Rajasthan High Court - Jodhpur
Bhairu Lal vs State Of Rajasthan (2025:Rj-Jd:9971) on 19 February, 2025
[2025:RJ-JD:9971]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 2227/2020
Bhairu Lal S/o Late Peera Ram, Aged About 27 Years, Plot No.39,
Near Baba Ramdev Temple, Masuriya, Jodhpur (Rajasthan)
----Petitioner
Versus
1. State Of Rajasthan, Through The Secretary To The
Government, Department Of Finance (Tax), Government
Of Rajasthan, Secretariat, Jaipur
2. Commissioner, Commercial Taxes Department, Rajasthan,
Jaipur
3. Additional Commissioner, Commercial Taxes Department,
Business Audit, Jodhpur
4. Joint Commissioner (Administration), State Tax
Department, Jodhpur
----Respondents
For Petitioner(s) : Mr. Mukesh Vyas
For Respondent(s) : Mr. M.P. Pareek.
HON'BLE MR. JUSTICE ARUN MONGA
Order (Oral) 19/02/2025
1. Petitioner herein, inter-alia, seeks quashing of an order dated 16.01.2020 (Annex.8), vide which appointment of the petitioner on the post of Tax Assistant was cancelled on the ground that his appointment was not substantive. Under challenge also is a consequential letter/order dated 30.01.2020 (Annex.9), vide which he was reverted back on the post of Junior Assistant (LDC)
2. Brief facts first. The petitioner's father was employed by the respondent department in 1979. After 33 years of service, he (Downloaded on 26/02/2025 at 09:20:35 PM) [2025:RJ-JD:9971] (2 of 8) [CW-2227/2020] passed away on June 18, 2012, while serving as an Office Assistant. The petitioner completed his Senior Secondary education, followed by a B.Com degree from Jai Narain Vyas University, Jodhpur. Additionally, he obtained a computer certificate - Rajasthan State Certificate in Information Technology (R.S.C.I.T.) from the Rajasthan Knowledge Corporation Limited (R.K.C.L.), which was issued by Vardhman Mahaveer Open University, Kota. Subsequently, upon due verification of academic credential, the respondents issued an appointment order on September 12, 2012, appointing him as a probationary Junior Assistant for two years. After completing the probationary period, the petitioner's services were regularized.
2.1 According to the Rajasthan Commercial Taxes Subordinate Services (General Branch) Rules, 1975 (as amended in 2010), employees in the Ministerial Cadre of the Commercial Taxes Department, who meet the required qualifications and experience, are eligible to be appointed to the post of Tax Assistant. The recruitment is split, with 80% of vacancies filled through direct recruitment and 20% filled through a departmental examination for existing ministerial staff.
2.2 On June 9, 2015, the Director of the State Tax Academy issued an advertisement inviting applications for the post of Tax Assistant against the 20% reserved vacancies for existing ministerial staff. The petitioner, fully eligible, applied and was selected through the Competitive Examination 2015. He was appointed as a probationary Tax Assistant on July 28, 2016. On July 29, 2016, the petitioner was relieved from his post as Junior Assistant and joined his new role as Tax Assistant. (Downloaded on 26/02/2025 at 09:20:35 PM) [2025:RJ-JD:9971] (3 of 8) [CW-2227/2020] 2.3 After completing his probationary period, the petitioner applied on July 30, 2018, for the regular pay scale corresponding to his Tax Assistant post and the same was granted. However, on 16.01.2020, the respondent issued an order cancelling the petitioner's appointment as Tax Assistant, citing that his initial appointment as Junior Assistant was not substantive, thus rendering him ineligible for the Tax Assistant role. The said order did not provide a clear explanation and failed to mention that the petitioner's appointment as Junior Assistant was on compassionate grounds which was regularized after his probation. 2.4 The petitioner, aggrieved by the unlawful cancellation of his Tax Assistant appointment and subsequent reversion to Junior Assistant, has filed the instant writ petition.
3. In the aforesaid backdrop, I have heard the rival contentions and perused the case file.
4. What seems to have weighed on the mind of the administrative authority is the original source of the petitioner at the time of his induction in service as Lower Divisional Clerk being on compassionate grounds, which was presumed to be a compromise on his competency. And thus, despite his having remained successful in the selection process on the post of Tax Assistant having qualified the written examination followed by rest of the process, as a bolt from the blue, vide impugned order dated 16.01.2020 (Annex.8), his selection as Tax Assistant was held to be invalid on the ground that at the time of his original induction his appointment was subject to his clearing the typing test. (Downloaded on 26/02/2025 at 09:20:35 PM) [2025:RJ-JD:9971] (4 of 8) [CW-2227/2020]
5. To say the least, the administrative authority has completely misdirected itself in taking such a lopsided view. Reasons are not far to seek let us see how.
6. First and foremost, reference may be had to the eligibility conditions as per Rule 11 of the Rajasthan Commercial Taxes Subordinate Service (General Branch) Rules, 1975, under which Schedule-I has been notified, which reads as under :-
S. Name of the Sources of recruitment with percent Qualification for direct No. post age recruitment 1 2 3 4
1. xxxx xxxx xxxx
2. Tax Assistant 100% by direct recruitment θ "Graduate or Higher degree a. 80% by the Appointing Authority in Computer Science/ in accordance with Schedule-III Computer Engineering / b. 20% by selection from amongst Computer Application/ ministerial staff of the commercial Computer Science & taxes department by way of Engineering or Electronics or departmental examination in Electronics and accordance with Schedule-II communication or Information Technology or Equivalent of a University established by law in India.
Or Post Polytechnic Diploma in Computer Applications or 3 years Diploma in Computer Science & Engineering / Computer Application / Information Technology or Equivalent from a Polytechnic Institution recognized by the Government.
Or
Graduate of a University
established by law in India
with Diploma in Computer
Science / Computer
Application / Information
Technology or equivalent of a
University established by law
in India or of an Institution
recognized by the
Government.
Or
Graduate of a University
established by law in India
with "O" or Higher Level
certificate course conducted
by National Institute of
Electronics and Information
Technology (NIEIT) DOEACC
under the control of
Department of Electronics,
Government of India.
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Or
Graduate of a University
established by law in India
with Computer Operator &
Programming Assistant
(COPA) / Data Preparation
and Computer Software
(DPCS) Certificate Organized
under National State Council
of Vocational Training
Scheme."
θ Substituted for $ "Graduate or higher degree in Computer Science/ Computer Engineering/Computer Application/ Computer Science & Engineering or Electronics or Electronics and communication or Information Technology or Equivalent of a University established by law in India. or Post Polytechnic Diploma in Computer Applications or 3 years Diploma in Computer Science and Engineering/Computer Application/Information Technology or Equivalent from Polytechnic Institution recognized by the Government and Speed of 15 words per minute typing in Hindi and 20 words per minute in English." vide Notification F.2(2)/DOP/A-II/78, dated 13.01.2017 $ Substituted for "Graduate in Computer Application/ Computer Science from a University established by law in India or post Polytechnic Diploma in Computer Applications or 3 years Diploma in Computer Science and Engineering from Polytechnic College/ Institution established/ recognized by law in India." vide Notification No. F. 2(2)/DOP/A-II/78, dated 11.08.2014."
7. A perusal of the above clearly reveals, and there is no ambiguity qua the same, that there is a two fold sourcing to be done by way of direct recruitment on the post of Tax Assistant i.e. 80% as per Schedule III i.e. candidates, who are not in service and 20% selection is to be made from amongst the serving ministerial staff in the department provided of course the candidates qualified in the departmental examination in accordance with the Schedule II. Schedule II is the one which determines the eligibility, syllabus and other pre-requisites for the serving 20% ministerial staff. Relevant extract of the same reads as under :-
"I. Eligibility - (i) Candidates of the ministerial services possessing the following qualification shall be eligible:-
(a) Who is holding the post in the cadre substantively in the ministerial service.
(b) Who possess the minimum educational qualification of Graduation in any discipline from any University established by law in India.
(ii) A candidate shall not be permitted to appear in the examination under this scheme for more than three times.
II. Selection - Appointment by selection shall be made in order of merit determined on the basis of marks obtained by the successful candidates in the examination conducted under this scheme. (Downloaded on 26/02/2025 at 09:20:35 PM) [2025:RJ-JD:9971] (6 of 8) [CW-2227/2020] III. Examination - The examination shall be conducted by such authority as may be appointed in this behalf by the Commissioner, Commercial Taxes Department."
8. It was in the aforesaid backdrop that the petitioner being aspirant to be selected on the post of Tax Assistant, applied in his quota of 20% since he was serving on the post of Junior Assistant (LDC) albeit, by virtue of the benevolent compassionate policy as his father had died in harness.
9. Be that as it may, his serving on the post in question, which is concededly the feeder post for being eligible to compete on the post of Tax Assistant is not under dispute.
10. The stand taken to oppose the petition, in fact, is diabolically unrelated to the eligibility, but is rather focused on the petitioner's source of appointment as LDC. Relevant extract of the response given to the petition is as below :-
"8. That in reply to the averments contained in Para 8 of the writ petition, it is submitted that though on completion of probation period, the petitioner was granted the regular pay- scale but annual grade increments were not granted to the petitioner in view of the condition mentioned in the appointment order dated 12.9.2012. That until and unless petitioner qualifies the computer course to acquire the necessary eligibility, he was not granted the annual grade increments. The petitioner was granted appointment under the Rajasthan Deceased Government Employees Compassionate Appointment Rules, 1996 pursuant to the order dated 7.9.2012 on the post of Junior Assistant. As per the appointment order for regularization on the post of Junior Assistant, the petitioner was required to clear the type test and acquire the computer eligibility within the time frame. The department of personnel (K-3) has issued the notification dated 7.9.2009 and 2.1.2017 in this regard and on failed to do so, the appointment so granted shall be liable to be terminated. A copy of the notification dated 7.9.2009 and 2.1.2017 are produced herewith and marked as Annexure-R/1 and Annexure-R/2 respectively."
11. Having perused the case file and after hearing the argument, it so transpires that not only the administrative authority, at the time of passing of the impugned order, but even subsequently, (Downloaded on 26/02/2025 at 09:20:35 PM) [2025:RJ-JD:9971] (7 of 8) [CW-2227/2020] while responding to the petition, has given complete short shrift to the eligibility of the petitioner entirely on extraneous grounds.
12. Furthermore, the respondents did not give the petitioner an opportunity for a hearing or provide a notice before this drastic action, violating principles of natural justice. The respondents later instructed the Additional Commissioner of the Commercial Tax Department to make necessary service record adjustments and revert the petitioner to the Junior Assistant post as per the order.
13. From the pleadings and the record appended with the petition, it clearly transpires that the impugned order dated 16.01.2020 (Annex.8) is completely non-speaking as it does not convey any reasons to the petitioner as how his initial appointment on the post of LDC was not substantive other than mentioning so for the sake of it.
14. While observing that his appointment is not substantive, there is not even a whisper with regard to the petitioner's other credentials including his academic qualification of being a B.Com. followed by having obtained a basic computer course i.e. Rajasthan State Certificate in Information Technology ('R.S.C.I.T.') from Rajasthan Knowledge Corporation Limited ('R.K.C.L.'). It was only after he was found eligible based on his qualifications that he was appointed as LDC. Thereafter, he successfully completed the probation period of two years and his services were regularized. It is rather unfathomable as to how an employee, who has been confirmed in service after undergoing the probation period and duly regularized, was treated as not a substantive employee of the department.
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15. As already noticed, no reason are forthcoming in the impugned order. No doubt, the petitioner seems to have cleared his typing test on 02.07.2020, however, as noticed already, since his services were clearly regularized, the passing of typing test had no significance whatsoever on regularization of his services.
16. Moreover, it transpires that he was granted the benefit of regularization and confirmation in service by virtue of his having obtained the computer certificate, which entitled him from an exemption to pass the typing test.
17. As an upshot, the impugned order is clearly passed under a mistaken notion that since he did not pass the typing test before being confirmed, therefore, he could be treated as non- substantive, does not stand scrutiny of law and is accordingly has to be set-aside.
18. Consequently, the instant petition is allowed. The impugned orders dated 16.01.2020 (Annex.8) and dated 30.01.2020 (Annex.9) are quashed with consequences to follow. The petitioner shall be allowed to continue on the post in question pursuant to his being successful in the selection process alongwith all consequential benefits including the admissible pay-scale and other financial benefits.
19. Pending application(s), if any, shall stand disposed of.
(ARUN MONGA),J 149-DhananjayS/Rmathur/-
Whether fit for reporting : Yes / No (Downloaded on 26/02/2025 at 09:20:35 PM) Powered by TCPDF (www.tcpdf.org)