Dismissed

Pushp Raj S/O Shri Jeeva Ram v. the State of Rajasthan

Rajasthan HC21 Dec 2021CW/15955/2019

Case brief

AI extract

What is this about?

The High Court dismissed writ petitions challenging Rajasthan Secretariat Ministerial Service (Amendment) Rules 2019, which denied certain service benefits to candidates appointed in violation of recruitment rules. The Court upheld the Government's decision to retain the employees conditionally to prevent financial anomalies regarding seniority and pay for subsequent valid appointees.

What did the court decide?

All petitions filed challenging the validity of the impugned notification and Amendment Rules of 2019 are dismissed.

Pushp Raj S/O Shri Jeeva Ram Vs the State… — Pension and Retirement Benefits | Rajasthan HC (2021)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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D.B. Civil Writ Petition No. 15080/2019

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Pramod Kumar Lavaniyan S/o Shri Charan Singh Lavaniyann, Aged About 36 Years, R/o F-482, Gandhi Nagar, Jaipur (Raj.)

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Ravindra Kumar Saini S/o Shri Ramji Lal Saini, Aged About 38 Years, R/o P.no. 1127, Barkat Nagar, Kisan Marg, Distt. Jaipur (Raj.)

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----Petitioners

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Versus

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The State Of Rajasthan, Through Its Principal Secretary, Department Of Personnel, Govt. Of Rajasthan, Govt. Secretariat, Jaipur (Raj.)

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----Respondent

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Connected With

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D.B. Civil Writ Petition No. 15955/2019

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Pushp Raj S/o Shri Jeeva Ram, Aged About 44 Years, R/o C/o Shri Radhamohan Sharma, Plot No. 15, Ram Ratan Colony-Ii, Mukundpura Road, Bhankrota, District Jaipur (Raj.)

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Karmveer Singh Arya S/o Shri Guljhari Lal, Aged About 42 Years, R/o Vpo Hundera, Tehsil Ramgarh Shekhawati, District Sikar (Raj.)

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----Petitioners

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Versus

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The State Of Rajasthan, Through Principal Secretary, Department Of Personnel, Government Of Rajasthan, Government Secretariat, Jaipur.

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The State Of Rajasthan, Through Additional Chief Secretary, Finance Department, Government Of Rajasthan, Government Secretariat, Jaipur.

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Rajasthan Public Service Commission, Through Its Secretary, Ghoongara Ghati, Jaipur Road, Ajmer.

----Respondents

(2 of 14)

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D.B. Civil Writ Petition No. 17324/2019

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Abhishek Bhatnagar, S/o Shri Shiv Prabhat Bhatnagar, Aged About 44 Years, R/o K-16, Jyoti Nagar, Chandna Bhakhar, Jodhpur. (Raj.).

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Ramesh Kumar S/o Shri Dhanraj, Aged About 38 Years, R/o 161, Near Jogmayamandir, Maderna Colony, Jodhpur. (Raj.).

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Ramchandra Siyag, S/o Shri Laluram Siyag, Aged About 31 Years, Optech Computer Center, Opp. Nandari Panta, Banar Road, Jodhpur (Raj.).

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Rajesh Gajraj, S/o Shri Surajbhan Singh, Aged About 37 Years, R/o 14/911, Chopansani Housing Board, Jodhpur. (Raj.).

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Prakash S/o Shri Paras Ram, Aged About 40 Years, R/o 04 Ch 27, Pratap Nagar, Jodhpur (Raj.).

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----Petitioners

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Versus

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The State Of Rajasthan, Through Principal Secretary, Department Of Personnel, Government Of Rajasthan, Government Secretariat, Jaipur.

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The State Of Rajasthan Through Additional Chief Secretary, Finance Department, Government Of Rajasthan, Government Secretariat, Jaipur.

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The State Of Rajasthan, Through Principal Secretary, Department Of Administrative Reforms, Government Of Rajasthan, Government Secretariat, Jaipur.

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Rajasthan Public Service Commission, Through Its Secretary, Ghoongara Ghati, Jaipur Road, Ajmer.

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----Respondents

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For Petitioner(s)	:	Mr. Ravi Chirania with
		Mr. Mukul Bhagtani, Mr. S.K. Panwar Mr. Himanshu Jain
For Respondent(s)	:	Mr. S.S. Raghav, AAG Mr. M.F. Baig with
		Mr. Govind Gupta

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(3 of 14)

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[CW-15080/2019]

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HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON'BLE MR. JUSTICE UMA SHANKER VYAS

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Judgment

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21/12/2021

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These petitions arising out of common background have been heard together and would be disposed of by this common judgment. The petitioners have challenged a notification dated 24.05.2019 issued by the Government by which Rajasthan Secretariat Ministerial Service (Amendment) Rules 2019 (hereinafter to be referred as “the Amendment Rules of 2019”) came to be promulgated. By these amendment rules a proviso has been inserted after existing proviso (13) to sub-rule (1) of rule 5 of Rajasthan Secretariat Ministerial Service Rules, 1970 (hereinafter to be referred as “the Rules of 1970”). This challenge arises in this following factual background:-

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On 17.05.2011 Rajasthan Public Service Commission issued an advertisement for filling up 325 posts in Secretariat services. A corrigendum was issued on 14.03.2012 in which certain vacancies for subordinate service were also advertised. The recruitment process involved multiple phases. The recruitment rules applicable envisaged that only those candidates who had obtained a minimum 40% marks in each of the papers of phase-1 and a minimum 36% marks in each of the papers of phase-2 of the competitive examination would be declared eligible and be recommended for appointment. It appears that in the advertisement these conditions were not inserted. Some of the candidates who had not scored minimum 40% marks in each paper in phase-1 therefore approached the High Court and challenged the action of the RPSC to oust them for further

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(4 of 14)

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examination in phase-2. The learned Single Judge gave them interim protection under which they participated in phase-2 written tests also. Eventually the learned Single Judge allowed the writ petitions by judgments dated 01.10.2014 and 09.10.2014. These judgments of the learned Single Judge were challenged by the candidates who had participated but were not selected. RPSC also separately challenged these judgments before the Division Bench. By common judgment dated 03.02.2016 passed in D.B. Special Appeal (Writ) No.1379/2014- Saurabh Kumar Kothari and Ors. Vs. RPSC and Ors.. the Division Bench of High Court reversed the judgments of the learned Single Judge. It was held that the statutory rules had binding force and the candidates who had not scored minimum 40% marks in each of the papers of phase-1 examination and a minimum 36% marks in each of the papers of phase-2 examination, could not have been recommended for appointment. The RPSC was directed to revise the select list. In the meantime under the interim and final order passed by the learned Single Judge many of the ineligible candidates had appeared in phase-2 examination and were also appointed. The question of their continuation therefore be immediately emerged. The Division Bench in the said judgment permitted the State Government to terminate their services after following the due process. The relevant portion of this judgment reads as under:-

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“In the instant case also, as we have already observed, we do not find such conflict under the scheme of Rules, as observed by the ld. Single Judge and as regards the submission made in respect of the candidates of SC/ST,however, the ld. Single Judge has permitted them on the basis of second proviso to R.28 of the Rules, 1999 but in our considered view the second proviso to R.28

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(5 of 14)

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of the Rules, 1999 if read with the pre-amended proviso to sub-rule (3) of R.28 of the Rules, the proviso to sub-rule (1) of R.28 has been saved but after amendment Notification dt.05.07.2010 proviso to sub-rule (3)to R.28 of the Rules mandates that irrespective of the class of candidates including the members of SC/ST have to obtain the minimum benchmark of40% marks in each of the paper of Phase-I and minimum of 36% marks in each of the paper of Phase-II of the competitive examination for the post of Lower Division Clerk and if for the member of SC/ST the minimum benchmark of 40% marks & minimum 36% marks in each of the paper of Phase-I &Phase-II respectively is relaxed, the express prohibition for the Commission under proviso to sub-rule (3) of R.28 of the Rules, 1999, inserted vide amendment Notification dt.05.07.2010, to secure minimum 40% marks &minimum 36% marks in each of the paper of Phase-I & Phase-II respectively of the competitive examination become otiose and at the same time granting exemption from minimum benchmark to the members of SC/ST candidates may not be in conformity with Art.335 of the Constitution and this can never be the intention of the rule making authority.

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As regards submission made by Mr. Sanjeev Prakash Sharma, Senior Counsel in assailing the validity of proviso to R.29 of the Rules, 1999 which has been amended vide Notification dt.05.07.2010, we find outright rejection of the submission and merely they could not qualify with a minimum benchmark of 36% marks in each of the paper of Phase-II of the competitive examination for the post of Stenographer, that will not make the provision bad in law or has no nexus with the object sought to be achieved or unworkable and in fact the petitioners are unable to shift their burden and support justification as to how the provision is bad in law.

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The submission made by counsel for the petitioners that the rule is unworkable and if allowed to continue, number of posts which are lying vacant for a long time could not be manned and the selection process has been initiated for the post of Stenographer after almost 16 years and the legitimate right of the participants is seriously jeopardized, is wholly without substance and as long as the Rules are framed in consonance with the Constitution, they are valid and the plea of legitimate expectation is of no decisive consequence as well and it fails.

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(6 of 14)

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In our considered view, the candidates who failed to qualify with minimum of 40% in each of of the paper of Phase-I for the post of Lower Division Clerk, indeed were not eligible to participate in Phase-II of the competitive examination process and if permitted to participate under interim orders of the ld. Single Judge of this court, no right could be said to be conferred and their ineligibility cannot be condoned and if we permit them to continue merely because they were permitted initially in Phase-II of the competitive examination under interim orders of the ld. Single Judge of this court and later confirmed by the ld. Single Judge under order impugned, in our considered view, such an act cannot be ratified and such appointments which as per the public declaration made by the Commission remain subject to final outcome of the intra-court appeals and any appointment made in contravention of the statutory scheme of Rules, in our considered view, is void in law and such illegality committed cannot be regularized more so when the statutory scheme of Rule in no unmistakable terms say so.

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One cannot, therefore, take the sympathetic view in a situation in which the candidates were permitted to participate in Phase-II of the competitive examination who despite expressed provisions under the scheme of Rules failed to qualify with a minimum of 40% marks in each of the papers of Phase-I for the post of Lower Division Clerk. At the same time, this position cannot be ruled out that many other persons who were not permitted to appear in Phase-II of the competitive examination, as they failed to qualify with minimum of40% marks in each of the paper of Phase-I and failed to approach this court that may, therefore, cause injustice to others as well.

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After we have looked into the scheme of Rules and proviso to sub-rule(3) to R.28 which has been amended vide Notification dt.05.07.2010 and paragraphs 4 & 6 of Schedule-II indicating scheme & syllabus of the competitive examination for the post of Lower Division Clerk, irrespective of the fact that he/she is from open category or the reserved category i.e. SC/ST,the inevitable

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(7 of 14)

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[CW-15080/2019]

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conclusion is that only such of the candidate who obtained a minimum of 40% marks in each of the paper of Phase-I and a minimum of36% marks in each of the paper of PhaseII of the competitive examination for the post of Lower Division Clerk can only be considered eligible for recommendation by the Commission and for appointment by the State Government obviously subject to their placement in the order of merit against the number of advertised vacancies.

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Consequently, the special appeals stand allowed and the judgments passed by the ld. Single Judge dt.02.04.2012, 01.05.2014, 25.07.2014,03.09.2014,01.10.2014 & 09.10.2014 in relation to the recruitment process held for the post of Lower Division Clerk, pursuant to the advertisement dt.17.05.2011 are quashed and set aside and the writ petitions assailing validity of proviso to R.29 of Rules, 1999 to the extent that candidate has to secure a minimum of 36% marks in each of the paper of Phase-II of the competitive examination for the post of Stenographer are without substance and accordingly stand dismissed.

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The Commission is directed to prepare a fresh merit list of all the candidates who have participated in the combined competitive examination,2011 held for the post of Lower Division Clerk, pursuant to advertisement dt.17.05.2011 and the corrigendums issued in furtherance thereto and obtained a minimum of 40% marks in each of the paper of Phase-I and a minimum of 36% marks in each of the paper of PhaseII of the competitive examination and upload such fresh merit list on its official website and after taking note of the objections, if any, within seven days thereafter recommend the names of successful candidates to the State Government keeping in view their order of merit, as per the number of advertised vacancies and the State Government is directed to process the same thereafter and give appointments to the selected candidates after due compliance of the requirement of law &the scheme of Rules. The process shall be completed within 90 days. At the same time, State Government is at liberty to cancel the appointments of such of the candidates who failed to qualify with a

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(8 of 14)

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minimum of 40% marks in each of the paper of Phase-I and a minimum of 36% marks in each of the paper of Phase-II or were not eligible to appear in Phase-II of the competitive examination held for the post of Lower Division Clerk under the scheme of Rules, after due compliance & in accordance with law.” (emphsis supplied is by us)

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The State Government thereupon deliberated on the fate of these 216 odd employees. Some of them were inducted in the Government service for the first time. Some were already holding other Government posts. By way of culmination of this exercise, the impugned notification came to be issued. The effect of this notification was to insert a proviso below sub-rule (1) of rule 5 of the the Rules of 1970 by way amendment. This newly inserted proviso 14 reads as under:-

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“(14) Notwithstanding anything contained in these rules, the persons who were appointed but deselected in revised result of the Lower Division Clerk Combined Competitive Examination, 2011 conducted by the Commission shall not be removed from the service. However, the period of probation of these de-selected candidates shall be extended upto the date of completion of probation period of later selected (replaced) candidates in revised result of the said examination, if they hold the post continuously on the date of commencement of the Rajasthan Secretariat Ministerial Service (Amendment) Rules, 2019. The period of service rendered by these de-selected candidates from 2013 and prior to 2016 shall not be countable for any purpose which would include probation period, experience and ACP.”

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Rule 5 of the Rules of 1970 pertains to methods of recruitment. Sub-rule (1) of rule 5 provides that recruitment to the service after commencement of the rules shall be made by the method either of direct recruitment as laid down in column No.3 of Schedule I in accordance with Part IV of the Rules, or promotion as laid down in column No.3 of Schedule I in accordance with Part

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(9 of 14)

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[CW-15080/2019]

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V of the Rules. This sub-rule has multiple provisos. Proviso 14 inserted by the Amendment Rules of 2019 provides that notwithstanding any thing contained in the Rules the persons who were appointed gbut de-selected in revised result of Lower Division Clerk Combined Competitive Examination, 2011 shall not be removed from the service. However their period of probation shall be extended upto the date of completion of probation period of later selected candidates in revised result if they hold the post continuously on the date of commencement of the Amendment Rules of 2019 and further that the period of service rendered by them from 2013 to 2016 shall not be countable for any purpose which would include probation period, experience and ACP benefits. It is this latter portion of the newly inserted proviso which hurts the petitioners and has therefore been challenged in these petitions. In a nutshell the grievance and argument of the petitioners is that they have been rendering services since the year 2013. The Government has taken away the entire service benefits for the period between 2013 to 2016 which is unreasonable, that the notification is contrary to the decision of the cabinet and lastly that in any case the impugned notification imposes conditions which are unreasonable and arbitrary. Learned advocates for the petitioners had also argued that by these conditions vested rights have been taken away with retrospective effect. They pointed out that some of the petitioners were already holding Government posts. They were selected and appointed to these posts under orders passed by the Single Judge of the High Court. When the Government therefore decided to withdraw the benefit for the entire period of service rendered by

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(10 of 14)

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them from 2013 to 2016, they have been rendered in a position worse than their previous engagement.

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On the other hand the Government has resisted all the petitions contending that while deciding to retain the services of the petitioners, the same had to be subject to certain conditions failing which financial and administrative difficulties would arise. Learned Additional Advocate General pointed out that the petitioners cannot claim seniority over the candidates who were included in the revised select list prepared pursuant to the judgment of the Division Bench of this Court though they might have entered in the service earlier. Further, granting them benefit of the service rendered by them from the year 2013 to 2016 would lead to a situation where their seniors would be drawing less pay than them which in turn would require stepping up of the pay of large number of employees which would create huge financial burden on the Government. It was for these reasons that this formula was devised.

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Having heard learned counsel for the parties and having perused the documents on record we do not find any merit in the challenge raised by the petitioners. We may recall, as per the recruitment rules any candidate who did not secure a minimum 40% marks in each paper of phase-1 examination was not eligible for appearing in phase-2 examination. Likewise the candidates must also secure a minimum of 36% marks in each paper of phase-2 examination for appointment. It was only under the interim order passed by the Single Judge that the petitioners were allowed to appear in the phase-2 examination though they had not scored minimum 40% marks in all papers of phase-1 examination and were eventually appointed. The learned Single Judge in fact

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(11 of 14)

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came to the conclusion that since these conditions were not inserted in the advertisement irrespective of what the recruitment rules may say, the same cannot be enforced in the present selection process. The correctness of the view of learned Single Judge was tested before the Division Bench and the Division Bench in case of Saurabh Kumar Kothari (supra) which reversed the judgment of learned Single Judge and came to the conclusion that those candidates who did not fulfill these conditions were not eligible for appointment. We have reproduced the relevant portion of the judgment of the Division Bench which had attained finality. The court held that these candidates were ineligible. The court refused to direct regularisation of their service on sympathetic grounds. While so holding, the Division Bench directed the RPSC to draw revised list and appoint candidates who were selected and placed in such list. In the process it was also provided that “At the same time, State Government is at liberty to cancel the appointments of such of the candidates who failed to qualify with a minimum of 40% marks in each of the papers of phase-I and a minimum of 36% marks in each of the paper of phase-II or were not eligible to appear in phase-II of competitive examination held for the post of Lower Division Clerk under the scheme of Rules, after due compliance & in accordance with law.”

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Thus the Division Bench was of the opinion that all the petitioners were not eligible for appointment and permitted the Government to even terminate their services. The Government thereupon after due deliberations, decided not to terminate the services of these candidates but put their retention in service subject to certain conditions. It was precisely for this reason that

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(12 of 14)

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the Government had to amend the statutory recruitment rules under Amendment Rules of 2019. Newly inserted proviso 14 as noted provides that notwithstanding anything contained in the rules the persons appointed but de-selected in the recruitment process in question, shall not be removed from service. This was necessary because sub-rule (1) of rule 5 provides only two modes of appointment for secretarial post, direct recruitment or promotion. While enjoining such concessions, obviously all these candidates cannot claim seniority over those who are now coming in the select list by virtue of operation of the judgment of the Division Bench of the High Court in case of Saurabh Kumar Kothari (supra). If the petitioners were also granted full benefits of service already rendered by them, all the selected candidates who would be inducted subsequently but would be senior to the petitioners, would draw less pay than the petitioners which in-turn would give rise to the demand from them for stepping up of the pay to remove this pay anomaly. This is precisely what was noticed, deliberated and discussed at various levels before the Government formed its decision to issue impugned notification. Contrary to what was painstakingly argued by the learned counsel for the petitioners, the impugned notification is in no manner in deviation from the deliberations and decisions of the cabinet. We have perused the note-sheets and the suggestions of the administrative as well as the Finance Department. It was precisely this question which was posed by the administration of the seniors seeking stepping up of pay which prompted the cabinet to impose these conditions which eventually resulted into promulgation of impugned notification.

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(13 of 14)

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For multiple reasons we find no reason to interfere. To begin with, the Division Bench found that the petitioners’ selection and appointments were wholly illegal. Secondly, the Division Bench permitted the Government even to terminate their services. Thirdly, if the Government decided not to take such an extreme measure and to protect the services, on what condition the same must be done, ordinarily cannot be a subject matter of judicial review. Unless conditions imposed are found to be wholly arbitrary, malafide in law or facts or unreasonable, we would not ask the Government to modify the conditions. Lastly even otherwise the conditions are not unreasonable in any manner. What is sought to be achieved through imposition of these conditions is that petitioners cannot claim seniority over those candidates who were more meritorious and should have been in the select list instead of the petitioners and would not claim benefit of past service which was wholly fortuitous.

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We must realise that the petitioners have challenged a statutory rule. The presumption of constitutionality of rule framed by subordinate legislation is a well settled principle. In order to establish that the rule in question is unconstitutional, the petitioners who urge the same must produce necessary material in support of this contention. The contention that the rule operates with retrospective effect taking away the vested rights is not valid at all. The proviso gives benefit to the petitioners for retention in service but makes it conditional on not claiming the benefit of past service. In response to the contention that some of the petitioners were holding other Government posts on regular basis we have offered to the counsel for the petitioners that they may exercise

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(14 of 14)

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the option of going back to the past cadres which they politely refused. This contention therefore loses its significance.

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In the result all the petitions are dismissed. Pending applications if any stand disposed of.

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(UMA SHANKER VYAS),J

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(AKIL KURESHI),CJ