationale behind it. 8. Proviso (v) to Rule 13 of the Rules of 2008 is quoted below: "13. The Single Bench has considered various aspects in extensive details. No case for interference has been made out in these intra court appeals. The classification cannot be said to be illegal, unreasonable or arbitrary. It has rationale behind it. 8. Proviso (v) to Rule 13 of the Rules of 2008 is quoted below: "13. Age-A candidate for direct recruitment to a post enumerated in the Schedule must have attained the age of 23 years and must not have attained the age of 35 years on the first day of January following the last date fixed for receipt of applications: Provided- (v) that the person serving under the educational project in the State viz. Rajiv Gandhi Pathshala/Shiksha Karmi Board/ Lok Jumbish Pariyojana/Sarva Shiksha Abhiyan/District Primary Education Programme shall be deemed to be within age limit, had they been within the age limit when they were initially engaged even though they may have crossed the age limit at the time of direct recruitment. 9. The category is of the persons covered under various projects under Rule 13(v), which has been taken note of by the Single Bench in extensive details. We deem it appropriate to quote the discussion made by the Single Bench in this regard with respect to the nature of projects thus: "The Shiksha Karmi Project was initiated in the year 1987 as collaborating venture between the Government of India, Government of Rajasthan and Sweedon International Development Authority (SIDA). To start with, during first phase the expenditure was to 90% paid by SIDA and 10% by the Government of Rajasthan, however, during second phase expenditure was shared equally between the SIDA and the Government of Rajasthan. The SIDA withdrew support for the project following the explosion to unclear test by the Government of India in May, 1998, therefore, the British Development Aid Agency at a subsequent stage agreed to support phase three of the project. In Shiksha Karmi Project the education workers were engaged in the name of Shiksha Karmi to address the problem of teacher absentism, poor enrollment, high drop out trends and inadequate excess to education by training of local para teachers in remote, economically backward rural areas where formal primary schools are either non-existent or dias-functional. Shiksha Karmis/Shiksha Sahyogis/Para Teachers in the project aforesaid were not getting wages, but a fixed honorarium. Their engagement was co-terminus with the project. Shiksha Karmis/Shiksha Sahyogis/Para Teachers in the project aforesaid were not getting wages, but a fixed honorarium. Their engagement was co-terminus with the project. The Rajiv Gandhi Swarna Jayanti Pathshala Scheme was introduced to provide alternative and innovative education centers outside the regular formal schools. The persons appointed for the teaching at alternative schools/innovative education centers viz. Rajiv Gandhi Pathshala are education volunteers in the name of Shiksha Sahyogis or Para Teachers. Their service was also co-terminus to the project. They were also engaged with a consolidated honorarium. Rajiv Gandhi Pathshalas were set up for specific difficulty groups of out of school children for mainstreaming through the alternative and innovative education component. The scheme aforesaid as a matter of fact was introduced to execute the will of the legislature as introduced by insertion of Art. 21-A of the Constitution of India in the terms that "State shall provide free and compulsory education to all children of the age of 6 to 14 years in such manner as the State may by law determine." With the same object the Sarva Shiksha Abhiyan was also introduced. The Lok Jumbish Project was also in operation to implement "District Primary & Education Project (DPEP)." To execute the schemes above the Lok Jumbish Council and the Rajasthan Council of Primary Education were constituted and registered under the Rajasthan Societies Registration Act. The persons working with Sarva Shiksha Abhiyan and Lok Jumbish too were getting consolidated honorarium and their service was also co-terminus to the project." 10. It is apparent from the aforesaid discussion made by the Single Bench that the employees working in such projects have no right to continue and their services are co-terminus with the project. By and large, they were getting the consolidated honorarium and not the salary, as given in the Govt. and Non-Govt. aided Institutions covered under the Act of 1989. The conditions of service of the employees working in the project and that of the employees working in the Government as well as Non-Govt. aided Institutions are totally different. The employees working in the Non-Governmental aided Institutions as well as Govt. Institutions are having security of their tenure. Apart from that, the persons working under the project, are working in the far flung area at different places and have gained experience, which is necessary for such areas. aided Institutions are totally different. The employees working in the Non-Governmental aided Institutions as well as Govt. Institutions are having security of their tenure. Apart from that, the persons working under the project, are working in the far flung area at different places and have gained experience, which is necessary for such areas. For ensuring their continuance in service and to see they are not thrown away and rendered jobless on completion of projects, the special provision has been carved out for such class of persons covered under Rule 13(v) of the Rules of 2008. Thus, in our opinion, the employees working in the Non-Govt. aided Institutions and in the projects like Rajiv Gandhi Pathshala, Shiksha Karmi Board, Lok Jumbish Pariyojana, Sarva Shiksha Abhiyan & District Primary Education Programme cannot be said to be similarly situated at all with teachers of Non-Govt. aided institutions. The nature of appointment, conditions of service, security of tenure is different. Thus, in our considered opinion, it cannot be said that discrimination has been made by providing special treatment by relaxing the age to such category of persons, enumerated in Rule 13(v) of the Rules of 2008, had they been within the age limit prescribed under the Rules, when they were initially engaged. 11. The classification, which has been made, is quite reasonable & cannot be said to be discriminatory or violative of Article 14 of the Constitution. The classification is founded on rationale and has the connection with the purpose sought to be achieved, to provide some security to the employees working under the Project by relaxing the age when they have served in such projects without any security of the tenure, it has been considered appropriate by the respondents to provide them atleast the relaxation of age for the post of Prabodhak. 12. The Division Bench of this Court in D.B. Civil Special Appeal No. 308/2009 considered the question of similarity of the aforesaid category of the employees and came to the conclusion that the nature of the duties are different and two categories cannot be said to be equal. As the vires of Rule 13(v) of the Rules of 2008 had not been assailed in the said bunch of petitions, at the same time, this Court observed that the Rule was required to be followed. As the vires of Rule 13(v) of the Rules of 2008 had not been assailed in the said bunch of petitions, at the same time, this Court observed that the Rule was required to be followed. The fact remains that vires of Rule 13(v) of the Rules of 2008 was not assailed in the aforesaid petitions, though the discussion has been made as to the difference in class of posts but in the instant case, the question involved is also whether the Rule 13(v) of the Rules of 2008 is illegal, arbitrary and violative of Article 14 of the Constitution. 13. In D.S. Nakara's case (supra), it has been laid down that the pensioners form a class as a whole and cannot be micro-classified by an arbitrary, unprincipled and unreasonable eligibility criterion for the purpose of grant of revised pension. 14. There is no dispute with the aforesaid proposition but in the instant case, it cannot be said that the classification made, is arbitrary, unprincipled or unreasonable. It cannot be said that the teachers working in the Non-Governmental Institutions can be compared as a similar class with the category of persons provided in Rule 13(v) of the Rules of 2008. 15. In Commissioner, Municipal Corporation, Hyderabad's case (supra), it has been laid down by the Apex Court that any appointment made by the State must be subject to the Constitutional Scheme in making appointment. The State is obligated to comply with the same as also the statutory require-ments, if any. Neither the appellant nor can the State grant any exemption in regard to the compliance of the statutory requirements. In the instant case, the question involved is altogether different. No exemption has been granted, which may be violative of the statutory requirements. There is statutory provision made for relaxation of the age & in accordance therewith, relaxation has been given to the employees working in the projects to stake their claim for appointment as Probodhak. Thus, the decision relied upon by the counsel for the appellants, has no application to the facts of the instant case. 16. There is statutory provision made for relaxation of the age & in accordance therewith, relaxation has been given to the employees working in the projects to stake their claim for appointment as Probodhak. Thus, the decision relied upon by the counsel for the appellants, has no application to the facts of the instant case. 16. Consequently, we find that no discrimination has been meted out by the operation of the Rule 13(v) of the Rules of 2008 to the teachers working in the Non-Governmental Institutions receiving grant in aid and they cannot claim parity with the project employees merely by the fact that they form similar class with the employees working in the Government Institutions in the matter of pay scales. In our opinion, the Single Bench has rightly dismissed the writ applications. 17. Consequently, we hold that Rule 13(v) of the Rajasthan Panchayati Raj Prabodhak Service Rule, 2008, cannot be said to be ultravires. 18. Resultantly, the intra Court appeals deserve dismissal. They are hereby dismissed. However, we leave the parties to bear their own costs, as incurred.