Rajasthan High Court - Jodhpur
State Of Rajasthan vs Ramgopal Verma on 20 September, 2021
Bench: Sangeet Lodha, Manoj Kumar Garg
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Review Petition (Writ) No. 25/2019
1. The State of Rajasthan, through the Principal Secretary,
Department of Personnel, Secretariat, Jaipur, Rajasthan.
2. The Secretary, Education Department, State of Rajasthan,
Jaipur.
----Petitioners
Versus
1. Ramgopal Verma S/o Shri Mani Ram, aged about 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 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.
----Respondents
Connected With
D.B. Review Petition (Writ) No. 27/2019
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.
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5. Commissioner, Department of College Education,
Government of Rajasthan, Jaipur, Rajasthan.
----Petitioners
Versus
1. Shiv Singh Dulawat S/o Shri Manohar Singh Dulawat,
Aged About 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 Nagar, 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.
----Respondents
D.B. Review Petition (Writ) No. 29/2019
1. 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).
----Petitioners
Versus
Raj. Samayojit Shiksha Karmi Welfare Society, through its
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President Shri Sardar Sigh Bugaliya S/o Shri Sardar Singh
Bugaliya S/o Shri Bhinwaram Bugaliya, Aged 53 Years, R/o Shiv
Sagar Colony Vaishali Nagar, Ajmer.
----Respondent
D.B. Review Petition (Writ) No. 31/2019
1. 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.
----Petitioners
Versus
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.
----Respondent
D.B. Review Petition (Writ) No. 33/2019
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.
----Petitioners
Versus
Shambhoo Singh Jhala S/o Shri Dungar Singh Jhala, aged about
67 Years, R/o 133/d, Sector No. 2, Vivek Nagar, Udaipur,
Rajasthan.
----Respondent
D.B. Review Petition (Writ) No. 44/2019
1. State of Rajasthan, through The Principal Secretary
Department of Personnel, Secretariat, Jaipur, Rajasthan.
2. The Secretary, Education Department, State of Rajasthan,
Jaipur.
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----Petitioners
Versus
1. Bhupendra Singh Tarad S/o Shri Maniram, Aged About 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.).
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.).
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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.).
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
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Grade III, at Government Secondary School, Patuhi, Dist.
Sri Ganganagar (Raj.).
27. Raisahab S/o Shri Jagdish Goadara, Poasted 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 As 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, Government Upper Primary School, 3C
Choti, Dist. Sri Ganganagar (Raj.).
32. Aadram S/o Shri Kishore 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 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.).
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
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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, Tehsil 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 Scondary 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
Teacher at Government Higher Secondary School, 2 F.C.
Mukul, 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.).
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.).
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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 Girls Upper Primary School,
Manewala, Suratgarh, Dist. Sri Ganganagar (Raj.).
60. Lalchand Verma S/o Shri Moman Ram, Posted 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.).
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
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Grade III, at Government Primary School, 3C Choti, Dist.
Sri Ganganagar (Raj.).
----Respondents
For Petitioner(s) : Mr. Devadutt Kamat, Sr. Advocate
with Mr. Aditya Bhat through VC
Mr. Sandeep Shah, AAG with
Mr.Abhimanyu Singh, Ms.Akshiti
Singhvi & Ms. Pratyushi Mehta
Mr. Kuldeep Mathur
For Respondent(s) : Mr. N.M.Lodha, Sr. Advocate with Mr.
Manoj Bhandari, Mr. V.D.Dadhich &
Mr. Aniket Tater
Mr. Vivek Shrimali
Dr. Nupur Bhati
HON'BLE MR. JUSTICE SANGEET LODHA
HON'BLE MR. JUSTICE MANOJ KUMAR GARG Order 20th September, 2021 Per Hon'ble Mr.Sangeet Lodha,J.
Reportable
1. By way of these petitions, the State of Rajasthan is seeking review of order dated 1.2.2018 passed in D.B. Civil Writ Petition No. 7568/2012 : Raj. Samayojit Shiksha Karmi Welfare Society Vs. The State of Rajasthan & Anr. and other connected writ petitions, by a Coordinate Bench of this Court of which, one of us (Mr. Justice Manoj Kumar Garg) was a member.
2. The facts relevant are that the respondents-writ petitioners filed writ petitions assailing the vires of Clauses (ii), (iii), (iv) (v) &
(ix) of Rule 5 of Rajasthan Voluntary Rural Education Service Rules, 2010 ("the Rules of 2010"). The prayer made was that the benefits accruing to a Government servant under Rajasthan Service Rules, 1951 and Rajasthan Civil Services (Pension) Rules, 1996 ("the Rules of 1996"), must be extended to the employees of (Downloaded on 20/09/2021 at 09:42:56 PM) (10 of 46) [WRW-25/2019] Non-Government Aided Educational Institutions absorbed in Government service under the Rules of 2010 with consequential benefits. The writ petitioners also prayed that the services rendered by them in Non-Government Aided Educational Institutions should be counted for the purpose of pension and other retiral benefits.
3. Rule 5 of the Rules of 2010, the vires whereof was challenged by the writ petitioners and examined by the Coordinate Bench while passing the order under review, reads as under :-
"5. Terms and 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.
(ii) The posts on which the employees shall be appointed in the Government shall constitute a separate dying cadre for each category of employees.
(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 (Downloaded on 20/09/2021 at 09:42:56 PM) (11 of 46) [WRW-25/2019] 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 (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.
(vii) 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 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.
(x) The period of service in the aided institutions shall not be counted for payment of gratuity. The employees shall be free to obtain payment of gratuity from the respective grant in aid educational institution.
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(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."
(Emphasis supplied)
4. On the basis of the rival submissions, the coordinate Bench while deciding the writ petitions summarised the questions arising for consideration as under:
"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 employees absorbed under the Rules of 2010 are entitled for the benefits available under the Rajasthan Civil Service Rules, 1951 and 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?"
5. The challenge of the writ petitioners to Clauses (ii), (iii), (iv) & (v) of Rule 5 failed, however, Clause (ix) of Rule 5 of the Rules of 2010 has been declared unconstitutional and consequently, the writ petitions preferred by the writ petitioners have been partly allowed by order under review in the following terms:
"A. The denial of pension to the employees of aided institutions appointed prior to promulgation of Rajasthan Civil Services (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 (Downloaded on 20/09/2021 at 09:42:56 PM) (13 of 46) [WRW-25/2019] 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, and subsequently appointed/absorbed under the Rules of 2010, shall be governed under the 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 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."
6. Aggrieved by the decision under review, the State of Rajasthan preferred Special Leave Petitions (Diary No.21904/2018 & other connected SLPs) before the Hon'ble Supreme Court, which stood dismissed vide order dated 13.9.2018, in the following terms:
"Delay condoned.
We are in agreement with the reasoning given in the impugned judgment and order. The special leave petitions are, accordingly, dismissed.
Pending application, if any, shall stand disposed of."(Downloaded on 20/09/2021 at 09:42:56 PM)
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7. These review petitions are filed by the State of Rajasthan seeking review of the findings arrived at by the coordinate Bench vide order under review, on the questions 'A' and 'B', reproduced hereinabove. The review petitions were filed by the State on 5.3.2019, after dismissal of the SLPs preferred before the Hon'ble Supreme Court vide order dated 13.9.2018.
8. Mr. Devadatt Kamat, learned Senior Counsel appearing on behalf of the State submitted that the order under review has been passed by the Division Bench on a completely erroneous noting of Rule 5 (ix) of the Rules of 2010. Drawing attention of the Court to the notification No.F.5(2)DOP/A-II/2010 dated 23.3.12, learned counsel submitted that Rule 5(ix) noticed and examined by the Division Bench had already been substituted by a revised rule. The revised rule referred to by the learned Senior Counsel reads as under :
"5(ix) The persons who are appointed in the government service under these rules shall be governed by the provisions of the Rajasthan Civil Services (Contributory Pension) Rules, 2005 and the Provision of the Rajasthan Civil Service (Pension) Rules, 1996 shall not be applicable to them. Contributory Provident Fund Contribution, if not deposited by the Non-Government Aided Educational Institutions 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."
Learned Senior Counsel contended that by way of amendment it has been specifically provided that the persons who are appointed under the Rules of 2010 shall be governed by the provisions of the Rajasthan Civil Services (Contributory Pension) Rules, 2005 ('the Rules of 2005") and the provisions of the Rules of 1996 shall not be applicable to them. That apart, the option (Downloaded on 20/09/2021 at 09:42:56 PM) (15 of 46) [WRW-25/2019] with regard to Contributory Provident Fund has been done away with. Learned counsel would submit that since the revised rule existing as on the date has not been considered by the Division Bench, the writ petitioners, respondents herein, cannot be extended the relief granted to them by the Division Bench while striking down the provisions of Rule 5(ix) of the Rules of 2010, which already stood substituted by revised Rule 5(ix) vide notification dated 23.3.12.
9. Learned counsel submitted that Rule 2(c) of the Rules of 1996 excludes the applicability of Rules of 1996 to the persons entitled to the benefit of Contributory Provident Fund and thus, the writ petitioners who were admittedly covered by Rajasthan Non-Government Education Institutions Act, 1989 ('the Act of 1989") and the Rajasthan Non-Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules 1993 ("the Rules of 1993") and were availing the benefit of the Contributory Provident Fund constituted under Section 16(2) of the Act of 1989, cannot claim benefit of pension by virtue of Rule 2(c) of the Rules of 1996 and thus, the Division Bench has fell in patent error in declaring Rule 5(ix) of the Rules of 2010 unconstitutional.
10. Learned counsel submitted that as a matter of fact even the employees appointed in the service of State Government on or after 1.4.04 are governed by the Rules of 2005 and not the Rules of 1996 and thus, the question of applying the Rules of 1996 to the employees of Non-Government Aided Educational Institutions, absorbed in government service under the Rules of 2010, does not arise.
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11. Learned counsel submitted that the Division Bench while passing the order under review not at all considered the effect of Rule 6 of the Rules of 2010, which specifically provides that employees appointed under the Rules of 2010 shall be governed by the Rules applicable to Government servants appointed on or after 1.4.04 and thus, obviously for the purpose of pensionary benefit, the Rules of 2005 shall be applicable to the writ petitioners and not to the Rules of 1996.
12. Learned counsel submitted that ignorance of the legal provision and/or reliance on repealed provision in the order under review constitute an error apparent on the face of record and therefore, the same deserves to be reviewed/recalled and the matter needs to be considered by this Court afresh on merits. Learned counsel submitted that an additional affidavit has been filed to bring on record the provision of law in force, which is not looked into by the Bench of this Court while rendering the judgment under review. Learned counsel submitted that the question of law can be raised at any stage even without pleadings. Learned counsel submitted that when relevant law is ignored and an inapplicable law forms the basis for foundation of the judgment, it would be a ground of review. In this regard, learned counsel relied upon decisions of the Supreme Court in the matters of Deo Narain Singh v Daddan Singh : 1986 Supp SCC 530, Shri Uddhav Singh v Madhav Rao Scindia : (1977) 1 SCC 511, Jagannath Temple Managing Committee v Siddha Math : (2015) 16 SCC 542, Yashwanth Sinha v CBI : (2020) 2 SCC 338 and Mamleshwar Prasad v Kanhaiya Lal : (1975) 2 SCC 232, Municipal Corporation of Delhi v Gurnam Kaur : (1989) 1 SCC 101. (Downloaded on 20/09/2021 at 09:42:56 PM)
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13. Learned counsel submitted that the Division Bench has erred in applying the test of Article 14 in context of Rule 5(ix) of the Rules of 2010. It is submitted that erstwhile employees of Non- Government Aided Educational Institutions cannot be placed in the same class as that of the existing Government Servants. The Rules of 2010 for the first time created a new dying cadre with its own special features regarding eligibility, promotion, career advancement, gratuity etc. and the said employees of Non Government Aided Educational Institutions forms a separate class altogether and cannot contend that they should be given the pensionary benefits at par with the existing Government Servants, whereas even the Government Servants who are appointed on or after 1.1.04 are also not entitled to the same benefits rather for the purpose of pension they are governed by the Rules of 2005.
14. Learned Senior Counsel submitted that the validity of Rule 5 of the Rules of 2010 had already been upheld by a Division Bench of this Court at Jaipur, vide order dated 25.1.18 passed in 'Prem Prakash Purohit & Ors. Vs. State of Rajasthan' : D.B. Civil Writ Petition No.61/13, which has not been noticed by the Division Bench while passing the order under review and thus, the review petition deserves to be allowed on this count alone. Learned counsel submitted that if the correctness of the earlier decision of a Coordinate Bench is doubted then the only course open for the subsequent Bench is to refer the matter for consideration to the Larger Bench. In support of the contention, learned counsel relied upon a decision of the Supreme Court in Central Board of Dawoodi Bohra Community v State of Maharashtra : (2005) 2 SCC 673. (Downloaded on 20/09/2021 at 09:42:56 PM)
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15. Learned counsel further submitted that the Division Bench has failed to appreciate that the appointments accorded to the writ petitioners were the fresh appointments under the Rules of 2010 and they have already received full and final settlement of the dues under the Act of 1989 and the Rules of 1993 from their respective aided institutions and thus, it would be incorrect to apply the Rules of 1996 to the employees appointed prior to 1.1.04 and extend benefit of pension for the period of service already covered under the Act of 1989 and the Rules of 1993. Learned counsel submitted that the decisions of the Apex Court in State of UP vs. Dayanand Chakrawarty : (2013) 7 SCC 595 & Frank Anothny Public School Employees' Assn. vs. Union of India :
1986 (4) SCC 707 and A.N.Sachdeva vs. MDS University: (2015) 10 SCC 117, are wholly inapplicable to the adjudication of the controversy involved. Lastly, learned counsel submitted that the Division Bench while deciding the questions C & D declined to give directions to the State Government for creating promotion avenues and lifting of the embargo on posting of the employees in urban areas and thus, the reasoning adopted by the Division Bench in declaring Rule 5(ix) as unconstitutional is apparently inconsistent with the finding recorded on questions C & D.
16. On the other hand, Mr. N.M. Lodha, learned Senior Counsel appearing for the respondents submitted that against the order under review, SLP preferred on behalf of the State stands rejected by the Supreme Court expressing agreement with the reasons given in the order under review and thus, the order under review stands merged in the order dated 13.9.18 passed by the Hon'ble Supreme Court in State of Rajasthan & Anr. vs. Bhupendra Singh (Downloaded on 20/09/2021 at 09:42:56 PM) (19 of 46) [WRW-25/2019] Tarad & Ors. : SLP(C) Diary No.21904/2018 and therefore, the review petitions preferred on behalf of the State are not maintainable.
17. According to the learned counsel, the lack of detailed reasoning in the order would not make the order non speaking.
Learned Senior Counsel submitted that all the grounds including the ground with regard to earlier Bench decision of this Court upholding the vires of Rule 5 of the Rules of 2010, were raised before the Supreme Court and after due consideration the Supreme Court expressed its agreement with the reasoning given in the judgment under review and thus, the SLP having been dismissed on merits, the decision of the Supreme Court is binding on the parties as also on this Court and for this reason, the review petitions are not maintainable. In this regard, the learned Senior Counsel relied upon decisions of the Supreme Court in State of Maharashtra & Anr. Vs. Prabhakar Bhikaji Ingle : AIR 1996 SC 3069, Abbai Maligai Partnership Firm and Anr. Vs. K. Santhakumaran and Others : (1998) 7 SCC 386, Kunhayammed & Ors. vs. State of Kerala & Anr. : (2000) 6 SCC 359, Gangadhara Palo vs. Revenue Divisional Officer & Anr. : (2011) 4 SCC 602, Khoday Distilleries Limited vs. Sri Mahadeshwara Sahakara Sakkare Karkhane Limited, Kollegal : (2019) 4 SCC 376, Babloo Singh & Ors. vs. State of U.P. & Ors. : AIR 2019 SC 305 and Kapico Kerala Resorts Private Limited Vs. State of Kerala & Ors. :
(2020) 3 SCC 18.
18. Learned Senior Counsel submitted that if the appellate court agrees with the reasons given in order under appeal, no separate reasons are required to be given. Reliance in this regard was (Downloaded on 20/09/2021 at 09:42:56 PM) (20 of 46) [WRW-25/2019] placed on a decision of the Supreme Court in S.N.Mukherjee vs. Union of India: (1990) 4 SCC 594.
19. Drawing the distinction between the order passed in exercise of power under Article 226 by the High Court and under Article 136 by the Supreme Court, learned Senior Counsel relied upon the decision in Vishnu Dev Sharma Vs. State of Uttar Pradesh and Others : (2008) 3 SCC 172 and submitted that analogy of the requirement of the reasons to be recorded by the High Court while dismissing the writ petition could not be drawn to the Supreme Court's power under Article 136. Relying upon a Bench decision of this Court in Jaipur Development Authority Vs. Shri Babu Lal Saini & Ors : 2016 WLC (Raj.) UC 485, learned Senior Counsel submitted that where a Special Leave Petition is dismissed by the Supreme Court and no liberty is granted to file the review petition, the review petition against the judgment of the Division Bench on same grounds as taken before Supreme Court is not maintainable. Learned Senior Counsel submitted that even otherwise the judgment rendered per incurium does not form ground for review. In this regard, learned counsel relied upon a Bench decision of Jammu and Kashmir High Court in National Insurance Co. Vs. Mohd. Sultan Asim and Another : 2005 AIHC 1616.
20. Learned Senior Counsel submitted that the contentions raised in the review petitions were specifically incorporated in the SLP filed on behalf of the State yet, no relief was granted by the Supreme Court and the SLP has been rejected with the reasons and therefore, the same cannot be permitted to be raised all over again by way of review petition. The relief claimed by the petitioners on the specific grounds not granted by Supreme Court, (Downloaded on 20/09/2021 at 09:42:56 PM) (21 of 46) [WRW-25/2019] shall be deemed to have been rejected. In support of the contention, learned Senior Counsel relied upon the decision of the Supreme Court in State Bank of India Vs. Ram Chandra Dubey and Others : (2001) 1 SCC 73. Learned counsel submitted that the earlier decision of a coordinate Bench upholding the vires of Rule 5 of the Rules of 2010, was specifically referred on behalf of the State before the Supreme Court and thus, it cannot be said that the order rejecting the SLP has been passed by the Supreme Court in ignorance of the said decision. According to the learned counsel when both the Bench decisions of the Court in respect of the vires of Rule 5 of the Rules of 2010 were there before the Supreme Court and after reconsideration, if the SLP has been rejected, obviously, the decision under review has been approved. In this regard, the attention of the Court was drawn by the learned counsel to para 9 of the decision of the Supreme Court in Babloo Singh's case (supra). Relying upon a Bench decision of the Bombay High Court in the matter of Smt. Emilia Tinoco (deceased by LRS.) vs. Shashikant Naguesh Gad & Ors.: AIR 1997 Bombay 319, learned counsel submitted that when both the views of this Court were before the Supreme Court and one has been accepted by the Supreme Court, the plea of per inquirium cannot be entertained.
21. Learned counsel submitted that as a matter of fact, after dismissal of the SLP by the Supreme Court with reasons, the review petition filed is gross abuse of the process of the Court.
22. Learned Senior Counsel submitted that the review sought on fresh grounds is beyond the power of review under Order XLVII Rule 1 CPC and thus, the petitioners cannot claim rehearing of the (Downloaded on 20/09/2021 at 09:42:56 PM) (22 of 46) [WRW-25/2019] matter on fresh grounds. Reliance is placed in this regard on decisions of the Supreme Court in Collector of 24 Parganas and Others Vs. Lalith Mohan Mullick and Others : AIR 1988 SC 2121, Lily Thomas Vs. Union of India and Others : AIR 2000 SC 1650, and Nehali Panjiyara and Others Vs. Shyama Devi and Others :
(2002) 10 SCC 578. Learned counsel submitted that the High Court has no power to grant the relief beyond the pleadings and thus, the grounds which are sought to be raised by way of review petition, which were not raised in pleadings before the writ Court cannot be entertained. In support of the contention, learned Senior Counsel relied upon the decisions of the Supreme Court in Union of India and Others Vs. Jai Prakash Singh and Another :
(2007) 10 SCC 712 and Union of India Vs. Ibrahim Uddin and Another : (2012) 8 SCC 148.
23. Lastly, learned Senior Counsel submitted that pursuant to the directions issued vide judgment under review, the employees have already deposited the amount of Contributory Provident Fund and the amount deposited by some of the employees have been accepted by the State Government and thus, at this stage, the order cannot be reviewed. Learned Senior Counsel submitted that non implementation of the decision of this Court by the respondents have put the employees in precarious condition inasmuch as they are neither able to utilise the amount of Contributory Provident Fund nor the benefit of pension is extended to them.
24. Mr. Vivek Shrimali, learned counsel, while adopting the arguments advanced by Mr. N.M.Lodha, learned Senior Counsel, submitted that both the judgments i.e. the judgment in Prem (Downloaded on 20/09/2021 at 09:42:56 PM) (23 of 46) [WRW-25/2019] Prakash Purohit vs. State of Rajasthan :D.B.Civil Writ Petition No.61/13 as also the judgment under review were there before the Hon'ble Supreme Court and after hearing both the parties, the Court clearly expressed its view that they are in agreement with the reasoning given in the judgment and order dated 1.2.18 and thus, nothing turns on the question that earlier decision in Prem Prakash's case (supra) was not brought to the notice of the Division Bench rendering the judgment under review. Learned counsel submitted that the petitioners were parties to the earlier writ petition decided by Jaipur Bench of this Court but no reasons have been assigned as to why this important fact of earlier decision was not brought to the notice of the Court. Learned counsel submitted that pursuant to the directions issued by this Court, almost all the members of the respondent Union have applied and have sent cheques of requisite amount for availing pensionary benefits and to the respondents information, the State Government has already encashed the cheques received from approximately 48 persons. Thus, having accepted and implemented the judgment, though in part, the petitioners are estopped from questioning the correctness thereof. Learned counsel submitted that the new pleas sought to be raised are not based on any material which the petitioners could not with due diligence discover and produce at the appropriate stage of a case and thus, the same could not be permitted to be raised at this belated stage. In exercise of the review jurisdiction under XLVII Rule 1 CPC, an erroneous decision is not permissible to be reheard and corrected. In support of the contentions, learned counsel relied upon the decisions of the Supreme Court in the matters of (Downloaded on 20/09/2021 at 09:42:56 PM) (24 of 46) [WRW-25/2019] Mohd. Yasin vs. University of Kashmir, Srinagar : AIR 1974 SC 2341, Sasi (D) through LRS. vs. Aravindakshan Nair & Ors.:
Special Leave Petition (Civil) No. of 2017 CC 4339/17, decided on 3.3.17.
25. Learned counsel Mr. Shrimali submitted that the respondents were employed in Aided Non Government Institutions and thus, after appointment under the Rules of 2010, their services prior to their appointment in State Government has to be counted as qualifying service for the pension and they deserve to be treated in continuous Government service. In support of the contentions, learned counsel relied upon a decision of the Punjab & Haryana High Court in the matter of Harbans Lal vs. The State of Punjab & Ors.: CWP No.2371/10, decided on 31.8.10, the SLP filed against which stands dismissed by the Supreme Court vide order dated 4.11.15.
26. Dr. Nupur Bhati, learned counsel while relying upon the decision of the Supreme Court in Kunhayammed's case, submitted that the doctrine of merger is not a doctrine of universal or unlimited application. Learned counsel submitted that the matter with regard to recording of the reasons would be applicable only to quasi judicial authority and not the judicial courts. Learned counsel submitted that the Hon'ble Supreme Court expressing agreement with the reasons given by the High Court reflects conscious application of mind and thus, the order under review passed by the High Court stands merged in the order dated 13.9.18 passed by the Hon'ble Supreme Court and therefore, it is not permissible for this Court to entertain the present review petitions.
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(25 of 46) [WRW-25/2019] 27. Replying the arguments advanced on behalf of the
respondents, learned Senior Counsel appearing for the review petitioners drawing the attention of the Court to the order passed by the Supreme Court rejecting the SLP submitted that the said order cannot be considered to be speaking or reasoned order inasmuch as while rejecting the SLP no adjudication has been made. Learned Senior Counsel submitted that an order can be considered to be a reasoned order only when there exists a link between the materials which are considered and the conclusions arrived at and thus, in absence of the reason, the order passed by the Supreme Court rejecting the SLP cannot be considered to be a speaking order. Learned Senior Counsel relied upon the decision of the Supreme Court in Kranti Associates Private Limited and Another Vs. Masood Ahmed Khan and Others : (2010) 9 SCC 496. Learned Senior Counsel submitted that the issue with regard to maintainability of the review petition after dismissal of the SLP is no more res integra and is covered by a Three Judge Bench of Hon'ble Supreme Court in Khoday Distilleries Limited's case (supra), wherein the law laid down in Kunhayammed's case (supra) has been affirmed and reiterated. Learned Senior Counsel submitted that reliance placed on behalf of the respondents on the judgment in Abbai Maligai Partnership Firm's case is totally erroneous as the said judgment has been considered in Khoday Distilleries and held to be confined to the peculiar facts therein, with no discussion on the principle of law. The decision of the Supreme Court in Gangadhara Palo's case stands impliedly overruled by the decision in Khoday Distilleries. Learned Senior Counsel would submit that the reliance on judgment in Kapiko (Downloaded on 20/09/2021 at 09:42:56 PM) (26 of 46) [WRW-25/2019] Kerala Resorts Private Limited is also misplaced as the issue therein was whether after a detailed judgment by the Supreme Court, the High Court could take a different view on the ground that certain aspects had not been brought to the notice of the High Court. According to the learned Senior Counsel as per the decision of the Supreme Court in Khoday Distilleries, where a Special Leave Petition is dismissed, stating that there is no ground to interfere with the impugned order, even then it is not a reasoned order. Learned Senior Counsel submitted that the decision of the Supreme Court in Vishnu Dev Sharma's case (supra) relied upon by learned Senior Counsel appearing on behalf of the respondents is absolutely irrelevant to the issue under consideration before this Court in the present review petition inasmuch as for determination as to what is the scope of an order of the kind i.e. order dated 13.9.18 cannot be decided by the general distinctions in law relating to exercise of power under Article 226 and Article 136.
28. We have considered the rival submissions, gone through the decisions cited at the bar and the material on record.
29. In the first instance, it would be appropriate to consider the preliminary objection raised on behalf of the respondents/writ petitioners regarding maintainability of the review petition.
30. Precisely, the maintainability of the review petition is questioned by the respondents on the ground that the SLPs preferred by the State of Rajasthan stand rejected by the Supreme Court, while expressing agreement with the reasons assigned by this Court in the order under review and thus, same stands merged in order dated 13.9.18 passed by the Supreme (Downloaded on 20/09/2021 at 09:42:56 PM) (27 of 46) [WRW-25/2019] Court. Alternatively, it is contended that since the SLPs having been dismissed by the Supreme Court after due consideration on merits, the decision of the Supreme Court is binding on the parties and this Court, therefore, the review petitions preferred are not maintainable.
31. The issue with regard to maintainability of the review petition before the High Court after dismissal of SLPs, came up for consideration before the Supreme Court time and again over the years.
32. In Abbai Maligai Partnership Firm's case (supra) relied upon by the Senior Counsel appearing for the respondents, where the appellants therein filed a review petition before the High Court after the dismissal of SLP, the Supreme Court while disapproving the practice adopted, held :
"4. The manner in which the learned Single Judge of the High Court exercised the review jurisdiction, after the special leave petitions against the selfsame order had been dismissed by this Court after hearing learned counsel for the parties, to say the least, was not proper. Interference by the learned Single Judge at this stage is subversive of judicial discipline. The High Court was aware that the SLPs against the orders dated 7-1-1987 had already been dismissed by this Court. The High Court, therefore, had no power or jurisdiction to review the selfsame order, which was the subject matter of challenge in the SLPs in this Court after the challenge had failed. By passing the impugned order on 7-4- 1994, judicial propriety has been sacrificed. After the dismissal of the special leave petitions by this Court on contest no review petitions could be entertained by the High Court against the same order. The very entertainment of the review petitions, in the facts and circumstances of the case, was an affront to the order of this Court. We express our strong disapproval and hope there would be no occasion in the future when we may have to say so. The jurisdiction exercised by the High Court, under the circumstances, was palpably erroneous. The respondents who approached the High Court after the dismissal of their SLPs by this Court, abused the process of the court and indulged in vexatious litigation. We strongly deprecate the matter in which the review petitions were filed and heard in the High Court after the dismissal of the SLPs by this Court. The appeals deserve (Downloaded on 20/09/2021 at 09:42:56 PM) (28 of 46) [WRW-25/2019] to succeed on that short ground. The appeals are, consequently, allowed and the impugned order dated 7-4- 1994 passed in the review petitions is hereby set aside. The respondents shall pay Rs.10,000 as costs." (emphasis supplied)
33. In Kunnhayammed's case (supra), where the SLP was dismissed by an order in terms "Special leave petition is dismissed on merits.", the Supreme Court while examining the issue regarding maintainability of the review petition before the High Court after dismissal of the SLP in the context of the principles underlying the doctrine of merger, opined that the jurisdiction conferred under Article 136 of the Constitution upon the Supreme Court is special jurisdiction, which is sweeping in its nature. It is untrammeled reservoir of power incapable of being confined to definitional bounds; the discretion conferred on the Supreme Court being subject to only one limitation, that is, the wisdom and good sense or sense of justice of the Judges. No right of appeal is conferred upon any party, only a discretion is vested in the Supreme Court to interfere by granting leave to an applicant to enter in its appellate jurisdiction not open otherwise and as of right.
Considering the two stages of exercise of jurisdiction conferred on Supreme Court by Article 136 of the Constitution; (i) granting special leave to appeal (ii) hearing of appeal, the Court summarised the legal position as under:
"(1) While hearing the petition for special leave to appeal, the Court is called upon to see whether the petitioner should be granted such leave or not. While hearing such petition, the Court is not exercising its appellate jurisdiction; it is merely exercising its discretionary jurisdiction to grant or not to grant leave to appeal. The petitioner is still outside the gate of entry though aspiring to enter the appellate arena of the Supreme Court. Whether he enters or not would depend on the fate of his petition for special leave;(Downloaded on 20/09/2021 at 09:42:56 PM)
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(2) If the petition seeking grant of leave to appeal is
dismissed, it is an expression of opinion by the Court that a case for invoking appellate jurisdiction of the Court was not made out;
(3) If leave to appeal is granted the appellate jurisdiction of the Court stands invoked; the gate for entry in the appellate arena is opened. The petitioner is in and the respondent may also be called upon to face him, though in an appropriate case, in spite of having granted leave to appeal, the Court may dismiss the appeal without noticing the respondent.
(4) In spite of a petition for special leave to appeal having been filed, the judgment, decree or order against which leave to appeal has been sought for, continues to be final, effective and binding as between the parties. Once leave to appeal has been granted, the finality of the judgment, decree or order appealed against is put in jeopardy though it continues to be binding and effective between the parties unless it is a nullity or unless the Court may pass a specific order staying or suspending the operation or execution of the judgment, decree or order under challenge."
The Supreme Court while considering the law laid down in Abbai Maligai Partnership Firm's case (supra), observed that the Hon'ble Judges deciding the said case have nowhere in course of their judgment relied on doctrine of merger for taking the view they have done. After threadbare discussion of principles underlying doctrine of merger, while referring to various earlier decisions on the issue, the Supreme Court opined :
"27. A petition for leave to appeal to this Court may be dismissed by a non-speaking order or by a speaking order. Whatever be the phraseology employed in the order of dismissal, if it is a non-speaking order, i.e., it does not assign reasons for dismissing the special leave petition, it would neither attract the doctrine of merger so as to stand substituted in place of the order put in issue before it nor would it be a declaration of law by the Supreme Court under Article 141 of the Constitution for there is no law which has been declared. If the order of dismissal be supported by reasons then also the doctrine of merger would not be attracted because the jurisdiction exercised was not an appellate jurisdiction but merely a discretionary jurisdiction refusing to grant leave to appeal. We have already dealt with this aspect earlier. Still the reasons stated by the Court would attract applicability of Article 141 of the Constitution if (Downloaded on 20/09/2021 at 09:42:56 PM) (30 of 46) [WRW-25/2019] there is a law declared by the Supreme Court which obviously would be binding on all the courts and tribunals in India and certainly the parties thereto. The statement contained in the order other than on points of law would be binding on the parties and the court or tribunal, whose order was under challenge on the principle of judicial discipline, this Court being the Apex Court of the country. No court or tribunal or parties would have the liberty of taking or canvassing any view contrary to the one expressed by this Court. The order of Supreme Court would mean that it has declared the law and in that light the case was considered not fit for grant of leave. The declaration of law will be governed by Article 141 but still, the case not being one where leave was granted, the doctrine of merger does not apply. The Court sometimes leave the question of law open. Or it sometimes briefly lays down the principle, may be, contrary to the one laid down by the High Court and yet would dismiss the special leave petition. The reasons given are intended for purposes of Article 141. This is so done because in the event of merely dismissing the special leave petition, it is likely that an argument could be advanced in the High court that the Supreme Court has to be understood as not to have differed in law with the High Court."
(emphasis supplied) The Court while noticing the different expressions used, while dismissing the SLP by non-speaking order, made further observations and summarised the conclusions as under:
"40. A petition seeking grant of special leave to appeal may be rejected for several reasons. For example, it may be rejected (i) as barred by time, or (ii) being a defective presentation, (iii) the petitioner having no locus standi to file the petition, (iv) the conduct of the petitioner disentitling him to any indulgence by the court, (v) the question raised by the petitioner for consideration of this Court being not fit for consideration or deserving being dealt with by the Apex Court of the country and so on. The expression often employed by this Court while disposing of such petitions are- "heard and dismissed", "dismissed", "dismissed as barred by time" and so on. May be that at the admission stage itself the opposite party appears on caveat or on notice and offers contest to the maintainability of the petition. The Court may apply its mind to the meritworthiness of the petitioner's prayer seeking leave to file an appeal and having formed an opinion may say "dismissed on merits". Such an order may be passed even ex parte, that is, in the absence of the opposite party. In any case, the dismissal would remain a dismissal by a non-speaking order where no reasons have been assigned and no law has been declared by the Supreme Court. The dismissal is not of the appeal but of the special leave petition. Even if the merits have been gone into, they (Downloaded on 20/09/2021 at 09:42:56 PM) (31 of 46) [WRW-25/2019] are the merits of the special leave petition only. In our opinion neither doctrine of merger nor Article 141 of the Constitution is attracted to such an order. Grounds entitling exercise of review jurisdiction conferred by Order 47 Rule 1 CPC or any other statutory provision or allowing review of an order passed in exercise of writ or supervisory jurisdiction of the High Court (where also the principles underlying or emerging from Order 47 Rule 1 CPC act as guidelines) are not necessarily the same on which this Court exercises discretion to grant or not to grant special leave to appeal while disposing of a petition for the purpose. Mere rejection of a special leave petition does not take away the jurisdiction of the court, tribunal or forum whose order forms the subject-matter of petition for special leave to review its own order if grounds for exercise of review jurisdiction are shown to exist. Where the order rejecting an SLP is a speaking order, that is, where reasons have been assigned by this Court for rejecting the petition for special leave and are stated in the order still the order remains the one rejecting prayer for the grant of leave to appeal. The petitioner has been turned away at the threshold without having been allowed to enter in the appellate jurisdiction of this Court. Here also the doctrine of merger would not apply. But the law stated or declared by this Court in its order shall attract applicability of Article 141 of the Constitution. The reasons assigned by this Court in its order expressing its adjudication (expressly or by necessary implication) on point of fact of law shall take away the jurisdiction of any other court, tribunal or authority to express any opinion in conflict with or in departure from the view taken by this Court because permitting to do so would be subversive of judicial discipline and an affront to the order of this Court. However, this would be so not by reference to the doctrine of merger.
41. Once a special leave petition has been granted, the doors for the exercise of appellate jurisdiction of this court have been let open. The order impugned before the Supreme Court becomes an order appealed against. Any order passed thereafter would be an appellate order and would attract the applicability of doctrine of merger. It would not make a difference whether the order is one of reversal or of modification or of dismissal affirming the order appealed against. It would also not make any difference if the order is a speaking or non-speaking one. Whenever this Court has felt inclined to apply its mind to the merits of the order put in issue before it though it may be inclined to affirm the same, it is customary with this Court to grant leave to appeal and thereafter dismiss the appeal itself (and not merely the petition for special leave) though at times the orders granting leave to appeal and dismissing the appeal are contained in the same order and at times the orders are quite brief. Nevertheless, the order shows the exercise of appellate jurisdiction and therein the merits of the order impugned having been subjected to judicial scrutiny of this court.(Downloaded on 20/09/2021 at 09:42:57 PM)
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42. "To merge" means to sink or disappear in something else; to become absorbed or extinguished; to be combined or be swallowed up. Merger in law is defined as the absorption of a thing of lesser importance by a granter, whereby the lesser ceases to exist, but the greater is not increased; an absorption or swallowing up so as to involve a loss of identity and individuality. (see Corpus Juris Secundum, Vo. LVII, pp. 1067-68).
43. We may look at the issue from another angle. The Supreme Court cannot and does not reverse or modify the decree or order appealed against. While deciding a petition for special leave to appeal. What is impugned before the Supreme Court can be reversed or modified only after granting leave to appeal and then assuming appellate jurisdiction over it. If the order impugned before the Supreme Court cannot be reversed or modified at the SLP stage obviously that order cannot also be affirmed at the SLP stage.
44. To sum up, our conclusions are:
(i) Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law.
(ii) The jurisdiction conferred by Article 136 of the constitution is divisible into two stages. The first stage is upto the disposal of prayer for special leave to file an appeal.
The second stage commences if and when the leave to appeal is granted and the special leave petition is converted into an appeal.
(iii) the doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject matter of challenge laid or capable of being laid shall be determinative of the applicability of merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136 of the Constitution the Supreme Court may reverse, modify or affirm the judgment-decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to the latter.
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(iv) An order refusing special leave to appeal may be a non- speaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substitute in place of the order under challenge. All that it means is that the court was not inclined to exercise its discretion so as to allow the appeal being filed.
(v) If the order refusing leave to appeal is a speaking order, i.e. gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by he Supreme Court within the meaning of Article 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country. But this does not amount to saying that the order of the court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting the special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties.
(vi) Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger, the order may be of reversal, modification or merely affirmation.
(vii) On an appeal having been preferred or a petition seeking leave to appeal having been conferred into an appeal before the Supreme Court the jurisdiction of High Court to entertain a review petition is lost thereafter as provided by sub-rule(1) of Rule 1 of Order 47 CPC.
34. In K. Rajamouli vs. A.V.K.N. Swamyi : 2001 (5) SCC 37, the Supreme Court following the judgment in Abbai Maligai Partnership Firm's case (supra) and Kunhayammed's case (supra) observed:
"Following the decision in the case of Kunhayammed & Ors, (supra) we are of the view that the dismissal of the special leave petition against the main judgment of the High Court would not constitute res judicata when a special leave petition is filed against the order passed in the Review Petition provided the review petition was filed prior to filing of special leave petition against the main judgment of the High Court The position would be different where after dismissal of the special leave petition against the main judgment a party files a review petition after a long delay on the ground that the party was prosecuting remedy by way of (Downloaded on 20/09/2021 at 09:42:57 PM) (34 of 46) [WRW-25/2019] special leave petition. In such a situation the filing of review would be as abuse of the process of the law. We are in agreement with the view taken in Abbai Maligai Partnership Firm (supra) that if High Court allows the review petition filed after the special leave petition was dismissed after condoning the delay, it would be treated as affront to the order of the Supreme Court. But this is not the case here. In the present case, review petition was filed well within time and since the review petition was not being decided by the High Court, the appellant filed the special leave petition against the main judgment of the High Court. We, therefore, over- rule the preliminary objection of the counsel for the respondent and hold that this Appeal arising out of special leave petition is maintainable."
35. In Gangadhara Palo's case (supra), the Supreme Court while following Kunhayammed's case (supra) observed that when an SLP is dismissed without giving any reasons we cannot say what was in the mind of the Court while dismissing the SLP. Hence, there is no merger of the judgment of the High Court with the order of the Supreme Court and in that case the judgment of the High Court can be reviewed since it continues to exist, though the scope of the review is limited to errors apparent on the face of record. On the other hand, if the SLP is dismissed with reasons, however meagre (it can be even just one sentence), there is a merger of the judgment of the High Court in order of Supreme Court. The Court while disagreeing with judgment in K. Rajamouli (supra), held as under:
"5. We regret, we cannot agree. In our opinion, it will make no difference whether the review petition was filed in the High Court before the dismissal of the special leave petition or after the dismissal of the special leave petition. The important question really is whether the judgment of the High Court has merged into the judgment of this Court by the doctrine of merger or not.
6. When this Court dismisses a special leave petition by giving some reasons, however meagre ( it can be even of just one sentence), there will be a merger of the judgment of the High Court into the order of the Supreme Court dismissing the special leave petition. According to the (Downloaded on 20/09/2021 at 09:42:57 PM) (35 of 46) [WRW-25/2019] doctrine of merger, the judgment of the lower court merges into the judgment of the higher court. Hence, if some reasons, however meagre, are given by this Court while dismissing the special leave petition, then by the doctrine of merger, the judgment of the High Court merges into the judgment of this Court and after merger there is no judgment of the High Court. Hence, obviously, there can be no review of a judgment which does not even exist."
36. In Khoday Distilleries Ltd.'s case (supra), a two Judge Bench of the Supreme Court noticed conflict between the judgments in K.Rajamouli's case (supra) and Gangadhara Palo's case (supra), inasmuch as, in K. Rajamouli's case (supra), the Court has followed Kunhayammed's case (supra) and distinguished Abbai Maligai Partnership Firm's case (supra) and in Gangadhara Palo (supra), later Bench did not accept the view expressed in K. Rajamouli's case (supra) and accordingly, referred the question of law for consideration by a larger Bench [vide Khoday Distilleries Ltd. vs. Mahadeswara S.S.K. Ltd. : (2012) 12 SCC 291].
37. The larger Bench after cumulative reading of various judgments affirmed and reiterated the conclusions rendered by three Judge Bench in para 44 of Kunhayammed's case (supra). The Court observed that the earlier judgment in Abbai Maligai Partnership Firm's case (supra) is duly taken cognizance of and explained in the latter judgment, and therefore, there is no conflict so far as ratio of two cases [K. Rajamouli's case and Gangadhara Palo's case (supra)]. The Court further observed that Abbai Maligai Partnership Firm's case (supra) was decided on its peculiar facts, with no discussion on any principle of law, whereas Kunhayammed's case (supra) is an elaborate discourse based on well-accepted propositions of law which are applicable for such an (Downloaded on 20/09/2021 at 09:42:57 PM) (36 of 46) [WRW-25/2019] issue. The Court categorically held that Kunhayammed's case (supra) lays down the correct law.
38. In Babloo Singh's case (supra) relied upon by the counsel for the respondents, where after grant of special leave, civil appeals were dismissed by the Supreme Court and the judgment of the High Court was specifically affirmed without giving the detailed reasons, the decision of the larger Bench of a High Court turning down the reference was held to be justified.
39. In Kapico Kerala Resorts Private Limited's case (supra), where seven writ petitions were decided by the High Court by a common order and two SLPs were filed by one of the petitioner, which were rejected by the Supreme Court, affirming the findings of the High Court, recording detailed reasons therefor, the Court observed that when detailed reasons given by the High Court or Subordinate Court, find acceptance by the Supreme Court, the question of scrutinizing them for finding out whether they were in passing or in detailed focus, does not arise. Such an exercise would tantamount to reviewing the decision.
40. Indubitably, in Khoday Distilleries's case (supra), the law laid down in Kunhayammed's case (supra) has been reiterated and the law laid down therein is categorically held to be the correct law, which holds the field as on the date.
41. As laid down in Kunhayammed's case (supra), an order refusing special leave to appeal, may be a non-speaking order or a speaking one, in either case, it does not attract the doctrine of merger. But where the order refusing the grant of leave is a speaking order, the statement of law contained in the order shall be declaration of law within the meaning of Article 141 of the (Downloaded on 20/09/2021 at 09:42:57 PM) (37 of 46) [WRW-25/2019] Constitution but other than the declaration of law whatever is stated in the order are findings recorded by the Supreme Court which would bind the parties thereto and also the Court, Tribunal or Authority in any proceedings subsequent thereto and therefore, in that case, after dismissal of the SLP, the review petition before the High Court would not be maintainable.
42. In the backdrop of settled position of law as aforesaid, adverting to the facts of the present case, it is noticed that while dismissing the SLPs, the Supreme Court did not record its own finding after due consideration of the rival submissions rather, expressed its agreement with the reasons given by the High Court.
43. It is not the case before this Court that the SLPs were granted and thereafter the order dismissing the appeals were passed by the Supreme Court and therefore, keeping in view the law laid down in Kunhayammed's case (supra), the question of merger of the order under review passed by this Court in the order passed by the Supreme Court, does not arise.
44. This takes us to consider the contention of the respondents that since the Supreme Court has dismissed the SLPs after application of mind, while expressing agreement with the reasons given by the High Court, the order passed by the Supreme Court dismissing the SLPs being a speaking order, it binds the parties and the Courts in subsequent proceedings and therefore, the review petitions preferred are not maintainable.
45. Apparently, in the instant case while dismissing the SLPs, the Supreme Court has not given any independent reasoning rejecting the contentions raised on behalf of the petitioners herein. As laid (Downloaded on 20/09/2021 at 09:42:57 PM) (38 of 46) [WRW-25/2019] down by the Supreme Court in Kunhayammed's case (supra) in para no.44 (v), an order refusing leave to appeal is a speaking order when it gives reason for refusing the grant of leave. Further, while dealing with several reasons which may be given by the Supreme Court while dismissing the SLP, in para 40 of the decision in Kunhayammed's case (supra), it is categorically observed that "The Court may apply its mind to the meritworthiness of the petitioner's prayer seeking leave to file an appeal and having formed an opinion may say "dismissed on merits". Such an order may be passed even ex parte, that is, in the absence of the opposite party. In any case, the dismissal would remain a dismissal by a non-speaking order where no reasons have been assigned and no law has been declared by the Supreme Court." (emphasis supplied)
46. It is not in dispute that in the SLPs filed, the petitioners had also raised the contentions, which were either not considered by this Court while allowing the writ petitions or were raised for the first time before the Supreme Court by way of SLPs. Obviously, the agreement of the Supreme Court with the reasons assigned by the High Court cannot relate to such contentions raised on behalf of the petitioners, which this Court had no occasion to deal with. Further, if the arguments advanced on behalf the respondents that other contentions raised on behalf of the petitioners, which are not taken note of by the Supreme Court are deemed to be rejected, is accepted, then apparently, the deemed rejection also obviously, without assigning any reasons.
47. There is yet another aspect of the matter. When a petition is dismissed by the Supreme Court in terms that "Special Leave (Downloaded on 20/09/2021 at 09:42:57 PM) (39 of 46) [WRW-25/2019] Petition is dismissed on merits" or "we find no ground to interfere with the impugned order", is also indicative of the fact that after due application of mind, the Supreme Court had no inclination to interfere with the reasoning adopted and the conclusions arrived at by the High Court. Thus, keeping in view the law laid down in Kunhayammed's case (supra), the order under review passed by the Supreme Court cannot be construed to be a speaking order.
48. As noticed above, in Babloo Singh's case (supra) relied upon by the learned counsel for the respondents, after grant of leave to appeal, the civil appeals registered, were dismissed by the Supreme Court and thus, undoubtedly, it was a case of merger of the High Court order in the Supreme Court order where the issue with regard to non recording of detailed reasons, was not of any consequences.
49. Similarly, in Kapico Kerala Resorts Pvt. Limited's case(supra), the issue was with regard to the Supreme Court reviewing its own order passed in earlier SLP filed, arising out of the same order passed by the High Court, the Court observed that when the detailed reasons given by the High Court or Subordinate Court, find acceptance by the Supreme Court, the same cannot be scrutinized for finding out whether they were in passing or in detailed focus. Thus, this decision also does not help the respondents in any manner.
50. In view of the discussion above, we are of the opinion that the order dismissing the SLPs passed by the Supreme Court as aforesaid cannot be considered to be a speaking order precluding the petitioners herein from invoking review jurisdiction of this (Downloaded on 20/09/2021 at 09:42:57 PM) (40 of 46) [WRW-25/2019] Court. Accordingly, the review petitions filed on behalf of the petitioners are held to be maintainable.
51. Now, coming to the merits of the review petitions, admittedly, prior to appointment under the Rules of 2010 in Government service, the respondents were employees of Non- Government Aided Educational Institutions and their services were governed by the provisions of Act of 1989 and the Rules of 1993.
52. It is also a common ground between the parties that while continuing in services of Non-Government Aided Educational Institutions, the respondents were governed by the Contributory Provident Fund Scheme envisaged under Rule 68 of the Rules of 1993. The Rules of 2010 were framed by the State Government so as to offer regular appointment to the employees in Non- Government Aided Educational Institutions, who were working against the sanctioned and aided posts on the date of commencement of the Rules of 2010 in accordance with the terms and conditions mentioned therein. Such employees were accorded appointment in Government by constituting a separate dying cadre for each category of employees, who are not entitled for any promotion till they attained the age of superannuation but are allowed benefit of Assured Career Progression/Career Advancement Scheme, as admissible to other employees of the State Government.
53. By way of Rule 5(ix), it was made clear that the persons who are appointed in Government service under the Rules of 2010, shall not be eligible for pension scheme and they may either continue to be the members of Contributory Provident Fund or they may opt for Rajasthan Civil Services (Contributory Pension) (Downloaded on 20/09/2021 at 09:42:57 PM) (41 of 46) [WRW-25/2019] Rules, 2005. It was further provided therein that the Contributory Provident Fund Contribution if not deposited by Non-Government Aided Educational Institution for the period prior to the date of joining under the Rules of 2010, shall not be paid by the Government.
54. Rule 5 (ix) vires whereof were challenged by the respondents, which has been declared unconstitutional by this Court by the order under review, to the extent indicated above, reads as under:
"(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."
55. The reasons assigned by the Court while declaring the Rule 5(ix) unconstitutional by order under review, are as under:
"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.
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 (Downloaded on 20/09/2021 at 09:42:57 PM) (42 of 46) [WRW-25/2019] 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."
56. It is pertinent to note that the employees of Non- Government Aided Educational Institutions prior to their appointment in Government service under the Rules of 2010 were governed by Contributory Provident Fund Scheme envisaged under the Rules of 1993 and not the Pension Scheme. Further, any person inducted in the service of the State Government after commencement of the Rules of 2005, is governed by the Contributory Pension Scheme and not the Pension Scheme envisaged under the Rules of 1996. To put in other words, the employees inducted in the State Government service by way of regular recruitment on or after 1.1.04, under the various relevant service rules, are not entitled to opt for Pension Scheme in terms of Rules of 1996. But, it appears that this aspect of the matter was not specifically brought to the notice of the Division Bench, deciding the writ petitions by order under review. It remains a vital question to be examined as to whether the employees of Non-Government Aided Educational Institution, who have been accorded appointment under the Government service under the Rules of 2010, which have come into force w.e.f. 1.2.2011, against a dying cadre created, can claim the benefits of the (Downloaded on 20/09/2021 at 09:42:57 PM) (43 of 46) [WRW-25/2019] Pension Scheme under the Rules of 1996, which are applicable only to the Government servants appointed before 1.1.2004.
57. There is yet another important aspect of the matter, which was not taken note of while passing the order under review. As per Rule 2 of the Rules of 1996, the said rules are applicable to Government servant appointed to Civil Services and the post in connection with the affairs of the Rajasthan State, which are born on pensionable establishment but, by virtue of Clause (c) of Rule 2, the Rules of 1996 are not made applicable to the persons entitled to benefit of Contributory Provident Fund. The question whether the Rules of 1996 which were not applicable to the Government servant entitled to the benefit of Contributory Provident Fund at the time of commencement of the rules, shall still be applicable to the employees of Non-Government Aided Educational Institution, who admittedly as employees of Non- Government Institutions were governed by Contributory Provident Fund prior to their induction in service of the State Government under the Rules of 2010. A perusal of the order under review reveals that the provisions of Rule 2(c) of the Rules of 1996, was not even brought to the notice of the Court and therefore, the Court had no occasion to examine the effect thereof while adjudicating the controversy involved in the petition including the vires of Rule 5(ix) of the Rules of 2010. In our considered opinion the provisions of Rule 2(c) of the Rules of 1996 have a direct bearing to the controversy raised and therefore, the effect thereof needs to be examined by the Court.
58. Further, vide order under review, this Court had examined the vires of the provisions of Rule 5(ix) of the Rules of 2010, (Downloaded on 20/09/2021 at 09:42:57 PM) (44 of 46) [WRW-25/2019] framed in terms quoted hereinabove, which as a matter of fact, had already been substituted by the Rajasthan Voluntary Rural Education Service (Second Amendment) Rules, 2012 ('Amendment Rules 2012'), notified vide notification dated 23.3.12 in the following terms:
"(ix) The persons who are appointed in the government service under these rules shall be governed by the provisions of the Rajasthan Civil Services (Contributory Pension) Rules, 2005 and the Provision of the Rajasthan Civil Service (Pension) Rules, 1996 shall not be applicable to them. Contributory Provident Fund Contribution, if not deposited by the Non-Government Aided Educational Institutions 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."
59. It is not disputed before this Court that amended Rule 5 (ix) substituted vide Amendment Rules, 2012 was not even brought to the notice of the Court during the course of hearing of the writ petitions and thus, while considering the rival submissions, this Court has declared the Rule 5(ix) of the Rules of 2010 unconstitutional, which was not even in existence as on the date of the passing of the order under review. Of course, it was duty of the State counsel to bring the amendment in the rules to the notice of the Court but then, the respondents herein who had prayed for the relief set out in the writ petitions as a consequence of Rule 5(ix) of the Rules of 2010 being declared unconstitutional, were equally duty bound to inform the Court about the subsequent amendment. The contention of the petitioners that the amendment made does not make any difference and therefore, by virtue of the judgment under review, the same has to be treated redundant, cannot be countenanced by this Court. It is pertinent to note that by way of amendment, the Rules of 1996 are made (Downloaded on 20/09/2021 at 09:42:57 PM) (45 of 46) [WRW-25/2019] specifically non-applicable to the employees appointed under the Rules of 2010 and therefore, the vires of Rule 5(ix) as substituted has to be examined in context of the Rules of 1996 as well. In any case, there cannot be any automatic declaration of the rule as unconstitutional without there being a challenge thereto and examination thereof by the Court.
60. It is also not disputed before this Court that earlier Bench decision of this Court in Prem Prakash's case (supra), upholding the vires of Rule 5(ix), which is declared unconstitutional by order under review, was not brought to the notice of the Court.
61. For the aforementioned reasons, we are firmly of the opinion that the order under review to the extent of declaring Rule 5(ix) of the Rules of 2010 unconstitutional and declaring the respondents entitled to opt for Pension Scheme under the Rules of 1996 deserves to be recalled. Since, vires of Rule 5(ix) of the Rules of 2010 as substituted vide Amendment Rules, 2012 was not questioned by the respondents being oblivion about the amendment introduced, in the interest of justice, the respondents deserve to be extended an opportunity to amend their petitions to incorporate the challenge to the said rule in the petitions, if so advised.
62. Accordingly, the review petitions are allowed. The order under review to the extent of declaring Rule 5(ix) of the Rules of 2010 as unconstitutional and holding that all the employees who were appointed against the sanctioned/aided posts prior to promulgation of Rajasthan Civil Service (Contributory Pension) Rules, 2005 in the aided institutions and subsequently appointed/absorbed under the Rules of 2010 shall be governed by (Downloaded on 20/09/2021 at 09:42:57 PM) (46 of 46) [WRW-25/2019] Rajasthan Civil Service (Pension) Rules, 1996, and consequential orders passed for deposit of the amount of Provident Fund, is recalled. The writ petitions are restored to their original numbers. The respondents shall be entitled to amend the petitions so as to challenge the vires of Rule 5(ix) as substituted by Rajasthan Voluntary Rural Education Service (Second Amendment) Rules, 2012, on all available grounds. The writ petitions restored shall be heard only on the question of vires of Rule 5(ix) of the Rules of 2010 and the consequential relief, if any.
63. The respondents who have deposited the amount of Provident Fund with interest as directed by the Court by order under review, shall be refunded the entire amount deposited alongwith interest @ 6% per annum from the date of deposit till the date of refund by the State Government, within a period of four weeks from the date of this order, failing which the amount shall carry interest @ 9% per annum from the date of deposit till the date of actual payment.
No order as to costs.
(MANOJ KUMAR GARG),J (SANGEET LODHA),J
Aditya/
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