Rajasthan High Court - Jaipur
Om Prakash Kumawat And Ors vs State (P H E D ) And Ors on 20 March, 2012
Author: M.N. Bhandari
Bench: M.N. Bhandari
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR S.B. Civil Writ Petition No.3227/2012 Om Prakash Kumawat and others Versus State of Rajasthan and others Date of Order :: 20.3.2012 HON'BLE MR. JUSTICE M.N. BHANDARI Mr.Amit Jindal for petitioners.
<><><> By this writ petition, a prayer is made to direct the respondents to appoint the petitioners on the post of Junior Engineer pursuant to the notifications dated 21.12.1989 and 9.5.1997 at Annexures-1 and 2.
It is submitted that vide notification dated 21.12.1989, arrangement was made to allow eligible candidates for appointment on the various posts including the posts of Junior Draftsmen/Junior Engineer. The said notification was applied to the respondent department vide order dated 9.5.1997. The respondents thereafter appointed as many as 17 persons on the post of Junior Engineer vide Annexure-3 dated 21.5.1997. The respondents thereafter called for applications of eligible candidates vide order at Annexure-6. A request was further made vide Annexure-7 dated 25.4.2005 to fill up the posts lying vacant, however, vide Annexure-8 dated 3.7.2006 the issue was dealt with holding that no action can be taken pursuant to the applications submitted after 25.7.2006. It was precisely on the ground that one should possess the required qualifications on or before 1.4.1997 whereas petitioners possessed the required qualifications in the year 2002 i.e. much after the cut off date. It is submitted that cut off date so fixed is wholly illegal inasmuch as all who are having required qualifications should be given appointment pursuant to the notifications dated 21.12.1989 and 9.5.1997.
I have considered the submissions made by learned counsel for petitioners and perused the record carefully.
The perusal of notification at Annexure-1 dated 21.12.1989 shows that amendment was made to fill up certain posts once only. It was from and amongst in service candidates completed two years continuous service and were in possession of the required qualifications as provided for direct recruitment. The posts in question were otherwise to be filled by direct recruitment, thus an exception was carved out once only. Vide order at Annexure-2 dated 9.5.1997, notification dated 21.12.1989 was applied by the respondent department. The order of appointment was accordingly issued on 21.5.1997 for appointment of 17 eligible persons. The petitioners were not having required qualification on the aforesaid date as they possessed required qualification sometime in the year 2002. In the aforesaid background, even if respondents issued orders at Annexures-6 and 7 to call application for appointment of the eligible candidates to fill up vacant posts, same cannot be accepted being contrary to the amended provision. An exception carved out in the criteria of appointment once cannot be applied forever. It is taking note of the aforesaid, respondents took a view that those who were not in possession of the required qualifications as on 1.4.1997 are not entitled to the benefit. The fact further remains that no action has been taken based on Annexures-6, 7 and 8 as one time arrangement cannot be applied forever. In fact, after the order at Annexure-3 giving appointment to 17 persons, no further appointment has been made till date pursuant to the notifications at Annexures-1 and 2. The period of 15 years has already passed thereafter thus amended provision making one time exception cannot be applied forever. Even if respondents tried to make an effort for making appointment pursuant to the aforesaid notification, it is nothing but an illegality. It may be that there are difficulties on account of vacant posts but nobody restrained the respondents to fill up those posts by the mode provided under the Rules. For the aforesaid purpose, language of notification dated 21.12.1989 is relevant and is quoted hereunder to the extent it is applicable to the present matter:-
that persons employed on work-charged basis in Public Works Department/Irrigation (Indira Gandhi Nahar Board (including Indira Gandhi Nahar Board Command Area Development) Department/PHED Ayurved Department and who have put in at least two years continuous service as on 1.4.1988 and such other employees who have been working on lower posts in the Department and possess the requisite qualifications for direct recruitment to any of the post of Driver, Tracers, Forroman, Junior Draftsman, Laboratory Assistant, Laboratory Attendant etc. may be considered once only for appointment on these posts against direct recruitment quota along with fresh names received from open market candidates and upto 50% vacant posts may be filled out of the above categories of work-charged employee and other employees in relaxation of age limit prescribed in these rules. Provided they are otherwise found suitable by the selection committee.
Perusal of the quoted para and portion underlined shows that one time exception to direct recruitment quota was made for in service candidates though similar provision of this nature has been held to be unconstitutional in other cases. The validity of the provision is not challenged by anyone rather order of appointment at Annexure-3 was issued in the year 1997, thus without going into that controversy, I am of the view that notification making exception to fill certain posts from and amongst in service candidates cannot be made as a general rule and it cannot be applied forever. The employee who got required qualifications much subsequent to the notifications dated 21.12.1989 and 9.5.1997 cannot seek benefit. The writ petition is accordingly found to be devoid of merit, hence, dismissed. This disposes of stay application also.
(M.N. BHANDARI), J.
Item No.7 Sunil/JrPA All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
(Sunil Solanki) P.A