Rajasthan High Court - Jaipur
Satish Kumar And Ors vs Raj Scheduled Castes Andors on 30 January, 2020
Bench: Sabina, Narendra Singh Dhaddha
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D. B. Civil Special Appeal (Writ) No. 4/2010
In
S. B. Civil Writ Petition No. 4904/1995
1. Satish Kumar, R.SC & ST F.D.C. Corpn Ltd., Near Kajri Hotel,
Udaipur.
2. Smt. Madhubala Jain, R.SC & ST F.D.C. Corpn Ltd., D.R.D.A.,
Near Collectorate, Ajmer.
3. Anil Kumar Gupta, R.SC & ST F.D.C. Corpn Ltd., D.R.D.A.,
Collectorate Campus, Bikaner.
4. Shrawan Lal Acharya, R.SC & ST F.D.C. Corpn Ltd., D.R.D.A.,
Collectorate Campus, Jodhpur.
5. Arun Kumar Sharma, R.SC & ST F.D.C. Corpn Ltd., D.R.D.A.,
Collectorate Campus, Jaipur.
..Appellants
Versus
1. Rajasthan Scheduled Castes & Scheduled Tribes Finance and
Development Co-operative Corporation Ltd., Nehru Sahkar
Bhawan, Bhawani Singh Marg, Jaipur-through its Managing
Director.
2. Sudhindra Gupta, S/o Shri Rameshwar Prasadji Gupta, aged
about 44 years, resident of 258, New Vidhyadhar Nagar, Jaipur.
3. Narendra Kumar Sharma, S/o Shri Kedar Nathji Sharma, aged
about 46 years, resident of 18, Van Vihar Colony, Jaipur.
4. Prahlad Soni, S/o Shri Chaganlal Soni, aged about 44 years,
resident of 2184, Dina Nathji Ki Gali, Chandpole Bazar, Jaipur.
5. Rajesh Arora, S/o Shri Tilak Raj Arora, aged about 44 years,
resident of 3/74, Malviya Nagar, Jaipur.
6. Narendra Singh, S/o Shri Sarnam Singh, aged about 43 years,
resident of 32, Sudama Nagar, Tonk Phatak, Jaipur.
..Respondents
7. Ajay Kumar Grover, R.SC & ST F.D.C. Corpn. Ltd., D.R.D.A., Collectorate Campus, Jaipur.
8. Satya Narain Joshi, Stenographer, Social Welfare Deptt., Secretariate, Jaipur.
.. Proforma Respondents
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For Appellants : Mr. R.N. Mathur, Senior Counsel
assisted by Mr. Abhishek Pareek.
For Private Respondents : Mr. N. K. Maloo, Senior Counsel
assisted by Mr. N. Singhal, Mr. Ajit
Maloo and Mr. Vishnu bohra
For Respondent No. 1 : Mr. Ganesh Meena, Additional
Advocate General
For Respondent No. 8 : Mr. Kamlakar Sharma, Senior
Counsel assisted by Mr. Molik Purohit.
HON'BLE MRS. JUSTICE SABINA
HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA Judgment 30/01/2020 Appellants have filed this appeal challenging the order dated 08.09.2009 passed by the learned Single Judge, whereby, writ petition filed by the private respondents No. 2 to 6 was allowed.
Learned Senior Counsel appearing on behalf of the appellants has submitted that the writ petition filed by the private respondents was liable to be dismissed, as the decision taken by Respondent No. 1-Rajasthan Scheduled Castes & Scheduled Tribes Finance and Development Co-operative Corporation Limited (hereinafter referred to as 'the Corporation') with regard to the promotions-in-question had not been challenged. Private respondents had participated in the process of promotion and could not challenge the same at a later stage. Private respondents had not qualified the examination undertaken by the Rajasthan Public Service Commission. Hence, they were not eligible for promotion. Appellants were working as Junior Accountants since the year 1995 and at this stage could not be made to work as Lower Division Clerk. The pattern of recruitment was to be considered by the Corporation and the Corporation in its (Downloaded on 06/02/2020 at 09:07:44 PM) (3 of 9) [SAW-4/2010] wisdom had taken the necessary decision for filling up the posts of Junior Accountant.
Learned Senior Counsel appearing on behalf of private respondents has submitted that vide order dated 28.04.1995, applications were invited for posting the applicants to the posts of Junior Accountant. Order dated 28.04.1995 does not reflect that a proposal had been made for promotion of the candidates from clerical level to the posts of Junior Accountant. Impugned order of promotion dated 08.05.1995 had been passed without holding any written test or interview. The examination undertaken by the private respondents in the year 1983, 1990 and 1992 had been taken in consideration, although, the said examination had not been taken for the purpose of promotion process-in-question. Applications were submitted by the appellants on 28.03.1995 for their promotion as Junior Accountant, whereas, the applications for posting to the posts of Junior Accountant were invited on 28.04.1995. Criteria for promotion was laid down by the Corporation on 25.11.1995, much after the applications for posting to the posts of Junior Accountant were invited. Thus, the whole process was carried out to favour the appellants and to defeat the rights of the private respondents, who were senior to the appellants and were working on the posts of Lower Division Clerk and Upper Division Clerk. It was the stand of the Corporation also in Communication dated 28.05.1999 that the promotions vide order dated 08.05.1995 had not been made in accordance with the rules.
Learned Senior Counsel appearing on behalf of the private respondents has placed reliance on the judgment of the (Downloaded on 06/02/2020 at 09:07:44 PM) (4 of 9) [SAW-4/2010] Hon'ble Supreme Court in State of Bihar & Others Vs. Chandreshwar Pathak, (2014) 13 SCC 232, wherein it has been held as under:
"13. Accordingly, it has to be held that in the absence of any advertisement or selection process, the appointment of the respondent is not protected and could be validly terminated. The learned single Judge was justified in dismissing the writ petition while the Division Bench erred in interfering with the same."
Learned Senior Counsel has next placed reliance on the judgment of the Hon'ble Supreme Court in State of Bihar Vs. Upendra Narayan & Others, (2009) 5 SCC 65, wherein it has been held as under:
"25. The equality clause enshrined in Article 16 mandates that every appointment to public posts or office should be made by open advertisement so as to enable all eligible persons to compete for selection on merit-Umesh Kumar Nagpal v. State of Haryana [(1994) 4 SCC 138], UPSC v. Girish Jayanti Lal Vaghela [(2006) 2 SCC 482], State of Manipur v. Y. Token Singh [(2007) 5 SCC 65] and Municipal Corpn., Hyderabad v. P. Mary Manoranjani [(2008) 2 SCC 758]. Although, the Courts have carved out some exceptions to this rule, for example, compassionate appointment of the dependent of deceased employees, for the purpose of this case it is not necessary to elaborate that aspect.
26. In Girish Jayanti Lal Vaghela case, this Court, while reversing an order passed by the Central Administrative Tribunal which had directed the Union Public Service Commission to relax the age requirement in the respondent's case, elucidated the meaning of the expression "equality of opportunity for all citizens in matters relating to public employment" in the following words: (SCC p. 490, para 12) "12. Article 16 which finds place in Part III of the Constitution relating to fundamental rights provides that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. The main object of Article 16 is to create a constitutional right to equality of opportunity and employment in public offices. The words 'employment or appointment' cover not merely the (Downloaded on 06/02/2020 at 09:07:44 PM) (5 of 9) [SAW-4/2010] initial appointment but also other attributes of service like promotion and age of superannuation, etc. The appointment to any post under the State can only be made after a proper advertisement has been made inviting applications from eligible candidates and holding of selection by a body of experts or a specially constituted committee whose members are fair and impartial through a written examination or interview or some other rational criteria for judging the inter se merit of candidates who have applied in response to the advertisement made. A regular appointment to a post under the State or Union cannot be made without issuing advertisement in the prescribed manner which may in some cases include inviting applications from the employment exchange where eligible candidates get their names registered. Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under Article 16 of the Constitution."
27. For ensuring that equality of opportunity in matters relating to employment becomes a reality for all, Parliament enacted the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 (for short 'the 1959 Act'). Section 4 of that Act casts a duty on the employer in every establishment in public sector in the State or a part thereof to notify every vacancy to the employment exchange before filling up the same." Learned Senior Counsel has next placed reliance on the judgment of the Hon'ble Supreme Court in Tamil Nadu Electricity Board & Another Vs. Status Spinning Mills Limited and Another, (2008) 7 SCC 353, wherein it has been held as under:
"51. A distinction must be made between a policy decision and a statute. Whereas prima facie a policy decision may not have any retroactive operation, a statute may have. Only because it affects a past transaction the same, by itself, would not come in the way of the legislature in enacting an enactment or the executive Government to exercise its power of subordinate legislation."(Downloaded on 06/02/2020 at 09:07:44 PM)
(6 of 9) [SAW-4/2010] Learned Senior Counsel, in support of his arguments, has also placed reliance on the judgment of the Supreme Court in Babulal Yadav Vs. High Court of Rajasthan & Others, (1998) 6 SCC 621 and judgment of Single Bench of this Court at Principal Seat at Jodhpur in Mahesh Singh & Others Vs. The Rajasthan High Court Jodhpur & Another, 1994 (1) WLC (Raj.) 84.
Learned State counsel appearing on behalf of Respondent No. 1-Corporation has submitted that now the Corporation has framed its rules, i.e., the Rajasthan Scheduled Caste and Scheduled Tribes Finance and Development Co- operative Corporation Employees Service Rules, 2007 (hereinafter referred to as 'the Rules'). As per the said Rules, the post of Junior Accountant is to be 100% filled up by direct recruitment.
Challenge in the present case is with regard to the order dated 08.05.1995, whereby, the appellants, who were working as Lower Division Clerks were promoted to the post of Junior Accountant. There is no force in the argument raised by learned Senior Counsel appearing on behalf of the appellants that the private respondents could not challenge the promotion process, as they had themselves participated in the said process. Vide notice/order dated 28.04.1995, it was notified that applications be submitted for posting to the posts of Junior Accountant. Employees Union of the Corporation through its General Secretary submitted a representation dated 28.03.1995 (Annexure-4 attached to the writ petition) against the procedure adopted by the Corporation. It was pointed in the representation dated 28.03.1995 that the posts of Junior Accountant be filled up (Downloaded on 06/02/2020 at 09:07:44 PM) (7 of 9) [SAW-4/2010] after conducting written examination by allowing all employees of the Corporation, an opportunity to participate in the same. It was also submitted therein that there was no provision to appoint Junior Accountant from clerical staff. Earlier former Managing Director had promoted one LDC to the post of Junior Accountant and he was later reverted to the post of UDC (as by then he would have earned promotion on the said post). Learned Single Judge had, thus, rightly rejected the argument raised by learned Senior Counsel for the appellants that once the private respondents had participated in the process of promotion, they could not challenge the same, as the private respondents through Employees Union had already represented against the action liable to be taken by the Corporation for filling up the posts of Junior Accountant from Lower Division Clerks.
So far as letter/order dated 28.04.1995 (Annexure-1 attached to the writ petition) is concerned, it shows that the exercise of posting to the posts of Junior Accountant was to be undertaken and applications were invited in this regard. From the said letter, it cannot be said that the exercise undertaken by the Corporation was, in-fact, for promotion purposes. However, when the Corporation issued order dated 08.05.1995, the appellants, who were working as Lower Division Clerks, were shown to be promoted to the post of Junior Accountants. Approval had also been granted by the Chairman for posting Lower Division Clerks to the posts of Junior Accountant and not with regard to promotion of Lower Division Clerks to the posts of Junior Accountant.
Learned Single Judge rightly held that there was no justification for the Corporation to have adopted the criteria of (Downloaded on 06/02/2020 at 09:07:44 PM) (8 of 9) [SAW-4/2010] passing the recruitment examination held by Rajasthan Public Service Commission for different years and treating the candidates, who had passed the examination in the years 1983, 1990 and 1992, as eligible. So far as the post of Junior Accountant is concerned, it forms separate cadre/source of recruitment. In the Government organisations, posts of Junior Accountant are filled up 100% by way of direct recruitment. Now, even in terms of the Rules framed by the Corporation, posts of Junior Accountant are to be filled up 100% by way of direct recruitment. Hence, there was no justification in promoting the appellants/Lower Division Clerks to the posts of Junior Accountant, as the same forms a separate cadre.
Vide impugned order dated 08.05.1995, appellants, who were working as Lower Division Clerks, were promoted to the posts of Junior Accountant. Hence, it cannot be said that the appellants were taken up by the Corporation by way of direct recruitment. If that be so, then proper notice was liable to be issued to all the eligible candidates to apply for the posts of Junior Accountant.
Argument raised by learned Senior Counsel appearing on behalf of the appellants that the appellants have been working as Junior Accountants since May, 1995 and at this stage, it would not be proper to revert them, is without any basis. It has been noticed by the learned Single Judge that the order dated 08.05.1995 was stayed by this Court vide order dated 20.12.1995.
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(9 of 9) [SAW-4/2010] Thus, in the facts and circumstances of the present case, learned Single Judge had rightly allowed the writ petition filed by the private respondents.
So far as case of Respondent No. 8 is concerned, he did not accept his promotion/appointment to the post of Junior Accountant and admittedly, had never joined the said post. As far as joining of Respondent No. 8 as Stenographer on 31.05.1995 is concerned, the same is not under challenge in this appeal.
No ground for interference by this Court is made out. Dismissed.
(NARENDRA SINGH DHADDHA),J (SABINA),J
MANOJ NARWANI /25
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