Rajasthan High Court - Jaipur
Kamal Chand Saini And Ors vs R P S C Ajmer And Ors on 30 November, 2017
Author: Ashok Kumar Gaur
Bench: Ashok Kumar Gaur
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B. Civil Writ Petition No. 10008 / 2017
Lokendra Singh S/o Sh. Raghuveer Singh, Aged About 26 Years,
R/o Village Gundwa, Bharatpur, 321001
----Petitioner
Versus
1. State of Rajasthan Through Principal Secretary, Finance,
Government Secretariat, Jaipur.
2. Department of Treasuries & Accounts Through Director, Vitta
Bhawan, Janpath, Jaipur - Rajasthan
3. Department of Personnel Training Through Principal Secretary,
DoPT, Government Secretariat, Jaipur.
4. Rajasthan Public Service Commission Through Chairman, Jaipur
Road, Ghooghara Ghati, Ajmer, Rajasthan 305001
----Respondents
Connected With S.B. Civil Writ Petition No. 9929 / 2017
1. Shyam Prakash Saini S/o Sh. Dhoor Mal Saini, Aged About 33 Years, R/o 21, Bhoomiya Nagar, Near Sai Public School, Kalwar Road, Jhotwara, Jaipur-302012
2. Bhagwan Das Chandani S/o Sh. Dulichand Chandani, Aged About 26 Years, R/o 113/73 Agarwal Farm, Mansarovar, Jaipur- 302020
3. Ramesh Chandra Maharshi S/o Sh. Nand Kishor Maharshi, Aged About 30 Years, R/o Ward No. 9, Bissau, Jhunjunu, Rajasthan- 331027
4. Vikas Tripathi S/o Sh. Om Prakash Tripathi, Aged About 30 Years, R/o 2/223, Shahpur Mohalla, Beawar, Ajmer, Rajasthan- 305901335
5. Devkaran Saini S/o Sh. Khem Chand, Aged About 25 Years, R/o Dhani Chachawadi, Village- Sanjay Nagar Tehsil - Khetri, Jhunjunu, Rajsathan 333501
6. Babu Lal Tailor S/o Sh. Kanhaiya Lal Tailor, Aged About 29 Years, R/o Indra Colony, Railway Station Road, Chomu, Rajasthan- 303802
7. Bhawa Ram S/o Sh. Ganesha Ram, Aged About 28 Years, R/o 10, Juna Ganv, Nosar, Tehseel Baytu Barmer, Rajasthan -326037 (2 of 43) [ CW-10008/2017]
8. Ashish Mudgal S/o Late Sh. Prahalad Singh Mudgal Mathur, Aged About 41 Years, R/o Near Agarwal Bhawan, Ward No. 15, Lachhmangarh, Sikar, Rajasthan
9. Prabhu Ramchandani S/o Late Sh. Narain Das Ramhandani, Aged About 42 Years, R/o 224/25, Chand Bawri, Asha Ganj, Ajmer, Rajasthan
10. Ram Singh Yadav S/o Sh. Banshi Dhar Yadav, Aged About 32 Years, R/o Post- Bishangarh, Via- Manoharpur, Tehseel Shahpura, Jaipur, Rajasthan- 303104
11. Ram Kumar S/o Sh. Prem Chand, Aged About 30 Years, R/o 3 Nagla Parasharam, Tehseel- Bharatpur, Bharatpur. Rajasthan.
12. Pankaj Mehta S/o Sh. S.K. Mehta, Aged About 39 Years, R/o 60-B, Prem Nagar, Near Purani Chungi, Ajmer Road, Jaipur- 302019
13. Manoj Kumar Yadav S/o Sh. Rati Ram Yadav, Aged About 33 Years, R/o Mohalla Munimon Ka, Near Agarwal Bhawan, Behrod (Alwar) - Rajsathan
14. Sohan Lal Kumawat S/o Ratan Lal Kumawat, Aged About 26 Years, R/o- Dhakad Colony, Ward No. 20, Todaraisingh, Tonk- 304505, Rajasthan
----Petitioners Versus
1. State of Rajasthan Through Principal Secretary, Finance, Government Secretariat, Jaipur
2. Department of Treasuries & Accounts Through Director, Vitt Bhawan, Janpath, Jaipur- Rajasthan
3. Department of Personnel Training Through Principal Secretary, DoPT, Government Secretariat, Jaipur.
4. Rajasthan Public Service Commission Through Chairman, Jaipur Road, Ghooghara Ghati, Ajmer, Rajasthan 305001
----Respondents S.B. Civil Writ Petition No. 10194 / 2017
1. Ritesh Pareek S/o Sh. Chiranjilal Pareek, Aged About 24 Years, R/o Village and Post - Harsh Via Sanwali, District Sikar, Rajasthan 332021
2. Lokesh Sharma S/o Sh. Rajendra Prasad Sharma, Aged About 30 Years, R/o Modi Kothi, Gali No. 1, Radhakrishanpura, Sikar, Rajasthan.
3. Balveer Singh Bhichar S/o Sh. Hem Singh Bhichar, Aged About (3 of 43) [ CW-10008/2017] 33 Years, R/o Village and Post Tarpura Via Katrathal, District Sikar, Rajasthan 332024
----Petitioners Versus
1. State of Rajasthan Through Principal Secretary, Finance, Government Secretariat, Jaipur.
2. Department of Treasuries & Accounts Through Director, Vitt Bhawan, Janpath, Jaipur- Rajasthan
3. Department of Personnel Through Principal Secretary, DOP, Government Secretariat, Jaipur.
4. Rajasthan Public Service Commission, Through Chairman, Jaipur Road, Ghooghara Ghati, Ajmer, Rajasthan 305001
----Respondents S.B. Civil Writ Petition No. 10525 / 2017
1. Kamal Chand Saini S/o Shri Kalyan Sahai Saini, Aged About 31 Years, Resident of Village Barh Bishanpura, Post Kolana, Tehsil Baswa Bandikui, Distt. Dausa (Raj.)
2. Gaurav Soni S/o Shri Dilip Soni, Aged About 25 Years, R/o 30/246, Mangla Chowk, Manikya Nagar, Bhilwara (Raj.)
3. Anil Kumar Saini S/o Shri Kishori Lal Saini, Aged About 36 Years, R/o Vidhayak Mohalla, Ward No. 20, Bandikui Distt. Dausa (Raj.)
4. Dheeraj Sharma S/o Shri Ganga Lahari Sharma, Aged About 25 Years, R/o Sangram Vihar Colony, New Mandi Road, Dausa (Raj.)
5. Krishankant Bansal S/o Shri Deenanath Bansal, Aged About 28 Years, R/o Narsingh Colony, Ward No. 16, Near Bangali Kothi, Kherli, Tehsil Kathoomar Distt. Alwar.
6. Asheesh Kumar S/o Shri Udai Bhanu Singh, Aged About 28 Years, R/o Hira Pansari Ki Gali, VPO Sewar, Distt. Bharatpur (Raj.)
7. Pawan Kumar Klhatri S/o Ramdev Khatri, Aged About 27 Years, R/o Behind Taparia Floor Mill, Arbiyow Mohalla, Kuchilpura, Bikaner (Raj.)
8. Ashish Sharma S/o Shri Om Prakash Sharma, Aged About 23 Years, R/o Khandar Bus Stand Ke Pass, Nichla Pada, Sawai Madhopur (Raj.)
9. Shobhit Jain S/o Shri Bharat Jain, Aged About 25 Years, R/o House No. 6/124, Sector-6, Behind Sadar Thana, Housing Board, Dungarpura (Raj.) (4 of 43) [ CW-10008/2017]
10. Vinod Kumar S/o Shri Jyoti Kumar, Aged About 35 Years, R/o House No. 68, Street No. 9, Behind Police Chowki Setia Far, Sriganganagar.
11. Gourav S/o Shri Kishan Lal, Aged About 29 Years, C/o LDC Civil Judge & Judicial Magistrate, Pilibanga Distt. Hanumangarh.
12. Ranjeet Singh Chandana S/o Shri Shankar Singh Chandana, R/o Village Post Farara, Via Kankroli, District Rajsamand.
13. Bhim Sain S/o Shri Krishan Kumar, R/o Asarjana, Post Virkali, Tehsil Nohar, District Hanumangarh.
14. Heera Singh Rajput S/o Shri Banasingh Rajput, R/o 404, Neemach Mata Scheme, Dewali, Distt. Udaipur.
15. Surendra Bhandari S/o Shri Jagdish Bhandari, R/o 5/1, Government Hospital Campus, NH-15, Sriganganagar.
16. Bhuvnesh Upadhyay S/o Shri Om Prakash Upadhyay, R/o Upadhyay Colony, Village Post Madar, Tehsil Badgoan, Distt. Udaipur.
17. Lajpat Rai S/o Prem Chand, R/o 47 B, 2nd Prem Nagar, Prem Floor Mill, Sriganangar.
8. Miss. Shipha D/o Vinod Kumar Narang, Aged About 24 Years, R/o Ward No. 8, Udaram Chowk, Purani Abadi, Near Ambe Cloth Store, Sriganganagar.
19. Gaurav Kumar Saini S/o Shri Rameshwar Saini, R/o Chambaleshwar Mahadev Mandir, Near Roadways Bus Stand, Nayapura, Kota (Raj.)
----Petitioners Versus
1. Rajasthan Public Service Commission Through Its Secretary, Ajmer.
2. State of Rajasthan Through Principal Secretary, Finance Department, Government of Rajasthan, Secretariat, Jaipur.
3. Director, Treasury and Accounts, Government of Rajasthan, Vitt Bhawan, Janpath, Jaipur.
----Respondents S.B. Civil Writ Petition No. 10755 / 2017
1. Devendra Kumar Gupta S/o Shri Ramavatar Gupta, Aged About 31 Years, R/o 119/410, Thadi Market, Agarwal Farm, Mansarovar, Jaipur (Raj.) (5 of 43) [ CW-10008/2017]
2. Pankaj Gupta S/o Shri Hariom Gupta, Aged About 25 Years, R/o Nai Basti, Mohalla Harbaksh, Near District Court, Alwar (Raj.)
3. Chena Ram S/o Chhotu Ram, Aged About 26 Years, R/o Bassi Mohalla, Near Ajmeri Gate, Nagaur (Raj.)
----Petitioners Versus
1. The State of Rajasthan Through Its Principal Secretary, Finance Department, Govt. of Rajasthan , Secretariat, Jaipur.
2. The Director, Directorate of Treasuries & Accounts (DTA), Government of Rajasthan, Vitt Bhawan, Jaipur (raj.).
3. Rajasthan Public Service Commission Through Its Secretary, Ajmer.
----Respondents S.B. Civil Writ Petition No. 10771 / 2017 Manoj Sain S/o Ganpat Sain, Aged About 26 Years, R/o 21, Chatnya Vihar, Near 10-B Scheme, Gopal Pura Bye Pass, Jaipur (Raj.)
2. Narpat Singh Rawat S/o Sh. Mohan Singh, Aged About 30 Years, R/o Village Bhunabhai, Post Rasulpura, District Ajmer (Raj.)
3. Chetan Sharma S/o Shri Rajendra Kumar, Aged About 23 Years, R/o C/o Dulhe Singh Ranawat, C-25, Bapu Nagar, Sethi Chittorgarh (Raj.)
----Petitioners Versus
1. The State of Rajasthan Through Its Principal Secretary, Finance Department, Govt. of Rajasthan , Secretariat, Jaipur.
2. The Director, Directorate of Treasuries & Accounts (DTA), Government of Rajasthan, Vitt Bhawan, Jaipur (raj.).
3. Rajasthan Public Service Commission Through Its Secretary, Ajmer.
----Respondents S.B. Civil Writ Petition No. 10839 / 2017 Babulal Meena S/o Sh. Prabhu Dayal Meena, Aged About 35 Years, R/o Plot No. AH 80, Jhalana Gram, Calgiri Road, Malviya Nagar, Jaipur, Rajasthan.
(6 of 43) [ CW-10008/2017]
----Petitioner Versus
1. State of Rajasthan Through Principal Secretary, Finance, Government Secretariat, Jaipur.
2. Department of Treasuries & Accounts Through Director, Vitt Bhawan, Janpath, Jaipur- Rajasthan
3. Department of Personnel Through Principal Secretary, DOP, Government Secretariat, Jaipur.
4. Rajasthan Public Service Commission Through Chairman, Jaipur Road, Ghooghara Ghati, Ajmer, Rajasthan 305001
----Respondents S.B. Civil Writ Petition No. 10840 / 2017 Bharat Bishnoi S/o Sh. Bhagwan Dass Bishnoi, Aged About 37 Years, R/o- 170/4 Pratap Nagar, Sanganer, Jaipur, Rajasthan.
----Petitioner Versus
1. State of Rajasthan Through Principal Secretary, Finance, Government Secretariat, Jaipur.
2. Department of Treasuries & Accounts Through Director, Vitt Bhawan, Janpath, Jaipur-Rajasthan
3. Department of Personnel Through Principal Secretary, DoP, Government Secretariat, Jaipur.
4. Rajasthan Public Service Commission Through Chairman, Jaipur Road, Ghooghara Ghati, Ajmer, Rajasthan 305001
----Respondents S.B. Civil Writ Petition No. 11407 / 2017 Arti Jain D/o Sh. Vimal Chand Jain, Aged About 35 Years, R/o 51/369, Pratap Nagar, Sanganer, Jaipur, Rajasthan - 302033
----Petitioner Versus
1. State of Rajasthan Through Principal Secretary, Finance, Government Secretariat, Jaipur.
2. Department of Treasuries & Accounts Through Director, Vitt Bhawan, Janpath, Jaipur - Rajasthan (7 of 43) [ CW-10008/2017]
3. Department of Personnel Through Principal Secretary, DoP, Government Secretariat, Jaipur.
4. Rajasthan Public Service Commission Through Chairman, Jaipur Road, Ghooghara Ghati, Ajmer, Rajasthan 305001
----Respondents S.B. Civil Writ Petition No. 11489 / 2017 Aakash Tak Son of Late Shri Vasudav Tak, Aged About 26 Years, R/o 4/300, Vidhyadhar Nagar, Jaipur (Rajasthan)
----Petitioner Versus
1. Rajasthan Public Service Commission Through Its Secretary, Ghooghra Ghati, Ajmer (Rajasthan)
2. State of Rajasthan Through Principal Secretary, Department of Finance, Government of Rajasthan, Secretariat, Jaipur.(rajasthan).
3. State of Rajasthan Through Principal Secretary, Department of Personnel, Government of Rajasthan, Secretariat, Jaipur. (rajasthan).
4. Director, Treasury and Accounts, Government of Rajasthan, Vitt Bhawan, Janpath, Jaipur (Rajasthan)
----Respondents S.B. Civil Writ Petition No. 11991 / 2017 Sachin Chaudhary S/o Late Sh. Surjeet Singh, Aged About 29 Years, R/o Ward No. 25, Vikas Nagar, Pilani Road, Chirawa, District Jhunjhunu.
----Petitioner Versus
1. State of Rajasthan Through Principal Secretary, Finance, Government Secretariat, Jaipur
2. Department of Treasuries & Accounts Through Director, Vitt Bhawan, Janpath, Jaipur- Rajasthan
3. Department of Personnel Training Through Principal Secretary, DoPT, Government Secretariat, Jaipur
4. Rajasthan Public Service Commission Through Chairman, Jaipur Road, Ghooghara Ghati, Ajmer, Rajasthan 305001 (8 of 43) [ CW-10008/2017]
----Respondents S.B. Civil Writ Petition No. 12538 / 2017 KanvarPal Uddenia S/o Harinarain Uddenia, Aged About 27 Years, R/o 60, LBS Colony, Ward No. 13, Chaksu, District Jaipur. At Present Working Lower Division Clerk, MM 34, Chaksu, Jaipur
----Petitioner Versus
1. Rajasthan Public Service Commission Through Its Secretary, Ajmer.
2. State of Rajasthan Through Principal Secretary, Finance Department, Government of Rajasthan, Secretariat, Jaipur.
3. Director, Treasury and Accounts, Government of Rajasthan, Vitt Bhawan, Janpath, Jaipur
----Respondents _____________________________________________________ For Petitioner(s) : Mr.Ajatshatru Mina, Mr.Vigyan Shah, Mr.S.N.Kumawat, Mr.Shyam Kant Sharma, Mr.D.P.Pujari & Mr.Girraj Prasad, Advocates. For Respondent(s) : Mr.Rajendra Prasad, AAG & Mr.M.Faisal Baig, Adv.
_____________________________________________________ HON'BLE MR. JUSTICE ASHOK KUMAR GAUR Order Order reserved on : 17.11.2017 Order pronounced on : 30.11.2017 Reportable The present batch of writ petitions involves common issue relating to method of recruitment on the post of Junior Accountants against 12.5% by way of direct recruitment from the ministerial staff of all the departments of Government holding a post in the cadre substantively. The prayer made in the present (9 of 43) [ CW-10008/2017] batch of writ petition is also to declare petitioners appointed substantively, on the post of Lower Division Clerk for the purpose of considering their cases under Rule 6(iii) of the Rajasthan Subordinate Accounts Service Rules, 1963.
Since the issues raised in the petitions and prayer made are common, the present writ petitions are decided by this common order. The facts from S.B.Civil Writ Petition No.10008/2017 are taken as a lead case to decide the present controversy.
The petitioners are the candidates who appeared in the competitive examination conducted in 2011 by the Rajasthan Public Service Commission (hereinafter called, "RPSC") for the post of Lower Divisional Clerk as per Rajasthan Subordinate Offices Ministerial Service Rules, 1999 (hereinafter called, "Ministerial Rules, 1999"). The petitioners after declared being successful in the said examination, came to be appointed in the year 2013 on the post of Lower Divisional Clerk and they were put on probation for period of 2 years and were fixed in pay band of Rs.5200-20200. The petitioners have asserted in the petition that they were appointed on substantive basis as per mandate of Rule 38 of the Ministerial Rules, 1999 and their appointment was substantive in nature as per definition given in Rule 2(k) of the Ministerial Rules, 1999.
The Rajasthan Public Service Commission issued an advertisement on 18.09.2013 for making appointment on 3491 posts of Junior Accountants as per the Rajasthan Subordinate (10 of 43) [ CW-10008/2017] Accounts Services Rules, 1963 (hereinafter called as "Rules of 1963").
The RPSC issued a corrigendum on 31.10.2014 providing 12.5% horizontal reservation for the ministerial staff of all the departments of the Government on 437 posts. The advertisement was further amended vide corrigendum dated 16.04.2015 wherein the last date of submission of the online application was extended upto 15.05.2015. The petitioners have submitted in the petition that they were eligible for the post of Junior Accountant, as they were appointed substantively in the cadre of Lower Divisional Clerk, they submitted their online applications.
The RPSC conducted the examination on 02.08.2015 in pursuance of the advertisement dated 18.09.2013 and subsequent corrigendum dated 31.10.2014 and 16.04.2015. However, the examination was cancelled by the High Court due to leak of question papers.
The petitioners have asserted in the petition that all the petitioners were confirmed on completion of their 2 years probation period on various dates starting from June, 2015 to September, 2016. The petitioner have further submitted that they were confirmed prior to issuance of press-note dated 10.08.2016.
The RPSC published a press-note dated 10.08.2016 stating that all the applicants who have applied for the post of Junior Accountant and Tehsil Revenue Accountant, could edit their application until 01.10.2016.
(11 of 43) [ CW-10008/2017] The RPSC conducted examination for the post of Junior Accountant on 04.10.2016. The petitioners who appeared in the said examination, found their names in merit, in the result which was revised five times on account of their being wrong questions in the question paper and as per directions of the High Court.
The petitioners have submitted that their names were included in each final result issued by the RPSC. The petitioners have further submitted that on 04.01.2017, RPSC sought clarification from the State Government on four issues and one of the issue was with regard to ministerial staff, who were substantively appointed before the last date of filling the application i.e. 15.05.2015 to be eligible to get the benefit of reservation of 12.5% as per Rule 6(iii) of the Rules of 1963.
The petitioner have further submitted that when the matter was referred to the State Government, the State Government consulted the Finance Department, and the Finance Department observed that in the State Government Services, only those candidates are considered as substantively appointed, who after completion of probation period, have attained the lien on the post. However, the Department of Finance sought the advice of the Department of Personnel Training (DoPT). Subsequently, the DoPT submitted its advice stating that candidates who have been given substantive appointment as on 15.05.2015 shall be considered as Ministerial Staff. The copies of note-sheet of the Department of Finance dated 26.04.2017 and note-sheet of DoPT dated 10.05.2017 are placed on record as Annexure-P/10.
(12 of 43) [ CW-10008/2017] The RPSC issued the merit list of the successful candidates on 07.06.2017 and in the said list, the petitioners were declared successful. The RPSC on 14.06.2017 sought clarification from DoPT as to whether the Ministerial Staff/Applicants, who were on probation at the time of filing the application should be treated as substantively appointed or not and whether they were entitled for reservation of 12.5%. The petitioners have averred in the petition that DoPT has given its recommendations that the substantive employees were those, who had acquired the lien and probationer trainee were not substantive employees and as such, the candidates who were on probation upto the last date i.e. 15.05.2015, were not required to be treated as substantively appointed employees.
On result being declared, the Director of Treasury & Accounts, Government of Rajasthan issued the list of candidates who were declared successful by the RPSC and directed them to appear for the document verification and it did not include name of the petitioners. The petitioners feeling aggrieved by their exclusion and not treating them as substantively appointed have filed the instant writ petitions.
The State-respondents No.1 to 3 have filed their reply and it has been submitted that on the last date of submitting of application i.e. 15.05.2015, the petitioners were not substantively appointed and they were on probation and only when appointment is confirmed on the said post, the persons can be considered as substantively appointed. The State has taken stand that the (13 of 43) [ CW-10008/2017] appointment of petitioners cannot be termed as "substantive" as for declaring, an appointment substantive, appointment on probation, is required to be followed by confirmation on the completion of probation period. The petitioners since were not confirmed on the last date of submission of the application form, as such, they cannot be considered to be substantively appointed. It has been pleaded by the State that without confirmation and holding lien, the person cannot be said to be substantively appointed. The appointment on probation necessarily is required to be followed by confirmation and merely holding and discharging services on substantive post, would not ipso facto make the appointment, as substantive appointment.
The RPSC has filed the reply and has relied upon the definition given in sub-rule (l) of Rule 2 of the Rules of 1963 defining "substantive appointment" and submitted that substantive appointment means an appointment made under the provisions of Rules of 1963 to a substantive vacancy after due selection by any of the methods of recruitment prescribed under these Rules and includes an appointment on probation or as a probationer followed by confirmation on completion of probationary period.
The RPSC has said that on the last date of submission of the application form i.e. 15.05.2015, the petitioners were not confirmed and as such, they cannot be treated as substantive employee for the purpose of extending the benefit of 12.5% (14 of 43) [ CW-10008/2017] reservation from Ministerial Employees for appointment on the post of Junior Accountant.
The Commission has further submitted that final result was declared on 07.06.2017, wherein 3497 candidates were declared pass for Junior Accountant services and successful candidates were required to submit their detailed application forms and after verification of the detailed application from by the competent Authority, names of selected candidates were recommended.
The Commission has further submitted that after declaration of result dated 07.06.2017 and after receiving the detail application forms, eligibility of the candidates for the post of Junior Accountant was examined by the Officers deputed by Director, Treasury & Accounts, Jaipur and since the petitioners were working on probation and they were not confirmed on the post of L.D.C., they were not to be treated as substantive employees.
The Commission has also taken the same stand as of State Government that since petitioners were only probationer and not confirmed employee, they were not treated as a substantive employee. The Commission has further relied upon clarification of the Secretary, Finance (Revenue) Department dated 11.05.2017 clarifying that only those employees in the services of the State Government, will be treated as Ministerial Employees, who were substantively appointed and probationer trainees were not substantive employees, as they have not acquired the lien in the State services.
(15 of 43) [ CW-10008/2017] The petitioners have filed rejoinder to the reply filed by the RPSC and have submitted that the Rules of 1963 does not stipulate the requirement of lien on the post for the purpose of substantive appointment and further, the petitioners have submitted that the definition given under Rule 2(l) of the Rules of 1963 also defines "substantive appointment" wherein the probationers have also been included.
The petitioners have filed an additional affidavit in S.B.Civil Writ Petition No.9929/2017 (Shyam Prakash Saini & Ors. Vs. State of Rajasthan & Ors., wherein it has been stated that the RPSC had published a press-note informing to the candidates who had applied earlier for the post of Junior Accountant and Tehsil Revenue Accountant, they could edit their application until 01.10.2016 and make necessary correction. It has been asserted that RPSC had provided format to make correction in the application from and the same format itself stated in column no.3 the correct entry and in the Row no. 3 the category. The RPSC made it clear by permitting the candidates to change their category, before the last date i.e. 01.10.2016.
The additional affidavit further makes an averment that RPSC itself permitted the applicants to make changes in their category and one Babu Lal Meena, prior to 15.05.2015, was not in the Ministerial Employee category but subsequently, on 14.10.2016, Babu Lal Meena submitted his application wherein he inserted Ministerial Employee (ME) in the column of Special (16 of 43) [ CW-10008/2017] Category and as such, in the final result declared, such candidate Babu Lal Meena was treated in ME category.
The petitioners have asserted in the said affidavit that by way of press-note, since RPSC had permitted the candidates to change their respective candidates, many applicants changed their categories and thus, the date of changing the information in the form was changed and extended till 01.10.2016 and the last date of possessing the eligibility on the post of Junior Accountant should be treated as 01.10.2016 and all the petitioners were confirmed prior to 01.10.2016.
The petitioners have further asserted in the affidavit that the Division Bench in D.B.Ciivl Special Appeal (Writ) No.1488/2016 (Jhabarmal Garhwal Vs. Rajasthan Public Service Commission, Ajmer. ), has considered the identical facts and held that press- note has effect of changing the date of eligibility and as such, permitted the candidates to change their category as per the press-note.
The Commission has filed an affidavit and it has been asserted that candidates were permitted to edit their application regarding the mistakes in the spelling of name, category, qualification and address prior to the date of examination and permission to edit the application was based on Full Commission decision dated 07.05.2015. It has been stated that the Full Commission in its decision dated 07.05.2015, made it specifically clear that the eligibility of the category would be assessed on the last date of submission of the application. The Commission has (17 of 43) [ CW-10008/2017] taken a stand that the result of candidates were declared in respect of categories but their eligibility was assessed as on 15.05.2015 and further has reiterated that the State Government had made it clear that the probationer trainee are not substantive employee and the candidates who were probationer on the date of 15.05.2015, would not be treated as substantive employee.
Mr.Ajatshatru Mina, learned counsel for the petitioners has raised the following legal grounds:-
(1) The advertisement was issued in pursuance of the Rules of 1963 and accordingly, the recruitment process is to be governed by the said rules. The Rule 6(iii) of the Rules of 1963 do not stipulate the requirement of "lien" on the post for the purpose of substantive appointment and as such, denial of appointment on this ground of not possessing lien on the post, is arbitrary and illegal.
(2) The petitioners having got substantive appointment as per Ministerial Service Rules, 1999, cannot be excluded as their appointments have been made to a substantive vacancy after due selection prescribed under the Rules of 1999 and as such, once the petitioners are substantively appointed under the parent rules, such candidates cannot be excluded.
(3) The requirement under Rule 6(iii) of the Rules of 1963 is being fulfilled by the petitioners as they are holding the post in a government department in the cadre substantively and (18 of 43) [ CW-10008/2017] as such, confirmation or holding of lien is not necessary for the purpose of Rule 6(iii) of the Rules of 1963.
(4) Once the petitioners are confirmed and declared substantive, they are to be treated as substantive from the initial date of appointment and confirmation will relate back from their initial date of appointment.
(5) The last date of possessing the eligibility for the post in question i.e. Junior Accountant, should be treated as 01.10.2016 and once the RPSC itself has changed the date and permitted editing of application, the candidates who possess the eligibility as on 01.10.2016 having duly been confirmed, cannot be excluded.
(6) The condition of lien taken from definition of "substantive appointment" defined in Rule 7 (34-A) of RSR, the provisions of RSR cannot be made applicable to the recruitment on the post of Junior accountant as the recruitment conditions of Junior Accountant is governed by Rajasthan Subordinate Accounts Service Rules, 1963 promulgated under proviso to Article 309 of the constitution of India and Rule 2(h) of the Rajasthan Service Rules, 1951 specifically excludes its applicability in the present case.
(7) "The substantive appointment" is defined in Rule 7(34-A) of RSR that person should be appointed on a permanent post and should holds lien. The "lien" being defined in Rule 7 (17) of RSR that person should be substantively appointed, the (19 of 43) [ CW-10008/2017] appointment of the petitioners is required to be treated as substantive appointment, even as per these rules. (8) The petitioners being appointed under Ministerial Rules, 1999 and Rule 2(k) defines "substantive appointment" and which includes the person on probation also, the petitioners are required to be considered as appointed substantively and attaching the condition of lien for the purpose of appointed substantively, is totally misinterpretation of rule. (9) The condition of confirmation for a probationer to be treated as substantively appointed, is illegal condition. Confirmation cannot be made condition for treating the person as substantively appointed, as confirmation is an act which is totally within the domain of the employer and employee, as such, do not have any role.
(10) The word "probationer" or as "a probationer followed by confirmation on completion of probationary period" as defined in Rules of 1963, are two separate classes. The word "or" used is disjunctive and there are two categories and when person is appointed on probation, it being an inclusive definition of substantive appointment, such persons like petitioners from a separate class and probationer followed by confirmation on completion of probationary period is a separate class.
Mr. Ajatshatru Mina, the learned counsel has relied on the following judgments:
(20 of 43) [ CW-10008/2017]
1. Jharbarmal Garhwal Vs. State, [DBSAW No.1488/2016]
2. Laxman Singh Vs. RPSC, [DBCW No.15437/2016]
3. Syed Mansoor Vs. State, [DBCW No.1848/1988]
4. Rajasthan High Court Private Steno Vs. State, [DBCW 2705/1988]
5. Balweshwar Das Gupta Vs. State of U.P., [1980(4) SCC 226]
6. Ramesh Kumar Sharma Vs. State of Raj., [2001(1) SCC 637]
7. Hyderabad Asbestos Cement Products Vs. UOI, [2000(1) SCC 426]
8. L.Chandra Kishore Singh Vs. State of Manipur & Ors., [1999(8) SCC 287]
9. S.Sumnyan & ors. Vs. Limi Niri & Ors., [(2010)6 SCC
791)
10. S.B.Patwardhan Vs. State of Maharasthra, [1977(3) SCC 399] Mr.S.N.Kumawat, learned counsel appearing for the petitioners submits that the person who is appointed on a probation has a status of probationer and he is sent for training, but nevertheless he is substantively appointed. Mr. Kumawat has submitted that the post has a lien but a person who undergoes the regular recruitment process against clear available vacancy, he is substantively appointed and as such, once the petitioners having undergone the regular mode of selection and having been appointed, they cannot be excluded only on account of not being confirmed.
Mr. Vigyan Shah, learned counsel appearing for the petitioners submits that even if the Rajasthan Service Rules is made applicable, Rule 7 (34-A) of RSR, which deals with substantive appointment, does not exclude probationer. He further submits that Rule 7(17) of RSR deals with lien and it only says (21 of 43) [ CW-10008/2017] that person should be appointed substantively. Mr. Shah submits that even, the persons who are not confirmed but they are substantively appointed and they, too, have a lien, cannot be excluded from the zone of consideration.
Per contra, Mr. Rajendra Prasad, learned AAG has submitted that any probationer, who is appointed after regular recruitment, until his confirmation is there, till then, such person cannot be treated as substantively appointed. Mr. Rajendra Prasad submits that as per Rule 7(34-A) of RSR, substantive appointment should be against a permanent post and person should hold lien. Mr. Rajendra Prasad submits that probationer, if does not complete the probationary period successfully, including by writing the departmental examination, where it is necessary, the same person cannot be treated as substantively appointed.
Mr. Rajendra Prasad has further submitted that a person does not acquire lien when he is appointed as a probationer but he holds the lien after he is confirmed on the said post.
Mr. Rajendra Prasad has further submitted that RSR and relevant Service rules, make it very clear that persons who are initially appointed on probation and later on confirmed, can only be treated as substantively appointed.
Mr. M.Faisal Baig, learned counsel appearing for the RPSC submits that the petitioners were not possessing the required eligibility as Ministerial Employee against quota meant for them as per Rule 6(iii) of the Rules of 1963 as the substantive appointment under Rules of 1963, required persons to be appointed against (22 of 43) [ CW-10008/2017] substantive vacancies after due selection and they are required to be confirmed till the last date i.e. 15.05.2015 and the present petitioners not being confirmed on that day, are not eligible. Mr. Baig further submits that the State Government has clarified the position and accordingly, the RPSC has also treated the petitioners ineligible.
I have heard the rival submissions and considered the relevant record.
The relevant Rules for consideration of this Court are reproduced hereunder:-
The Rajasthan Subordinate Accounts Service Rules, 1963 Part-I General
1. Short title and commencement.- These Rules may be called the Rajastahn Subordinate Accounts Service Rules, 1963. They shall come into force at once.
"2. Definitions.- In these Rules, unless the context otherwise requires:-
xxx xxx xxx
(l) "Substantive Appointment" means an appointment made under the provisions of these Rules to a substantive vacancy after due selection by any of the methods of recruitment prescribed under these Rules and includes an appointment on probation or as a probationer followed by confirmation on the completion of the probationary period."
"6. Method of recruitment.- Recruitment to the Service shall be made in the manner specified in column 3 of the Schedule by recruitment in accordance with Part IV of these Rules:
Provided that;
xxx xxx xxx [(iii) Provided also further that 12 1/2% of the posts of Junior Accountants to be filled in by direct recruitment shall (23 of 43) [ CW-10008/2017] be reserved for being filled in from amongst the ministerial staff of all the departments of the Government holding a post in the Cadre substantively, subject to their being found otherwise eligible for such recruitment under the Rules. This reservation shall be carried forward only to the next succeeding year.']"
xxx xxx xxx The Rajasthan Subordinate Offices Ministerial Service Rules, 1999 "2. Definition:- In these Rules unless the context otherwise requires:-
xxx xxx xxx
(k) "Substantive Appointment" means an
appointment made under the provisions of these Rules to a substantive vacancy after due selection by any of the methods of recruitment prescribed under these Rules and includes, an appointment on probation followed by confirmation on the completion of the probationary period;
Note:- Due selection by any methods of recruitment prescribed under these rules will include recruitment either on initial constitution of Service or in accordance with the provisions of any Rules promulgated under proviso to Article 309 of the Constitution of India, except urgent temporary appointment."
"38. Period of Probation -- (1) A person entering the service by Direct Recruitment against a clear vacancy shall be placed as Probationer-trainee for a period of 2 years.
Provided that any period after such appointment during which a person has been on deputation on a corresponding or higher post shall count towards the period of probation.
(2) During the period of probation specified in sub-rule (1), each probationer trainee may be required to pass such Departmental Examination and to undergo such training as the Government may, from time to time, specify."
(3) The period spent as probationer trainee shall not be counted for experience and eligibility for promotion." The relevant provisions of Rajasthan Service Rules, 1951 are reproduced as hereunder:-
(24 of 43) [ CW-10008/2017] Rajasthan Service Rules, 1951 "Rule 2 Extent of Application: These rules apply- xxx xxx xxx Provided further that these rules shall not apply xxx xxx xxx
(h) to persons for whom special or specific provision in respect of any matter covered by these rules has been made in the rules regulating their recruitment and conditions of service framed under proviso to Article 309 of the Constitution or under any Law or rules for the time being in force applicable to such persons."
"Definitions Rule 7. Unless there be something repugnant in the subject or context the terms defined in this Chapter are used in the rules in the sense here explained:--
xxx xxx xxx (17) Lien : -means the title of a Government servant to hold substantively, either immediately or on the termination of a period or periods of absence, a permanent post, including a tenure post, to which he has been appointed substantively.
Xxx xxx xxx (30) Probationer: means a person appointed provisionally against a substantive vacancy in the cadre of a service or on a substantively vacant post.
xxx xxx xxx (30A) Probationer-trainee: means a person appointed through direct recruitment against a clear vacancy in the cadre of service and placed under training on fixed remuneration for a period of two years or extended period, if any."
xxx xxx xxx
(34-A) Substantive Appointment--means the
appointment of a Government servant on a permanent post and on which he acquires a lien."
The first and foremost issue is with regard to scope of holding a post by the Ministerial Staff in the cadre substantively for making them eligible against 12.5% post of Junior Accountant to be filled by direct recruitment as per Rules of 1963. The perusal (25 of 43) [ CW-10008/2017] of Rule 6 clearly provides that the Ministerial Staff of all the departments of Government should hold a post in the cadre substantively. The rule making authority had an object in mind that whosoever claims appointment on the post of Junior Accountant should be working in the Ministerial Staff of any department of the Government but should hold the post in that cadre substantively.
The Rajasthan Subordinate Offices Ministerial Service Rules, 1999 defines "substantive appointment" and as per definition 2(k) of the Ministerial Rules, 1999, substantive appointments are those appointments made under the provisions of Rules of 1999 to a substantive vacancy after due selection by any of the methods of recruitment prescribed under the rules. The petitioners having participated in the selection process conducted by RPSC, came to be appointed against substantive vacancy on the post of Lower Divisional Clerk. The said rule clearly provides that there has to be an element of selection and vacancy has to be substantive. The persons who participates in the selection process against duly advertised substantive vacancies, came to be selected due to their merit, as such, their appointment has to be treated as substantive appointment.
The definition of substantive appointment in Rule 2(k) of the Ministerial Rules, 1999 includes appointment on probation followed by confirmation on the completion of the probationary period. The very definition of the substantive appointment in the rule in First Part deals with the appointment made against (26 of 43) [ CW-10008/2017] substantive vacancy after due selection and then includes an appointment on probation followed by confirmation on completion of probationary period. The word "and" further "includes" appointment on probation followed by confirmation, is inclusive and as such, the person who is duly selected against substantive vacancy, is having the status of substantive appointment.
The note appended to Rule 2(k) of the Ministerial Rules, 1999 also makes it very clear that due selection by any method of recruitment under Rules of 1999 will include recruitment either on initial constitution of service or in accordance with the provisions of Rules promulgated under proviso to Article 309 of the Constitution of India except urgent temporary appointment. The exclusion is only to urgent temporary appointment as compared to substantive appointment. The person if appointed on urgent temporary basis, cannot be said to be substantively appointed. In the opinion of the Court, the petitioners having been appointed under Rules of 1999 after due selection process and against substantive vacancy, have substantive appointment and as such, they fulfill the requirement under Rule 6(iii) of the Rules of 1963 as they hold the post in the Ministerial Cadre substantively.
The plea of respondents that the petitioners are not confirmed and holding lien till last date of submission of form i.e. 15.05.2015, is not liable to be accepted as the requirement under Rule 6(iii) of the Rules of 1963 is only to the extent of holding a post in Ministerial Cadre substantively.
(27 of 43) [ CW-10008/2017] The plea of the respondents that Rule 2(l) of the Rules of 1963 provides for substantive appointment and as per definition of "substantive appointment", it means an appointment under the provisions of Rules of 1963 against a substantive vacancy after due selection and includes an appointment on probation or as probationer followed by confirmation on the completion of the probationary period. In the opinion of the Court, the definition given in Rule 2(l), applies when a person is appointed as per Rules of 1963. The method of recruitment as provided in Rule 6(iii) of the Rules of 1963, specifically defines the source of making direct recruitment reserving the post of 12.5% of post of Junior Accountant to be filled from amongst the Ministerial Staff of all the departments of Government holding a post in the cadre substantively. In the opinion of the Court, the definition of Rule 2(l) of the Rules of 1963, will not be read for the purpose of adjudging the source of making recruitment against the Ministerial Staff quota provided in Rule 6(iii) of the Rules of 1963.
Rule 38 of the Ministerial Rules, 1999 also provides that after due selection, against a substantive vacancy, person entering the service by direct recruitment, against a clear vacancy, shall be placed as a probationer trainee for a period of 2 years. The said rule also makes it clear that whenever any Ministerial Staff - employee is appointed and put on probation, the same person is appointed against a clear vacancy and as such, his appointment under the Rules of 1999 is substantive appointment. The Part-IV of the Rules of 1999 provides procedure for direct recruitment and (28 of 43) [ CW-10008/2017] after a person being declared successful in the Lower Divisional =Clerk examination, as per Rule 28, the concerned appointing authority appoints a person and puts such person on probation. In the opinion of the Court, once the entire procedure for making regular selection is undertaken under the Rules of 1999, the person holds a post in that cadre substantively.
The test for determining, whether a particular appointment is in substantive capacity or not, the Court has to look into the substance of the matter i.e. the mode of selection, the manner of selection and the nature of vacancy. If the appointment is made after issuing an advertisement, calling for applications from eligible candidates and the fact that a select list/merit list is prepared on the recommendations of a duly constituted Selection Committee, are indicative of the appointment being a regular and substantive appointment.
This Court in the case of R.S.Rawat Vs. State of Rajasthan & Ors., reported in 1993(1) Western Law Cases (Raj.) 79 has considered the nature of appointment as to whether it should be treated as adhoc or substantive. The relevant portion of the judgment are quoted hereunder:-
"10. In Baleshwar Dass v. State of U.P. (AIR 1981 Supreme Court 41). The Supreme Court has dealt with the question as to when an appointment can be said to have been made in substantive capacity and it has been observed as under:
"To approximate to the official diction used in this connection, we may well say that a person is said to hold a post in a substantive capacity when he holds it for an indefinite period especially of long duration in contradistinction to a person who holds (29 of 43) [ CW-10008/2017] it for a definite or temporary period or holds it on probation subject to confirmation."
"If the appointment is to a post and the capacity in which the appointment is made of indefinite duration, if the Public Service Commission has been consulted and has approved, if the tests prescribed have been taken and passed, if probation has been prescribed and has been approved, one may well say that the post was held by the incumbent in a substantive capacity."
11. In State of U.P. v. M.J. Siddiqui & Ors. (AIR 1980 SC 1098) the Supreme Court held that a person may be appointed in substantive capacity on a permanent as well as a temporary post. In that case the Supreme Court held that the appointment on a temporary post was in a substantive capacity after taking into consideration the fact that the said appointment had been made on the basis of an advertisement inviting applications and the said appointment had been made on the recommendation of the Public Service Commission. The Supreme Court has observed:
"In our opinion, reading the advertisement and the manner and mode of the appointment of the appellants, it must be held that they were appointed in a substantive capacity to temporary posts which according to the advertisement were likely to continue. There does not appear to be any magical formula or a special charm in the word 'substantive'. The mere use of the term 'appointment' in a temporary vacancy by itself would not conclude the matter or lead to the irresistible inference that the appointment was not made in a substantive capacity because even a substantive appointment could be made to a purely temporary vacancy. In order, therefore, to determine nature of the appointment we have to look to the hear and substance of the matter, the surrounding circumstances, the mode, the manner and the terms of appointment and other relevant factors. In the instant case, we cannot ignore the advertisement which forms the pivotal basis of the direct recruitment in pursuance of which the appellants were appointed. Another circumstance that supports our view is that the appellants were not appointed merely on an adhoc basis but through the Public Service Commission and in a regular way."
(30 of 43) [ CW-10008/2017]
12. The same view has been expressed by Supreme Court in PD Agrawal v. State of U.P. ( AIR 1987 Supreme Court 1676) as well as in Ashok Gulati v. B.S. Jain ( AIR 1987 Supreme Court 424).
13. The aforesaid decisions show that for the purpose of determining whether a particular appointment was in a substantive capacity, the court has to look into the substance of the matter i.e., the mode of selection, the manner of selection and the nature of vacancy. The fact that the appointment was made after issuing an advertisement calling for applications from eligible candidates and the fact that a select list/merit list was prepared on the recommendations of a duly constituted Selection Committee are indicative of the appointment being a regular and substantive appointment and not merely 'adhoc'.
14. In the present case it has clearly been established that a regular selection had been made by issue of advertisement inviting of applications and consideration of the candidature of all eligible persons by a duly constituted Selection Committee. It must therefore be held that the appointment of the petitioner on the post of Lower Division Clerk was in the nature of regular and substantive appointment and the mere use of the word 'adhoc' or the mere fact that term of appointment was specified in annexure-2 will make no difference." The Court further finds that the definition of substantive appointment is inclusive in nature. Appointment made to substantive vacancy after due selection or persons appointed on probation followed by confirmation, are two distinct categories and the construction of word "or" is disjunctive.
The Apex Court in the case of Hyderabad Asbestos Cement Products 7 Anr. Vs. Union of india & Ors., reported in (2000)1 SCC 426 has considered the scope of disjunctive and where the words are separated by the use of an "or" and there the availability of one of the two alternatives would suffice. The relevant para 8 of the judgment is reproduced hereunder:-
(31 of 43) [ CW-10008/2017] "8. The language of the rule is plain and simple. It does not admit of any doubt in interpretation. Proviso (i) and
(ii) are separated by the use of conjunction `and'. They have to be read conjointly. The requirement of both the provisos has to be satisfied to avail the benefit. Clauses
(a) and (b) of proviso (ii) are separated by the use of an `or' and there the availability of one of the two alternatives would suffice. Inasmuch as cement and asbestos fibre used by the appellants in the manufacture of their finished excisable goods are liable to duty under different tariff items, the benefit of proforma credit extended by Rule 56-A cannot be availed of by the appellants and has been rightly denied by the authorities of the Department."
The requirement of confirmation and holding of lien, the Court finds that Rule 2(h) of RSR excludes the application of Rajasthan Service Rules to the persons for whom special or specific provision is made regulating their recruitment and conditions of service framed under proviso to Article 309 of the Constitution or under any law or rules for the time being in force applicable to such person. The Court finds that 12.5% quota of direct recruitment has been reserved to be filled in by direct recruitment from amongst the Ministerial Staff of all the departments of Government holding a post in the cadre substantively, the petitioners since are holding the post in their cadre substantively, as such, are governed by statutory Rules of 1963 promulgated in exercise of powers conferred by proviso to Article 309 of the Constitution of India by Government of Rajasthan.
The Court has further examined the various definitions referred by the learned counsel for the respondents with respect to holding of lien and substantive appointment. The definition of (32 of 43) [ CW-10008/2017] lien as per Rule 7(17) of RSR only means a title of the government servant to hold substantively a permanent post including a tenure post to which he is appointed substantively. The underlining principle is that person holds a permanent post on substantive basis.
The Court further finds that substantive appointment as per Rule 7(34-A) of RSR means that the appointment of a government servant on a permanent post on which he acquires a lien. The said definition also makes it clear that a person is appointed on a permanent post and he acquires a lien on the said post. The Court finds that the insistence of the State Government that a person who is appointed on probation is not substantively appointed and is not holding a lien, is also not correct interpretation of definition given in RSR. The word "probationer" has been defined in Rule 7(30) of RSR where it says that a person is appointed provisionally against a substantive vacancy in the cadre of a service or on a substantive vacant post. The definition of probationer also means that a person is either appointed provisionally against a substantive vacancy or on a substantive vacant post. In the opinion of the Court, probationer is a status given to an employee who is appointed after due selection against a clear vacant post and as such, his status cannot be reduced as not holding the post substantively.
This Court had an occasion to consider the scope of substantive appointment in respect of the selection of a candidate as per erstwhile Rajasthan Subordinate Offices Ministerial Staff (33 of 43) [ CW-10008/2017] Rules, 1957. The Division Bench of this Court in Syed Mansoor Ali Vs. State of Raj. & Anr. (DBCWP No.1848/1988), decided on 19.12.1988, has clearly opined that every person appointed to service by direct recruitment is to be placed on probation for a period of two years and after completion of probationary period, he is entitled to be confirmed on his appointment. The Court has opined that if a person is appointed through RPSC after due process of selection and he continued on the post, such an appointment can be described as substantive appointment. The Court has further said, even if a person was appointed as temporary, his appointment was made after due process of selection and the post of LDC was available in the cadre, the said appointment is substantive. The relevant para 5 to 8 of the judgment is quoted hereunder:-
"5. We have given our thoughtful consideration to the submissions made by the learned counsel for the parties from the undisputed facts on record, it is evident that the petitioner was appointed as LDC through the Rajasthan Public Service Commission after due process of selection and he stood in the merit at Sr. No.74, in the reserve list. The petitioner joined as LDC on 22 nd February, 1986 and completed two years' service on 22 nd February, 1988 satisfactorily. As per the Rules, every person appointed to the service by direct recruitment is to be placed on probation for a period of two years and after completion of probationary period he is entitled to be confirmed on his appointment. Shri Radhey Shyam Sharma, who was appointed, was confirmed vide order dated 23 rd May, 1988; but the petitioner was not confirmed on the ground that substantive posts were not available in the Department in which the petitioner was working. We are of the opinion that looking to the facts and circumstances of the case, it is clear that the petitioner was appointed as LDC through the Rajasthan Public Service Commission after due process of selection and he continued on the post, such an appointment can only be described as substantive appointment. Even if the petitioner was appointed as temporary, his appointment was made after (34 of 43) [ CW-10008/2017] due process of selection and the post of LDC was available in the cadre. From the scheme of the Rules, it may be inferred that substantive vacancy includes both temporary as well as permanent vacancy; undoubtedly, such a vacancy must be in the cadre. The Supreme Court in G.C.Gupta Vs. N.K.Pandey (AIR 1988 SC 268) has observed as follows:-
"It is pertinent to mention that for an appointment in order to be an appointment in a substantive capacity it is not necessary that the appointment should be made to a temporary post of long duration in a department having both permanent and temporary post of a quasi-permanent nature, there is nothing to distinguish the quality of service as between the two."
In the said judgment, it was argued that merely because a government servant has been appointed on a temporary post after fulfillment of all the requirement of the rules for regular appointment, including consultation with the Public Service Commission, he cannot be said to be appointed substantively in the temporary post of the cadre and he cannot be said to be treated to be a member of the service on the mere plea that he has not been appointed against permanent post on probation. But the Supreme Court said that such an argument is not tenable and reference was made to the case of Baleshwar Das V. State of UP (AIR 1981 SC 41), wherein it has been observed as under:-
"We see no reason to hold that when engineers are appointed to temporary posts but after fulfillment of all the tests for regular appointments, including consultation with the Public Service commission, they are not appointments in a substantive capacity."
6. In recent DB Judgment of this Court in Rajasthan High Court Private Secretaries and Stenographers' Association Vs. The State of Rajasthan & Ors. (D.B.Civil Writ Petition No.2705/1988, decided on 12 th December, 1988), this Court had the occasion to consider as to when an employee should be treated appointed after due selection even on temporary post, then it will be taken that he is holding the post in substantive capacity.
7. In this view of the matter and looking to the facts and circumstances of the case that the petitioner was appointed after due process of selection, we are of the opinion that his appointment on the post was substantive and, thus, he was entitled to be appointed on the post of Junior Accountant and, in the same manner, in which Radhey Shyam Sharma and other persons who were duly selected and were appointed.
(35 of 43) [ CW-10008/2017]
8. In the premises aforesaid, we allow the writ petition and quash the order, dated 27th April, 1988 (Ex.4), by which the petitioner's appointment as Junior Accountant was ordered to be cancelled and, we hereby direct the respondents to appoint the petitioner as Junior Accountant after holding that his appointment as LDC was substantive from the date when the other selected Junior Accountants were appointed as per merit. Appointment order, as per rules, be issued within one month of passing of this order. The petitioner shall be further entitled to all consequential benefits."
The Apex Court has an occasion to interpret "the substantive capacity" and distinction between temporary and permanent post in the case of Baleshwar Dass & Ors. Vs. State of U.P. & Ors., reported in (1980) 4 Supreme Court Cases 226. The relevant part of the judgment are reproduced as hereunder:-
"29. Substantive capacity is a flexible expression which cannot be frozen by current officialese, nor by the conditions that obtained in the remote past when the rule was framed. On the contrary, its meaning must be consistent with Art. 16 and must avoid the pitfalls of arbitrariness and irrational injustice. So viewed, we hold that the appointment need not necessarily be to a permanent post. It is sufficient even if it is to a temporary post of long duration. In a Department which had permanent posts and temporary posts of a quasi- permanent nature, there is not much to distinguish the quality of service as between the two. Patwardhan's case and Chauhan's case have primarily or in passing clarified the equal value of officiating service."
xxx xxx xxx "31. What, in the context, is a substantive capacity vis-a- vis an appointment to a post ? In our view, the emphasis imparted by the adjective "substantive" is that a thing is substantive if it is "an essential part B' or constituent or relating to what is essential". We may describe a capacity as substantive if it has "independent existence" or is of "considerable amount or quantity". What is independent in a substantial measure may reasonably be described as substantive. Therefore, when a post is vacant, however designated in officialese, the capacity in which the person holds the post has to be ascertained by the State. Substantive capacity refers to the capacity in which a person holds the post and not necessarily to the nature (36 of 43) [ CW-10008/2017] or character of the post. To approximate to the official diction used in this connection, we may well say that a person is said to hold a post in a substantive capacity when he holds it for an indefinite period especially of long duration in contra distinction to a person who holds it for a definite or temporary period or holds it on probation subject to confirmation.
32. Once we understand 'substantive capacity' in the above sense, we may be able to rationalise the situation. If the appointment is to a post and the capacity in which the appointment is made is of indefinite duration, if the Public Service Commission has been consulted and has approved, if the tests prescribed have been taken and passed, if probation has been prescribed and has been approved, one may well say that the post was held by the incumbent in a substantive capacity.
33. Government will ascertain from this angle whether the capacity in which posts have been held was substantive or temporary. If it is not, the further point to notice is as to whether the appointments are regular and not in violation of any rule, whether the Public Service Commission's approval has been obtained and whether probation, medical fitness etc., are complete. Once these formalities are complete the incumbents can be taken as holding posts in substantive capacities and the entire efficiating service can be considered for seniority. For other purposes they may remain temporary. It may well be that another interpretation may make r. 23 vulnerable. If a public servant serves for a decade with distinction in a post known to be not a casual vacancy but a regular post, experimentally or otherwise kept as temporary under the time-honoured classification, can it be that his long officiation turns to ashes like a Dead Sea fruit because of a label and his counterpart equal in all functional respects but with ten years less of service steals a march. Over him because his recruitment is to a permanent vacancy? We cannot anathematize officiation unless there are reasonable differentiations and limitations."
The Apex Court has held that the appointment need not necessarily be on permanent post, it is sufficient even, if it is to a temporary post for long duration. In the department which had permanent post and temporary post of a quasi-permanent nature, (37 of 43) [ CW-10008/2017] there is not much to distinguish the quality of service as between the two. The Apex Court further held that substantive capacity refers to the capacity, in which a person holds the post and not necessarily to the nature or character of the post.
The Apex Court has dealt with the status of an employee to hold on substantive basis in the case of Ramesh K. Sharma & Anr Vs. Rajasthan Civil Services & Ors., reported in (2001) 1 SCC 637. The relevant extra of para 4 is reproduced hereunder:-
"4. ...................................In the Service Jurisprudence a post could be temporary or it could be permanent or it could be created for a definite period to meet a definite contingency. If an incumbent is appointed after due process of selection either to a temporary post or a permanent post and such appointment not being either stop-gap or fortuitous, could be held to be on substantive basis. But if the post itself is created only for a limited period to meet a particular contingency, and appointment thereto is made not through any process of selection but on a stop-gap basis then such an appointment cannot be held to be on substantive basis. The expression substantive basis is used in the Service Jurisprudence in contra-distinction with ad hoc or purely stop-gap or fortuitous. In Baleshwar Dass & Ors. Etc. vs. State of U.P. & Ors. (1981) 1 Supreme Court Reports 449, this Court held that when a person holds a post for an indefinite period especially for ,long duration in contradistinction to a person who holds it for a definite or temporary period or holds that on probation then it must be held that he held a post in a substantive capacity. Further if an appointment to the post is made by the proper authority after the person concerned passes the prescribed test and if a probation period has been prescribed therein, on completion of the probation period his appointment is further approved then also it can be said that he held a post in substantive capacity. This decision in Baleshwar Dass case (supra) was followed by this Court in O.P. Singhlas case (1985) 1 Supreme Court Reports, 351. It is also quite apparent in Service Jurisprudence that there exists difference between a substantive post as contra- distinguished from temporary post and appointment of an incumbent to these posts could be made either on substantive basis or on ad hoc or stop-gap basis. This being the legal position and in the case in hand the initial (38 of 43) [ CW-10008/2017] appointment to the post in the Land and Building Tax Department of the private respondents having been made after subjecting the incumbent to prescribed test and on being selected after initially making their appointments on probation and thereafter excluding the expression probation from the terms of appointment and continuing them against the temporarily created post till the posts were made permanent and then the incumbent were also made permanent, it cannot but be held that these private respondents had continuously held a post in the Land and Building Tax Department on substantive basis which post is equivalent to the post of Commercial Tax Inspectors Grade II in which these private respondents were absorbed, and consequently, for the purpose of determining the seniority of the appellants who were direct recruits to the post of Commercial Tax Inspector Grade II and the respondents who had held an equivalent post in the Land and Building Tax Department on substantive basis with effect from 1.3.1974 the continuous substantive service from that date will have to be reckoned. In fact in Malakars case, who was also a temporary recruit in the Land and Building Tax Department alongwith the private respondents the High Court has recorded a finding that said Shri Malakar was holding the post in the Land and Building Tax Department in substantive capacity with effect from 1st March, 1974, and the said finding of the High Court was ultimately upheld by this Court in dismissing these Special Leave Petitions against the same. In coming to the aforesaid conclusion the High Court had examined the substance of the matter, namely, the surrounding circumstances, the mode and manner and the term of appointment and all other relevant factors. In the case in hand it is not disputed by Dr. Rajiv Dhawan, learned senior counsel appearing for the direct recruits/appellants that these private respondents had been appointed in the Land and Building Tax Department after a regular selection by a duly constituted committee. In the aforesaid premises, we unhesintatingly come to the conclusion that the appointment of the respondent in the Land and Building Tax Department with effect from 1.3.1974 was on substantive basis."
Mr. Rajendra Prasad has relied upon the judgment of Supreme Court passed in the case of Municipal Corporation of Delhi Vs. Gurnam Kaur, reported in AIR 1989 Supreme Court p. 38 and submitted that judgment of Division Bench of this Court in the (39 of 43) [ CW-10008/2017] case of Syed Mansoor Ali (supra) does not refer to the relevant rules and does not discuss the point in issue, as such, it should be treated as only obiter dicta and not authoritative. The relevant part of the judgment reads as under:-
"11. Pronouncements of law, which are not part of the ratio decidendi are classed as obiter dicta and are not authoritative. With all respect to the learned Judge who passed the order in Jamna Das' case and to the learned Judge who agreed with him, we cannot concede that this Court is bound to follow it. It was delivered without argument, without reference to the relevant provisions of the Act conferring express power on the Municipal Corporation to direct removal of encroachments from any public place like pavement or public streets, and without any citation of authority. Accordingly, we do not propose to uphold the decision of the High Court because, it seems to us that it is wrong in principle and cannot be justified by the terms of the relevant provisions. A decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute. So far as the order shows, no argument was addressed to the Court on the question or not whether any direction could properly be made compelling the Municipal Corporation to construct a stall at the pitching site of a PG NO 939 pavement squatter. Professor P.J. Fitzgerald, editor of the Salmond on Jurisprudence, 12th edn. explains the concept of sub silentio at p. 153 in these words:
"A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind. The Court may consciously decide in favour of one party because of point A, which it considers and pronounces upon. It may be shown, however, that logically the court should not have decided in favour of the particular party unless it also decided point B in his favour; but point B was not argued or considered by the court. In such circumstances, although point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on point B. Point B is said to pass sub silentio."
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12. In Gerard v. Worth of Paris Ltd. (k)., [1936] 2 All E.R. 905 (C.A.), the only point argued was on the question of priority of the claimant's debt, and, on this argument being heard, the Court granted the order. No consideration was given to the question whether a garnishee order could properly be made on an account standing in the name of the liquidator. When, therefore, this very point was argued in a subsequent case before the Court of Appeal in Lancaster Motor Co. (London) Ltd. v. Bremith, Ltd., [1941] 1 KB 675. the Court held itself not bound by its previous decision. Sir Wilfrid Greene, M.R., said that he could not help thinking that the point now raised had been deliberately passed sub silentio by counsel in order that the point of substance might be decided. We went on to say that the point had to be decided by the earlier court before it could make the order which it did; nevertheless, since it was decided "without argument, without reference to the crucial words of the rule, and without any citation of authority", it was not binding and would not be followed. Precedents sub silentio and without argument are of no moment. This rule has ever since been followed. One of the chief reasons for the doctrine of precedent is that a matter that has once been fully argued and decided should not be allowed to be reopened. The weight accorded to dicta varies with the type of dictum. Mere casual expressions carry no weight at all. Not every passing expression of a Judge, however eminent, can be treated as an ex cathedra statement, having the weight of authority." This Court finds that the Division Bench had considered the similar issue which is involved in the present batch of writ petitions. The petitioner in that case had also participated for the post of Accountant/Junior Accounts/Tehsil Revenue Accountants (TRA) against a direct recruitment quota by the recruitment process held by RPSC as per the Rajasthan Subordinate Accounts Service Rules, 1963, however, the parent department of the (41 of 43) [ CW-10008/2017] petitioner where he was working as LDC, did not grant him a certificate that he was substantively appointed. The plea raised by the petitioner was that his appointment was substantive and cancelling of appointment of petitioner was illegal. The Division Bench had held that an employee should be treated as holding a post in substantive capacity and if a person is appointed after due selection even on temporary post, it was to be taken that he is holding the post in substantive capacity.
The Apex Court in the judgment cited by learned counsel for the respondents, Mr. Rajendra Prasad, in AIR 1989 Supreme Court p. 38 (Municipal Corporation of Delhi Vs. Gurnam Kaur), has dealt with the issue where casual expressions are made and how the judgments are treated as pronouncement of law and which are not part of ratio decidendi and are treated as obiter dicta and are not authoritative.
In the opinion of the Court, the case cited by the learned counsel for the respondents has no application and the Division Bench of this Court has dealt with the similar issue and it has recorded its finding after considering the entire submissions of both the parties. The Division Bench also relied upon a DB Judgment of this court in the case of Rajasthan High Court Private Secretaries and Stenographers' Association Vs. The State of Rajasthan & ors. (D.B.Civil Writ Petition No.2705/1988), decided on 12.12.1988.
The counsel for the respondent-RPSC has relied upon the judgment of Punjab & Haryana High Court in the case of Smt. (42 of 43) [ CW-10008/2017] Sunita Devi Vs. State of Punjab & Anr., (S.B.Civil Writ Petition No.9694/2009), decided on 05.02.2014. The Court in the said case was concerned with the date on which the eligibility of the candidate, who was applicant for a post, was to be considered. The said case cited by the learned counsel for the respondent does not cover the controversy which the present Court is required to decide about status of the petitioners whether they were holding the post substantively or not.
In the opinion of the Court, the action of the respondents in treating the petitioners not holding a post on substantive basis is wrong and petitioners have illegally been deprived from consideration of their cases for appointment against 12.5% posts of Junior Accountant to be filled by direct recruitment from the Ministerial Staff of the Department of Government. The Condition of the respondents that since the petitioners were not confirmed and they were not holding lien on the post, on which they were appointed, is the wrong interpretation of the rules and as such, the petitioners have illegally been deprived from their fair right of consideration for appointment.
The Court finds that the persons who have undergone the method of making direct recruitment by way of due selection by recruiting agency against substantive vacancies, cannot be treated as not substantively appointed and merely, if no confirmation order was issued, at the time of filing applications, such candidates cannot be rendered ineligible for participating against (43 of 43) [ CW-10008/2017] direct recruitment quota for the post of Junior Accountant to be filled by Ministerial Staff of the department of government.
In the result, the writ petitions succeed and the respondents are directed to treat the petitioners eligible against 12.5% posts of Junior Accountant in direct recruitment quota as a Ministerial Staff of the department of government holding a post in the cadre substantively and if the petitioners are found in the merit and are otherwise suitable, their case may be considered for appointment. The said exercise shall be undertake by the State Government within a period of one month from the receipt of the copy of this order.
The writ petitions are, accordingly, allowed.
(ASHOK KUMAR GAUR)J. NK