Rajasthan High Court - Jaipur
State Of Rajasthan vs Vimala Devi Saini W/O Shri Om Prakash ... on 30 September, 2019
Bench: Mohammad Rafiq, Narendra Singh Dhaddha
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D. B. Civil Special Appeal (Writ) No. 877/2019
In
S. B. Writ Review Petition No. 48/2018
In
S.B. Civil Writ Petition No. 7330/2016
1. State of Rajasthan, Through The Principal Secretary,
Public Health Engineering Department, Government
Secretariat, Jaipur.
2. The Chief Engineer (Rural), Public Health Engineering
Department, Jal Bhawan, Jacob Road, Jaipur.
3. The Chief Engineer (Administration), Public Health
Engineering Department, Jal Bhawan, Jacob Road, Jaipur.
----Appellants
Versus
Vimala Devi Saini W/o Shri Om Prakash Saini, Aged About 38
Years, Resident Of 207, Bhagwati Nagar-I, Kartarpura, Jaipur.
----Respondent
For Appellant(s) : Ms. Archana on behalf of Mr. Anil Mehta, AAG.
For Respondent(s) : Mr. Abhishek Pareek.
HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA Judgment 30/09/2019 There is delay of 432 days in filing of the appeal. Application No. 579/2019 under Section 5 of the Limitation Act has been filed seeking condonation of delay in filing of the appeal.
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(2 of 5) [SAW-877/2019] For the reasons mentioned in the application, the same is allowed. Delay in filing of the appeal is condoned.
Heard learned counsel for the parties on the appeal. This appeal has been filed by the appellants challenging judgment dated 20.11.2017 passed by the learned Single Judge of this Court whereby writ petition filed by the respondent has been disposed of as also order dated 10.09.2018 passed by the learned Single Judge whereby review petition filed by the appellants has been dismissed.
Learned counsel for the appellants submitted that the learned Single Judge has erred in law in disposing of the writ petition by relying upon the judgment dated 22.01.2016 rendered by the Single Bench of this Court at Principal Seat at Jodhpur in Charu Joshi Vs. State of Rajasthan & Others, S.B. Civil Writ Petition No. 419/2015. Learned counsel submitted that in that case, Charu Joshi could not apply in degree category for appointment on the post of Junior Engineer because at that time he had not completed A.M.I.E. Course and was in the final year but the respondent in the present case, made a conscious choice by not applying in degree quota, though she had degree in hand and knowingly well that there were more number of posts in diploma quota, she would have better chances of appointment in that quota, she applied in diploma quota, therefore, case of the respondent is not similar to that of Charu Joshi (supra). Learned counsel in support of her argument has referred to Rule 6(1A) of the Rajasthan Engineering Subordinate Service (Public Health Engineering Branch), 1967 (for short 'the Rule of 1967').
Learned counsel for the respondent opposed the appeal and submitted that case of the respondent stands on better (Downloaded on 05/10/2019 at 08:48:47 PM) (3 of 5) [SAW-877/2019] footing than Charu Joshi (supra) because even though she applied in diploma category but she had already completed degree course and that when Charu Joshi applied, he was still in final year of the A.M.I.E. Course and was only diploma holder even then in his case writ petition was allowed. The appellants have accepted that judgment and not challenged the same. Moreover, learned counsel for the respondent submitted that the appellants have already made compliance of the judgment impugned by making the same subject to review petition. It is therefore prayed that the appeal may be dismissed.
Having heard learned counsel for the parties and perused the impugned judgment, we find that case of the respondent is indeed covered by the judgment in Charu Joshi (supra) and in a way stands on better footings because, as has rightly been argued, that the respondent has obtained degree and was in possession of the same at the time when she applied for appointment and disclosed the same whereas Charu Joshi was only diploma holder. Even then when Charu Joshi subsequently completed degree course, on his application, he was allowed to change the category from diploma holder to degree holder. This is permissible as per the rules, as would be evident from Rule 6(1A) of the Rules of 1967, which reads as under:
"6. Methods of Recruitment:- Recruitment to the Service after the commencement of these rules shall be made by the following methods in the proportion as indicated in column 3 of the schedule-
(a) direct recruitment in accordance with Part IV of these rules, and
(b) Promotion (in accordance with Part V) of these rules): Provided-
(1) that if the Appointing Authority is satisfied in consultation with the Commission, where necessary, that suitable persons are not available for appointment by either method of recruitment (Downloaded on 05/10/2019 at 08:48:47 PM) (4 of 5) [SAW-877/2019] in a particular year, appointment by the other method in relaxation of the prescribed proportion may be made in the same manner as specified in these rules; (1A) If a Diploma Holder Junior Engineer attains the qualifications of B.E. (Civil/Mechanical/Electrical), or AMIE, he shall be entitled on his application and subject to availability of vacancy, to be appointed as direct recruitment but in that case his seniority amongst the Junior Engineers (Degree Holders) shall be determined from the date of occurrence of vacancy against which such Junior Engineer has been appointed on the post of Junior Engineer (Degree Holder) and one third of his previous experience shall be counted as experience on the post of Junior Engineer for the purpose of promotion to the next higher post."
Aforesaid Rule 6(1A) provides that if a Diploma Holder Junior Engineer attains the qualifications of B.E. (Civil/Mechanical/Electrical), or AMIE, he shall be entitled on his application and subject to availability of vacancy to be appointed as direct recruitment but in that case his seniority amongst the Junior Engineers (Degree Holders) shall be determined from the date of occurrence of vacancy against which such Junior Engineer has been appointed on the post of Junior Engineer (Degree Holder) and one third of his previous experience shall be counted as experience on the post of Junior Engineer for the purpose of promotion to the next higher post. The Single Bench of this Court in Charu Joshi (supra) while allowing the writ petition held as under:
"9. In the present case, the petitioner on the date of application was only had the qualification of Diploma Holder, even though he was undergoing A.M.I.E. Course and was in the final year. If the petitioner had applied, there was no guarantee that he would have qualified. The only surety, in his hands, was that he was a Diploma Holder and had a reasonable opportunity of being appointed as Junior Engineer (Diploma Holder). In case, he did not qualify in the degree course, he would have lost the opportunity under the Diploma quota as well. Rule 6(1A) only specifies that in case a Junior Engineer (Diploma Holder) (Downloaded on 05/10/2019 at 08:48:47 PM) (5 of 5) [SAW-877/2019] attained qualification, he shall be entitled to be appointed as Junior Engineer (Degree Holder) by way of transfer against the quota of direct recruitment only on availability of a vacancy. Nonconsideration of his candidatures was on the ground that he did not apply in the advertisement under the Degree Holder quota and especially since he was already undergoing the third/final year examination is not tenable in view of the fact that the petitioner would be entitled to transfer only in case there is a vacancy and then of course the seniority would be reckoned as per rules."
In the present case, the respondent is possessing degree of B.E. Even if she applied against diploma category, the rules permit her to seek change of the category from diploma to degree quota, of course, subject to availability of vacancies and further subject to a rider that her seniority amongst the Junior Engineers (Degree Holders) shall be determined from the date of occurrence of vacancy against which she would be appointed on the post of Junior Engineer (Degree Holder) and one third of her previous experience shall be counted as experience on the post of Junior Engineer for the purpose of promotion to the next higher post. It has not been disputed that there is indeed vacancy available in the quota of Degree Holders Junior Engineer.
In view of above, we do not find any infirmity in the impugned judgments passed by the learned Single Judge. The appeal is accordingly dismissed.
Stay Application No. 9668/2019 also stands dismissed. (NARENDRA SINGH DHADDHA),J (MOHAMMAD RAFIQ),Acting CJ MANOJ NARWANI /17 (Downloaded on 05/10/2019 at 08:48:47 PM) Powered by TCPDF (www.tcpdf.org)