Rajasthan High Court - Jaipur
"Apart From The Conflicting Opinions ... vs Uma Devi (Supra). The Judgment Begins ... on 23 May, 2014
Author: Amitava Roy
Bench: Amitava Roy
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR
ORDER
1.D.B. Civil Writ Petition No.14947/2013
Dinesh Kumar Sharma & Ors. v. State of Rajasthan & Ors.
2.D.B. Civil Writ Petition No.15016/2013
Surendra Singh v. State of Rajasthan & Anr.
3.D.B. Civil Writ Petition No.15071/2013
Shriphal Mali & Ors. v. State of Rajasthan & Anr.
4.D.B. Civil Writ Petition No.15091/2013
Bharat Bhushan Sharma & Ors. v. State of Rajasthan & Anr.
5.D.B. Civil Writ Petition No.15114/2013
Dipak Singh & Anr. v. State of Rajasthan & Ors.
6.D.B. Civil Writ Petition No.15116/2013
Nemi Chand & Ors. v. State of Rajasthan & Ors.
7.D.B. Civil Writ Petition No.15193/2013
Ranjeet Singh & Ors. v. State of Rajasthan & Ors.
8.D.B. Civil Writ Petition No.15194/2013
Bal Kishan Kumawat & Ors. v. State of Rajasthan & Ors.
9.D.B. Civil Writ Petition No.15524/2013
Prem Prakash Bhartiya & Ors. v. State of Rajasthan & Ors.
10.D.B. Civil Writ Petition No.16107/2013
Gopal Singh v. State of Rajasthan & Ors.
11.D.B. Civil Writ Petition No.16336/2013
Shri Bhagwan & Ors. v. State of Rajasthan & Ors.
12.D.B. Civil Writ Petition No.16643/2013
Surendra Singh & Ors. v. State of Rajasthan & Ors.
13.D.B. Civil Writ Petition No.16661/2013
Deepak Kumar & Anr. v. State of Rajasthan & Ors.
14.D.B. Civil Writ Petition No.16821/2013
Ikram v. State of Rajasthan & Ors.
15.D.B. Civil Writ Petition No.18659/2013
Shyam Lal & Ors. v. State of Rajasthan & Ors.
16.D.B. Civil Writ Petition No.14998/2013
Anoop Kumar Sisodiya & Ors. v. State of Rajasthan & Ors.
17.D.B. Civil Writ Petition No.15040/2013
Ashok Kumar & Ors. v. State of Rajasthan & Ors.
18.D.B. Civil Writ Petition No.15070/2013
Dilip Singh & Ors. v. State of Rajasthan & Ors.
19.D.B. Civil Writ Petition No.15075/2013
Vihari Sharan Kaushik & Ors. v. State of Rajasthan & Ors.
20.D.B. Civil Writ Petition No.15076/2013
Kailash Chand Yadav & Ors. v. State of Rajasthan & Ors.
21.D.B. Civil Writ Petition No.15077/2013
Bhanwari Kumari Meena & Ors. v. State of Rajasthan & Ors.
22.D.B. Civil Writ Petition No.15089/2013
Ashok Kumar & Ors. v. State of Rajasthan & Ors.
23.D.B. Civil Writ Petition No.15115/2013
Mahendra Kumar Yadav & Ors. v. State of Rajasthan & Ors.
24.D.B. Civil Writ Petition No.15135/2013
Mahendra Kumar Samota & Ors. v. State of Rajasthan & Anr.
25.D.B. Civil Writ Petition No.15148/2013
Rajendra Kumar Bugalia & Ors. v. State of Rajasthan & Ors.
26.D.B. Civil Writ Petition No.15152/2013
Satish Kumar Verma & Ors. v. State of Rajasthan & Ors.
27.D.B. Civil Writ Petition No.15190/2013
Gajanand Yadav & Ors. v. State of Rajasthan & Ors.
28.D.B. Civil Writ Petition No.15192/2013
Anandi Lal Regar & Ors. v. State of Rajasthan & Ors.
29.D.B. Civil Writ Petition No.15195/2013
Sunil Kumar Moond & Ors. v. State of Rajasthan & Ors.
30.D.B. Civil Writ Petition No.15222/2013
Durgesh Kumar Dhobi & Ors. v. State of Rajasthan & Ors.
31.D.B. Civil Writ Petition No.15282/2013
Laxman Lal Yadav & Ors. v. State of Rajasthan & Ors.
32.D.B. Civil Writ Petition No.15343/2013
Prashant Kumar & Ors. v. State of Rajasthan & Ors.
33.D.B. Civil Writ Petition No.15346/2013
Manoj Kumar Vaishnav & Ors. v. State of Rajasthan & Ors.
34.D.B. Civil Writ Petition No.15491/2013
Jitendra Kumar Mahala & Ors. v. State of Rajasthan & Ors.
35.D.B. Civil Writ Petition No.15492/2013
Gopal Lal & Ors. v. State of Rajasthan & Ors.
36.D.B. Civil Writ Petition No.15525/2013
Manoj Kumar Nagar & Ors. v. State of Rajasthan & Ors.
37.D.B. Civil Writ Petition No.15677/2013
Shree Chand Pareek & Anr. v. State of Rajasthan & Anr.
38.D.B. Civil Writ Petition No.16067/2013
Naval Kishore Saini v. State of Rajasthan & Anr.
39.D.B. Civil Writ Petition No.16471/2013
Amar Singh Yadav & Anr. v. State of Rajasthan & Ors.
40.D.B. Civil Writ Petition No.16475/2013
Ashok Kumar & Ors. v. State of Rajasthan & Ors.
41.D.B. Civil Writ Petition No.16601/2013
Rajesh Sharma & Anr. v. State of Rajasthan & Anr.
42.D.B. Civil Writ Petition No.16660/2013
Naresh Suwalka & Ors. v. State of Rajasthan & Ors.
43.D.B. Civil Writ Petition No.17153/2013
Narendra Singh Tanwar & Anr. v. State of Rajasthan & Ors.
44.D.B. Civil Writ Petition No.17198/2013
Suresh Kumar Choudhary v. State of Rajasthan & Anr.
45.D.B. Civil Writ Petition No.17324/2013
Dharam Pal Verma & Ors. v. State of Rajasthan & Ors.
46.D.B. Civil Writ Petition No.17326/2013
Sunil Kumar Meena & Ors. v. State of Rajasthan & Ors.
47.D.B. Civil Writ Petition No.17831/2013
Pawan Kumar & Ors. v. State of Rajasthan & Ors.
48.D.B. Civil Writ Petition No.17832/2013
Rajesh Kumar & Ors. v. State of Rajasthan & Ors.
49.D.B. Civil Writ Petition No.18310/2013
Sandeep Kumar Poonia & Ors. v. State of Rajasthan & Ors.
50.D.B. Civil Writ Petition No.18311/2013
Bhola Ram Dewanda v. State of Rajasthan & Ors.
51.D.B. Civil Writ Petition No.18338/2013
Kapil Sharma v. State of Rajasthan & Ors.
52.D.B. Civil Writ Petition No.18340/2013
Rameshwar Dayal Jatav & Anr. v. State of Rajasthan & Ors.
53.D.B. Civil Writ Petition No.19268/2013
Pradeep Singh v. State of Rajasthan & Ors.
54. D.B. Civil Writ Petition No.19596/2013
Gordhan Kumar Parashar v. State of Rajasthan & Anr.
55. D.B. Civil Writ Petition No.1420/2014
Pavan Kumar Rawat v. State of Rajasthan & Ors.
Date of Judgment :: 23rd May, 2014
PRESENT
HON'BLE THE CHIEF JUSTICE MR. AMITAVA ROY
HON'BLE MR. JUSTICE VEERENDR SINGH SIRADHANA
Mr. N.K. Maloo, Senior Counsel, with Mr.V.K. Tamolia, Mr. Rajendra Soni with Mr.N.K. Garg, Mr.Vishal Soni, Mr.Lokesh Sharma, Mr. Pyare Lal, Mr. Naveen Dhuwan, Mr. Yogesh Sharma, Mr. Lalit Sharma, Mr. Anoop Dhand, Mr. Ram Pratap Saini, Mr. Banwari Lal Saini, Mr. Sunil Kr. Jain, Mr. Govind Choudhary, Mr. Takhat Singh, Mr. Rajesh Gadwal, Mr.Vijay Pathak - for the petitioners.
Mr. S.K. Gupta, AAG with
Mr. Gaurav Tanwar, for the State.
Mr. Vigyan Shah, for the respondents.
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BY THE COURT : (Per Hon'ble Veerendr Singh Siradhana, J.)
The instant batch of writ applications, involves similar question of law, therefore, the writ applications are being adjudicated upon by this common judgment.
2. Briefly, the indispensable material facts necessary for appreciation of the controversy raised are: that the State-respondents invited applications from eligible candidates for selection by direct recruitment to the post of Live Stock Assistant vide advertisement dated 6th August, 2013, against 1483 vacancies, subsequently revised to 1710. The advertisement contemplated 70% weightage to the educational and technical qualifications stipulated in the Schedule and 30% weightage/bonus marks to the candidates, who are in possession of more than 7 years experience of working in the Animal Husbandry Department and were still continuing.
3. The petitioners are aggrieved of the grant of weightage/bonus marks to the extent of 30%, which according to them, is an attempt to regularize the 'backdoor entries' being violative of Article 14, 16 and 21 of the Constitution of India. Therefore, the amendment introduced to Proviso-I to Rule 19 of the Rajasthan Animal Husbandry Subordinate Service Rules, 1977 (hereinafter referred to as the 'Rules of 1977', for short), through an administrative order as well as the relevant clause of the advertisement impugned dated 6th August, 2013; has been assailed as arbitrary, unreasonable, irrational and having no nexus with the object to be achieved rather an attempt in colourable exercise of the power to regularize the candidates, who could not have been regularized otherwise. The petitioners have further prayed for an appropriate writ, order or direction, directing the State-respondents to accord benefit of weightage/bonus marks of 30% in proportion to the length of experience, even to those who did not complete 7 years of service in the Animal Husbandry Department.
4. Mr.N.K. Maloo, learned Senior Counsel, appearing on behalf of the petitioners, reiterating the pleaded facts, submits that the direct recruitment to the post of Live Stock Assistant is governed by the Rules of 1977. Clause 5 of the advertisement deals with the educational and technical qualifications as mentioned in the Schedule to the Rules of 1977. Clause 11 of the advertisement deals with the selection procedure wherein percentage of marks of Senior Secondary and percentage of marks of Technical Qualification will be added and average will be taken and the percentage arrived at will be given weightage to the extend of 70%. Clause 11.5 of the advertisement stipulates that a candidate in possession of more than 7 years of working in the Animal Husbandry Department will be allowed 30% marks by way of weightage/bonus marks and thereafter, the merit list will be drawn. An Experience Certificate issued by the Animal Husbandry Department of the Government of Rajasthan would be only recognized for the purpose of grant of weightage/bonus marks of 30%. Referring to the entry at serial number 3 of the Schedule appended to the Rules of 1977, the learned Senior Counsel argued that in the Schedule, the educational qualifications have been provided and there is no requirement of any experience as far as 90% posts for direct recruitment from open market are concerned. However, experience of 5 years of regular service on the post of Live Stock Attendant has been provided in respect of 10% posts reserved for direct recruitment from out of the in-service candidates. Thus, providing for 30% marks on account of weightage/bonus in the advertisement, weightage of educational and technical qualifications has been reduced to 70%, is contrary to the mandate of the Rules of 1977. Moreover, Rules 19 of the Rules of 1977 deals with the 'Scrutiny of Applications', enabling the Commission or the Appointing Authority to call upon as many candidates as may be desirable to appear for interview and written test. Therefore, the action of the State-respondents in introducing a new qualification of experience of more than 7 years and reducing the weightage of educational and technical qualifications to 70%, by an administrative order, is impermissible in law and thus, contrary to the provisions of the Rules of 1977. The learned Senior Counsel would further contend that the Appointing Authority by an administrative order, supplanted the qualification incorporated in the Schedule to the Rules of 1977. Furthermore, restricting the grant of weightage/bonus marks of 30% only to the candidates having experience of more than 7 years abruptly qualifies for 30% marks whereas those having experience of less than 7 years, are deprived of proportionate weightage/bonus marks and therefore, the criterion adopted was neither rational nor logical. Be that as it may, if weightage to experience is given, then it should have been in proportion to the length of experience. Hence, the stipulation of experience of more than 7 years of working in the Department of Animal Husbandry, is a 'tailor-made' provision intended to accord benefit to such candidates. Moreover, Writ Petition Number 1898 of 2006 (Ramkaran & Ors. v. State of Rajasthan) was dismissed on 13th April, 2007, declining the claim of regularization since the petitioners were appointed only for a fixed period on a consolidated salary in the light of law declared by the Hon'ble Supreme Court in the case of Secretary, State of Karnataka & Ors. v. Umadevi & Ors.: (2006) 4 SCC 1. Referring to the advertisement dated 27th January, 2011, wherein 525 posts of Live Stock Assistant were advertised and the State-respondents intended to accord 40% weightage, prescribing 10% bonus marks for each year's experience subject to maximum for 40%, was interfered with by this Court in Writ Petition No.9001/2011 (Indraj Singh Choudhary & Ors. v. State of Rajasthan & Ors.). However, during the pendency of the writ application, the criteria was changed to 25% weightage, divided proportionately to the length of experience. Ultimately, the writ application was partly allowed on 24th August, 2012, by the learned Single Judge holding that weightage may be given to experience, but it cannot be more than 10%. However, the selections and appointments were made thereafter in compliance of the judgment rendered by the learned Single judge, are subject matter of litigation before this Court by the candidates, who were unsuccessful. Limiting the grant of 30% weightage/bonus marks, on the basis of experience, only to the Live Stock Assistants appointed in the Departments of Animal Husbandry while excluding those who are working in other Departments of the State Government has also been assailed as an action, which suffers with the vice of discrimination, denying equality as well as equal opportunity of consideration for public employment and thus, violative of Article 14, 16 and 21 of the Constitution. The learned counsel further contended that the post of Live Stock Assistant, is the lowest post in the cadre of service and therefore, introduction of an element of experience is not at all necessary.
5. In order to reinforce his submissions, the learned Senior Counsel for the petitioners placed reliance on the law declared by the Hon'ble Supreme Court of India as well as by this Court in the case of Satyabrata Sahoo & Ors. v. State of Orissa & Ors.: (2012) 8 SCC 203; V.N. Sunda Reddy & Ors. v. State of A.P. & Ors.: 1995 Supp (2) SCC 323; R.N. Nanjundappa v. T. Thimmaiah & Anr.: AIR 1972 SC 1767; Richhpal Singh v. State of Rajasthan: RLR 2005 (1) 607, and Shashi Kumar Purohit etc. v. State of Rajasthan & Anr.: RLR 1989 (2) 217.
6. Shri Ram Pratap Saini, learned counsel appearing on behalf of the petitioner(s) in D.B. Civil Writ Petition Number 14947 of 2013 (Dinesh Kumar Sharma v. State of Rajasthan & Ors.), adopting the arguments of the learned Senior Counsel, Mr. N.K. Maloo, reiterated the claim for grant of weightage/bonus marks for each completed year of service, on the analogy drawn on the basis of amendment in Rajasthan Ayurvedic, Unani, Homeopathy and Naturopathy Subordinate Service Rules, 1966 as well as in Rajasthan Medical & Health Subordinate Service Rules, 1973, so also in Rajasthan Panchayati Raj Subordinate Service Rules, 1996. The main thrust of the argument is on the criterion of experience exceeding 7 years acquired by the candidates, who are appointed to the post of Live Stock Assistant in the Department and have been continuously working on the post on the date of commencement of the Rules of 2013, as introduced vide notification dated 8th July, 2013; being discriminatory qua the candidates with less than 7 years of service.
7. Mr.Sunil Kumar Singodiya, learned counsel appearing on behalf of the petitioner(s) in D.B. Civil Writ Petition Numbers 15116 of 2013 and 16821 of 2013, has also endorsed the arguments already advanced, as noted herein above, with further addition that the condition of experience exceeding 7 years, acquired by the candidates appointed to the post of Live Stock Assistant in the Department and have been continuously working on the post on the date of commencement of (Amendment) Rules, 2013, as discriminatory. The learned counsel would further submit that 7 years of continuous working, as introduced vide impugned notification, is discriminatory qua the candidates who though worked for 7 years but not continuously as in the case of candidates, he represented. The learned counsel reiterated the fact that the terms and conditions of the appointment and the nature of duties discharged by the petitioners, were same and therefore, exclusion of such candidates, for the purpose of grant of weightage/bonus marks, is discriminatory.
8. Mr. Tanveer Ahmed, learned counsel appearing on behalf of the petitioner(s) in D.B. Civil Writ Petition Number 18659 of 2013, adopting the reasoning and arguments of his learned colleagues and the learned Senior Counsel, further added that the State-respondents in order to deprive the petitioners of admissible pay scales and allowances engaged them on fixed remuneration and ultimately, deprived them of bonus marks vide impugned amendment imposing a condition of experience exceeding 7 years acquired by the candidates on the post of Live Stock Assistant, in the Department on fixed pay and who have been continuously working, on the date of commencement of the (Amendment) Rules of 2013.
9. Mr. Anoop Dhand, learned counsel appearing on behalf of the petitioner(s) in D.B. Civil Writ Petition Number 15135 of 2013, has assailed the action of the State-respondents in denying grant of weightage/bonus marks to the candidates appointed through placement agencies, who have been working with effect from 2011- 2012, though they were discharging almost identical duties. The learned counsel would further submit that the experience acquired by the candidates is with reference to the work and therefore, the candidates who acquired experience by discharge of duties of similar nature of work, even in the private institutions, could not have been excluded. In order to reinforce his arguments, the learned counsel placed reliance on the verdict of Coordinate Bench while adjudicating upon on a batch of writ applications lead case being D.B. Civil Writ Petition Number 1723 of 2013 (Mitendra Singh Rathore & Ors. v. State of Rajasthan & Ors.) vide judgment and order dated 30th July, 2013.
10. Mr. Rajendra Soni, learned counsel for the petitioner, has also adopted and endorsed the stand of the learned Senior Counsel and his colleagues in assailing the challenge to the recruitment process and the action in grant of weightage/bonus marks on same lines placing reliance on the opinion of the Hon'ble Supreme Court in the case of Sarva U.P. Gram Bank & Ors. v. Manoj Kumar Chak: (2013) 6 SCC 287.
11. In response to the notice of the writ application, the State-respondents have filed their counter-affidavit repelling the contentions raised. Mr.S.K. Gupta, the learned Additional Advocate General, supporting the Rajasthan Animal Husbandry Subordinate Service (Amendment) Rules, 2013 (hereinafter referred to as the 'Rules of 2013', for short), argued that the amendment provided relaxation in the age to the candidates serving as Live Stock Assistants as well as on the post of 'Jaldhari' for more than 7 years in the Department, if they were within the age limit at the time of their initial appointment. Further, the advantage of weightage of 30% bonus marks has been restricted only to those candidates who served for more than 7 years and are still continuing. The amendment is intended in the larger interest as well as to give advantage to the persons having experience of more than 7 years of service in the Department, may be on ad-hoc/temporary basis. The learned Additional Advocate General would further submit that the amendment is within the legislative competency of the Government and it is not in violation of any of the provisions of the Constitution of India or violative of any existing Service Rules. According to the learned counsel for the respondents, vide impugned advertisement dated 6th August, 2013, online applications were invited for appointment to the post of Live Stock Assistant from the eligible candidates in terms of age and educational qualifications under the Rules. The advertisement contemplates that the candidate seeking consideration of his candidature, must not have completed 35 years of age as on 1st January, 2014. Every candidate is entitled for 70% of weightage out of 100 marks on the basis of marks obtained with reference to Senior Secondary percentage and marks of Training of Live Stock Assistant, maximum upto 3 decimal places in view of the intense competition. The weightage/bonus marks of 30%, on account of experience would be accorded for the purpose of Live Stock Assistant to those candidates only who have an experience of more than 7 years in the department. The rule is intended to achieve the object of selection of the experienced hands in the interest of public service as compared to an unexperienced candidate. Repelling attempt of the petitioners to the analogy drawn on the basis of amendment in the Rajasthan Ayurvedic, Unani, Homeopathy and Naturopathy Subordinate Service Rules, 1966 as well as in Rajasthan Medical & Health Subordinate Service Rules, 1973, so also in Rajasthan Panchayati Raj Subordinate Service Rules, 1996, the learned counsel emphasized that the purpose is not synonymous. The learned counsel further urged that having regard to the independent nature and job requirement of every service as well as job responsibility, simultaneous experience and also the requirement of the department, statistics of the department, would demonstrate the number of candidates serving on fixed salary for the longest and shortest period, therefore, the criteria of length of service cannot be construed to be arbitrary. Filing of the joint writ application by the petitioners has been objected on the ground of non-existence of common cause of action in view of the fact that in some cases some of the candidates are overage and some of them may lack the requisite educational qualifications from the recognized institutions and some of them realizing rejection of their application form or apprehensive of their non-selection on various grounds, therefore, there is no common cause so as to sustain a joint writ application. The challenge to prescription of marks for practical and theory in the course of Diploma of Live Stock Assistant as provided under the Service Rules, has been repelled since the change has been effected taking into consideration the importance of the two fields as per wisdom of the experts in the field. The learned Additional Advocate General further contended that nature of pleadings and arguments advanced, on behalf of the petitioners, are inconsistent. On the one hand, a challenge is made to the allotment of the marks during the study of Live Stock Assistant Course for practical and theory courses and on the other hand, grievance is raised about the recruitment process wherein the criteria of 30% weightage/bonus marks has been provided only to the candidates serving for more than 7 years. Explaining the intended mandate of the Rules as self-explanatory, the learned Additional Advocate General submitted that the grant of weightage/bonus marks of 30% is restricted to only such candidates, who have put in more than 7 years of service and were still continuing. The policy decision taken to accord the benefit of weightage/bonus marks only to the candidates having acquired experience of more than 7 years of working as Live Stock Assistants in the Department of Animal Husbandry and still continuing, is a policy decision, keeping in view the interest of the administration as well as the interest of such candidates, who might have become overage, and at the same time the administration would have the advantage of experience gained by such candidates. Moreover, the petitioners would have no grievance, if the criterion of experience is reduced to six or five years etc. so long it serves their interest and therefore, the argument raised is fallacious. The learned Additional Advocate General further pointed out that the issue raised is no more res-integra in view of verdict rendered by the Coordinate Bench of this Court at Principal Seat, Jodhpur in S.B. Civil Writ Petition No.4144 of 2013 (Archna v. State of Rajasthan & Ors.) vide judgment and order dated 25th September, 2013 while answering an issue somewhat identical in nature. Further, constitutionality is to be presumed. Moreover, only 97 candidates have been selected out of 1701, by applying the criterion of 30% weightage/bonus marks only to the candidates, who had completed more than 7 years of service in the Department of Animal Husbandry and still continued on the date of advertisement. Exclusion of the candidates possessing such experience in other department/project of the State Governments, has been done with an object to restrict the grant of weightage/bonus marks of 30% to the minimum number of candidates and therefore, the qualification is valid.
12. In order to buttress his submissions, the learned Additional Advocate General, placed reliance on the law declared in the case of V.K. Sood v. Secretary, Civil Aviation & Ors.: AIR 1993 SC 2285; Union of India v. Pushpa Rani & Ors.: (2008) 9 SCC 242, and Dr. J.N. Banavalikar v. Municipal Corporation of Delhi & Anr.: 1995 Supp (4) SCC 89.
13. Mr. Vigyan Shah, learned counsel appearing on behalf of the candidates, who have been successful in the recruitment process, without availing of weightage/bonus marks, supporting the stands of the State-respondents argued that the writ applications suffer with the vice of inconsistent pleas. Moreover, a bare perusal of Rule 19 before and after impugned amendment, would reveal that the Appointing Authority is vested with the power under the Rules to determine the desirable criteria for the candidates to appear for interview and for test in such manner as may be deemed fit including eligibility or otherwise of a candidate and the decision of the Appointing Authority shall be final. According to the learned counsel, the Schedule covers various posts, as included therein, and the State Government has introduced the criteria after assessment on the basis of the academic qualifications of the candidates. Be that as it may, the case of the petitioners at best could be sustained qua 97 candidates, who have been declared successful by granting weightage/bonus marks whereas the candidates he represented were successful on their merit without availing of any weightage/bonus marks. Further, the criteria of grant of weightage/bonus marks introduced vide impugned amendment with the conditions stipulated therein is in the wisdom of the Appointing Authority and is not open for judicial scrutiny having regard to the requirement as assessed by the State in the interest of service. Furthermore, though the petitioners have alleged malafide in the process of selection, but neither the persons allegedly responsible for malafide action alleged nor the persons/candidates in whose favour such an action has been initiated, have been impleaded as party to the writ applications. No material facts and particulars, to sustain the plea of malafide action, have been pleaded to lay a foundation to sustain such an inference. Therefore, the contention raised, to sustain the allegation of 'malafide', in fact, is not sustainable in the eye of law. According to the learned counsel, the judgment of the employer while scrutinizing the recruitment or the methodology of recruitment, including the criteria of selection, is not open for judicial review having regard to the comparative evaluation of merit of the candidates and the manner in which the employer may structure or restructure the cadres for the purpose of improving efficiency in administration. In order to buttress his submissions, the learned counsel has placed reliance on the opinion of the Hon'ble Supreme Court in the case of Union of India & Ors. v. Pushpa Rani & Ors.: (2008) 9 SCC 243 and Dr. J.N. Banavalikar v. Municipal Corporation of Delhi & Anr.: (1995) Supp. 4 SCC 89.
14. We have heard the learned counsel for the parties and with their assistance, perused the materials available on record.
15. Part-IV of the Rules of 1977 details out Procedure for Direct Recruitment. Rule 16 provides for Inviting of Applications by advertisement of the vacancies in the Official Gazette or in such other manner as may be deemed fit. Rule 17 provides for Form of Application whereas Rule 18 contemplates Application Fee. Rule 20 mandates preparation of list of the suitable candidates for appointment to the post concerned, arranged in the order of merit to be forwarded to the Appointing Authority with reserve list to the extent of 50%. Rule 21 details out Disqualification for appointment. Rule 22 provides for Selection by Appointing Authority, which reads thus:-
22. Selection by the Government Subject to the provisions of rule 7$ and 7A the Government shall select candidates who stand highest in the order of merit in the list prepared by the Commission under rule 20:
Provided that the inclusion of a candidate's name in the list confers no right to appoint unless the Government is satisfied after such enquiry as may be considered necessary that the candidate is suitable in all other respects for appointment to the Service.
16. In order to appreciate the controversy raised, the text of Rule 19 of the Rules of 1977, as amended vide notification dated 8th July, 2013. Rule 19 before amendment reads thus:-
Rule 19. Scrutiny of Application The Commission or the Appointing Authority, as the case may be, shall scrutinize the applications received by them and require as many candidates, qualified for appointment under these Rules, as seem to them desirable to appear before them for interview and for test in such manner as the Commission or the Appointing Authority, as the case may be, may deem fit.
Provided that the decision of the Commission or the Appointing Authority, as the case may be, regarding the eligibility or otherwise of a candidate shall be final.
17. The proviso has been substituted. The first proviso as substituted and which is relevant, reads as under:-
Provided that in case of appointment to the post of Livestock Assistant, merit shall be prepared by the Appointing Authority on the basis of such weightage as may be specified by the State Government for the marks obtained by the candidate in such qualifying academic examinations as specified in the Schedule appended to these rules and such marks as may be specified by the State Government having regard to the length of experience exceeding seven years acquired by the candidates who were appointed to the post of Live Stock Assistant in the department on fixed pay and have been continuously working on the post on the date of commencement of the Rajasthan Animal Husbandry Subordinate Service (Amendment) Rules, 2013.
Provided further that in case of appointment to the post of Jaldhari, merit shall be prepared by the Appointing Authority on the basis of such weightage as may be specified by the State Government for the marks obtained by the candidate in the selection process notified by the State Government and such marks as may be specified by the State Government having regard to the length of experience exceeding seven years acquired by the candidates who were appointed on the post of Syce in the department on fixed pay and have been continuously working on the post on the date of commencement of the Rajasthan Animal Husbandry Subordinate Service (Amendment) Rules, 2013.
Provided also that the decision of the Commission or Appointing Authority, as the case may be, regarding the eligibility or otherwise of a candidate shall be final.
18. In the Schedule appended to the Rules of 1977, the minimum qualification and experience for direct recruitment to various posts has been provided. The relevant Entry at serial number 3, dealing with the Live Stock Assistant reads thus:-
S.No. Name of posts Method of recruitment with percentage Minimum qualification and experienced for direct recruitment Post from which promotion is to be made Minimum qualification and experience for promotion Remarks 3 Livestock Assistant 100% by direct recruitment out of which 10% shall be reserved for in service candidates with 5 years experience of regular service on the post of Livestock Attendant Senior Secondary with Physics, Chemistry and Biology or Horticulture (Agriculture), Animal Husbandry and Biology from the Board of Secondary Education Rajasthan or its equivalent and one year/two years Training of Livestock Assistant from an institute recognized by the Govt. of Rajasthan
--
--
Supervisor/ Laboratory Assistant Recorder/ Enumerator/ Stock Assist. are merged into the post mentioned in column 2
19. A bare perusal of the text of the Rules of 1977 would reveal that procedure for direct recruitment has been prescribed under Part-IV contained under Rule 16 to 22. Rule 19 of the Rules of 1977 mandates for scrutiny of the applications received by the Appointing Authority and require as many candidates, qualified for appointment under these Rules, as may seem to them desirable to appear before them for interview and test in such manner as the Appointing Authority may deem fit. Under Rule 20, the Appointing Authority is obliged to prepare a list of the candidates whom they consider suitable for appointment to the post concerned, arranged in the order of merit. Rule 22 mandates selection of candidates who stand higher in the order of merit in the list prepared under Rule 20 subject to the provisions of Rule 7 and 7A. A conjoint reading of Rule 19, 20 and 22, would reveal that the Appointing Authority has been entrusted with the power to determine the number of candidates, qualified for appointment under the Rules as may be considered desirable to call upon to appear for interview and test in such manner as it may deem fit.
20. No direct recruitment to the post as enumerated in the Schedule is permissible, if one is not in possession of academic and technical qualifications and experience as stipulated therein. True it is that the grant of weightage in the form of bonus marks is not an element of eligibility stipulated in the Schedule, but is a criterion adopted by way of an amendment vide notification dated 8th July, 2013, to draw the merit list on the basis of such weightage as may be specified by the State Government for the marks obtained by the candidates in such qualifying academic examination as specified in the Schedule appended to the Rules of 1977 and such marks as may be specified by the State Government having regard to the length of experience exceeding 7 years acquired by the candidates who were appointed to the post of Live Stock Assistant in the Department on fixed pay and have been continuously working on the post on the date of commencement of the Amendment Rules, 2013. The object and purpose of grant of weightage in the form of bonus marks on the basis of length of experience exceeding 7 years acquired by the candidates in the department and have been continuously working on the date of Amendment Rules, 2013, is to infuse the service with more efficiency, skill and maturity by giving a certain amount of weightage to the experienced hands.
21. The submission of the learned Senior Counsel that the impugned amendment, in fact, supplanted and did not supplement the Rules, appears to be devoid of any substance for the reason that on the one hand, the learned Counsel has assailed grant of 30% weightage/bonus marks to the candidates having experience of more than 7 years and still continue to work in the Department of Animal Husbandry whereas on the other hand, the learned Counsel contends and insists for grant of weightage/ bonus marks, in proportion to the length of experience and the same ought not to have been refused to the candidates having experience of less than 7 years. Thus, the two diametrically opposite arguments do not justify the tenability of the arguments.
22. The amendment has also been assailed as discriminatory for not extending the weightage/bonus marks to the candidates working and discharging identical duties in other departments of the State Government or in Joint Project of Animal Husbandry Department, Department of Water Shed and Soil Conservator of the State Government as in the case of the petitioners and therefore, amendment has been described as 'tailor-made' to suit the particular category of candidates, an attempt to regularize their contractual employment, a backdoor entry.
23. By now, it is well settled proposition of law that a proviso is subsidiary to the main Section/Rule and it has to be interpreted in the light of main Section/Rule. The object of insertion of a proviso to the main Section/Rule is to carve out an exemption to the main Section/Rule with reference to a particular class or category to which the mandate of the main Section/Rule, was not apply. However, ordinarily the proviso is designed to restrict rather than to enlarge the ambit of the main Section/Rule, to which it is appended to, but that is not inflexible rule and the legislation intention to exercise its enacting power by proviso too, may be gathered and enactment may be sustained on an overall scrutiny of the main Section/Rule and the proviso appended thereto while ascertaining the legislative intent.
24. In the case of State of Tamil Nadu v. Kodaikanal Motor Union (P) Ltd.: AIR 1986 SC 1793, the Hon'ble Supreme Court observed thus:-
16. Lord Denning, in Seaford Court Estates v. Asher,1949 (2) All E.R. 155said thus :
When a defect appears a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament and then he must supplement the written word so as to give 'force and life' to the intention of the legislature When a defect appears a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament and then he must supplement the written word so as to give 'force and life' to the intention of the legislature. A Judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out? He must then do as they would have done. A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases.
17. The courts must always seek to find out the intention of the legislature. Though the courts must find out the intention of the statute from the language used, but language more often than not is an imperfect instrument of expression of human thought. As Lord Denning said it would be idle to expect every statutory provision to be drafted with divine prescience and perfect clarity. As judge Learned Hand said, we must not make a fortress out of dictionary but remember that statutes must have some purpose or object, whose imaginative discovery is judicial craftsmanship. We need not always cling to literalness and should seek to endeavour to avoid an unjust or absurd result. We should not make a mockery of legislation. To make sense out of an unhappily worded provision, where the purpose is apparent to the judicial eye 'some' violence to language is permissible. (See K.P. Varghese v. Income-Tax Officer, Ernakulaa and Anr., : [1981]131ITR597(SC) and Luke v. Inland Revenue Commissioners54 I.T.R. 692.
25. Keeping in view the principle propounded by the Hon'ble Supreme Court, as aforesaid, we shall examine the legality and validity of the legislative intent of the proviso impugned. As contemplated under Part-IV providing for direct recruitment for the posts as per mandate of the Rules of 1977, Rule 19 mandates scrutiny of the applications and requiring the qualified candidates under the rules, as may seem desirable to the Appointing Authority, to appear for interview and test in such manner as the Appointing Authority may deem fit. The phrase in such manner and may deem fit, substantively confers discretion. The impugned proviso introduced vide impugned notification to Rule 19 creates an obligation for the State to have the meritorious and skilled candidates in service to infuse efficiency and for that purpose, a criterion of 30% weightage/bonus marks has been devised subject to the conditions stipulated therein. Thus, by introduction of the proviso, the legislative intention is to carve out a criterion for experienced hands subject to the conditions stipulated therein, which serves the purpose of main rule as well as legislative intention by prescribing conditions to a class of candidates with intelligible differentia.
26. The issue of grant of weightage/bonus marks fell for consideration and determination by a Coordinate Bench of this Court at Principal Seat, Jodhpur, in a batch of writ applications, lead case being Archana v. State of Rajasthan & Ors. (supra), on a reference. After a detailed scrutiny of somewhat similar controversy, the Coordinate Bench of this Court held thus:-
The cases in hand are not of regularization, but of direct recruitment by a process of selection. True it is, the excessive weightage may cause injury to the fairness desirable in process of selection, but before coming to that issue we would like to mention that under Rule 273 of the Rules of 1996 and Rule 23 of the Rules of 1998 the weightage is given to the persons who were appointed in the schemes introduced in MGNREGA or by the Department of Panchayat Raj and Rural Development. The persons so employed were recruited on contractual basis or otherwise after following the norms prescribed under the scheme concerned. The posts under the scheme were/are not supposed to be filled in as per the Rules framed under Article 309 of the Constitution of India or as per its proviso, but by the norms given in the scheme itself. It is also pertinent to mention that the post under the schemes were/are planned posts and appointment to these posts does not create any status for the persons so employed. The Government of Rajasthan now wants to run developmental programmes at its own and as such is in need of employees on various posts. The developmental programmes sought to be executed are alternative to the schemes earlier in currency, as such a weightage is given to the persons having experience. The cases of the persons employed by a fair process of selection as prescribed in the schemes concerned, for whom the weightage is applied under the relevant provisions, cannot be compared with the cases of the persons employed in contravention of Rules or without following the procedure given under the Rules or made entry in service from back door.
The resultant is that providing of weightage to the experienced hands does not violate or frustrate the law laid down by Hon'ble Supreme Court in the case of State of Karnataka v. Uma Devi (supra).
27. While dealing with the issue of the quantum of weightage that may be awarded in the form of bonus marks, has been extensively dealt with by the Coordinate Bench, with a restriction and in order to strike a fair and equitable balance to the competing claims in the light of the opinion of the Hon'ble Supreme Court, and an outer limit of maximum weightage/bonus marks of 15% was arrived at. The discussions with reference to the quantum of weightage/bonus marks reads thus:-
The important question now deserves consideration is about the quantum of weightage given in the form of bonus marks. The bonus marks as already stated are prescribed in three layers against the experience. An aspirant having experience of service for a year or more but less than two years is entitled to have 10 bonus marks, an aspirant having experience of two years or more but less than three years is entitled to have 20 bonus marks and 30 bonus marks are earmarked for the persons having service experience of three or more years.
The question referred for adjudication is that whether the grant of bonus marks to the extent above is not arbitrary and discriminator, specially where the marks kept for educational qualification are 70 only?
Learned counsels, who are supporting the bonus marks settled by the State Government, submitted that the Court is not supposed to assess the quantum of weightage given that being absolutely within the domain of the Government. The objection advanced is not at all acceptable for the simple reason that every action of the State authority is open for judicial review, if that suffers from arbitrariness or unfairness being antithesis to the fundamental rights protected under Article 14 of the Constitution of India.
While coming to the main issue it shall be appropriate to understand the mode of determining merit of the aspirants who are entitled for bonus marks and who are not entitled for that.
As per the respondents, 70% of the marks obtained in eligibility qualification are to be taken first and then bonus marks are to be added, if aspirant is entitled for the same. It shall be more easy to understand this mode through illustrations:-
Illustration No.1 :-
If an aspirant for appointment had secured 70 marks in eligibility qualification, then 70% of it is to be taken as marks against the qualification and that would be 49. If this person is having no experience or the experience less than one year, then the merit marks for him shall be 49 only. At the same time if a person secures 33 marks in his eligibility qualification, then 70% of it i.e. 23.1 marks shall be taken into consideration against the qualification. If this person is having service experience of three years or more, then he shall be entitled for 30 bonus marks. By adding these marks, his merit mark shall be 23.1 + 30 = 53.1. In this way the person having only 33 marks in qualifying examination shall march over the person having 70 marks in educational qualification. The result of giving bonus marks upto 30 as illustrated above results into beating of a person having 70 marks by the person having 33 marks only.
Illustration No.2 :-
Suppose a person not entitled for bonus marks is having 100 marks out of 100 in his eligibility qualification, as per the formula applied by the respondents his marks in educational qualification shall be treated as 70 and these shall be his merit marks also. Now other person who is entitled for 30 bonus marks has secured 60% marks in his educational qualification. The 70% of 60 marks shall be 42 and by adding 30 bonus marks to it, he will secure 72 merit marks. The bonus availing person shall march over the person who secured 100% marks in educational qualification.
Illustration No.3 :-
Another interesting illustration shall be where a person secures 90% marks in educational qualification and his marking against this head as per the respondents shall be 90 x-46-70/100 = 63 only. At the same time a person is having 65% marks in his eligibility educational qualification, but he is entitled for 20 bonus marks. . The merit marks of this person shall be 65 x 70/100 = 45.5 + 20 = 65.5. Here in this case the gap of 25 marks in educational qualification is covered by the bonus marks those may even be less than 20.
Illustration No.4 :-
In a case where a person secures 33 marks in educational qualification but entitled for 10 bonus marks shall have 33.1 (23.1 + 10) merit marks. This fellow will march over a person having 47% marks as the merit marks of this person shall be treated as 47 x 70/100 = 32.9.
The illustrations clearly indicate major role of bonus marks in elevating the merit marks to a very high level. True it is, the weightage against experience is having its importance and positive factors, but in no manner it may have absolute supremacy vis-a-vis the educational qualification. The educational qualification is the basic eligibility and the weightage is only an essence of experience. The essence can provide fragrance to a body but cannot be identified as body itself. The bonus marks to the extent of 30 as assigned by the respondents clearly indicates the throttling of educational merit by service experience. The bonus marks fixed by the respondents are not maintaining required balance with the educational qualification, as such the repression of educational merit as illustrated above is highly unjust and arbitrary. The State Government while determining the bonus marks should have settled a balance in basic eligibility and the weightage i.e. to be assigned against a service experience. The weightage in no way could have absolute supremacy in determining merit. We would also like to mention here that as per the respondents themselves about 14000 persons coming in select list of 17000 persons have availed bonus marks. The statistics given is quite startling and sufficient to establish undue advantage of higher bonus marks against the experience. The advantage so given, thus, is declared bad. The State Government is at liberty to settle a fair weightage under the provisos in question. The important question is that what should be the fair weightage? We have not come across any precedent discussing or defining fair weightage. However, it is well settled that fairness is a quality that keep equitable balance in homogeneous group as well as in a group having reasonable classification. In the instant matter the homogeneous group of aspirants for appointment is having a rational and reasonable classification on basis of service experience. A fair and equitable balance among these classified persons means a little elevation to the experience holders looking to the nature of service and skill available with them but not such a high elevation that may result into falling of the cap of other classified group while measuring elevation given. Hon'ble Supreme Court in several cases found the marks from 12.5% to 15% reasonable for personality assessment through viva voce/interview, while making appointments to lower category posts. The experience is also feather in personality of an incumbent and posts in question are the lowest posts in their cadre, as such, in our opinion the maximum bonus marks those can be awarded against the experience should be within the cap of 15%. As a consequent to the entire discussion above, our answers to the referred questions are as follows:-
(1)The respondents can make recruitment to the posts in the services concerned even without conducting written examination;
(2) Weightage in the form of bonus marks against service experience can be given while adhering the eligibility prescribed for various posts under the existing Rule 266 of the Rules of 1996 and there shall be no violation of Articles 14 and 16 of the Constitution of India in the event of extending weightage against service experience;
(3) The respondents did not commit any wrong while extending weightage in the form of bonus marks against the service experience as per proviso to Rule 23 of the Rules of 1998 and such grant of weightage in no manner is in violation of Rule 15 of the Rules of 1998;
(4) For providing bonus marks there is no need to make any amendment in the qualification prescribed in the Schedule appended with the Rules of 1998.
(5) The grant of weightage in the form of bonus marks while making recruitment to the post in the services in question is not at all in contravention of the law laid down in the case of State of Karnataka v. Uma Devi (supra), and it is also not an effort to frustrate the law laid down in the case aforesaid; and (6) The grant of bonus marks to the extent of 30 marks is unjust, arbitrary and unfair, hence, is declared illegal and is quashed. The State Government may grant the weightage in the form of bonus marks against service experience within the cap of 15 marks.
28. The impugned action and amendment assailed by the learned Senior Counsel in the light of verdict delivered by the Hon'ble Supreme Court in the case of Umadevi (supra), has been raised, considered and explained by the Coordinate Bench of this Court in the case of Archana (supra), while answering the reference to somewhat similar controversy holding thus:-
These questions demand a clear understanding of the judgment rendered by Hon'ble Supreme Court in State of Karnataka vs. Uma Devi (supra). The judgment begins with emphasis for maintaining equality and the constitutional scheme in public employment while making appointments to the public posts and at the same time hammers the extraneous considerations in this process. The initial paras of the judgment, thus, deserve to be quoted :-
2. Public employment in a sovereign socialist secular democratic republic, has to be as set down by the Constitution and the laws made thereunder. Our constitutional scheme envisages employment by the Government and its instrumentalities on the basis of a procedure established in that behalf. Equality of opportunity is the hallmark, and the Constitution has provided also for affirmative action to ensure that unequals are not treated equals. Thus, any public employment has to be in terms of the constitutional scheme.
3. A sovereign government, considering the economic situation in the country and the work to be got done, is not precluded from making temporary appointments or engaging workers on daily wages. Going by a law newly enacted, The National Rural Employment Guarantee Act, 2005, the object is to give employment to at least one member of a family for hundred days in an year, on paying wages as fixed under that Act. But, a regular process of recruitment or appointment has to be resorted to, when regular vacancies in posts, at a particular point of time, are to be filled up and the filling up of those vacancies cannot be done in a haphazard manner or based on patronage or other considerations. Regular appointment must be the rule.
4. But, sometimes this process is not adhered to and the Constitutional scheme of public employment is by-passed. The Union, the States, their departments and instrumentalities have resorted to irregular appointments, especially in the lower rungs of the service, without reference to the duty to ensure a proper appointment procedure through the Public Service Commission or otherwise as per the rules adopted and to permit these irregular appointees or those appointed on contract or on daily wages, to continue year after year, thus, keeping out those who are qualified to apply for the post concerned and depriving them of an opportunity to compete for the post. It has also led to persons who get employed, without the following of a regular procedure or even through the backdoor or on daily wages, approaching Courts, seeking directions to make them permanent in their posts and to prevent regular recruitment to the concerned posts. Courts have not always kept the legal aspects in mind and have occasionally even stayed the regular process of employment being set in motion and in some cases, even directed that these illegal, irregular or improper entrants be absorbed into service. A class of employment which can only be called 'litigious employment', has risen like a phoenix seriously impairing the constitutional scheme. Such orders are passed apparently in exercise of the wide powers under Article 226 of the Constitution of India. Whether the wide powers under Article 226 of the Constitution is intended to be used for a purpose certain to defeat the concept of social justice and equal opportunity for all, subject to affirmative action in the matter of public employment as recognized by our Constitution, has to be seriously pondered over. It is time, that Courts desist from issuing orders preventing regular selection or recruitment at the instance of such persons and from issuing directions for continuance of those who have not secured regular appointments as per procedure established. The passing of orders for continuance, tends to defeat the very Constitutional scheme of public employment. It has to be emphasized that this is not the role envisaged for High Courts in the scheme of things and their wide powers under Article 226 of the Constitution of India are not intended to be used for the purpose of perpetuating illegalities, irregularities or improprieties or for scuttling the whole scheme of public employment. Its role as the sentinel and as the guardian of equal rights protection should not be forgotten.
In State of Karnataka v. Uma Devi (supra) a Constitutional Bench of Hon'ble Supreme Court comprising of five Judges was dealing with a reference made to it in following terms:-
1. "Apart from the conflicting opinions between the three-Judge Bench decisions in Ashwani Kumar v. State of Bihar, State of Haryana v. Piara Singh and Dharwad Distt. P.W.D. Literate Daily Wage Employees Assn. v. State of Karnataka on the one hand and State of H.P. v. Suresh Kumar Verma, State of Punjab v. Surinder Kumar and B.N. Nagarajan v. State of Karnataka on the other, which have been brought out in one of the judgments under appeal of Karnataka High Court in State of Karnataka v. H. Ganesh Rao, decided on 1.6.2000, the learned Additional Solicitor General urged that the scheme for regularization is repugnant to Articles 16(4), 309, 320 and 335 of the Constitution and, therefore, these cases are required to be heard by a Bench of Five learned Judges (Constitution Bench).
2. On the other hand, Mr. M.C. Bhandare, learned senior counsel, appearing for the employees urged that such a scheme for regularization is consistent with the provision of Articles 14 and 21 of the Constitution.
3. Mr. V. Lakshmi Narayan, learned counsel, appearing in CCs Nos.109-498 of 2003, has filed the GO dated 19.7.2002 and submitted that orders have already been implemented.
4. After having found that there is conflict of opinion between three Judges Bench decisions of this Court, we are of the view that these cases are required to be heard by a Bench of five learned Judges.
5. Let these matters be placed before Hon'ble the Chief Justice for appropriate orders."
Hon'ble Supreme Court while noticing the constitutional schemes for public employment accepted the need of engaging persons on temporary basis or on daily rates, but shown its concern for regularising such persons against regular posts ignoring the constitutional scheme for public employment. The initial consideration of the issue by Hon'ble Apex Court in the case aforesaid reads as under :-
12. .....there may be occasions when the sovereign State or its instrumentalities will have to employ persons, in posts which are temporary, on daily wages, as additional hands or taking them in without following the required procedure, to discharge the duties in respect of the posts that are sanctioned and that are required to be filled in terms of the relevant procedure established by the Constitution or for work in temporary posts or projects that are not needed permanently. This right of the Union or of the State Government cannot but be recognized and there is nothing in the Constitution which prohibits such engaging of persons temporarily or on daily wages, to meet the needs of the situation. But the fact that such engagements are resorted to, cannot be used to defeat the very scheme of public employment. Nor can a court say that the Union or the State Governments do not have the right to engage persons in various capacities for a duration or until the work in a particular project is completed. Once this right of the Government is recognized and the mandate of the constitutional requirement for public employment is respected, there cannot be much difficulty in coming to the conclusion that it is ordinarily not proper for courts whether acting under Article 226 of the Constitution or under Article 32 of the Constitution, to direct absorption in permanent employment of those who have been engaged without following a due process of selection as envisaged by the constitutional scheme.
13. What is sought to be pitted against this approach, is the so called equity arising out of giving of temporary employment or engagement on daily wages and the continuance of such persons in the engaged work for a certain length of time. Such considerations can have only a limited role to play, when every qualified citizen has a right to apply for appointment, the adoption of the concept of rule of law and the scheme of the Constitution for appointment to posts. It cannot also be forgotten that it is not the role of courts to ignore, encourage or approve appointments made or engagements given outside the constitutional scheme. In effect, orders based on such sentiments or approach would result in perpetuating illegalities and in the jettisoning of the scheme of public employment adopted by us while adopting the Constitution. The approving of such acts also results in depriving many of their opportunity to compete for public employment.
26. ....why should the State be allowed to depart from the normal rule and indulge in temporary employment in permanent posts? This Court, in our view, is bound to insist on the State making regular and proper recruitments and is bound not to encourage or shut its eyes to the persistent transgression of the rules of regular recruitment. The direction to make permanent -- the distinction between regularization and making permanent, was not emphasized here -- can only encourage the State, the model employer, to flout its own rules and would confer undue benefits on a few at the cost of many waiting to compete.
While deprecating the practicing of appointments by way of regularisation the Apex Court emphasised need of regular appointment on public posts as per the constitutional scheme. The observation made by the Apex Court in this regard is by and large what emerges is that regular recruitment should be insisted upon, only in a contingency an ad hoc appointment can be made in a permanent vacancy, but the same should soon be followed by a regular recruitment and that appointments to non-available posts should not be taken note of for regularization. The cases directing regularization have mainly proceeded on the basis that having permitted the employee to work for some period, he should be absorbed, without really laying down any law to that effect, after discussing the constitutional scheme for public employment.
The most important feature of this judgment is declaration of Rule of equality in public employment as basic feature of our Constitution. As per Hon'ble Supreme Court, adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules.
The theory of legitimate expectation of an employee for regularisation in service has not been accepted by the Court. The discussion made in this regard reads as under:-
47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in concerned cases, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.
It was held by Hon'ble Supreme Court that the need of regularisation of service due to its long span is nothing to do with the concept of equality and also to the right of life. While examining this aspect, Hon'ble Supreme Court held as under:-
48. .....There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules. The arguments based on Articles 14 and 16 of the Constitution are therefore overruled.
49. It is contended that the State action in not regularizing the employees was not fair within the framework of the rule of law. The rule of law compels the State to make appointments as envisaged by the Constitution and in the manner we have indicated earlier. In most of these cases, no doubt, the employees had worked for some length of time but this has also been brought about by the pendency of proceedings in Tribunals and courts initiated at the instance of the employees. Moreover, accepting an argument of this nature would mean that the State would be permitted to perpetuate an illegality in the matter of public employment and that would be a negation of the constitutional scheme adopted by us, the people of India. It is therefore not possible to accept the argument that there must be a direction to make permanent all the persons employed on daily wages. When the court is approached for relief by way of a writ, the court has necessarily to ask itself whether the person before it had any legal right to be enforced. Considered in the light of the very clear constitutional scheme, it cannot be said that the employees have been able to establish a legal right to be made permanent even though they have never been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution.
51. The argument that the right to life protected by Article 21 of the Constitution of India would include the right to employment cannot also be accepted at this juncture. The law is dynamic and our Constitution is a living document. May be at some future point of time, the right to employment can also be brought in under the concept of right to life or even included as a fundamental right. The new statute is perhaps a beginning. As things now stand, the acceptance of such a plea at the instance of the employees before us would lead to the consequence of depriving a large number of other aspirants of an opportunity to compete for the post or employment. Their right to employment, if it is a part of right to life, would stand denuded by the preferring of those who have got in casually or those who have come through the back door. The obligation cast on the State under Article 39(a) of the Constitution of India is to ensure that all citizens equally have the right to adequate means of livelihood. It will be more consistent with that policy if the courts recognize that an appointment to a post in government service or in the service of its instrumentalities, can only be by way of a proper selection in the manner recognized by the relevant legislation in the context of the relevant provisions of the Constitution. In the name of individualizing justice, it is also not possible to shut our eyes to the constitutional scheme and the right of the numerous as against the few who are before the court. The Directive Principles of State Policy have also to be reconciled with the rights available to the citizen under Part III of the Constitution and the obligation of the State to one and all and not to a particular group of citizens. We, therefore, overrule the argument based on Article 21 of the Constitution.
The ratio of judgment in State of Karnataka v. Uma Devi (supra), while dealing with the issue pertaining to regularisation of the persons in service against public posts, who at some point of time were employed either in some scheme or against the public posts on daily rate basis/contractual basis/casual basis, is that equality and equity are not the concepts applicable for regularisation of the persons in service against public posts, if were employed dehor the Rules. The Court found that as a matter of fact such regularisation causes injury to the doctrine of equality and fairness in public employment, as that denies opportunity of participation in process of recruitment to the public employment to other eligible persons, who were not employed earlier.
29. We are in agreement with the opinion of the Coordinate Bench and hold that the State-respondents may conduct recruitment process to the posts in the service concerned by granting weightage, in the form of bonus marks against service experience while adhering to the eligibility conditions prescribed under the Rule 19 as amended vide impugned amendment and there appears to be no violation of any of the provisions of Article 14, 16 and 21 of the Constitution of India in that event. Further, it was not imperative for the State to effect any amendment in the qualifications prescribed in the Schedule appended to the Rules of 1977. We see no contravention of the law declared by the Hon'ble Supreme Court in the case of Umadevi (supra), in the action of the State-respondents while granting weightage in the form of bonus marks while conducting recruitment to the post in the service involved, considering the length of service and other conditions as stipulated vide impugned amendment. However, the extent of grant of weightage by way of bonus marks, against the experience acquired in service, may be restricted to maximum of 15%.
30. The claim of the petitioners for grant of weightage in the form of bonus marks by way of distribution in proportion to the length of experience in service, is devoid of any substance and is hereby rejected. We see some substance in the contention of the learned Additional Advocate General for providing some weightage, by way of bonus marks, to the candidates, who had acquired service experience of more than 7 years in the Department while working as Live Stock Assistant and have been continuously working on the post on the date of commencement of the (Amendment) Rules of 2013, and still continued as such on the date of issuance of the advertisement impugned herein.
31. The petitioners have assailed the Rules of 2013 as discriminatory and tailor-made with a view to regularize the candidates, who have been working for more than 7 years on the post of Live Stock Assistant in the Department and thus, facilitating 'backdoor entry'. The argument is devoid of any substance. It is not in dispute that the amendment in the Rules of 1977 has been effected in exercise of powers conferred by the proviso to Article 309 of the Constitution of India by the Governor of Rajasthan. The proviso to Article 309 of the Constitution of India reads thus:-
309. Recruitment and conditions of service of persons serving the Union or a State - Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State:
Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act.
32. A glance of Proviso to Article 309 (supra) would reveal that the Rules made by the President or authorized person under the proviso, are subject to any law made by the Parliament and the bars in Rules regulating the recruitments and conditions of service. Needless to reiterate that the rule making power includes the authority to prescribe method of recruitment, qualifications academic as well as technical or conditions of service to an office or of post under the State. Therefore, the (Amendment) Rules of 2013, having been introduced vide impugned amendment, cannot be assailed on the anvil of malafides or oblique motives, prescribing tailor-made qualifications, and law in this reference is no more res-integra in view of the opinion of the Hon'ble Supreme Court in the case of V.K. Sood v. Secretary, Civil Aviation & Ors.: (1993) Suppl.3 SCC 9, wherein the Hon'ble Supreme Court relying upon the verdict of the Constitution Bench in the case of The General Manager, Sourthern Railway v. Rangachari: AIR 1962 SC 36, observed that equality of opportunity is not to be confused with absolute equality as such. Article 16 contemplates 'equality of opportunity' and does not prohibit prescription of reasonable rules for selection to any employment or appointment to any office or post. Referring to the law declared in the case of State of Mysore & Anr. v. P. Narasing Rao, the Hon'ble Supreme Court observed that Article 14 and 16 do not exclude the laying down of selective test nor they preclude the Government from laying down qualifications for the post in question. Further, such qualification need not to be technical but they can also be general qualifications relating to suitability of the candidate for such service as such. Their Lordships have clarified that eligibility is not to be confused with suitability of the candidate for appointment.
33. In the case of Mitendra Singh Rathore (supra), the Coordinate Bench of this Court while considering the candidates employed directly by the Panchayati Raj Institutions or through the Placement Agencies, working on the posts in the Panchayati Raj Institutions or under MGNREGA or any other scheme of Department of Rural Development and Panchayati Raj, discharging the same duties with same responsibilities and liabilities; the experience, thus gained by the candidates employed through the Placement Agencies was as good as the experience gained by the candidates directly employed by the Panchayati Raj Institutions for the purpose of grant of weightage/bonus marks. The Coordinate Bench while dealing with the issue observed thus:-
The object of granting weightage to the experienced hands is to have meritorious persons with insight, skill and knowledge of the job and that in no manner shall have adverse effect on giving weightage to the persons who acquired experience on being employed through placement agencies. The classification sought to be made under Proviso Second to Rule 273 of the Rules of 1996 on the basis of mode of employment or to say by denying weightage to the persons employed on the posts of Junior Technical Assistant (J.T.A.), Junior Engineer, Gram Rozgar Sahayak, Data Entry Operator, Computer Operators with Machine, Lekha Sahayak, Lower Division Clerk, Coordinator IEC, Coordinator Training and Coordinator Supervision through placement agencies in MGNREGA or any other scheme of Department of Rural Development and Panchayati Raj, as a matter of fact, is having no nexus with the object sought to be achieved by granting weightage in the form of bonus marks to the experienced hands, therefore, the classification made under Proviso Second to Rule 273 of the Rules of 1996 on the basis of the mode of employment, is having no rational, hence, is in violation of Article 14 and 16 of the Constitution of India.
The distinction sought to be made with the persons employed through the placement agencies is that those were under the control of the placement agencies and, as such, necessary details pertaining to their experience were with the placement agencies only. Much emphasis is given by the respondents that the State Government or the Panchayati Raj Institutions, as the case may be, entered into agreement with the placement agencies leaving it open for the placement agencies to accomplish the task given through the persons employed by that agency without definite identification of the person concern by the Panchayati Raj Institution. The stand taken by the respondents is not at all acceptable at its face. It is not in dispute that the placement agencies are nothing but contractor to supply labour force. The roll of the labour force supplied through contractor is available with the principal employer i.e. the State Government and different Panchayati Raj Institutions who availed services of such persons through placement agencies. The State Government, as such, is having all necessary details with regard to the work done by the persons employed through the placement agencies. On having these details, measurement of the experience acquired by the persons rendering service in MGNREGA or under different schemes relating to Department and Panchayati Raj can very well be assessed by the respondents. In any case, this procedural problem cannot be a reason valid to make an unreasonable classification. At this stage it is also pertinent to note that the Panchayati Raj Institutions have already issued experience certificates to the persons employed through placement agencies.
The writ petition, in view of the discussion made, deserve acceptance, thus, are allowed. The distinction made for grant of weightage against experience earned by the persons employed on the posts of Junior Technical Assistant (J.T.A.), Junior Engineer, Gram Rozgar Sahayak, Data Entry Operator, Computer Operator with Machine, Lekha Sahayak, Lower Division Clerk, Coordinate IEC, Coordinator Training and Coordinator Supervision through placement agencies in MGNREGA or any other scheme of Department of Rural Development and Panchayati Raj on basis of the mode of their engagement under proviso 2nd to Rule 273 of the Rules of 1996 is declared illegal.
34. It is further pointed out that the matter was considered at various levels by the Government taking into consideration the manner and nature of appointment to the post of Live Stock Assistant of the candidates in the year 2002 and 2003 and having regard to the attendant facts, the impugned notification is perfectly legal and valid. The Additional Advocate General also produced the relevant record, which reflects that the Live Stock Assistants, who were appointed on fixed remuneration and have been continuously working, are those candidates who submitted applications, for consideration of their candidature, in response to the advertisements dated 26th August, 2002 and 9th September, 2003; issued by the Department as per Rules of 1977. The applications of 629 candidates received, in response, were scrutinized by the Selection Committee, in accordance with the mandate of Rule 20 against 500 vacancies of Live Stock Assistants and the successful candidates were accorded appointment on probation for two years. However, after two years, instead of confirmation the candidates were granted extension and were continued as such, until the issue of the impugned notification dated 8th July, 2013, and the advertisement dated 6th August, 2013 impugned in the writ applications. It is further contended that the appointments, as aforesaid, were made strictly in accordance with the reservation policy and the candidates were also subjected to training in the field of Artificial Insemination, Bird Flu Training, Refresher Training etc.; like the regular employees at the government expenses and they have been discharging duties in extreme adverse conditions and were of vital help in an effort in successful implementation of various schemes of the Government, launched for the benefit and improvement of the Live Stock of the State.
35. As has been held by the Hon'ble Supreme Court in the case of Uma Devi (supra), a sovereign government cannot be precluded from getting the work done by resorting to temporary appointment or engaging workers on daily wages. It has been further clarified by the Hon'ble Supreme Court that there may be cases of irregular appointment (not illegal appointment), of qualified persons, against sanctioned vacant posts and those cases cannot be classified under the category of illegal appointment or a 'backdoor entry'. Therefore, in the peculiar facts and in view of the materials present on record, we see no illegality in the impugned action of the State-respondents.
36. For the reasons and discussions herein above, the writ applications assailing the vires of Proviso appended to Rule 19 of the Rules of 1977, by (Amendment) Rules, 2013; fails, and are hereby dismissed. The Proviso to Rule 19 of the Rules of 1977, as amended vide (Amendment) Rules, 2013, is perfectly legal and valid.
37. The writ applications challenging the grant of weightage/bonus marks to the extent of 30% (thirty per sent) are partly allowed, restricting such grant of weightage/bonus marks to maximum of 15% (fifteen per cent).
38. The candidates who have acquired the same experience while working in the department/project, jointly operated by the Animal Husbandry Department and Department of Water Shed, and Soil Conversation; are also entitled to grant of weightage/bonus marks.
39. In the result, the respondents are directed to finalize the merit list drawn in pursuance to advertisement dated 6th August, 2013, restricting the weightage/bonus marks to the extent of 15% (fifteen per cent), including the candidates who acquired the same experience while working in the department/project, jointly operated by the Animal Husbandry Department and Department of Water Shed, and Soil Conversation.
40. In view of the final adjudication on the writ applications, the stay applications stand closed.
41. Costs made easy.
(VEERENDR SINGH SIRADHANA), J. (AMITAVA ROY), CJ. Sunil/P.A.
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
(Sunil Solanki) P.A.