Rajasthan High Court - Jodhpur
State Of Raj. & Ors vs Dr. Premlata Purohit & Ors on 23 January, 2017
Bench: Govind Mathur, G.R. Moolchandani
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Spl. Appl. Writ No. 387 / 2010
1. The State of Rajasthan, through the Secretary, Rural
Development and Panchayati Raj Department, Govt. of Rajasthan,
Jaipur.
2. The Director, Women and Children development Department,
Jaipur.
3. Zila Parishad Jodhpur through its Chief Executive Officer.
4. Zila Parishad Udaipur, through its Chief Executive Officer.
5. Zila Parishad Bhilwara, through its Chief Executive Officer.
----Appellants
Versus
1. Dr. Premlata Purohit wife of Shri Chandra Shekhar Vyas, aged
about 50 years, Resident of near Maha Prabvhu Ji Mandir, Ramdeo
Ji Ka Chowk, Nav Chokia, Jodhpur, at present working as Pracheta
in the office of Women and Children Development Department,
Bhopalgarh, District Jodhpur.
2. Smt. Nirmala Surana wife of Shri Narendra Surana, aged about
45 years, Resident of House No.18/163, Chopasani Housing
Board, Jodhpur, at present working as Pracheta in the office of
Women and Children Development Department, Shergarh, District
Jodhpur.
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3. Smt. Snehlata Jain wife of Shri Shanti Chand Jain, aged about
45 years, Resident of House NO.18/160, Chopasani Housing
Board, Jodhpur, at present working as Pracheta in the office of
Women and Child Development Department, Balesar, District
Jodhpur.
4. Smt. Kusum Purohit wife of Shri Ashok Kumar, aged about 47
years, Resident of House No.18/758, Chopasani Housing Board,
Jodhpur, at present working as Pracheta in the office of Women
and Child Development Department, Phalodi, District Jodhpur.
5. Smt. Sumitra Vashisth wife of Shri Brijlal Vashisth, aged about
46 years, Resident of Bhind Royal Tlkies, Behind Diggi Mohalla,
Beawar, at present working as Pracheta in the office of Women
and Child Development Department, Bilara, District Jodhpur.
6. Miss Munni Bhandari D/o Late Shri U.C.Bhandari, aged about 53
years, Resident of 495, Defense Colony Kamla Nehru Nagar, first
Pulia, Jodhpur, at present working as Pracheta in the office of
Women and Child Development Department, Osiyan, District
Jodhpur.
7. Smt. Rampyari Bhati wife of Shri Roop Singh Bhati, aged about
48 years, Resident of Behind Mahesh Hostel, Jagdamba Colony,
Jodhpur, at present working as Class-IV in the office of Project
Director, Women and Child Development Department, Jodhpur.
8. Miss Vimla Pareekh D/o Shri Ram Niwas Pareekh, aged about
53 years, Resident of Gehunli House, Bhilwara, at present working
as Pracheta in the office of Women and Child Development
Department, Ladpura, Panchayat Samiti Mandalgarh, District
Bhilwara.
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[SAW-387/2010]
9. Miss Nirmala Shrivastava D/o Shri Guru Naraian Shrivastava,
aged about 53 years, Resident of Swati Sadan, Saraswati Viha,
Adarsh Colony, Nimbahera Chittorgarh, at present working as
Pracheta in the office of Women and Child Development
Department, Gurla, Panchayat Samiti Suvana, District Bhilwara.
10. Smt. Saroj Parmar W/o Shri Lal Sukh Parasar, Resident of C/o
Mool Chand Tailor, Behind Madada Bagh, Bhopalganj, Bhilwara, at
present working as Pracheta in the office of Women and Child
Development Department, Paldi, Panchayat Samiti Asind, District
Bhilwara.
11. Smt. Madhubala Lodha W/o Shri Ashok Kataria, aged about 53
years, Resident of 150 Hiran Magri, Sector 8, Udaipur, at present
working as Pracheta in the office of Women and Child
Development Department, Gogunda, District Udaipur.
12. Smt. Manju Chobisa W/o Shri Gopal Chobisa, aged about 42
years, Resident of L-37, Sajjan nagar, A-Block, Near Water Tank,
New Chungi Tanka, Malla Talai, Udaipur, at present working as
Pracheta in the office of Women and Child Development
Department, Balk, Mawli, District Udaipur.
13. Smt. Manju Tiwari W/o Shri Dharni Dhar Tiwari, aged about 49
years, Resident of House No.72, Janta Marg, inside Suraj Pole,
Udaipur, at present working as Pracheta in the office of Women
and Child Development Department, Salumbar, District Udaipur.
14. Smt. Manorma Pareek W/o Ramakant Pareek, aged about 48
years, Resident of House No.5, Adarsh Nagar, Near Pankaj
Upbhokta Bhandar, Sector 4, Hiran Magri, Manva Kheda Road,
Udaipur, at present working as Pracheta in the office of Women
and Child Development Department, Bad Gaon, District Udaipur.
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15. Smt. Amba Devi Nagda W/o Shri Durga Shankar, aged about
52 years, Resident of C/o Pramod Vashisth, House No.6/11,
Govardhan Vilas, Udaipur, at present working as Pracheta in the
office of Women and Child Development Department, Bhindar,
District Udaipur.
16. Smt. Asha Upadhyay W/o Shri Ghanshyam, aged about 51
years, Resident of House No.208, Near Water Tank, Hiran Magri,
Sector 8, Udaipur, at present working as Pracheta in the office of
Women and Child Development Department, Girwa, District
Udaipur.
17. Miss Mohn Devi Choudhary D/o Shri Keru Ram Choudhary,
aged about 51 years, Resident of near Police Thana, Rajasthan
Telcom, Tehsil Choraya, Arnod, District Chittorgarh, at present
working as Pracheta in the office of Women and Child
Development Department, Dhariyawad, District Udaipur.
18. Shri Naraian Lal Bhoi S/o Shri Kanji Bhoi, aged about 45
years, Resident of House No.377, Floor Story of Doube Story,
Sector-9, Udaipur, at present working as Pracheta in the office of
Women and Children Development Department, Udaipur, District
Udaipur.
----Respondents
_____________________________________________________
For Appellant(s) : Mr. Prithvi Raj Singh, Additional Advocate
General, with Mr. Dinesh Kumar Ojha
For Respondent(s) : Mr. M.R. Singhvi, Senior Advocate, assisted
by Mr. Hukam Singh
_____________________________________________________
HON'BLE MR. JUSTICE GOVIND MATHUR
HON'BLE MR. JUSTICE G.R. MOOLCHANDANI (5 of 23) [SAW-387/2010] Judgment 23/01/2017 REPORTABLE By the judgment impugned dated 13.04.2010, learned Single Bench while accepting S.B. Civil Writ Petition No.2584/2005 directed the respondent-State (appellant herein) to treat the petitioners (respondents herein) as civil servants with entitlement to all service benefits as per the Rajasthan Service Rules, 1951 (hereinafter referred to as 'the Rules of 1951' and the Rajasthan Civil Services (Pension) Rules, 1996 (hereinafter referred to as 'the Rules of 1996').
Learned Single Bench, as per learned Additional Advocate General, failed to appreciate that the appointment of the petitioners, except petitioners Mrs. Rampyari Bhati and Mr. Narain Lal Bhoi, were made on the post of "Pracheta" on contractual basis for a specific term under a project, therefore, they could have not been treated as civil servants. While referring to Rule 2(iii)(b) of the Rules of 1951 and Rule 2(e) of the Rules of 1996, it is submitted that neither the Rajasthan Service Rules nor Pension Rules of 1996 are applicable to the petitioners. Reliance is also placed by learned Additional Advocate General upon a Division Bench judgment of this court in the Rajasthan Subordinate Employees' Union & Anr. Vs. State of Rajasthan & Anr. (D.B. Civil Writ Petition No.6600/1992) decided on 21.01.2013 at Jaipur to assert that the "Prachetas" working with the Women's Development Project cannot be treated as "civil servants".
(6 of 23) [SAW-387/2010] On the other hand, while opposing the appeal, the argument advanced by Mr. M.R. Singhvi, learned Senior Advocate, assisted by Mr. Hukam Singh, is that the appointments to the petitioners were given as per the provisions of the Rules framed under proviso to Article 309 of the Constitution of India, being in employment of State of Rajasthan from more than 2 decades and further presently being already absorbed in the service of the Panchayat Raj institutions and also in light of the judgment rendered by Hon'ble Supreme Court in State of West Bengal & Ors. Vs. Kaberi Khastagir & Ors. reported in (2009) 1 SCC (L&S) 566, the petitioners are nothing but civil servants, thus, learned Single Bench rightly accepted the petition for writ with a direction to extend all benefits available to civil servants under the Rules of 1951 and the Rules of 1996 to the petitioners also.
To understand the entire controversy, it shall be appropriate to narrate and discuss all necessary facts and the rules applicable.
The Rajasthan Civil Services (Special Selection and Special Conditions of Service of Project Directors, Project Officers and Other Officers in the Women's Development Project) Rules, 1984 :-
On 2nd October, 1975, the Government of India introduced Integrated Child Development Services (ICDS) as an Indian Government welfare programme to provide food, pre-school education and primary health care to children under 6 years of age and their mothers. The services under the project aforesaid are provided from Anganwadi Centers established mainly in rural (7 of 23) [SAW-387/2010] areas and staffed with frontline workers. The project also intends to combat gender inequality by providing girls the same resources as boys. The project was expanded subsequently to include the issue of women empowerment in it. The Government of India desired to have say of women in her day to day life and also to bring gender equality. As a matter of fact, the project was in extension to the fundamental rights, fundamental duties and directive principles enshrined in the Constitution of India. To execute different schemes under the project, a complete roadmap was provided by the Government of India, to be implemented through the State Governments. The Government of Rajasthan at its own also introduced the Rajasthan Women's Development Project. The State Government under the project is empowered to have necessary staffing for effective implementation of the schemes in accordance with the objects of the project.
In exercise of the powers conferred under proviso to Article 309 of the Constitution of India, the Governor framed rules laying down the procedure for special selection and special conditions of service for appointment as Project Directors, Project Officers and other officers in the Rajasthan Women's Development Project in the name of the Rajasthan Civil Services (Special Selection and Special Conditions of Service of Project Directors, Project Officers and Other Officers in the Women's Development Project) Rules, 1984 (hereinafter referred to as 'the Rules of 1984'). The Rules of 1984 came into force on 27.09.1984 and are having application to the appointments of Project Directors, Project Officers, Prachetas and (8 of 23) [SAW-387/2010] such other categories of officers as the Government may by order decide in the Women's Development Project of the Government of Rajasthan. As per clause (a) of Rule 3 of the Rules of 1984 "appointing authority" for the post of Project Director and Project Officers is Government of Rajasthan and for the post of Prachetas is the Project Director. As per Rule 5, the Women's Development Project of the Department of Rural Development and Panchayat Raj is having 3 categories of posts as specified in Schedule I appended with the rules to be held on tenure basis or as the Government may sanction from time to time. The posts under the project are solely meant for development of women and therefore, are required to be held by women only. As per Rule 6, the appointing authority is required to determine yearwise vacancies for the posts under the Rules of 1984 on 1 st of April of each year. Rule 7 of the Rules of 1984 pertains to tenure for the posts under the project and that reads as follows :-
"7. Tenure .- (i) The posts of Project Directors, Project Officers and Prachetas shall be held by an Officer for a tenure ordinarily not exceeding three years which may be extended by the Appointing Authority for further terms not exceeding three years at a time.
(ii) All appointment of Project Directors, Project Officers and Prachetas shall in the first instance be on temporary transfer or deputation from parent department/Service or institution or on contract as the case may be and, for a period of one year which may be extended till the period indicated by Appointing Authority from time to time subject to the condition that such extension shall not be beyond the date of her retirement according to the condition of service of her (9 of 23) [SAW-387/2010] parent department service or institution. The officer so appointed shall have right of reversion or lien in their respective parent department, service or cadres or other bodies from which service they are drawn under rule 8 but on such reversion they shall be governed by conditions of service of the department service or institution but so far as Services under the Government of Rajasthan are concerned, service rendered under these Rule shall count for all purposes except that they shall not have any right to protection or pay or scale or status held by them as Project Director/ Project Officer or Pracheta, unless otherwise provided in these Rules:
Provided that a Project Director, Project Officer or Pracheta may on her violation, resign or seek retirement according to the conditions of service of her parent department service or institution will neither confer upon her any right than these ordinarily admissible under the Rajasthan Service Rule 1951." As per Rule 8 of the Rules of 1984, selection for appointment to the post of Project Director and Officers in the project are to be made on recommendations of the committee referred in Rule 10 from amongst the persons mentioned in column 3 of Schedule I, who hold lien or who have been appointed on regular basis otherwise than in adhoc, stop gap or fortuitous basis on a post either under the Government or the Government of India, Universities (including Deemed Universities) or Government controlled or a Government aided or recognized teaching Schools, College or Research Institute or Public Sector Undertaking or any other State Government or Government Controlled body. As a consequence to subsequent amendments, (10 of 23) [SAW-387/2010] the persons working with NGOs too were declared entitled to be employed under the Rules of 1984.
Rule 9 pertains to eligibility for selection and Rule 10 relates to composition of selection committee. The criteria for selection as per Rule 11 of the Rules of 1984 is an interview with regard to aptitude for work in rural development, particularly for programmes of women's development, personality and character, tact, intelligence, energy, integrity, previous record or service and past experience.
Rule 12 provides a complete procedure for selection and appointments are required to be given as per Rule 13 from amongst the persons included in the list prepared under sub-rule
(ii) of Rule 12 by the appointing authority in order of merit.
Rule 14 empowers the appointing authority to make appointments on urgent temporary basis pending regular selection process.
Rule 15 of the Rules of 1984 pertains to pay and other conditions applicable for the Project Directors, Project Officers including Prachetas and that is as follows :-
"15. Pay and other conditions - (i) The scale of pay and initial pay admissible to Project Directors, Project Officers, Prachetas and other officers who may be included in these Rules and other conditions relating to increase in pay on promotion in the parent cadre and retirement benefits shall be as laid down in Schedule-II and shall be such as may be sanctioned by the Government with the concurrence of the Finance Department from time to time.
(11 of 23) [SAW-387/2010]
(ii) The conditions of contract and deputation of Office other than Rajasthan State Government servants shall be such as may be agreed by the Government and the parent authority or the officer concerned.
(iii) Except as provided in these Rules, other Service conditions of the Project Directors, Project Officers and Prachetas shall be regulated by other Rules applicable to officers of the State Government made by the appropriate authority under the proviso to Article 309 of the Constitution of India and for the time being in force."
Schedule I appended with the Rules of 1984 prescribes scales of pay and other eligibility to be considered for appointment on the posts prescribed.
Schedule II mentions about the conditions of pay, promotions and other conditions of service. As per clause 3 of Schedule II, if the person concerned retires while holding the post of Project Director, Project Officer and Pracheta, her emoluments for the purpose of calculating pension, gratuity under Rule 250 (C) of the Rules of 1951, shall be taken at what she would have been entitled to, had she not been appointed as Project Director, Project Officer and Pracheta.
Worthwhile to notice here that Rule 2(b) of the Rules of 1951 and Rule 2(e) of the Rules of 1996, as per learned Additional Advocate General, excludes application of the Rules aforesaid qua the petitioners, thus, it would be appropriate to quote the same, which are as follows :-
(12 of 23) [SAW-387/2010] Rule 2(iii)(b) of the Rules of 1951 :
(b) Notwithstanding anything contained in sub clause
(a) these rules shall also apply to the persons initially appointed to such posts or services on the basis of contracts entered into but subsequently appointed in regular manner in respect of counting of contract service as qualifying service for the purpose of pension.
The contracts service followed by regular appointment shall count as qualifying service for the purpose of pension if no contribution towards Contributory Provident Fund for the period of contract service has been paid by the Government. In cases where contribution towards Contributory Provident Fund has been paid by the Government, contract service would count for the purpose of pension if the concerned employee deposits in the general revenues of the State, the entire amount of contributions paid by the Government together with interest thereon @7% per annum for the period from the date of payment of contribution to the date of deposit in the general revenues of the State.
Rule 2(e) of the Rules of 1996 :
2. Application : Save as otherwise provided in these rules, these rules shall apply to Government servants appointed to Civil services and posts in connection with the affairs of the Rajasthan State which are borne on pensionable establishments, but shall not apply to -
(a) ......
(b) ......
(c) ......
(d) ......
(e) persons employed on contract except when the contract provides otherwise;
(13 of 23) [SAW-387/2010] Facts pertaining to the petitioners :- The petitioners, except Mrs. Rampyari Bhati and Mr. Narain Lal Bhoi, were employed as "Pracheta" in between the year 1985 and 1990 after qualifying the process of selection as per the Rules of 1984. From the date of initial appointment, these petitioners are getting regular pay scale as prescribed and that was also revised from time to time with other Government servants of the State of Rajasthan. In light of the Rules of 1984, the petitioners, who are holding the post of Pracheta, also availed leaves and other benefits as per the provisions of the Rules of 1951. Petitioners Mrs. Rampyari Bhati and Mr. Narain Lal Bhoi are holding the post of Class 4 employee and they too are getting regular pay scales from the date of their initial appointment. The appointments to these petitioners were also given in the year 1985.. These petitioners also availed regular pay scales and other service benefits as per the provisions of the Rules of 1951. Pertinent to mention that the Government of Rajasthan under an order dated 22.07.1986 clarified that the employees of the Women's Development Project shall be entitled to have benefits at par with other employees relating to Contributory Provident Fund or the State Insurance. Accordingly, necessary deductions in this regard were made from their pay. Not only this, the Government of Rajasthan allowed them Selection Grades on completion of 9, 18 and 27 years of service.
By the 73rd Constitutional Amendment, Part 9 containing Articles 243, 243-A and 243-O was inserted in the Constitution of India with an object to strengthen democracy and (14 of 23) [SAW-387/2010] democratic values at grassroot level. By insertion of Part 9, constitutional status was given to Panchayat Raj institutions. As per Article 243-G, subject to the provisions of the Constitution, the legislature of a State may by law endow the Panchayats with such powers and authority as may be necessary to enable them to function as institutions of self-government and such law may contain provisions for devolution of powers and responsibilities upon Panchayats at the appropriate level with respect to preparation of plans for economic development and social justice and also for implementation of schemes for economic development and social justice as may be entruested in relation to the matters listed in 11 th Schedule. Entry No.25 of the 11th Schedule pertains to women and child development. The Government of Rajasthan in light of the constitutional provisions referred above handed over the entire Women's Development Project to the Panchayat Raj Institutions under an order dated 30.06.2003. Necessary details with regard to execution of different schemes for women and child development were also notified by the Panchayat Raj Department of the Government of Rajasthan under an order dated 19.07.2003. As per the order aforesaid, the powers with regard to have disciplinary action against the Prachetas and other officers is given to the officers of the Panchayat Raj Department with all other administrative authorities including drawing and disbursing budget.
As already stated, the appointments under the Rules of 1984 are tenure appointments, but all the petitioners, though were employed on tenure basis, are allowed to continue in service (15 of 23) [SAW-387/2010] without any break till today or till the date of their retirement on attaining the age of superannuation.
The Grievance of the petitioners and the judgment impugned :- The petitioners after serving with Women's Development Project for several years demanded pension and post retiral benefits from the Government of Rajasthan, but the same were not allowed by treating them as the persons working against tenure posts and by not treating them as civil servants. Aggrieved by the same, they approached writ Bench of this court to have a direction for the respondent-State to apply the Rules of 1996 for the grant of pension, gratuity, leave encashment, commutation of pension etc. Learned Single Bench after considering the claim of the petitioners held as under :-
"In the above judgment in Uma Devi's case, the apex Court gave clear directions to the State Government for regularization of the employees working on daily wages, casual and temporary basis, then, the case of the petitioners is on better footing because they were appointed under the Rules of 1984 promulgated while exercising power conferred under proviso to Article 309 of the Constitution of India, but their appointment was tenure based and unlimited and to come to end upon attaining the age of superannuation. Relevant rules are the Rules of 1984 and we are now running in the year 2010; meaning thereby, for last 26 years Women and Child Development Project is going on and, obviously, till the community of mankind survives need of the Project shall persist. Therefore, merely by terming a State function as "Project" it does not divest the civil function executed by it of permanent status having (16 of 23) [SAW-387/2010] gained by it through continuity warranting prolonged services of employees recruited and appointed under the rules framed under Article 309 of the Constitution of India. I am, therefore, of the opinion that if appointment in the service is made under the rules, then, even though initially appointed on tenure basis, prolonged continuity in service endows permanent status to the services of the petitioners and petitioners cannot be treated as temporary or on deputation nor can they be denied the service benefits including pension, gratuity and other retiral benefits upon attaining the age of superannuation. From the judgment of the Hon'ble Supreme Court rendered in the case of State of West Bengal Vs. Kaberi Khastagir & Others, (2009) 1 SCC (L & S) 566, it is clear that though the Central Government funded the project but, at the same time, implementation of the project was left to the State Government, therefore, the State Government while performing the duty cast upon it framed the Rules of 1984 in exercise of power conferred under Article 309 of the Constitution of India in which complete process for appointment was provided. As per Article 309 of the Constitution of India, rules can be framed for regulating the service conditions of the State Government employees. Admittedly, Rules of 1984 were promulgated while exercising power conferred by proviso to Article 309 of the Constitution. Language of Article 309 of the Constitution of India is as follows :
"309.Recruitment and conditions of service of persons serving the Union or a State.- Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons (17 of 23) [SAW-387/2010] appointed, to public services and posts in connection with the affairs of the Union or of any State :
Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act."
In the case of State of West Bengal & Others Vs. Kaberi Khastagir & Others (supra), Hon'ble apex Court has decided the controversy with regard to status of the employees who were appointed under the rules framed under proviso to Article 309 of the Constitution of India to implement the scheme and project framed and funded by the Central Government.
In this view of the matter, once liberty has been given by the Central Government after framing scheme for women and child development to the State Government for making recruitment for implementation of the project and while performing the duty cast in the scheme the State Government has chosen to frame rules in exercise of power conferred under proviso to Article 309 of the Constitution of India, then, obviously the employees appointed under the Rules of 1984 are (18 of 23) [SAW-387/2010] civil servants and they are required to be treated at par with the regular government servants. Therefore, such employees are very much entitled to get all the service benefits like regular government servants." Being aggrieved by the findings arrived, this appeal is preferred. As already stated, the case of the appellant-State is that the petitioners being employed on tenure basis and also in light of Rule 2(iii)(b) of the Rules of 1951 and Rule 2(e) of the Rules of 1996 are not entitled for the relief granted by learned Single Bench. To substantiate the contention, learned Additional Advocate General placed reliance upon the judgment rendered by Division Bench of this court at Jaipur in Rajasthan Subordinate Employees' Union & Anr. Vs. State of Rajasthan & Anr. (supra). Learned Additional Advocate General also placed reliance upon other Division Bench judgment of this court in Smt. Pushpa Lodha Vs. State & Ors. (D.B. Civil Special Appeal (Writ) No.1220/2000) decided on 09.04.2010.
Heard learned counsel. At the threshold, we would like to state that the judgment rendered in the case of Rajasthan Subordinate Employees' Union (supra) is having no application in the present controversy. The petitioners in that matter were employed on contractual basis, that too on recommendation made by the placement agencies. Their appointments were not made under the Rules, hence, the court held that they can't be treated as civil servant.
The law laid down in the case of Pushpa Lodha (supra) too is having no application in the instant matter as that was the (19 of 23) [SAW-387/2010] case pertaining to termination of the employees immediately after expiry of their second tenure of service. Those were the persons who were discontinued from service on completion of maximum 6 years of service in the year 1992. In the case in hand, the petitioners are the persons who were employed with the appellant-respondent in between the year 1985 to 1990 and are either yet serving the appellant or have retired from service on attaining the age of superannuation as per the Rules of 1951/Rules of 1996. The issue involved, thus, is required to be examined at its own merits.
The respondent-petitioners, except the respondent No.7 and 18, were employed with the appellant-respondent in accordance with the Rules of 1984. The Rules of 1984 were made by the Governor of Rajasthan exercising powers under proviso to Article 309 of the Constitution of India. Article 309 of the Constitution of India empowers the appropriate legislature to regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or any State. The appointment of the petitioners being made under the Rules framed under the powers conferred by Article 309 of the Constitution of India is sufficient enough to hold that the petitioners are the persons employed with public service on a post in connection with the affairs of the State of Rajasthan. True it is, Article 309 of the Constitution of India or proviso thereto nowhere used the term "civil service" or "civil servant", but the employment for public service on a post in connection with the affairs of State is an important aspect to (20 of 23) [SAW-387/2010] determine nature of the service, as to whether that is a civil service or not. The terms "civil service" and "civil posts" are referred in Article 310 of the Constitution of India, that keeps tenure of office of every person, who is a member of civil service or a holder of civil post under the pleasure of the President of India or the Governor of any State, as the case may be. Article 311 of the Constitution of India checks the pleasure given under Article 310 of the Constitution of India qua the members of civil service and holders of civil posts under the Union or the State, as the case may be. Under the Rules of 1984, the protection as given under Article 311 of the Constitution of India is extended to the persons employed therein by application of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (hereinafter referred to as 'the Rules of 1958'). Pertinent to notice here that it is not simple adoption of the Rules of 1958 to have a procedure for disciplinary action, but as per sub-rule (2) of Rule 15 of the Rules of 1984, it is application of all laws made under Article 309 of the Constitution of India or proviso thereto in relation to the fields which are not covered under the Rules of 1984. On examination of the entire scheme of the Rules of 1984, it is apparent that though the posts prescribed are having tenure, but a person appointed under the Rules of 1984 may be allowed to continue in service till attaining the age of superannuation. The rules also ensures a fair process of selection by considering candidature of eligible persons by a definite criteria. The service conditions of the persons employed other than the conditions prescribed under the Rules of 1984 are required to be settled by (21 of 23) [SAW-387/2010] the other rules framed under proviso to Article 309 of the Constitution of India for the time being in force. Meaning thereby, the discipline and other services conditions such as the age of superannuation, pay, leave etc. are required to be determined as per general supplementary Rules, i.e. the Rules of 1951, the Rules of 1996 and the Rules of 1958.
This statutory background clearly indicates that the respondent-petitioners are holding a public post in connection with the affairs of the State, they are also having protection meant for the members of the civil services and are also getting their other service conditions except post retiral benefits by the Rules applicable for other civil servants of the State, as such, they are nothing but civil servants of the State of Rajasthan.
So far as the exclusion provisions pointed out by learned Additional Advocate General under the Rules of 1951 and the Rules of 1996 are concerned, those are not causing any impediment for the respondent-petitioners. At the first instance, it would be appropriate to mention that the Rules of 1984 nowhere treat the persons appointed thereunder as contractual employees. The Rules simply provides "tenure" of service. The appointment of a specific tenure ipse dixit does not include the term "contractual appointment" in it. The scheme of the Rules of 1984, as a matter of fact, provide a tenure to hold a civil post, which at the discretion of employer may extend till the date the employee concerned retires from service on attaining the age of superannuation.
Irrespective of that, for the sake of argument, even if it (22 of 23) [SAW-387/2010] is assumed that the appointment of the respondent-petitioners was/is contractual, then too clause (b) of Rule 2(ii) of the Rules of 1951 takes care of such contract service, if followed by regular appointment. In the case in hand, as already stated, all the petitioners have already been absorbed in the service of Panchayat Raj Department, therefore, the application of the Rules of 1951 cannot be denied.
The law laid down by Hon'ble Apex Court in the case of State of West Bengal & Ors. Vs. Kaberi Khastagir & Ors. (supra) strengthens the view taken by learned Single Bench, to which are inclined to uphold. In the case aforesaid, the Apex Court noticing that the recruitment for the post of Supervisors of ICDS were made in exercise of the powers conferred under Article 309 of the Constitution of India, the State Government granted Government scales of pay and other service conditions as per the rules and the budget of the scheme was in extension to the constitutional goals, held that the project employees are employees of the State Government, thus, are entitled to have the same service conditions as applicable to the civil servants of the State of West Bengal. The same is the position here. The respondent- petitioners, as already discussed, are also working for the State to achieve constitutional goals, they were also employed as per the Rules framed under proviso to Articles 309 of the Constitution of India, they too are getting regular pay scales and the other service conditions, except the service conditions referred under the Rules of 1984, are also governed as per the Rules framed under Article 309 of the Constitution of India. The case of the (23 of 23) [SAW-387/2010] respondent-petitioners, thus, is squarely covered by the law enunciated by the Apex Court in the case referred above.
In result, we are having no hesitation in affirming the findings arrived by learned Single Bench. Accordingly, the appeal is dismissed. The respondent-State is directed to release pension and other retiral benefits to the petitioners, who have already retired from service, within a period of three months from today. (G.R. MOOLCHANDANI)J. (GOVIND MATHUR)J. Pramod