Rajasthan High Court - Jaipur
Sunita Sharma vs State (Medical And Health)Anr on 17 September, 2016
Author: M.N. Bhandari
Bench: M.N. Bhandari
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JAIPUR BENCH JAIPUR
S.B. Civil Writ Petition No.12384/2016
Sunita Sharma
Versus
State of Rajasthan & Anr.
DATE OF ORDER : 09/09/2016
HON'BLE MR. JUSTICE M.N. BHANDARI
Mr. Gajendra Vyas, for petitioner
By this writ petition, a direction is sought for appointment of the petitioner on the post of ANM.
The petitioner appeared in the selection to the post in question and submitted required documents to show possession of qualification. The petitioner obtained qualification of Prathama from Hindi Sahitya Sammelan, Allahabad. The aforesaid qualification has not been taken to be sufficient for the post of ANM. As per rules and in terms of advertisement, a candidate was required to possess the qualification of Secondary apart from other qualifications. The petitioner is not in possession of the qualification of Secondary. The qualification of Prathama was considered to be equivalent to Secondary prior to amendment in the rules. After amendment, said qualification is not considered towards eligibility and equivalent to Secondary. The issue in respect of same controversy was referred and decided by the Full Bench of this court in the case of Shankar Lal Verma & 13 Ors. Vs. 2 Rajasthan State Electricity Board, reported in 1999 (1) WLC (Raj.)-1. The relevant paras of the said judgment are quoted hereunder for ready reference:
"1. The petitioners, in these cases, are Class IV servants in Government Departments, who have acquired a qualification equivalent to Secondary School Examination like Rashtra Bhasha Parichay from Rashtra Bhasha Prachar Samiti, Vardha;
Prathama from Hindi Sahitya Sammelan, Prayag. Allahabad etc. Some of them are working in the State Secretariat and some are working in other Government Departments. Class III employees of the Secretariat are governed by the Rajasthan Secretariat Ministerial Service Rules, 1970 and those Class III servants belonging to other departments are governed by the Rajasthan Subordinate Offices Ministerial Staff Rules, 1957 (for short, 'the Rules, 1970 and 1957'). In both the Rules, there is a provision for promotion from Class IV posts to Class III posts of Lower Division Clerks. The petitioners are desirous of promotion to the post of L.D.C.
2. Eligibility for promotion to the post of L.D.C. under the 1957 Rules was Secondary School Examination or its equivalent Examination recognised by the Government. Thereafter, under the amended rules, qualifications equivalent to Secondary School Examination were deleted from the rule relating to eligibility with the result that no person who did not possess Secondary School Examination certificate from the Rajasthan Secondary Education Board or University or Board established by law in India, was eligible for promotion to the post of L.D.C. with effect from June 28, 1985. All the petitioners had acquired the equivalent qualifications prior to June 28, 1985. They were not promoted till June 28, 1985 and the respondents expressed their inability to promote them after June 28, 1985, applying the amended Rules.
31. From the case law discussed above, it is clear that a rule 3 can be amended retrospectively, but such retrospective effect cannot be allowed to take away vested rights of citizens. It has also not been disputed before us that the amended rule would apply to vacancies which arise after the date on which the amending notification was issued. The questions to be decided, therefore, are as to whether the amended qualification in the rule would apply to Class IV employees who had acquired the equivalent qualification prior to amendment of the rule, and as to whether a vested right is conferred on the petitioners on their acquiring the equivalent qualification at a time when the equivalent qualification was not deleted from the rules. The contention that all candidates who had acquired the equivalent qualifications prior to the amendment in the rules deleting the equivalent qualifications would be deemed to have acquired that qualification in the legitimate expectation that by acquiring that qualification, they would become eligible for promotion as that was the qualification then prescribed under the rules for promotion to the post of L.D.C., cannot be accepted. There is nothing on record to show that any promise was held out by the respondents to the petitioners that they would be considered for promotion if they acquired the qualifications they have acquired. Moreover, if the contention is accepted, it would lead to absurd result as different candidates for; the same post at the same selection would be having different qualifications depending on the dates on which such qualifications were acquired. Thus, those who have acquired the same qualifications after the amendment in the rules would be ineligible but those who had acquired that qualification earlier to the amendment in the rules would be eligible.
33. In the result, we conclude that there is no force in the contention of the petitioners that the amended qualifications shall not apply to them because they had acquired the equivalent qualifications prior to the amendment of the rules. In, our opinion, the amended rule and the qualifications will apply even to the candidates who have obtained the equivalent qualifications prior to the date of 4 enforcement of amended rule. However, the amended qualifications shall not be applicable to the vacancies which had occurred prior to the date of enforcement of the amended rule and such vacancies shall be filled in in accordance with the qualifications prescribed as on the date of occurrence of vacancies. We, therefore, answer the reference accordingly. The petitions shall now be listed before appropriate Bench for decision in accordance with law in the light of this decision. "
In the light of judgment given above, the qualification of Prathama cannot be considered to be sufficient after its derecognition or amendment of Rules for any vacancy accrued and advertised after amendment in the rules. What will prevail in the State of Rajasthan is their own rules and it has already been considered by the Full Bench of this court in the judgment (supra).
In view of the above, I do not find any illegality in the action of the respondents. The writ petition is accordingly dismissed.
[M.N.BHANDARI], J.
FRBOHRA