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2015 DIGILAW 627 (RAJ)

VINOD KUMAR MISHRA v. ASHOK KUMAR SAXENA

2015-03-12

PRAKASH GUPTA, SUNIL AMBWANI

body2015
Judgment 1. We have heard learned counsel appearing for the parties. We have also heard Shri Banwari Sharma, appearing for the intervenors, who were selected and appointed as Ayurved Chikitsaks, after appearing in the examination, conducted by the Rajasthan Public Service Commission (RPSC), in pursuance to an advertisement issued on 15.03.1995, held in the year 1996. 2. All these intra-Court Special Appeals arise out of the judgment of learned Single Judge dated 06.01.2010, by which he allowed the writ petitions, declaring Proviso 6 to Rule 31 of the Rajasthan Ayurvedic, Unani, Homoeopathy and Naturopathy Service Rules, 1973 (in short, 'the Rules of 1973'), added by the Notification dated 08.04.1996, to be illegal and unconstitutional, and accordingly, struck it down. Learned Single Judge further directed that the petitioners and those in that category, are held entitled to be ranked senior to those Ayurved Chikitsaks, who were regularized by way of screening by virtue of Proviso 5 to Rule 6 of the Rules of 1973. 3. Before proceeding to discuss the facts of the case, we may observe that the impugned judgment has been rendered by learned Single Judge, in ignorance of the judgment of a learned Single Judge of this Court, dated 19.04.1994, in Ayurved Chikitsak Welfare Association, Jaipur Vs. State of Rajasthan & Others (S.B. Civil Writ Petition No.5598/1991), reported in 1994(2) WLC(Raj.) 452. By this judgment, learned Single Judge, considering the nature of appointment, directed that all those Ayurved Chikitsaks, who were appointed prior to the year 1990 by the Director, Ayurvedic Department, Government of Rajasthan, be treated as substantive Ayurved Chikitsaks, as they were appointed after selection by a duly constituted Selection Committee. He had also directed the respondents to confirm such Ayurved Chikitsaks against the available substantive vacancies in the service. Such confirmation was made effective from the date of availability of the vacancies. They were also held entitled to seniority from the date of their substantive appointment, but that they will be made junior to those, who have been appointed in the same manner, but prior to them. The judgment dated 19.04.1994 was challenged in the D.B. Special Appeal(Writ) No.736/1994, which was dismissed on 29.01.2004, confirming the directions given by learned Single Judge. 4. We are pained to observe that the petitioners, who are respondents before us, concealed the judgment dated 19.04.1994 from learned Single Judge. The judgment dated 19.04.1994 was challenged in the D.B. Special Appeal(Writ) No.736/1994, which was dismissed on 29.01.2004, confirming the directions given by learned Single Judge. 4. We are pained to observe that the petitioners, who are respondents before us, concealed the judgment dated 19.04.1994 from learned Single Judge. The stand taken by learned counsel appearing for the contesting respondents that the judgment was not in their knowledge, is difficult to believe, as they were the members of the Ayurved Chikitsak Association, Jaipur, the petitioner in S.B. Civil Writ Petition No.5598/1991, decided on 19.04.1994. 5. The writ petition was filed with an oblique motive to gain seniority over all those Ayurved Chikitsaks, who were appointed prior to 1990, and were directed to be treated to be appointed in substantive capacity and those, amongst them, who had appeared in the competitive examination conducted by the RPSC, in pursuance to the advertisement dated 15.03.1995, but did not succeed. In fact, no one, who was appointed prior to 1990, was required to appear in the examination conducted by the RPSC, in pursuance to the advertisement dated 15.03.1995, in 1996. All such appointees had received the benefit of the judgment in Ayurved Chikitsak Welfare Association, Jaipur Vs. State of Rajasthan & Others (supra). It is apparent that they appeared in the examination conducted by the RPSC by way of abandoned caution, as the Special Appeal was pending against the judgment. The Rules of 1973 were amended in pursuance to the judgment in Ayurved Chikitsak Welfare Association, Jaipur Vs. State of Rajasthan & Others (supra), and that by the Notification dated 08.04.1996, published in the Rajasthan Gazette, dated 10.04.1996, a Proviso (6) was added to Rule 31, after Proviso (5), in compliance with the directions issued in the judgment. The Proviso (6), provided as follows:- “(6) that the interse-seniority of the persons appointed under proviso (5) to Rule 6 shall be determined by the Screening Committee on the basis of length of continuous service and in the cadre they will rank senior to the persons recruited by the Commission in 1995.” 6. There was no need for all those Ayurved Chikitsaks', who were benefitted by the judgment in Ayurved Chikitsak Welfare Association, Jaipur Vs. State of Rajasthan & Others (supra), to appear in the examination conducted by the RPSC in pursuance to the advertisement dated 15.03.1995. There was no need for all those Ayurved Chikitsaks', who were benefitted by the judgment in Ayurved Chikitsak Welfare Association, Jaipur Vs. State of Rajasthan & Others (supra), to appear in the examination conducted by the RPSC in pursuance to the advertisement dated 15.03.1995. The operative portion of the judgment in paragraph 8, had declared them to be appointed substantively as they were appointed after selection by a duly constituted Selection Committee, by the Director of Ayurved Department, who was competent to appoint them, on the dates of their appointment, with a rider that the confirmation shall be made effective from the date of availability of the vacancy. They were also made entitled to the seniority from the date of their substantive appointment, with a condition that they will be made junior to those who have been appointed in the same manner, but prior to them. 7. Proviso (6) to Rule 31 was added, to implement the judgment in Ayurved Chikitsak Welfare Association, Jaipur Vs. State of Rajasthan & Others (supra). The object of the screening was to obtain the vacancies for them and consequently determine the inter se seniority of the persons appointed under Proviso (5) to Rule 6, to be counted on the basis of length of continuous service with condition that they will rank senior to the persons recruited by the Commission in 1995. The Proviso (6) was added, to determine the inter se seniority, with clarification that all the persons who were appointed prior to 1995, will rank senior to the persons recruited by the RPSC in 1995. The Proviso (6) was apparently added to give statutory recognition to the directions in the judgment of this Court in Ayurved Chikitsak Welfare Association, Jaipur Vs. State of Rajasthan & Others (supra), which was confirmed by the Division Bench, and has become final. 8. It is submitted by the intervenors, who had successfully appeared in the examination conducted by the RPSC in the year 1996, that the persons appointed prior to 1990, were Ayurved Chikitsak Grade-III under the Rajasthan Ayurvedic, Unani, Homoeopathy and Naturopathy Subordinate Service Rules, 1966 (for short, 'the Rules of 1966'), and thus, such persons who were appointed dehors the Rules, should not be allowed to rank senior to them. 9. 9. We do not find any substance in the argument, inasmuch as the post of Ayurved Chikitsak Grade-III was abolished, leaving two cadres, namely Ayurved Chikitsak Grade-I and Ayurved Chikitsak Grade-II, and for which, the Director was the appointing authority prior to the amendment of the Rules on 05.05.1990. There was no distinction between Vaidya Grade-I and Grade-II, as they both were brought within the Rules of 1973. The benefit of the judgment in Ayurved Chikitsak Welfare Association, Jaipur Vs. State of Rajasthan & Others(supra), cannot be denied to all those, who were appointed prior to 1990, on the ground that they were appointed under the Rules of 1966. Learned Single Judge had considered all these facts in paragraphs 1, 2 and 3 of the judgment, which are quoted as follows:- “1. Ayurved Chikitsak Welfare Association, Jaipur has filed this writ petition through its General President Shyam Sunder Vasisth with a prayer that respondents No.1 and 2 be directed to first regularise the service of temporary/ad-hoc Ayurved Chikitsaks and/or to confirm them and also that such ad-hoc/temporary Ayurved Chikitsaks should not be compelled to face the RPSC in pursuance of advertisement No.5/91-92. Petitioner is a registered association which has been constituted for the welfare of Ayurved Chikitsaks/Vaidyas working in Ayurved Department of the Government of Rajasthan. It is also a body constituted for the purpose of espousing the cause of Ayurved Chikitsaks/Vaidyas working in Ayurved Department of the Government of Rajasthan. A number of persons have been appointed as Ayurved Chikitsaks on temporary basis. Some such appointments were made after selection by a duly constituted selection committee. This is evident from order dated 19.11.81 (Anneuxre-1) filed by the petitioner along with the writ petition. Some other appointments have been made on ad hoc/temporary basis and such ad hoc/temporary appointments have been continued from time to time. A number of temporary appointees have been confirmed in the service vide order issued on 4.2. by the Director, Ayurved Department. That order shows that persons appointed upto 8.6.81 have been confirmed as Ayurved Chikitsaks. Petitioner's plea is that appointment on the post of Ayurved Chikitsaks is required to be made 100% by direct recruitment and the competent authority to make appointment was Director, Ayurved Department in terms of the provisions of Rajasthan Ayurved Subordinate Service Rules, 1966. That order shows that persons appointed upto 8.6.81 have been confirmed as Ayurved Chikitsaks. Petitioner's plea is that appointment on the post of Ayurved Chikitsaks is required to be made 100% by direct recruitment and the competent authority to make appointment was Director, Ayurved Department in terms of the provisions of Rajasthan Ayurved Subordinate Service Rules, 1966. The Director, Ayurved Department had made large number of appointments during last few years but while some have been confirmed, other have been left out. At the same time, advertisement Annexure-4 has been issued by the RPSC for making recruitment on the post of Ayurved Chikitsaks and the existing appointees who are serving the Department are required to apply for regular appointment. Petitioner's assertion is that about 1000 Ayurved Chikitsaks who are its members, are adversely affected because they are required to compete with fresh candidates. This is being done without requirement of Rule 6 of the Rajasthan Ayurved, Unani, Homeopathy and Naturopathy Service Rules, 1973. Petitioner has submitted that failure of the respondents to take steps for regularisation of the service of existing Ayurved Chikitsaks is contrary to Articles 14 and 16 as well as statutory rules. 2. Respondents have in their return not disputed the existence of the association. On merits they have pleaded that upto the commencement of 1973 Rules, the service conditions of Ayurved Chikitsaks used to be governed by Rajasthan Ayurved Subordinate Service Rules, 1966. On and with effect from the date of inclusion of the post of Ayurved Chikitsaks in the schedule appended to the Rules of 1973, the post is now a subordinate service post. By Notification dated 5.5.90 which has been made effective from 1.9.81, post of Ayurved Chikitsaks is governed by the provisions of Rules of 1973. They have also pleaded that upto 31.10.83 the post of Ayurved Chikitsaks would be filled by the Director, Ayurved Department and the post was not within the purview of RPSC. The Director, Ayurved Department had made ad hoc/temporary appointments through properly constituted selection committees. Some of these ad-hoc appointees have been confirmed while matter relating to other is pending consideration before the respondents. The respondents have pleaded that those who have been appointed after 31.10.83 are not entitled to be treated as regular appointees and they have no right to be regularised in service through the agency of RPSC. 3. Some of these ad-hoc appointees have been confirmed while matter relating to other is pending consideration before the respondents. The respondents have pleaded that those who have been appointed after 31.10.83 are not entitled to be treated as regular appointees and they have no right to be regularised in service through the agency of RPSC. 3. Argument of the learned counsel for the petitioner is that failure of respondents No.1 and 2 to regularise the service of ad-hoc Ayurved Chikitsaks, is wholly irrational, arbitrary and unjustified. Shri Balwada argued that once the Government has taken a policy decision to regularise the service of ad-hoc Ayurved Chikitsaks who had been appointed upto 31.10.83, there remains no justification for the respondents not to regularise the service of some of the persons appointed prior to 31.10.83 and not to regularise the service of some others. Shri Balwada argued that from amongst the larger group of employees holding the post of Ayurved Chikitsaks as on 31.10.83, no discrimination should be made by the respondents in the matter of regularisation of service. Shri B.L. Awasthi, learned counsel for the respondents, conceded that some of the persons appointed as Ayurved Chikitsaks as on 31.10.83 have been confirmed but submitted that that was by way of concession and all ad hoc appointees cannot get a right to be confirmed in service as Ayurved Chikitsaks.” 10. The benefit of the directions issued in paragraph 8 of the judgment, cannot be denied on the distinction, which is sought to be made in the arguments advanced by the intervenors. The persons, who were appointed in selections of the year 1995, were not even qualified to be appointed, to claim seniority over those, who were appointed upto the year 1990. 11. It is further submitted by the intervenors that since the appointments upto the year 1990, were made dehors the Rules of 1973, they cannot rank senior to the persons, who were appointed through RPSC. 12. The submission once again fails to take notice of the fact that the selection through RPSC was brought by amendment in the Rules made on 05.05.1990. Learned Single Judge in Ayurved Chikitsak Welfare Association, Jaipur Vs. 12. The submission once again fails to take notice of the fact that the selection through RPSC was brought by amendment in the Rules made on 05.05.1990. Learned Single Judge in Ayurved Chikitsak Welfare Association, Jaipur Vs. State of Rajasthan & Others (supra), had considered the issue, and found that at the relevant time i.e. prior to 05.05.1990, the Director, Ayurved Department, Government of Rajasthan, was competent to make selection, and further since all those who were appointed prior to 1990, were selected by a duly constituted Selection Committee, they were entitled to be confirmed against the available substantive vacancies in the service. 13. It is admitted that all those, who were appointed prior to 1990, have been screened by the Screening Committee, constituted under Proviso (6) to Rule 31 of the Rules of 1973, and have been regularized. The date of their substantive appointment, however, will relate back to the date, when the vacancy was made available to them, and they will rank senior to those, who were appointed in the selection made by the RPSC, in pursuance to the advertisement dated 15.03.1995. 14. So far as the respondents, who were petitioners before learned Single Judge are concerned, we deprecate the concealment of fact made by them, to secure march over those, who had appeared in the selection, advertised by the RPSC on 15.03.1995, and did not succeed. In fact, all those who were appointed prior to 1990, by the Director, Ayurved Department, in pursuance to their selection by a duly constituted Selection Committee, were not required to appear in the selection conducted by the RPSC, in pursuance to the advertisement dated 15.03.1995. 15. The Special Appeals are allowed, and the judgment of learned Single Judge is set aside. 16. A copy of the judgment will be placed in the connected files.