Dismissed

Banwari Lal Sharma Andanr v. State of Raj and Ors.

Rajasthan HC9 Feb 2024CW/11904/2009

Case brief

AI extract

What is this about?

This Division Bench dismissed two writ petitions challenging the regularization of services of Ayurvedic Chikitsaks. The court upheld a 2006 notification fixing a cut-off date of 31.12.1993, holding that post-2003 appointees lack a claim to regularization when regular recruitments were already made under the rules. The bench found the classification reasonable and the notification non-arbitrary.

What did the court decide?

Writ petitions dismissed; notification dated 18.08.2006 upheld; no regularization granted to petitioner incumbents.

Banwari Lal Sharma Andanr Vs State of Raj… — Pension and Retirement Benefits | Rajasthan HC (2024)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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D.B. Civil Writ Petition No. 10039/2009

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Subhash Chand Sharma, S/o Shri Ram Kishore Sharma, aged about 43 years, r/o 218, Pasharvanath nagar, Near Sanganer Airport, Jaipur.

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Narendra Parashar S/o Shri Kishan Swaroop, aged about 42 years R/o Village Kanjoli Tehsil Roopwas, District, Bharatpur.

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Anil Kumar Sharma S/o Shri Niranjan Lal Sharma, aged about 45 years R/o Village Shimla, Tehsil Khetari, District JhunJhunu.

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Rakesh Swami S/o Shri Lakhsmi Kumar Swami aged about 43 year R/o Village Dausad, Tehsil Beherod, District, Alwar.

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Bhom Singh Choudhary son of Shri Sube Singh Choudhary, aged about 43 years R/o Village Manjari Bhanda Via Karanikot, Tehsil Mundawar, District Alwar.

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Suresh Chand Sharma Son of Shri Surajmal Sharma, aged about 44 years, R/o Ganesh Meel Udaimod, Tehsil Gangapurcity, District Sawaimadhopur.

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Jhandu Lal Sharma S/o Shri Ram Prasad Sharma, aged about 45 years R/o Village and Post Kalmari Tehsil Nadoti, District Karauli.

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Ram Prakash Sharma Son of Shri Sukhachand Sharma aged about 43 years R/o 9, Vishwakarma Nagar-II, Maharani Farm, Durgapura, Jaipur.

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Ram Kumar S/o Shri Manna Ram, aged about 43 years, R/o Village & Post, Dhandhan, Tehsil Fatehpur Shekhawati, District Sikar.

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Mani Ram Sharma Son of Shri Ramswaroop Sharma, aged about 43 years, R/o Near Gugoji Mandir Ward No. 4, Saddulpur, District Churu.

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Rakesh Sharma S/o Shri Om Prakash Sharma, aged about 43 year R/o Village & post patan, Tehsil Nimka Thana, District Sikar.

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Pramod Shankar Mishra S/o Shri Divakar Mishra aged about 49 years R/o 31, Nagar Parishad colony, Kanwar Nagar, jaipur. 13. Shailendra Kumar Gautam Son of Nand Kishore Gautam R/o Karamchari Colony, Near Zindbaba ka Mandir, Gangapurcity, District Sawaimadhopur.

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Sumat Prakash Jain S/o Ramji Lal Jain, aged about 42 years, R/o Plot No. 52/140, Veer Tejaji Road, Mansarovar, jaipur. 15. Uttam Chand Sharma S/o Ramesh Chand Sharma aged about 42 years, R/o Pathakpara, Purana Kacharhi Road,

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Hindauncity, District Karauli.

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Mahesh Chand Gupta S/o Shri Sitaram Gupta, R/o Dhanvantri Nagar, nahar Road, Gangapurcity, District, Sawaimadhopur.

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Pradhuman kumar Bhardwaj S/o Shri Yogeshwar Prasad Bhardwaj, aged about 43 years, R/o C/o Near Narayani Nikaetan ITI, Ratangarh, District, Churu.

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Sunil Kumar Sharma S/o Shri Satish Kumar Vyas, aged about 41 years, R/o Shivam Shrveshwar Dham, behind PWD office, Mahashiv Colony, Karauli.

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Keshav Kumar Sharma S/o Shri Ram Niwas Sharma, aged about 42 years, R/o 3/619, Mlviya Nagar, jaipur.

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Pramod Kumar Dhadhich S/o Shri Kedarmal Sharma, aged about 43 years, R/o Dhadhicha Bhawan, Gandhi Nagar Colony, Churu.

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Narendra Kumar Sharma S/o Shri Reva Shankar Sharma aged about 42 years, R/o Village and Post Ratalai, District Jhalawar.

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Sanjay Kumar Sharma S/o Shri Pukhraj Gauir, aged about 44 years, R/o Village & post Badayali, Via Jasnagar, District, Nagaur.

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Umesh Chand Sharma S/o Shri Khubi Lal Sharma, aged about 43 years, R/o Gulal Bag, Karauli.

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Virendra Singh Yadav S/o Ramnath Singh Yadav, aged 44 years, R/o Village Kilawari, Tehsil Bari District, Dholpur.

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----Petitioners

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Versus

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State of Rajasthan, through Secretary, Department of Personnel, Government of Rajasthan, Jaipur.

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Principal Secretary, Ayurved Department, Government Secretariat, Jaipur.

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Director, Ayurved Department, Ajmer (Raj.).

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----Respondents

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Connected With

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D.B. Civil Writ Petition No. 11904/2009

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Banwari Lal Sharma son of Shri Laxmi Narayan Sharma, aged about 43 years, resident of Village & Post Kishorepura, Tehsil Lalsot, District, Dausa.

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Vijay Shankar Gauttam son of shri Chiranji Lal Gauttam, aged about 42 years, resident of Village & Post Malarna Chore,

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District, Sawai Madhopur.

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----Petitioners

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Versus

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State of Rajasthan, thourgh Secretary, Department of Personnel, Government of Rajasthan, jaipur.

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The Secretary to the Government, Department of Ayurved, Govt. of Rajasthan, Jaipur.

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The Director, Ayurved Department, Ajmer (Rajasthan).

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----Respondents

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For Petitioner(s) : Mr. A.K. Sharma, Senior Advocate assisted by Mr. Ashwini Jaiman, Adv. in SBCWP No.10039/2009

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Mr. Banwari Lal Sharma, Adv. in SBCWP No.11904/2009

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For Respondent(s) : Mr. Chiranji Lal Saini, AAG

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HON'BLE MR. JUSTICE PANKAJ BHANDARI HON'BLE MR. JUSTICE BHUWAN GOYAL Order

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RESERVED ON :: 31/01/2024 PRONOUNCED ON :: 09/02/2024

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(Per Hon’ble Pankaj Bhandari,J)

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The petitioners have filed these writ petitions inter-alia challenging the cut off date fixed in Notification dated 18.08.2006 and claiming regularization of services under Proviso (7) to Rule 6 of the Rajasthan Ayurvedic, Unani, Homeopathy & Naturopathy Service Rules, 1973 amended in 2006, (hereinafter referred to as ‘the Rules of 1973’).

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It is contended by learned counsel for the petitioners that a notification was issued on 15.09.1992 for filling up 52 posts of Ayurvedic Chikitsak on adhoc basis. It is also contended that against 52 vacancies, the respondents initially gave appointment to 66 candidates vide order dated 09.07.1993. Thereafter, 11 more candidates were given appointment and subsequently, 14

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more candidates were given appointment vide order dated 07.10.1993. It is further contended that DOP gave assent to fill up 100 vacancies which became available subsequent to the advertisement dated 15.09.1992. Select list was prepared and operated in respect of these vacancies.

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It is contended that names of the petitioners were shown in the select list. The petitioners filed S.B. Civil Writ Petition No.1047/1994, which was dismissed on 25.03.1994, against which a review petition was filed by the petitioners. The said review petition was allowed vide order dated 16.02.1995 and the respondents were directed to appoint the petitioners in furtherance to advertisement dated 15.09.1992. Challenge to the same was made before the Division Bench, which vide order dated 13.01.1997 remitted the matter back to the learned Single Judge. The Single Bench dismissed the review petition submitted by the petitioners vide order dated 18.12.2000 and the same was assailed before the Division Bench through D.B. Special Appeal (Writ) No.107/2001. It is also contended that the appeal preferred by the petitioners was allowed by the Division Bench vide order dated 29.05.2002 and directions were issued to consider the case of the present petitioners and to give them appointment, if they are otherwise found eligible for giving appointment under Rule 27 of the Rules of 1973. It is further contended that Special Leave Petition (SLP) preferred against the judgment dated 29.05.2002 was dismissed by the Hon’ble Supreme Court on 28.07.2003 and the petitioners were given appointment on 12.11.2003 in furtherance of the advertisement dated 15.09.1992.

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It is contended that the impugned notification was issued on 18.08.2006 whereby Rules of 1973 were amended and after the existing Proviso (6) to Rule 6 of the Rules of 1973, new Proviso (7) was added whereby all the persons who had been appointed as Ayurvedic Chikitsak on adhoc/temporary basis between the period from 06.05.1990 to 31.12.1993 and were still holding the aforesaid post on the date of commencement of Rules of 2006 were to be screened by the Committee for adjudging their suitability on the post of Ayurvedic Chikitsak. It is also contended that vide order dated 15.06.2007, the respondents regularized 172 adhoc candidates, including 91 candidates who were appointed pursuant to the advertisement dated 15.09.1992, however, case of the petitioners was not considered as their date of appointment was after 31.12.1993.

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It is contended by learned Senior Advocate, Mr. A.K. Sharma, assisted by Mr. Ashwini Jaiman, Adv. that the present petitioners were appointed in furtherance of the same selection process and since benefit has been extended to 91 candidates, the benefit ought to have been extended to the present petitioners also. It is also contended that since the present petitioners constitute same class, they are required to be treated with the same yardstick and since artificial distinction has been created by the impugned notification dated 18.08.2006, the same needs to be read down or declared arbitrary by this Hon’ble Court. Reliance in this regard has been placed on Inspector Rajendra Singh & Ors. Versus Union of India & Ors. : 2017 2 SLJ 206 .

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It is contended that since the petitioners have been appointed pursuant to the advertisement dated 15.09.1992,

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service of the petitioners should be regularized and nonregularization of the service is arbitrary and the date fixed in the notification deserves to be quashed and set aside by this Court. Reliance in this regard is placed on Avinash Singh & Ors. Versus Union of India : C.W. (P) No.5400/2010 .

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It is also contended that the petitioners approached the Court ventilating their grievances well within the time and ultimately their case was decided vide order dated 29.05.2002 and an SLP against the same was dismissed on 28.07.2003 and thereafter, they were appointed vide order dated 12.11.2003 and since they are continously working with the respondents. Mere pendency of the court proceedings cannot operate detriment to petitioners to seek regularization pursuant to the notification dated 18.08.2006. Reliance in this regard is placed on Kudart Ali Versus Municipal Council, Bhilwara & Ors. : 2006 4 RLW 2977 .

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It is also argued that act of Court cannot harm anyone and therefore, time consumed in decision of the court proceedings i.e.from 1994 to 2002 cannot operate against the rights of the petitioners to seek regularization, as their appointment orders would relate back to the initial appointment order issued by the respondents pursuant to the advertisement dated 15.09.1992. Reliance in this regard is placed on Atma Ram Mittal Versus Iswar Singh Punia : (1988) 4 SCC 284 .

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It is contended that the impugned notification dated 18.08.2006 is arbitrary and depicts non-application of mind as there is no reason as to why only candidates who were appointed on adhoc basis from 06.05.1990 to 31.12.1993 should alone be considered for regularization and not the others. Reliance in this

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regard is placed on East Coast Railway & Ars. Versus Mahadev Appa Rao & Ors. : (2010) 7 SCC 678 . It is also argued that a judgment is always retrospective unless made prospective and therefore, appointments made in furtherance of the judgment dated 29.05.2002 would relate back to original appointments.

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Learned Additional Advocate General appearing for the State-respondents has vehemently opposed the writ petitions. It is contended that in similar recruitment process, D.B. Special Appeal (Writ) No. 172/2004 titled as Jayant Sharma Versus State of Rajasthan & Anr. & other connected cases were decided by the Division Bench of the High Court vide order dated 07.10.2010 and similarly situated persons were not found fit to be appointed on regular basis as they were appointed on urgent emergency basis and as per the terms of the appointment, it was clear that their appointment is subject to regular selections. Thus, the present petitioners also do not have any right to regular selection. It is further contended that since the advertisement was issued in 1992 and selections were made till 1993, all the persons, who had been appointed on adhoc basis during the period 06.05.1990 to 31.12.1993, were permitted to be screened by the Committee for adjudging their suitability and new Proviso (7) was added to Rule 6 of the Rules of 1973.

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A notification was issued on 18.08.2006 and looking to the service given on adhoc basis i.e. for a period more than 10 years, the candidates were permitted to be screened by the Committee for adjudging their suitability. It is argued that the petitioners had been given adhoc appointment on the basis of the judgment passed by the Court in 2003 and on the date of the notification,

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they had not even completed 3 years of adhoc service. Thus, they cannot be treated at par with those who were appointed between 1992 to December, 1993. It is also contended by learned Additional Advocate General that persons, who are appointed on adhoc basis do not have a right to regularize their services. It is also contended that since regular selection has been made, the petitioners are not entitled to claim to have any right to be selected. It is further contended that selection under Rule 27 of the Rules of 1973 is only adhoc selection and it is mentioned in the Rule itself that the selection is for a temporary period till regular recruitment is made. It is also contended that since regular recruitment process has been initiated, the petitioners do not have any right for regular selection. It is argued that the petitioners have been given urgent temporary appointment and they do not have any right to regularization. The fixing of date in the notification cannot be said to be arbitrary and therefore, the writ petitions deserve to be dismissed. 12. We have considered the contentions raised by learned counsel for the parties and have carefully gone through the material on record.

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The first question for consideration of this Court is to examine as to what kind of right was available to the petitioners under the advertisement, which was issued in the year 1992. It is not disputed that 59 vacancies were advertised though the decision was taken to fill in 100 more posts on temporary basis in the year 1993 and those could not be filled in. However, regular vacancies were advertised in the year 1995-96 and appointments were made through the Rajasthan Public Service Commission

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(hereinafter referred to as ‘the RPSC”). Thus, whatever vacancies were available, the State Government had filled in by regular incumbents selected by the RPSC. Rule 27 of the Rules of 1973 under which the advertisement in question was issued in 1992 is quoted below:-

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“27. Urgent temporary appointment .-(l) A vacancy in the Service which cannot be filled in immediately either by direct recruitment or by promotion under the rules may be filled in by the Government or by the authority competent to make appointment, as the case may be, by appointing, in an officiating capacity thereto an officer eligible for appointment to the post by promotion or by appointing temporarily thereto a person eligible for direct recruitment to the Service, where such direct recruitment has been provided under the provisions of these Rules:

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Provided that such an appointment will not be continued beyond a period of one year without referring the case to the Commission for concurrence where such concurrence is necessary and shall be terminated immediately on its refusal to concur:

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Provided further that in respect of post in the Service for which both the above methods of recruitment have been prescribed, the Government shall not, save with the specific permission of the Government in the Department of Personnel fill, the temporary vacancy against the direct recruitment quota by a whole-time appointment for a period exceeding three months, otherwise than out of persons eligible for direct recruitment and after a short-term advertisement.

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"(2) In the event of non-availability of suitable persons, fulfilling the requirements of eligibility for promotion, Government may, not withstanding the condition of eligibility for promotion required under sub-rule (1) above, lay down general instructions for grant of permission to fill the vacancies on urgent temporary basis subject to such conditions and restrictions regarding pay and other allowances as it may direct. Such appointment shall however, be subject to concurrence of the Commission as required under the said sub-rule.”

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It is apparent from the bare reading of the aforesaid Rule 27 that these appointments are urgent temporary appointments and not regular one. They were stop gap arrangement till the availability of the candidates by way of regular selection through RPSC. In all, only 59 vacancies were advertised in 1992 and 118 appointments have been made; 91 in the year 1992-93 and 27 under the orders of this Court. As per the Rule 27, urgent temporary appointments are supposed to continue till the availability of regularly selected candidates. Since regular selection has taken place, as stated by the learned Additional Advocate General, the present incumbents do not have a vested right to be regularly appointed.

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As per the arguments advanced by the learned Additional Advocate General, after 1992, regular appointments have been made at least 8 times by RPSC and whatever vacancies were available, have been advertised on 27.08.2010. The claim of the petitioners that they have been appointed in pursuance of the directions of the Court and therefore, the date fixed in the notification should not have any effect on them and their case should be considered for regular appointment, is without any force for the very reason that after regular selections were made, the State was not keen to continue the service of these persons, who are appointed on adhoc basis upon directions of the Court, however, the petitioners herein obtained stay orders from the Court and continued in service on adhoc temporary basis. Rule 27 of the Rules of 1973 provides for continuing the appointments

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made thereunder till the time regular selections are made. In 1995-96, all regular selections were made and thereafter also, on several times vacancies have been filled up on regular basis. It is evident that the fact that regularly selected candidates were appointed, was not placed for consideration before the Division Bench of this Court and therefore, the order of adhoc temporary appointment was made.

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Be that as it may, the question, which has come up for consideration before this Court is as to whether those who have been appointed on adhoc basis have a right to be considered for regular appointment in terms of the notification issued on 18.08.2006. The impugned notification issued on 18.08.2006 clearly provides that all persons who had been appointed as Ayurvedic Chikitsak on adhoc temporary basis between the period from 06.05.1990 to 31.12.1993 and were still holding the aforesaid post on the date of commencement of Rules of 2006 were to be screened by the Committee for adjudging their suitability on the post of Ayurvedic Chikitsak. The fixation of the date i.e. cut off date between 06.05.1990 to 31.12.1993 has reasoning behind it, since after 1993 regular recruitments were made and it was only for giving benefit to those who have continued in service for more than 10 years, that this provision was made by the State. The present incumbents have joined in November, 2003 and have remained for just few years. Regular recruitments have been made in the intervening period from 1992 to 2006. The State has passed a notification taking note of the fact that those who have worked for more than 10-15 years would

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be screened by a Committee. The present incumbents have worked for just 3 years on adhoc basis and as per Rule 27, adhoc appointees do not have a right to continue and their adhoc service is only till regular recruits are available. In the present case, since regular recruitment process has been initiated and regular recruitments have been made, adhoc appointees do not have a right to continue. The present petitioners before this Court have continued on the basis of the interim orders passed by the Court and even when the State had made regular recruitments, and wanted to terminate their adhoc appointments, they are continuing in pursuance of the interim orders.

¶109

The judgments cited by learned counsel for the petitioners on facts do not apply to the present case for the very reason that in 1992 when the advertisement was issued for adhoc appointment for 59 vacancies, more persons were given adhoc appointments and even in that list, many persons who were meritorious to the present petitioners were denied adhoc appointments by the Court as regular appointments had taken place. However, the fact of regular appointments was not brought to the notice of the Court when the Court allowed the writ petition(s) of the present petitioners for adhoc appointments. In any case, Rule 27 clearly provides that adhoc appointment would continue till regularly selected candidates are made available through RPSC. In the present case, regular appointments have taken place and as many as 8 times regular recruitments took place, therefore, the petitioners do not have any ground for declaring the notification dated 18.08.2006 as arbitrary.

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The petitioners who have been appointed in 2003 cannot claim parity with those who have been appointed in pursuance of the advertisement dated 15.09.1992 as those who were appointed in pursuance of the notification were appointed in order of their seniority whereas, the petitioners have been appointed in pursuance of the directions of the Court ignoring the seniority of other persons who have applied for adhoc appointment in the year 1992.

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Respondent having taken recourse to regular selection was competent to terminate the services of the present petitioners but the petitioners have continued in service in pursuance of the interim order obtained from the Court and thus their case cannot be considered to be at par with those who were appointed on adhoc basis in pursuance of the advertisement dated 15.09.1992. The argument of learned Additional Advocate General that year 1993 was consciously fixed in the notification as regular selection had taken place, has force since appointment under Rule 27 are made only on adhoc basis and once, regular selection has been made, those incumbents do not have any right as such. The notification therefore fixing the cut off date has a basis and cannot be said to be arbitrary.

¶115

Hence, we do not find any error in the impugned notification dated 18.08.2006. The present writ petitions are devoid of any merit and the same are accordingly dismissed.

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All pending applications also stand dismissed.

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(BHUWAN GOYAL),J

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(PANKAJ BHANDARI),J

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SUNIL SOLANKI /PS

Banwari Lal Sharma Andanr v. State of Raj and Ors.

Case brief

What is this about?

What did the court decide?

Banwari Lal Sharma Andanr v. State of Raj and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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