Rajasthan High Court - Jaipur
Alka Saxena And Ors vs State Of Raj And Ors on 22 August, 2017
Bench: Ajay Rastogi, Ashok Kumar Gaur
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
D.B. Civil Writ Petition No. 4964 / 2008
1. Alka Saxena D/o late Shri N.S.Saxena, aged about 42 years,
resident of 5 Chha/3, Jawahar Nagar, Jaipur.
2. Arun Kumar Joshi son of Shri V.K.Sharma, aged about 43
years, by caste Sharma, resident of 778, Atish Khanda, Choti
Chopar, jaipur.
3. Govind Narain Pareek Son of Shri N.P.Pareek, 45 years,
resident of 17, D.P.Colony, New Sanganer, Road, Sodala,
Jaipur.
4. Mohan Lal Gupta son of Shri Girraj Prasad Gupta, aged about
46 years, resident of 63, Sardar Club, Scheme, Air Force
Area, Jodhpur.
----Petitioners
Versus
1. State of Rajasthan through its Chief Secretary, Government
of Rajasthan, Government Secretariat, Jaipur.,
2. Secretary, Department of Personnel, Government of
Rajasthan, Government Secretariat, Jaipur.
3. Secretary, Information & Public Relation Department,
Government of Rajasthan, Government Secretariat, Jaipur.
4. Rajkumar Pareek, District Public Relation Officer, Office of the
Collector, Jhunjhunu.
5. Pramod Pareek, Public Relation Officer, Vidhan Sabha,
Janpat, Jaipur, C-117 Savetri Path Nand Kishore Parik Marg,
Bapu Nagar, Jaipur.
6. Pyare Mohan Tripathi, District Public Relation Officer, Office of
Collector, Ajmer.
7. Kishan Kumar Vyas, Public Relation Officer, DPR, Government
Secretariat, Jaipur.
8. Shri Satish Kumar Sood, Public Relation Officer (Suspended)
through Secretary, DPR, Government Secretariat, Jaipur,
House No. 1 L-Block Shri Ganganagar.
9. Shri Arunesh Kumar Sharma, Public Relation Officer, Sanvad,
DPR Department, Government Secretariat, Jaipur.
10. Shri Ghanshyam Verma, Public Relation Officer, Office of
Collector, Jhalawar.
11. Shri Devendra Kumar Sharma, Public Relation Officer,
Samachar, DPR Department, Government Secretariat, Jaipur,
C-29, Bhagwan Das Road, C-Scheme Jaipur.
(2 of 16)
[ CW-4964/2008]
12. Shri Prem Prakash Tripathi, District Public Relation Officer,
Office of Collector, Pali.
13. Shri Vijay Kumar Sharma, District Public Relation Officer,
Office of Collector, Jaipur.
----Respondents
Connected With
D.B. Civil Writ Petition No. 6715 / 2007
Vivek Goyal Son of Baldev Kumar goyal, aged about 34 years, by
caste Agrawal, resident of 6-D-8, Pavanpuri South, Bikaner
working as A.En. (Civil) 16 th Division, IGNP, Bikaner (Raj.)
----Petitioner
Versus
1. State of Rajasthan through its Chief Secretary, Government
of Rajasthan, Government Secretariat, Jaipur.
2. Secretary, Irrigation Department, Government of Rajasthan,
Government Secretariat, Jaipur.
3. Secretary, Department of Personnel, Government of
Rajasthan, Government Secretariat, Jaipur.
4. Chief Engineer, Indira Gandhi Nahar Project (I.G.N.P.),
Bikaner (Raj.)
5. Jai Dev goyal Son of Shri Trilok Chand Goyal aged about 52
years, at present A.En. (Civil), "Gur-niyantran-Khand"
(Quality Control Division) Indira Gandhi Nahar pariyojna
(IGNP), Bikaner.
6. Girdhar gopal Gaur son of Shri Brij Lal Gaur, aged about 49
years, A.En. (Civil), "Gur-niyantran-Khand" (Quality Control
Division) Indira Gandhi Nahar pariyojna (IGNP), Bikaner.
7. Somnath Gakhar Son of Shri jagannath Gakhar, aged about
55 years, resident of G-2, Vaishali Nagar, Jaipur.
_____________________________________________________
For Petitioner(s) : Mr.Rajendra Soni, Adv.
For Respondent(s) :
Mr.J.M.Saxena, AAG with
Ms.Charu Jain, Adv.
Ms. Vandana Sharma, Dy. G.C.
Mr.Prahlad Singh, Adv.
Mr.Shailesh Prakash Sharma, Adv.
_____________________________________________________
HON'BLE MR. JUSTICE AJAY RASTOGI
HON'BLE MR. JUSTICE ASHOK KUMAR GAUR
(3 of 16)
[ CW-4964/2008]
Judgment
Judgment reserved on : 03.08.2017
Judgment pronounced on : 22.08.2017
By the Court : [Per Hon'ble Mr.Justice Ashok Kumar Gaur]:
<><><><> The present batch of two writ petitions have been filed by the petitioners challenging proviso (ii) to Rule 28 of the Rajasthan Service of Engineers and Research Officers (Irrigation Branch) Rules, 1954 and pari materia proviso (2) to Rule 29 of the Rajasthan Public Relations Service Rules, 1966.
Since in both the petitions, identical question of law is involved, therefore, they are disposed of by this common order For disposal of these writ petitions, the facts have been noticed from D.B.Civil Writ Petition No.6715/2007 (Vivek Goyal Vs. State of Rajasthan & Ors).
D.B. Writ Petition No.6715/2007:
The petitioner-Vivek Goyal had applied for considering his case for appointment on the post of A.En (Civil) in response to the advertisement dated 05.10.1994 issued by the Rajasthan Public Service Commission for 43 posts. The petitioner being successful and meritorious was recommended for appointment by the R.P.S.C. on 06.08.1996. The State Government issued appointment order on 15.07.1996 and petitioner joined his duties as A.En. (Civil) on 17.08.1996.
(4 of 16) [ CW-4964/2008] The grievance raised in the present writ petition by the petitioner is that proviso (ii) to Rule 28 of the Rajasthan Service of Engineers and Research Officers (Irrigation Branch) Rules, 1954 (hereinafter referred to as "the Rules, 1954") should be declared arbitrary and discriminatory being violative of Articles 14 & 16 of the Constitution of India and further, the said rules is stated to be contrary to Rule 9(1)(b) of the Rules, 1954. The petitioner has further sought a direction to make appointment in a particular year through promotion and direct recruitment in a cyclic order and the consequential seniority be determined of a promotee and direct recruitee in the same cyclic order.
The petitioner has pleaded in the writ petition that the Department had issued provisional seniority list dated 19.05.2007 and in the said seniority list, person from serial No.142 to 248 (146 officers) were placed above the petitioner and similarly situated persons like the petitioner, who are direct recruitee and selected by R.P.S.C. in the year 1996-97, are shown enbloc junior to them The petitioner has further pleaded in the writ petition that the post of A.En. is to be filled in the ratio of 1:1 by direct recruitment & promotion and 43 persons are appointed by direct recruitment and the equal number of promotee could be placed senior to them but promotees are appointed in excess of their quota and are placed enbloc senior to the direct recruitment of the year 1996-97 due to misinterpretation of the proviso (ii) to Rule 28 of the Rules, 1954. The petitioner has pleaded that when (5 of 16) [ CW-4964/2008] dispute of seniority arose in the Irrigation Department of senior batch to the petitioner, the Apex Court in Vijay Singh Deora's case, reported in SLJ 1997(1) p.52 has decided principle of maintaining the ratio of J.En. (diploma holder) and J.En. (degree holder) for promotion to the post of A.En. and principle of determining the seniority has also been laid down. The petitioner has pleaded that Rule 9 of the Rules, 1954 provides for determination of vacancies on every year and appointment in continuous cyclic order corresponding to the proportion laid down in the Schedule to Rules of 1954.
The relevant Rules- Rule 9 and 28(ii) of the Rules, 1954 are reproduced as under:-
"9. Determination of vacancies:- (1) (a) subject to the provisions of these Rules, the appointing authority shall determine every year the number of existing vacancies and those anticipated during the following twelve months and the number of persons likely to be appointed to the Service by each method. The next determination of vacancies shall be done just before the expiry of twelve months of the last determination of vacancies.
(b) In calculating the actual number of vacancies to be filled in by each method on the basis of percentage prescribed in the Schedule, the Appointing authority shall adopt an appropriate continuous cyclic order to correspond with the proportion laid down in the Schedule by giving precedence to promotion quota.
(2) The Appointing Authority shall determine every year the number of existing vacancies and those anticipated in next twelve months which are to be filled by promotion of persons already in the Service.
(3) The Appointing Authority shall also determine the corresponding vacancies of earlier year, if any, yearwise which were required to be filled in by promotion, if such vacancies were not determined and (6 of 16) [ CW-4964/2008] filled earlier in the year in which they were required to be filled in accordance with sub-rule (2)."
"28. Seniority:- "Seniority of persons appointed to the lowest post of the service or lowest categories of posts in each of the Group/Section of the service, as the case may be, shall be determined from the date of confirmation of such persons to the said post but in respect of persons appointed by promotion to other higher posts in the service or other higher categories of posts in each of the Group/Section in the service, as the case may be, shall be determined from the date of their regular selection to such posts. Provided:-
(i) xxx xxx xxx
(ii) that if two or more persons are appointed to the service during the same year a person appointed by promotion shall be senior to a person appointed by direct recruitment."
The learned counsel for the petitioner Mr.Rajendra Soni has submitted that proviso (ii) to Rule 28 giving precedence to a promotee or treating him senior to a person appointed by direct recruitment is violative of Articles 14 & 16 of the Constitution of India. Learned counsel has further argued that appointing authority has to adopt an appropriate continuous cyclic order as per proportion laid down of direct recruitment and promotee as in the instant case is 1:1 and therefore, 43 persons against promotion quota and 43 persons of direct recruitee, are to be placed in seniority list in cyclic order.
The learned counsel for the petitioner has argued that while determining the seniority, Rule 9(1)(b) of the Rules, 1954 has not been kept in mind and by not maintaining the cyclic order in matter of seniority, the rights of the petitioner has been infringed and same is violative of Articles 14 & 16 of the Constitution of India.
(7 of 16) [ CW-4964/2008] The learned counsel for the petitioner has argued that though the petitioner was appointed in the year 1996 but the recruitment process was initiated by R.P.S.C. by issuing advertisement in the year 1994, as such, the direct recruitee cannot suffer qua the promotee whose promotions orders are issued year-wise and they are assigned seniority over the direct recruitee in a same year, if they are appointed by both the methods.
The learned counsel for the petitioner has placed reliance on the judgment rendered in the case of (i) Arvinder Singh Bains Vs. State of Punjab, reported in 2006 (4) SLR 798, (ii) AFHQ/ISOs SOs (DP) Association & Ors. Vs. Union of India & Ors., reported in JT 2008(2) SC 508, (iii) Union of India & Ors. Vs. N.R.Parmar & Ors., reported in JT 2012(12) SC 99, (iv) State of Rajasthan & Ors. Vs. Anil Kumar, reported in JT 2001(2) SC 493 and (v) Prasad Kurien & Ors. Vs. K.J.Augustin & Ors., reported in (2008)1 SCC (LS) 856.
Per contra, the learned Additional Advocate General appearing for the respondent-State, Shri J.M.Saxena and learned counsel appearing for the private respondent, Mr.Prahlad Singh, have filed reply to the writ petition and have raised preliminary objections about maintainability of the writ petition. The respondents have raised objection that tentative seniority list dated 19.05.2007 does not give any cause of action to the petitioner. It has been submitted that the petitioner has not (8 of 16) [ CW-4964/2008] impleaded all the persons who are likely to be affected by the desired relief.
Counsel for the respondents contended that challenge to vires of Rule of 1954 is totally misconceived and promotees are treated senior to the direct recruitee, if they are appointed in the same year. The respondents have explained that Rule 9(1)(b) is for determination of actual number of vacancies required to be filled by each method of recruitment. The said rule is to maintain the quota of promotion and direct recruitment, having no co- relation with the determination of seniority as provided under Rule 28(ii) of the Rules, 1954.
counsel further pleaded that the Department had published the seniority list on 24.04.1999 but the petitioner failed to challenge the seniority list. However, it was challenged by other Assistants Engineers (direct recruitees), viz. Mr.M.M.Sharma and Mr.R.C.Chaturvedi by filing S.B.Civil Writ Petition No.2300/1999, which was dismissed and the Division Bench also dismissed the Special Appeal vide judgment dated 25.02.2004 and the SLP filed against the said judgment was dismissed by Apex Court vide order dated 07.01.2005. The respondents have pleaded that the impugned seniority list dt. 19.05.2007 was in continuation of the earlier seniority list dt. 24.04.1999.
The respondents have pleaded on merits of the matter by making averment that in the year 1996, only 42 posts of Assistant Engineers were filled by open selection through R.P.S.C. and in order to maintain the quota of 1:1 between direct recruitees and (9 of 16) [ CW-4964/2008] promotees, only 42 persons were appointed against promotion quota by the Departmental Promotion Committee and these 42 persons were kept above the direct recruitees in the seniority list as per the proviso (ii) to Rule 28 of the Rules, 1954. At the same time, in the year 1996-97, 512 posts of Junior Engineer (Civil) were upgraded to the post of Assistant Engineer (civil) to remove stagnation by inserting Rule 7(D) to the Rules, 1954 and the persons, who were appointed against the upgraded post of Assistant Engineer (Civil), were assigned seniority in the year 1996-97.
We have considered the rival submissions urged before the Court by learned counsel for both the parties.
It is trite law that Article 14 of the Constitution prohibits class legislation and not reasonable classification for the purpose of legislation. If the legislature takes care to reasonably classify persons for legislative purposes and if it deals equally with all persons belonging to a "well-defined class", it is not open to the charge of denial of equal protection.
The scope of judicial review in respect of legislation has been well defined and settled by the Apex Court in catena of cases and the scope of challenge to any piece of legislation is mainly on the following grounds:-
"(i) Legislative competence,
(ii) Violation of Part-III of the Constitution, and
(iii) The reasonableness of the law
(10 of 16)
[ CW-4964/2008]
The Apex Court in the case of Namit Sharma Vs. Union of India, reported in (2013)1 SCC 745, has reiterated the scope of judicial review in respect of adjudging the constitutionality of an impugned statute/rule. The relevant paras are quoted here- under:-
"11. An enacted law may be constitutional or unconstitutional. Traditionally, this Court had provided very limited grounds on which an enacted law could be declared unconstitutional. They were legislative competence, violation of Part III of the Constitution and reasonableness of the law. The first two were definite in their scope and application while the cases falling in the third category remained in a state of uncertainty. With the passage of time, the law developed and the grounds for unconstitutionality also widened. D.D. Basu in the 'Shorter Constitution of India' (14 th Edn., 2009) has detailed, with reference to various judgments of this Court, the grounds on which the law could be invalidated or could not be invalidated. Reference to them can be made as follows:-
"Grounds of unconstitutionality . - A law may be unconstitutional on a number of grounds:
(i) Contravention of any fundamental right, specified in Part III of the Constitution. (Ref. Under Article 143 : Special Reference No.1 of 1964, In Ref. AIR 1965 SC 745 (145): 1965 (1) SCR 413)
(ii) Legislating on a subject which is not assigned to the relevant legislature by the distribution of powers made by the Seventh Schedule, read with the connected Articles. (Ref. Special Reference No.1 of 1964, In Ref. AIR 1965 SC 745)
(iii) Contravention of any of the mandatory provisions of the Constitution which impose limitations upon the powers of a Legislature, e.g., Art. 301. (Ref. Atiabari Tea Co. v. State of Assam, AIR 1961 SC
232)
(iv) In the case of a State law, it will be invalid insofar as it seeks to operate beyond the boundaries of the State. (State of Bombay v. R.M.D. Chamarbaugh- wala, AIR 1957 SC 699)
(v) That the Legislature concerned has abdicated its essential legislative function as assigned to it by the Constitution or has made an excessive (11 of 16) [ CW-4964/2008] delegation of that power to some other body.
(Hamdard Dawakhana v. Union of India, AIR 1960 SC 554).
12. On the other hand, a law cannot be invalidated on the following grounds:
(a) That in making the law (including an Ordinance), the law-making body did not apply its mind (even though it may be a valid ground for challenging an executive act), (Ref. Nagaraj K. V. State of A.P., AIR 1985 SC 551) or was prompted by some improper motive. (Ref. Rehman Shagoo v. State of J & K, AIR 1960 SC 1(6); 1960 (1) SCR 681)
(b) That the law contravenes some constitutional limitation which did not exist at the time of enactment of the law in question. (Ref. Joshi R.S. v. Ajit Mills Ltd., AIR 1977 SC 2279)
(c) That the law contravened any of the Directive contained in Part IV of the Constitution. (Ref.Deep Chand v. State of U.P., AIR 1959 SC 648 (664) xxx xxx xxx
16. Article 14 forbids class legislation but does not forbid reasonable classification which means :
16.1 It must be based on reasonable and intelligible differentia; and 16.2. Such differentia must be on a rational basis. 16.3 It must have nexus to the object of the Act."
xxx xxx xxx
48. In order to examine the constitutionality of these provisions, let us state the parameters which would finally help the Court in determining such questions:
48.4 Lastly, whether it a legislative exercise of power which is not in consonance with the constitutional guarantees and does not provide adequate guidance to make the law just, fair and reasonable?"
As far as vires of proviso (ii) to Rule 28 of the Rules, 1954 is concerned, the Court does not find the same to be suffering from any vice of arbitrariness.
The rule making authority in its wisdom has incorporated the said rule by giving precedents/seniority to the promotee over direct recruitee, if their appointments are made in the same year.
(12 of 16) [ CW-4964/2008] Proviso (ii) to Rule 28 of the Rules, 1954 is an omnibus provision in almost all the service rules in State of Rajasthan and such rule left no ambiguity or any scope of misinterpretation by the authority.
The analogy drawn by the petitioner with regard to interpretation of Rule 9(1)(b) regarding the cyclic order is in respect of promotion to be made from Junior Engineer (Degree holder) and Junior Engineer (Diploma holder) to the post of Assistant Engineer and in the same ratio, direct recruitment is to be made. The contention of the learned counsel for the petitioner that the same cyclic order is to be followed in maintaining the seniority as per proviso (ii) to Rule 28 of the Rules, 1954 is without any substance.
In the present case, it is not disputed that final seniority list dated 24.04.1999 was issued wherein the name of the petitioner was shown at serial No. 1234 and all those persons who were promoted (total 512) in that year by way of up-gradation of post and against promotion quota, were shown senior to the petitioner. The petitioner did not raise any grievance against such seniority. The petitioner having come to know his seniority position in the year 1999, did not challenge his placement in the seniority as he was placed below the promotees of the year 1996-97. The seniority which prevail over a long period of time cannot be permitted to be challenged at a belated stage. The petitioner has woken up from slumber in the year 2007 and filed the instant writ petition against the provisional seniority list of the year 2007.
(13 of 16) [ CW-4964/2008] The Apex Court in the case of B.S.Bajwa Vs. State of Punjab & Ors., reported in 1998(2) SCC p.523 category held that it is well settled that in service matters, the question of seniority should not be re-opened after lapse of a reasonable period because that results in disturbing the settled position which is not justifiable.
The Apex Court in the case of Rajendra Pratap Singh Yadav & Ors. Vs. State of Uttar Pradesh & Ors., reported in 2011(7) SCC 743 has held that in service jurisprudence, the immense sanctity of a seniority list must be maintained unless there are compelling reasons to interfere and seniority list cannot be disturbed at the behest of a person who challenges it after a delay. The relevant para is quoted here-under:
"45. We deem it appropriate to reiterate that in service jurisprudence there is immense sanctity of a final seniority list. The seniority list once published cannot be disturbed at the behest of a person who chose not to challenge it for four years. The sanctity of the seniority list must be maintained unless there are very compelling reasons to do so in order to do substantial justice. This is imperative to avoid avoidable litigation and unrest and chaos in the services."
The Court also finds that Department has maintained the promotion quota and direct recruitment quota in its proportion of 1:1 as per requirement of the Rules of 1954 and 42 persons who were appointed by direct recruitment in the year 1996, similar number of officers have been appointed by promotion and as such, the quota rule has been followed.
The judgment relied upon by the petitioner of the Apex Court in the case of Arvind Kumar Bains Vs. State of Punjab (supra) is with respect to assigning of seniority to the persons who were (14 of 16) [ CW-4964/2008] appointed from different sources/register maintained for the purpose of appointment by way of direct recruitment. The Apex Court in the said judgment was primarily concerned with simultaneous/contemporaneous appointment made from various sources i.e. from various registers then how their inter se seniority is to determine on the basis of rotation of vacancies. The relevant para 47 is quoted here-under:-
"47. To sum up, we hold that:
(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority. (B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted.
(C) When appointments are made from more than one source, it is permissible to fix the ratio for recruitment from the different sources, and if rules are framed in this regard they must ordinarily be followed strictly.
(D) If it becomes impossible to adhere to, the existing quota rule, it should be substituted by an appropriate rule to meet the needs of the situation.
In case, however, the quota rule is not followed continuously for a number of years because it was impossible to do so the inference is irresistible that the quota rule had broken down.
(E) Where the quota rule has broken down and the appointments are made from one source in excess of the quota, but are made after following the procedure prescribed by the rules for the appointment, the appointees should not be pushed down below the appointees from the other source inducted in the service at a later date.
(F) Where the rules permit the authorities to relax the provisions relating to the quota, ordinarily a (15 of 16) [ CW-4964/2008] presumption should be raised, that there was such relaxation when there is a deviation from the quota rule.
(G) The quota for recruitment from the different sources may be prescribed by executive instructions, if the rules are silent on the subject.
(H) If the quota rule is prescribed by an executive instruction, and is not followed continuously for a number of years, the inference is that the executive instruction has ceased to remain operative. (I) The posts held by the permanent Deputy Engineers as well as the officiating Deputy Engineers under the State of Maharashtra belonged to the single cadre of Deputy Engineers.
(J) The decision dealing with important questions concerning a particular service given after careful consideration should be respected rather than scrutinised for finding out any possible error. It is not in the interest of Service to unsettle a settled position".
In our opinion, the said judgment cited by the learned counsel for the petitioner is of no assistance to him and does not apply to the present case at all.
The next judgment relied by the learned counsel for the petitioner in the case of Union of India Vs. N.R.Parmar (supra), was dealing with Office Memorandum of Union of India with respect to rotation of quotas. It was held by the Apex Court that if the process of direct recruitment could not be completed within the recruitment year itself, the Union of India was to adjust/inter- space the direct recruitee with promotees of the same recruitment year. The case of the petitioner is clearly distinguishable on principles and is of no assistance to him.
The case of State of Rajasthan Vs. Anil Kumar (supra) cited by the petitioner was with regard to the dispute of diploma holders who had subsequently obtained degrees and the Apex Court (16 of 16) [ CW-4964/2008] directed to the High Court to again re-look the effect of Rule 28 of the Rajasthan Engineering Subordinate Service (Public Health Branch) Rules, 1967, is of no assistance to the petitioner.
In view of the above discussion, the writ petition is without substance and deserves to be dismissed.
Consequently, the Writ Petition No.6715/2007 is dismissed. No order as to costs.
D.B.Writ Petition No.4964/2008:
D.B.Civil Writ Petition No.4964/2008 (Alka Saxena & Ors. Vs. State of Rajasthan & Ors.), which has a pari materia provision of assigning seniority to the promotee above the direct recruitee in the same year, since we have dismissed the Writ Petition No.6715/2007 (Vivek Goyal Vs. State of Rajasthan & Ors.), the same reasons are applied to the present case and as such, this petition also deserves to be dismissed.
Accordingly, the Writ Petition No.4964/2008 is also dismissed having no force. No order as to costs.
(ASHOK KUMAR GAUR)J. (AJAY RASTOGI)J. NK/40-41