Rajasthan High Court - Jodhpur
Pankaj Kumar Kakra & Ors vs State Of Raj. & Ors on 5 April, 2013
Stay Petition No.2567/13 (DBCWP No.3276/13) etc
Pankaj Kumar Kakra & ors etc v. State of Raj.
1/7
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
::
ORDER
::
1] D.B. Misc. Stay Petition No.2567/2013 (D.B. W.P. No.3276/2013 ) Pankaj Kumar Kakra & ors v. State of Raj. & ors 2] D.B. Misc. Stay Petition No.1972/2013 (D.B. W.P. No.2643/2013) - Usha Joshi & ors v. State of Raj. & ors 3] D.B. Misc. Stay Petition No.2317/2013 (D.B. W.P. No.3014/2013) - Ramesh Kumar v. State of Raj. & ors 4] D.B. Misc. Stay Petition No.2318/2013 (D.B. W.P. No.3015/2013) - Vaga Ram v. State of Raj. & ors 5] D.B. Misc. Stay Petition No.2330/2013 (D.B. W.P. No.3028/2013) - Leela Ram & ors v. State of Raj. & ors 6] D.B. Misc. Stay Petition No.2331/2013 (D.B. W.P. No.3029/2013) - Joga Ram & ors v. State of Raj. & ors 7] D.B. Misc. Stay Petition No.2496/2013 (D.B. W.P. No.3205/2013) - Chetna Sharma v. State of Raj. & ors 8] D.B. Misc. Stay Petition No.2546/2013 (D.B. W.P. No.3254/2013) - Ashish Tripathi v. State of Raj. & ors 9] D.B. Misc. Stay Petition No.1749/2013 (D.B.W.P.No.2361/2013) - Subhash Chandra Saini & ors v. State of Raj. & ors 10] D.B. Misc. Stay Petition No.1791/2013 (D.B. W.P. No.2412/2013)
- Ghanshyam Panwar & ors v. State of Raj. & ors 11] D.B. Misc. Stay Petition No.1403/2013 (D.B. W.P. No.1723/2013)
- Mitendra Rathore & ors v. State of Raj. & ors 12] D.B. Misc. Stay Petition No.1533/2013 (D.B. W.P. No.2013/2013)
- Anil Patidar & ors v. State of Raj. & ors 13] D.B. Misc. Stay Petition No.1693/2013 (D.B. W.P. No.2289/2013)
- Lokendra Dave & ors v. State of Raj. & ors 14] D.B. Misc. Stay Petition No.1797/2013 (D.B. W.P. No.2419/2013)
- Jagdish Singh & ors v. State of Raj. & ors 15] D.B. Misc. Stay Petition No.1923/2013 (D.B. W.P. No.2577/2013)
- Mahaveer Prasad & ors v. State of Raj. & ors 16] D.B. Misc. Stay Petition No.1924/2013 (D.B. W.P. No.2578/2013)
- Jagdish & ors v. State of Raj. & ors 17] D.B. Misc. Stay Petition No.2002/2013 (D.B. W.P. No.2674/2013)
- Achla Ram v. State of Raj. & ors Stay Petition No.2567/13 (DBCWP No.3276/13) etc Pankaj Kumar Kakra & ors etc v. State of Raj.2/7
18] D.B. Misc. Stay Petition No.2138/2013 (D.B. W.P. No.2827/2013)
- Rakesh Kumar v. State of Raj. & ors 19] D.B. Misc. Stay Petition No.2163/2013 (D.B. W.P. No.2856/2013)
- Praveen Kumar v. State of Raj. & ors 20] D.B. Misc. Stay Petition No.2305/2013 (D.B. W.P. No.3002/2013)
- Pushpa Devi v. State of Raj. & ors 21] D.B. Misc. Stay Petition No.2526/2013 (D.B. W.P. No.3234/2013)
- Ganesh Ram v. State of Raj. & ors 22] D.B. Misc. Stay Petition No.2527/2013 (D.B. W.P. No.3235/2013)
- Arjun Deora & ors v. State of Raj. & ors 23] D.B. Misc. Stay Petition No.2532/2013 (D.B. W.P. No.3240/2013)
- Shahad Hussain v. State of Raj. & ors 24] D.B. Misc. Stay Petition No.2534/2013 (D.B. W.P. No.3242/2013)
- Ved Prakash v. State of Raj. & ors 25] D.B. Misc. Stay Petition No.2535/2013 (D.B. W.P. No.3243/2013)
- Mukesh Kumar Lad v. State of Raj. & ors 26] D.B. Misc. Stay Petition No.2544/2013 (D.B. W.P. No.3252/2013)
- Naresh Kumar & ors v. State of Raj. & ors 27] D.B. Misc. Stay Petition No.2545/2013 (D.B. W.P. No.3253/2013)
- Bhanwar Ram & ors v. State of Raj. & ors 28] D.B. Misc. Stay Petition No.2610/2013 (D.B. W.P. No.3317/2013)
- Pushp Raj Chouhan v. State of Raj. & ors ::
Date of Order: 05th April 2013 ::
PRESENT
HON'BLE MR JUSTICE NARENDRA KUMAR JAIN
HON'BLE MR JUSTICE V.K. MATHUR
Dr P.S. Bhati, Mr Manoj Bhandari }
Mr Deepak Nehra, Mr Rakesh Arora, }
Mr N.R. Choudhary, Mr H.S. Sidhu, } for the petitioner
Mr B.L. Bhati, Mr Dhirendra Singh, }
Mr R.S. Choudhary, Mr Mahendra Prajapat, } Mr G.R. Punia, Additional Advocate General Heard learned counsel for the parties on the stay petitions.
Stay Petition No.2567/13 (DBCWP No.3276/13) etc Pankaj Kumar Kakra & ors etc v. State of Raj. 3/7 The challenge, in these writ petitions, is to notification dated 29th January 2013 issued by the Government of Rajasthan, Department of Rural Development and Panchayati Raj, whereby existing second proviso to rule 273 of the Rajasthan Panchayati Raj Rules, 1996 {herein after 'the Rules of 1996'} has been substituted with the following:
"Provided also that in case of appointment to the post of Lower Division Clerk, merit shall be prepared by the Appointing Authority on the post of such weightage as may be specified by the State Government for the marks obtained in Senior Secondary or its equivalent examination and such marks as may be specified by the State Government having regard to the length of experience exceeding one year acquired by persons engaged on the post of Junior Technical Assistant (JTA), Junior Engineer, Gram Rozgar Sahayak, Data Entry Operator, Computer Operator with Machine, Lekha Sahayak, Lower Division Clerk, Coordinator IEC, Coordinator Training, Coordinator Supervision, other than through placement agency, in MNNAREGA or in any other scheme of the Department of Rural Development and Panchayati Raj in the State."
The submissions of learned counsel for the petitioners are that the petitioners were appointed in MGNAREGA and in other schemes of the Department of Rural Development and Panchayati Raj in the State of Rajasthan, directly and also through placement agency. All posts were sanctioned by the State of Rajasthan and against sanctioned posts, number of persons were appointed directly and number of persons were appointed through placement agency, as per instructions of the State Government. They submitted that the petitioners were fully qualified and they have served the State of Rajasthan since Stay Petition No.2567/13 (DBCWP No.3276/13) etc Pankaj Kumar Kakra & ors etc v. State of Raj. 4/7 2006 onwards, some of the petitioners were appointed in the years 2007 and 2008 also.
By amended notification dated 29th January 2013, the persons appointed through 'placement agency' have been debarred from awarding of bonus marks for the purpose of preparing merit list. As per substituted second proviso to rule 273 of the Rules of 1996, the merit list is required to be prepared by the appointing authority on the basis of such weightage as may be specified by the State Government for the marks obtained in Senior Secondary or its equivalent examination and such marks, as may be specified by the State Government, having regard to length of service exceeding one year acquired by the persons engaged on the post of Junior Technical Assistant (JTA), Junior Engineer, Gram Rozgar Sahayak, Data Entry Operator, Computer Operator with Machine, Lekha Sahayak, Lower Division Clerk, Coordinator IEC, Coordinator Training, Coordinator Supervision; other than through placement agency, in MGNAREGA or in any other scheme of the Department of Rural Development and Panchayati Raj in the State.
Submission of learned counsel for the petitioners is that the persons appointed directly or through placement agency were employees of the State of Rajasthan. The State of Rajasthan is the principal employer, even for employees employed through contractor or placement agency, therefore, the rule is violative of provisions of the Constitution of India, as it constitutes two classes of same employees. It is further Stay Petition No.2567/13 (DBCWP No.3276/13) etc Pankaj Kumar Kakra & ors etc v. State of Raj.
5/7submitted that since appointment of the petitioners employed through placement agency were also against sanctioned and vacant posts in the same scheme, therefore, petitioners could not have been debarred from considering their cases and for awarding weightage as per amended proviso.
Learned counsel for the petitioners, therefore, submitted that operation of the notification dated 29th January 2013 be stayed and consequently, further process of recruitment on the post of LDC may also be stayed.
Learned Additional Advocate General opposed the stay petitions and submitted that persons employed through placement agency constitute different class and therefore, the State Government has rightly amended the Rules. He, therefore, submitted that no interim order should be passed in the facts and circumstances of the present case.
We have considered the submissions of learned counsel for the parties.
Learned counsel for the petitioners have referred to number of documents to show that they were appointed against vacant and sanctioned posts. Sometimes they were appointed directly and sometimes they were engaged on contract basis through placement agency. There are number of petitioners who were appointed on the same post, sometime directly and sometime through placement agency, as per directions of the State Government; but there is no dispute that they were appointed against sanctioned and vacant posts and they worked on said post.
Stay Petition No.2567/13 (DBCWP No.3276/13) etc Pankaj Kumar Kakra & ors etc v. State of Raj.
6/7The question is only in respect of experience gained by the petitioners as it has become relevant in view of amendment in rule vide notification dated 29th January 2013 as bonus marks are to be awarded. As per notification dated 01st February 2013, 10 marks are to be awarded in respect of experience exceeding one year but less than two years, 20 marks for experience exceeding 2 years but less than 3 years and 30 marks are being awarded for experience exceeding 3 years.
Be that as it may, since after considering submissions of the parties, we have admitted these writ petition and further process of recruitment may create further problem, therefore, we think it fit and proper to pass following order:
The experience certificate enclosed with the applications of petitioners, on the basis of direct appointment or through placement agency and in case where experience certificate is not available, then same will be considered, on the basis of appointment order of the petitioners, in Panchayati Raj Department or in any other scheme of the Panchayati Raj Department, the bonus marks as per notification dated 01st February 2013 will be awarded to petitioners, on provisional basis and the same will be taken into consideration while preparing final merit list of all the candidates. However, result/merit number of the petitioners will not be declared and the same will be kept in sealed cover, till final disposal of these writ petitions. It is made clear that this interim order will not create any right in favour of the petitioners. The persons, other than petitioners, out of the merit list may be given appointment, Stay Petition No.2567/13 (DBCWP No.3276/13) etc Pankaj Kumar Kakra & ors etc v. State of Raj.7/7
as per their merit, by the respondents in accordance with the Rules/law.
The stay applications stand disposed of with aforesaid observation and direction.
[V.K. MATHUR], J. [NARENDRA KUMAR JAIN], J.
mma 1,37,42,43,45,46,49,50,68,69, 70,72-78, 80,81,118,119, 122-127