Dismissed

Shyam Behari Pareek v. State and Ors.

Rajasthan HC14 Sept 2023CW/2566/1999

Case brief

AI extract

What is this about?

Single judge upheld a dated decision of a Division Bench dismissing petitions challenging the validity of Municipal Service Rules amendments regarding seniority and past service benefits for Revenue Officers and Executive Officers, holding they belong to different cadres governed by different rules.

What did the court decide?

Petitions challenging the validity of the rules and notification were dismissed; seniority dispute remains unresolved against the existing order.

Shyam Behari Pareek Vs State and Ors. — Pension and Retirement Benefits | Rajasthan HC (2023)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Writ Petition No. 2566/1999

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Shyam Behari Pareek S/o Shri Ram Pratap Pareek, Bohra, aged 52 years, resident of Suraj Pole, Behind Gota Factory, Meethi Kui Ka Rasta, Suraj Pole Bazar, Jaipur

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----Petitioner

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Versus

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The State of Rajasthan through the Chief Secretary, Government of Rajasthan, Jaipur

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The Secretary, Local Self Department, Government of Rajasthan, Secretariat Jaipur

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Director, Local Self Government, Rajasthan Jaipur

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----Respondent

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Connected With

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S.B. Civil Writ Petition No. 2567/1999

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Hanuman Prasad Saini S/o Shri Ishwar Lal, Saini aged 50 years, resident of 254, Saini Sadan, Jai Lal Munshi Ka Rasta, Vth Cross, Jaipur

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----Petitioner

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Versus

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The State of Rajasthan through the Chief Secretary, Government of Rajasthan, Jaipur

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The Secretary, Local Self Department, Government of Rajasthan, Secretariat Jaipur

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Director, Local Self Government, Rajasthan Jaipur

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----Respondent

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For Petitioner(s) : Ms. Pragya Seth For Respondent(s) :

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HON'BLE MR. JUSTICE ANOOP KUMAR DHAND

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Order

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14/09/2023

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Since common question of law and facts are involved in all these petitions, hence with the consent of the counsel for the

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petitioner, both the matters taken up for final disposal and the same are decided by this common order.

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For convenience, the prayer mentioned in S.B. Civil Writ Petition No. 2566/1999 is taken into consideration. 3. Instant petition has been filed by the petitioner with the following prayer:-

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“In these circumstances it is, therefore, humbly prayed that this Hon’ble Court may kindly and graciously be pleased to accept this writ petition, and:-

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(i) the impugned notification dated 18.03.1991 making amendment in rule 7 of Municipal Service Rules, 1963 and impugned order dated 29.10.97 in not granting the benefit of past services (it means from 1978 on the post of R.O. II) be declared illegal, invalid and violative of Article 14 and 16 of the Constitution of India and therefore, the same may kindly be quashed and set aside by issuing writ of certiorari, with all consequential benefits;

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(ii) in alternative the rule 7 read with rule 28 of the Rajasthan Municipal Service Rules so far as it relates to govern R.O. II be declared discriminatory to the same set of rules governing the post of E.O. IV under the Rules of Rajasthan Municipal (Subordinate and Ministerial Service) Rules, 1963 and the Rules of Ayurvedic, Homeopathic, Unani Chikitsaks Service Rules, 1963 and also be declared ultravires to the Article 14 and 16 of the Constitution of India;

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(iii) the respondents be directed by issuing writ of mandamus to grant past services to the post of R.O. II w.e.f. 1978 and accordingly his seniority be fixed under the common seniority Assessor and Revenue Officer-II and accordingly the petitioner be considered for promotion to the post of E.O.-III or Revenue Officer-I, with all consequential benefits against the year in which he became eligible to be considered.

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(iv) any other relief which this Hon’ble Court may deem fit and proper in the facts and circumstances of this case may also be ordered in favour of the petitioner.”

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By way of filing these petitions, the petitioners are seeking directions against the respondents for issuing a mandamus to grant the benefit of past services to the post of Revenue Officer Grade II w.e.f. 1978 and accordingly, their seniority be fixed under the common seniority of Assessor and Revenue Officer-II and their case be considered for promotion to the post of E.O. Grade III or Revenue Officer-II.

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At the outset, it has been brought into the notice of this Court that the controversy involved in the identical petition filed by one Babu Lal Bohara Vs. State of Rajasthan and Ors. (D.B. Civil Writ Petition No. 2568/1999) has been decided by the Division Bench of this Court vide judgment dated 23.08.2022 with the following observations:-

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“We have heard counsel for the parties, perused the record and the relevant rules.

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It is not in dispute that the petitioner was initially appointed as RO-II in 1978 and his services was eventually terminated in 1996 on account of availability of candidates selected through RPSC. However, later on, the petitioner was again appointed, though on a different post of EO-IV. Continuity of service has also been provided, though posts were different.

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In course of time, it appears that to provide an opportunity to continue in service, the respondents amended the rules of 1963 vide notification dated 18.03.1991 by which a new item was added, quoted hereinabove.

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The amended provision provide the petitioner and similarly situated employees, who could not

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earlier succeed through RPSC but were continued as ad hoc employees, an opportunity of screening and subject to they being found suitable, to get their services regularised. It is clear from the order dated 28.10.1997 that the petitioner’s case was also scrutinized and he having been adjudged suitable, was appointed on regular basis and upon completion of six months of probation period, he was confirmed on the post of EO-IV with effect from 18.09.1991.

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This order also shows that the seniority has been granted with effect from 18.09.1991.

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The argument of learned counsel for the petitioner proceeds on the understanding of the impugned amendment that it will have adverse effect on the seniority which has already been granted to the petitioner. As has been rightly been pointed out by learned Senior Counsel for the respondents, the Rule and the impugned amendment as it reads, it is only applied in the cases where the employees are continuing on ad hoc basis but have not been regularised. Certainly, the sweep of this amendment did not include those who have already been screened and regularised in service like the petitioner. Undisputedly, the petitioner was regularised in service vide order dated 29.10.1997 granting seniority w.e.f 18.09.1991. Therefore, the challenge to the rule is based on erroneous assumption and patent misreading and interpretation of the rule, which has no application insofar as petitioner is concerned.

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Now we come to the second limb of argument of learned counsel for the petitioner that in the matter of terms and conditions of services including provision with regard to grant of seniority upon regularisation, the EO-IV Officers borne in the cadre of EO-IV ought to be treated on parity with Assessors, who are borne

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in another cadre and governed by different set of rules.

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In our considered opinion, this contention does not hold water. The petitioner was continuing on ad hoc basis as EO-IV. He was considered for regular appointment after screening. The relevant rule applicable in the case of the petitioner does not clearly specify as to what would be the date from which the petitioner would be entitled to get the benefit of regular appointment but the fact remains that soon after the case of the petitioner was considered by the screening committee under the amended rule of 1991, he was adjudged suitable and thereafter granted regular appointment and confirmed with effect from 18.03.1991.

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There is nothing on record to show that subsequently the seniority of the petitioner has been changed. Therefore on the basis of the material on record, it is clear that petitioner has been granted seniority with effect from the date when first amendment of 1991 was brought.

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As far as Assessors are concerned, they belong to a different cadre, whose terms and conditions of services are regulated by Subordinate Services Rules of 1963. Thus, both the rules being different and the post of the petitioner as also cadre of the petitioner and that of Assessor being different, governed by different set of rules, we are unable to comprehend as to how parity could be claimed by the petitioner, in dealing with their services conditions, particularly rule of seniority. The case of the petitioner is to be governed by the Rajasthan Municipal Services Rules, 1963 whereas Post of Assessors is governed by different set of rules known as Rajasthan Municipal (Subordinate & Ministerial) Service Rules, 1963. It is not a case that rules have been framed as applicable

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to all the cadres and they are being differently applied.

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The holders of the post of EO Grade-IV on one hand and Assessor on the other cannot be said to be similarly situated. What Article 14 of the Constitution of India forbids is classification which is unreasonable and not based on any rational basis and not every classification.

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The classification of similarly situated persons based on no rational integra may result in violation of Article 14 of Constitution of India.

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In the present case, two cadres are differently governed by different sets of rules. No grievance can be urged by the petitioner that he should also be granted the same seniority which has been granted to the Assessor in their own cadre under the provisions contained under rule 8 of the Subordinate Services Rules 1963.

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In any case, as we see from the scheme of promotion to the post of EO-III, separate quota has been provided for different feeder cadres, as per the schedule appended to the rules and on which, there is ad-idem between learned counsel for both the parties that 60% of the post of EO-III have been earmarked for EO-IV, 20% of post earmarked for RO-II, 10% of post are earmarked for Assessors and 10% posts are earmarked for Office Superintendent. The manner in which this promotion would be worked out by rotation of this quota has been separately provided under Column 7 of the Schedule appended to the rules.

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We are unable to hold that an Assessor by virtue of his seniority will march past the EO-IV because EOIV will be entitled for promotion on the basis of his seniority inter se in his own cadre against earmarked quota of 60%. Similar would be the situation in the case of Assessor and other employees of various

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cadre forming part of the feeder posts for the purpose of promotion to the post of EO-III. This has also been the consistent stand of learned State counsel that promotions have to be made only in accordance with the quota provided under rules and not otherwise.

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In view of consideration, we find that the challenge to the rule is not made out on any ground whatsoever. Subject to the observations which have been made by us here in above, we don’t think any further orders are required to be passed in the matter. The petition, therefore, challenging the validity of rules must fail and is therefore dismissed.

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Stay applications and all pending application(s),

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if any, also dismissed

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Since the controversy involved in these petitions have already been set at rest by the Division Bench of this Court in the case of Babu Lal Bohra (Supra) , this Court finds no other reason to take a different view.

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Both petitions stand dismissed, accordingly.

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Stay applications and all application(s) (pending, if any) also stand dismissed.

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(ANOOP KUMAR DHAND),J

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Ashu/2-3

Shyam Behari Pareek v. State and Ors.

Case brief

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Shyam Behari Pareek v. State and Ors.

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