Rajasthan High Court - Jaipur
Devendra Kumar Saraswat vs Raj State Mines Andmineral Ltd Andors on 19 September, 2018
Bench: Mohammad Rafiq, Goverdhan Bardhar
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Civil Writ Petition No.2229/2015
With
D.B. Civil Misc. Stay Application No.1977/2015
Devendra Kumar Saraswat, aged about 39 years, Son of late
Shri Ram Chandra Saraswat, resident of Ganpati Kripa, Near
Dhuri Bai Haveli, Choutina Kuan, Bikaner
----Petitioner
Versus
1. Rajasthan State Mines & Mineral Ltd. through its Chairman,
Khanij Bhawan, Tilak Marg, Jaipur
2. Managing Director, Rajasthan State Mines & Miuneral, 4-Meera
Marg, Udaipur
3. Executive Director (Admn.), Rajasthan State Mines & Mineral,
4-Meera Marg, Udaipur
----Respondents
For Petitioner(s) : Mr. Abhishek Sharma
For Respondent(s) : Mr. J.P. Sharma
HON'BLE MR. JUSTICE MOHAMMAD RAFIQ
HON'BLE MR. JUSTICE GOVERDHAN BARDHAR
Judgment
19/09/2018
//Reportable//
Per Hon'ble Mr. Justice Mohammad Rafiq
This writ petition has been filed by petitioner Devendra Kumar Saraswat seeking writ of mandamus declaring Rule 6 of the Rajasthan State Mines and Minerals Limited (Recruitment & Promotion of Executives) Rules, 1991 (for shot, 'the Rules of 1991') to be ultra vires the Constitution of India, with a direction to the respondent - Rajasthan State Mines & Minerals Limited (for short, 'the respondent Company'). Further prayer is made for a direction to the respondents to place the order rejecting the application of the petitioner for selection on the post of Assistant (2 of 8) [CW-2229/2015] Manager (P&A) (E-1 Category), if any passed, and after taking it on the record, the same may be quashed and set aside. Further direction is sought that the respondent Company be required to treat the petitioner eligible for the post of Assistant Manager (P&A) (E-1 Category) and it be further directed to allow the petitioner to participate in the selection process for the said post.
Briefly stated the facts of the case are that the respondent Company issued an advertisement for selection on the post of Assistant Manager (P&A) (E-1 Category) from in-service candidates. The petitioner, being in-service candidate, was eligible for that post. He applied for the same. The respondent Company rejected his candidature under the garb of Rule 6 of the Rules of 1991 stating that only the candidate of immediate lower post can apply for the post of Assistant Manager (P&A) (E-1 Category) and as the petitioner is working on the post of Senior Helper (Stagnation), which is the post of W-4 category, he was not eligible to apply for the said post. The respondent Company issued an advertisement on 24.02.2014 inviting applications for the post of Assistant Manager (E-1 Category) for different streams including Personal and Administration (P&A) category. In all six posts of P&A (E-1 Category) were advertised. The employees working on the immediate lower post in the respondent Company and possessing the requisite qualification were also eligible to apply for the said post through proper channel. The service conditions governing the post of Assistant Manager (E-1 Category) was under the Rules of 1991.
Mr. Abhishek Sharma, learned counsel for the petitioner, has submitted that there can be no justification for debarring the petitioner, who is an in-service candidates of the respondent (3 of 8) [CW-2229/2015] Company, to compete for appointment on the post of Assistant Manager. The learned counsel referred to Clause 7 of the advertisement, which, inter-alia, provides that those employed in Government/Semi-Govt./Public Sector Organization should apply through proper channel or submit NOC of the concerned department/organization at the time of interview, in the absence of which their candidature is liable to be cancelled. It is submitted that when the employees of the Government/Semi- Government/Public Sector Organization have been conferred with eligibility to apply against any of the posts regardless of the status and pay scale, which should be many stages higher than the post applied by them, there is no rational or intelligible differentia by restraining the eligibility for appointment by direct recruitment on the own employees of the respondent Company for the next higher post only. The aforesaid Rule does not qualify the test of reasonable classification as the in-service candidates of the respondent Company or of any Government/Semi- Government/Public Sector Organization, particularly constitute a single homogeneous group and there is no rational nexus with the object sought to be achieved by restricting eligibility of the own employees of the respondent Company to the next higher post and at the same time by providing opportunity to the employees of the Government/Semi-Government/Public Sector Organization of course through proper channel against any post.
The learned counsel for the petitioner during the course of argument submitted that so far as the selection process that was initiated pursuant to advertisement has since been finalized and the issue that survives against the petitioner and the issue involved is merely an academic issue.
(4 of 8) [CW-2229/2015] The learned counsel for the petitioner further argued that Rule 6 of the Rules of 1991 is discriminatory as it practices hostile discrimination against the petitioner inasmuch it is violative of Article 14 of the Constitution of India and the same is liable to be declared ultra vires the Constitution of India and be struck down. He has relied on the judgment of the Supreme Court in B. Manmad Reddy and Others Vs. Chandra Prakash Reddy and Others - (2010) 3 SCC 314.
Mr. J.P. Sharma, learned counsel for the respondents, opposed the writ petition and submitted that the petitioner was not eligible to compete against the post of Assistant Manager (P&A) (E-1 Category) as he, being the departmental candidate, was eligible to compete for the appointment against the immediate next post. In other words, those departmental candidates working on the immediate lower post, were only eligible and not otherwise. The petitioner, holding the post of Senior Helper (Stagnation) was in the category of W-3, was not eligible for the appointment on the post of Assistant Manager. He should have been held the post of W-9 category. The petitioner cannot compare himself with the candidates of other department as regards eligibility for appointment. In case of departmental candidates of the respondent Company, the upper age limit is 45 years, while the upper age limit for the candidates of other departments is 35 years. Merely applying for the post cannot become basis as eligibility. The departmental candidates fulfilling the qualification as prescribed for direct recruitment for the next higher post may also be considered for direct recruitment to the higher post upon suitable application along-with outside applicants in spite that such departmental candidates may not fulfill the (5 of 8) [CW-2229/2015] prescribed experience for promotion to the next higher post. Learned counsel denied that Rule 6 of the Rules of 1991 makes any hostile discrimination. Rule 6 of the Rules of 1991 has purposely made only such departmental candidates eligible for the next higher post holding the post just below one category so that such incumbent may be more suitable and efficient for the post in comparison to the candidates blow the next higher post.
The learned counsel for the respondents submitted that as per the relevant Rules, the upper age limit of in-service candidate of the department is 45 years and the petitioner has yet not attained that age and, therefore, if not for the selection process, he could apply for appointment against any post that may now be advertised if the unreasonable restriction placed in Rule 6 is done away with.
The learned counsel for the respondents has relied on the judgment of the Supreme Court in Banarsidas and Others Vs. State of Uttar Pradesh and Others - AIR 1956 SC 520 and that of the Allahabad High Court in Banarsi Das and Others Vs. State of Uttar Pradesh and Others - AIR 1955 All 33.
We have given our anxious consideration to rival submissions and perused the material on record.
In order to appreciate the import of the impugned Rule, we deem it appropriate to reproduce Rule 6 of the Rules of 1991, which reads as under:-
"6. Departmental candidates, fulfilling the qualification as prescribed for direct recruitment for the next higher post, may also be considered for direct recruitment to such higher post, upon suitable application, along-with outside applicants, notwithstanding that such departmental candidates may not fulfill the prescribed experience for promotion to the next higher post."
(6 of 8) [CW-2229/2015] The respondents have not treated the petitioner eligible as according to them, he was working on the post of Senior (Helper (Stagnation), which is W-3 category post, while the advertised post of Assistant Manager (E-1 category) is W-9 category and there was thus difference of six stages but then the respondent Company in Clause 7 of the advertisement have made the employees of the Government/Semi-Government/Public Sector Organization eligible for appointment with a condition that NOC of concerned department/organization shall have to be submitted at the time of interview. Clause 7 of the advertisement is reproduced, which reads as under:-
"7. Those employed in Government/Semi-Govt./Public Sector Organization should apply through proper channel or submit NOC of the concerned department/organization at the time of interview, in the absence of which their candidature is liable to be cancelled."
It would be significant to also take note of Rule 6 of the Rules of 1991, which is reproduced here as under:-
"Departmental candidates, fulfilling the qualification as prescribed for direct recruitment for the next higher post, may also be considered for direct recruitment to such higher post, upon suitable application, along-with outside applicants, notwithstanding that such departmental candidates may not fulfill the prescribed experience for promotion to the next higher post."
In so far as, therefore, the departmental employees are concerned, although they are eligible to apply for direct recruitment only against immediately next higher post to which they are otherwise eligible for promotion, but in the event of their being selected on the post of direct recruitment, they need not possess the experience prescribed for promotion on that post. The purpose for which the eligibility of the departmental employees (7 of 8) [CW-2229/2015] has been confined to only the next higher post is that this opportunity comes to them as a package that if anyone of them is talented enough he can secure appointment on next higher post earlier than expected by way of direct recruitmnet even without having the requisite experience for promotion. And this package also gives them the advantage in terms of upper age limit being 45 years over the open market candidates including those working with the Government/Semi-Government/Public Sector Organizations for whom the upper age limit is only 35 years. It is evident from the advertisement itself that the upper age limit of the departmental candidates is 45 years and for open market candidates and for employees of the Government/Semi- Government/Public Sector Organizations, it is 35 years. Had the respondents maintained the equal upper age limit for both the categories, perhaps the petitioner would be justified in making that complaint of discrimination based on unreasonable classification but here restricting the consideration of the departmental employees without insisting on experience otherwise required for promotion and relaxing the upper age limit by 10 more years, the respondents are seeking to create a separate class of those working with them with a rider that they shall be eligible for appointment against the quota of direct recruitment only against immediately next higher post. However, the consideration of the employees of the Government/Semi-Government/Public Sector Organizations has not been restricted to any particular post as they are treated at par with open market candidates and their consideration for direct recruitment would be based on the eligibility not only with regard to qualification they should possess (8 of 8) [CW-2229/2015] but also subject to their having not crossed the upper age limit of 35 years, of course, with the age relaxation available to the candidates belonging to Scheduled Castes/Scheduled Tribes/Other Backward Classes, upto five years, as per direction of the Government of Rajasthan. In our view, this is the reasonable classification, which has intelligible differentia and nexus with the object sought to be achieved.
In view of the above, the present writ petition fails and is hereby dismissed. This also disposes of stay application.
(GOVERDHAN BARDHAR),J (MOHAMMAD RAFIQ),J
//Jaiman//
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