Rajasthan High Court - Jodhpur
Shambhoo Singh Jhala vs State Of Raj. & Ors on 1 February, 2018
Author: G.K. Vyas
Bench: Gopal Krishan Vyas, Manoj Kumar Garg
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
D.B. Civil Writ Petition No. 7568 / 2012
Raj. Samayojit Shiksha Karmi Welfare Society through its
President Shri Sardar Singh Bugaliya S/o Shri Bhinwaram
Bugaliya, aged 53 years, R/o Shiv Sagar Colony Vaishali Nagar,
Ajmer.
----Petitioner
Versus
1. The State of Rajasthan through the Principal Secretary,
Department of Personnel, Secretariat, Jaipur (Rajasthan)
2. The State of Rajasthan through the Secretary, Education
Department, Secretariat, Jaipur (Rajasthan)
----Respondents
Connected With
D.B. Civil Writ Petition No. 10013 / 2012
Shambhoo Singh Jhala S/o Shri Dungar Singh Jhala, aged about
60 years, R/o 133/D, Sector No.2, Vivek Nagar, Udaipur,
Rajasthan.
----Petitioner
Versus
1. State of Rajasthan through the Principal Secretary,
Department of Personnel (A Group-II) Government of
Rajasthan, Jaipur, Rajasthan.
2. Secretary, Department of Finance, Government of
Rajasthan, Jaipur, Rajasthan.
3. Director, Department of Pension, Government of Rajasthan,
Jaipur, Rajasthan.
----Respondents
D.B. Civil Writ Petition No. 12820 / 2012
Rajasthan Samayojit Shiksha Karmi Welfare Society through its
President Shri Sardar Singh Bugaliya S/o Shri Bhinwaram
Bugaliya, aged 53 years, R/o Shiv Sagar Colony Vaishali Nagar,
Ajmer.
----Petitioner
Versus
(2 of 68)
[CW-7568/2012 A-w connected matters]
1. The State of Rajasthan through the Principal Secretary,
Department of Personnel, Secretariat, Jaipur (Rajasthan)
2. The State of Rajasthan through the Secretary, Education
Department, Secretariat, Jaipur (Rajasthan)
3. The Secretary, Higher Education Department Secretariat,
Jaipur (Rajasthan)
4. The Director, College Education, Rajasthan, Jaipur
----Respondent
D.B. Civil Writ Petition No. 3772 / 2014
1. Bhupendra Singh Tarad S/o Shri Maniram, aged 59 years,
Posted as Lecturer at Government Higher Secondary School,
Daba Rangu, Dist. Hanumangarh (Raj.)
2. Ajab Singh Godara S/o Shri Harchand Godara, posted as
Lecturer at Government Higher Secondary School, Panniwali
Jatan, Dist. Sri Ganganagar (Raj.)
3. Hansraj Vishnoi S/o Shri Manphool Vishnoi, posted as
Lecturer at Government Higher Secondary School, Kanuta,
Sujangarh, Dist. Churu (Raj.)
4. Rajendra Dhupad S/o Shri Kailash Chand Dhupad, Posted as
Lecturer at Government Higher Secondary School, Kaliya
Dist. Sri Ganganagar (Raj.)
5. Avinash Pachori S/o Shri Nathulal Pachori, posted as Lecturer
at Government Higher Secondary School, Sawar, Dist. Ajmer
(Raj.)
6. Surendra Kumar S/o Shri Gangajal, posted as Lecturer at
Government Higher Secondary School, Ghamudwali, District
Sri Ganganagar (Raj.)
7. Ved Prakash S/o Shri Sohan Lal, posted as Senior Teacher,
Retired from Government Secondary School, 66 NP
Raisinghnagar, Dist. Sri Ganganagar (Raj.)
8. Kishore Kumar Kataria S/o Shri Udaram, posted as Senior
Teacher at Government Higher Secondary School, 19Z, Dist
Sri Ganganagar (Raj.)
9. Dilip Singh Pachar S/o Shri Gopal Ram Pachar, posted as
Senior Teacher at Government Higher Secondary School,
Khat Sajwar, Sadulsahar, Dist. Sri Ganganagar (Raj.)
10. Ram Kumar Choudhary S/o Shri Nathuram Khoth, posted as
Senior Teacher at Government Higher Secondary School,
Malkhana Kala, Dist.Sri Ganganagar (Raj.)
(3 of 68)
[CW-7568/2012 A-w connected matters]
11. Narain Tiwari S/o Shri Jadgamba Prasad Tiwari, posted as
Senior Teacher at Government Secondary School, 6 EEA
Padampur, Dist.Sri Ganganagar (Raj.)
12. Harshwardhan MIshra S/o Shri Onkar Mishra, posted as
Senior Teacher, Retired from Government Higher Secondary
School, Manewala, Dist.Sri Ganganagar (Raj.)
13. Satyanarayan Gupta S/o Shri Hukamchand Vijay, posted as
Senior Teacher, retired from Government Secondary School,
Dabla, Dist.Sri Ganganagar (Raj.)
14. Satpal Singh S/o Shri Jaswant Singh, posted as Senior
Teacher at Government Higher Secondary School,
Padampur, Dist.Sri Ganganagar (Raj.)
15. Gurjant Singh Kalsi S/o Shri Janghir Singh Kalsi, posted as
Senior Teacher at Government Secondary School,
Kishanpura Utarada, Dist. Hanumangarh (Raj.)
16. Rameshwar Lal S/o Shri Aadram Godara, posted as Senior
Teacher at Government Secondary School, Gangubala
Sirwan, Dist. Sri Ganganagar (Raj.)
17. Mohan Lal Baloda S/o Shri Puranram Baloda, posted as
Teacher Grade III, at Government Higher Secondary School,
Ghamudwala, Dist. Sri Ganganagar (Raj.)
18. Dinesh Choudhary S/o Shri Albed Singh, posted as Teacher
Grade III, at Government Secondary School, Sahibsingh
Wala, Dist. Sri Ganganagar (Raj.)
19. Rajendra Kumar Mishra S/o Shri Sharwan Kumar, posted as
Teacher Grade III, at Government Secondary School,
Amarpura Jatan, Suratgarh, Dist. Sri Ganganagar (Raj.)
20. Sushil Kumar S/o Shri Premraj, posted as Teacher Grade III,
at Government Secondary School, Rajpura Piperan,
Suratgarh, Dist. Sri Ganganagar (Raj.)
21. Ram Niwas S/o Shri Ram Kumar, posted as Teacher Grade
III, at Government Secondary School, Sunderpura, Dist. Sri
Ganganagar (Raj.)
22. Naresh Kumar S/o Shri Satyaprakash, posted as Teacher
Grade III, at Government Secondary School, 44 LLW,
Sadulsahar, Dist. Sri Ganganagar (Raj.)
23. Ved Prakash Sirav S/o Shri Devilal Sirav, posted as Teacher
Grade III, at Government Secondary School, Dulapur Keri,
Dist. Sri Ganganagar (Raj.)
(4 of 68)
[CW-7568/2012 A-w connected matters]
24. Rameshwar Lal Swami S/o Shri Bhagwandas, posted as LDC,
retired from Government Girls Secondary School, Ridmalsar,
The. Padampur, Dist. Sri Ganganagar (Raj.)
25. Shriram Sharma S/o Shri Tejaram, posted as LDC, at
Government Secondary School, 1 KK, Padampur, Dist. Sri
Ganganagar (Raj.)
26. Ramlal Saharan S/o Shri Gopalram, posted as Teacher Grade
III, at Government Secondary School, Patuhi, Dist. Sri
Ganganagar (Raj.)
27. Raisahab S/o Shri Jagdish Goadara, posted as Lab. Assistant,
at Government Higher Secondary School, Chanibadi, Dist.
Hanumangarh (Raj.)
28. Smt. Riba Sharma D/o Shri Jagannath Kataria, posted as
Teacher Grade III, at Government Upper Primary School,
Didwana, Suratgarh, Dist. Sri Ganganagar (Raj.)
29. Smt. Naresh Sharma W/o Shri Vijay Bhargava, posted as
Teacher Grade III, Government Upper Primary School, 4
SHPD, Suratgarh, Dist. Sri Ganganagar (Raj.)
30. Smt. Anita W/o Shri Manohar Lal, posted at Teacher Grade
III Government Upper Primary School, 6A Choti, Dist. Sri
Ganganagar (Raj.)
31. Smt. Gurjeet Kaur D/o Shri Avtar Singh, posted as Teacher
Grade III, at Government Secondary School, 3C Choti, Dist.
Sri Ganganagar (Raj.)
32. Aadram S/o Shri Kishora Ram, posted as Peon, at
Government Higher Secondary School, 20 GG, Dist. Sri
Ganganagar (Raj.)
33. Madan Singh S/o Shri Virendra Singh, posted as Peon at
Government Secondary School, Mohanpura, Dist. Sri
Ganganagar (Raj.)
34. Sunder Singh S/o Shri Narain Singh, posted as Peon, Retired
from Government Girls Upper Higher Secondary School,
Dungarsinghpura, Dist. Sri Ganganagar (Raj.)
35. Sahabdin Yadav S/o Shri Ramnath Yadav, posted as Senior
Teacher, at Government Secondary School 16 PS, Dist. Sri
Ganganagar (Raj.)
36. Mahesh Kumar Sharma S/o Shri Dungar Ram Sharma,
posted as Teacher Grade III, at Government Higher
Secondary School, Panniwali Jatan, Dist. Sri Ganganagar
(Raj.)
(5 of 68)
[CW-7568/2012 A-w connected matters]
37. Subhash Chandra S/o Shri Ramchandra, posted as Teacher
Grade III, at Government Upper Primary School, 9Q, Dist.
Sri Ganganagar (Raj.)
38. Smt. Saroj W/o Shri Subhash Chawla, posted as Teacher
Grade III, at Government Upper Primary School, 6A Choti,
Dist. Sri Ganganagar (Raj.)
39. Smt. Veena Bajaj W/o Shri Mahendra Bajaj, posted as
Teacher Grade III, at Government Girls Upper Primary
School, 6A Choti, Dist. Sri Ganganagar (Raj.)
40. Smt. Arvind Kaur W?o Shri Gurmeet Singh, posted as
Teacher Grade III at Government Upper Primary School,
Faridsar Gaon, Suratgarh, Dist. Sri Ganganagar (Raj.)
41. Praveen D/o Shri Lachuram, posted as Teacher Grade III, at
Government Primary School, 52 GB Anoopgarh, Dist. Sri
Ganganagar (Raj.)
42. Madanlal Verma S/o Shri Bhagaram posted as LDC Retired
from Government Higher Secondary School, Sangrana,
Teshil Raisinghnagar, Dist. Sri Ganganagar (Raj.)
43. Ramavatar Verma S/o Shri Hajarilal, posted as LDC Retired
from Government Higher Secondary School, Sandhar, Dist.
Sri Ganganagar (Raj.)
44. Brijmohan Sharma S/o Shri Patram Sharma, posted as
Senior Teacher, at Government Higher Secondary School,
Chunavadh, Dist. Sri Ganganagar (Raj.)
45. Harish Kumar Modi S/o Shri Kishan Lal Modi, posted as
Senior Teacher, at Government Higher Secondary School,
Chunavadh, Dist. Sri Ganganagar (Raj.)
46. Vijay Singh Jakhar S/o Shri Shivchand Jakhar, posted as
Teacher Grade III, at Government Secondary School, 70 LNP
Block Padampur, Dist. Sri Ganganagar (Raj.)
47. Smt. Radha Bhatia D/o Shri Parmanand Taneja, posted as
Senior Teacher at Government Higher Secondary School, 2
F.C. Mukal, Dist. Sri Ganganagar (Raj.)
48. Sushma Talwar W/o Shri Satish Talwar, posted as Teacher
Grade III at Government Secondary School, 3 LBM
Anoopgarh, Dist. Sri Ganganagar (Raj.)
49. Sulochana Bhambhari W/o Shri Madan Bhambhari posted as
Teacher Grade III at Government Upper Primary Secondary
School, 45 GB Anoopgarh, Dist. Sri Ganganagar (Raj.)
(6 of 68)
[CW-7568/2012 A-w connected matters]
50. Vijay Laxmi W/o Shri Ashok Kumar Vij, posted as Teacher
Grade III, at Government Higher Secondary School, 5/8A
Anoopgarh, Dist. Sri Ganganagar (Raj.)
51. Sunita Khurma W/o Shri Yashpal, posted as Teacher Grade
III, at Government Higher Secondary School, 5/8 A
Anoopgarh, Dist. Sri Ganganagar (Raj.)
52. Sucheta Sharma W/o Shri Arvind Bhargava, posted as
Teacher Grade III, at Government Upper Primary School,
Gomawali Anoopgarh, Dist. Sri Ganganagar (Raj.)
53. Veena Gupta W/o Shri Gogi Gupta, posted as Teacher Grade
III at Government Upper Primary School, 45GB Anoopgarh,
Dist. Sri Ganganagar (Raj.)
54. Shashi Chabra D/o Shri Govindkant Balana, posted as
Teacher Grade III, at Government Upper Primary School,
Maghewali Dhani, Anoopgarh, Dist. Sri Ganganagar (Raj.)
55. Savita Rani W/o Shri Sandeep Sidana, posted as Teacher
Grade III at Government Primary School, 9/11 APD,
Anoopgarh, Dist. Sri Ganganagar (Raj.)
56. Rakesh Juneja W/o Shri Kulbhushan Juneja, posted as
Teacher Grade III, at Government Upper Primary School, 8 K
(B), Gharsana, Shri Anoopgarh, Dist. Sri Ganganagar (Raj.)
57. Kiran Janveja W/o Shri Rajkumar Janveja, posted as Teacher
Grade III, at Government Upper Primary School, 1 UDM
Udasar, Anoopgarh, Dist. Sri Ganganagar (Raj.)
58. Rajendra Kaur W/o Shri Rakesh Saini, posted as Teacher
Grade III at Government Girls Upper Primary School,
Manewala, Suratgarh, Dist. Sri Ganganagar (Raj.)
59. Laxmi Garg W/o Shri Shashi Garg, posted as Teacher Grade
III at Government Grisl Upper Primary School, Manewala,
Suratgarh, Dist. Sri Ganganagar (Raj.)
60. Lalchand Verma S/o Shri Moman Ram, psoted as Senior
Teacher, at Government Secondary School, Mammar Kheda,
Dist. Sri Ganganagar (Raj.)
61. Sahashi Chawla W/o Shri Manjindra Singh posted as Teacher
Grade III, at Government Girls Upper Primary School,
Manewala, Suratgarh, Dist. Sri Ganganagar (Raj.)
62. Gajanand Chandak S/o Shri Ishwar Prasad Chandak, posted
as Senior Teacher at Government Higher Secondary School,
Muklawa, Dist. Sri Ganganagar (Raj.)
(7 of 68)
[CW-7568/2012 A-w connected matters]
63. Jagdish Chand S/o Shri Maniram, posted as Teacher Grade
III at Government Upper Primary School, 28 KSD, Dist. Sri
Ganganagar (Raj.)
64. Vinita Bhatia W/o Shri Sudhir Bhatia, posted as Teacher
Grade III, at Government Primary School, 3C Choti, Dist. Sri
Ganganagar (Raj.)
----Petitioners
Versus
1. The State of Rajasthan through the Principal Secretary
Department of Personnel, Secretariat, Jaipur, Rajasthan.
2. The Secretary, Education Department, State of Rajasthan,
Jaipur.
----Respondents
D.B. Civil Writ Petition No. 11520 / 2015
1. Ramgopal Verma S/o Shri Mani Ram, aged 46 years, at
present working as Teacher Grade-III, Govt. Senior
Secondary School, 12 MLD Gharsana, District Sri
Ganganagar.
2. Narayan Singh S/o Shri Bhopal Singh at present posted as
Teacher Grade-III, Govt. Upper Primary School, 11H Sri
Karanpur, District Sri Ganganagar.
3. Rohit Kumar Sharma S/o Shri Bharat Lal Sharma, at present
posted as Teacher Grade-III, Govt. Upper Primary School, 9-
10 BNW Sadulsahar, District Sri Ganganagar.
4. Pratap Singh S/o Shri Jagannath, at present working as
Teacher Grade-III, Govt. Adarsh Sr. Senior Secondary
School, Farsewala, Tehsil Padampur, district Sri Ganganagar.
5. Mangal Das Bishnoi (Low Vision) S/o Shri Balak Ram, at
present working as Teacher Grade III, Govt. Primary School,
6 LNP, District Sri Ganganagar.
----Petitioners
Versus
1. The State of Rajasthan through the Principal Secretary,
Department of Personnel, Secretariat, Jaipur, Rajasthan.
2. The Secretary, Education Department, State of Rajasthan,
Jaipur.
----Respondents
(8 of 68)
[CW-7568/2012 A-w connected matters]
D.B. Civil Writ Petition No. 5186 / 2016
1. Dr. Shiv Singh Dulawat S/o Shri Manohar Singh Dulawat,
aged 59 years, R/o II, Ganesh Vatika, Sharda Nagar, Bohra
Ganesh, District Udaipur, Rajasthan.
2. Abhimanyu Singh S/o Shri Shiv Singh, R/o 26-Ganpati
Nagar, Bohra Ganesh Road, District Udaipur, Rajasthan.
3. Madan Gopal Varshneh S/o Shri G.L. Varshney, R/o SF-7,
Gayatri Nagar, Sector-5, Hiranmagri, District Udaipur,
Rajasthan.
4. Dhanpat Raj Bohra S/o Shri Gyan Chand Ji, R/o 4-B-7, Near
Shopping Centre, Pratap Nagar, District Jodhpur, Rajasthan.
5. Chitra Bhatnagar W/o Shri Anil Bhatnagar, R/o 123-A,
Adarsh Nagar, District Ajmer, Rajasthan.
6. Om Prakash Roonwal S/o Shri B.L. Roonwal, R/o 63- Oswal
Nagar, Suadarwas, District Udaipur, Rajasthan.
7. Anupma Sisodia W/o Shri D.D. Sisodia, R/o C-6/B Adarsh
Nagar, District Udaipur, Rajasthan.
8. Vinita Rathore W/o Shri D.S. Chauhan, R/o 8, Vrindawan
Dham Road, No.3 New Bhupalpura, District Udaipur,
Rajasthan.
9. Neeru Rathore W/o Shri Mahipal Singh Chandrawat, R/o 111
Shriji Vihar, New Vidhya Nagar, Sector-4, District Udaipur,
Rajasthan.
10. Manju Sharma W/o B.L. Sharma, R/o 13-A, Kalaji Goraji, Nai
Colony, District Udaipur, Rajasthan.
----Petitioners
Versus
1. State of Rajasthan through the Principal Secretary,
Department of Personnel (A Group-II), Government of
Rajasthan, Jaipur, Rajasthan.
2. Secretary, Department of Finance, Government of
Rajasthan, Jaipur, Rajasthan.
3. Director, Department of Pension, Government of Rajasthan,
Jaipur, Rajasthan.
4. Principal Secretary, Department of Higher Education,
Government of Rajasthan, Jaipur, Rajasthan.
(9 of 68)
[CW-7568/2012 A-w connected matters]
5. Commissioner, Department of College Education,
Government of Rajasthan, Jaipur, Rajasthan.
----Respondents
_____________________________________________________
For Appellant(s) : Mr. M.S. Singhvi, Sr. Advocate assisted by
Mr. Manoj Bhandari & Mr. Hemant Dutt.
Mr. Sajjan Singh Rathore, Mr. Jog Singh,
Mr. Rakesh Matoria.
For Respondent(s) : Mr. P.R. Singh, AAG with
Mr. Dinesh Ojha,
Mr. Rajesh Panwar, AAG,
Mr. Kuldeep Mathur.
_____________________________________________________
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
HON'BLE MR. JUSTICE MANOJ KUMAR GARG
JUDGMENT
Per Hon'ble Mr. G.K. Vyas, J.
REPORTABLE Date of Judgment :: 1st February, 2018
The aforesaid writ petitions are filed by the employees who were working in the schools/institutions, which were in receipt of grant-in-aid prior to promulgation of Rajasthan Voluntary Rural Education Service Rules, 2010 (for brevity, hereinafter referred to as „Rules of 2010‟).
(10 of 68) [CW-7568/2012 A-w connected matters] Succinctly stated, the facts of the case are that in the year a decision was taken by the State Government to stop aid of education institution, and to make appointments of the employees working in the recognized Non-Govt. Aided Education Institutions against the aided/sanctioned post in the Government in the rural area of the State in exercise of power conferred by the proviso to Article 309 of the Constitution of India, Rules of 2010 were promulgated to regulate the appointments and other service conditions of employee/s appointed under the Rules of 2010. In all the petition common question is involved, therefore, we are taking facts of the case from D.B. Civil Writ Petition No.7568/2012- Raj.
Samayojit Shiksha Karmi Welfare Society Vs. The State of Rajasthan & Anr.
In the writ petitions, the petitioner has prayed for following relief(s): -
" i) By an appropriate writ, order or direction, the Rule 5 (ii), (iii) (v) and (ix) may kindly be declared illegal and be struck down after declaring them as ultra vires of the constitution of India i i) By an appropriate writ, order or direction, the Rule 5 (iv) may kindly be declared illegal and ultra vires of the constitution of India to the extent that it denies any right to be considered for promotion till the absorbed employees attains their age of superannuation and respondents be directed to consider the cases of the employees of the aided institutions for absorption with the State of Rajasthan for promotion to the higher post with all consequential benefits.
(11 of 68) [CW-7568/2012 A-w connected matters] i ii) By an appropriate writ, order or direction, the benefit accruing to a government servant under Rajasthan Civil Service Rules, 1951 and Rajasthan Civil Services (Pension) Rules, 1996 be made applicable and implemented to all the absorbed employee under the Rules of 2010 with all consequential benefits.
i v) By an appropriate writ, order or direction, the respondents be directed to count the previous services rendered by the persons in Non-Government Educational Aided Institutions after being absorbed under the Rules of 2010 for the purpose of Pension and other retiral benefits, with all consequential benefits.
v) By an appropriate writ, order or direction, the condition mentioned in the option form (Form No.1) under the Rules of 2010 with regard to not claiming for promotion etc. and other conditions mentioned in the rules for which the undertaking has been given in the option, may be declared illegal and be quashed and it may be declared that these conditions are inoperative qua the members of the petitioner society.
vi) Any other appropriate order or direction which this Hon'ble Court may deem fit just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner.
vii) Costs of the writ petition may kindly be awarded to the petitioner."
Under the Rules of 2010, following procedure was prescribed for appointment under Rule 4 of the Rules:
"Rule. 4- Procedure of appointment in government service.- (1) Such regularly appointed employees in the Non-Government Aided Educational Institutions who are working against sanctioned and aided post on the date of (12 of 68) [CW-7568/2012 A-w connected matters] commencement of these rules and who desire to be appointed under the Rajasthan Voluntary Rural Educational Service Rules, 2010, in accordance with the terms and conditions mentioned in these rules, shall submit within 15 days from the date of publication of these rules in the official gazette an application in Form- I, to the Secretary of the concerned institution mentioning therein his/her service particulars with an advance copy to the concerned appointing authority.
(2) The Secretary of the Institution shall, after verifying the service particulars, forward the applications to the concerned appointing authority along with complete service record of the employee within 10 days from the last date of receipt of applications. The Secretary of the institution shall append a certificate to the effect that the service particulars mentioned by the employees are correct.
(3) The suitability of employees of various Non-
Government Aided Educational Institutions for appointment on the various posts under these rules shall be adjudged by the screening committee comprising of :-
( a) In case of post within the purview of the Commission:
(i) Chairman of the Commission or Chairman his nominee
(ii) Principal Secretary, Department Member of Personnel or his nominee not below the rank of Dy. Secretary.
(iii) Principal Secretary of the Member
concerned Department or his
nominee not below the rank of
Dy. Secretary.
(iv) Director of the concerned Member
Department
Secretary
(13 of 68)
[CW-7568/2012 A-w connected matters]
(b) in case of post not within the purview of the
Commission-
(i) Director of the concerned Chairman
Department or his nominee
(ii) Concerned appointing authority Member
Secretary
(4 ) The committee after adjudging the suitability
of the candidates shall forward the names(s) of the suitable candidate(s) to the concerned appointing authority for appointment."
In Rule 5 of the Rules of 2010, terms and conditions for appointment of employees working against the aided/sanctioned post in Government service was prescribed, which reads as under:-
" 5. Terms an d condition for appointment of employees in Government Service.- The regularly appointed; existing employees in the Non-Government Aided Educational Institutions who are working against sanctioned aided post on the date of commencement of these rules shall be appointed under the Rajasthan Voluntary Rural Education Service on the following terms and conditions, namely:-
(i ) The employee should possess the requisite educational and professional qualification for the respective posts as per the relevant service rules applicable to the Government servant of similar cadre.
(i i ) The posts on which the employees shall be appointed in the Government shall constitute a separate dying cadre for each category of employees.
(14 of 68) [CW-7568/2012 A-w connected matters]
(iii) The appointed employees shall be posted only in the colleges/schools, as the case may be, in the rural areas on the equivalent posts specified in column number 2 of the Schedule. However, in case there is no such equivalent post in the government, they shall be appointed on other posts carrying the same pay scale of aided posts.
(iv) The employees appointed under these rules shall not be entitled for any promotion till they attain the age of superannuation. However, they shall be allowed benefit of Assured Career Progression/Career Advancement Scheme as allowed to other employees of the State Government. The period from the date of their appointment on the sanctioned and aided posts would be counted for the purpose of grant of Assured Career Progression/Career Advancement Scheme.
(v) The posts shall be automatically abolished as and when the posts become vacant for any reason whatsoever i.e. on account of superannuation/voluntary retirement/termination of service/death while in service/resignation of the employee etc.
(vi) The salary of all the appointed employees shall be fixed on the basis of the salary as drawn at the time of appointment as per the Sixth Pay Commission with effect from the date they join in the government under these rules. Those who are drawing salary in Rajasthan Civil Service (Revised Pay Scale) Rules, 1998, Rajasthan Civil Services (Revised Pay Scales for Government College Teachers including Librarian and PTI Rules, 1999 and Rajasthan Civil Services Revised Pay Scales for Government Polytechnic College Teachers, Librarians and Physical Training Instructors Rules, 2001) shall be allowed benefit of Rajasthan Civil Services (Revised Pay) Rules, 2008, Rajasthan Civil Services (15 of 68) [CW-7568/2012 A-w connected matters] (Revised Pay Scales for Government College Teachers including Librarian and PTI Rules, 2009 and Rajasthan Civil Services Revised Pay Scales for Government Polytechnic College Teachers, Librarians and Physical Training Instructors Rules, 2010) respectively with effect from the date they join in the Government after appointment under these rules.
(vi i ) No arrears on any account whatsoever (including arrear of salary, selection scale, Assured Career Progression or Career Advancement Scheme) shall be paid by the State Government for the period prior to the date of their joining in the Government after appointment under these rules.
(viii) Carry forward of the balance of Privilege Leave shall not be allowed. Employees shall be free to get payment of encashment of balance of P.L. from the respective grant-in-aid educational institutions.
(ix) The persons who are appointed in the government service under these rules shall not be eligible for pension scheme. Contributory Provident Fund Contribution, if not deposited by the Non-Government Aided Educational Institution for the period prior to the date of their joining in th e Government after appointment under these rules, shall not be paid by the State Government. They may either continue to be members of the Contributory Provident Fund or they may opt for the Rajasthan Civil Service (Contributory Pension) Rules, 2005. Employer's contribution towards Contributory Provident Fund shall be paid by the Government for the period they are in government service.
( x) The period of service in the aided institutions shall not be counted for payment of gratuity. The (16 of 68) [CW-7568/2012 A-w connected matters] employees shall be free to obtain payment of gratuity from the respective grant in aid educational institution.
(xi) Each employee shall be required to execute an undertaking, in Form-II, that he/she voluntarily accepts all the terms and conditions of service prescribed under these rules and agrees to serve in the government educational institutions situated in the rural areas till attaining the age of superannuation in the service of Government."
In the writ petitions, the main grievance of the employees is for denial of right which is available to the regular Government employees even after their appointment under the Rules of 2010, therefore, it is prayed that sub-Rules ii, iii, iv, v and ix of Rule 5 of the Rules of 2010 may be declared ultravires of the Constitution of India and struck down and issue directions to the State Government to grant benefits accruing to the Government servants under the Rajasthan Civil Services Rules, 1951 and Rajasthan Civil Service (Pension) Rules, 1996 and to all the appointed/absorbed employees under the Rules of 2010 with all consequential benefits. It is also prayed that the respondents may be directed to count previous service rendered by the employees in the Non-Government Education Aided Institutions after being absorbed after appointment under the Rules of 2010 for the purpose of pension and other retiral benefits with all consequential benefits.
It is also specified prayed that condition mentioned in the option form (Form No.I) under the Rules of 2010 with regard to (17 of 68) [CW-7568/2012 A-w connected matters] not claiming for promotion etc. and other conditions mentioned in the services for which an undertaking has been obtained as option, may be declared illegal and quashed. It is further prayed that embargo put under the Rules for transfer of the absorbed employees under the Rules in urban area may kindly be declared illegal and direction may be issued to give posting to the employees absorbed under the Rules of 2010 in urban areas also.
Mr. M.S. Singhvi, Sr. Advocate assisted by Mr. Manoj Bhandari, Mr. Hemant Dutt, appearing on behalf of petitioners submits that the petitioner is a society registered under the Societies Registration Act, 1958. The society has been constituted basically for the welfare of the employees absorbed under the Rules of 2010, who were working against various posts in the schools having grant-in-aid under the Rajasthan Non-Government Education Institution Act, 1989. As per arguments, there is no grievance of the employees for their absorption/appointment in the Government service under the Rules of 2010 but the grievance of the employees is to the extent of some provisions incorporated under Rule 5 of the Rules of 2010 and against the Form No.I, which is required to be filled in by the employees working against the aided/sanctioned post for appointment under the Rules of 2010.
Learned Senior Advocate vehemently argued that Rule 4 (1) of the Rules of 2010 provides that the employees of Non-
Government Aided Educational Institution working against the sanctioned or aided post on the date of commencement of these (18 of 68) [CW-7568/2012 A-w connected matters] rules shall submit an option within fifteen days from the date of publication of rules in Official Gazette in the requisite prescribed performa which is Form No.I to the Secretary of the concerned authority mentioning his/her service particulars. All the employees/members of the petitioner-society submitted their option for being absorbed under the Rules of 2010 in the State service. The applications were considered and as per provisions of Rules of 2010, the employees who working in the schools who were in receipt of grant-in-aid, were absorbed in the Government service, for which separate orders were issued district wise at District level by the District Education Officer (Primary) in case of Teacher Grade III, Deputy Director, Secondary Education on the post of Teacher Grade II, Commissioner, School Education, in the case of lecturer and headmasters and in the case of library and ministerial staff, District Education Officer, Secondary Education.
Learned counsel for the petitioner/s vehemently argued that on the one hand decision was taken by the State Government to absorb the employees working in the aided schools against the aided/sanctioned post (for that purpose Rules were framed) and on the other hand, a condition was imposed upon the employees who were willing to opt for Government service to furnish undertaking in Form No.I annexed with the Rules. In the said undertaking obtained under Rule 4 (1) of the Rules, it is specifically incorporated that, "I desire to be appointed under the Government service in accordance with terms and conditions mentioned in these Rules. I declare that I shall abide the (19 of 68) [CW-7568/2012 A-w connected matters] conditions of said Rules. The undertaking was obtained from the employee that I shall not make any claim for any promotion till my superannuation and I hereby opt to continue to be member of contributory provident fund/opt for Rajasthan Civil Service Contributory Scheme, 2005 in accordance with provisions of Clause IX of the aid Rules and I shall not claim any payment for contributory fund, if any deposited by the Non-Government Grand-in-Aid Educational school for the period prior to the date of my joining in the Government service.
Learned counsel for the petitioner argued that such type of undertaking is totally unconstitutional because on the one hand the State Government took a decision to absorb the employees working against the aided/sanctioned post in the Government school and the State Government but on the other hand compelled the employees to furnish undertaking for their absorption/ appointment in the Government service under the Rules of 2010. Once the State Government took a decision to absorb the employees working against the aided/sanctioned post, then obviously all the benefits which are applicable to existing Government employees have to be made available to them.
Admittedly the decision was taken by the State Government to absorb the employees in the Government service working against the aided/sanctioned post in the aided institution, but it is very strange that offer has been given by the State Government with restrictions, which is not permissible under the law. Rather it is the duty of the welfare State to act in accordance with provisions (20 of 68) [CW-7568/2012 A-w connected matters] of Constitution of India while protecting the fundamental rights of the citizen. According to learned Senior Advocate there was no option for the employees working in the aided/sanctioned post except to furnish the option/undertaking because a decision was taken by the State Government to stop grant-in-aid to the aided institution, therefore, all the employees furnished the said undertaking for the purpose of their absorption/appointment under the Rules of 2010 otherwise, there was no other option for them to remain in service because they were working against the sanctioned/aided post and the event of denial of aid, there was apprehension with them to loose service and their livelihood.
Learned Senior Advocate further argued that some of the conditions mentioned in the undertaking are contrary to law because after promulgation of Rules of 2010 although the State Government is treating all the appointed employees as Government employees but due to unreasonable restriction for denial of benefits which are available to the regular Government employees. Therefore, the action of the State Government for imposing unreasonable condition for denial of benefits is totally violative of Articles 14 and 21 of the Constitution of India because it was an attempt to snatch bread and butter or livelihood of the employees working in the aided schools/institutions, for which Government was providing grant-in-aid. It is pointed out that the unreasonable restriction with regard to denial of promotion and denial of benefits of RSR, 1951 and Rajasthan Civil Service (Pension) Rules, 1996 is contrary to basic principles of law, (21 of 68) [CW-7568/2012 A-w connected matters] therefore, restriction may be declared unconstitutional and struck down.
The specific grievance of the petitioner is that certain conditions viz. sub-Rules (ii), (iii), (iv) (v) and (ix) of Rule 5 of the Rules of 2010 are unconstitutional, the State Government cannot deny benefit which is available to all the Government employees already working by way of creating a separate class after absorption/appointment of the employees of aided educational institutions under the Rules of 2010. The argument of the learned Senior Advocate is that the unreasonable restriction incorporated in Rule 5 for which undertaking is obtained, deserves to be declared ultravires for because said undertaking obtained from the employees before absorption is unconstitutional for the reason that after appointments under the Rules, absorbed employees are entitled for all benefits of promotion, pension and qualifying service at par with the employees of the State Government.
In support of arguments, learned counsel for the petitioner/s relied upon following case laws:
A- Discrimination in Pay and other conditions of service of Aided schools and unaided schools:
1. Frank Anthony Public School Vs. U.O.I., reported in 1986 (4) SCC 707.
B- All employees have equal right to receive the benefit of Scheme:
2. D.S. Nakara Vs. U.O.I. reported in 1983 (1) SCC 305.
3. A.N. Sachdeva Vs. MDS University, reported in 2015 (10) SCC 117.
(22 of 68) [CW-7568/2012 A-w connected matters] C- No discrimination on the basis of Source of Recruitment:
4. State of U.P. Vs. Dayanand Chakrawarty reported in 2013 (7) SCC 595.
5. State of Kerala Vs. B.Renjith Kumar reported in (2008) 12 SCC 219.
6. Nehru Yuva Kendra Vs. Rajesh Mohan reported in 2007 (6) SCC 9.
D. Right to promotion:
7. Food Corporation of India Vs. Purshottam Das reported in (2008) 5 SCC 100.
8. Council of Scientific and Industrial Research Vs. KGS Bhatt, reported in 1989 (4) SCC 635.
9. O.Z. Husain (Dr.) Vs. Union of India reported in 1990 (Suppl.) SCC 688.
10. Raghunath Prasad Singh Vs. Secretary, Home (Police) Department reported in AIR 1988 SC 1033.
11. Panchraj Tiwari Vs. Madhya Pradesh, reported in 2014 (5) SCC 101.
E. Estoppel Waiver/Doctrine of Election: State cannot take a stand that employee accepted the offer of appointment knowing fully well that there are no avenues of promotion.
12. State of Tripura Vs. K.K. Roy, reported in 2004 (9) SCC
65.
13. Kamal Narayan Mishra Vs. State of M.P. reported in 2010 (2) SCC 169.
F. Unconscionable terms of contract are void:
14. Hussain Bhai Vs. Alath Factory, Calicut reported in AIR 1978 SC 1410.
15. Central Inland Water Transport Vs. Brojonath Ganguli reported in 1986 (3) SCC 156.
(23 of 68) [CW-7568/2012 A-w connected matters] G. Integration of Service- Different types of Government-
managed High Schools integrated into a single type of Government school:
16. B.K. Mohapatra Vs. State of Orissa reported in 1987 (Suppl) SCC 553.
H. Period of service render is to be counted for promotion even if employee is transferred at his own request.
17. State of Maharastra Vs. Uttam Vishnu reported in 2008 (2) SCC 646.
I. State as a model employer: Expected to show fairness inaction and conduct.
18. State of Jharkhand Vs. Hari Har Yadav reported in 2014 (2) SCC 114.
19. D.B.C.W.P. No.2027/1988- Prakash Chaturvedi Vs. State of Rajasthan.
20. D.B.C.W.P. No.5755/1990- Prakash Chaturvedi Vs. State of Rajasthan.
21. Manager, Government Press Vs. D.B. Bellifa reported in 1979 (1) SCC 477.
Per contra, learned Addl. Advocate General, Mr. P.R. Singh, vehemently argued that all these writ petitions deserve to be dismissed because with open eyes all the employees accepted the terms and conditions for their absorption under the Rules of 2010, for which they furnished undertaking under Clause 9 of Rule 11 of the Rules of 2010 and if with open eyes said undertaking is given before their absorption, then they cannot be permitted to take summersault to challenge the undertaking which was pre-
condition for their appointment/absorption under the Rules of 2010.
(24 of 68) [CW-7568/2012 A-w connected matters] Learned Addl. Advocate General vehemently submitted that Rules of 2010 were promulgated after taking conscious decision for the welfare of the employees working in the aided schools/institutions on sanctioned posts. As per Rules, the employees regularly appointed under the Non-Government Aided Educational Institution working against sanctioned/aided post, become eligible for appointment under the Rules of 2010. The scheme is completely voluntary and the eligible employees under the Rules of 2010 if desirous to opt the service under the Rules on the terms and conditions as provided under the Rules, were given option to apply under the Rules. It is also submitted that services under the Rules of 2010 is dying cadre for the employees working in the aided schools and it is specifically provided under the Rules of 2010 that post shall be automatically abolished as and when the post become vacant for any reason whatsoever, be it on account of death, superannuation, voluntary retirement or termination from the services, resignation of the employee etc. It is further provided that the employees under the Rules of 2010 shall be posted in the colleges/schools, as the case may be, in the rural area. The crux of the argument of learned Addl. Advocate General is that there was no complaint of the employees to opt for the service under the Rules of 2010, therefore, there is no force in the argument of the learned counsel for the petitioners that terms and conditions incorporated under Rule 5 are unconstitutional. The State Government was providing aid to educational institutions for imparting education, however, a decision has been taken by the (25 of 68) [CW-7568/2012 A-w connected matters] State Government in the interest of employees working in the aided institutions, then such decision cannot be questioned by the employees in illegal manner.
It is also submitted that whatever benefits were available to the employees prior to their absorption under the Rules of 2010, are intact, no such rights which remain with them in the aided institutions, have been taken away by the State Government.
More so, benefit is extended to them to become Government servant to protect their rights which were not ultimately available to them in the aided educational institution.
Learned Addl. Advocate General further submits that once option is given and undertaking is furnished by the employees before their absorption/appointment under the Rules of 2010, now they cannot raise any objection for the undertaking which is furnished by them with open eyes because there was no compulsion or pressure of the State Government so as to furnish the undertaking, which is provided under the Rules of 2010 for the purpose of absorption. It is thus prayed that the there is no force in the writ petitions, hence, the writ petitions may be dismissed.
Learned Additional Advocate General submits that doctrine of acquiescence and waiver is fully applicable and relied upon following case laws:
1. State of Punjab Vs. Harnam Singh reported in (1997) SCC (L&S) 622.
2. Indu Shekhar Singh Vs. Sate of U.P. reported in AIR 2006 SC 2432.
(26 of 68) [CW-7568/2012 A-w connected matters]
3. State of Bihar Vs. S.A. Hussain, reported in AIR (2002) SC 1258.
4. FCI & Anr. Vs. Sarat Chandra Rath & Ors. reported in AIR (1996) SC 2744.
5. Krishna Kumar Vs. Union of India & Ors. reported in 1991 SCC (L&S) 112.
6. Union of India Vs. K.G.Radhikrishnan Pancikar & Ors.
reported in 1998 SCC (L&S) 1281.
7. State of Rajasthan Vs. Amrit Lal Gandhi reported in AIR 1997 SC 782.
8. K. Thimnappa Vs. Chairman, Central Board reported in AIR 2001 SC 476.
9. Dr. Chakaradar Deewan Vs. State of Bihar reported in 1988 SC (L&S) 516.
10. Union of India Vs. Pushpa Rani & Anr. reported in (2008) 2 SCC (L&S) 851.
11. State of Maharshtra Vs. Purushottam reported in (1996) 2 SCC (L&S) 1225.
With respect to sub-Rule (iv) of Rule 5 of the Rules, learned Additional Advocate General invited our attention towards following judgments:
12. Lalit Mohan Dev Vs. Union of India reported in (1973) SCC (L&S) 272.
13. State of Rajasthan Vs. Fateh Chand Soni, reported in 1996 SCC (L&S) 340.
14. Union of India Vs. SS Ranade reported in 1995 SCC (L&S) 1033.
15. Union of India Vs. N.V. Apte & Ors. reported in AIR 1998 SC 2651.
In addition to above argument, it is submitted that State can create cadre as per its own requirement because there is no (27 of 68) [CW-7568/2012 A-w connected matters] restriction in create cadre. In support of his arguments, learned Addl. Advocate General invited our attention towards following judgments:
16. Air India Vs. Nargesh Meerza reported in AIR 1981 SC 1829.
17. NCTE & Anr. Vs. Shri Shyam Shiksha Prashikshan Sansthan & Anr. reported in 2011 (3) SCC 238 With regard to argument for violation of Article 14 of the Constitution of India, it is submitted that reasonable classification is permissible where the class or category of services are essentially different.
After hearing the counsel for the parties, it emerges from the facts that in all these writ petitions, the employees who were working in the aided institutions are challenging the validity of sub-Rule ii, iii, iv, v and ix of Rule of the Rules of 2010, and prayed for a direction to the State Government to grant them benefits, which are available to the Government servants under the RSR, 1951 and Rajasthan Civil Service (Pension) Rules, 1996 and promotion on various grounds. It has also been prayed that pension and other retiral benefits may be allowed with all consequential benefits and conditions mentioned in option form under the Rules of 2010 for not claiming promotion and other conditions, for which undertaking has been obtained, may be declared illegal and same may be quashed.
To adjudicate the controversy involved in all above writ petitions, we have perused the entire pleadings, so also, gone through the judgments cited by the learned counsel for the (28 of 68) [CW-7568/2012 A-w connected matters] parties. In our opinion, following questions arise for consideration to adjudicate the controversy: -
A. Whether after accepting the terms and conditions as laid down in the Rules of 2010 with upon eyes, the employees absorbed under the Rules of 2010 can challenge the terms and conditions even after furnishing undertaken by them?
B. Whether the employees absorbed under the Rules of 2010 are entitled for the benefits available under the Rajasthan Civil Service Rules, 1951 an d Rajasthan Civil Service (Pension) Rules, 1996 at par with Government servant after their absorption?
C. Whether any direction can be given for granting promotion avenues to the employees absorbed under the Rules of 2010?
D. Whether sub-rule (iii) of Rule (5) whereby restriction has been imposed that employees shall be posted in Colleges/Schools, as the case may be, in rural areas of equivalent post in Column No.2 of the Schedule, is unconstitutional?
Upon consideration of aforesaid issues, first of all it is required to be observed that the State Government while exercising powers conferred by the proviso to Article 309 of the Constitution of India promulgated the Rajasthan Voluntary Rural Education Service Rules, 2010, regulating the appointment and other service conditions of the persons appointed in the Rajasthan Voluntary Rural Education Service. As per Rules, there is definition of „employee‟ under Rule 2 (g) of the Rules of 2010, which reads as under: -
(29 of 68) [CW-7568/2012 A-w connected matters] "2 (g)- "Employee" means an employee working in a recognized non-government aided educational institution and who is working against aided and sanctioned post."
„Aid‟ is defined under Rule 2(a) of the Rules, which reads thus:
"2 (a)- "aid" means any aid granted to a recognized educational institution by the State Government."
A conscious decision was taken by the State of Rajasthan whereby the Rajasthan Voluntary Rural Education Service was created and for appointment Rules were framed, in which it is specifically provided that those employees working against the aided post in the aided recognized institution will be provided appointment according to procedure laid under Rule 4 of the Rules of 2010. Admittedly, all the employees who were absorbed under the Rules of 2010 submitted application for appointment in Form No.I annexed with the Rules. After submitting the application, appointments were made under the Rules of 2010 after scrutiny by the appointment authority. It is also worthwhile to mention that along with application form for appointment under the Rules of 2010, it was made necessary in the Rules that every employee should furnish undertaking as per Clause (xi) of Rule 5 of the Rules of 2010 in Form II annexed with the Rules. The Form No-II is as follows:
(30 of 68) [CW-7568/2012 A-w connected matters] "Form-II Undertaking under clause (xi) of rule 5 of the Rajasthan Voluntarily Rural Education Service Rules, 2010 I, ___________ (name in full), son/daughter/wife of _________ aged ___ (years) working on the post of ______ in the ___________ (Name of Non-Government Aided School/College), after having read and understood the provisions of the Rajasthan Voluntary Rural Education Service Rules, 2010, hereinafter referred to as the said rules, do hereby undertake and state as under:-
1. That the post on which I am presently working is a sanctioned and aided post.
2. That I desire to be appointed in the government service in accordance with the the terms and conditions mentioned in these rules I declare that I shall abide the conditions of the said rules.
3. That I agree to be posted in the Schools/Colleges in the rural areas of the State of Rajasthan as defined in the said rules.
4. That I shall not make any claim for any promotion till my superannuation.
5. That I agree to accept the salary which will be fixed in accordance with the provisions of clause (vi) of Rule 5 of the said rules.
6. That I shall not make any claim for payment of arrears on any account whatsoever, including arrears of salary, selection grade, ACP or CAS for the period prior to my joining in the Government service under the said rules.
7. That I shall not make any claim for carry forward of the balance of Privilege Leave or for payment of encashment of balance of Privilege Leave.
(31 of 68) [CW-7568/2012 A-w connected matters]
8. That I hereby opt to continue to be member of the Contributory Provident Fund / Opt for the Rajasthan Civil Service (Contributory Pension) Scheme, 2005 in accordance with the provisions of clause (ix) of Rule 5 of the said rules. (Cross out whichever is not applicable)
9. That I shall not make any claim for payment of any Contributory Provident Fund contribution if not deposited by the Non -Government Grant-in-aid Educational Institution for the period prior to the date of my joining in Government service.
10. That I shall not make any claim for counting the period of service in the Non-Government aided institution for payment of gratuity by the State Government.
D at e _ _ _ _ _ _ _ (Signature)
Place ______ (Name in Full _______)"
There is no doubt that aforesaid undertaking was furnished by absorbed employees with open eyes, however, now question arise whether any other option was available with them to remain service against the aided post, obviously "No", because for absorption under the Rules of 2010, it was mandatory for all the employees to furnish such undertaking so as to get benefits, otherwise they were to remain against non-aided post in the institution, in which there was no certainty of salary or being continue in the service. The State Government took a decision not to provide any finance assistant to the aided recognized institutions. It is also not in dispute that the State Government created dying cadre for the purpose of absorbing the employees working against the aided post to become Government servant (32 of 68) [CW-7568/2012 A-w connected matters] under the Rules framed under Article 309 of the Constitution of India. There is no doubt that after absorption, the employee become Government servant. In view of above fact it is obvious that the State Government owned liability of all the employees working against the aided post in the aided institution but compelled the employees of furnish undertaking in which right of promotion and other service benefits including pension and gratuity were taken away. Meaning thereby, a separate class of Government was created under the Rules of 2010. The State Government to regulate the service conditions of all the Departments were service rules under proviso to Article 309 of the Constitution of India and provide the procedure and qualification for recruitment, Act was promulgated to regular the working of the aided institution known as Rajasthan Non-Government Education Institution Act, 1989. Under the said Act, rules known as Rajasthan Non-Government Education Service Rules, 1993 (Rules of 1993) were framed in which procedure and qualification was provided for recruitment by the aided institution. As per Rules of 1993, all the aided educational institutions were required to make appointment as per Act of 1989 and Rules of 1993, in which there was direct control of the State Government because the State Government was providing fund by way of aid against the sanctioned aided post. Meaning thereby, all those employees who were appointed under the Rules of 2010 were appointed against the aided post in their respective aided institutions as per Rules of 1993 and their appointment was in accordance with Rules, but (33 of 68) [CW-7568/2012 A-w connected matters] they were employee of aided institution but there was direct financial control of the State Government.
As per reply filed by the State Government a decision was taken to create Rajasthan Voluntary Rural Education Rules, 2010, in which specific provision for appointment was incorporated whereby those persons regularly appointed in the Non-
Government Aided Institution, who were working against the sanctioned post and aided post on the date of commencement of Rules of 2010 were granted opportunity for appointment against the post of Government Institution in the rural area.
In view of above, it is obvious that there is no dispute that those employees who were working under the Rules of 2010 were regular employees of the aided institution appointed under the Rules against the sanctioned and aided post, for which State Government was providing funds by way of grant-in-aid. The learned Addl. Advocate General vehemently argued that all the writ-petitioners are not entitled to challenge the provisions of Rules of 2010 because they accepted the appointment with open eyes after furnishing undertaking to get benefits under the Rules.
However, learned counsel for the petitioners, Mr. M.S. Singhvi, submits that there is not strength in the grounds taken by the State Government because a decision was taken by the State Government to absorb all those employees who were working against the sanctioned aided post by way of appointment, but in fact that appointment cannot be treated to be a fresh appointment because all the employees who were working in the aided school, (34 of 68) [CW-7568/2012 A-w connected matters] were regular employees of the aided institutions and their appointment was not contrary to the Rules.
There was no option for regularly selection employees of the aided institutions to get appointment under the Rules of 2010 to not to furnish undertaking. The State Government has created a separate cadre knowingly well that all the employees of aided institutions were appointed according to Rules framed by it in the aided schools but only to snatch their right, undertaking was prescribed for appointment under the Rules. It has been done only to create a separate cadre, for which there is no rational and reasonable classification to treat them a separate class of Government employees. All Government employees cannot be treated separately as per Articles 14 and 15 of the Constitution of India. All the employees have equal right to receive benefit at par with other Government employees.
We have considered the argument of learned counsel for the petitioner with respect to discrimination. In view of judgment rendered by Hon‟ble Apex Court in the case of State of U.P. Vs. Dayanand Chakrawarty (supra), no discrimination can be made on the basis of source of recruitment. In the case of State of U.P. Vs. Dayanand Chakrawarty (supra), the Hon‟ble Apex Court held as under:
"3. The factual matrix of the case are as follows: a department, known as Public Health Engineering (hereinafter referred to as the 'PHED') was created during the British period for performing all the works related to public health engineering including sewerage (35 of 68) [CW-7568/2012 A-w connected matters] and water supply. Just before the independence, the State of United Province created a Local Self Government Engineering Department (hereinafter referred to as the 'LSGED') which was converted from PHED. All the engineering works of Local Self Government were entrusted to the said newly created department.
7. By a Notification dated 18th June, 1975 issued under Section 3 of the Uttar Pradesh Water Supply and Sewerage Act, 1975 (hereinafter referred to as the "Act, 1975), the State Government constituted Uttar Pradesh Jal Nigam (hereinafter referred to as the "Nigam").
Section 37(1) of the Act, 1975 provided that the services of the employees and engineers of the Local Self- Government Engineering Department (LSGED) will be transferred and merged into the newly created Nigam on the same terms and conditions, which were governing their services prior to such absorption, till the said service conditions are altered/changed by the Rules or Regulations framed in accordance with law.
9. Initially, in exercise of powers conferred under sub-section (1) and clause (c) of sub-section (2) of Section 97 of Act, 1975 and with the previous approval of the State Government, the Nigam made regulations for regulating the recruitment to the posts and the conditions of service of persons appointed to the Uttar Pradesh Jal Nigam Service of Engineers (Public Health Branch) known as the Uttar Pradesh Service of Engineers (Public Health Branch) Regulations, 1977.
10. Subsequently, in exercise of powers conferred under sub-section (1) and clause (c) of sub-section (2) of Section 97 of the Act, 1975, and with the previous approval of the State Government, Nigam made the "Uttar Pradesh Jal Nigam Services of Engineers (Public Health Branch) Regulations, 1978" (hereinafter referred (36 of 68) [CW-7568/2012 A-w connected matters] to as the "Regulations, 1978") for regulating the recruitment to the posts and the conditions of service of persons appointed to the Jal Nigam Engineers (Public Health Branch). The said Regulations, 1978 were made equally applicable to the employees transferred and merged from the erstwhile LSGED and the employees directly recruited by the Nigam and it came into force w.e.f. 27th April, 1978. Regulation 31 relates to pay, allowance, pension, leave and other conditions of service which reads as follows:
"31.- Except as provided in these regulations the pay, allowance, pension, leave, imposition of penalties and other conditions of service of the members of the service shall be regulated by rules, regulations or orders applicable generally to the Government Service in connection with the affairs of the state."
1 3. In th e meantime, after issuance of Government's order expressing its intention to amend clause (a) of Rule 56 by Notification dated 28th November, 2001, the Nigam by its letter dated 31st December, 2001 enquired from the State Government as to whether the benefit of enhancement in the age of superannuation from 58 years to 60 years would be applicable to the employees of the Nigam or not. In reply thereto just before the Amendment Rules, 2002, the special Secretary to the State Government from its Department of Local Self Government by his letter dated 22nd January, 2002, conveyed that the employees of the Nigam shall not be entitled to the enhancement of age of superannuation from 58 years to 60 years as the same would be applicable only to the State Government employees. On receipt of the said letter, on 11th July, 2002 the Nigam resolved that enhancement in the age of (37 of 68) [CW-7568/2012 A-w connected matters] superannuation from 58 years to 60 years would not be applicable to the employees of the Nigam.
33. As per decision of this Court in Prem Chand Somchand Shah (supra) even amongst persons similarly situated differential treatment would be permissible between one class and the other. In that event it is necessary that the differential treatment should be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and that differentia must have a rational relation to the object sought to be achieved by the statute. The appellants, the Nigam as well as the State of Uttar Pradesh failed to place on record the reasons for differential treatment which distinguishes employees of erstwhile LSGED and those who were appointed directly in the Nigam.
34. Further, as employees appointed from different source, after their appointment were treated alike for the purpose of superannuation under Regulation 31, subsequently solely on the basis of source of recruitment no discrimination can be made and differential treatment would not be permissible in the matter of condition of service, including age of superannuation, in absence of an intelligible differentia distinguishing them from each other. We therefore hold that the High Court by impugned judgment rightly declared Regulations, 2005 unconstitutional and ultra wires of Article 14 of the Constitution of India."
In the case of Frank Anthony Public School Vs. Union of India & Ors. (supra), the Hon‟ble Apex Court has made following adjudication, which reads as infra:
(38 of 68) [CW-7568/2012 A-w connected matters] "16. The excellence of the instruction provided by an institution would depend directly on the excellence of the teaching staff, and in turn, that would depend on the quality and the contentment of the teachers. Conditions of service pertaining to minimum qualifications of teachers, their salaries, allowances and other conditions of service which ensure security, contentment and decent living standards to teachers and which will consequently enable them to render better service to the institution and the pupils cannot surely be said to be violative of the fundamental right guaranteed by Article 30(1) of the Constitution- The management of a minority Educational institution cannot be permitted under the guise of the fundamental right guaranteed by Article 30(1) of the Constitution, to oppress or exploit its employees any more than any other private employee.
Oppression or exploitation of the teaching staff of an educational institution is bound to lead, inevitably, to discontent and deterioration of the standard of instruction imparted in the institution affecting adversely the object of making the institution an effective vehicle of education for the minority community or other persons who resort to it. The management of minority institution cannot complain of invasion of the fundamental right to administer the institution when it denies the members of its staff the opportunity to achieve the very object of Article 30(1) which is to make the institution an effective vehicle of education.
17. Apart from the learned Judges who constituted the Nine Judge Bench, other learned Judges have also indicated the same view. In the leading case of the Kerala Education Bill, the Constitution Bench observed that, as then advised, they were prepared to treat the clauses which were designed to give protection and security to the ill paid teachers who were engaged in (39 of 68) [CW-7568/2012 A-w connected matters] rendering service to the nation as permissible regulations. The observations were no doubt made in connection with the grant of ai d to educational institutions but that cannot make any difference since, aid, as we have seen, cannot be made conditional on the surrender of the right guaranteed by Article 30(1). In State of Kerala v. Mother Provincial, (supra), it was said that to a certain extent the State may regulate conditions of employment of teachers. In All Saints High School. v. Government of Andhra Pradesh, Chandrachud, C.J., expressly stated that for the maintenance of educational standards of an institution it was necessary to ensure that it was competently staffed and therefore, conditions of service prescribing minimum qualifications for the staff, their pay-scales, their entitlement other benefits of-service and the safeguards which must be observed before they were removed or dismissed from service or their services terminated were permissible measures of a regulatory character. Kailasam, J. expressed the same view in almost identical language. We, therefore, hold that Section 10 of the Delhi Education Act which requires that the scales of pay and allowances, medical facilities, pension, gratuity, provident fund and other prescribed benefits of the employees of a recognised private school shall not be less than those of the employees of the corresponding status in schools run by the appropriate authority and which further prescribes the procedure for enforcement of the requirement is a permissible regulation aimed at attracting competent staff and consequently at the excellence of th e educational institution. It is a permissible regulation which in no way 'detracts from the fundamental right guaranteed by Article 30(1), to the minority institutions to administer their educational institutions. Therefore, to the extent that Section 12 (40 of 68) [CW-7568/2012 A-w connected matters] makes Section 10 inapplicable to unaided minority institutions, it is clearly discriminatory.
1 8. Section 8 (1 ) merely empowers the Administrator to make rules regulating the minimum qualifications for recruitment, and the conditions of service of recognised private schools. Section 8(1) is innocuous and in fact Section 13 which applies to unaided minority schools is almost on the same lines as Section 8(1). The objection of the respondents is really to Section 8(2), 8(3), 8(4) and 8(5) whose effect is (1) to require the prior approval of the Director for the dismissal, removal, reduction in rank or other termination of service of an employee of a recognised private school, (2) to give a right of appeal to a Tribunal consisting of a single member who shall be a District Judge or who has held an equivalent judicial office, (3) to require prior approval of the Director if it is proposed to suspend an employee unless immediate suspension is necessary by reason of the gross misconduct of the employee in which case the suspension shall remain in force for not more than 15 days unless approval of the Director is obtained in the mean while. In the Nine Judge Bench case Ray, C.J. and Palekar, J. took the view that Section 51A of the Gujarat Act which provided that no member of the staff of an affiliated college shall be dismissed, removed or reduced in rank except with the approval of the Vice-Chancellor was violative of Article 30(1) as it conferred arbitrary power on the Vice- Chancellor to take away rights of the minority institutions. Similarly, Section 52A which contemplated reference of any dispute connected with conditions of service between the governing body and any member of the staff to an Arbitration Tribunal consisting of one member nominated by the governing body, one member nominated by the member of the staff and an umpire (41 of 68) [CW-7568/2012 A-w connected matters] appointed by the Vice Chancellor was also held to be violative of Article 30(1). It was said that this provision would introduce an area of litigious controversy in educational institutions and displace th e domestic jurisdiction of the management. Jaganmohan Reddy, J. and Alagiriswami, J., agreed with the conclusions of Ray, C.J. Khanna, J. thought that the blanket power given by Section 51A to the Vice-Chancellor to veto the disciplinary action and the power given by Section 52A to the Vice chancellor to nominate an umpire were both objectionable, though he observed that there was nothing objectionable in selecting the method of arbitration for settling major disputes. Mathew, J., also objected to the blanket power given to the Vice- Chancellor by Section 51A. He also thought that Section 52A was too wide and permitted needless interference in day-to-day affairs of the institution by providing for arbitration in petty disputes also. Keeping in mind the views of the several learned Judges, it becomes clear that Section 8(2) must be held to be objectionable. Section 8(3) provides for an appeal to the Tribunal constituted under Section 11, that is, a Tribunal consisting of a person who has held office as a District Judge or any equivalent judicial office. The appeal is not to any departmental official but to a Tribunal manned by a person who has held office as a District Judge and who is required to exercise his powers not arbitrarily but in the same manner as a court of appeal under the Code of Civil Procedure. The right of appeal itself is confined to a limited class of cases, namely, those of dismissal, removal or reduction in rank and not to every dispute be- tween an employee and the management. The limited right of appeal, the character of the authority constituted to hear the appeal and the manner in which the appellate power is required to be exercised make the (42 of 68) [CW-7568/2012 A-w connected matters] provision for an appeal perfectly reasonable, in our view. The objection to the reference to an Arbitration Tribunal in the Nine Judge Bench case was to the wide power given to the Tribunal to entertain any manner of dispute and the provision for the appointment of umpire by the Vice-Chancellor. Those defects have been cured in the provisions before us. Similarly, the provision for an appeal to the Syndicate was considered objectionable in State of Kerala. v Mother Provincial, (supra), as it conferred the right on the university.
20. Thus, Sections 8(1), 8(3), 8(4) and 8(5) do not encroach upon any right of minorities to administer their educational institutions. Section 8(2), however, must, in view of the authorities, be held to interfere with such right and, therefore, inapplicable to minority institutions. Section 9 is again innocuous since Section 14 which applies to unaided minority schools is virtually on the same lines as Section 9. We have already considered Section 11 while dealing with Section 8(3). We must, therefore, hold that Section 12 which makes the provisions of Chapter IV inapplicable to unaided minority schools is discriminatory not only because it makes Section 10 inapplicable to minority institutions, but also because it makes sections 8(1), 8(3), 8(4), 8(5), 9 and 11 inapplicable to unaided minority institutions. That the Parliament did not understand Sections 8 to 11 as offending the fundamental right guaranteed to the minorities under Article 30(1) is evident from the fact that Chapter IV applies to aided minority institutions and it cannot for a moment be suggested that surrender of the right under Article 30(1) is the price which the aided minority institutions have to pay to obtain aid from the Government."
(43 of 68) [CW-7568/2012 A-w connected matters] In the case of A.N. Sachdeva Vs. MDS University (supra) the adjudication was made by the Hon‟ble Apex Court, which reads as under: -
9. Per contra, the respondents would contend that the admissible benefits under Pension Scheme, 1997 have already been extended to the appellants. In view of the clarification dated 5.6.2002, the services of the employees who had been allocated/absorbed could have been counted, not the past services of the employees who had been directly appointed in M.D. University, appellants stood retired before 7.1.2002 as such they were not entitled for benefit of counting of past services.
The memorandum was not having retrospective effect. Even if, memorandum dated 7.1.2002 is not applicable, the appellants are not entitled for the benefit under the Pension Scheme, 1997. Other employees who have been given the benefit for counting their past services, namely, K.L. Pahuja, Yudhvir Singh Dahiya and Sunder Singh Dahiya had retired on 30.9.2003, 31.5.2002 and 31.10.2002 respectively whereas appellants stood retired before 7.1.2002. The decision in the case of Dr. Jahan Singh cannot be applied to the appellants as while dismissing the special leave petition, this Court has left the question of law open. The employer's share of CPF has to be transferred to the pension fund. It was a case of a new scheme as such its benefits could not have been extended retrospectively. The appellants cannot claim equality and complain of discrimination.
17. The appellants have placed reliance on a Constitution Bench decision of this Court in D.S. Nakara & Ors. v. Union of India [1983 (1) SCC 305] in which this Court has laid down that reasonable classification is permissible. The classification must be founded on an (44 of 68) [CW-7568/2012 A-w connected matters] intelligible differentia and that must have a rational relation to the object sought to be achieved. This Court has l ai d down that even though the scheme is prospective, the benefit of liberalised pension scheme should be applied equally to all and they are required to be paid the upward revision commencing from the specified date. No arrears would be payable. This Court has laid down thus: (SCC pp. 323, 330-31 & 334-35, paras 29, 42-43 & 48-49) "29. Summing up it can be said with confidence that pension is not only compensation for loyal service rendered in the past, but pension also has a broader significance, in that it is a measure of socio- economic justice which inheres economic security in the fall of life when physical and mental prowess is ebbing corresponding to aging process and, therefore, one is required to fall back on savings. One such saving in kind is when you give your best in the hey-
day of life to your employer, in days of invalidity, economic security by way of periodical payment is assured. The term has been judicially defined as a stated allowance or stipend made in consideration of past service or a surrender of rights or emoluments to one retired from service.
Thus the pension payable to a government employee is earned by rendering long and efficient service and therefore can be said to be a deferred portion of the compensation or for service rendered. In one sentence one can say that the most practical raison d'etre for pension is the inability to provide for oneself due to old age. One may live and avoid unemployment but not senility and penury if there is nothing to fall back upon.
42. If it appears to be undisputable, as it does to us that the pensioners for the purpose of pension benefits form a class, would its upward revision permit a homogeneous class to be divided by arbitrarily fixing an eligibility criteria unrelated to purpose of revision, and would such classification be founded on some rational principle? The classification has to be based, as is well settled, on some rational (45 of 68) [CW-7568/2012 A-w connected matters] principle and the rational principle must have nexus to the objects sought to be achieved. We have set out the objects underlying the payment of pension. If the State considered it necessary to liberalise the pension scheme, we find no rational principle behind it for granting these benefits only to those who retired subsequent to that date simultaneously denying the same to those who retired prior to that date. If the liberalisation was considered necessary for augmenting social security in old age to government servants then those who, retired earlier cannot be worst off than those who retire later. Therefore, this division which classified pensioners into two classes is not based on any rational principle and if the rational principle is the one of dividing pensioners with a view to giving something more to persons otherwise equally placed, it would be discriminatory. To illustrate, take two persons, one retired just a day prior and another a day just succeeding the specified date. Both were in the same pay bracket, the average emolument was the same and both had put in equal number of years of service. How does a fortuitous circumstance of retiring a day earlier or a day later will permit totally unequal treatment in the matter of pension? One retiring a day earlier will have to be subject to ceiling of Rs 8100 p.a. and average emolument to be worked out on 36 months' salary while the other will have a ceiling of Rs 12,000 p.a. and average emolument will be computed on the basis of last 10 months' average. The artificial division stares into face and is unrelated to any principle and whatever principle, if there be any, has absolutely no nexus to the objects sought to be achieved by liberalising the pension scheme. In fact this arbitrary division has not only no nexus to the liberalised pension scheme but it is counter- productive and runs counter to the whole gamut of pension scheme. The equal treatment guaranteed in Article 14 is wholly violated inasmuch as the pension rules being statutory in character, since the specified date, the rules accord differential and discriminatory treatment to equals in the matter of commutation of pension. A 48 hours' difference in matter of retirement (46 of 68) [CW-7568/2012 A-w connected matters] would have a traumatic effect. Division is thus both arbitrary and unprincipled.
Therefore, the classification does not stand the test of Article 14.
43. Further the classification is wholly arbitrary because we do not find a single acceptable or persuasive reason for this division. This arbitrary action violated the guarantee of Article 14. The next question is what is the way out?
48. It was very seriously contended, remove the event correlated to date and examine whether the scheme is workable.
We find no difficulty in implementing the scheme omitting the event happening after the specified date retaining the more humane formula for computation of pension. It would apply to all existing pensioners and future pensioners. In the case of existing pensioners, the pension will have to be recomputed by applying the rule of average emoluments as set out in Rule 34 and introducing the slab system and the amount worked out within the floor and the ceiling.
49. But we make it abundantly clear that arrears are not required to be made because to that extent the scheme is prospective. All pensioners whenever they retired would be covered by the liberalised pension scheme, because the scheme is a scheme for payment of pension to a pensioner governed by 1972 Rules. The date of retirement is irrelevant. But the revised scheme would be operative from the date mentioned in the scheme and would bring under its umbrella all existing pensioners and those who retired subsequent to that date. In case of pensioners who retired prior to the specified date, their pension would be computed afresh and would be payable in future commencing from the specified date. No arrears would be payable. And that would take care of the grievance of retrospectivity. In our opinion, it would make a marginal difference in the case of past pensioners because the emoluments are not revised.
The last revision of emoluments was as per the recommendation of the Third Pay Commission (Raghubar Dayal Commission). If the emoluments remain the same, the computation of average emoluments under (47 of 68) [CW-7568/2012 A-w connected matters] amended Rule 34 may raise the average emoluments, the period for averaging being reduced from last 36 months to last 10 months. The slab will provide slightly higher pension and if someone reaches the maximum the old lower ceiling will not deny him what is otherwise justly due on computation. The words "who were in service on March 31, 1979 and retiring from service on or after that date" excluding the date for commencement of revision are words of limitation introducing the mischief and are vulnerable as denying equality and introducing an arbitrary fortuitous circumstance can be severed without impairing the formula. Therefore, there is absolutely no difficulty in removing the arbitrary and discriminatory portion of the scheme and it can be easily severed".
30. Considering the principles enunciated under Articles 14 and 16 of the Constitution, and that the benefit is not an ex gratia payment but a payment in recognition of past service, in our opinion, discrimination could not have been made between those employees who have been absorbed/allocated are entitled to count their services as qualifying service for the purpose of pension and not those who have been appointed directly. Fact remains that all these employees have served in Punjab University/Kurukshetra University/MD. University without any break. M.D. University, prior to its establishment, was the regional centre of Kurukshetra University. Expectation had arisen to compute the period of service rendered in Punjab University/Kurukshetra University which cannot be unreasonably deprived of. Merely because a person has been appointed and others have been absorbed/allocated makes no difference as to the service rendered. Even otherwise, it is a case of upward revision of benefit and the classification which is sought to be created by the aforesaid method of not extending benefit to persons appointed directly and by (48 of 68) [CW-7568/2012 A-w connected matters] fixing cut-off date cannot be said to be intelligible one; same is discriminatory and thus, the appellants would be entitled for the benefit from the date decision has been taken on 24.12.2001 to compute the previous service rendered in Punjab University/Kurukshetra University as qualifying service. In other words, they would be entitled for the benefit prospectively from the date of issuance of memorandum dated 24.12.2001. The employees have expressed their willingness to deposit/adjustment of the employer's contribution of CPF as required in the memorandum dated 24.12.2001."
According to learned counsel for the petitioners, no discrimination can be practiced by the State Government so as to deny benefits to the employees under the Rules of 2010. We have considered the argument of learned Addl. Advocate General that the employees appointed under the Rules of 2010 cannot lay challenge to condition/s laid down in the Rules of 2010 because they furnished undertaking consciously, thus doctrine of acquiescence and waiver will apply.
In support of aforesaid contention, learned Additional Advocate General invited our attention towards judgment in the case of State of Punjab Vs. Harnam Singh (supra), in which following adjudication has been made by the Hon‟ble Apex Court in paragraphs 4, 5 and 6, which reads thus:
"4. The question, therefore, is : whether the view of the High Court that the previous service rendered by the respondents/erstwhile teachers in District Boards and Zilla Parishads would be counted for the purpose of seniority and other benefits, is correct in law? In view of the aforesaid clauses, it would be abundantly clear that (49 of 68) [CW-7568/2012 A-w connected matters] the Government has been given discretion to take any of the existing members into the service and if so taken, they shall be treated as fresh entrants into the Government service vis-a-vis the existing Government employees. It would be reasonable to conclude that the Government have taken over the schools run by the Boards and Zilla Parishad as Government schools with the aforesaid conditions to safeguard th e service conditions of the existing employees of the Government vis-a-vis the new entrants. Under those circumstances, the staff working in the former Zilla Parishad or Board taken over by the Government would be treated as fresh entrants into the Government service from the date of taking over. Therefore, the previous service rendered by them would not be counted for seniority etc. It would also be clear that unless there was a condition at the time of takeover to treat the previous service of the employees as part of service under the Government service, it would not be counted. In other words, it will be subject to the terms of take over.
5 . The controversy is no longer res integra. In similar circumstances, this Court in State of Punjab v. Dev Dutt Kaushal in paragraph 8 considered the question squarely and held that:
...the respondent was not entitled to any pension according to the service conditions obtaining in the private college. Had the college not been taken over by the Government and had he retired in the normal course, he would not have been entitled to any pension. He was entitled only to contributory provident fund. It is only under Government service that pension is provided for. But such pension is available only if any employee puts in ten years of service under the Government. Now the gift deed does not say that for the purpose of pension, the service rendered in the college while it was under the private management (50 of 68) [CW-7568/2012 A-w connected matters] shall also be counted. On the contrary, it says that the Government shall not be responsible and shall not accept any liability for the period prior to the taking over of the college and that all such liabilities shall be cleared by the managing committee of the college - which means that on the date of taking over of the college, the respondent was entitled to be paid the contributory provident fund by the then management of the college."
6 . In view of the above legal position, the parties are governed by the conditions specified in the deed of take over. As mentioned earlier, the conditions specified are that they are to be treated as fresh entrants. In other words, the previous service has been wiped out and, therefore, they are not entitled to take into account the previous service for any of the benefits including pension."
Similarly in the case of Indu Shekhar Singh Vs. Sate of U.P. (supra), the following adjudication was made by the Hon‟ble Apex Court in paragraphs 33 and 34, which reads as under:
"33. In Wing Commander J. Kumar v. Union of India and Ors. (1982) 2 SCC 116, this Court negatived the contention that any employee had acquired vested right to have his seniority reckoned with reference to the date of his permanent secondment and to all officers joining the organization on subsequent dates ranked only below him. The question, which fell therein for consideration was as to whether the principle enunciated in Rule 16 can be said to be unreasonable or arbitrary. The Court took into consideration the factual aspect of the matter and held that it will not be reasonable, just or fair to determine the seniority of the permanently (51 of 68) [CW-7568/2012 A-w connected matters] seconded service personnel merely on the basis of the date of their secondment to the Organization.
34. In that case also Officers from three services holding different ranks were inducted into the R & D Organisation. Unreasonable consequence that flowed from the acceptance of the arguments of the Appellant therein were considered opining:
... When due regard is had to all the aspects and circumstances, narrated above, it will be seen that the principle adopted under the impugned rule of reckoning seniority with reference to a date of attainment of the rank of substantive Major/equivalent strikes a reasonable mean as it ensures to all the service officers in the R & D the fixation of seniority in the integrated cadre giving full credit to the length of service put in by them in their respective parent services."
Upon consideration of entire scheme of the Rules of 2010 and the fact that service of all Government servants is regulation under the RSR, 1951, therefore, obviously no discrimination can be practiced by the State Government by way of creating separate class of employees under the Rules of 2010, in which certain conditions have been incorporated contrary to the RSR, 1951 and Rules of 1996. The framers of the Constitution specifically incorporated the Articles 14 and 21 of the Constitution of India, whereby a complete restriction is imposed upon discrimination on the basis of creed, sex and caste and right to equality has been guaranteed to the citizen of India, therefore, the contention of the learned Addl. Advocate General that doctrine of acquiescence and waiver will apply in this case as undertaking was furnished by the employees with open eyes, has no substance because every (52 of 68) [CW-7568/2012 A-w connected matters] citizen has a right to challenge the provisions, if they are in contravention of basic principles of fundamental right guaranteed by the Constitution of India.
In this view of the matter, the objection raised by the learned Addl. Advocate General with regard to doctrine of acquiescence and waiver, is hereby rejected because in the event of violation of fundamental right, a citizen always has right to challenge the same and it is duty of Courts to decide the question of fundamental rights on merit.
Adjudication of Issue No.B:
There is no doubt that all regular employees in the Government services are entitled to get benefits as per RSR, 1951 and Rules of 1996. Furthermore, the employees of statutory bodies are also entitled to get benefit as per RSR, 1951 and Rules of 1996 but said benefit has not been allowed to the employees appointed/absorbed under the Rules of 2010, even though after their appointment under the Rule sof 2010, they became Government servant. As per the Scheme of the Rules, they are Government servant in a dying cadre. There is no doubt that the State Government has a right to create dying cadre or prescribe certain terms and conditions for providing appointment in the Government service, but here in this case undisputedly those employees who were working against sanctioned/aided post after appointment as per the provisions of Act of 1989 and Rules of 1993 in the aided institutions and only those employees who were working against the sanctioned and aided posts were granted an (53 of 68) [CW-7568/2012 A-w connected matters] opportunity for appointment under the Rules of 2010. Meaning thereby, after appointment under the Rules of 2010, all those employees working against the sanctioned post in the aided institutions, became Government servant, but due to furnishing undertaking so as to get appointment under the Rules of 2010 upon condition to forego their claims with respect to benefits as are available to other Government servants under the RSR and Pension Rules.
Now the question arose as to whether separate class can be created by the Government so as to snatch/curtail the right of the employees on the basis of source of recruitment. To consider the aforesaid question, we have perused the entire pleadings of this case, so also, considered the contention raised by the learned counsel for the parties. In the case of State of U.P. Vs. Dayanand Chakrawarty (supra), the Hon‟ble Apex Court specifically held that looking to nature, duties and function of the employees, there is no reason to treat them differently in this case all those employees appointed under the Rules of 2010 were substantively working against the post sanctioned by the Government.
Therefore, we are of the view that the employees who were working from last many years after appointment as per Rules and discharging the same functions, cannot be discriminated by the State Government so as to deny the benefit of Rajasthan Civil Service Rules, 1951 and the Rules of 1996.
It is one of the important fact that number of vacancies were lying vacant in rural areas, upon which no appointments were (54 of 68) [CW-7568/2012 A-w connected matters] made by the State Government from last so many years as per prevailing rules due to financial constrained, therefore, a decision was taken by the State Government to fill in those vacancies by way of appointment under Rules of 2010 of those employees who were already working against sanctioned posts for which State Government was providing financial aid. Meaning thereby, a decision was taken by the State Government to utilize the funds which were utilized for the purpose of granting aid to private recognized aided institutions in rural area. Therefore, all those employees who working in the educational institution against the aided/sanctioned post, were granted option for appointment under the Rules of 2010 and those vacancies which were to be filled in by existing Rules, were filled in by way of appointment under the Rules of 2010.
There is no doubt that in the event of regular selection in those Departments, all the employees become entitle to get benefits as per RSR and Pension Rules 1996 but here in this case, a separate cadre is created to save financial assistance provided by the State Government for education purpose in the aided institutions of the schools of rural areas. Of course, the State Government has a right to frame rules, but at the same time, it is also incumbent upon the State Government not to act contrary to the provisions of the Constitution. It is the sovereign function of the State to provide education to the students. The young generation after acquiring qualification is waiting for their turn for appointment but no regular appointments are made by the State (55 of 68) [CW-7568/2012 A-w connected matters] Government in rural areas against the vacant posts and a device is operated to fill up those vacancies from the employees working against the aided post in the institutions. In our opinion, the State Government on the one hand did not make regular appointment in the Government schools of rural area, and on the other hand, employees who were working against the sanctioned/aided posts were shifted after promulgation of Rules of 2010 to the vacant posts in Government schools/institutions while taking such decision, therefore, it is the duty of the State Government to grant benefits without any discrimination to the employees of aided institutions after their appointment/absorption under the Rules of 2010 at par with other Government employees.
Upon consideration of entire Scheme under which, the Rules of 2010 were framed by the State Government, it is abundantly clear that the State Government owned the responsibility for absorption and appointment of those employees who were working against the sanctioned and aided posts in the private educational institutions, who were in receipt of grant-in-aid and enacted the Rules whereby the employees of the aided institutions were appointed against the posts, existing in the educational institutions of Government of Rajasthan in the rural areas.
Admittedly, the vacancies, upon which employees of aided institutions were appointed were in existence, therefore, option was given to the employees of aided institutions for appointment under the Rules of 2010, who were working against the sanctioned/aided posts. After appointment and absorption of those (56 of 68) [CW-7568/2012 A-w connected matters] employees of aided institutions, they became the Government servants, therefore, under Article 14 of the Constitution of India, it is the duty of the State Government to act without any discrimination so as to apply the provisions of RSR, and Pension Rules. The Hon‟ble Apex Court in number of its authoritative judgments categorically held that employees of the aided institutions are entitled for equal benefit of pay as provided to the Government employees, working on different posts in view of Article 39-D of the Constitution of India.
In the case of Frank Anthony Public School Vs. U.O.I (supra), the Hon‟ble Apex Court held that scales of pay and allowances, medical facilities, gratuity, provident fund and other prescribed benefits of the employees of recognized private schools shall not be less than those of employees of the corresponding status in the schools runs by appropriate authority, and which further prescribe the procedure for enforcement of requirement of the requirement is a permissible regulation aimed at attracting competent staff and consequently at the excellence of the educational institution.
In the case of D.S. Nakara Vs. U.O.I. (supra), the Hon‟ble Apex Court held that all the employees have equal right to receive benefit of pension scheme. The Hon‟ble Apex Court in paragraphs 24 to 30 of the judgment, held as infra: -
"24. A political society which has a goal of setting up of a welfare State, would introduce and has in fact introduced as a welfare measure wherein the retiral benefit is grounded on 'considerations of State obligation to its citizens who having rendered service during the (57 of 68) [CW-7568/2012 A-w connected matters] useful span of life must not be left to penury in their old age, but the evolving concept of social security is a later day development'. And this journey was over a rough terrain. To note only one stage in 1856 a Royal Commission was set up to consider whether any changes were necessary in the system established by the 1834 Act. The Report of the Commission is known as "Northcote-Trevelyan Report". The Report was pungent in its criticism when it says that: "in civil services comparable to lightness of work and the certainty of provision in case of retirement owing to bodily incapacity, furnish strong inducements to the parents and friends of sickly youths to endeavour to obtain for them employment in the service of the Government, and the extent to which th e public are consequently burdened; first with the salaries of officers who are obliged to absent themselves from their duties on account of ill health, and afterwards with their pensions when they retire on the same plea, would hardly be credited by those who have not had opportunities of observing the operation of the system" (see Gerald Rhodes, Public Sector Pensions, pp. 18-19).
25. This approach is utterly unfair because in modern times public services are manned by those who enter at a comparatively very young age, with selection through national competitive examination and ordinarily the best talent gets the opportunity.
26.Let us therefore examine what are the goals that pension scheme seeks to subserve? A pension scheme consistent with available resources must provide that the pensioner would be able to live: (i) free from want, with decency, independence and self-respect, and
(ii) at a standard equivalent at the pre-retirement level.
This approach may merit th e criticism that if a (58 of 68) [CW-7568/2012 A-w connected matters] developing country like India cannot provide an employee while rendering service a living wage, how can one be assured of it in retirement ? This can be aptly illustrated by a small illustration. A man with a broken arm asked his doctor whether he will be able to play the piano after the cast is removed. When assured that he will, the patient replied, 'that is funny, I could not before'. It appears that determining the minimum amount required for living decently is difficult, selecting the percentage representing the proper ratio between earnings and the retirement income is harder. But it is imperative to note that as self- sufficiency declines the need for his attendance or institutional care grows. Many are literally surviving now than in the past. We owe it to them and ourselves that they live, not merely exist. The philosophy prevailing in a given society at various stages of its development profoundly influences its social objectives. These objectives are in turn a determinant of a social policy. The law is one of the chief instruments whereby th e social policies ar e implemented and 'pension is paid according to rules which can be said to provide social security law by which it is meant those legal mechanisms primarily concerned to ensure the provision for the individual of a cash income adequate, when taken along with the benefits in kind provided by other social services (such as free medical aid) to ensure for him a culturally acceptable minimum standard of living when the normal means of doing so failed'. (see Social Security law by Prof. Harry Calvert, p. 1).
27. Viewed in the light of the present day notions pension is a term applied to periodic money payments to a person who retires at a certain age considered age of disability; payments usually continue for the rest of the natural life of the recipient. The reasons underlying the grant of pension vary from country to country and from (59 of 68) [CW-7568/2012 A-w connected matters] scheme to scheme. But broadly stated they are (i) as compensation to former members of the armed forces or their dependents for old age, disability, or death (usually from service causes), (ii) as old age retirement or disability benefits for civilian employees, and (iii) as social security payments for the aged, disabled, or deceased citizens made in accordance with the rules governing social service programmes of the country. Pensions under the first head are of great antiquity. Under the second head they have been in force in one form or another in some countries for over a century but those coming under the third head are relatively of recent origin, though they are of the greatest magnitude. There are other views about pensions such as charity, paternalism, deferred pay, rewards for service rendered, or as a means or promoting general welfare (see Encyclopedia Britannica, Vol. 17 p.575.) But these views have become otiose.
28. Pension to civil employees of the Government and the defence personnel as administered in India appear to be a compensation for service rendered in the past. However, as held in Douge v. Board of Education(1) a pension is closely akin to wages in that it consists of payment provided by an employer, is paid in consideration of past service and serves the purpose of helping the recipient meet the expenses of living. This appears to be the nearest to our approach to pension with the added qualification that it should ordinarily ensure freedom from undeserved want.
29. Summing-up it can be said with confidence that pension is not only compensation for loyal service rendered in the past, but pension also has a broader significance, in that it is a measure of socio-economic justice which inheres economic security in the fall of life (60 of 68) [CW-7568/2012 A-w connected matters] when physical and mental prowess is ebbing corresponding to aging process and therefore, one is required to fall back on savings. One such saving in kind is when you gave your best in the hey-day of life to your employer, in days of invalidity, economic security by way of periodical payment is assured. The term has been judicially defined as a stated allowance or stipend made in consideration of past service or a surrender of rights or emoluments to one retired from service. Thus the pension payable to a Government employee is earned by rendering long and efficient service and therefore can be said to be a deferred portion of the compensation or for service rendered. In one sentence one can say that the most practical raison d'etre for pension is the inability to provide for oneself due to old age. One may live and avoid unemployment but not senility and penury if there is nothing to fall back upon.
3 0. The discernible purpose thus underlying pension scheme or a statute introducing the pension scheme must inform interpretative process and accordingly it should receive a liberal construction and the courts may not so interpret such statute as to render them inane (see American Jurisprudence 2d. 881)."
The Hon‟ble Apex Court in the said case while considering the rights of pension under the Scheme promulgated by the welfare State, gave following adjudication while striking down the provisions whereby the pension was denied to the Government servants, who retired prior to 310.3.1979. In paragraph 65 of the said judgment, the Hon‟ble Apex Court held as infra:
"65. That is the end of the journey. With the expanding horizons of socio-economic justice, the (61 of 68) [CW-7568/2012 A-w connected matters] socialist Republic and welfare State which we endeavour to set up and largely influenced by the fact that the old men who retired when emoluments were comparatively low and are exposed to vagaries of continuously rising prices, the falling value of the rupee consequent upon inflationary inputs, we are satisfied that by introducing an arbitrary eligibility criteria: 'being in service and retiring subsequent to the specified date' for being eligible for the liberalised pension scheme and thereby dividing a homogeneous class, the classification being not based on any discernible rational principle and having been found wholly unrelated to the objects sought to be achieved by grant of liberalised pension and the eligibility criteria devised being thoroughly arbitrary, we are of the view that the eligibility for liberalised pension scheme of being in service on the specified date and retiring subsequent to that date' in impugned memoranda, Exhibits P-I and P-2, violates Art. 14 and is unconstitutional and is struck down. Both the memoranda shall be enforced and implemented as read down as under: In other words, in Exhibit P-1, the words:
"that in respect of the Government servants who were in service on the 31st March, 1979 and retiring from service on or after that date"
and in Exhibit P-2, the words:
"the new rates of pension are effective from 1st April 1979 and will be applicable to all service officers who became/become non- effective on or after that date."
are unconstitutional and are struck down with this specification that the date mentioned therein will be relevant as being one from which the liberalised pension scheme becomes operative to all pensioners governed by 1972 Rules irrespective of the date of retirement.
(62 of 68) [CW-7568/2012 A-w connected matters] Omitting the unconstitutional part it is declared that all pensioners governed by the 1972 Rules and Army Pension Regulations shall be entitled to pension as computed under the liberalised pension scheme from the specified date, irrespective of the date of retirement. Arrears of pension prior to the specified date as per fresh computation is not admissible. Let a writ to that effect be issued. But in the circumstances of the case, there will be no order as to costs.
Order accordingly."
In the present case also, sub-Rule (ix) of Rule 5 of the Rules of 2010 is incorporated to deny pension, which reads thus:
(ix) The persons who are appointed in the government service under these rules shall not be eligible for pension scheme. Contributory Provident Fund Contribution, if not deposited by the Non-Government Aided Educational Institution for the period prior to the date of their joining in the Government after appointment under these rules, shall not be paid by the State Government. They may either continue to be members of the Contributory Provident Fund or they may opt for the Rajasthan Civil Service (Contributory Pension) Rules, 2005. Employer's contribution towards Contributory Provident Fund shall be paid by the Government for the period they are in government service.
In the aforesaid provision, the State legislature has made an attempt to deny benefit of pension scheme and specifically provided that they may either continue to be member of contributory provident fund or they may opt for Rajasthan Civil Services (Contributory Pension) Rules, 2005 but no other rule/provision incorporated for those employees of aided institution, who were appointed prior to framing of Rules of 2005.
(63 of 68) [CW-7568/2012 A-w connected matters] Upon consideration of judgment of the Hon‟ble Apex Court in the case of D.S. Nakara Vs. U.O.I. (supra) coupled with Article 14 and 21 of the Constitution of India, we are of the firm opinion that on the one hand the State Government is owning the responsibility of the employees working against the sanctioned post in the aided institution and framed Rules of 2010 for their appointment and absorption in the Government services, and on the other hand, denied the benefit of pension to the employees who were appointed prior to promulgation of the Rajasthan Civil Service (Contributory Pension) Rules, 2005 to opt for pension as provided under the Rules of 1996, therefore, obviously it is a case of clear cut discrimination because under the Rules of 2010, the State Government has created a separate cadre amongst Government employees knowingly well that financial aid was provided to the aided institutions for the purpose of imparting education. Thus the provisions for denial of pension in the aforesaid sub-rule (ix) of Rule 5, quoted herein above, is hereby declared to be illegal and in contravention of the fundamental rights of the employees to the extent of denial of pension to the employees who were appointed prior to 2005. In view of above discussion, we are of the view that after appointment/absorption of the employees of the aided institutions under the Rules of 2010, the employees appointed in the aided educational institutions prior to promulgation of Rajasthan Civil Service (Contributory Pension) Rules, 2005, are very much entitled to get benefit under the Rajasthan Civil Service (Pension) Rules, 1996 (64 of 68) [CW-7568/2012 A-w connected matters] subject to depositing the provident fund which has been withdrawn by them from aided school with interest @ 6% p.a. Adjudication of Issue No.C:
Admittedly, the employees who were appointed against the aided/sanctioned posts in the institutions getting grant-in-aid, their services conditions were governed by the Act of 1989 and Rules of 1993. In the Rules of 1993, no promotion avenues were provided for the employees/teachers working in the aided schools, but after appointment/absorption under the Rules of 2010 they are claiming promotion avenues at par with Government servant.
Upon perusal of the Rules of 2010, it is revealed that specific provision was incorporated under sub-rule (iv) of Rule 5, wherein it is provided that employees appointed under these Rules shall not be entitled for promotion till they attain the age of superannuation, however, they shall be allowed benefits of Assured Career Progression/Career Advancement Scheme as allowed to other employees of the State Government. Further, it is provided that period from the date of their appointment on the sanctioned and aided post was counted for the purpose of grant of Assured Career Progression/Career Advancement Scheme.
Meaning thereby, the State Government has taken care of the period of past services rendered by the employees in the aided institutions when they were appointed against the sanctioned/aided post. To remove the financial stagnation, specific provision is incorporated in the Rules of 2010, but upon careful consideration of the entire scheme and Rules, no specific (65 of 68) [CW-7568/2012 A-w connected matters] directions can be given to the State Government for granting promotion to the employees appointed under the Rules of 2010 because they were not appointed under the statutory service rules framed by the State and proper care has been taken for removing the financial stagnation of the employees by way of granting them Assured Career Progression/Career Advancement Scheme.
Admittedly, in the Government department including Education Department, regular appointments are to be made as per existing Rules framed under the proviso to the Article 309 of the Constitution of India upon the posts analogous to the post of aided institutions, therefore, if the prayer of the employees appointed under the Rules of 2010 for providing promotion avenues is accepted, then obviously, these employees will claim seniority vis-à-vis regular employee who were appointed in accordance with the Rules framed under the proviso of Article 309 of the Constitution of India by regular procedure, therefore, no such directions as prayed for by the petitioners for promotion can be given to the State Government. However, the employees appointed under the Rules of 2010 will be at liberty to file representation before the State Government for their grievance of promotion avenues and it is expected from the State Government that their prayer will be considered objectively.
Adjudication of Issue No.D:
So far as prayer of the petitioners appointed and absorbed under the Rules of 2010 to struck down sub-Rule (iii) of Rule 5, whereby a restriction has been imposed that the employees shall (66 of 68) [CW-7568/2012 A-w connected matters] be posted only in the colleges/schools, as the case may be, in the rural areas on equivalent post specified in Column No.2 of the Schedule, we are of the opinion that purpose of enactment of these rules is to utilize the services of the employees working against the aided and sanctioned posts, in the rural areas where education is necessary, therefore, without accepting the prayer of the petitioner to struck down the sub-rule (iii) of Rule 5 of the Rules of 2010, it is made clear that although there is complete bar to post them in urban areas but still the State Government will be at liberty to utilize their services in the urban areas on account of any administrative exigency or other administrative reason.
In view of above discussion, all the writ petitions are partly allowed in following terms: -
A. The denial of pension to the employees of aided institutions appointed prior to promulgation of Rajasthan Civil Service (Contributory) Pension Rules, 2005 at par with Government servants as per Pension Rules of 1996, is unconstitutional, therefore, to that extent the aforesaid sub Rule (ix) of Rule 5 of the Rules of 2010 is declared unconstitutional because it is violative of Article 14 of the Constitution of India. We, accordingly, hold that all those employees who were appointed against the sanctioned/aided post prior to promulgation of the Rajasthan Civil Service (Contributory Pension), Rules 2005 in the aided institution, an d subsequently appointed/absorbed under the Rules of 2010, (67 of 68) [CW-7568/2012 A-w connected matters] shall be governed under th e Rajasthan Civil Service (Pension) Rules, 1996 and those employee shall deposit the provident fund, which is already drawn by them after their absorption/appointment under the Rules of 2010 from aided institution with interest @ 6% p.a. It is further made clear it that if the provident which is drawn by the employees of the aided institutions after their appointment under the Rules of 2010, will not be deposited by them with interest @ 6% within a period of two months from today, then they shall not be entitled to get benefits under the Pension Rules of 1996.
B. The prayer to struck down the sub-Rules (ii), (iii) & (v) of Rule 5 of the Rules of 2010, is hereby rejected because there is no illegality in these sub-rules of Rules of 2005. However, for the posting of the employees appointed under the Rules of 2010 in the urban areas, it is made clear that State Government will be at liberty to utilize the services of these employees in the urban area on account of any administrative exigency and reasons in future.
C. In the sub-rule (iv) of Rule 5 of the Rules of 2010 in lieu of promotion benefit of Assured Career Progression/Career Advancement Scheme as allowed to other employees of the State Government, therefore, no mandatory direction can be given for promotion avenues, however, petitioner society and other appointed employees will be at liberty to file (68 of 68) [CW-7568/2012 A-w connected matters] representation before the State Government so as to make provision for promotion separately for them and it is expected from the State that said prayer will be considered sympathetically.
(MANOJ KUMAR GARG)J. (GOPAL KRISHAN VYAS)J. DJ/-