IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
ORDER
IN
1. S.B. Civil Writ Petition No.2941/1996
{Deep Narain Tiwari Vs. State of Rajasthan and Another}
2. S.B. Civil Writ Petition No.2940/1996
{Ashok Kumar Saxena Vs. State of Rajasthan and Another}
3. S.B. Civil Writ Petition No.4596/1996
{Smt. Pushplata Sharma Vs. State of Rajasthan and Another}
4. S.B. Civil Writ Petition No.2899/1996
{Brij Nandan Gautam Vs. State of Rajasthan and Another}
Date of Order ::: 06.01.2010
Present
Hon'ble Mr. Justice Mohammad Rafiq
Shri N.K. Maloo with
Ms. Vidhu Bala, Counsel for petitioners in all the Writ Petitions
Shri S.D. Khaspuria, Additional Government Counsel and
Dr. R.K. Sharma and
Shri Ishwar Jain and
Shri Govind Gupta Advocate, for
Shri M.F. Baig, Counsel for respondents
####
//Reportable//
By the Court:-
All these four writ petitions involve identical questions of law and fact and, therefore, were heard together and are being decided by this common judgment.
The facts of the leading case, namely, S.B. Civil Writ Petition No.2941/1996 Deep Narain Tiwari Vs. State of Rajasthan and Others, are being taken as the basis for rendering this decision.
Petitioner Deep Narain Tiwari was initially appointed as Ayurved Chikitsak vide order dated 06.09.1984 on adhoc basis. He was granted annual grade increments and also the benefits of revision of pay scales made effective from time to time. The Rajasthan Public Service Commission advertised 1362 posts of Ayurved Chikitsaks in the year 1991, but the process of selection was cancelled, and thus about 1000 Ayurved Chikitsaks, appointed on adhoc/temporary basis from time to time roughly between 1982 and 1993, were ordered to continue as such. An advertisement was issued by the Rajasthan Public Service Commission on 15.03.1995 by which 626 posts of Ayurved Chikitsaks were advertised to be filled in. Most of the Ayurved Chikitsaks, who were appointed and working with the respondent Department on adhoc/temporary basis from 1982 onwards, applied in response to that advertisement. The petitioners, who were selected in pursuance thereof, were offered appointment vide order dated 13.03.1996. An order was issued by the Respondents on 19.03.1996 directing that such adhoc/temporary Ayurved Chikitsaks, who were selected by the Rajasthan Public Service Commission and to whom appointment letters were issued, shall remain posted at the place of their present posting and they may send their joining report accordingly. The petitioners sent their joining report.
Thereafter the Government by Notification dated 08.04.1996 added Proviso 5 to Rule 6 and Proviso 6 to Rule 31 of the Rajasthan Ayurvedic, Unani, Homoeopathy and Naturopathy Service Rules, 1973 (for short, ‘the Rules of 1973’).
Proviso 5 to Rule 6 of the Rules of 1973 provides that those appointed as Ayurved Chikitsaks by the Government on adhoc/officiating/urgent temporary basis upto 05.05.1990 and are still continuously working in such capacity on the date this amendment comes into force shall be screened by the committee referred to in Rule 24 for adjudging their suitability for the post of Ayurved Chikitsak.
Proviso 6 to Rule 31 provides that the interse seniority of the persons appointed under Proviso 5 to Rule 6 shall be determined by the screening Committee on the basis of length of continuous service and in the cadre they will rank senior to the persons recruited by the Commission in 1995.
Aggrieved thereby the petitioners have approached this court challenging the validity of Proviso 6 to Rule 31 added in the Rules of 1973 by the Notification dated 08.04.1996.
Shri N.K. Maloo, learned counsel for the petitioners, argued that the petitioners and other persons, selected by the Rajasthan Public Service Commission in an earlier selection, should have been assigned higher seniority than the Ayurved Chikitsaks, appointed on adhoc/officiating/urgent temporary basis upto 05.05.1990, and who were screened and found suitable as a member of service. It was contended that many adhoc/ officiating/temporary Ayurved Chikitsaks, who were screened and regularised in service by taking recourse to Proviso 5 to Rule 6, irrespective of fact whether they faced the selection and not selected or did not face the selection, cannot have a better case than those who successfully faced the selection and secured appointment on the basis of their merit. There are many Ayurved Chikitsaks who were appointed on adhoc/officiating/temporary and later on were selected by the Rajasthan Public Service Commission on the basis of their merit, yet ranked much below. Petitioner Deep Narain Tiwari secured 5th position in the merit-list of selected Ayurved Chikitsaks by the Rajasthan Public Service Commission. The learned counsel for the petitioners argued that subsequently the Government, by Notification dated 18.08.2006, further introduced Proviso 7 to Rule 6 providing thereby that the Ayurved Chikitsak appointed on adhoc/temporary basis between the period from 06.05.1990 to 31.12.1993 and have been continuously holding the post on the date of commencmenet of the Rajasthan Ayurvedic, Unani, Homeopathy and Naturopathy Service (Amendment) Rules, 2006, shall be screened by the Committee for adjudging their suitability on the post of Ayurved Chikitsak.
Proviso 9 newly introduced by way of amendment to Rule 31 provides that such persons shall rank enbloc junior to the persons who were selected and appointed through regular selection upto the date on which the Rajasthan Ayurvedic, Unani Homoeopathy and Naturopathy Service (Amendment) Rules, 2006 comes into force.
The learned counsel argued that the Government has thus been applying double standards and making hostile discrimination to the petitioners, even though there are two categories of Ayurved Chikitsaks; one who were screened and regularised upto 5.5.1990 and another who also secured the appointment on adhoc/temporary basis after 5.5.1990 and were also similarly screened and regularised. There was, therefore, no distinguishing feature to discriminate the petitioners in the matter of seniority vis-a-vis those who were subsequently selected by the Rajasthan Public Service Commission and were ordered to rank senior to those Ayurved Chikitsaks appointed between 6.5.1990 and 31.12.1993, who were screened and regularised by virtue of proviso 7 to Rule 6 (Supra).
The learned counsel for the petitioner argued that adhoc/temporary Ayurved Chikitsaks, who were not selected by Public Service Commission but subsequently regularised, could not be assigned seniority prior to the date of their regularization. He, during the course of argument, relied on the decisions of the Hon’ble Supreme Court in Ram Ganesh Tripathi and Others Vs. State of U.P. & Others (1997) 1 SCC 621, V. Sreenivasa Reddy and Others Vs. Govt. of Andhra Pradesh and Others AIR 1995 SC 586 and Dr. M.A. Haque and Others Vs. Union of India and Others 1993 (2) SLR 1, and submitted that similar Rules framed to that effect were declared ultra-vires and violative of Articles 14 and 16 of the Constitution.
The learned counsel for the respondents opposed the writ petition and submitted that the validity of the amendment introduced vide Notification dated 08.04.1996 has already been upheld by a Coordinate Bench of this Cour in the judgment dated 10.03.1998 in S.B. Civil Writ Petition No.2853/1996 Gurudutt Sharma and Others Vs. State of Rajasthan and Others, while deciding a bunch of writ petitions. This question is now therefore need not to be examined again.
The learned counsel for the respondents further submitted that it is a matter of policy for the Government to decide whether or not to regularize the service of adhoc/officiating employees working for a long span of time and when the Government has amended the Rules to do so, it is equally competent to confer upon them the seniority from the date of their initial appointment. In so far as interse seniority of adhoc/officiating employees is concerned, it is clearly directed that the same shall be decided on the basis of length of service but it was also provided that they will rank senior from the persons recruited in the year 1995 and this was done by the Government keeping in view the fact that the adhoc/officiating employees were working as such for a very long period of time.
Having heard the learned counsel for the parties and perused the material available on the record, I find that the judgment, on which reliance is placed by the learned counsel for the respondents, in fact examined the validity of proviso 5 to Rule 6 and not that of Proviso 6 to Rule 31; although, incidentally both these Provisos were introduced by way of amendment by the same Notification of even number dated 8th April, 1996. In the present case, however, the petitioners have challenged the validity of proviso 6 to Rule 31 of the Rules of 1973 by which it has been provided that seniority of such Ayurved Chikitsak who were appointed on adhoc/officiating/urgent-temporary basis upto 5.5.1990 and still continuously working in such capacity on the date of such amendment came into force, shall be screened by the committee referred to in Rule 24 so as to adjudge their suitability for the post. The petitioners have no grievance in so far as screening and regularisation of service of those Ayurved Chikitsak, appointed prior to 5.5.1990 on adhoc/officiating/urgent-temporary basis is concerned; they are aggrieved by assignment of seniority to them over and above the reglarly recruited persons in the year 1995. S.B. Civil Writ Petition No.2853/1996 Gurudutt Sharma & Others Vs. State of Rajasthan & Others, decided by a coordinate bench of this Court on 10.03.1998 along-with a bunch of identical writ petitions, was filed at the instance of those Ayurved Chikitsak who were appointed on adhoc/officiating/ urgent-temporary basis after 05.05.1990 and yet were not provided the benefit of screening and regularization and thus they challenged the cut off date therein, and the Coordinate Bench of this Court, while deciding the same, held that the said cut off date cannot be said to be irrational, capricious or having no nexus to the object sought to be achieved. Subsequently, the Government itself acceded to the demand of those who filed the said bunch of writ petitions, by introducing Proviso 7 to Rule 6 giving benefit of regularisation to them by way of screening of Ayurved Chikitsaks appointed on adhoc/officiating/urgent temporary basis between the period from 06.05.1990 to 31.12.1992.
At this stage, however, it would be interesting to find that this time the Government in Proviso 9 to Rule 31 introduced contrary provision than earlier made in Proviso 6 to Rule 31. In Proviso 9 it is provided that the persons screened and regularised by virtue of new Proviso 7 (Supra) would rank enbloc junior to the persons who were regularly selected and appointed upto the date the amendment came into force i.e. 08.04.996; but, in Proviso 6 to Rule 31, with which the petitioners are aggrieved and which is the subject matter of challenge in the present set of writ petitions, the provision made is that those screened and regularised by virtue of Proviso 5 to Rule 6 shall rank senior to the persons regularly recruited by the Commission in the year 1995. Thus, there is absolutely no justification for such a contradictory stand and the respondents have not been able to justify the rationality of such a Rule which deprives the regularly selected employees of the seniority over and above those who were not yet regularised in service and who were working on adhoc/officiating/urgent-temporary basis. The later category of employees were subsequently screened and regularised and thus became member of service much earlier then the petitioners. The law is well settled following the judgment relied on by the learned counsel for the petitioners and many other subsequent judgments of the Hon’ble Supreme Court that those who are regularised in service by way of screening cannot claim seniority over and above the persons who were duly selected by the Public Service Commission prior to their regularization. Proviso 6 to Rule 31 even otherwise creates a hostile discrimination qua the persons who were recruited by the Rajasthan Public Service Commission in the year 1995 vis-a-vis those who were selected by the Rajasthan Public Service Commission subsequently and were assigned higher seniority than the adhoc/officiating/urgent-temporary Ayurved Chikitsaks, who were appointed between 06.05.1990 and 31.12.1993. The aforesaid Proviso 6 to Rule 31 is therefore ultra-vires of the provisions of Articles 14 and 16 of the Constitution of India. It is therefore liable to be struck down as being illegal and unconstitutional.
In the result, the writ petitions are allowed. The Proviso 6 to Rule 31 of the Rules of 1973, added vide Notification dated 08.04.1996, is declared illegal and unconstitutional and is accordingly struck down; the petitioners and those in that category are held entitled to be ranked senior to those Ayurved Chikitsaks who were regularised by way of screening by virtue of Proviso 5 to Rule 6 of the Rules of 1973.
All the writ petitions are accordingly allowed. There shall be no order as to costs.
(Mohammad Rafiq) J.
//Jaiman//