Rajasthan High Court - Jodhpur
Vijay Kumar & Ors. vs The State Tf Rajasthai & Ors. on 8 April, 2015
Author: Sandeep Mehta
Bench: Sandeep Mehta
[1]
S.B.Civil Writ Pettti nt.o..77o/2o
Vijay Kumar & Ors. Vs The State tf Rajasthai & Ors.
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
ORDER
S.B.CIVIL WRIT PETITION NO.2778/2012 Vijay Kumar & Ors.
Vs. The State of Rajasthan & Ors.
Date of order : 8.4.2015 HON'BLE MR.JUSTICE SANDEEP MEHTA Mr.Sandeep Shah, Mr.Rajesh Parihar, for the petitioners. Dr.Pratishtha Dave, AGC, for the respondents.
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1. By way of this writ petition, the Court has been called upon to decide the following issues:-
A. Whether the cadres of the Patwaris posted in the Revenue (Land Records) and Colonisation Departments are different?
B. Whether the action of the State Government in meting out different treatment to the Patwaries posted in the Colonisation and Revenue (Land Records) Departments respectively for selection to the post of Inspectors by direct competitive examination can be termed as arbitrary and unconstitutional being violative of the fundamental right of equality guaranteed under Articles 14 & 16 of the Constitution of India?
C. Whether this Court sitting singly is empowered to read down the language of a statutory provision?[2]
S.B.Civil Writ Pettti nt.o..77o/2o Vijay Kumar & Ors. Vs The State tf Rajasthai & Ors.
2. The services of both kinds of Patwaris posted in either the Revenue (Land Records) or the Colonisation Department are governed by the same set of Rules i.e. The Rajasthan Land Revenue (Land Records) Rules, 1957 (hereinafter referred to as 'Rules of 1957').
3. Some of the relevant provisions from the Rules of 1957 which are germane for deciding the controversy in issue are reproduced herein below for the sake of ready reference:-
"272. Conditions for Admission.-(i) Candidates for admission to Patwar Schools will be
(a) Patwaris, and (b) other candidates.
(a) Patwaris, who have been appointed subject to the conditions as laid down in paragraph (4)(c) and have still to pass the examination, will be allowed to attend the school with the permission of the Collector, Patwaris appointed conditionally will ordinarily be removed if they fail to pass the examination within two years, unless his case is governed by Cl.(i) or Cl.(ii) of the proviso to sub- para (c) of para 4
(b) Candidates selected under Rules 273 and nominated by the Collector or the Board
(ii) & (iii) [Deleted]
(iv) No candidate, who has once been enrolled in any Patwar School, will be admitted to another similar school except for sufficient reasons to be certified by the Officer-incharge. A certificate of classifications obtained by concealing the facts of previous enrollment in another school shall be void."
"273. Selection of candidates for admission to the school.-(1) Selection of candidates for admission to the School shall be made by a Competitive Examination to be conducted by the Board in the manner given hereunder:
Provided that 10% of the total vacancies of the posts of the Patwaries shall be reserved for appointment of Class IV employees of the Land Revenue (Land Records) Department who have passed the High School Examination and are [3] S.B.Civil Writ Pettti nt.o..77o/2o Vijay Kumar & Ors. Vs The State tf Rajasthai & Ors.
substantive Class IV Servants and who qualify in the examination to be conducted by the Collector. If suitable hands are not available, the vacancies so reserved need not be carried forward but shall be filled from other selected candidates as usual:
Provided further that out of the total number of vacancies for direct recruitment in a district, 80% of the vacancies shall be filled from candidates who are residents of the district as indicated in the certificate of secondary school examination and 20% vacancies shall be filled from general candidates. A candidate shall be required to indicate clearly the district and vacancies for which he intends to apply. If a candidate intends to apply against 20% vacancies he shall indicate the same in his application. After examination, if the said 80% vacancies reserved for residents of the district are not filled, the same may be filled from amongst the successful candidates who have passed the examination against 20% vacancies. For the purpose of filling the 20% vacancies from general candidates, selection shall be made on the basis of merit of the successful candidates who have given option against 20% vacancies. ..."
"4. Appointments.-(a) A Patwari shall be appointed to each circle.
(b) Only such persons who have obtained Patwar School Certificate shall be eligible for appointment as Patwaries, Additional Patwaries or Assistant Office Qanungo:
Provided that they are not below 18 years and above 31 years of age on the date of appointment. In the case of candidate belonging to Scheduled Caste/Scheduled Tribe the upper age limit shall de-relaxed by five years:
Provided further that-
(i) a person who has worked as Patwari under State Government for not less than 15 years and whose confidential reports are found to be satisfactory and who has appeared to the Patwar examination and failed and who is above forty five years of age, may be exempted from passing the patwar examination by the Collector:
(ii) a person who has obtained Patwar Training School Certificate shall be deemed to be within the age limit even [4] S.B.Civil Writ Pettti nt.o..77o/2o Vijay Kumar & Ors. Vs The State tf Rajasthai & Ors.
though he has crossed the upper age limit on the date of appointment as Patwari but was within age limit at the time of his selection and admission to Patwar Training School;
(iii) a person appointed as Patwari prior to the first January 1971 by the Appointing Authority in accordance with these rules except that he had passed the middle school examination, but not the High School/Secondary examination at the time of his appointment he shall be deemed to have been regularly appointed as a patwari from the date on which he passed the patwar school examination or from the date on which he completes 15 years of service on the post of patwari, whichever is earlier;
(iv) a person selected for patwar training by the Colonisation Commissioner and obtained training in the Patwar Training School and declared successful by the Secretary (Land Records) board of Revenue shall be deemed to be a trained Patwari.
(c) Collectors or Colonisation Commissioner shall send requisition for the trained patwaries to the Secretary (Land Records), Board of Revenue. The Board shall select candidates for training and make available trained patwaries to Collectors.
(d) On allotment by the Board, the appointment of Patwaries' Additional Patwaries and Assistant Office Qanungo shall be made by Collector or Colonisation Commissioner. Collector or Colonisation Commissioner shall intimate about all appointments of patwaries to the Secretary (Land Records) Board of Revenue.
(Emphasis supplied)
(e) No Patwari shall be posted to a circle which includes his home village or in which he or his nearest relations hold some immovable property lands for cultivation.
(f)(i) Except as otherwise provided in sub- clause (ii), the service of a temporary Government servant shall be liable to termination at any time by a notice in writing given either by the Patwari to the appointing authority or by the appointing authority to the Patwari. The period of such notice shall be [5] S.B.Civil Writ Pettti nt.o..77o/2o Vijay Kumar & Ors. Vs The State tf Rajasthai & Ors. one month unless otherwise agreed to by the appointing authority and by the Patwari:
Provided that service of such Patwari may be terminated forthwith by payment to him or a sum equivalent to the amount of his pay for the period of notice or as the case may be for the period by which such notice falls short of the month or by any longer period. The payment of allowances shall be subject to the condition under which such allowances are admissible.
(ii) The service of a temporary Patwari:-
(a) Who has been in continuous Government service for more than three years:
Provided that termination of service consequent on reduction of posts in a cadre under the appointing authority shall take place in order of juniority."
4. The petitioners appeared in the Patwar examination conducted by the Board of Revenue and after clearing the same, were selected and subjected to training as Patwaries. They were posted as Patwaries under the Commissioner Colonisation, Bikaner in the pay scale of Rs.3050-4590 by an order dated 17.5.2003.
5. It is asserted in the writ petition that there exists no distinction in the cadre of Patwaries posted in the Patwar Circle, Revenue (Land Records) Department under the District Collector and the Patwaris posted in the Colonisation area under the Colonisation Commissioner. The next avenue of promotion available to the Patwaries posted in either of the departments is to the post of Inspector (Land Records).
6. The process of appointment to the post of Inspector, Land Records is governed by Rules 283 to 288 of the Rules of 1957 [6] S.B.Civil Writ Pettti nt.o..77o/2o Vijay Kumar & Ors. Vs The State tf Rajasthai & Ors. as amended from time to time. The relevant rules are quoted hereinbelow for the sake of convenience:-
"283. The Government shall maintain a Training School for the Inspectors of Land Records, Office Qanungos and Assistance Sadar Qanungos.
284. Selection of candidates for admission to the school in the respective cadre strength shall be made:-
(i) by promotion of Patwaris of the Revenue and Land Records Departments, on the basis of seniority-cum-merit, for 80% of the vacancies;
(ii) on the basis of a competitive examination which shall be restricted to Serving Patwaries of Revenue (Land Records) Department who fulfill the conditions of eligibility as given in Rules 286, for 20% of the vacancies. Provided that the minimum age limit for such patwaries shall be 45 years.
285. Recruitment from among the serving Patwaris of Revenue (LR) Department.-The Board of Revenue will notify in the local newspapers and in such other manner as it deem fit the actual number of vacancies that will be filled up by Recruitment from among the serving patwaries of Revenue (Land Records) Department and the number that will be allotted to the scheduled castes and tribes out of these vacancies.
286. Qualifications.-Candidates intending to apply for selection must possess the following qualification:-
(i) That he is a patwari of Revenue (Land Records) Department and has five years of service experience as patwari;
(ii) That he has passed Secondary Examination or any other equivalent examination recognized by Government;
(iii) That he is not above 45 years of age on the first day of January, next following the last date fixed for receipt of application for admission to the said school;
(iv) That he is patwar diploma holder or he is exempted from this diploma as per rules.[7]
S.B.Civil Writ Pettti nt.o..77o/2o Vijay Kumar & Ors. Vs The State tf Rajasthai & Ors.
287. Competitive Examination.-A competitive examination shall be held by the Board of Revenue for recruitment from amongst the serving patwaries of the Revenue (Land Records) Department for admission to the training school in the manner laid down in the following rules.
288. Submission of applications.-Form of application. The candidates possessing the qualifications prescribed in rule 286 and desirous to appear at the examination shall apply to the Collectors of their respective districts in which they are serving as patwaries in the form given below so as to reach the Collectors on the date which shall be notified in the local newspaper and in such other manner as the Board may deem fit-
(i) 1. Name
2. Father's Name
3. Educational qualifications
4. Date of birth
5. Is he a member of a Scheduled Caste or a Scheduled Tribe
6. Applicant's present post held Department Place
7. Name of District to which patwari belongs (Home district)
8. Name of district where patwari is originally appointed/keeps his lien i.e the district where patwari figures in the seniority list.
9. Date of which he first joined the post of patwari.
10. Date/year of passing patwar examination.
11. Collector's Remarks
(ii) Such application must be accompanied by:-
(a) a copy of the certificate of the qualifying Exam. attested by a Gazetted Officer of Rajasthan;
(b) proof of age entered in the application;
(c) a certificate, in case of applicant belonging to a Scheduled Caste or a Tribe by a Gazetted Officer of Rajasthan testifying that the applicant belongs to a Scheduled Caste or Tribe;
(d) a certified copy of Mark-sheet or diploma of patwar examination."[8]
S.B.Civil Writ Pettti nt.o..77o/2o Vijay Kumar & Ors. Vs The State tf Rajasthai & Ors.
7. The Board of Revenue issued an advertisement inviting applications from eligible candidates for recruitment, selection and admission in the training school for posts of Inspector, Land Records through competitive examination by communication dated 17.6.2011.
8. Since, the mode of appointment to the post of Inspectors as prescribed in the rules quoted hereinabove ostensibly does not cater to the Patwaries posted in the Colonisation Department, whilst quoting the eligibility criterion in the advertisement, it was specifically mentioned that the candidate appearing in the examination should be a Patwari in the Revenue (Land Records) Department and should have gained 5 years experience as a Patwari.
9. The petitioners aspired to compete for the abovereferred posts and thus, they approached the concerned Collector to issue them an experience certificate in terms of Rule 288 so that they also could apply for appearing in the exam. By the time, the advertisement was issued, they had gained about 8 years of experience as Patwaries. However, the Collector concerned refused to issue the experience certificate to the petitioners. The petitioners served a notice for demand of justice (Annex.6) dated 25.1.2012 to the respondents but the same was not responded to, upon which the petitioners have approached [9] S.B.Civil Writ Pettti nt.o..77o/2o Vijay Kumar & Ors. Vs The State tf Rajasthai & Ors. this Court by way of the instant writ petition praying for the following relief:-
i) the respondents may kindly be directed to treat the petitioners as eligible for selection, training and appointment on the post of Inspector (Land Records).
ii) the respondents may kindly be directed to allow the petitioners to participate in the process of selection, training or appointment on the post of Inspector (Land Records) and appoint the petitioners on the post of Inspector (Land Records) with all consequential benefits, if they found suitable in the selection process.
iii) the respondents may kindly be directed to issue experience certificate to the petitioner about their experience of more than 5 years as Patwari.
iv) the respondents may kindly be directed to treat the Patwaries working and posted in the Department of Colonization as equal to the Patwari working in the Patwar Circle."
10. Reply was filed to the writ petition on behalf of the respondents No.1 and 2 raising a preliminary objection regarding maintainability of the joint writ petition. The preliminary objection was not sustained. The respondents have taken a specific plea in the reply that as per the Scheme of the Rules of 1957, only those Patwaries who are posted in the Land Records and Revenue Department are entitled to be considered for direct selection to the posts of Inspector, Land Records advertised by the communication dated 17.6.2011. On the strength of these contentions, it is asserted that as the petitioners were not holding the post of Patwaries Revenue (Land Records) and rather were posted as Patwaries (Colonisation), they are not entitled to participate in the [10] S.B.Civil Writ Pettti nt.o..77o/2o Vijay Kumar & Ors. Vs The State tf Rajasthai & Ors. ongoing selection process for selection to the post of Inspector (Land Records) by direct recruitment.
11. While entertaining the writ petition, this Court by an interim order dated 22.1.2013, directed the respondent authorities to allow the petitioners to appear in the on going selection process being conducted for direct recruitment to the posts of Inspector (Land Records). It was further directed that the result of the petitioners shall not be declared without the Court's permission. Accordingly, the petitioners appeared in the exam. Their result was summoned and opened under the court's order on 9.12.2013. The petitioners No.2, 3 and 5 failed in the exam whereas petitioners No.1, 4 and 6 were declared successful.
12. This Court while considering the matter on 11.12.2013, directed the learned Govt. Advocate to take instructions as to whether the State was desirous of taking a policy decision in pursuance of the notice for demand of justice served by the petitioners and further, to inform the Court as to whether or not the posts of Patwaries working in the Colonisation Department and the Revenue (Land Records) Department are interchangeable or intertransferable. Appointments on the posts of Inspector (Land Records) being undertaken in the current selection process were made subject to the final decision of the writ petition.
[11]
S.B.Civil Writ Pettti nt.o..77o/2o Vijay Kumar & Ors. Vs The State tf Rajasthai & Ors.
13. An additional affidavit dated 12.1.2014 was filed on behalf of the petitioners, claiming that there is no designated post of Patwari in the Colonisation Department and the process of distribution of trained Patwaries in the Revenue (Land Records) or the Colonisation Department is unilaterally governed by the Land Revenue (Land Records) Rules of 1957. It was further claimed in the affidavit that the posts of Patwaries under the Colonisation Department and the Revenue (Land Records) Department are intertransferable. To support and fortify this assertion, a few transfer orders have been annexed with the additional affidavit, reflecting that some Patwaries were transferred from the Colonisation Department to the Revenue (Land Records) Department. The last order is of the year 2007, whereby a Patwari named Vijendra Kumar was transferred from the Colonisation Department, Tehsil Mohangarh, District Jaisalmer to the Revenue (Land Records) Department, District Hanumangarh. A counter has been filed by the respondents to the aforesaid additional affidavit, wherein it is reiterated that the posts of Patwaries in the Colonisation and the Revenue (Land Records) Departments are neither intertransferable nor interchangeable. Regarding the transfer orders, filed alongwith the additional affidavit, all that has been mentioned is that the Commissioner, Colonisation Department Bikaner requested the District Collector, Jaisalmer seeking applications from the aspiring Patwaries, LDCs, UDCs, Inspectors and Peons for [12] S.B.Civil Writ Pettti nt.o..77o/2o Vijay Kumar & Ors. Vs The State tf Rajasthai & Ors. interdepartmental transfer vide letter dated 26.5.1999. After receiving no objection from the District Collector, Jaisalmer, the interdepartmental transfers were effected and the transferred employees were placed as junior most in the order of seniority in the respective cadre as per the prevailing set of rules. Regarding the interdepartmental transfer of Vijendra Kumar from the Colonisation Department to the Revenue Department, it is claimed that the said act was also purely an interdepartmental transfer as per the prevailing rules. A request was made to the Department of Personnel, Government of Rajasthan, which permitted his transfer and pursuant to his transfer, he was assigned seniority as per Rule 9(1) of the Rules of 1957.
14. The respondents thereafter filed yet another additional affidavit dated 26.2.2014 annexing therewith a communication/order dated 20.12.2013. On the strength of the order dated 20.12.2013, it is asserted that the Patwaries posted in the Colonisation Department have available to them a channel of promotion through DPC. It is mentioned in the communication dated 20.12.2013 that a DPC was convened for filling up the vacancies falling in the cadre of Inspectors in the Colonisation Department during the years 2009-10, 2010- 11, 2011-12, 2012-13 and 41 Patwaries were promoted to the post of Inspectors. However the petitioners, by way of an additional affidavit dated 30.3.2014 have countered the said [13] S.B.Civil Writ Pettti nt.o..77o/2o Vijay Kumar & Ors. Vs The State tf Rajasthai & Ors. additional affidavit claiming that the order dated 20.12.2013 does not reflect as to under which set of Rules, the DPC was convened. It is further claimed that the exercise of holding the DPC was undertaken only to meet the uncomfortable queries made by the Court during the course of hearing of the writ petition and no such procedure was ever adopted earlier thereto. It is emphatically asserted by the petitioners that the communication dated 20.12.2013 itself mentions that the service conditions of Patwaries working under the Revenue (Land Records) Department and the Colonisation Department are governed by the Rules of 1957.
15. The order dated 20.12.2013 refers to a government circular dated 30.12.1977. The said circular has been placed on record by the petitioners alongwith the additional affidavit and it is contended that the circular only stipulates that first promotion in every State service is required to be effected on the basis of seniority cum merit and nothing beyond that. The circular further prescribes that the State Government decided that cent percent vacancies in respect of the first promotion within every service (promotion quota) may be filled up through Departmental Promotion Committees as per existing rules. It is asserted that a specific avenue of promotion to the post of Inspectors is available in the Rules of 1957 and thus, the circular of 1977 would have no application as the same deals with a situation when the Rules are silent as regards the mode [14] S.B.Civil Writ Pettti nt.o..77o/2o Vijay Kumar & Ors. Vs The State tf Rajasthai & Ors. of promotion. The petitioners have further asserted that Rule 284(ii) of the Rules of 1957 which deals with direct selection to the post of Inspectors by a competitive examination caters only to the Patwaries working in the Land Revenue Department and excludes those posted in the Colonization Department and thus, in order to overcome and rationalize the discriminating and restrictive nature of Rule 284(ii) and to harmonize the procedure of direct recruitment, insofar as it excludes from its operation, the Patwaries working in the Colonisation Department, the same is required to be read down and made applicable to such excluded Patwaries as well so as to make it harmonious and compliant with the letter and spirit of the fundamental right of equality guaranteed under Articles 14 and 16 of the Constitution of India. Thereafter, another additional affidavit dated 2.11.2014 came to be filed on behalf of the petitioners, annexing with it, a few more interdepartmental transfer orders of Patwaries from the Colonisation Department to the Land Revenue Department. The said additional affidavit has not been countered by the respondent State.
16. In the background of the aforesaid pleadings, facts and documents as available on record, Shri Sandeep Shah learned counsel for the petitioners contended that the services of Patwaries posted in either the Revenue (Land Records) or Colonisation Department are commonly governed by the Rules [15] S.B.Civil Writ Pettti nt.o..77o/2o Vijay Kumar & Ors. Vs The State tf Rajasthai & Ors. of 1957. All the Patwaries are appointed through a common admission test conducted by the Board of Revenue and are required to undergo common training in the Same Patwar school and thereafter, the distribution of the trained Patwaries is made between the Colonisation Department and the Revenue Department. As per the set up of the Rules, the candidate has no role to play in selecting the place of posting which can be either the Revenue Department or Colonisation Department and is dependent on the discretion to be exercised exclusively by the authorities concerned. The duties performed by the Patwaries working in the Colonisation Department and the Revenue Department are identical and there is no difference in the nature of work assigned to the Patwaries posted in either of the departments. He further contended that Rule 273 of the Rules of 1957 provides that selection of the candidates for admission to the Patwar School is required to be made by a common examination to be conducted by the Board of Revenue. It further provides that 10% of vacancies of Patwaries shall be reserved for appointment from Clause IV employees of the Land Revenue Department. This rule too does not refer to the employees working in the Colonisation Department. He submitted that a bare look at the Rule 273 would show that there is an unreasonable and hostile discrimination made in the rule on the aspect of equal opportunity in service, inasmuch as, Class [16] S.B.Civil Writ Pettti nt.o..77o/2o Vijay Kumar & Ors. Vs The State tf Rajasthai & Ors. IV employees posted in the Colonisation Department are not provided with any avenue or opportunity of promotion whatsoever. Rule 284 of the Rules provides for selection of the candidates for admission to the training school for Inspectors. The ambit of the said rule is also restricted in its application only to the Patwaries of Revenue (Land Records) Department, who fulfill the eligibility criterion prescribed in Rule 286. As per the said Rule, 20% of the available posts of Inspectors are to be filled by direct selection through competitive examination whereas the remaining 80% posts are to be filled by promotion on the basis of seniority cum merit. Rule 286 prescribes the qualifications of the candidates seeking admission to the training school for promotion to the post of Inspector. The said rule also provides that the candidate should be a Patwari of Revenue (Land Records) Department, having 5 years of service experience. Shri Shah urged that the restrictive language of Rules 284, 285 and 286 of the Rules of 1957, whereby only the Patwaries fortuitously and incidentally posted in the Revenue (Land Records) Department are permitted to take the examination for direct selection as Inspectors while the Patwaries from the Colonisation Department even though holding the same post and despite belonging to the same service are excluded, is unreasonable and arbitrary and thus, deserve to be read down and assigned a harmonized interpretation so as to include in their ambit, the [17] S.B.Civil Writ Pettti nt.o..77o/2o Vijay Kumar & Ors. Vs The State tf Rajasthai & Ors. Patwaries posted in the Colonisation Department as well. He contended that as admittedly, service conditions of both kinds of Patwaries {Colonisation and Revenue (Land Records)} are governed by the common Rules of 1957, the restricted set up of the above rules, whereby Patwaries posted in the Colonisation Department are excluded from vying for direct selection as Inspectors through the competitive examination, is unreasonable, unjust, arbitrary and unconstitutional as being violative of the fundamental right of equality in service guaranteed by Articles 14 and 16 of the Constitution of India. He relied upon the following decisions in support of the argument that the rules suffer from unreasonableness and arbitrariness and should be read down so as to make them compliant with the fundamental right of equality in service:-
1. (2008)5 SCC 100 Food Corporation of India Vs. Parashotam Das Bansal & Ors.
2. AIR 2008 (Supl) SC 1944 A.Satyanarayana & Ors. Vs. S.Purushottam & Ors.
3. (2014)5 SCC 101 Panchraj Tiwari Vs. Madhya Pradesh State Electricity Board & Ors.
4. (2014)1 SCC 1 Suresh Kumar Koushal & Anr. Vs. Naz Foundation & Ors.
5. 2010(3) RLW 2326 Central Academy Society Vs. Rajasthan Non Governmental Educational Institutions Tribunal, Jaipur
17. He urged that it is incumbent upon the government to provide a channel of promotion to its employees and stagnation is arbitrary. Relying on the Hon'ble Apex Court Judgment in the [18] S.B.Civil Writ Pettti nt.o..77o/2o Vijay Kumar & Ors. Vs The State tf Rajasthai & Ors. case of A.Satyanarayana (supra), he urged that the Court went to the extent of propounding that the right to be considered for promotion is a fundamental right and as such, the discriminatory treatment meted out by the State to the petitioners and their peers in the Colonisation Department is unconstitutional.
18. He further relied upon the following judgments in support of the argument that the provisions of a Rule can be read down so as to rectify the mistake rather than declaring the rule itself to be ultravires:-
(1) 2014(1) SCC 1 Suresh Kumar Koushal Vs. NAZ Foundation & Ors.
(2) 2010(3) RLW 2326 (Full Bench) Central Academy Society Vs. Rajasthan Non-
Governmental Educational Institutions Tribunal, Jaipur. On the strength of the above submissions, he urged that the writ petition deserves to be accepted and the petitioners are entitled to the relief prayed for.
19. Per contra, Dr.Pratishtha Dave, learned AGC appearing for the respondents vehemently opposed the submissions advanced by the learned counsel for the petitioners and contended that it is unjustified and unwarranted for the petitioners to claim that the Patwaries working in the Colonisation Department and those working in the Revenue Department fall in the same category while applying promotional avenues and that both should be governed by the Rules 284, 285 and 286 of the [19] S.B.Civil Writ Pettti nt.o..77o/2o Vijay Kumar & Ors. Vs The State tf Rajasthai & Ors. Rules of 1957. She submitted that a distinct mode of promotion is provided to the Patwaries of the Colonisation Department, which is to be carried out by convening DPC as and when vacancies arise. She further submitted that interdepartmental transfer of Patwaries working in the Revenue (Land Records) and Colonisation Departments is impermissible and whatever instances the petitioners have cited by placing on record certain transfer orders, are exceptions and aberrations and deserve to be ignored as being contrary to the Rules. She further relied upon the communication dated 20.12.2013 as per which DPC was actually convened in the Colonisation Department and 41 Patwaries working in the Colonisation Department were promoted to the post of Inspectors. She thus argued that the writ petition is meritless and deserves to be dismissed.
20. Heard and considered the arguments advanced at the bar. Perused the material available on record and gave respectful consideration to the judgments cited at the bar.
21. The Hon'ble Apex Court whilst considering the issue of right of promotion in the case of Food Corporation of India Vs. Parashotam Das Bansal & Ors. reported in (2008)5 SCC 100, held as below:-
"10. This Court in Dr. Ms. O.Z. Hussain v. Union of India [1990 Supp. SCC 688], opined :
"7. This Court, has on more than one occasion, pointed out that provision for promotion increases efficiency of the public service while stagnation reduces [20] S.B.Civil Writ Pettti nt.o..77o/2o Vijay Kumar & Ors. Vs The State tf Rajasthai & Ors.
efficiency and makes the service ineffective. Promotion is thus a normal incidence of service. There too is no justification why while similarly placed officers in other ministries would have the benefit of promotion, the non-medical 'A' Group scientists in the establishment of Director General of Health Services would be deprived of such advantage. In a welfare State, it is necessary that there should be an efficient public service and, therefore, it should have been the obligation of the Ministry of Health to attend to the representations of the Council and its members and provide promotional avenue for this category of officers. It is, therefore, necessary that on the model of rules framed by the Ministry of Science and Technology with such alterations as may be necessary, appropriate rules should be framed within four months from now providing promotional avenue for the 'A' category scientists in the no n-medical wing of the Directorate."
13. If there is no channel of promotion in respect of a particular group of officers resulting in stagnation over the years, the Court although may not issue any direction as to in which manner a scheme should be formulated or by reason thereof interfere with the operation of existing channel of promotion to the officers working in different departments and officers of the Government but the jurisdiction to issue direction to make a scheme cannot be denied to a Superior Court of the country."
22. In the case of A.Satyanarayana & Ors. Vs. S.Purushottam & Ors. reported in AIR 2008 (Supl) SC 1944, the Hon'ble Apex Court considered the controversy regarding foreclosure of promotional avenues forever and held that any such policy decision is ultravires the Constitution. The relevant excerpts [21] S.B.Civil Writ Pettti nt.o..77o/2o Vijay Kumar & Ors. Vs The State tf Rajasthai & Ors. from the above judgment are quoted hereinbelow for the sake of ready reference:
"20. We, however, are of the opinion that the validity or otherwise of a quota rule cannot be determined on surmises and conjectures. Whereas the power of the State to fix the quota keeping in view the fact-situation obtaining in a given case must be conceded, the same, however, cannot be violative of the constitutional scheme of equality as contemplated under Articles 14 and 16 of the Constitution of India. There cannot be any doubt whatsoever that a policy decision and, in particular, legislative policy should not ordinarily be interfered with and the Superior Courts, while exercising its power of judicial review, shall not consider as to whether such policy decision has been taken mala fide or not. But where a policy decision as reflected in a statutory rule pertains to the field of subordinate legislation, indisputably, the same would be amenable to judicial review, inter alia, on the ground of being violative of Article 14 of the Constitution of India. {See Vasu Dev Singh and Ors. v. Union of India and Ors. [2006 (1) SCALE 108] and State of Kerala and Ors. v. Unni and Anr. [(2007) 2 SCC 365].
21.The High Court, therefore, in our opinion, was not wholly correct when it opined that a policy decision cannot be a subject-matter of judicial review. If the State has the power to fix a quota, the Rule underlying the legislative policy must stop at that and the necessary consequences thereof must ensue. Indisputably, again although the State was entitled to provide for quota as also a guideline as to how the roster should work out itself, but thereby it cannot be permitted to put a cap on promotion for the entire service period.
22. While saying so, we are not unmindful of the legal principle that nobody has a right to be promoted; his right being confined to right to be considered therefor.[22]
S.B.Civil Writ Pettti nt.o..77o/2o Vijay Kumar & Ors. Vs The State tf Rajasthai & Ors.
23. Similarly, the power of the State to take a policy decision as a result whereof an employee's chance of promotion is diminished cannot be a subject-matter of judicial review as no legal right is infringed thereby.
24. However, such a Rule must apply to both the groups.Promotion to a higher post from the officers of a particular cadre would depend upon a large number of factors-a person may retire; he may be departmentally proceeded against; he may be sent on deputation; he may resign; cessation of employment, thus, may be on various grounds. If the number of posts is limited despite uncertainty with regard to arising of any vacancy on any higher post, the validity of such a rule would be open to question.
25. The Superior Courts, while exercising their power of judicial review, must determine the issue having regard to the effect of the subordinate legislation in question. There must exist a rational nexus between the impugned legislation and the object of promotion. Promotions are granted to a higher post to avoid stagnation as also frustration amongst the employees. This Court, in a large number of decisions, has emphasized the necessity of providing for promotional avenues.[See Food Corporation of India and Ors. v. Parashotam Das Bansal and Ors. [Civil Appeal No. 991 of 2008, decided on 5.2.2008]. The State, keeping in view that object, having found itself unable to provide such promotional avenue, provided for the scheme of Accelerated Career Progress (ACP). The validity and effect of the impugned legislation must be judged keeping in view the object and purport thereof. This Court would apply such principle of interpretation of statute which would enable it to subserve the object in place of subverting the same.
26. Whereas, on the one hand, it has been contended before us that all future promotions that is promotion from the post of Assistant Secretary upwards are given on merit, on the other hand, a cap of 10 posts [23] S.B.Civil Writ Pettti nt.o..77o/2o Vijay Kumar & Ors. Vs The State tf Rajasthai & Ors.
has been made for all the four categories of posts. It is one thing to say that the State evolves a policy of prescribing a reasonable quota at all levels of the promotion but it would be another thing to say that while totally ignoring the question of birthmark, a few posts shall be identified only on the basis of the original posts held by the employee concerned.
27. To the said extent, the rule maintain a birthmark which runs counter to the decisions of this Court in Dwarka Prasad and Ors. v. Union of India and Ors. [(2003) 6 SCC 535].
28. Although mere chance of promotion is not a fundamental right, but right to be considered therefor is. In that view of the matter, any policy whereby all promotional avenues to be promoted in respect of a category of employees for all time to come cannot be nullified and the same would be hit by Article 16 of the Constitution of India."
23. In the case of Panchraj Tiwari Vs. Madhya Pradesh State Electricity Board & Ors. reported in (2014)5 SCC 101, the Hon'ble Apex Court examined a situation, wherein there was a merger of cadres and absorption of the employees into service. The Court held that absorbed cadre employees are entitled to fixation in seniority and promotion in the merged cadre in the parent service at par with compeers in the parent service. It was held that such consideration is a part of the fundamental right of equality under Articles 14 and 16 of the Constitution of India. The Hon'ble Apex Court further held that total denial of promotion forever cannot be comprehended under Articles 14 and 16 of the Constitution of India. [24]
S.B.Civil Writ Pettti nt.o..77o/2o Vijay Kumar & Ors. Vs The State tf Rajasthai & Ors.
24. It is undisputed, that the Rules of 1957 as they stand, do not provide an avenue of promotion/selection to the post of Inspector by direct recruitment to the Patwaries posted in the Colonisation Department.
25. If at all, the relief claimed in the present writ petition is to be extended to the petitioners, the provisions of Rules 283, 284, 285, 286, 287 & 288 would have to be read down so as to include the Patwaries, Colonisation Department in the language and ambit thereof. The Hon'ble Supreme Court considered the powers and jurisdiction of the Court to read down the provisions of a statutory provision in the case of Suresh Kumar Koushal & Anr. Vs. Naz Foundation & Ors. reported in (2014)1 SCC 1 and observed as below:-
"Presumption of constitutionality
38. Every legislation enacted by Parliament or State Legislature carries with it a presumption of constitutionality. This is founded on the premise that the legislature, being a representative body of the people and accountable to them is aware of their needs and acts in their best interest within the confines of the Constitution. There is nothing to suggest that this principle would not apply to pre- constitutional laws which have been adopted by Parliament and used with or without amendment. If no amendment is made to a particular law it may represent a decision that the legislature has taken to leave the law as it is and this decision is no different from a decision to amend and change the law or enact a new law. In light of this, both pre- and post-constitutional laws are manifestations of the will of the people [25] S.B.Civil Writ Pettti nt.o..77o/2o Vijay Kumar & Ors. Vs The State tf Rajasthai & Ors.
of India through Parliament and are presumed to be constitutional.
39. The doctrine of severability and the practice of reading down a statute both arise out of the principle of presumption of constitutionality and are specifically recognised in Article 13 which renders the law, which is pre-
constitutional to be void only to the extent of inconsistency with the Constitution. In R.M.D. Chamarbaugwalla v. Union of India, a Constitution Bench of this Court noted several earlier judgments on the issue of severability and observed as follows:
(AIR pp. 634 & 636-37, paras 14 & 21-
22) "14. ... The doctrine of severability rests, as will presently be shown, on a presumed intention of the legislature that if a part of a statute turns out to be void, that should not affect the validity of the rest of it, and that that intention is to be ascertained from the terms of the statute. It is the true nature of the subject-matter of the legislation that is the determining factor, and while a classification made in the statute might go far to support a conclusion in favour of severability, the absence of it does not necessarily preclude it.
21. ... When a statute is in part void, it will be enforced as regards the rest, if that is severable from what is invalid. It is immaterial for the purpose of this rule whether the invalidity of the statute arises by reason of its subject-matter being outside the competence of the legislature or by reason of its provisions contravening constitutional prohibitions.
22. That being the position in law, it is now necessary to consider whether the impugned provisions are severable in their application to competitions of a gambling character, assuming of course [26] S.B.Civil Writ Pettti nt.o..77o/2o Vijay Kumar & Ors. Vs The State tf Rajasthai & Ors. that the definition of 'prize competition' in Section 2(d) is wide enough to include also competitions involving skill to a substantial degree. It will be useful for the determination of this question to refer to certain rules of construction laid down by the American Courts, where the question of severability has been the subject of consideration in numerous authorities. They may be summarised as follows:
(1) In determining whether the valid parts of a statute are separable from the invalid parts thereof, it is the intention of the legislature that is the determining factor. The test to be applied is whether the legislature would have enacted the valid part if it had known that the rest of the statute was invalid. Vide Corpus Juris Secundum, Vol. 82, p. 156; Sutherland on Statutory Construction, Vol. 2, pp. 176-77.
(2) If the valid and invalid provisions are so inextricably mixed up that they cannot be separated from one another, then the invalidity of a portion must result in the invalidity of the Act in its entirety. On the other hand, if they are so distinct and separate that after striking out what is invalid, what remains is in itself a complete code independent of the rest, then it will be upheld notwithstanding that the rest has become unenforceable. Vide Cooley's Constitutional Limitations, Vol.
1 at pp. 360-61; Crawford on Statutory Construction, pp. 217-18.
(3) Even when the provisions which are valid are distinct and separate from those which are invalid, if they all form part of a single scheme which is intended to be operative as a whole, then also the invalidity of a part will result in the failure of the whole. Vide Crawford on Statutory Construction, pp. 218-19.
[27]
S.B.Civil Writ Pettti nt.o..77o/2o Vijay Kumar & Ors. Vs The State tf Rajasthai & Ors.
(4) Likewise, when the valid and invalid parts of a statute are independent and do not form part of a scheme but what is left after omitting the invalid portion is so thin and truncated as to be in substance different from what it was when it emerged out of the legislature, then also it will be rejected in its entirety. (5) The separability of the valid and invalid provisions of a statute does not depend on whether the law is enacted in the same section or different sections (vide Cooley's Constitutional Limitations, Vol. 1, pp. 361-62); it is not the form, but the substance of the matter that is material, and that has to be ascertained on an examination of the Act as a whole and of the setting of the relevant provisions therein.
(6) If after the invalid portion is expunged from the statute what remains cannot be enforced without making alterations and modifications therein, then the whole of it must be struck down as void, as otherwise it will amount to judicial legislation. Vide Sutherland on Statutory Construction, Vol. 2, p. 194.
(7) In determining the legislative intent on the question of separability, it will be legitimate to take into account the history of the legislation, its object, the title and the Preamble to it. Vide Sutherland on Statutory Construction, Vol. 2, pp. 177-78."
40. Another significant canon of determination of constitutionality is that the courts would be reluctant to declare a law invalid or ultra vires on account of unconstitutionality. The courts would accept an interpretation, which would be in favour of constitutionality rather than the one which would render the law unconstitutional. Declaring the law unconstitutional is one of the last [28] S.B.Civil Writ Pettti nt.o..77o/2o Vijay Kumar & Ors. Vs The State tf Rajasthai & Ors. resorts taken by the courts. The courts would preferably put into service the principle of "reading down" or "reading into" the provision to make it effective, workable and ensure the attainment of the object of the Act. These are the principles which clearly emerge from the consistent view taken by this Court in its various pronouncements including the recent judgment in Namit Sharma v.
Union of India.
41. In D.S. Nakara v. Union of India a Constitution Bench of this Court elucidated upon the practice of reading down statutes as an application of the doctrine of severability while answering in affirmative the question whether differential treatment to pensioners related to the date of retirement qua the revised formula for computation of pension attracts Article 14 of the Constitution. Some of the observations made in that judgment are extracted below: (SCC pp. 340-41, paras 58-60) "58. ... If from the impugned memoranda the event of being in service and retiring subsequent to specified date is severed, all pensioners would be governed by the liberalised pension scheme. The pension will have to be recomputed in accordance with the provisions of the liberalised pension scheme as salaries were required to be recomputed in accordance with the recommendation of the Third Pay Commission but becoming operative from the specified date. It does therefore appear that the reading down of impugned memoranda by severing the objectionable portion would not render the liberalised pension scheme vague, unenforceable or unworkable.
59. In reading down the memoranda, is this Court legislating? Of course 'not'. When we delete basis of classification as violative of Article 14, we merely set [29] S.B.Civil Writ Pettti nt.o..77o/2o Vijay Kumar & Ors. Vs The State tf Rajasthai & Ors. at naught the unconstitutional portion retaining the constitutional portion.
60. We may now deal with the last submission of the learned Attorney General on this point. Said the learned Attorney General that principle of severability cannot be applied to augment the class and to adopt his words 'severance always cuts down the scope, never enlarges it'. We are not sure whether there is any principle which inhibits the court from striking down an unconstitutional part of a legislative action which may have the tendency to enlarge the width and coverage of the measure. Whenever classification is held to be impermissible and the measure can be retained by removing the unconstitutional portion of classification, by striking down words of limitation, the resultant effect may be of enlarging the class. In such a situation, the court can strike down the words of limitation in an enactment. That is what is called reading down the measure. We know of no principle that 'severance' limits the scope of legislation and can never enlarge it."
42. The basis of the practice of reading down was succinctly laid down in CST v. Radhakrishan in the following words: (SCC p. 257, para 15) "15. ... In considering the validity of a statute the presumption is in favour of its constitutionality and the burden is upon him who attacks it to show that there has been a clear transgression of constitutional principles. For sustaining the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived it must always be presumed that the legislature understands and correctly appreciates [30] S.B.Civil Writ Pettti nt.o..77o/2o Vijay Kumar & Ors. Vs The State tf Rajasthai & Ors. the need of its own people and that discrimination, if any, is based on adequate grounds. It is well settled that courts will be justified in giving a liberal interpretation to the section in order to avoid constitutional invalidity. These principles have given rise to rule of reading down the sections if it becomes necessary to uphold the validity of the sections."
43. In Minerva Mills Ltd. v. Union of India, the Court identified the limitations upon the practice of reading down: (SCC p. 659, para 64) "64. The learned Attorney General and the learned Solicitor General strongly impressed upon us that Article 31-C should be read down so as to save it from the challenge of unconstitutionality. It was urged that it would be legitimate to read into that article the intendment that only such laws would be immunised from the challenge under Articles 14 and 19 as do not damage or destroy the basic structure of the Constitution. The principle of reading down the provisions of a law for the purpose of saving it from a constitutional challenge is well known. But we find it impossible to accept the contention of the learned counsel in this behalf because, to do so will involve a gross distortion of the principle of reading down, depriving that doctrine of its only or true rationale when words of width are used inadvertently. The device of reading down is not to be resorted to in order to save the susceptibilities of the lawmakers, nor indeed to imagine a law of one's liking to have been passed.
One must at least take Parliament at its word when, especially, it undertakes a constitutional amendment."
This was further clarified in DTC v.
Mazdoor Congress. In his concurring [31] S.B.Civil Writ Pettti nt.o..77o/2o Vijay Kumar & Ors. Vs The State tf Rajasthai & Ors. opinion, Ray, J. observed: (SCC pp. 711- 12, para 218) "218. On a proper consideration of the cases cited hereinbefore as well as the observations of Seervai in his book Constitutional Law of India and also the meaning that has been given in the Australian Federal Constitutional Law by Colin Howard, it is clear and apparent that where any term has been used in the Act which per se seems to be without jurisdiction but can be read down in order to make it constitutionally valid by separating and excluding the part which is invalid or by interpreting the word in such a fashion in order to make it constitutionally valid and within jurisdiction of the legislature which passed the said enactment by reading down the provisions of the Act (sic). This, however, does not under any circumstances mean that where the plain and literal meaning that follows from a bare reading of the provisions of the Act, Rule or Regulation that it confers arbitrary, uncanalised, unbridled, unrestricted power to terminate the services of a permanent employee without recording any reasons for the same and without adhering to the principles of natural justice and equality before the law as envisaged in Article 14 of the Constitution, cannot (sic) be read down to save the said provision from constitutional invalidity by bringing or adding words in the said legislation such as saying that it implies that reasons for the order of termination have to be recorded. In interpreting the provisions of an Act, it is not permissible where the plain language of the provision gives a clear and unambiguous meaning can be interpreted by reading down and presuming certain expressions in order to save it from constitutional invalidity." [32]
S.B.Civil Writ Pettti nt.o..77o/2o Vijay Kumar & Ors. Vs The State tf Rajasthai & Ors.
44. From the abovenoted judgments, the following principles can be culled out:
44.1. The High Courts and Supreme Court of India are empowered to declare as void any law, whether enacted prior to the enactment of the Constitution or after. Such power can be exercised to the extent of inconsistency with the Constitution/contravention of Part III.
44.2. There is a presumption of constitutionality in favour of all laws, including pre-constitutional laws as Parliament, in its capacity as the representative of the People, is deemed to act for the benefit of the People in light of their needs and the constraints of the Constitution.
44.3. The doctrine of severability seeks to ensure that only that portion of the law which is unconstitutional is so declared and the remainder is saved.
This doctrine should be applied keeping in mind the scheme and purpose of the law and the intention of the legislature and should be avoided where the two portions are inextricably mixed with one another.
44.4. The court can resort to reading down a law in order to save it from being rendered unconstitutional. But while doing so, it cannot change the essence of the law and create a new law which in its opinion is more desirable."
26. Thus, viewed from the position of law as propounded by the Hon'ble Supreme Court and the Full Bench of this Court in the above referred judgments, it is evident that reading down puts into operation the principle that so far as it is reasonably possible to do so, legislation should be construed as being [33] S.B.Civil Writ Pettti nt.o..77o/2o Vijay Kumar & Ors. Vs The State tf Rajasthai & Ors. within power. It has the practical effect that where an Act is expressed in the language of a generality, which makes it capable, if read liberally of applying to matters beyond legislative powers, the Court will construe it in a more limited or wider sense as required so as to harmonize and rationalize the import thereof.
27. It cannot be gainsaid that promotion is not a fundamental right but the right to be considered for promotion is indeed a fundamental right.
28. In the background of the above factual and legal scenario, this court is required to first consider as to whether the Patwaries posted in the Department of Colonisation and loosely termed as Colonisation Patwaries have available to them, any avenue of promotion/direct recruitment to the post of Inspectors in the Rules of 1957 and if any such avenue is available, whether it is efficacious and at par with the avenues available to the Patwaries, Revenue (Land Records). If the answer to the above question is in the affirmative, then obviously, the petitioners would not be entitled to the relief claimed in the writ petition and the petition would have to fail. If on the other hand, the answer is in the negative, the Court would be required to read down the Rules as being arbitrary, unjust, discriminatory and unconstitutional. Firstly, the stand taken by the State that there is available to the petitioners an efficacious avenue of promotion at par with the Patwaries (Land Records) and [34] S.B.Civil Writ Pettti nt.o..77o/2o Vijay Kumar & Ors. Vs The State tf Rajasthai & Ors. Revenue needs to be examined. The State has all along asserted in its reply and the additional affidavits that such an avenue is available to the petitioners and their peers posted in the Colonisation Department. In order to substantiate the said plea, an order dated 20.12.2013 (Annex.R/3) was placed on record alongwith an additional affidavit. The said document was placed on record in an attempt to portray that DPC meeting was convened in the Colonisation Department for considering the cases of the eligible Patwaries for promotion to the post of Inspectors falling vacant during the years 2009- 2014 and as many as 41 Patwaries were promoted to the post of Inspectors. It is noteworthy that the said action of convening DPC meeting appears to have been conceived only after the notices of the instant writ petition were served on the respondent department and uncomfortable queries had been put to the respondents by this Court. The document itself refers to the pendency of the instant writ petition. The order itself clearly recites that the Patwaries of the Colonisation Department and the Patwaries of the Revenue (Land Records) Department are governed by the same set of Rules and are appointed under Rule 4(ga) of the Rules of 1957.
29. Thus, the set up of Rules of 1957 is required to be examined for deciding as to whether the provisions thereof should be read down so as to make them harmonious and to bring them [35] S.B.Civil Writ Pettti nt.o..77o/2o Vijay Kumar & Ors. Vs The State tf Rajasthai & Ors. within the framework of principles of equality enshrined under Articles 14 and 16 of the Constitution of India.
30. Rule 4, as it originally stood, referred to only the District Collector and the expression "or Colonisation Collector" was added therein by way of an amendment in the year 1975. A common entrance examination is held by the Board of Revenue for selection of Patwaries to the training schools. Thereafter, the successful candidates are sent for training under Rule 273 to a common Patwar Training School as per Rule 4. After completion of the training period, the distribution of the trained Patwaries is made amongst the Revenue (Land Records) and the Colonisation Departments. The candidate has no choice to opt for any particular department under the scheme of the Rules.
31. As per the case set up in the reply, cent percent filling up of the posts of Inspectors in the Colonisation Department is to be effected by promotion of Patwaris working in the Colonization Department on basis of seniority cum merit by convening DPC. Rule 284 provides that 80% of the vacant posts of Inspectors are to be filled in by promotion on the basis of seniority cum merit from the Patwaries working in the Land Records and Revenue Department. The remaining 20% posts are to be filled in by way of direct recruitment from amongst the Patwaries Revenue (Land Records) having 5 years experience by subjecting them to a competitive departmental examination. [36]
S.B.Civil Writ Pettti nt.o..77o/2o Vijay Kumar & Ors. Vs The State tf Rajasthai & Ors. Superficially seen, it would appear that the State has managed to portray that there is available, an avenue of promotion to the Patwaries of Colonisation Department as well. However, if Rule 284 is subjected to a closer scrutiny, it would be apparent that so far as the process of filling up of 80% of the vacancies by promotion on the basis of seniority cum merit is concerned, the situation seems to have been brought at par for both the kinds of Patwaries (Revenue or Colonisation). These 80% vacancies are required to be filled by promotion through DPC by adopting the common criterion of seniority cum merit.
32. However, a question mark is apparent regarding the process of direct selection on the remaining 20% posts of Inspector, which are to be filled by adopting the procedure provided in Rule 284(ii) read with Rules 285, 286 and 287. There is a marked distinction in the procedure laid down in Rules 284(i) and (ii). Whereas, Rule 284(i) deals with promotions to be accorded by convening a DPC and the criterion is seniority cum merit on the other hand, Rule 284(ii) provides for direct selection to the post of Inspector by way of a competitive examination. Eligibility criterion for the Patwaries aspiring for direct selection as Inspectors by competing in the examination to be conducted under Rule 287 is prescribed under Rule 286 of the Rules. The maximum age limit for Patwaries attempting for direct selection as Inspectors through the competitive examination is 45 years. Revenue Patwaries, who are below 45 [37] S.B.Civil Writ Pettti nt.o..77o/2o Vijay Kumar & Ors. Vs The State tf Rajasthai & Ors. years of age are entitled to vie for direct selection against 20% vacancies in the cadre of Inspectors through a competitive examination upon gaining 5 years experience in service. The intention of this provision is obviously to provide an early avenue of promotion to such candidates from amongst the cadre of Patwaries, who excel in academics. If the State's stand is to be accepted, the situation would be that a Patwari, who for reasons beyond his control is posted in the Colonisation Department, would have no opportunity to compete for an early rise in ranks on the strength of his academic skills. On the other hand, a Patwari, who is fortuitously posted in the Revenue Department would have access to such an opportunity.
33. While the arguments were being advanced before this Court, this Court put a pertinent query to the learned AGC as to whether a person, who is selected as a Patwari upon clearing the Patwar Examination under Rule 273 of the Rules, can exercise an option regarding the place of his posting i.e. in the Revenue Department or in the Colonisation Department. The learned AGC candidly conceded that as per the Rules, the selected candidates have no option to choose between the two departments when being given the posting. Rule 4(d) which deals with the place of posting does not provide that the candidate has a right to choose between either of the departments.
[38]
S.B.Civil Writ Pettti nt.o..77o/2o Vijay Kumar & Ors. Vs The State tf Rajasthai & Ors.
34. In view of the above discussion, evidently Rule 284(ii) of the Rules of 1957, inasmuch as, it provides the opportunity of direct selection to the 20% vacancies in the cadre of Inspectors through a competitive examination only to the serving Patwaries of the Revenue (Land Records) Department, is unreasonable, arbitrary and strikes at the fundamental right of equality as guaranteed by Articles 14 and 16 of the Constitution of India. It makes a hostile discrimination between persons selected on the same post through the same selection process. The communication dated 20.12.2013 from which the learned AGC tried to draw much water is also of no avail to the State, inasmuch as, the said communication appears nothing but an attempt to wriggle out of the irretrievable situation faced by the State upon uncomfortable queries being put by the court during the course of the hearing of the instant writ petition. The communication refers to promotions accorded to the Colonisation Patwaries by holding DPCs. On going through the Rules of 1957 which admittedly govern the service conditions of such Patwaries, it is evident that they are absolutely silent on this aspect, inasmuch as, no clear procedure of promotion to the post of Inspector is provided for the Colonisation Patwaries in the Rules.
35. Rule 284(i) which deals with promotion to the post of Inspectors on the basis of seniority cum merit for 80% of the [39] S.B.Civil Writ Pettti nt.o..77o/2o Vijay Kumar & Ors. Vs The State tf Rajasthai & Ors. vacancies also provides a promotional avenue only to the Patwaries of the Revenue (Land Records) Department. Thus, evidently, the Rules of 1957 if allowed to stand as they are, do not provide any promotional avenue whatsoever to the Colonisation Patwaries. It is also clear from the Rules of 1957 that there is no separate cadre of Inspectors (Colonisation) under the Rules of 1957. The communication (Annex.R/3) refers to a DPC meeting having been convened in compliance of the circular dated 30.12.1977 issued by the State Government. The said circular has been placed on record by the petitioners through an additional affidavit and it stipulates that cent percent vacancies in respect of the first promotion within every State service (promotion quota) may be filled up through departmental promotion committees as per existing rules. The circular was obviously issued to cover those situations where the rules are silent regarding the mode of promotion. Reliance on the circular is virtually an attempt to try and fill up the apparent void in the Rules of 1957 so far as the promotional avenue for the Patwaries Colonisation is concerned. However, the circular dated 30.12.1977 itself speaks that it is subject to the existing rules. Therefore, merely by relying on the aforesaid circular, the State cannot defend the unreasonable and arbitrary nature of the Rules 284, 285, 286 and 287 of the Rules of 1957 to the extent, the avenue of direct selection as Inspectors through a competitive [40] S.B.Civil Writ Pettti nt.o..77o/2o Vijay Kumar & Ors. Vs The State tf Rajasthai & Ors. examination is denied to the Patwaries, Colonisation Department. The circular also refers to first promotion against vacancies of promotion quota whereas the petitioners claim is for the 20% vacancies in the cadre of inspectors to be filled in by direct recruitment through a competitive examination. Thus, the circular has no application whatsoever to the controversy involved in the instant writ petition. The State has further attempted to defend its action by asserting that the services of the Revenue and the Colonisation Department Patwaries are not intertransferable and thus, the promotional channels for both the categories are also different. However, para 3 of the communication dated 20.12.2013 itself stipulates that the services of these Patwaries are generally not intertransferable, meaning thereby that there is no absolute bar on such transfers. At the same time, it is not denied by the respondents that a large number of Patwaries posted in the Colonisation Department were transferred to the Revenue Department and the last order placed on record by the petitioners was passed in the case of Vijendra Kumar on 14.7.2007. It is admitted in the additional affidavit filed on 13.1.2014 by the State that this transfer was effected as per the Rules. Thus, the stance of the respondent State that the services of the Patwaries (Land Records) and the Patwaries, (Colonisation) are not inter-transferable and interchangeable [41] S.B.Civil Writ Pettti nt.o..77o/2o Vijay Kumar & Ors. Vs The State tf Rajasthai & Ors. is without any basis and belied by the pleadings/documents placed on record.
36. Another important aspect of the matter is as to what nomenclature/designation would be assigned to the Inspectors in the Colonisation Department. The relevant rules as reproduced above refer only to the designation "Inspectors of Land Records". Rule 283 mentions that government shall maintain a training school for Inspectors of Land Records. The Patwaries who are selected as Inspectors either by promotion on the basis of seniority cum merit as well as by direct competitive examination under Rule 284(i) & (ii) of the Rules of 1957 are required to undergo training in the training school maintained by the government under Rule 283 of the Rules. The rules are absolutely silent in this regard as there exists no post of Inspector Colonisation in the Rules of 1957 even though their services are governed by these rules. Meaning thereby, there would be a question mark as to what would be the designation of a Patwari Colonisation promoted as an Inspector through a DPC. Would he be assigned the nomenclature of an Inspector simplicitor or an Inspector Colonisation. Obviously, when the State itself has come with a case that a promotional avenue is available to the Patwaries in the Colonisation Department as well, by necessary implication, the promotee would be required to be assigned some [42] S.B.Civil Writ Pettti nt.o..77o/2o Vijay Kumar & Ors. Vs The State tf Rajasthai & Ors. designation. However, as noted above, the rules are silent in this regard and leave a big void which remains unfilled.
37. If the Rules are permitted to be read as they are, the direct implication would be that Patwaries who are promoted to the post of Inspectors in the Colonisation Department would not be required to undergo training in the government training school because the training school referred to in Rule 283 deals only with Inspectors of Land Records. It would indeed be a matter of concern that a Patwari promoted to the post of Inspector in the Colonisation Department would discharge his duties without receiving a mandatory training required under the Rules. Thus, the wisdom of the legislature in excluding from the ambit of the Rules 283, 284, 285, 286, 287 and 288 of the Rules of 1957 the term "Patwari Colonisation" cannot be approved as being arbitrary, unreasonable and violative of the fundamental right of equality in service enshrined under Articles 14 and 16 of the Constitution of India. As has been noticed above, the Hon'ble Supreme Court has held that the Right to be considered for promotion is a fundamental right and promotion is an incident of service.
38. As a consequence of the above discussion, this Court has no hesitation in holding that the Rules 283, 284, 285, 286, 287 and 288 of the Rules of 1957, in so far as they tend to exclude from the ambit thereof, the Patwaries in the Colonisation Department from appearing in the competitive [43] S.B.Civil Writ Pettti nt.o..77o/2o Vijay Kumar & Ors. Vs The State tf Rajasthai & Ors. examination for direct recruitment and consequent training on the post of Inspectors have to be read down and given a harmonious interpretation so as to include in their operation and field the Patwaries, Colonisation Department. Likewise, Rule 283 which provides for training to the Inspectors of Land Records also deserves to be read down so as to include therein it the expression "Inspector Colonisation" accordingly.
39. Resultantly, the writ petition deserves to be and is hereby allowed. The provisions of Rules 283, 284, 285, 286, 287 and 288 of the Rules of 1957 are arbitrary and encroach upon the fundamental right of equality as guaranteed under Articles 14 and 16 of the Constitution of India and thus deserve to be read down so as to include in their language and area of operation, the Patwaries posted in the Colonisation Department for providing them a similar avenue of direct selection/upward move and training on the posts of Inspectors through a competitive examination alike the Patwaries posted in the Land Revenue (Land Records) Department.
40. As a consequence of the above conclusions, the petitioners who appeared and succeeded in the exam conducted during the on going selection process shall be appointed and provided training as Inspectors in the Colonisation Department. The petitioners shall also be entitled to notional consequential benefits from the date other persons, who [44] S.B.Civil Writ Pettti nt.o..77o/2o Vijay Kumar & Ors. Vs The State tf Rajasthai & Ors. appeared in the same selection process were appointed as Inspectors.
No order as to costs.
(SANDEEP MEHTA),J.
/tarun/