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2018 DIGILAW 1112 (RAJ)

Narendra Dave v. State of Rajasthan

2018-05-01

DINESH CHANDRA SOMANI, M.N.BHANDARI

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JUDGMENT M.N. Bhandari, J. By this bunch of writ petitions, a challenge is made to the amendment in Rules 6 and 33 of the Rajasthan Educational Service (Collegiate Branch) Rules, 1986 (for short "the Rules of 1986") by the Notification dated 06th July, 2009. Brief facts of the case : 2. The petitioners were appointed on the post of Lecturer under Rajasthan Sangeet Sansthan, Jaipur or Rajasthan School of Arts, Jaipur. In few cases, the petitioners were appointed on temporary basis and in other cases, on regular basis after their selection through the Rajasthan Public Service Commission (for short "the RPSC"). Those who were appointed on temporary basis, sought regularisation but, when it was not given, preferred a writ petition. It was decided by this Court in the case of Lecturers Forum & Jag Mohan Mathodia & Ors. v. State of Rajasthan & Ors. reported in 1993(1) WLC 654 . A direction was given for regularisation of service and, in pursuance of it, services of those, who were appointed on temporary basis, were regularised vide order dated 24th January, 1995. 3. All the petitioners were thus regularised in service as no separate order for regularisation was required for those who were appointed through the RPSC. One of the appointment orders has been placed on record which is by the Director, College Education but in reference to the Rajasthan Education Service Rules (Collegiate Branch) 1971 (for short "the Rules of 1971"). They were subsequently brought under the Rules of 1986. The petitioners continued to work on the post of Lecturer in Rajasthan Sangeet Sansthan, Jaipur or in Rajasthan School of Arts, Jaipur. 4. A Notification was, however, issued on 06th July, 2009 to amend Rule 6 and 33 of the Rules of 1986. Rule 6 of the Rules of 1986, as amended, provides for screening for regularisation on the post of Lecturer through a Committee consisting of four members. Rule 33 of the Rules of 1986, as amended, provides for inter se seniority below the candidates working and, accordingly, the petitioners were ordered to be ranked junior to the persons appointed before commencement of the amended rules. 5. The petitioners were subjected to screening for regularisation though their services were regularised earlier and, in few cases, the petitioners were selected through the RPSC thus were appointed on regular basis. 5. The petitioners were subjected to screening for regularisation though their services were regularised earlier and, in few cases, the petitioners were selected through the RPSC thus were appointed on regular basis. It is not only that regularisation was to be made again but the petitioners were made to suffer in the seniority as they were ordered to be placed below all the candidates working, that too, on the date of commencement of amended rules. 6. It is stated by learned counsel that once the petitioners were appointed on regular basis, that too, by the Director, College Education, they could not have been subjected to screening for regularisation and to suffer in the seniority. It is also stated that the petitioners are stagnating in their services as they have not been extended benefit of senior and selection scale under the Career Advancement Scheme. The prayer is accordingly to set aside the amended Rules 6 and 33 of the Rules of 1986 with a direction to the respondents to treat the petitioners to be regular from the date of regularisation or from the date of appointment after selection through the RPSC. They should be given consequential benefits in service. The seniority may be determined in reference to the date of regular appointment and, at the same time, benefits under the Career Advancement Scheme may be given. 7. Learned Additional Advocate General Mr. SK Gupta has contested the writ petitions. It is submitted that the petitioners were appointed under Rajasthan Sangeet Sansthan, Jaipur or Rajasthan School of Arts, Jaipur. They were not members of the College Education Department thus even if they were appointed on regular basis on their selection through the RPSC or were regularised in service pursuant to the judgment of this Court in the case of Lecturers Forum (supra), their services were to be regularised under College Education Department as earlier they were under School Education. They were brought under the Rules of 1986 in the year 2007 and, accordingly, to make their services regular under those Rules, the amendment was brought vide Notification dated 06th July, 2009. 8. It is further stated that in the order of appointment issued by the Director, College Education, a reference of the Rules of 1971 was wrongly made. It should have been Rajasthan Education Service Rules 1970 (for short "the Rules of 1970"). 8. It is further stated that in the order of appointment issued by the Director, College Education, a reference of the Rules of 1971 was wrongly made. It should have been Rajasthan Education Service Rules 1970 (for short "the Rules of 1970"). Accordingly, the prayer is to dismiss the writ petitions as an official brought under the different rules need to be screened for regularisation and, accordingly, his seniority has to be fixed in reference to the date of his regularisation after screening. 9. We have considered rival submissions made by learned counsel for the parties and scanned the matter carefully. 10. The brief facts of the case have already been given thus need not to be reiterated. 11. The perusal of the record reveals that petitioners were appointed by the Director, College Education under the Rules of 1971. This makes it clear that appointment was not under the Rules of 1970. The petitioners were appointed on the post of Lecturer either on temporary or on regular basis, however, temporary appointees were regularised in service pursuant to the direction of this Court. In view of the above, we do not find any requirement to amend the rules so as to provide regularisation to those who were appointed on regular basis and if it was on temporary basis then their services were regularised. There cannot be a provision for regularisation of service twice. It is not only that amending rules provides for regularisation through screening but even affect the seniority of the petitioners. 12. It is quite surprising that even seniority of the petitioners has not been determined under the amending rules notified vide Notification dated 06th July, 2009. It shows nothing but utter confusion in the mind of the respondents. It is quite shocking that a candidate regularised under the order of the Court or was selected on regular basis is regularised again and made to suffer in the seniority, that too, while working in the same institution i.e. Rajasthan Sangeet Sansthan or Rajasthan School of Arts and under other institutions. The petitioners were subjected to screening during pendency of the writ petitions and they were regularised again. 13. We are of the opinion that the Notification dated 06th July, 2009 to amend the Rules 6 and 33 of the Rules of 1986 is hit by Articles 14 and 16 of the Constitution of India. The petitioners were subjected to screening during pendency of the writ petitions and they were regularised again. 13. We are of the opinion that the Notification dated 06th July, 2009 to amend the Rules 6 and 33 of the Rules of 1986 is hit by Articles 14 and 16 of the Constitution of India. An employee cannot be subjected to regularisation twice which even made to suffer in seniority. It has caused discrimination between similarly placed employees. The petitioners have been subjected to regularisation twice despite they are working under the College Education Department from the beginning in view of the order of appointment by the Director, College Education though under the Rules of 1971. They were not appointed under the Rules of 1970 and said to be under the mistake. We do not find any mistake in the order of appointment and if it would have been then the Government was not restrained to rectify the error immediately thereupon but liberty for the aforesaid cannot be given now after a lapse of more than two to three decades. 14. The seniority of a candidate, regularised in service or appointed on regular basis cannot be affected despite his appointment under the Collegiate Branch Rules, 1971 and thereupon brought under the Rules of 1986. The petitioners should have been given seniority from the date of their regular appointment in reference to Rule 33 of the Rules of 1986, as was existing prior to the amendment. The proviso inserted to Rules 6 and 33 of the Rules of 1986 are thus struck down. The amendment in Rule 6 of the Rules of 1986 is not of any significance now due to regularisation of service even after screening but it has affected their seniority and other benefits. Accordingly, the Notification dated 06th July, 2009 has been struck down. The petitioners are held entitled to all the benefits in consonance to the Rules of 1986, which includes the benefits of seniority also. The respondents are accordingly directed to issue seniority list and extend other benefits in favour of the petitioners pursuant to this order. 15. The exercise for it would be undertaken by the respondents within a period of six months from the date of receipt of copy of this order. 16. With the aforesaid, the writ petitions are allowed. 17. A copy of this order be placed in each connected file.