Dismissed

Madhu Kashyap and Ors. v. State of Raj Edu Deptt

Rajasthan HC26 Nov 2014CW/11691/2013

Case brief

AI extract

What is this about?

The High Court dismissed multiple writ petitions challenging Rules 15 and 25 of the Rajasthan Education Assistant Services Rules, 2013. The court held that classifying only employees directly under the State Government's control and supervision for experience weightage was permissible under Article 14 and 16, rejecting claims of discrimination by those in contract or agency-based schemes.

What did the court decide?

Prayers to declare Rules 15 and 25 ultra vires and for age relaxation were dismissed; writs disposed of with no order as to costs.

Madhu Kashyap and Ors. Vs State of Raj Edu Deptt — Service and Employment | Rajasthan HC (2014)

¶1

¶2

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR

¶3

D.B.Civil Writ Petition No.10038/2013

¶4

Atar Singh Gurjar & Ors. vs. State of Rajasthan & Ors.

¶5

Alongwith

¶6

other connected D.B.C.W.P.Nos:-

¶7

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11103/2013, 11104/2013, 11105/2013, 11106/2013, 11107/2013, 11108/2013, 11109/2013, 11110/2013, 11111/2013, 11122/2013, 11123/2013, 11124/2013, 11125/2013, 11126/2013, 11127/2013, 11128/2013, 11129/2013, 11132/2013, 11133/2013, 11134/2013, 11135/2013, 11136/2013, 11138/2013, 11139/2013, 11140/2013, 11141/2013, 11142/2013, 11143/2013, 11144/2013, 11145/2013, 11146/2013, 11147/2013, 11148/2013, 11149/2013, 11150/2013, 11151/2013, 11152/2013, 11153/2013, 11154/2013, 11155/2013, 11156/2013, 11157/2013, 11158/2013, 11159/2013, 11160/2013, 11161/2013, 11162/2013, 11163/2013, 11164/2013, 11165/2013, 11166/2013, 11167/2013, 11168/2013, 11169/2013, 11170/2013, 11171/2013, 11172/2013, 11173/2013, 11174/2013, 11175/2013, 11176/2013, 11177/2013, 11178/2013, 11179/2013, 11180/2013, 11181/2013, 11182/2013, 11183/2013, 11184/2013, 11185/2013, 11186/2013, 11187/2013, 11188/2013, 11189/2013, 11191/2013, 11192/2013, 11193/2013, 11194/2013, 11195/2013, 11196/2013, 11197/2013, 11198/2013, 11199/2013, 11200/2013, 11201/2013, 11202/2013, 11203/2013, 11204/2013, 11205/2013, 11206/2013, 11207/2013, 11208/2013, 11209/2013, 11210/2013, 11211/2013, 11212/2013, 11213/2013, 11220/2013, 11221/2013, 11222/2013, 11223/2013, 11224/2013, 11225/2013, 11226/2013, 11227/2013, 11228/2013, 11229/2013, 11230/2013, 11231/2013, 11232/2013, 11233/2013, 11234/2013, 11236/2013, 11237/2013, 11238/2013, 11251/2013, 11252/2013, 11253/2013, 11254/2013, 11255/2013, 11256/2013, 11259/2013, 11260/2013, 11261/2013, 11262/2013, 11263/2013, 11264/2013, 11268/2013, 11269/2013, 11270/2013, 11271/2013, 11272/2013, 11273/2013, 11274/2013, 11275/2013, 11276/2013, 11277/2013, 11278/2013, 11280/2013, 11281/2013, 11282/2013, 11283/2013, 11284/2013, 11285/2013, 11286/2013, 11287/2013, 11288/2013, 11289/2013, 11290/2013, 11291/2013, 11292/2013, 11293/2013, 11294/2013, 11295/2013, 11296/2013, 11297/2013, 11298/2013, 11299/2013, 11300/2013, 11301/2013, 11302/2013, 11303/2013, 11304/2013, 11305/2013, 11306/2013, 11307/2013, 11308/2013, 11309/2013, 11310/2013, 11315/2013, 11316/2013, 11317/2013, 11318/2013, 11319/2013, 11320/2013, 11321/2013, 11322/2013, 11323/2013, 11324/2013, 11325/2013, 11326/2013, 11327/2013, 11328/2013, 11329/2013, 11330/2013, 11331/2013, 11332/2013, 11333/2013, 11334/2013, 11335/2013, 11336/2013, 11337/2013, 11338/2013, 11339/2013, 11340/2013, 11341/2013, 11342/2013, 11343/2013, 11344/2013, 11345/2013, 11346/2013, 11347/2013, 11348/2013, 11349/2013, 11350/2013, 11351/2013, 11352/2013, 11353/2013, 11354/2013, 11355/2013, 11356/2013, 11357/2013, 11358/2013, 11359/2013, 11360/2013, 11361/2013, 11362/2013, 11363/2013, 11364/2013, 11365/2013, 11366/2013, 11367/2013, 11368/2013, 11369/2013,

¶20

¶21

11370/2013, 11371/2013, 11372/2013, 11373/2013, 11374/2013, 11375/2013, 11376/2013, 11377/2013, 11378/2013, 11379/2013, 11380/2013, 11381/2013, 11382/2013, 11383/2013, 11384/2013, 11385/2013, 11386/2013, 11387/2013, 11388/2013, 11389/2013, 11390/2013, 11391/2013, 11392/2013, 11393/2013, 11395/2013, 11396/2013, 11397/2013, 11398/2013, 11399/2013, 11400/2013, 11401/2013, 11402/2013, 11410/2013, 11411/2013, 11412/2013, 11413/2013, 11414/2013, 11415/2013, 11416/2013, 11417/2013, 11418/2013, 11419/2013, 11420/2013, 11421/2013, 11422/2013, 11423/2013, 11424/2013, 11425/2013, 11426/2013, 11427/2013, 11428/2013, 11429/2013, 11430/2013, 11431/2013, 11432/2013, 11433/2013, 11434/2013, 11435/2013, 11436/2013, 11437/2013, 11438/2013, 11439/2013, 11440/2013, 11441/2013, 11442/2013, 11443/2013, 11444/2013, 11445/2013, 11446/2013, 11447/2013, 11448/2013, 11449/2013, 11450/2013, 11451/2013, 11452/2013, 11453/2013, 11454/2013, 11455/2013, 11456/2013, 11457/2013, 11458/2013, 11459/2013, 11460/2013, 11461/2013, 11462/2013, 11463/2013, 11464/2013, 11465/2013, 11466/2013, 11467/2013, 11468/2013, 11469/2013, 11470/2013, 11471/2013, 11472/2013, 11473/2013, 11474/2013, 11475/2013, 11476/2013, 11477/2013, 11479/2013, 11480/2013, 11481/2013, 11482/2013, 11483/2013, 11484/2013, 11485/2013, 11486/2013, 11487/2013, 11488/2013, 11489/2013, 11490/2013, 11491/2013, 11492/2013, 11493/2013, 11494/2013, 11495/2013, 11496/2013, 11497/2013, 11498/2013, 11499/2013, 11500/2013, 11501/2013, 11502/2013, 11503/2013, 11504/2013, 11505/2013, 11506/2013, 11507/2013, 11508/2013, 11509/2013, 11510/2013, 11511/2013, 11513/2013, 11514/2013, 11515/2013, 11516/2013, 11517/2013, 11518/2013, 11519/2013, 11521/2013, 11522/2013, 11523/2013, 11524/2013, 11525/2013, 11526/2013, 11527/2013, 11528/2013, 11529/2013, 11530/2013, 11531/2013, 11532/2013, 11533/2013, 11534/2013, 11535/2013, 11536/2013, 11537/2013, 11538/2013, 11539/2013, 11540/2013, 11541/2013, 11542/2013, 11543/2013, 11544/2013, 11545/2013, 11546/2013, 11547/2013, 11548/2013, 11549/2013, 11551/2013, 11552/2013, 11553/2013, 11554/2013, 11555/2013, 11556/2013, 11557/2013, 11558/2013, 11559/2013, 11560/2013, 11561/2013, 11562/2013, 11563/2013, 11564/2013, 11565/2013, 11566/2013, 11567/2013, 11568/2013, 11569/2013, 11570/2013, 11571/2013, 11572/2013, 11573/2013, 11576/2013, 11581/2013, 11582/2013, 11583/2013, 11584/2013, 11585/2013, 11586/2013, 11588/2013, 11589/2013, 11592/2013, 11593/2013, 3189/2014,

Date of judgment:

26.11.2014

PRESENT HON'BLE ACTING CHIEF JUSTICE MR. SUNIL AMBWANI HON'BLE MR. JUSTICE VEERENDR SINGH SIRADHANA

¶26

Ms.Naina Saraf, Mr.Gaurav Sharma, Mr.Govind Choudhary, Mr.Tanveer Ahmed, Mr.Iliyas Khan, Mr.Govind Gupta, Mr.Govind Sharma, Mr.H.P.Bairwa, Mr.H.R.Kumawat, Mr.Hans Kumar Sharma, Mr.Hans Raj Kuldeep, Mr.Hanuman Choudhary, Mr.Hari Kishan Sharma, Mr.A.R.Meena, Mr. Hari Prasad Jangid, Mr. Harsh Saini, Mr. Hem Singh Rathore, Mr. Hemant Kumar Sharma, Mr. Hoshyer Singh, Mr. Imran Khan, Mr. Intjar Ali, Mr. Ishwar Jain, Mr. J.P. Gargey, Mr.Jai Kishan Yogi, Mr.J.R. Tantia, Mr.Jitendra Kumar Sharma, Mr.K.K. Binda, Mr.K.L. Meena, Mr.K.S. Faujdar, Mr. K.C. Sharma, Mr.K.C. Surela, Mr.K.K. Sahu, Mr.Kailash Choudhary, Mr.Kailash Sharma, Mr.Kamal Kumar Mathur, Mr.Kamal Singh Loha, Mr.Kamlesh Kumar Sahu, Mr.Kapil Gupta, Mr.Keshav Agarwal, Mr.Krishna Sharma, Mr.Krishna Swami, Mr.Kuldeep Aswal, Mr.Kuldeep Sharma, Mr.Lalit Sharma, Mr.Laxmi Kant Sharma, Mr.Lokesh Parihar, Mr.Lokesh Sharma, Mr.M. Aslwam, Mr.M.F. Baig, Mr.Bhupendra Pareek, Mr.Bhuvnesh Sharma, Mr.Bijendra Kumar Yadav, Mr.Brij Sharma, Mr.Brijesh Bhardwaj, Mr.C.J. Chopra, Mr.C.K. Jain, Mr.C.P.Sharma, Mr.C.S. Meena, Mr.C.M. Verma, Mr.Chain Singh Rathore, Mr.Champeshwar Goyal, Mr.D.C. Gupta, Mr.D.D. Khendelwal, Mr.D.P.Sharma, Dr.S.S. Rathore, Mr.D.S. Bagodia, Mr.D.S. Dhariwal, Mr.D.K. Dixit, Dr.Pushpendra Pal Singh, Dr. Saugath Roy, Mr.D.S. Kurka, Mr. Dilip Singh Jalod, Mr.Deepak Pareek; Mr.Devendra Kumar Bhardwaj, Mr. Devi Sahay Sharma, Mr.Devi Singh Choudhary, Mr. Dharmendra Barala, Mr.Dileep Sinsinwar; Mr. Dinesh Kumar Garg, Dr. P.C. Jain, Mr.F.R. Meena, Mr. G.L. Sharma, Mr.G.K. Bhardwaj, Mr.G.K. Sharma, Mr.Gajendra Sharma, Mr.Ganesh Chaturvedi, Mr.Ganesh Kumar Sharma, Mr.Ghanshyam Shama, Mr.Girraj Prasad, Mr. Gopal Gupta, Mr.A.A. Rathore, Mr.Ashish Sharma, Mr.Atish Jain, Mr. Abdul Rahim Khan, Mr.Ajay Gupta, Mr. Ajay Kumar Taneja, Mr.Ajay Rajawat, Mr.Ajay Singh, Mr.Ajeet Kumar Sharma, Ms.Akanksha Saxena, Mr.Akbar Khan, Mr.Akhil Simlote, Mr.Alam Bhardwaj, Mr.Alladeen Khan, Mr.Amit Kumar Jain, Mr.Amit Singh Shekhawat, Mr.Amrit Prasad Sharma, Mr.Anand Sharma, Mr.Anil Jain, Mr.Anil Kumar Sharma, Mr.Anil Vaishnav, Ms. Anita Khandalwal, Mr.Ankur Rastogi, Mr.Ankur Srivastav, Mr.Anshuman Saxena, Mr.Anup Agarwal, Mr.Anup Dhand, Mr.Sandeep Kumar Meena & Mr.Jagdish Nagar, Mr.Anurag Shukla, Mr.Arun Singh Shekhawat, Mr.Arvind Chawla, Mr.Arvind Kumar Arora, Mr.Arvind Sharma, Mr.Asgar Khan, Mr.Ashivindra Gautam, Mr.Ashok Bansal, Mr.Ashok Singh Shekhawat, Mr.Ashok Yadav, Mr.Atul Kumar Jain, Mr.B.D. Prakash Saini, Mr.B.C. Chirania, Mr.Ravi Chirania, Mr.B.M. Sharma, Mr.B.P. Sharma, Mr.Bal Kishan Saini, Mr.Balveer Singh Beniwal, Mr.Banwari Lal Saini, Mr.Banwari Sharma, Mr.Bharat Singh, Mr.Ravi Meena, Mr.Ravi Shankar Sharma, Ms. Rekha Arora, Mr.Rohit Sharma, Mr.Rohitashwa Kajla, Mr.S.D. Sharma, Mr.S. Gaharana, Mr.S.S. Hora, Mr.S.K. Saxena, Mr.S.L. Kumawat, Mr.S.M. Meena, Mr.S.N. Meena, Mr.S.N. Soorwal, Mr.S.R. Choudhary, Mr.S.S. Hasan, Mr. S.K. Pareek, Mr. S. Kalvania, Mr. Shailendra Balwada, Mr.Samay Singh, Mr. Smeer Shama, Mr.Sanchit Tamra, Mr. Sandeep Bhagwati, Mr. Sandeep Garssa, Mr. Sanjay Buri, Mr. Sanjay Mehla, Mr. Sanjay Sharma, Mr. Santosh Singh Shekhawat, Mr. Santosh Srivastav, Mr. Sarad Tanwar, Mr. Satendra Kumar Sharma, Mr. Satish Khandelwal, Mr. Satyapal Poshwal, Mr. Shashi Sharma, Mr.S.S.Shekhawat, Mr.Shrey Gaharana, Mr. Shribhan Gurjar, Ms. Shruti Pareek; Mr. Sitaram Samota, Smt. Shashi Choudhary, Mr. Sobhit Vyas, Mr. Subhash Bairwa, Mr. Subhash Sharma, Mr. Sudesh Kumar Pareek, Mr. Sudarshan Ladda, Mr.

¶27

¶28

Sudhindra Kumawat, Mr. Surendra Kolari, Mr.Sultan Singh Kuri, Ms. Suman Sharma, Mr. Sumer Singh, Mr. Sumit Bishnoi, Mr.Sumit Choudhary, Mr. Sumit Jain, Mr. P.N. Paliwal, Mr. Pradeep Mathur, Mr. Pradeep Singh, Mr. Prahlad Sharma, Mr. Prashant Kumar, Mr. Praveen Sharma, Mr. Prem Chand Dewanda, Mr. Puman Chand Sharma, Mr. Puran Chand Verma, Mr. Pyarelal, Mr. R.A. Khan, Mr. R.B. Sharma Ganthola, Mr. R.D. Meena, Mr. R.D. Singh Naruka, Mr. R.K. Gouttam with Mr.G.S.Gouttam, Mr. R.D. Sharma, Mr. R.H. Bhardwaj, Mr. R.K. Saini, Mr. R.S. Sharma, Mr. Raghunandan Sharma, Mr. Rahmat Khan, Mr. Raj Kumar Kasana, Mr. Raj Kumar Sharma, Mr. Raja Ram Choudhary, Mr. Rajeev Sogarwal, Mr. Rajeev Vashishtha, Mr. Rajendra Prasad Sharma, Mr. Rajendra Sharma, Mr. Rajendra Soni, Mr. Rajesh Bhamboo, Mr. Rajesh Chandel, Mr. Rajesh Chaturvedi, Mr. Rajesh Mootha, Mr. Rajesh Parasar, Mr. Rajesh Sharma with Mr.Mahendra Pareek, Mr. Raj Kumar Goyal, Mr. Rajveer Sharma, Mr. Rakesh Arora, Mr. Rakesh Paliwal, Mr. Ram Babu Sharma, Mr. Ram Kapil, Mr. Ram Pratap Saini, Mr. Ram Rakh Sharma, Ms. Rashmi Jain, Mr. M.K. Tiwari, Mr. M. Bhardwaj, Mr. M.I. Abbasi, Mr.M.K. Chaturvedi, Mr. M.K. Goyal, Ms.Suman Sharma, Mr. Mahendra Shah, Mr.Vigyan Shah, Mr. Mahendra Sharma, Mr. Mahendra Singh Gurjar, Mr. Mamraj Jat, Mr. Manish Sharma, Mr. Manoj Awasti, Mr. Manoj K Sharma, Mr. Manoj Singh Raghav, Ms. Meenu Verma, Mr. Mohan Choudhary with Mr.Vimlesh Choudhary, Mr. Moharpal Singh Meena, Mr. M.S. Gothwal, Mr. Mukesh Kumar Goyal, Mr. Mukesh Puniya, Mr. Mukesh Sharma, Mr. Manish Bhardwaj, Mr. N.K. Saini, Mr. N.K. Singhal, Mr. Narendra Saini, Mr. Narendra Singh Handa, Mr. Naresh Gupta, Mr.Narpat Singh, Mr. Naval Singh Sikarwar, Mr. Naveen Bhuwan, Mr. Neeraj Joshi, Ms. Nidhi Khendlwal, Mr.Nikhilesh Katara, Mr. Niraj Joshi, Mr. Nitesh Kumar Garg, Mr.Nitish Bhagri, Ms. Nitu Dave, Mr.O.P. Jhajhria, Mr.O.p. Sharma, Mr.Omveer Singh Saini, Mr.P.K. Sharma, Mr.P.K. Dhakad, Mr. P. Mali, Mr. Pankaj Agarwal, Mr. Pankaj Sharma, Ms. Pradeep Lata Mathur, Mr. Pradeep Malik, Mr.Pradeep Kalwania, Mr. Pawan Kumar Sharma, Mr. Sumit Khandwal, Mr. Sunil Kumar Singodia, Mr. Sunil Kumar Jain, Mr. Sunil Kumar Saini, Mr. Surendra Mal, Mr. Suresh Dhenwal, Mr. Suresh Kumar, Mr. Suresh Kumar Pareek, Mr. Suresh Singh, Mr. Swaraj Panwar, Ms. Sweta Pareek Roy, Mr. T.C. Sharma, Mr. T.L. Pandey, Mr. Takat Singh, Mr. Tarun Jain, Mr. Om Shankar Pandey, Mr. Umesh Vyas, Mr. V. Kabra, Mr. V.S. Fojdar, Mr. Vibhor Sharma, Mr. Vidhut Gupta, Mr.Vijay Choudhary, Mr. Vijay Pathak, Mr. Vijendra Kumar Yadav, Mr.Vikash Jakhar, Mr.Viliyam Pathak, Mr. Vinay Panday, Mr. Vinayak Joshi, Mr.Vinod Goyal, Mr.Vinod Kumar Sharma, Mr.Vinod Sharma, Mr. Vivek Choudhary, Mr. Vivek Goyal, Mr. Y.K. Sharma, Mr.Yogendra Jain, Mr. Yogesh Singhal, Mr. Yunus Khan/

¶29

…........for the petitioners.

¶30

Mr.Dharamveer Tholia, AAG with Mr. Rajan Prajapati, Mr. Anurag Choudhary, Mr. Vikram Singh, Mr. Sumit Choudhary, Mr.Varun Choudhary and Mr. Himanshu Tholia.

¶31

….......for the respondents.

¶32

JUDGMENT

¶33

(Reportable) BY THE COURT (Per Hon'ble Sunil Ambwani, Actg.CJ)

¶34

We have heard learned counsel appearing for the petitioners and learned Additional Advocate General appearing for the respondents.

¶35

¶36

In this batch of writ petitions, heard at length, the petitioners have prayed to declare the Rules 15 and 25 of the Rajasthan Education Assistant Services Rules, 2013 (for short, “the Rules of 2013”) ultra vires to the extent that it does not include the experience of petitioners working as Prerak/Nodal Prerak and in other category of employment on daily wages, contract or in temporary employment, for the purposes of providing weightage in awarding the bonus marks and age relaxation in recruitment to the post of Education Assistant vide advertisement issued on 30.5.2013, for direct recruitment on 33,689 posts of Education Assistants published by the Director, Primary Education, Rajasthan.

¶37

The petitioners in other writ petitions, heard together, have also claimed the similar reliefs in respect of alleged discrimination met out to them in excluding their experience for weightage in the selections, of variety of employments, namely, Mobile Teachers in the Schools run by Bharti Telecom under the Sarva Shikha Abhiyan, Computer Instructors in different Schools and Colleges in pursuance of the Policy of the State of Rajasthan to impart computer education in the Schools through the private Companies engaged to provide Computer Instructors alongwith computers on a fixed amount under the Integrated Scheme for Computer Education and ITC, Caregivers and Resource Teachers for physically challenged children under the Sarva Shiksha Abhiyan, Vidhyarthi Mitra under the Vidhyarthi Mitra Scheme, Lower Division Clerks/DPEP , Aanganwari Workers serving under Mahila Bal Vikas Yojna, Girl Child Motivators and Teachers appointed in private recognized institutions by Vidhyalaya Samities under the Non-formal Education Programme, employees serving in Kasturba Gandhi Residential Balika Vidhyalaya established under the Sarva Shiksha Abhiyan Scheme, Motivators in the Labour Schools run by the State Government, Prabodhak and the Teachers serving under the Lok Jumbish Programme of the State Government. All these categories of

¶38

¶39

employees engaged in the Schools and institutions for facilitation of education of children in various Schemes have challenged their exclusion in the recruitment on 33,689 posts of Education Assistant under the Rules of 2013, for which an advertisement was published inviting applications on-line on 30.5.2013 by the office of the Director, Primary Education, Rajasthan, Bikaner.

¶40

In all these cases, apart from challenge on the ground of discrimination with the aforesaid category employment in various Schemes, the petitioners have also prayed for directions to give them the age relaxation and to give weightage in award of bonus marks equal to the categories of employments under Section 2(k) of the Rules of 2013 defining “experience” and providing for weightage for the experience gained in any Government School/Government Educational Projects viz. Lok Jumbish Pariyojana/Sarva Shiksha Abhiyan/District Primary Education Programme/Rajiv Gandhi Pathshala/Shiksha Karmi Board and Madarsa listed under the Madarsa Board . The petitioners have also alleged discrimination with those employees, whose experience is to be otherwise counted for the purposes of giving bonus marks, as also exclusion on the ground that they were recruited on contract and in some cases through the Placement Agencies.

¶41

In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Rajasthan made the Rules of 2013 regulating recruitment to the posts in, and the conditions of service of persons appointed as Education Assistants. By a Notification dated 28.5.2013 issued by the Department of Personnel (A-Gr.II), Government of Rajasthan, Jaipur, the said Rules were notified to come into force with immediate effect. The 'Appointing Authority' under Rule 2(a) means the District Education Officer (Elementary Education), the 'Department' under sub-rule (d) means the Department of School Education. The 'Service' under sub-

¶42

¶43

rule (j) means the Rajasthan Education Assistant Service and under subrule(k), 'Experience' is defined as follows:-

¶44

“ (k) “Experience” wherever prescribed in these rules for the purpose of weightage means the experience gained in any Government school/Government Educational Projects viz. Lok Jumbish Pariyojana/Sarva Shiksha Abhiyan/District Primary Education Programme/Rajiv Gandhi Pathshala/Shiksha Karmi Board and Madarsa listed under the Madarsa Board.

¶45

Note:Absence during service e.g. training, leave, deputation and summer vacation etc. shall also be counted as service for computing experience required for the purpose of weightage.”

¶46

Under Rule (4), the nature of post (s) included in the service are as specified in column 2 of the Schedule. Rule 5 provides that the service shall consist of all persons recruited by the method laid down in Rule 6 of the Rules of 2013. The recruitment is provided in Part-III , which, includes in Rule 6, the method of recruitment to be made by direct recruitment and also includes compassionate appointment under Rule 7 to one of the dependents of a Member of the Armed Forces/Para Military Forces belonging to the State, who became permanently incapacitated on or after 1.4.1999 in any defence operations including counter-insurgency operations and operations against terrorists and other categories of the dependents of the Armed Forces, in the manner provided under sub-rule (4), with which we are not concerned.

¶47

Rules 8, 9, 10 and 11 of the Rules of 2013 provide for reservation of vacancies for the Scheduled Castes and Scheduled Tribes in Rule 8, for the Backward Classes, Special Backward Classes and Economically Backward Classes in Rule 9, for the women to the extent of 30% category-wise in direct recruitment, out of which 8% shall be for widows and 2% for divorced women candidates in Rule 10, and for the outstanding sports persons to the extent of 2% in Rule 11,

¶48

¶49

for which the qualifications for horizontal reservation is given in the explanation to Rule 11. The age limit is prescribed in Rule 15, which provides that for the posts enumerated in the Schedule, a candidate must have attained the age of 18 years and must not have attained the age of 35 years on the first day of January next following the last date fixed for receipt of applications, with relaxation under proviso (i)(a) for five years to the male candidates belonging to the Scheduled Castes, Scheduled Tribes, Backward Classes and Special Backward Classes, for five years under clause (b) in case of woman candidates belonging to the General Category and Economically Backward Classes and for 10 years under clause (c) in case of woman candidates belonging to the Scheduled Castes, Scheduled Tribes, Backward Classes and Special Backward Classes. The age relaxations are also provided under Rule 15 to various other categories of persons. In proviso (x), the age relaxation is provided to the following categories of persons, whose experience is provided for weightage in Rule 2(k) as follows:-:-

¶50

“ (x) the person serving under any Government school/Government Educational Projects viz. Lok Jumbish Pariyojana/ Sarva Shiksha Abhiyan/ District Primary Education Programme/ Rajiv Gandhi Pathshala /Shiksha Karmi Board and Madarsa listed under the Madarsa Board shall be deemed to be within age limit, had they been within the age limit when they were initially engaged even though may have crossed the age limit at the time of direct recruitment.”

¶51

Rule 16 provides for academic and technical qualifications and experience. Rule 16 and the Schedule are quoted below:-

¶52

“ 16. Academic and technical qualifications and experience.- A candidate for direct recruitment to the post enumerated in the Schedule shall possess.-

¶53

(i) the qualifications and experience given in column 4 of the

¶54

¶55

Schedule; and

¶56

(ii) working knowledge of Hindi written in Devnagri script and knowledge of Rajasthani culture.

¶57

SCHEDULE

¶58

S. No .	Name of the post	Method of recruitment with percentage	Minimum qualification and experience for direct recruitment	Committee to recommend for direct recruitment to the post	Remark
1	2	3	4	5	6
1	Education Assistant	100% by direct recruitment	Secondary from Board of Secondary Education, Rajasthan or its equivalent.	1. District Education Officer (Elementary Education). 2. Additional District Education Officer (Secondary Education) 3. Nominee of Collector not below the rank of Tehsildar.	-

¶59

The procedure for direct recruitment in Part-IV of the Rules of 2013 provides for inviting of applications for direct recruitment by the Director by advertising the vacancies to be filled, in the Official Gazettee or in such other manner as may be deemed fit. The direct recruitment under Rule 22 is to be held at least once in a year. The method of recruitment provides for the scrutiny of applications under Rule 25, which provides for weightage as may be specified by the State Government for the marks obtained in minimum qualifying examination. Rule 25 is relevant for the purposes of these cases and is quoted below:-

¶60

“ 25. Scrutiny of applications.- The Committee referred to in column 5 of the Schedule, shall scrutinize the applications received and merit shall be prepared by the Committee on the basis of such weightage as may be specified by the State Government for the marks obtained in minimum qualifying examination mentioned in the Schedule and such marks as may be specified by the State Government having regard to experience, exceeding one year acquired by persons other than those engaged through placement agency, working in any Government school/Government Educational Projects viz. Lok Jumbish Pariyojana/ Sarva Shiksha Abhiyan/ District Primary Education Programme/ Rajiv Gandhi Pathshala/ Shiksha Karmi Board and Madarsa listed under the Madarsa Board.

¶61

¶62

Explanation: Wherever percentage of the marks cannot be ascertained due to grade awarded to the candidate in the particular examination, the median of the grade awarded to the candidate in such examination shall be basis for the preparation of the merit list.

¶63

Rule 26 provides for recommendations of the Committee and Rule 28 provides for selection by the Appointing Authority.

¶64

Part-V of the Rules of 2013 provides for appointment, probation and confirmation. Part-VI provides for pay. Rule 38 provides that all the Service Rules for Civil Services in Rajasthan including the Rajasthan Service Rules, 1951, the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958, the Rajasthan Travelling Allowance Rules, 1971, the Rajasthan Civil Services (Conduct) Rules, 1971, the Rajasthan Civil Services (Pension) Rules, 1996 and the Rules relating to the Revised Pay Scales, Contributory Pension and Revised Pay and any other Rules prescribing general conditions of service made under the proviso to Article 309 of the Constitution of India, are applicable to the members of the Service. Rule 40 repeals all Rules and orders in relation to matters covered by the Rules of 2013 and in force immediately before the commencement of these Rules. Rule 41 authorizes the Administrative Department of the Government that in exceptional cases, if it is satisfied that operation of the rules relating to age or regarding requirement of experience for recruitment causes undue hardship in any particular case or where the Government is of the opinion that it is necessary or expedient to relax any of the provisions of the Rules with respect to age or experience of any person, it may do so in a just and equitable manner, provided that such relaxation shall not be less favourable than the provisions already contained in the Rules.

¶65

The Director, Primary Education, Rajasthan at Bikaner issued an advertisement No.2 dated 30.5.2013 for filling up 33,689 posts of

¶66

¶67

Education Assistant by way of Direct Recruitment-2013 and invited applications on-line. All the eligible applicants including the petitioners, who are not eligible for weightage and/or are not entitled to the age relaxation, have challenged Rules 15 and 25 of the Rules of 2013 as well as the conditions of experience and age in the advertisement on the ground of discrimination violating their rights under Articles 14 and 16 of the Constitution of India.

¶68

Before proceeding to consider the submissions made at the Bar, we may point-out that so far as the award of marks (bonus marks) on the experience, by way of weightage in the selections for the persons having experience in the categories of employments given in Rule 2(k) of the Rules of 2013 is concerned, a Division Bench of this Court in Dinesh Kumar Sharma & Ors. v. State of Rajasthan & Ors. (D.B. Civil Writ Petition No.14947/2013 and connected matters decided on 23^rd May, 2014), has declared the award of bonus marks to be valid and not violative of the law laid down by the Supreme Court in Secretary, State of Karnataka V/s Uma Devi (2006 (4) SCC 1), in which the Constitution Bench has ruled that regularization cannot be obtained in appointment except in accordance with the statutory Rules, with an exception of one-time regularization for those employees, who were irregularly appointed on substantive posts, on the date of the judgment i.e. 26^th April, 2006. The Division Bench of this Court, following the judgments of the Supreme Court in Satyabrata Sahoo & Ors. v. State of Orissa & Ors. ((2012) 8 SCC 203), V.N. Sunda Reddy & Ors. v. State of A.P. & Ors. (1995 Supp (2) SCC 323), R.N. Nanjundappa v. T. Thimmaiah & Anr. (AIR 1972 SC 1767) and of this Court in Richhpal Singh v. State of Rajasthan (RLR 2005 (1) 607) and Shashi Kumar Purohit etc. v. State of Rajasthan & Anr. (RLR 1989 (2) 217), held that the award of bonus marks as weightage for the experience is valid, however, it held that the bonus

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marks to the extent of 30 marks at the 10 marks for each year of experience is excessive and unreasonable. The Division Bench of this Court held that the weightage to the experienced hands does not violate or frustrate the law laid down by the Hon'ble Supreme Court in Secretary, State of Karnataka V/s Uma Devi (supra), but the State of Rajasthan has, by providing 30 marks, given excessive and unreasonable advantage, which completely rules out the selections of meritorious candidates by direct recruitment and thus, confined these bonus marks with the cap of 15% and answered the question as follows:-

¶71

“As a consequent to the entire discussion above, our answers to the referred questions are as follows:-

¶72

(1)The respondents can make recruitment to the posts in the services concerned even without conducting written examination;

¶73

(2) Weightage in the form of bonus marks against service experience can be given while adhering the eligibility prescribed for various posts under the existing Rule 266 of the Rules of 1996 and there shall be no violation of Articles 14 and 16 of the Constitution of India in the event of extending weightage against service experience;

¶74

(3) The respondents did not commit any wrong while extending weightage in the form of bonus marks against the service experience as per proviso to Rule 23 of the Rules of 1998 and such grant of weightage in no manner is in violation of Rule 15 of the Rules of 1998;

¶75

(4) For providing bonus marks there is no need to make any amendment in the qualification prescribed in the Schedule appended with the Rules of 1998.

¶76

(5) The grant of weightage in the form of bonus marks while making recruitment to the post in the services in question is not at all in contravention of the law laid down in the case of State of Karnataka v. Uma Devi (supra), and it is also not an effort to frustrate the law laid down in the case aforesaid; and

¶77

(6) The grant of bonus marks to the extent of 30 marks is unjust, arbitrary and unfair, hence, is declared illegal and is quashed. The State Government may grant the weightage in

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the form of bonus marks against service experience within the cap of 15 marks.”

¶80

We have our doubt with regard to the award of bonus marks, either as provided by the State Government at 30 marks or as directed by the Division Bench of this Court in Dinesh Kumar Sharma's case (supra) with a cap of 15 marks, as in our view, in direct recruitment to the substantive posts, when the applications are invited from qualified and eligible persons from open market, any weightage given for the services rendered on the same post or in any other post on experience either working as daily wages, adhoc or temporary employees, will cause serious and hostile discrimination to the persons, who are seeking employment by direct recruitment and may have become eligible and applied for the first time. With the award of weightage/bonus marks for experience to the extent of 30 or 15 marks, as the case may be, the candidates, who are qualified and eligible, are likely to suffer invidious and hostile discrimination in selections, which cannot be compromised on the touchstone of Articles 14 and 16 of the Constitution of India.

¶81

In the present case, however no one has challenged the award of bonus marks. In fact, in this entire batch of writ petitions, the candidates having experience in the excluded categories of employments, have rushed and are falling over board to claim weightage of award of bonus marks, to oust the qualified and eligible candidates for direct recruitment. We are informed that the State Government has challenged the judgment of the Division Bench of this Court in Dinesh Kumar Sharma's case (supra) putting the cap of bonus marks at 15. The matter is still pending in the Hon'ble Supreme Court and in which no interim orders have been passed. In view of the challenge in these petitions confined to award of weightage of bonus marks and further, in view of the fact that the entire issue of award of

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bonus marks, for experience gained on daily wages, adhoc and contractual employment is pending in the Supreme Court, we do not wish to express any opinion on the award of bonus marks either at 30 or with the cap of 15 marks and leave the question to be decided by any Division Bench or a Larger Bench, if it is necessary after the matter has been considered by the Apex Court.

¶84

One of the questions raised in this batch of writ petitions is by those categories of persons, who are either having experience to be counted for award of bonus marks, and which fall within the experience under Rule 2(k) or otherwise, in which the employment was provided through the placement agency. Rule 25 of the Rules of 2013 as well as the advertisement does not count the experience in the categories of employments, which are not included in Rule 2(k) or which have been excluded from Rule 2(k) read with Rule 25 of the Rules of 2013. The persons recruited through the placement Agency have not been considered to be eligible for award of bonus marks. We are relieved from considering the challenge to the exclusion of the category of employees, who are otherwise entitled to count their experience as defined under Rule 2(k), but are not eligible to count such experience for weightage as they were recruited through placement agencies, as this question has been considered by the Division Bench of this Court in

¶85

Mitendra Singh Rathore and ors. V/s State of Rajasthan and

¶86

ors. (D.B.Civil Writ Petition No.1723/2013) and other connected matters decided on 30.7.2013. The Division Bench has in paragraphs 13, 14 and 15 held that the experience earned in the employment in the schemes run by the State Government, if such persons have been employed through the placement agencies, is not in any manner different than the experience of the persons employed otherwise than by a recruitment agency. The main requirement of the statutory weightage is the experience on certain posts in the schemes and not

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the mode by which such employment was secured. The Division Bench was concerned with the recruitment of staff under the Rajasthan Panchayati Raj Rules, 1996 made under the Rajasthan Panchayati Raj Act, 1994. The Rules provide for appointment on the post of Lower Division Clerk, for which the experience on the post of Junior Technical Assistant, Junior Engineer, Gram Rozgar Sahayak, Data Entry Operator, Computer Operator with Machine, Lekha Sahayak, Lower Division Clerk, Coordinator IEC, Coordinator Training and Coordinator Supervision, other than through placement agency, in MGNREGA or any other scheme of the Department of Rural Development and Panchayati Raj in the State, was provided to be sufficient. The Rules however excluded the experience in service in respect of any of the aforesaid posts, where the employment has been secured through a placement agency. In paragraph 15, the Division Bench of this Court held as follows:-

¶89

“15. The distinction sought to be made with the persons employed through the placement agencies is that those were under the control of the placement agencies and, as such, necessary details pertaining to their experience were with the placement agencies only. Much emphasis is given by the respondents that the State Government or the Panchayati Raj Institutions, as the case may be, entered into agreement with the placement agencies leaving it open for the placement agencies to accomplish the task given through the persons employed by that agency without definite identification of the person concern by the Panchayati Raj Institution. The stand taken by the respondents is not at all acceptable at its face. It is not in dispute that the placement agencies are nothing but contractor to supply labour force. The roll of the labour force supplied through contractor is available with the principal employer i.e. the State Government and different Panchayati Raj Institutions who availed services of such persons through placement agencies. The State Government, as such, is having all necessary details with regard to the work done by the persons employed through the placement agencies. On having these details, measurement of the experience acquired by the

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persons rendering service in MGNREGA or under different schemes relating to Department of Rural Development and Panchayati Raj can very well be assessed by the respondents. In any case, this procedural problem can not be a reason valid to make an unreasonable classification. At this stage it is also pertinent to note that the Panchayat Raj Institutions have already issued experience certificates to the persons employed through placement agencies.”

¶92

We are in agreement with the reasoning given by the Division Bench of this Court in Mitendra Singh Rathore's case (supra), which is even otherwise, a binding precedent for the Coordinate Bench. We thus hold that the experience on the posts referred to in Rule 2(k) of the Rules of 2013, will not be excluded even if the appointments have been made on the posts through the Placement Agency.

¶93

It is submitted by learned counsel appearing for the petitioners that the experience in various categories of posts, namely, Prerak/Nodal Prerak in the National Literacy Programme, Mobile Teachers in the Schools run by Bharti Telecom, under the Sarva Shiksha Abhiyan, Computer Operators/Instructors, Caregivers and Resource Teachers for physically disabled students under the Sarva Shiksha Abhiyan, Vidhyarthi Mitra, Aanganwari Workers, Girl Child Motivators, Teachers in Kasturba Gandhi Residential Balika Vidhyalaya, Motivators in the Labour Schools, Prabodhak in District Programme Education Project and under Lok Jumbish and the Teachers of various other categories in Sarva Shiksha Abhiyan, has been illegally and arbitrarily ignored for giving weightage violating their rights under Articles 14 and 16 of the Constitution of India.

¶94

It is submitted that the experience gained in any Government School/Government Educational Projects viz. Lok Jumbish Pariyojana/Sarva Shiksha Abhiyan/District Primary Education Programme/Rajiv Gandhi Pathshala/Shiksha Karmi Board and Madarsa listed under the Madarsa Board is quantitatively and qualitatively the same experience, related to education and various educational projects

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and thus the exclusion of weightage in such employments, causes hostile discrimination to the petitioners. Broadly speaking, it is stated that non-consideration or exclusion of experience gained by the following categories of persons for the purpose of giving weightage on the post of Education Assistant under the Rules of 2013, is discriminatory:-

¶97

“(1) Non-consideration of experience of Private School.

¶98

(2) Non-consideration of experience in Informal Education Centre.

¶99

(3) Non-consideration of experience of Aanganwari Workers.

¶100

(4) Non-consideration of experience of School Coordinator (Computer Teacher) in Government School through “Placement Agency”

¶101

(5) Non-consideration of experience of Resource Teacher in Government School (Through Placement Agency).

¶102

(6) Non-consideration of experience of Prerak in Sakshar Bharat Karyakarma.

¶103

(7) Non-consideration of experience of Computer Assistant in Government School.

¶104

(8) Non-consideration of experience of Teacher/Assistant Teacher/ Education Instructor in Special Child Labour School (Private School) through Placement Agency.

¶105

(9) Non-consideration of experience of Instructor under the State Government.

¶106

(10) Non-consideration of experience of Lecturer under the State Government.”

¶107

Before proceeding to consider the submissions made at the Bar by learned counsels appearing for the parties, we may observe with some benefit the judgments rendered by learned Single Judges of this Court in the matters of the categories of petitioners, who were appointed as Resource Teachers or Caregivers in Sarva Shiksha Abhiyan. They had filed S.B.Civil Writ Petition No.7178/2011 Radha Rani V/s State of Rajasthan & ors. and other writ-petitions, which were disposed of on 4.8.2011. In these writ petitions, the directions issued by the respondents on 22.2.2011 to all the District Coordinators

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that Resource Teachers and Caregivers continued till 15.5.2011 and from 1.7.2011, new Resource Teachers and Caregivers should be given appointment, had come up for consideration. Following the judgment of Single Bench of this Court in Mooli Devi Choudhary & ors. V/s State of Rajasthan & ors. (S.B.Civil Writ Petition No.6568/2010 decided on 25.8.2010 and reported in 2010 WLC (4) Raj. 334), where the case of Vidhyarthi Mitra had come up for consideration and it was held that Vidhyarthi Mitra do not have any right to hold the posts as their employment was of contractual nature, it was held by learned Single Judge that the Caregivers, who are not in possession of requisite qualification of the post of Resource Teacher, will have no right to continue, as the scheme/project has been changed and which does not provide for any Caregiver in the scheme/project. However, if the respondents try to engage any new persons, to undertake the work of Caregiver with different nomenclature, then the Caregivers will be given preference to continue. The respondents will also not engage the petitioners through the Placement Agency and they will be allowed to continue until the life of the project, but the respondents would be entitled to replace the petitioners by regularly selected appointees and in such case, the principle of ' last come first go' will be applied at district level. The respondents will be at liberty to discontinue the petitioners, if their services are not found to be satisfactory or they commit misconduct, while discharging their duties and further that they will not be entitled for salary of summer vacation.

¶110

In Mooli Devi's case (supra), learned Single Judge of this Court held that the employment of Teachers for Sarva Shiksha Abhiyan or Kasturba Gandhi Balika Vidhyalaya is a sovereign function of imparting education by the State Government or the Central Government and such sovereign function including employment of teachers for imparting education cannot be delegated to the private placement

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agencies by the State Government. It was held that since no law has been enacted nor any guidelines or parameters have been made for selection through private placement agencies, therefore, the practice of giving away such contract by the State Government to the private placement agencies is unconstitutional and cannot be sustained and that such employees cannot be treated as employees of the private placement agencies, whether such projects are financed by the Central Government or the State Government or any other agency. The Court further held that Sarva Shiksha and Kasturba Gandhi Balika Vidhaylaya is not a project of limited tenure or period and thus, the non-availability of funds cannot be a ground to discontinue the said educational programmes and such programmes even with or without the change of name, have to be continued to give effect to the provisions of the Right to Children to Free and Compulsory Education Act, 2009 and Article 21A of the Constitution of India. With the Act of 2009 having coming into force, the appropriate Government should adopt the uniform employment policy for teachers and other staff. It was further held that fixed term contract of service for the Teachers in Sarva Shiksha Abhiyan or Kasturba Gandhi Balika Vidhyalaya Projects on year to year basis by different placement agencies with no assured continuity of employment, is not justified nor is a legally sustainable project.

¶113

The qualifications of Teachers in the primary schools are now regulated by the Regulations framed under the National Council for Teacher Education Act, 1993. These Regulations provide for the Teachers Eligibility Test (TET). It has been consistently held by the Hon'ble Supreme Court that any other qualification including the qualifications for teaching higher classes, namely, BTC or B.Ed, are not sufficient, to be allowed for primary teaching. The Regulations made by the National Council for Teachers Education, have to prevail over all

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other Acts. The State Government cannot over ride the qualifications laid down by the National Council for Teachers Education by prescribing any lower qualifications or any other tests for teaching in primary schools. In Shiv Kumar Sharma V/s State of U.P. & others (Civil Misc.Writ Petition No.12908 of 2013) and other connected matters, the Full Bench of Allahabad High Court presided by one of us (Hon'ble Mr.Justice Sunil Ambwani), had considered the question as to whether the Teacher Eligibility Test (TET) is an essential qualification, that has to be possessed by every candidate, who seeks appointment as a Teacher of elementary education in Classes 1 to 5 as per Notification dated 23.8.2010, which is within the powers of the NCTE under section 23(1) of the 2009 Act. It was held that imparting of compulsory and free education is part of a sovereign function after being included as a fundamental right under Article 21-A of the Constitution of India. Even otherwise its importance does not get diluted and as such the Central Government is under an obligation to provide free and compulsory education. The Central Government therefore in exercise of its competence has brought about a legislation and has conferred powers on the Academic Authority to execute the same. An amendment was brought in the National Council for Teacher Education Act, 1993 through Act No. 18 of 2011 enforced from 12th October, 2011 whereby the qualifications of school teachers under section 12-A was incorporated as follows:-

¶116

"12A. For the purpose of maintaining standards of education in schools, the Council may, by regulations, determine the qualifications of persons for being recruited as teachers in any pre-primary, primary, upper primary, secondary, senior secondary or intermediate school or college, by whatever name called, established, run, aided or recognised by the Central Government or a State Government or a local or other authority:

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Provided that nothing in this section shall adversely affect the continuance of any person recruited in any pre-primary, primary, upper primary, secondary, senior secondary or intermediate schools or colleges, under any rule, regulation or order made by the Central Government, a State Government, a local or other authority, immediately before the commencement of the National Council for Teacher Education (Amendment) Act, 2011 solely on the ground of non-fulfilment of such qualifications as may be specified by the Council: Provided further that the minimum qualifications of a teacher referred to in the first proviso shall be acquired within the period specified in this Act or under the Right of Children to Free and Compulsory Education Act, 2009."

¶119

Thus, it was held by the Full Bench that in addition to the provisions of the Act of 2009, the amendment incorporated in Section 12A has reemphasised the authority of the National Council of Teacher Education to fix norms and qualifications that are to be possessed by Teachers of all categories of institutions including elementary education. It was thereafter, held as follows:-

¶120

“1. The teacher eligibility test is an essential qualification that has to be possessed by every candidate who seeks appointment as a teacher of elementary education in Classes 1 to 5 as per the notification dated 23.8.2010 which notification is within the powers of the NCTE under Section 23(1) of the 2009 Act.

¶121

Clause 3(a) of the notification dated 23.8.2010 is an integral part of the notification and cannot be read in isolation so as to exempt such candidates who are described in the said clause to be possessed of qualifications from the teacher eligibility test.”

¶122

In order to find out the purpose for providing for Rajasthan Education Assistant Service by the statutory Rules of 2013, which according to the qualifications prescribed in the Schedule, namely, Secondary from Board of Secondary Education, Rajasthan or its equivalent, cannot be a substitute for TET qualification, we

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had directed the State Government on 8.9.2014 to file an additional affidavit, giving out the duties and functions to be discharged by the Education Assistants. In response, an additional affidavit of Pradeep Kumar, District Education Officer (E.E.), Legal Jaipur-II has been filed in which the reliance has been placed on the declaration at point N,.180 of the budget of the year 2013-14 given by the then Hon'ble Chief Minister as follows:-

¶125

" शै��क ग�त�व�धय� को अ�धक �भावी बनाने के उ�े�य से �ारि�भीक �श�ा के अंतग�त " शै��क सहयक� " के एक नये संवग� क� म� घोषणा करता हूं 1 शै��क सहायक� �ारा मु�यत : �कूल नह�ं जाने वाले ब�च� का सव� कर , उ�ह� �कूल म� �वेश लेने हेतु �े�रत करने , �ॉपआउ�स क� �े�कंग करने एवं �मड - डे - मील �यव�था संभालने के साथ - साथ अनुशासन , �व�छता एवं सहशै��क ग�त�व�धय� के संचालन इ�या�द का काय� �कया जायेगा 1 आगामी वष� 40 हजार शै��क सहायक� के पद सृिजत कर , �नय�मत �नयु��यां क� जायेगी 1"

¶126

The paragraph-4 of the additional affidavit gives the nature of duties and responsibilities of Education Assistant and which does not provide for teaching in the primary schools. The cadre of Education Assistant has been created to employ qualified and eligible persons to carry out the survey of the children, who are not going to the school, tracking the drop-outs from the school, engcouraging them to take admission, managing the mid-day meal and to maintain discipline, hygiene and co-educational activities, for which it was provided that in the next year i.e. 2014-15, posts of 40,000 Education Assistants will be created and regular employment will be given to them.

¶127

In the aforesaid backdrop, learned counsels appearing for the petitioners have challenged the Rules 15 and 25 of the Rules of 2013 contending that exclusion of experience for giving weightage by way of bonus marks in respect of various categories of employments detailed as above, namely, Preraks in the Non-formal Programme, Teachers in the Schools run by Bharti Telecom, under the Sarva Shisksha

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Abhiyan, Computer Operators in the Sarva Shiksha Abhiyan, employees under the Integrated Child Development Scheme (ICDS) , Aanganwari Workers , Caregivers under the Sarva Shiksha Abhiyan, Girl Child Motivators, Wardens, Assistant Wardens and other employees serving in Kasturba Gandhi Residential Balika Vidhyalaya, employees of the Labour Schools and Airtel Schools , is discriminatory. It is submitted that considering the nature of work, detailed as above in the additional affidavit filed by the State Government, in which the budget speech of the then Hon'ble Chief Minister of the year 2013-14 has been quoted, there is no rational or intelligible differentia in excluding the petitioners from the weightage to be given of 10 marks for each year of experience on completing one year, subject to total of 30 marks. It is submitted that considering the nature of duties and responsibilities to be performed by the Education Assistants, namely, the survey of children, who do not go to school, motivating the children to take admission in the primary schools, tracking the drop-outs, managing the mid-day meal and maintaining hygiene as well as coordinating and cooperating with the Teachers in the primary schools, all the petitioners have the requisite experience, as in the case of persons, who have gained experience in any Government School/Government Educational Projects viz. Lok Jumbish Pariyojana/Sarva Shiksha Abhiyan/District Primary Education Programme/Rajiv Gandhi Pathshala/Shiksha Karmi Board and Madarsa listed under the Madarsa Board. It is contended that there is absolutely no object to be achieved in excluding the petitioners' employment for the purposes of giving weightage to their experience, as also discriminating them in giving weightage in the age relaxation for the period for which they have served under proviso (x) of Rule 15 of the Rules of 2013.

¶130

Learned counsels appearing for the petitioners have relied on the

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judgment in State of Madhya Pradesh V/s Rakesh Kohli and anr. ((2012) 6 SCC 312), in which the Supreme Court has relied on its leading judgment in Mohd. Hanif Quareshi and Ors. v. State of Bihar (AIR 1958 SC 731) in reiterating that while dealing with the meaning, scope and effect of Article 14, to pass the test of permissible classification, two conditions must be fulfilled, namely, (i) the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and (ii) such differentia must have rational relation to the object sought to be achieved by the statute in question. The classification might be founded on different basis, namely, geographical or according to objects or occupations or the like and what is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration.

¶133

In Mohd.Hanif Qureshi's case (supra), a Constitution Bench of the Supreme Court held in para 15 as follows:-

¶134

”15....The courts, it is accepted, must presume that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds. It must be borne in mind that the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest and finally that in order to sustain the presumption of constitutionality the Court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation.”

¶135

In the reply filed by the respondents, the reasons for denying the categories of employees except those of which experience has to be counted for awarding bonus marks under Rule 2(k) of the Rules of 2013, are given as follows:-

¶136

“A bare perusal of the relief sought by the petitioners would go to show that the petitioners have come with these averments that they were initially appointed as “Preraks” known with different denominations like-Nodal Prerak etc. under the Scheme known as Satat Shiksha Karmi, which is a Non-Formal Education.

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So far as the eligibility of these Preraks mentioned under the above categories, such persons are engaged under a Scheme known as “Satat Shiksha Karyakarm”. The Non-Formal Educational Centers like this one, cannot be equated with the Primary School which are regularly run by the Education Department of the State Government. The nature of work of the persons engaged in such Non-Formal Education and the Primary School Teachers are not identical. The method of appointment, source of recruitment, method of teaching, hours of teaching and the mode of payment are entirely different.

¶139

The aforesaid view has been taken by the Hon'ble Apex Court in a judgment dated 19.07.1996, rendered by the Hon'ble Apex Court in the case of State of West Bengal & others Vs. Monirujjaman Mullick & ors., wherein the Hon'ble Apex Court was pleaded to decide the issue by observing under:-

¶140

“We are of the view that the non-formal education centers cannot be equated with the primary schools which are regularly run by the Education Department of the State Government. Apart from the basic qualitative differences between the two institutions even the nature of work of the non-formal instructors and the primary school teachers is not identical. The method of appointment, the source of recruitment, method of teaching, hours of teaching and the mode of payment are entirely different.”

¶141

Thus, the Preraks, broadly speaking, have not been included consciously under the provisions of the “Rajasthan Education Assistant Services Rules, 2013 (hereinafter referred to as the Rules of 2013.).

¶142

That, not only the petitioners but few of the other similar categories, which were not found eligible to take benefit of preference/weightage/bonus, which are as under:-

¶143

(i) Sarva Shiksha Abhiyan:

¶144

Computer Operators were appointed by placement agency on the basis of contract and these employees are working under Sarva Shiksha Abhiyan. The work of teaching has not been assigned to the above mentioned Computer Operators working in SSA.

¶145

(ii) Integrated Child Development Scheme (ICDS) ( म�हला एवंम बाल �वकास )

¶146

The candidate/employees were appointed by the different Gram

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Panchayats, thus they are not covered under Rule 25. The employees working in ICDS relates to Women and Child Development, hence the employees working under ICDS do not teach. Therefore, their experience cannot be counted for the purpose of Education Assistant.

¶149

(iii) Literacy:

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Prerak and Assistant Prerak are appointed by different Gram Panchayats, these employees are guided by Gram Panchayat, they are not directly related to Education Department.

¶151

(iv) Kasturba Gandhi Balika Vidhyalaya:

¶152

In the above mentioned Institutes Warden and Assistant Warden are appointed by the Placement Agency, the duty of the Warden is to look after the Hostlers and there is no work of teaching by these employees.

¶153

(v) Labour Schools:

¶154

In these schools the candidates/employees are appointed through placement agency, their work is to spread awareness to Labour Children towards education and also spread awareness/guidance to their parents about the education and study. These employees visit at the Chokhati where the labourers gather for daily labour and wages. These Labour Schools are run by the NGOs.

¶155

(vi) Airtel Schools

¶156

An MOU (Memorandum of Understanding) was executed between State Government and Bhartiya Foundation. This Bhartiya Foundation funded by Airtel Company adopted a few government schools in the District of Alwar and Jaipur. Under this MOU the government building of school is provided by State Government and Teacher and Staff are provided by the Bhartiya Foundation. These schools have been named as Satya Bharti Government Schools.

¶157

(vii) Care Giver under Sarva Shiksha Abhiyan (SSA)

¶158

These employees work for the betterment of visually impaired and handicapped children, their work is not directly related to teaching. Hence, their experience cannot be counted for the purpose of Education Assistant.

¶159

(viii) Anganbari Workers:

¶160

These Anganbari Workers are appointed by the respective Gram

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Panchayats, they work for pre-school children. They help in bringing-up younger siblings so that the older siblings of the family may go to schools. These Anganbari Workers prepared the children so that they may go to school and their education may be started. These employees are not at all related to imparting of education in the government schools. Hence, there is no reason to count their experience for the purpose of Education Assistant.”

¶163

It is submitted by learned Additional Advocate General that the Scheme of the Rules of 2013 provides for counting the experience of only those employees, who have gained experience in any Government School/ Government Educational Projects viz. Lok Jumbish Pariyojana/Sarva Shiksha Abhiyan/District Primary Education Programme/Rajiv Gandhi Pathshala/Shiksha Karmi Board and Madarsa listed under the Madarsa Board. The experience gained by such employees is directly in the schools or projects initiated, supervised and funded by the State Government. They have worked under the supervision and control of the State Government and they were selected by a selection procedure in which the selection committees were constituted of the State Government employees. All such persons receive their salary directly from the State exchequer. As compared to the petitioners, who may have served under the Government sponsored programmes, but were not the employees of the State Government, the experience of only those persons have been counted, who have served directly under the control and supervision of the State Government and for that purpose, they have also been given the age relaxation to the extent that they were within the prescribed age under the Rules, at the time of their appointment, if they have continuously worked.

¶164

Learned Additional Advocate General has relied on the explanation of the scope of Articles 14 and 16(1) in State of Kerala V/s N.M.Thomas ((1976) 2 SCC 310), where explaining the fundamental rights guaranteed under Articles 14 and 16(1) of the

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Constitution of India, the Supreme Court held in paragraphs 21, 24, 25, 27, 28 and 34 as follows:-

¶167

“21. Articles 14, 15 and 16 form part of a string of constitutionally guaranteed rights. These rights supplement each other. Article 16 which ensures to all citizens equality of opportunity in matters relating to employment is an incident of guarantee of equality contained in Article 14. Article 16(1) gives effect to Article 14. Both Articles 14 and 16(1) permit reasonable classification having a nexus to the objects to be achieved. Under Article 16 there can be a reasonable classification of the employees in matters relating to employment or appointment.

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Discrimination is the essence of classification. Equality is violated if it rests on unreasonable basis. The concept of equality has an inherent limitation arising from the very nature of the constitutional guarantee. Those who are similarly circumstanced are entitled to an equal treatment. Equality is amongst equals. Classification is, therefore, to be founded on substantial differences which distinguish persons grouped together from those left out of the groups and such differential attributes must bear a just and rational relation to the object sought to be achieved.

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The crux of the matter is whether Rule 13AA and the two orders Exhibits P-2 and P-6 are unconstitutional violating Article 16(1). Article 16(1) speaks of equality of opportunity in matters relating to employment or appointment under the State. The impeached Rule and orders relate to Promotion from Lower Division Clerks to Upper Division Clerks. Promotion depends upon passing the test within two years in all cases and exemption is granted to members of Scheduled Castes and Scheduled Tribes for a longer period namely, four years. If there is a rational classification consistent with the purpose for which such classification is made equality is not violated. The categories of classification for purposes of promotion can never be closed on the contention that they are all members of the same cadre in service. If classification is made on educational qualifications for purposes of promotion or if classification is made on the ground that the persons are not similarly circumstanced in regard to

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their entry into employment, such classification can be justified. Classification between direct recruits and promotees for purposes of promotion has been held to be reasonable in C. A. Rajendran v. Union of India.

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There is no denial of equality of opportunity unless the person who complains of discrimination is equally situated with the person or persons who are alleged to have been favoured. Article 16(1) does not bar a reasonable classification of employees or reasonable tests for their selection State of Mysore v. V. P. Narasinga Rao.

¶173

This equality of opportunity need not be confused with absolute equality. Article 16(1) does not prohibit the prescription of reasonable rules for selection to any employment or appointment to any office. In regard to employment, like other terms and conditions associated with and incidental to it, the promotion to a selection post is also included in the matters relating to employment and even in regard to such a promotion to a selection post all that Article 16(1) guarantees is equality of opportunity to all citizens. Articles 16(1) and (2) give effect to equality before law guaranteed by Article 14 and to the prohibition of discrimination guaranteed by Article 15(1). Promotion to selection post is covered by Article 16(1) and (2).

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The equality of opportunity takes within its fold all stages of service from initial appointment to its termination including promotion but it does not prohibit the prescription of reasonable rules for selection and promotion, applicable to all members of a classified group. Ganga Ram v. Union of India.”

¶175

Learned Additional Advocate General has also relied upon a judgment of the Supreme Court in State of Kerala V/s M.K.Krishnan Nair ((1978) 1 SCC 552) in which it was held in paragraph 10 as follows:-

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“It may be stated that by way of deriving support for its finding that there had come into existence a complete integrated Judicial Service in the State of Kerala prior to February 12, 1973, the High Court has pointed out that in a Full Bench decision of that Court in P.S. Menon's case, (supra), the Full

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Bench has in connection with the 1959 (Rules in G. 0. MS 851 dated September 24, 1959) observed that the said Rules had been framed for the absorption of the personnel, who were occupying the posts of District Magistrates and Sub Divisional Magistrates into the Civil Judiciary. The High Court has further pointed out that when P. S. Menon's case (supra) was carried to the Supreme Court in appeal, even this Court in its judgment has referred to the ad hoe Rules framed on February 11, 1966 as being meant for absorption of the Criminal Side Judicial Officers of the Travancore-Cochin Branch who were kept in the separate cadre into Civil Judiciary. The observations of the Kerala High Court in the Full Bench decision in connection with the 1959 Rules in G. 0. MS 851 and of this Court in connection with the 1966 ad hoc Rules are obviously correct, but, as discussed earlier., both these Rules had a limited operation effecting a partial absorption of such of the incumbents of the eleven posts which were kept in a separate cadre who were to be found suitable by the High Court into Civil Judiciary; but from this fact it is impossible to draw the inference that there had come into existence a complete integrated Judicial Service in the entire State of Kerala in the sense that all posts on the Magisterial Side had got integrated with those on the Civil Side. On the other hand the very fact that there have been in operation three separate sets of Rules, namely, (1) the Kerala State Higher Judicial Service Rules 1961 (dealing only with District and Sessions Judges) (2) the Kerala Subordinate Magisterial Judicial Sevice Rules 1962 and (3) the Kerala State Judicial Service Rules (Special Rules) of October 5, 1966, shows that there was no integration of the Judicial Magisterial posts with Judicial Civil posts. If that be so, there will be no question of singling out of certain posts from any integrated service for a separate, avenue of promotion under Exhs. PI and P2 respectively as contended for by the petitioner and the scheme of bifurcation as contained in Exhs. PI and P2 cannot be regarded as being violative of either-Art. 14 or Art. 16. In this view of the matter it is unnecessary for us to deal with the decision of this Court in State of Mysore v. Krishna Murthy & Ors. (supra), on which reliance was placed by counsel for the original petitioner, for, the ratio of that decision would be inapplicable to the instant case. in that case on an

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examination of the Mysore State Accounts Services' 882 Cadre and Recruitment Rules, 1959, the High Court had come to the conclusion, which was accepted by this Court, that there was a clear and complete integration brought about between the P.W.D. Accounts unit and the Local Fund Audit. unit under the common administrative control of the Controller of State Accounts, the qualifications and status of the officers of the formerly separate units being identical, their work being of the same nature, the recruiting authorities being the same and the standards observed and tests prescribed for entry into the formerly separate units being identical and as such the impugned Notifications which resulted in a striking disparity in the promotional opportunities between the officers of the two wings in the, same category were struck down. In the instant case before us, we are clearly of the view that prior to the introduction of the scheme of bifurcation as per Exhs. PI and P2 a complete integrated Judicial Service in the State of Kerala in the sense that all Magisterial posts on the Criminal Side (all District Magistrates and Sub Divisional Magistrates) had got integrated with the posts of Sub Judges and Munsiffs on the Civil Side, had not come into existence and, therefore, in the absence of such a complete integrated Judicial Service having come into existence, it was open to the State Government to bifurcate the service into two Wings-Civil and Criminal-in the manner done under Exhs. PI and P2 respectively and to provide for a particular type of option specified therein and no violation of Arts. 14 and 16 is involved.'

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It is submitted that in the Constitution Bench judgment of the Supreme Court in Special Courts Bill, 1978, In re, 1979 (1) SCC 380, it was held that the first part of Article 14, which was adopted from the Irish Constitution, is a declaration of equality of the civil rights enshrining the basic principle of republicanism. The second part is corollary of the first and based on the last clause of the first section of Fourteenth Amendment of the American Constitution, which enjoins that equal protection shall be and liberties without discrimination or favouratism. It is a pledge of the protection of equal laws, that is laws

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that operate alike on all persons under like circumstances. The State in the exercise of its powers, has of necessity, to make laws operating differently for different groups or classes of persons within its territory to attain particular ends in giving effect to its policies, and it must possess for that purpose the large powers of distinguishing and classifying persons or things to be subjected to such laws. The classification need not be constituted by an exact or scientific exclusion or inclusion of persons or things. The Courts should not insist on delusive exactness or apply doctrinaire tests for determining the validity or classification. A classification is justified, if it is not palpably arbitrary.

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Learned Additional Advocate General has also relied on the judgment of the Supreme Court in Om Kumar V/s Union of India ((2001)2 SCC 386), in which it was held in paragraph 32 as follows:-

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“32. So far as Article 14 is concerned, the courts in India examined whether the classification was based on intelligible differentia and whether the differentia had a reasonable nexus with the object of the legislation. Obviously, when the courts considered the question whether the classification was based on intelligible differentia, the courts were examining the validity of the differences and the adequacy of the differences. This is again nothing but the principle of proportionality. There are also cases where legislation or rules have been struck down as being arbitrary in the sense of being unreasonable. [see Air India v. Nergesh Meerza (SCC at pp.372-373)]. But this latter aspect of striking down legislation only on the basis of “arbitrariness” has been doubted in State of A.P. v. McDowell and Co. ”

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Learned Additional Advocate General has cited the judgment in National Council for Teacher Educational V/s Shri Shyam Shiksha Prashikshan Sansthan ((2011) 3 SCC 238), in which the Supreme Court held in para 22 as follows:-

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“22. Article 14 forbids class legislation but permits reasonable classification provided that it is founded on an intelligible

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differentia which distinguishes persons or things that are grouped together from those that are left out of the group and the differentia has a rational nexus to the object sought to be achieved by the legislation in question. In re the Special Courts Bill, 1978 (1979) 1 SCC 380, Chandrachud, C.J., speaking for majority of the Court adverted to large number of judicial precedents involving interpretation of Article 14 and culled out several propositions including the following: (SCC pp.424-25, para 72)

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"72.(2) The State, in the exercise of its governmental power, has of necessity to make laws operating differently on different groups or classes of persons within its territory to attain particular ends in giving effect to its policies, and it must possess for that purpose large powers of distinguishing and classifying persons or things to be subjected to such laws.

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(3) The constitutional command to the State to afford equal protection of its laws sets a goal not attainable by the invention and application of a precise formula. Therefore, classification need not be constituted by an exact or scientific exclusion or inclusion of persons or things. The courts should not insist on delusive exactness or apply doctrinaire tests for determining the 26 validity of classification in any given case. Classification is justified if it is not palpably arbitrary.

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(4) The principle underlying the guarantee of Article 14 is not that the same rules of law should be applicable to all persons within the Indian territory or that the same remedies should be made available to them irrespective of differences of circumstances. It only means that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. Equal laws would have to be applied to all in the same situation, and there should be no discrimination between one person and another if as regards the subject-matter of the legislation their position is substantially the same.

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(5) By the process of classification, the State has the power of determining who should be regarded as a class for purposes of legislation and in relation to a law enacted on a

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particular subject. This power, no doubt, in some degree is likely to produce some inequality; but if a law deals with the liberties of a number of well defined classes, it is not open to the charge of denial of equal protection on the ground that it has no application to other persons. Classification thus means segregation in classes which have a systematic relation, usually found in common properties and characteristics. It postulates a rational basis and does not mean herding together of certain persons and classes arbitrarily.

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(6) The law can make and set apart the classes according to the needs and exigencies of the society and as suggested by experience. It can recognise even degree of evil, but the classification should never be arbitrary, artificial or evasive.

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(7) The classification must not be arbitrary but must be rational, that is to say, it must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable relation to the object of the legislation. In order to pass the test, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others and (2) that that differentia must have a rational relation to the object sought to be achieved by the Act."

¶198

We have considered the submissions and the claim for counting the experience gained by the petitioners in the employments detailed as above and the alleged discrimination caused with the experience of those persons, who have worked under the categories of employments given in Rule 2(k) of the Rules of 2013. We do not find any force in the contention of learned counsels appearing for the petitioners that their experience in the employments under various schemes, which were not directly under the control and supervision of the State Government and for which they were not receiving their pay and allowances directly from the State Government, should be counted and that non-

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consideration of their experience causes discrimination violating Articles 14 and 16 of the Constitution of India.

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In Kallakkurichi Taluk Retired Officials Assn. V/s State of

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T.N. ((2013) 2 SCC 772), the Supreme Court examined the concept of valid classification and held that a valid classification is based on a just objective. The result to be achieved by the just objective per-supposes, the choice of some for differential consideration/treatment over others. A classification to be valid must necessarily satisfy two tests. Firstly, the distinguishing rational has to be based on a just objective and secondly, the choice of differentiating one set of persons from another, must have a reasonable nexus to the objective sought to be achieved. Legalistically, the test for a valid classification may be summarized as a distinction based on a classification founded on an intelligible differentia, which has a rational relationship with the object sought to be achieved.

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In State of M.P. V/s Rakesh Kohli (supra), the Supreme Court reiterated the tests of the permissible classification laid down in Mohd.Hanif Qureshi V/s State of Bihar (supra), in which it was held that there is always a presumption in favour of constitutionality of an enactment and the burden is upon him, who attacks it, to show that there has been clear violation of the constitutional principles. The Court must presume that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds. It must be borne in mind that the legislature is free to recognize degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest and finally that in order to sustain the presumption of constitutionality the Court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume

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every state of facts, which can be conceived existing at the time of legislation.

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We find substance in the contention of learned Additional Advocate General that the State Government was fully conscious of giving weightage of experience to only those persons, who had experience of serving in the Government School/Government Educational Projects viz. Lok Jumbish Pariyojana/ Sarva Shiksha Abhiyan/District Primary Education Programme/Rajiv Gandhi Pathshala/Shiksha Karmi Board and Madarsa listed under the Madarsa Board and thus the State Government purposely included employees of such categories of employments, which are connected and related to school education under its direct control and supervision and the wages were paid by the State Government. All other categories of employment not connected with school education were purposely excluded. The non-formal education projects and the projects, which were not directly connected with school education and were not run and managed, even if part of the funds were provided for such projects by the State Government, namely, Integrated Child Development Scheme, Sarva Shiksha Abhiyan, Kasturba Gandhi Balika Vidhayala, Labour Schools, Airtel Schools, Caregivers under Sarva Shiksha Abhiyan, Girl Child Motivators and Aanganwari Workers, were excluded for counting their experience for weightage.

¶207

The Preraks were working in a Non-formal Education Programme. The method of appointment, source of recruitment, method of teaching, hours of teaching and mode of payment of Preraks are entirely different than the persons, who were working or coordinating in teaching in the Government Schools. The Computer Operators are appointed in Sarva Shiksha Abhiyan by the Placement Agencies alongwith computer for providing computer instructions to the students. The nature of their employment has been considered in detail

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by learned Single Jude of this Court in Rajeshwar Singh and ors. V/s State of State and ors. (S.B.Civil Writ Petition No.12448/2009 and other connected writ petitions decided on 15^th September, 2011). Learned Single Judge held that since the State Government was not having requisite infrastructure in the shape of computer lab etc., to implement the policy for providing computer education, it framed a policy and invited tenders (for short, NIT) to engage a company to provide computers and adequate number of Computer Instructors. The Company has provided computers and Instructors and that some of the Instructors also taught computer subject, which is essential and compulsory subject in the syllabus of the Board of Secondary Education, Rajasthan, Ajmer for Classes-IX to XII. For considering the permanency of the requirement, learned Single Judge observed that it has become necessary for the State Government to do away with the system of engaging agency/company in computer and to sanction a cadre of Computer Instructors for which regular appointments can be made. Learned Single Judge did not interfere with the agreement, under which the Computer Instructors were working on a low amount of Rs.2000/- or 2500/- p.m. and recommended that even if the State Government wants to engage Computer Instructors with computers, the State Government must shoulder financial responsibility to increase the remuneration adequately. The judgment clearly shows that though the State Government is continuing with the policy of engaging Computer Instructors on contract through the private agency, and that such Computer Instructors are being paid ridiculously low wages, which is less than minimum wages for an unskilled labour, the Computer Instructors working under the Programme are not directly connected with school education and are not Government servants nor they are working under the direct control and supervision of the State Government. Their experience of teaching computer subject as well as

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maintaining the computers, was not considered sufficient for giving them weightage for direct recruitment as Education Assistant. There is nothing wrong in the decision of the State Government to exclude such appointment for weightage of its experience under the Rules of 2013.

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The Aanganwari Workers under the Integrated Child Development Scheme are appointed by the Gram Panchayats. They carry out the work of integrated child development including their health and primary education. Such employees, however, are employees of Gram Panchayats and paid by the funds placed in the hands of the Gram Panchayats. They are not concerned with school education nor are working under the control and supervision of the State Government nor directly paid by the State Government through Education Department, looking after the primary education.

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The Kasturba Gandhi Balika Vidhayalas are run under the Scheme of development of the girl child belonging to the Backward Classes and communities living below the poverty line. These are fully residential Schools for the Classes-VI to VIII for the girls living in rural and backward classes under poverty for their overall development. In the State of Rajasthan, 145 Schools of Kasturba Gandhi Residential Balika Vidhayala of Model-I, and 55 Kasturba Gandhi Residential Balika Vidhyalas are operational, in which the girls from backward areas and living in poverty are admitted and given admission from Classes-VI to VIII. The staff of these Schools are appointed by deputation of the Government Teachers and through the Placement Agencies under the terms and conditions provided under the Scheme. The Wardens, Assistant Wardens and Teachers appointed through the Placement Agencies are required to look after the overall development of the girls in the Schools and in the Residential Schools. All of them are working under the Scheme for looking after the hostels and development of the girls.

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The Labour Schools are run by NGOs, in which the employees are required to motivate the children of the labourers by visiting Chokhati, where the labourers gather for daily labour and wages. The Airtel Schools are run under Memorandum of Understanding executed between the State Government and Bhartiya Foundation, which is funded by the Airtel Company, which has adopted a few government Schools in the District of Alwar and Jaipur. Under the MOU the government building of school is provided by the State Government in which the Teachers and Staff are provided by the Bhartiya Foundation. Such employees are not appointed by the State Government nor working directly under the control and supervision of the State Government, nor paid by the State Government.

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The Caregivers under the Sarva Shiksha Abhiyan are employed for betterment of visually impaired and handicapped children. They are also employed on contract and not directly concerned with school education nor are appointed and working under the control and supervision of the State Government.

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In view of the aforesaid discussions, we are of the view that the classification under the Rules of 2013 for counting the experience for giving weightage is confined to those employees, who are employed in connection with school education and are directly under the control and supervision of the State Government and their salary and wages are paid directly from the public exchequer. All such employees, who have been given weightage of experience, have been working in connection with school education under the supervision of the Education Department of the State Government and thus, they form a separate class, which is identifiable and is distinct from the other categories of employment. The Rules of 2013, therefore, do not cause any discrimination for counting the weightage of only those categories of employees, and that the age relaxation to them also does not cause any discrimination to other categories of employments. The prayers made in the writ petition to declare the Rules 15 and 25 of the Rajasthan Education Assistant Services Rules, 2013 as ultra vires is without any substance and further, to provide the relaxation in age and

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other benefits to the petitioners, is meritless.

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All the writ petitions are accordingly dismissed, with no order as to costs. The State Government may, considering the large number of vacancies of Education Assistant, expedite the process of recruitment.

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(VEERENDR SINGH SIRADHANA),J. (SUNIL AMBWANI),ACTG.CJ.

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Parmar

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All the corrections made in the judgment/order have been incorporated in the judgment/order being emailed.

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Shashi Kant Gaur, Proof Reader

Madhu Kashyap and Ors. v. State of Raj Edu Deptt

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