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2022 DIGILAW 2290 (RAJ)

Babu Lal Bohra v. State Of Rajasthan

2022-08-23

ANOOP KUMAR DHAND, MANINDRA MOHAN SHRIVASTAVA

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JUDGMENT 1. This writ petition has been filed by the petitioner with the following prayer:- "In these circumstances it is, therefore, humbly prayed that this Hon'ble Court may kindly and graciously be pleased to accept this writ petition, and:- (i) the impugned notification dated 18.03.1991 making amendment in rule 7 of Municipal Service Rules, 1963 and impugned order dated 29.10.97 in not granting the benefit of past services (it means from 1978 on the post of R.O. II) be declared illegal, invalid and violative of Article 14 and 16 of the Constitution of India and therefore, the same may kindly be quashed and set aside by issuing writ of certiorari, with all consequential benefits; (ii) in alternative the rule 7 read with rule 28 of the Rajasthan Municipal Service Rules so far as it relates to govern R.O. II be declared discriminatory to the same set of rules governing the post of E.O. IV under the Rules of Rajasthan Municipal (Subordinate and Ministerial Service) Rules, 1963 and the Rules of Ayurvedic, Homeopathic, Unani Chikitsaks Service Rules, 1963 and also be declared ultra vires to the Article 14 and 16 of the Constitution of India; (iii) the respondents be directed by issuing writ of mandamus to grant past services to the post of R.O. II w.e.f. 1978 and accordingly his seniority be fixed under the common seniority Assessor and Revenue Officer-II and accordingly the petitioner be considered for promotion to the post of E.O.-III or Revenue Officer-I, with all consequential benefits against the year in which he became eligible to be considered. (iv) any other relief which this Hon'ble Court may deem fit and proper in the facts and circumstances of this case may also be ordered in favour of the petitioner." 2. The factual matrix of the case necessary and relevant for adjudication of controversy involved in this petition is stated infra:- The petitioner was initially appointed on ad hoc basis as Revenue Officer Grade-II with effect from 08.09.1978 under Rules 27 of the Rajasthan Municipal Services Rules, 1963, being a temporary appointment. The appointment order of the petitioner clearly stipulated that the appointment is for six months or till selected candidates from the Rajasthan Public Service Commission (for short 'RPSC') is made available, whichever is earlier. 3. The RPSC conducted examination for regular appointment on the said post in the year 1986. The appointment order of the petitioner clearly stipulated that the appointment is for six months or till selected candidates from the Rajasthan Public Service Commission (for short 'RPSC') is made available, whichever is earlier. 3. The RPSC conducted examination for regular appointment on the said post in the year 1986. The petitioner though appeared, but failed and therefore his services were eventually terminated on 12.12.1986, when the post were filled on regular basis from amongst those, who were selected by the RPSC. 4. It, however, appears that the State adopted a benevolent approach and the petitioner who was terminated, along with other similarly situated Revenue Officer-II (for short 'RO-II') who could not succeed in RPSC exam and eventually terminated, was given reappointment vide order dated 15.12.1987. By this order, petitioner and other persons were appointed as Executive Officer-IV (for short 'EO-IV') on ad hoc basis for a period of one year or till selection of regular candidate by RPSC, whichever was earlier. The order further contemplated that the petitioner and other newly appointed officers were granted pay protection. Further, the period during which services remained terminated was also regularised in the manner that it was treated as leave without pay, thus maintaining continuity in service. 5. In course of time, respondents amended the Rules of 1963 vide notification dated 18.03.1991, adding clause (vi) after clause (v) of second proviso of Rule 7 of the Rules of 1963 as below:- "(vi) That the name of Executive Officers Class IV and Revenue Officers Gr. II appointed vide rule 27 temporarily or in officiating capacity up to 31.03.79, shall be referred to the Commission to adjudge their suitability according to the qualifications etc. prescribed at the time of their appointments and their appointments shall be terminated immediately in case they are not adjudged suitable." 6. The effect of this amendment was that all those Executive Officers (Class-IV) and Revenue Officers (Grade-II) who were appointed in temporary capacity under Rule 27 of 1963 or working in officiating capacity up to 31.03.1979, were entitled to be considered for regularisation by the Commission. This incidentally included the petitioner as well because he was appointed as RO-II in 1978 and continuity of his ad hoc services was maintained by order dated 15.12.1987, referred to above. 7. This incidentally included the petitioner as well because he was appointed as RO-II in 1978 and continuity of his ad hoc services was maintained by order dated 15.12.1987, referred to above. 7. It is also not in dispute that case of the petitioner was considered where the suitability of the petitioner was adjudged under the amended Rules of 1981, which culminated in passing of issuance order dated 29.10.1997 by which he was confirmed in service after completion of probation of six months with effect from 18.09.1991. 8. While matter stood thus, the another amendment was made in the rules of 1963 vide notification dated 19.05.1998. The amendment in Rule 7, with which, the petitioner feels aggrieved is as below:- "Amendment in Rule 7:- In the second proviso to rule 7 of Rajasthan Municipal Service Rules, 1963, after serial No. (vi) following shall be inserted, namely:- (vii) That the cases of Executive Officers Class IV and Class V appointed under Rule 27 temporarily or in officiating capacity upto 09.0181 and still working shall be referred to the Commission to adjudge their suitability according to the qualification etc., Prescribed at the time of their appointments and on being adjudged suitable, they will be regularised from the date of this amendment and their seniority will also be determined from the date of this amendment. In case they are not adjudged suitable, their appointments shall be terminated immediately." 9. This new Clause (vii) provided that the case of the Executive Officers (Class-IV) and (Class-V) appointed under Rule 27 of 1963 on temporary or officiating capacity up to 09.01.1981 and still working, shall be referred to the Commission to adjudge their suitability according to qualification etc., prescribed at the time of their appointments and on being adjudged suitable, they will be regularised from this date of the amendment and their seniority will also be determined from the date of the amendment. 10. The petitioner feels aggrieved by this rule and on his assumption, understanding and construction of this amendment that this amendment will also affect his seniority as EO-IV which otherwise stands concluded and finalised vide order of confirmation dated 29.10.1997 and this writ petition has been filed challenging the legality, validity and constitutionality of amendment of 1998. 11. 10. The petitioner feels aggrieved by this rule and on his assumption, understanding and construction of this amendment that this amendment will also affect his seniority as EO-IV which otherwise stands concluded and finalised vide order of confirmation dated 29.10.1997 and this writ petition has been filed challenging the legality, validity and constitutionality of amendment of 1998. 11. Learned Senior Counsel appearing for the petitioner contended before us that the amendment is arbitrary, irrational and otherwise seeks to deprive the petitioner of the benefit of seniority on the post of EO-IV, which was granted to him vide order dated 29.10.1997 with effect from 18.09.1991. He would contend that any such amendment could not take effect retrospectively so as to deny the benefit of seniority on the basis of screening and regular appointment granted much prior to the amendment. 12. He would next contend that this amendment in any case operates to serious prejudice to the petitioner because the terms and conditions of regularisation of another set of feeder post i.e. post of Assessor in the matter of promotion to the higher post of EO-III, are different. Referring to Rule 8 of Rajasthan Municipal (Subordinate and Ministerial Services) Rules 1963 (hereinafter referred to as 'Subordinate Service Rules of 1963'). He would submit that under the scheme of the aforesaid rules, similarly situated ad hoc Assessors, would be granted seniority from the date of their temporary appointment whereas EO-IV like the petitioner, impugned amendment denies benefit of seniority from the date of temporary appointment. According to him, even though the feeder post for promotion to the post of EO-III are born in two different cadres governed by different set of rules, as the promotions have to be made from amongst four different cadres including RO-IV and Assessors, inter se seniority would play a vital role and in case the seniority rules are different, it will have adverse effect on petitioner's case for promotion to the next higher post of EO-III. 13. Per contra, learned counsel for respondents would submit that the challenge to Rules of 1963 is based on patent misreading and erroneous assumption that the amendment of 1998 takes away the seniority of the petitioner. 13. Per contra, learned counsel for respondents would submit that the challenge to Rules of 1963 is based on patent misreading and erroneous assumption that the amendment of 1998 takes away the seniority of the petitioner. Learned counsel for the respondents would take clear stand that as far as impugned amendment of 1998 is concerned, that rule is applicable only in respect of those who were not regularised in service but were continued in service after coming into force of amendment of 1998. 14. Petitioner's seniority has already been confirmed vide order dated 29.10.1997 and that is not going to be affected in any manner in view of amendment made in 1998. 15. The next submission of learned counsel for the respondents is that the petitioner's allegation of hostile discrimination on the touchstone of Article 14 of the Constitution of India is without any basis because the petitioner belong to the cadres EO-IV governed by Rules of 1963 whereas the class of employees in the cadre of Assessors are entirely different and governed by a different set of rules, known as Subordinate Rules of 1963. 16. It is further submitted that the petitioner's grievance otherwise is hypothetical. For the purposes of promotion to EO-III, quota has been separately prescribed under the relevant rules as 60% of the post of EO-III have been earmarked for EO-IV, 20% of post earmarked for RO-II, 10% of post are earmarked for Assessors and 10% posts are earmarked for Office Superintendent. Therefore, inter se seniority between RO-IV and Assessors playing any role to allow the Assessors to march past EO-IV would not arise. 17. We have heard counsel for the parties, perused the record and the relevant rules. 18. It is not in dispute that the petitioner was initially appointed as RO-II in 1978 and his services was eventually terminated in 1996 on account of availability of candidates selected through RPSC. However, later on, the petitioner was again appointed, though on a different post of EO-IV. Continuity of service has also been provided, though posts were different. 19. In course of time, it appears that to provide an opportunity to continue in service, the respondents amended the rules of 1963 vide notification dated 18.03.1991 by which a new item was added, quoted hereinabove. 20. Continuity of service has also been provided, though posts were different. 19. In course of time, it appears that to provide an opportunity to continue in service, the respondents amended the rules of 1963 vide notification dated 18.03.1991 by which a new item was added, quoted hereinabove. 20. The amended provision provide the petitioner and similarly situated employees, who could not earlier succeed through RPSC but were continued as ad hoc employees, an opportunity of screening and subject to they being found suitable, to get their services regularised. It is clear from the order dated 28.10.1997 that the petitioner's case was also scrutinised and he having been adjudged suitable, was appointed on regular basis and upon completion of six months of probation period, he was confirmed on the post of EO-IV with effect from 18.09.1991. 21. This order also shows that the seniority has been granted with effect from 18.09.1991. 22. The argument of learned counsel for the petitioner proceeds on the understanding of the impugned amendment that it will have adverse effect on the seniority which has already been granted to the petitioner. As has been rightly been pointed out by learned Senior Counsel for the respondents, the Rule and the impugned amendment as it reads, it is only applied in the cases where the employees are continuing on ad hoc basis but have not been regularised. Certainly, the sweep of this amendment did not include those who have already been screened and regularised in service like the petitioner. Undisputedly, the petitioner was regularised in service vide order dated 29.10.1997 granting seniority w.e.f. 18.09.1991. Therefore, the challenge to the rule is based on erroneous assumption and patent misreading and interpretation of the rule, which has no application insofar as petitioner is concerned. 23. Now we come to the second limb of argument of learned counsel for the petitioner that in the matter of terms and conditions of services including provision with regard to grant of seniority upon regularisation, the EO-IV Officers borne in the cadre of EO-IV ought to be treated on parity with Assessors, who are borne in another cadre and governed by different set of rules. 24. In our considered opinion, this contention does not hold water. The petitioner was continuing on ad hoc basis as EO-IV. He was considered for regular appointment after screening. 24. In our considered opinion, this contention does not hold water. The petitioner was continuing on ad hoc basis as EO-IV. He was considered for regular appointment after screening. The relevant rule applicable in the case of the petitioner does not clearly specify as to what would be the date from which the petitioner would be entitled to get the benefit of regular appointment but the fact remains that soon after the case of the petitioner was considered by the screening committee under the amended rule of 1991, he was adjudged suitable and thereafter granted regular appointment and confirmed with effect from 18.03.1991. 25. There is nothing on record to show that subsequently the seniority of the petitioner has been changed. Therefore on the basis of the material on record, it is clear that petitioner has been granted seniority with effect from the date when first amendment of 1991 was brought. 26. As far as Assessors are concerned, they belong to a different cadre, whose terms and conditions of services are regulated by Subordinate Services Rules of 1963. Thus, both the rules being different and the post of the petitioner as also cadre of the petitioner and that of Assessor being different, governed by different set of rules, we are unable to comprehend as to how parity could be claimed by the petitioner, in dealing with their services conditions, particularly rule of seniority. The case of the petitioner is to be governed by the Rajasthan Municipal Services Rules, 1963 whereas Post of Assessors is governed by different set of rules known as Rajasthan Municipal (Subordinate & Ministerial) Service Rules, 1963. It is not a case that rules have been framed as applicable to all the cadres and they are being differently applied. 27. The holders of the post of EO Grade-IV on one hand and Assessor on the other cannot be said to be similarly situated. What Article 14 of the Constitution of India forbids is classification which is unreasonable and not based on any rational basis and not every classification. 28. The classification of similarly situated persons based on no rational integra may result in violation of Article 14 of Constitution of India. 29. In the present case, two cadres are differently governed by different sets of rules. 28. The classification of similarly situated persons based on no rational integra may result in violation of Article 14 of Constitution of India. 29. In the present case, two cadres are differently governed by different sets of rules. No grievance can be urged by the petitioner that he should also be granted the same seniority which has been granted to the Assessor in their own cadre under the provisions contained under rule 8 of the Subordinate Services Rules 1963. 30. In any case, as we see from the scheme of promotion to the post of EO-III, separate quota has been provided for different feeder cadres, as per the schedule appended to the rules and on which, there is ad-idem between learned counsel for both the parties that 60% of the post of EO-III have been earmarked for EO-IV, 20% of post earmarked for RO-II, 10% of post are earmarked for Assessors and 10% posts are earmarked for Office Superintendent. The manner in which this promotion would be worked out by rotation of this quota has been separately provided under Column 7 of the Schedule appended to the rules. 31. We are unable to hold that an Assessor by virtue of his seniority will march past the EO-IV because EO-IV will be entitled for promotion on the basis of his seniority inter se in his own cadre against earmarked quota of 60%. Similar would be the situation in the case of Assessor and other employees of various cadre forming part of the feeder posts for the purpose of promotion to the post of EO-III. This has also been the consistent stand of learned State counsel that promotions have to be made only in accordance with the quota provided under rules and not otherwise. 32. In view of consideration, we find that the challenge to the rule is not made out on any ground whatsoever. Subject to the observations which have been made by us here in above, we don't think any further orders are required to be passed in the matter. The petition, therefore, challenging the validity of rules must fail and is therefore dismissed. 33. Stay applications and all pending application(s), if any, also dismissed.