Research › Search › Judgment

Rajasthan High Court · body

2019 DIGILAW 1643 (RAJ)

Mukesh Kumar Sharma v. State of Rajasthan

2019-05-24

ALOK SHARMA

body2019
JUDGMENT : 1. These petitions raising a common issue of law do not entail any adjudication of disputed question of facts, and therefore are being addressed and decided by this common judgment. SBCWP No. 2322/2019, Mukesh Kumar Sharma & Others v. State of Rajasthan and others, will be adverted to as the lead case for referring to the underlying facts, where necessary. 2. The petitioners are all clerks Grade-II under the Rajasthan Panchayati Raj Establishments under Zila Parishads and holders of ministerial subordinate posts in the Panchayat Samitis and Zila Parishads under the Rajasthan Panchayati Raj Rules, 1996 (hereafter `the Rules of 1996). 3. Section 78 of the Rajasthan Panchayati Raj Act, 1994 (hereafter the Act of 1994) speaks of appointment of Secretary and other staff. Clause (a) of sub-section 1 thereof provides that there shall be for every Panchayat a Secretary, who shall be appointed in the prescribed manner. Clause (b) thereof provides that every Panchayat may with the previous approval of the Panchayat Samiti appoint such other staff as may be necessary for carrying out the duties imposed on it by or under this Act on such conditions of service as may be prescribed. 4. Rule 258 of the Rules of 1996 speaks of the category of the posts. The posts of Village Level Worker-cum-Panchayat Secretary (VLW-cum-PS) and Clerk Grade-II fall separately as distinct posts under the Ministerial and Subordinate posts in Panchayat Samiti and Zila Parishad service. Rule 277B of the Rules of 1996 inter alia provides the procedure and method for direct recruitment for the post of VLW-cum-PS on the one hand and Clerk Grade-II on the other. These two posts are to be filled up by direct recruitment through a competitive examination conducted by the Rajasthan Subordinate and Ministerial Service Selection Board in accordance with the rules. Rule 266 of the Rules of 1996 deals with distinct and different academic qualifications inter alia for recruitment to the post of Clerk Grade-II (LDC) and VLW-cum-PS. While the academic qualification for the post of Clerk Grade-II is Senior Secondary from a recognized board or its equivalent examination, the academic qualification for the post of VLW-cum-PS is Graduate or qualification declared equivalent thereto by the Government. The requisite professional qualification with regard to computer certificate is however similar for both the posts of VLW-cum-PS and Clerk Grade-II. 5. The requisite professional qualification with regard to computer certificate is however similar for both the posts of VLW-cum-PS and Clerk Grade-II. 5. The VLW-cum-PS has a statutorily defined role description under Section 78 of the Act of 1994 and Rule 331 of the Rules of 1996. The role description of Clerk Grade-II is administratively determined from time to time by the State Government. The roles are wholly distinct. In fact pay scales of the two posts in issue are also distinct and so is the source of payment of salaries. 6. The case of the petitioners is that albeit they are appointed as Clerks Grade-II in various Panchayats, vide orders dated 24- 6-2014, 11-9-2014, 23-3-2015 and 4-8-2017, by the administrative department, it was provided that where the post of VLW-cum-PS was vacant for reason of non posting of an incumbent thereto or the incumbent being on long leave, the charge of the said post be given to Clerk Grade-II of the Gram Panchayat concerned for the purpose of managing its affairs. These administrative orders are stated to be rooted in the autonomy of the Panchayati Raj Institutions mandated by Article 243-G and 243-H of the Constitution of India. It has been submitted that even otherwise for the efficiency in public interest in the administration of Gram Panchayat a Clerk Grade- II posted in Panchayat concerned ought to be given additional charge of the post of VLW-cum-PS, wherever the incumbent VLW-cum-PS has not been posted or when posted is on long leave as he can constantly engage in the requisite work day to day. 7. It has been submitted that vide circular/ order dated 17- 5-2018 the State Government however passed an administrative order providing that in the event of a vacancy of VLW-cum-PS in a Gram Panchayat obtaining for any reason, the additional charge of the said post be given to another VLW-cum-PS of a Panchayat in the vicinity and not to an employee or other staff including the Clerk Grade-II in the said Panchayat. The said order was challenged in SBCWP No. 8787/2018, titled Pratap Singh Damor v. State of Rajasthan, before the Principal Seat of this court. Vide order dated 22-6-2018, the effect and operation of the order dated 17-5-2018 was stayed. The said order was challenged in SBCWP No. 8787/2018, titled Pratap Singh Damor v. State of Rajasthan, before the Principal Seat of this court. Vide order dated 22-6-2018, the effect and operation of the order dated 17-5-2018 was stayed. Subsequently, however during the pendency of the writ petition, the State Government vide order/ circular dated 26-6-2018 withdrew the impugned order dated 17-5-2018 and continued its earlier orders dated 24-6-2014 and 29-7-2015, whereby additional charge of the post of VLW-cum-PS was to be given to the Clerk Grade-II in the same Panchayat. Further vide order dated 15-9- 2018 the "incharge" arrangement was reiterated for the Clerk Grade-II. Writ petition No. 8787/2018, was in the circumstances got dismissed as infructuous on 26-9-2018. 8. The petitioners submit that however the State Government subsequent to disposal of Pratap Singh Damors writ petition as infructuous passed another order/ circular dated 5-10-2018, reiterating exactly its earlier order dated 17-5-2018, and directed that the additional charge of the post of VLW-cum-PS in a Panchayat be handed over only to a VLW-cum-PS in another Panchayat in the vicinity and not to the other staff in the concerned Panchayat including the Clerk Grade-II. It has been submitted that the impugned order is wholly arbitrary, unreasonable, destructive of the autonomy of the Panchayati Raj Institutions mandated under Article 243G and 243H of the Constitution of India, deleterious to the efficiencies of administration in the Panchayats and hence contrary to public interest. 9. Reply to petition has been filed. It has been submitted that the petitions are entirely misdirected, as they do not agitate any alleged contravention of any legal or fundamental rights of the petitioners or state a case of the respondents failing to discharge any statutory duty owed to them. The petitioners instead seek to, without any legal foundation, impugn an administrative order of the State Government, which is neither even remotely arbitrary nor has any adverse bearing on their rights as Clerk Grade-II relating to their salary, job description or career prospectus. The petitioners instead seek to, without any legal foundation, impugn an administrative order of the State Government, which is neither even remotely arbitrary nor has any adverse bearing on their rights as Clerk Grade-II relating to their salary, job description or career prospectus. It has been submitted that the decision of the State Government to hand over the charge of the post of VLW-cum- PS in a Panchayat, when the post is vacant for reason of long leave to VLW-cum-PS at other Panchayat in the vicinity is an administrative decision, which it empowered to take, in its discretion to determine as to how the functions of the Panchayats are best conducted in public interest and in accordance with law. The petitioners have no manner of right to demand that they be given charge of another distinct and separate post in the Panchayat, which statutorily requires higher academic qualifications and has a statutorily defined job description/ obligation. It has been submitted that Rule 331(3) of the Rules of 1996 visualizes a VLW-cum-PS being incharge of more than one Panchayat and details the manner of discharge of the work by him in more than one Panchayat when occasion arises. The current arrangement of "incharge" VLW-cum-PS is thus statutorily embedded. It has been further submitted that Section 78(1)(a) of the Act of 1994 provides that a Panchayat Secretary shall be appointed in every Panchayat. Consequently a Clerk Grade-II in any Panchayat, in any case whatsoever, cannot in any circumstance act as a VLW-cum-PS in absence of the VLW-cum-PS for any reason including the long leave of the incumbent. 10. The reply further states that no doubt the order dated 17-5-2018, impugned in SBCWP No. 8787/2018, Pratap Singh Damor (supra), was indeed withdrawn and the said petition was accordingly dismissed as infructuous. Yet that situation did not restrain the State Government in law to resort to its reservoir of executive and administrative powers in consonance with the Act of 1994 and the Rules of 1996, as has been done vide the impugned order dated 5-10-2018. The order has also specifically stated that additional charge of VLW-cum-PS when vacant not be given to any other staff of the said Panchayat. It has been in the facts submitted that the petitions are wholly without merit, lacking absolutely in legal foundation and are deserving of dismissal. 11. The order has also specifically stated that additional charge of VLW-cum-PS when vacant not be given to any other staff of the said Panchayat. It has been in the facts submitted that the petitions are wholly without merit, lacking absolutely in legal foundation and are deserving of dismissal. 11. Heard counsel for the parties and perused the petition and reply thereto. 12. Statutorily under the Act of 1994 and the Rules of 1996 the two posts of VLW-cum-PS on the one hand and Clerk Grade-II on the other are wholly unrelated and distinct. The educational qualification for the post of VLW-cum-PS is graduation, while that for the post of Clerk Grade-II is Senior Secondary. Pay scales for these two posts are different and drawn from different funds. The functions of the post of VLW-cum-PS are statutorily prescribed in terms of Section 78(2) of the Act of 1994 and Rule 331(3) of the Rules of 1996. Rule 331 of the Rules of 1996 visualizes that a Secretary of a Panchayat can be incharge of more than one Panchayat. 13. Aside of aforesaid the decision of the State Government vide its impugned order dated 5-10-2018 to give "additional charge", is an administrative order. It has not been shown to suffer arbitrariness or prejudice the petitioners legal or fundamental rights. Besides, I am also of the considered view that under Section 78(1)(a) of the Act of 1994 it is mandatory to appoint in the prescribed manner in every Panchayat a Secretary-redesignated now a VLW-cum-PS. This obligation entails ensuring a VLW-cum-PS so appointed with reference to his academic and other qualification under Rule 266 of the Rules of 1996. Rule 331(3) of the Rules of 1996 visualizes a VLW-cum-PS of a Panchayat holding additional charge of such a post in another Panchayat in the vicinity. To jettison the aforesaid legal structure and claim, as the petitioners have, that clerks Grade-II of a Panchayat be given as a right additional charge of the post of VLW-cum-PS in a Panchayat, when vacant is a stretch and altogether without any legal foundation. The claim is wholly unsustainable. Past practice, vide earlier state Governments orders, is of no avail and in any event if an erroneous administrative order has earlier been passed, law confers no right on a beneficiary to assert its perpetuation in a petition under Article 226 of the Constitution of India or otherwise. The claim is wholly unsustainable. Past practice, vide earlier state Governments orders, is of no avail and in any event if an erroneous administrative order has earlier been passed, law confers no right on a beneficiary to assert its perpetuation in a petition under Article 226 of the Constitution of India or otherwise. The executive has inherent powers to review its administrative decisions. 14. These petitions are in fact an outstanding illustration of what inter alia ails the administration of justice in courts. Frivolous and baseless petitions wagering on a beneficial order, even if interim, occasioned by the institutional incapacity of the courts to, at the outset exparte scrutinize merits of a case at all times for reason of docket over load and overarching work pressure must be nipped in the bud. The Honble Supreme Court in the case of A. Shanmugam v. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Patipalanai Sangam [ (2012) 6 SCC 430 ] has held that experience reveals that a large number of cases are inter alia filed on false claims to cause delay in the administration of justice and this can only be adequately taken care of if the courts adopt realistic approach in granting restitution and visiting the petitioner with appropriate costs. Relying on the judgment in the case of Ramrameshwari Devi v. Nirmala Devi [ (2011) 8 SCC 249 ] the Honble Supreme Court has held that "unless wrongdoers are denied profit or undue benefit from frivolous litigations, it would be difficult to control frivolous and uncalled-for litigations. False averments of facts and untenable contentions are serious problems faced by courts and the other problem is that litigants deliberately create confusion by introducing irrelevant and minimally relevant facts and documents. The court cannot reject such claims, defences and pleas at the first look and requires some time, at time years, before the court is able to see through, discern and reach to the truth." Dissuading of frivolous petitions including by way of appropriate costs in some manner is the idea writ large in the judgment of the Apex Court referred to above. 15. Consequently the petition is dismissed with costs of Rs. 5000/- each to be paid by each of the petitioners in all the writ petitions. 80% of the costs be paid to the Rajasthan State Legal Services Authority Jaipur (RSLSA) and 20% thereof to the Rajasthan High Court Bar Association Jaipur. 15. Consequently the petition is dismissed with costs of Rs. 5000/- each to be paid by each of the petitioners in all the writ petitions. 80% of the costs be paid to the Rajasthan State Legal Services Authority Jaipur (RSLSA) and 20% thereof to the Rajasthan High Court Bar Association Jaipur. The costs be paid within a period of 90 days from todaythe limitation for a DB Special Appeal (Writ) being 60 days. In the event of non payment of costs, as directed, by each of the petitioners within three months from today, the concerned Gram Panchayat/ Zila Parishad/ wages/ salary Payment authority shall deduct the amount of costs from the salary of each of the petitioners and deposit the same with the RSLSA Jaipur and the Rajasthan High Court Bar Association Jaipur, in the proportion aforesaid, within one month following. 16. The connected petitions agitating the same issue adjudicated in the petition above, are for reasons detailed therein also baseless and similarly dismissed with costs of Rs. 5000/- to be paid by each of the petitioners therein to the RSLSA Jaipur and the Rajasthan High Court Bar Association Jaipur in the proportion as directed aforesaid. Non payment of costs will entail recovery in the manner stated. 17. A copy of this order be placed in each of the connected petitions.