JUDGMENT : 1. The petitioners have challenged Rule 38(v) of Rajasthan Panchayati Raj Prabodhak Service Rules 2008 (hereinafter to be referred to as ‘the Rules of 2008’). As per this clause (v) the petitioners and other similarly situated Prabodhaks would be governed by the Rajasthan Civil Services (Contributory Pension) Rules, 2005 (hereinafter to be referred as ‘new pension Rules of 2005’). The desire of the petitioners is that they should be governed by the old pension rules of the Rajasthan State under the Rajasthan Civil Services (Pension) Rules, 1996 (hereinafter to be referred as ‘old pension Rules of 1996’). The petitions arise in the following background: In the State of Rajasthan, there were large number of ad-hoc teachers serving under the scheme and who were referred to as “Shiksha Karmi.” There was no permanency in their tenure nor were receiving regular pay scales. Many of these Shiksha Karmi including the petitioners were engaged for a considerable period of time. The State of Rajasthan therefore framed the Rules of 2008 with the purpose of absorbing these ad-hoc teachers on permanent basis. In exercise of powers under Section 102 read with Section 89 of the Rajasthan Panchayati Raj Act, 1994 the State of Rajasthan framed the said Rules of 2008. Rule 4 of the said Rules pertains to composition and strength of service. As per Sub-Rule (1) of Rule 4, such service shall consist of the posts specified in Column 2 of the Schedule which were the posts of Prabodhak and Senior Prabodhak. Rule 6 pertains to the methods of recruitment. So far as the post of Prabodhak is concerned, the same would be filled up 100 percent through direct recruitment. Column 6 of the Schedule prescribes the qualifications and experience for direct recruitment to the post of Prabodhak. This required any of the alternate qualifications prescribed therein such as Senior Secondary School certificate etc. and at least 5 years of continuous teaching experience without any break in any recognized educational institution/educational project. This prescription for experience was thus designed specially to suit the requirement of the ad-hoc teachers serving in different schemes and generally referred to as Siksha Karmi. Part IV of the Rules of 2008 contains procedure for direct recruitment. and at least 5 years of continuous teaching experience without any break in any recognized educational institution/educational project. This prescription for experience was thus designed specially to suit the requirement of the ad-hoc teachers serving in different schemes and generally referred to as Siksha Karmi. Part IV of the Rules of 2008 contains procedure for direct recruitment. As per Rule 26, selection of the candidates would be made by the appointing authority of the candidates who stand highest in the order of merit in the list prepared by the Committee under Rule 25. 2. Part-VI pertains to appointment, probation and confirmation. As per Rule 33 contained in the said part, a person entering the service by way of direct recruitment against the clear vacancy would be placed as a probationer trainee for a period of two years. 3. Part-VII pertains to pay during probation. Rule 37 contained in the said part provides that a probationer trainee appointed to the service by direct recruitment shall be paid monthly fixed remuneration during the period of probation on such rates as may be fixed by the Government from time to time. Rule 37A was inserted subsequently and provides that a Prabodhak appointed as a probationer trainee on fixed remuneration, on successful completion of probation period, shall be granted one increment for every additional 3 years of continuous teaching experience gained before his appointment, beyond the required minimum 5 years of continuous teaching experience without any break, in any recognized educational institution or educational project. Rule 38 pertains to regulations of pay, leave, allowances, contributory pension etc and reads as under: “38. Regulations of pay, leaves, allowances, contributory pension etc. - Except as provided in these rules, the pay, allowances, contributory pension, leave and other conditions of service of the member of the Service, shall be regulated by: (i) The Rajasthan Service Rules, 1951, as amended from time to time. (ii) The Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958, as amended from time to time. (iii) The Rajasthan Travelling Allowance Rules, 1971, as amended from time to time. (iv) The Rajasthan Civil Services (Revised Pay Scales) Rules, 1998, as amended from time to time. (v) The Rajasthan Civil Services (Contributory Pension) Rules, as amended from time to time. (vi) The Rajasthan Civil Services (Conduct) Rules, 1971, as amended from time to time.” 4. (iii) The Rajasthan Travelling Allowance Rules, 1971, as amended from time to time. (iv) The Rajasthan Civil Services (Revised Pay Scales) Rules, 1998, as amended from time to time. (v) The Rajasthan Civil Services (Contributory Pension) Rules, as amended from time to time. (vi) The Rajasthan Civil Services (Conduct) Rules, 1971, as amended from time to time.” 4. As per Clause (v) of Rule 38, since a person appointed as a Prabodhak under these Rules is to be governed by the New Pension Scheme of 2005, the petitioners have raised the grievance. According to them, Clause (v) of Rule 38 is arbitrary, unreasonable and violative of Articles 14 and 16 of the Constitution of India. Learned counsel for the petitioners submitted that the petitioners were engaged by the Government as teachers several years before they were appointed to the post of Prabodhak. While granting them pay fixation on such appointment also, the past services have been taken into account as provided in Rule 37A of the Rules of 2008. The petitioners therefore for all practical purposes were working as regular Government servants even before they were appointed to the post of Prabodhak. To treat the petitioners as new employees in the Government service and to subject them to new pension scheme is thus wholly arbitrary and unreasonable. 5. On the other hand, Mr. Sunil Beniwal, Additional Advocate General opposed the petition contending that it was under peculiar circumstances, the State Government had decided to regularize the services of ad-hoc teachers who had worked for several years under specified schemes. Before regularization, they did not hold any permanent post. They were engaged under ongoing schemes and had no permanency. They became Government servants only upon being absorbed as Prabodhaks which happened under the Rules of 2008. By this time, the State Government had already introduced the contributory pension scheme. Under the Rules of 2005 Government servants entering the Government service after cut-off date prescribed in the said Rules would be governed by the New Pension Scheme. The petitioners cannot claim different treatment. He pointed out that at one stage in the case of private aided educational institutions the teachers who were absorbed in regular service had claimed benefit of old pension scheme which was allowed by this Court. The petitioners cannot claim different treatment. He pointed out that at one stage in the case of private aided educational institutions the teachers who were absorbed in regular service had claimed benefit of old pension scheme which was allowed by this Court. However, subsequently the Division Bench in the case of State of Rajasthan and Others vs. Ramgopal Verma vide judgment dated 20.09.2021 had recalled the earlier judgment of the Division Bench and dismissed the writ petitions. He also relied on the decision of Supreme Court in the case of Parmeshwar Nanda vs. State of Jharkhand and Others, (2020) 12 SCC 131 , in which, in the context of eligibility for regular pension to project employees, the Supreme Court had made following observations: “20. The entire case is based upon Rule 59 of the Rules and the Circular dated 12th August, 1969 of the erstwhile State of Bihar. We do not find any merit in the arguments raised by the learned counsel for the appellants. Rule 59 of the Rules empowers the State Government to declare any specified kind of service rendered by one in a non-gazetted service to qualify for pension, provided, that the salary is paid from the general revenue. Rule 58 of the Rules contemplates the conditions that are required to be satisfied for services to be pensionable. Herein, as it has been reiterated before, first condition is that the service must be under the Government; second, that it must be substantive and permanent; and third, that it must be paid by the Government. 21. The appellants were appointed under a specific Scheme i.e. the Project. Such project was not a permanent establishment of the Government as it was meant for a specific purpose funded by the Central Government for a specified period. The appointment of the appellants under the Project is not a part of any cadre of the State Government. Therefore, the first condition of Rule 58 that the service rendered must be under the State Government is not satisfied by the appellants having been appointed under the Project. The second condition that employment must be substantive and permanent is again not satisfied by the appellants as the employment of the appellants was under the Project. A permanent post in terms of Rule 31 of the Rules means a post carrying a definite rate of pay and that is sanctioned without a time limit. The second condition that employment must be substantive and permanent is again not satisfied by the appellants as the employment of the appellants was under the Project. A permanent post in terms of Rule 31 of the Rules means a post carrying a definite rate of pay and that is sanctioned without a time limit. The appointment of the appellants under the project was not in a pay scale nor was it sanctioned without a time limit. Further, substantive pay is defined in Rule 38 of the Rules as a person who is appointed in a cadre. At best, the appellants satisfied only the third condition i.e. that they were paid by the Government. 22. If the first and second conditions mentioned in Rule 58 of the Rules are not satisfied, the State Government can declare any specified kind of service rendered in a non-gazetted capacity to qualify for pension. The Circular dated 12th August, 1969 deals with pensionary benefits to a temporary Government servant. The appellants were never appointed by the Government either on a temporary or on permanent basis. The appellants were engaged under the Project i.e. a scheme, therefore, the benefit of such a Circular cannot be claimed by the appellants. Still further, sub-rule (1) of Rule 59 of the Rules empowers the State to declare any specific kind of service to qualify for pension. The notification for absorption circulated on 30th May, 2007 and the subsequent letter of appointments do not contain any condition that the services rendered by the appellants under the Project shall qualify for pension. The policy decision contemplates that it is a fresh appointment and no benefit either of seniority or pay protection shall be given. The appellants have not disputed such condition of appointment having been appointed under such policy decision vide the notification dated 30th May, 2007. The Circular has not granted pensionary benefits. In the absence of any specific condition in the Circular to grant pensionary benefits, it is not possible to read that pensionary benefits are to be granted to the erstwhile employees of the Project. The appellants cannot turn around to say that the services rendered by them under the Project shall be counted for pension. In the absence of any specific condition in the Circular to grant pensionary benefits, it is not possible to read that pensionary benefits are to be granted to the erstwhile employees of the Project. The appellants cannot turn around to say that the services rendered by them under the Project shall be counted for pension. The Circular dated 12th August, 1969 is not even remotely applicable to the employees appointed under the Project as the very nature of the appointment was for a specific purpose and not for an unlimited period of time.” 6. Having heard learned counsel for the parties and having perused the documents on record, we do not find that the petitioners have made out any case for interference. To begin with, the decision of this Court in the case of Ramgopal Verma (supra) would substantially cover the issues which the petitioners seek to raise in these petitions. In fact, earlier judgment of Division Bench of this Court (which came to be reviewed and recalled by the said judgment) was heavily relied upon by the learned counsel for the petitioners. In the judgment in the case of Ramgopal Verma (supra), the Division Bench considered the issues at a considerable length. After disposing of the objections of the original petitioners to entertain the review petition after the SLP against the judgment of the High Court was dismissed, the Division Bench proceeded to examine the merits of the claim of the petitioners therein for being governed by the Old Pension Scheme though they were made regular employees after the New Pension Scheme was already introduced. It was observed as under: “53. By way of Rule 5(ix), it was made clear that the persons who are appointed in Government service under the Rules of 2010, shall not be eligible for pension scheme and they may either continue to be the members of Contributory Provident Fund or they may opt for Rajasthan Civil Services (Contributory Pension) Rules, 2005. It was further provided therein that the Contributory Provident Fund Contribution if not deposited by Non-Government Aided Educational Institution for the period prior to the date of joining under the Rules of 2010, shall not be paid by the Government. 54. It was further provided therein that the Contributory Provident Fund Contribution if not deposited by Non-Government Aided Educational Institution for the period prior to the date of joining under the Rules of 2010, shall not be paid by the Government. 54. Rule 5(ix) vires whereof were challenged by the respondents, which has been declared unconstitutional by this Court by the order under review, to the extent indicated above, reads as under: “(ix) The persons who are appointed in the government service under these rules shall not be eligible for pension scheme, Contributory Provident Fund Contribution, if not deposited by the Non-Government Aided Educational Institution for the period prior to the date of their joining in the Government after appointment under these rules, shall not be paid by the State Government. They may either continue to be members of the Contributory Provident Fund or they may opt for the Rajasthan Civil Service (Contributory Pension) Rules, 2005. Employer's contribution towards Contributory Provident Fund shall be paid by the Government for the period they are in government service.” 55. The reasons assigned by the Court while declaring the Rule 5(ix) unconstitutional by order under review, are as under: “In the aforesaid provision, the State legislature has made an attempt to deny benefit of pension scheme and specifically provided that they may either continue to be member of contributory provident fund or they may opt for Rajasthan Civil Services (Contributory Pension) Rules, 2005 but no other rule/provision incorporated for those employees of aided institution, who were appointed prior to framing of Rules of 2005. Upon consideration of judgment of the Hon'ble Apex Court in the case of D.S. Nakara vs. Union of India (supra) coupled with Article 14 and 21 of the Constitution of India, we are of the firm opinion that on the one hand the State Government is owning the responsibility of the employees working against the sanctioned post in the aided institution and framed Rules of 2010 for their appointment and absorption in the Government services, and on the other hand, denied the benefit of pension to the employees who were appointed prior to promulgation of the Rajasthan Civil Service (Contributory Pension) Rules, 2005 to opt for pension as provided under the Rules of 1996, therefore, obviously it is a case of clear cut discrimination because under the Rules of 2010, the State Government has created a separate cadre amongst Government employees knowingly well that financial aid was provided to the aided institutions for the purpose of imparting education. Thus the provisions for denial of pension in the aforesaid sub-rule (ix) of Rule 5, quoted herein above, is hereby declared to be illegal and in contravention of the fundamental rights of the employees to the extent of denial of pension to the employees who were appointed prior to 2005.” 56. It is pertinent to note that the employees of Non-Government Aided Educational Institutions prior to their appointment in Government service under the Rules of 2010 were governed by Contributory Provident Fund Scheme envisaged under the Rules of 1993 and not the Pension Scheme. Further, any person inducted in the service of the State Government after commencement of the Rules of 2005, is governed by the Contributory Pension Scheme and not the Pension Scheme envisaged under the Rules of 1996. To put in other words, the employees inducted in the State Government service by way of regular recruitment on or after 1.1.2004, under the various relevant service rules, are not entitled to opt for Pension Scheme in terms of Rules of 1996. But, it appears that this aspect of the matter was not specifically brought to the notice of the Division Bench, deciding the writ petitions by order under review. But, it appears that this aspect of the matter was not specifically brought to the notice of the Division Bench, deciding the writ petitions by order under review. It remains a vital question to be examined as to whether the employees of Non-Government Aided Educational Institution, who have been accorded appointment under the Government service under the Rules of 2010, which have come into force w.e.f. 1.2.2011, against a dying cadre created, can claim the benefits of the Pension Scheme under the Rules of 1996, which are applicable only to the Government servants appointed before 1.1.2004. 57. There is yet another important aspect of the matter, which was not taken note of while passing the order under review. As per Rule 2 of the Rules of 1996, the said rules are applicable to Government servant appointed to Civil Services and the post in connection with the affairs of the Rajasthan State, which are born on pensionable establishment but, by virtue of Clause (c) of Rule 2, the Rules of 1996 are not made applicable to the persons entitled to benefit of Contributory Provident Fund. The question whether the Rules of 1996 which were not applicable to the Government servant entitled to the benefit of Contributory Provident Fund at the time of commencement of the rules, shall still be applicable to the employees of Non-Government Aided Educational Institution, who admittedly as employees of Non-Government Institutions were governed by Contributory Provident Fund prior to their induction in service of the State Government under the Rules of 2010. A perusal of the order under review reveals that the provisions of Rule 2(c) of the Rules of 1996, was not even brought to the notice of the Court and therefore, the Court had no occasion to examine the effect thereof while adjudicating the controversy involved in the petition including the vires of Rule 5(ix) of the Rules of 2010. In our considered opinion the provisions of Rule 2(c) of the Rules of 1996 have a direct bearing to the controversy raised and therefore, the effect thereof needs to be examined by the Court. 58. In our considered opinion the provisions of Rule 2(c) of the Rules of 1996 have a direct bearing to the controversy raised and therefore, the effect thereof needs to be examined by the Court. 58. Further, vide order under review, this Court had examined the vires of the provisions of Rule 5(ix) of the Rules of 2010, framed in terms quoted hereinabove, which as a matter of fact, had already been substituted by the Rajasthan Voluntary Rural Education Service (Second Amendment) Rules, 2012 (Amendment Rules 2012) notified vide notification dated 23.3.12 in the following terms: “(ix) The persons who are appointed in the government service under these rules shall be governed by the provisions of the Rajasthan Civil Services (Contributory Pension) Rules, 2005 and the Provision of the Rajasthan Civil Service (Pension) Rules, 1996 shall not be applicable to them. Contributory Provident Fund Contribution, if not deposited by the Non-Government Aided Educational Institutions for the period prior to the date of their joining in the government after appointment under these rules, shall not be paid by the State Government.” 59. It is not disputed before this Court that amended Rule 5(ix) substituted vide Amendment Rules, 2012 was not even brought to the notice of the Court during the course of hearing of the writ petitions and thus, while considering the rival submissions, this Court has declared the Rule 5(ix) of the Rules of 2010 unconstitutional, which was not even in existence as on the date of the passing of the order under review. Of course, it was duty of the State counsel to bring the amendment in the rules to the notice of the Court but then, the respondents herein who had prayed for the relief set out in the writ petitions as a consequence of Rule 5(ix) of the Rules of 2010 being declared unconstitutional, were equally duty bound to inform the Court about the subsequent amendment. The contention of the petitioners that the amendment made does not make any difference and therefore, by virtue of the judgment under review, the same has to be treated redundant, cannot be countenanced by this Court. The contention of the petitioners that the amendment made does not make any difference and therefore, by virtue of the judgment under review, the same has to be treated redundant, cannot be countenanced by this Court. It is pertinent to note that by way of amendment, the Rules of 1996 are made specifically non-applicable to the employees appointed under the Rules of 2010 and therefore, the vires of Rule 5(ix) as substituted has to be examined in context of the Rules of 1996 as well. In any case, there cannot be any automatic declaration of the rule as unconstitutional without there being a challenge thereto and examination thereof by the Court. 60. It is also not disputed before this Court that earlier Bench decision of this Court in Prem Prakash's case (supra), upholding the vires of Rule 5(ix), which is declared unconstitutional by order under review, was not brought to the notice of the Court. 61. For the aforementioned reasons, we are firmly of the opinion that the order under review to the extent of declaring Rule 5(ix) of the Rules of 2010 unconstitutional and declaring the respondents entitled to opt for Pension Scheme under the Rules of 1996 deserves to be recalled. Since, vires of Rule 5(ix) of the Rules of 2010 as substituted vide Amendment Rules, 2012 was not questioned by the respondents being oblivion about the amendment introduced, in the interest of justice, the respondents deserve to be extended an opportunity to amend their petitions to incorporate the challenge to the said rule in the petitions, if so advised. 62. Accordingly, the review petitions are allowed. The order under review to the extent of declaring Rule 5(ix) of the Rules of 2010 as unconstitutional and holding that all the employees who were appointed against the sanctioned/aided posts prior to promulgation of Rajasthan Civil Service (Contributory Pension) Rules, 2005 in the aided institutions and subsequently appointed/absorbed under the Rules of 2010 shall be governed by Rajasthan Civil Service (Pension) Rules, 1996, and consequential orders passed for deposit of the amount of Provident Fund, is recalled. The writ petitions are restored to their original numbers. The respondents shall be entitled to amend the petitions so as to challenge the vires of Rule 5(ix) as substituted by Rajasthan Voluntary Rural Education Service (Second Amendment) Rules, 2012, on all available grounds. The writ petitions are restored to their original numbers. The respondents shall be entitled to amend the petitions so as to challenge the vires of Rule 5(ix) as substituted by Rajasthan Voluntary Rural Education Service (Second Amendment) Rules, 2012, on all available grounds. The writ petitions restored shall be heard only on the question of vires of Rule 5(ix) of the Rules of 2010 and the consequential relief, if any. 63. The respondents who have deposited the amount of Provident Fund with interest as directed by the Court by order under review, shall be refunded the entire amount deposited alongwith interest @ 6% per annum from the date of deposit till the date of refund by the State Government, within a period of four weeks from the date of this order, failing which the amount shall carry interest @ 9% per annum from the date of deposit till the date of actual payment. No order as to costs.” 7. Quite apart from the said judgment of the Division Bench of this Court, we find that under the Rules of 2008, the State legislature had created a service consisting of posts specified in Column (ii) to the Schedule which included Prabodhaks and Senior Prabodhaks. The petitioners were absorbed against the vacancies to the post of Prabodhaks which were created under these Rules. Their absorption obviously therefore was in the year 2008 and thereafter. It is well known that in the State of Rajasthan, the Old Pension Scheme was contained in the Rules of 1996. Subsequently, the New Pension Rules 2005 were framed. These Rules were brought into effect from 01.01.2004. As per Rule 2, save as otherwise provided in these Rules, they would apply to the Government servants appointed on or after 01.01.2004 to civil services and posts in connection with the affairs of the Rajasthan State which are borne on New Contributory Pensionable establishments but shall not apply to certain specified services, with which we are not concerned. As per these Rules, any government servant entering the service after 01.01.2004 would be covered by the New Pension Scheme. Clause (v) of Rule 38 only clarifies and emphasizes this aspect of the matter when it provides that besides others, the members of the service would be governed by the Rajasthan Civil Service (Contributory Pension) Rules as amended from time to time. Clause (v) of Rule 38 only clarifies and emphasizes this aspect of the matter when it provides that besides others, the members of the service would be governed by the Rajasthan Civil Service (Contributory Pension) Rules as amended from time to time. There is thus nothing arbitrary or discriminatory about this portion of Rule 38. Reference to Rule 37A of the Rules of 2008 would not change this position. As noted, as per this Rule 37A, a Prabodhak would be granted one additional increment for every 3 years of continuous teaching experience over and above the minimum experience required for direct recruitment. This Rule only governs the pay fixation of a Prabodhak and does not predate his entry in Government service. Grant of additional increment is entirely different from the date of entry into Government service. For the purpose of being governed by the New or Old Pension Scheme. What is of relevance is the date of appointment as a Government servant. 8. In the result petitions fail and are dismissed.