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2018 DIGILAW 14 (RAJ)

State of Rajasthan v. Jitendra Kumar

2018-01-02

PRADEEP NANDRAJOG, RAMCHANDRA SINGH JHALA

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JUDGMENT : Application No. 552/2017 : For the reasons stated in the application delay in filing the appeal is condoned. Special Appeals (writ): Heard learned counsel for the appellants. 2. Issue before the learned Single Judge was whether Lower Divisional Clerks and Upper Divisional Clerks in the Panchayat Raj Department are ministerial staff as envisaged under Rule 6(iii) of the Rajasthan Subordinate Accountant Service Rules, 1963. The issue arose in context of 12.5% reservation available for Ministerial Staff in Departments of the Government. 3 The Rule in question has been noted by the learned Single Judge. It reads as under:- "6. Method of Recruitment.- Recruitment to the Service shall be made in the manner specified in column 3 of the Schedule by requirement in accordance with Part IV of these Rules: (i) ... ... ... (ii) ... ... ... (iii) Provided also further that 12½ of the posts of Junior Accountants to be filled in by direct recruitment shall be reserved for being filled in from amongst the ministerial staff of all the departments of the Government holding a post in the cadre substantively, subject to their being found otherwise eligible for such recruitment under the Rules. The reservations shall be carried forward only to the next succeeding year." 4. The learned Single Judge thereafter noted Section 89 of the Rajasthan Panchayati Raj Act, 1994. It reads as under:- "Section 89.- Constitutions of the Rajasthan Panchayat Samiti and Zila Parishad Service: (1) There shall be constituted for the State service designated as the Government Panchayat Samiti and Zila Parishad Service and hereafter in this Section referred to as the service and recruitment thereto shall be made district wise; Provided that selection for the posts specified in clause (i), (iii) and (iv) of sub-section (2) shall be made at the State level. (2) The Service may be divided into different categories, each category being divided into different grades, and shall, consist of- (i) Village level workers; (ii) Gram Sevavikas; (iii) Primary and Upper Primary School teachers, (iv) Ministerial establishment, (except Accountants and Junior Accountants), and (v) Prabodhak and Senior Prabodhak." 5. Learned Single Judge has thereafter referred to Rule 258(1) of the Rajasthan Panchayat Raj Rules, 1996 which enlist various categories of posts to be appointed in Panchayat Samities and Zila Parishads. Clause (c) thereof expressly includes UDC and LDC within the ambit of ministerial services. 6. Learned Single Judge has thereafter referred to Rule 258(1) of the Rajasthan Panchayat Raj Rules, 1996 which enlist various categories of posts to be appointed in Panchayat Samities and Zila Parishads. Clause (c) thereof expressly includes UDC and LDC within the ambit of ministerial services. 6. The learned Single Judge has thereafter referred to sub-rule (19) of Rule 7 of Rajasthan Service Rules which defines the ministerial servant to mean a Government servant of a subordinate service whose duties are entirely clerical, and any other class of servants expressly defines as such by General or Special order of Government. 7. This issue has been gone into by a Division Bench of this court in the decision reported as 1997(3) WLC (Raj.) page 302 Niyaz Mohammed Khan v. State of Rajasthan & Anr. 8. Section 89 of the Rajasthan Panchayati Raj Act, 1994 is to the effect that there shall be constituted the Rajasthan Panchayat Samitis and Zila Parishad Service. Section 91 of the Act provides disciplinary control shall be with the State Government and disciplinary proceedings would be regulated under the Rules by the State Government. Section 92 of the Act provides that the State Government shall be the Chief Superintending and Controlling Authority in respect of all the matters relating to the administration of Panchayati Raj Institutions. Rule 6 of the Rajasthan Educational Subordinate Service Rules 1971 deals with the source of recruitment and provides for recruitment, promotion or transfer of persons holding corresponding posts. The said rules were promulgated in exercise of power conferred by the proviso to Article 309 of the Constitution of India. The said rules show that services of the teachers working in the education department of the Government are at par with the teachers working in the Panchayat Samiti and Zila Parishad and post is transferable. 9. In para 20, the Division Bench held:- "20. We are, therefore, of the view that the Panchayat Service constituted under Section 89 of the Act, 1994 or under Section 86 of the Rajasthan Panchayat Samities and Zila Parishad Act, 1959 is the civil service of the State as it has all the characteristics of that service. The members of the Panchayat Service, therefore, hold the office for a civil post. The members of the Panchayat Service, therefore, hold the office for a civil post. The teachers working in the Government Schools which are under the control of the Panchayat Samities and Zila Parishads, are, therefore, the civil servant under the State Government and are entitled for relaxation of three years age as has been made applicable to the State Government employees. We may, however, make it clear that the view taken by us in the present case applies only to the service constituted under Section 89 of the Act, 1994 or under Section 86 of the Act, 1959; but will not apply to other employees of the Panchayati Raj Institutions who are not the members of the Panchayat Service. The employees of the Panchayati Raj Institutions, who are not the members of the Panchayat Service, though working with the Panchayat, cannot be treated as the members of the State Civil Services." 10. The appeal is dismissed in limine.