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2022 DIGILAW 879 (RAJ)

Durgaram v. State Of Rajasthan

2022-03-14

REKHA BORANA

body2022
JUDGMENT 1. The present writ petition is the second round of litigation. Earlier a writ petition was filed by the present petitioners assailing the legality and validity of the seniority list and for directing the respondents to consider the name of the petitioners for the post of Teacher Gr.-II by including their names in the seniority list and merit list of the year 2004-05. The said writ petition was disposed of vide order dated 05.05.2015 with a direction to the respondent-authorities to positively consider and decide the representation of the petitioners by a reasoned and speaking order. 2. In pursuance to the order dated 05.05.2015, the petitioners moved a representation to the respondent-authorities, which has been decided vide office order dated 28.08.2015. Vide the order dated 28.08.2015, the representation of the petitioners has been rejected in terms of Rule 29(10) of Rajasthan Educational Subordinate Service Rules, 1971 (hereinafter referred to as 'Rules of 1971'). Aggrieved against the said rejection, the present writ petition has been filed. 3. Before proceeding on into details of the matter, it is apt to consider relevant part of Rule 29 of the Rules of 1971, which reads as under: "Seniority- seniority of persons appointed to the lowest post of the Service or lowest categories of posts in each of the Group/Section of the Service, as the case may be, shall be determined from the date of confirmation of such persons to the said post but in respect of persons appointed by promotion to other higher post in the service or other categories of post in each of the Group/Section in the Service, as the case may be shall be determined from the date of their regular selection to such post. Provided: (1)..................... (2)........................ (8) that the seniority of the persons selected as a result of taking over of private institutions shall be determined with reference to the year of taking over such employees and they shall rank en-block junior to persons appointed by direct recruitment or by promotion if the post if required to be filled in by promotion only in the relevant category during the year of their appointment. The inter-se seniority of such persons will, however, befixed according to the date of continuous appointment in the same grade under such management/agency, provided that any pre-determined seniority shall not be disturbed. The inter-se seniority of such persons will, however, befixed according to the date of continuous appointment in the same grade under such management/agency, provided that any pre-determined seniority shall not be disturbed. The service rendered by the employees of the private institution on an equated post shall be counted as experience of service required for either promotion or direct recruitment, as the case may be. (9) that the seniority of persons of schools taken over or to be taken over by the Government in Education Department from Municipal Board/Councils/Corporation shall be determined from the date of their continuous appointment in the same grade in the Municipal Board/Councils/Corporation if they are qualified to held the post otherwise, the seniority of such persons will be fixed according to the date of continuous appointment in the same grade under such management/agencies provided that any predetermined seniority shall not be disturbed. However, such employees shall rank enblock junior the persons appointed either by direct recruitment or by promotion. (10) that the persons referred to in proviso(8) and proviso (9) are appointed on the same date, seniority inter-se of such persons shall be determined on the basis of their length of continuous service rendered in the same grade/equated posts in the private institution or Local Body, as the case may be. Explanation: A person working on the post of Senior Teachers/Teacher or equivalent posts when transferred from one district/range to another district/range on his own request shall be placed just below the junior most person in seniority list of the new district/range from the date of taking over the charge in the new district/range and will cease to have any right of his seniority in the district/range from which he has been transferred." 4. Counsel for the petitioners submits that the Explanation to Rule 29(10) of the Rules of 1971 in terms of which the representation of the petitioner has been rejected does not apply to the petitioners as the said Explanation is appended to sub Rule 10 which pertains to of sub Rule 8 and sub Rule 9. Counsel submitted that sub Rule 8 and sub Rule 9 provide for seniority of the persons being transferred from a private institute or some other Local Body/Authority. Therefore the Explanation appended to sub Rule 10 will apply only in the matter of employees transferred from any private institute or other Local Body or Authority. Counsel submitted that sub Rule 8 and sub Rule 9 provide for seniority of the persons being transferred from a private institute or some other Local Body/Authority. Therefore the Explanation appended to sub Rule 10 will apply only in the matter of employees transferred from any private institute or other Local Body or Authority. Resultantly, the said Explanation would not apply to the present petitioners and hence their seniority deserves to be considered from the date of the initial appointment and not from the date of their transfer (considering them to be junior to the last senior person at the transferred place). Counsel also submitted that similarly situated person who had also been transferred at her own request had been granted the seniority considering her date of initial appointment. 5. Per contra, counsel for the respondents submitted that the Explanation to Rule 29 of the Rules of 1971 specifically provides that if an employee is transferred on his own request, he would be placed just below the junior most person in seniority list of the new District/range where he has been transferred. Therefore the petitioners were specifically covered by the said explanation and the seniority granted to them was perfectly in terms of the Rule. So far as the similarly situated person being granted the seniority is concerned, counsel submitted that the order qua the same has already been cancelled by the Department. 6. Heard learned counsel for the parties and perused the material available on record. 7. A bare perusal of the Explanation to Rule 29 of Rules of 1971 makes it clear that the said explanation is an explanation to the complete Rule 29 and not an explanation just to sub Rule 10 as suggested by the counsel for the petitioners. The explanation is a general explanation applying to all the employees who have been transferred at their own request and it cannot be said to be restricted only to the employees who have been transferred from any private institute or some other Local Body/Authority. 8. In view of the same, the rejection of the representation of the petitioners in terms of the explanation to Rule 29 is perfectly valid and this Court does not find any ground for interfering with the same. 9. With the above observations, the present writ petition is dismissed. 10. All pending applications also stand disposed of.