Shri R.K. Gouttam vs Unknown on 5 May, 2014

Rajasthan High Court
Shri R.K. Gouttam vs Unknown on 5 May, 2014
    

 
 
 

 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR

ORDER
IN
S.B. Civil Writ Petition No.5009/2014
With
Stay Application No.4585/2014

Dalveer Singh Vs. State of Rajasthan and Others

Date of Order :::  05.05.2014

Present
Hon'ble Mr. Justice Mohammad Rafiq


Shri R.K. Gouttam, counsel for petitioner
####

By the Court:-

Grievance of the petitioner is that even though petitioner has been selected for appointment on the post of Lower Division Clerk by Zila Parishad, Karauli, and his name has been mentioned at Serial No.6 in the appointment order dated 25.06.2013 (Annexure-5), but he has not been given posting.
It is contended that all the candidates pursuant to the aforesaid appointment letter has been given posting including some of those, who are below the petitioner in merit.
The chief Executive officer-cum-Member Secretary, Zila Parishad, Karauli, is directed to examine the grievance of the petitioner in the light of the aforesaid fact and pass appropriate order on his representation giving him posting within four weeks or give reasons for not doing so, from the date petitioner approaches him.
With that direction, writ petition is disposed of. This also disposes of stay application.

(Mohammad Rafiq) J.

//Jaiman//112
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Giriraj Prasad Jaiman
PS-cum-JW

Prasadi Meena vs State Of Raj And Anr on 29 October, 2013

Rajasthan High Court
Prasadi Meena vs State Of Raj And Anr on 29 October, 2013
    

 
 
 

 IN THE HIGH COURT OF JUDICATURE FOR 
RAJASTHAN
BENCH AT JAIPUR.

O R D E R

S.B. CIVIL WRIT PETITION NO.19282/2013.
Prasadi Meena 
Versus
State of Rajasthan & Anr. 
Date of Order:-                                         October 29, 2013.
HON'BLE MR.JUSTICE MOHAMMAD RAFIQ
Shri Shashi Bhushan Gupta for the petitioner.
*****
BY THE COURT:-		

This writ petition has been filed against the order of cancellation of license of fair price shop on the ground of irregularities.

Argument of the learned counsel for the petitioner is that alternative remedy may not be a bar to directly entertain this writ petition because in this case, impugned order has been passed for the reasons of malafide by respondent No.2 at the instance of the Minister concerned. Learned counsel submitted that in cases where there is a complete infraction of principles of natural justice, despite alternative remedy, the writ petition may be entertained. Learned counsel cited number of orders passed by this Court, where similar writ petitions have been entertained.

Argument of malafide for that matter against the District Supply Officer may not be available now when already new elections of the Rajasthan Legislative Assembly are going to take place. Petitioner may file an appeal directly before the Commissioner, Food and Civil Supplies, Government of Rajasthan, who may consider and decide the same within three months. Pending appeal, license of the fair price shop in question may not be granted to any other person however, temporary distribution of the essential commodities may be continued through any other fair price shop dealer.

With that direction, the writ petition is disposed of.

(MOHAMMAD RAFIQ), J.

Anil/101
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.

Anil Goyal
Sr.PA cum JW

Rekha Sharma vs State (Panchyati Raj Dep )Anr on 15 March, 2013

Rajasthan High Court
Rekha Sharma vs State (Panchyati Raj Dep )Anr on 15 March, 2013
    

 
 
 

 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JAIPUR BENCH

[1]  S.B. Civil Writ Petition No.11119/2012
Laxmi Kanwar & Anr. Vs. State & Ors.

[2]  S.B. Civil Writ Petition No.13635/2012
Mani Kumari Vs. State & Ors.

[3]  S.B. Civil Writ Petition No.13666/2012
Ram Janki Mehra Vs. State & Ors.

		    [4]  S.B. Civil Writ Petition No.14321/2012
Usha Sharma Vs. State & Ors.

[5]  S.B. Civil Writ Petition No.14387/2012
Preeti Rani Garg Vs. State & Ors.

[6]  S.B. Civil Writ Petition No.14667/2012
Sonal Chauhan Vs. State & Ors.

[7]  S.B. Civil Writ Petition No.14772/2012
Deepika Sharma Vs. State & Ors.

[8]  S.B. Civil Writ Petition No.14921/2012
Seema Jain Vs. State & Ors.

[9]  S.B. Civil Writ Petition No.14943/2012
Suchitra Sharma Vs. State & Ors.

[10]  S.B. Civil Writ Petition No.14944/2012
Kimal Kanwar Vs. State & Ors.

[11]  S.B. Civil Writ Petition No.14945/2012
Ribona Khan Vs. State & Ors.

[12]  S.B. Civil Writ Petition No.14946/2012
Pushpa Pathak Vs. State & Ors.

[13]  S.B. Civil Writ Petition No.15070/2012
Mukta Mani Gupta Vs. State & Ors.

[14]  S.B. Civil Writ Petition No.15109/2012
Pooja Vs. State & Ors.

[15]  S.B. Civil Writ Petition No.15142/2012
Rekha Tiwari Vs. State & Ors.

[16]  S.B. Civil Writ Petition No.15144/2012
Pramila Gautam Vs. State & Ors.

[17]  S.B. Civil Writ Petition No.15145/2012
Suman Vs. State & Ors.

[18]  S.B. Civil Writ Petition No.15146/2012
Brijlata Sharma Vs. State & Ors.

[19]  S.B. Civil Writ Petition No.15147/2012
Alka Shukla Vs. State & Ors.
[20]  S.B. Civil Writ Petition No.15148/2012
Pramila Sharma Vs. State & Ors.

[21]  S.B. Civil Writ Petition No.15158/2012
Sunaina Srivastava Vs. State & Ors.

[22]  S.B. Civil Writ Petition No.15221/2012
Kabul Vs. RPSC & Ors.

[23]  S.B. Civil Writ Petition No.15224/2012
Archana Sharma Vs. State & Ors.

[24]  S.B. Civil Writ Petition No.15227/2012
Sunita Sharma Vs. RPSC & Ors.

[25]  S.B. Civil Writ Petition No.15450/2012
Lalita Pareek Vs. State & Ors.

[26]  S.B. Civil Writ Petition No.15493/2012
Pooja Sharma Vs. State & Ors.

[27]  S.B. Civil Writ Petition No.15507/2012
Anita Sharma Vs. State & Ors.

[28]  S.B. Civil Writ Petition No.15510/2012
Pooja Sharma Vs. State & Ors.

[29]  S.B. Civil Writ Petition No.15544/2012
Ekta Jain Vs. State & Ors.

[30]  S.B. Civil Writ Petition No.15651/2012
Renuka Sharma Vs. State & Ors.

[31]  S.B. Civil Writ Petition No.15723/2012
Indu Arrawatia Vs. Principal Secy. Deptt. & Anr.

[32]  S.B. Civil Writ Petition No.15983/2012
Sushmita Pareek Vs. State & Ors.

[33]  S.B. Civil Writ Petition No.16039/2012
Sarita & Ors. Vs. State & Ors.

[34]  S.B. Civil Writ Petition No.16057/2012
Pooja Sharma Vs. State & Ors.

[35]  S.B. Civil Writ Petition No.16123/2012
Shyam Kanwar Rathore Vs. State & Ors.

[36]  S.B. Civil Writ Petition No.16128/2012
Vineeta Sharma Vs. State & Ors.

[37]  S.B. Civil Writ Petition No.16142/2012
Priyanka Sharma & Ors. Vs. State & Ors.

[38]  S.B. Civil Writ Petition No.16143/2012
Shweta Mudgal Vs. State & Ors.

[39]  S.B. Civil Writ Petition No.16148/2012
Priyanka Lawania Vs. State & Ors.
[40]  S.B. Civil Writ Petition No.16149/2012
Trupti Khandelwal Vs. State & Ors.

[41]  S.B. Civil Writ Petition No.16150/2012
Pushpa Sharma Vs. State & Ors.

[42]  S.B. Civil Writ Petition No.16153/2012
Meera Chouhan Vs. State & Ors.

[43]  S.B. Civil Writ Petition No.16263/2012
Gunjan Bhargava Vs. State & Ors.

[44]  S.B. Civil Writ Petition No.16264/2012
Usha Sharma Vs. State & Ors.

[45]  S.B. Civil Writ Petition No.16353/2012
Chandralata Sharma Vs. State & Ors.

[46]  S.B. Civil Writ Petition No.16368/2012
Santosh Shekhawat Vs. State & Ors.

[47]  S.B. Civil Writ Petition No.16385/2012
Sunita Sharma Vs. State & Ors.

[48]  S.B. Civil Writ Petition No.16386/2012
Nimisha Khandelwal Vs. State & Ors.

[49]  S.B. Civil Writ Petition No.16387/2012
Priyanka Agarwal Vs. State & Ors.

[50]  S.B. Civil Writ Petition No.16402/2012
Rashimi Sharma Vs. State & Ors.

[51]  S.B. Civil Writ Petition No.16435/2012
Kiran Sharma & Anr. Vs. State & Ors.

[52]  S.B. Civil Writ Petition No.16566/2012
Vidhya Sharma Vs. State & Ors.

[53]  S.B. Civil Writ Petition No.16930/2012
Nidhi Parashar Vs. State & Ors.

[54]  S.B. Civil Writ Petition No.17051/2012
Pallavi Sharma Vs. Principal Secy. Deptt. & Ors.

[55]  S.B. Civil Writ Petition No.17245/2012
Manju Sharma Vs. State & Ors.

[56]  S.B. Civil Writ Petition No.17348/2012
Sweety & Anr. Vs. RPSC & Ors.

[57]  S.B. Civil Writ Petition No.17359/2012
Manisha Sharma Vs. State & Ors.

[58]  S.B. Civil Writ Petition No.17361/2012
Anu Radha Sharma Vs. State & Ors.

[59]  S.B. Civil Writ Petition No.17421/2012
Sangeeta Kumar JoshiVs. State & Ors.
[60]  S.B. Civil Writ Petition No.17494/2012
Sampati Sharma Vs. RPSC & Ors.

[61]  S.B. Civil Writ Petition No.17505/2012
Tripti Shrimali Vs. State & Ors.

[62]  S.B. Civil Writ Petition No.17628/2012
Preeti Parmar Vs. State & Ors.

[63]  S.B. Civil Writ Petition No.17717/2012
Smt. Kanya Gupta Vs. State & Ors.

[64]  S.B. Civil Writ Petition No.17744/2012
Krishna Sharma Vs. State & Ors.

[65]  S.B. Civil Writ Petition No.17860/2012
Vipan Shekhawat Vs. State & Ors.

[66]  S.B. Civil Writ Petition No.18068/2012
Rinni Rathpal & Anr. Vs. State & Ors.

[67]  S.B. Civil Writ Petition No.18258/2012
Mehnaj Akhatar Vs. State & Ors.

[68]  S.B. Civil Writ Petition No.18280/2012
Pushpa Sharma Vs. State & Ors.

[69]  S.B. Civil Writ Petition No.16389/2012
Sudarshana Sharma Vs. State & Ors.

[70]  S.B. Civil Writ Petition No.18319/2012
Gayatri Devi Vs. State & Ors.

[71]  S.B. Civil Writ Petition No.18807/2012
Suman Sharma & Anr. Vs. RPSC & Ors.

[72]  S.B. Civil Writ Petition No.13818/2012
Soniya Sharma Vs. State & Ors.

[73]  S.B. Civil Writ Petition No.15553/2012
Rupal Tripathi Vs. State & Ors.

[74]  S.B. Civil Writ Petition No.14571/2012
Suman Pareek Vs. State & Ors.

[75]  S.B. Civil Writ Petition No.11116/2012
Aradhana Agarwal Vs. State & Ors.

[76]  S.B. Civil Writ Petition No.15456/2012
Urvashi Gupta Vs. State & Ors.

[77]  S.B. Civil Writ Petition No.15634/2012
Sunita Mittal Vs. State & Ors.

[78]  S.B. Civil Writ Petition No.16529/2012
Rajeshwari Vs. State & Ors.

[79]  S.B. Civil Writ Petition No.16734/2012
Mamta Sharma Vs. State & Anr.
[80]  S.B. Civil Writ Petition No.16745/2012
Leelawati Vs. State & Ors.

[81]  S.B. Civil Writ Petition No.18566/2012
Priyanka Vs. State & Ors.

[82]  S.B. Civil Writ Petition No.17309/2012
Nisha Jain Vs. State & Ors.

[83]  S.B. Civil Writ Petition No.17362/2012
Anita Sharma Vs. State & Ors.

[84]  S.B. Civil Writ Petition No.14541/2012
Aarti & Anr. Vs. State & Ors.

[85]  S.B. Civil Writ Petition No.14619/2012
Smt. Tarannum Bano Vs. State & Anr.

[86]  S.B. Civil Writ Petition No.15094/2012
Menka Sharma Vs. State & Ors.

[87]  S.B. Civil Writ Petition No.15742/2012
Seema Gupta Vs. Principal Secy. Deptt. & Anr.

[88]  S.B. Civil Writ Petition No.15457/2012
Archana Singhal Vs. State of Raj. & Ors.

[89]  S.B. Civil Writ Petition No.16060/2012
Anju Kumar Sharma Vs. Principal Secy. Deptt. & Anr.

[90]  S.B. Civil Writ Petition No.14935/2012
Neha Sharma Vs. State & Anr.

[91]  S.B. Civil Writ Petition No.14090/2012
Rekha Sharma Vs. State & Ors.

[92]  S.B. Civil Writ Petition No.14637/2012
Usha Kanwar Vs. State & Ors.

[93]  S.B. Civil Writ Petition No.16036/2012
Ankita Sharma Vs. State & Anr.

[94]  S.B. Civil Writ Petition No.14919/2012
Rashmi Sharma Vs. State & Anr.

[95]  S.B. Civil Writ Petition No.18497/2012
Suman Yadav Vs. State & Anr. 

[96]  S.B. Civil Writ Petition No.19304/2012
Rekha Rani Vs. State & Ors.

[97]  S.B. Civil Writ Petition No.19342/2012
Rashmi Lakhotia Vs. RPSC & Ors.

[98]  S.B. Civil Writ Petition No.18667/2012
Man Kanwar Vs. State & Anr.

[99]  S.B. Civil Writ Petition No.15781/2012
Pooja Ojha Vs. RUHS & Ors. 

[100]  S.B. Civil Writ Petition No.10790/2012
Anamika Yadav Vs. RUHS & Ors.

[101]  S.B. Civil Writ Petition No.18834/2012
Riketa Puryani Vs. State & Anr. 

[102]  S.B. Civil Writ Petition No.19354/2012
Sarita Gupta Vs. State & Anr. 

[103]  S.B. Civil Writ Petition No.19761/2012
Nirmala Sharma Vs. State & Ors.

[104]  S.B. Civil Writ Petition No.19415/2012
Ravika Vs. State & Ors.

[105]  S.B. Civil Writ Petition No.19867/2012
Sulochna Vs. State & Ors.

[106]  S.B. Civil Writ Petition No.20235/2012
Kalpana Sharma Vs. State & Ors. 

[107]  S.B. Civil Writ Petition No.14593/2012
Priyanka Gupta Vs. State & Ors. 

[108]  S.B. Civil Writ Petition No.20327/2012
Indu Chaudhary Vs. State & Anr.

[109]  S.B. Civil Writ Petition No.20614/2012
Kamla Devi Jat Vs. State & Ors.

[110]  S.B. Civil Writ Petition No.20522/2012
Ms. Rekha Upadhaya Vs. State & Ors.

[111]  S.B. Civil Writ Petition No.14565/2012
Shikha Jain Vs. State & Ors.

[112]  S.B. Civil Writ Petition No.10340/2012
Deepika Maheshwari Vs. State & Ors.

[113]  S.B. Civil Writ Petition No.14320/2012
Raj Kumari Jain Vs. State & Ors.

[114]  S.B. Civil Writ Petition No.2599/2012
Smt. Chitra Vs. State & Ors.

[115]  S.B. Civil Writ Petition No.2179/2013
Santosh Kumari Sharma Vs. State & Ors.

[116]  S.B. Civil Writ Petition No.2204/2013
Parul Jain Vs. State & Anr.

[117]  S.B. Civil Writ Petition No.2262/2013
Rekha Sharma Vs. State & Anr.

[118]  S.B. Civil Writ Petition No.17944/2012
Mamta Saraswat Vs. State & Ors.   


[119]  S.B. Civil Writ Petition No.18684/2012
Anita Kumari Vs. State of Raj. & Anr.

[120]  S.B. Civil Writ Petition No.11111/2011
Archana Sharma Vs. State & Ors.   

DATE OF ORDER      :      15/03/2013
HON'BLE MR. JUSTICE M.N. BHANDARI

Mr. Vigyan Shah, Mr. Karanpal Singh, Mr. Ram Pratap Saini, Mr.Jeetendra Kumar Sharma, Mr. Raj Kamal Gaur, Mr. Hari Krishan Sharma, Mr. Sunil Kumar Jain, Mr. Lokesh Sharma, Mr. G.P. Sharma, Mr. A.K. Sharma, Mr. Sunil Kumar Singodiya, Mr. Timan Singh, Mr. Tarun Jain, Mr. D.K. Bhardwaj, Mr. Nikhlesh Katara, Mr.Rajvir Sharma, Mr. Brijesh Bhardwaj, Mr. Umashanker Pandey, for PETITIONERS	
Mr. S.N. Kumawat, AAG, for respondents
REPORTABLE
 *** 

The legal question involved in these writ petitions is as to whether horizontal reservation permits inter transferability/migration of candidates from one category to another?

To address the aforesaid issue and for convenience, the facts of S.B. Civil Writ Petition No.11119/2012 (Laxmi Kanwar & Anr. Vs. State of Rajasthan & Ors), are taken.

The respondents issued an advertisement calling for applications for appointment on the post of Teacher Gr.III (Level I & II). In response to the advertisement, applications were submitted by the petitioners followed by selection test. The result of the selection was thereafter declared in the month of June, 2012. The respondents migrated reserve category women to general category based on their higher marks though many reserve category woman candidates availed relaxation/concession in selection thus not liable to be migrated to general category. It is apart from the fact that horizontal reservation does not permit migration from one category to another like vertical reservation. Prayer is accordingly to restrain the respondents to migrate reserve category woman candidates to general/open category women quota of 30%. Other writ petitions are for different posts but common question of law is involved.

Learned Counsel submit that equality in public employment is envisaged under Article 16 of the Constitution of India. The discrimination in public employment is prohibited only on the ground of religion, race, caste, sex, descent, place of birth, residence or any of them. Article 16(4) however carves out an exception to provide reservation in favour of any backward class of citizens not adequately represented in the services under the State. In view of Article 16 of the Constitution of India, a fundamental right exists in favour of every citizen to claim equal opportunity in public employment. The aforesaid Article does not permit discrimination on the ground of sex. Article 16(4) provides for reservation to backward class, but it is subject to Article 16(2) i.e. no discrimination on the ground mentioned therein. The reservation to the women is thus in violation of Article 16(2) of the Constitution of India because by providing reservation, male and female do not stand on same pedestal rather discrimination is caused amongst them.

To over come from the aforesaid problem and prohibition under Article 16(2), reservation to the women is taken under Article 15(3) of the Constitution though even Article 15(1) prohibits discrimination against citizen only on the grounds of religion, race, caste, sex, place of birth or any of them. Thus, Article 15(1) also reiterates what has been provided under Article 16(2) of the Constitution of India. Article 15(3) however permits State to make special provision for women and children. The aforesaid provision has been taken to save reservation in favour of women in ignorance of the fact that Article 15(3) does not speak about reservation but special provisions for women and children. If intention of framers of the Constitution would have been to provide reservation to women and children, then word reservation should have been used, instead special provision. Article 15(3) provides special provision for women and children thus reservation in favour of women becomes illegal and unconstitutional as discrimination on the ground of sex is prohibited under Article 15(1) and 16(2) of the Constitution of India.

It is only one part of the argument. If Article 15(3) allows State Government to make special provision for women and children, then question would be as to whether it can be reservation in public employment in ignorance of the prohibition under Article 16(2) of the Constitution of India where discrimination is prohibited on the ground of sex. The interpretation of Article 16(2) and Article 15(3) cannot be given in such a manner to keep conflict between two provisions of the Constitution. The subject of public employment is under Article 16 and is not subjected to overriding effect by any other Article like Article 15 which operates in different fields. In view of the above, what State Government can at the best do for women and children pursuant to Article 15(3) of the Constitution is to provide special provision as was done by Andhra Pradesh State Government when they provided preference in favour of woman candidates to the extent of 30% seats. The word preference was given interpretation by Hon’ble Apex Court in the case of Govt. of Andhra Pradesh Vs. P.B. Vijaykumar & Anr., reported in (1995) 4 SCC 520. The preference is given when all things between male and female are equal. In ignorance of the aforesaid, the State Government has provided reservation for women.

If special provision can be provided in favour of women under Article 15(3) of the Constitution of India then it cannot be reservation because reservation in public employment can be under Article 16(4) of the Constitution of India but without discrimination on the ground of sex. If certain posts are kept for women by special provision under Article 15(3) of the Constitution of India then it should be without applying principle of reservation and in that eventuality, practice of migration of reserve category candidate to general category for the purpose of reservation is not to be made applicable. If certain percentage of posts are kept for women in view of Article 15(3) of the Constitution, it has to be filled strictly from the category of women to which it is notified. The rule notified by the Government also speaks about category-wise reservation and it has been clarified in the circular dated 24.06.2008. The issue therein has been dealt with in reference to vertical and horizontal reservation. The circular mandates for preparation of merit list category-wise. Contrary to the aforesaid, the respondents are migrating reserve caste women candidates on the post meant for general/open category women candidates by applying same principle as are provided for reservation. The use of words reservation for women quota is unconstitutional as it offends Article 16(2) of the Constitution of India thus wherever any provision or legislation exists to indicate reservation in favour of women, it should be treated as nullity or alternatively, it should be treated as special provision for female so as to make it in consonance to Article 15(3) of the Constitution and to avoid bar of Article 16(2). In the eventuality aforesaid, posts kept for women by special provision, migration of reserve category female candidates to general/open category would not be permissible.

Learned Counsel have given reference of judgment in the case of Anil Kumar Gupta Vs. State of U.P., reported in (1995) 5 SCC 173. In the aforesaid judgment, inter changeability of category in horizontal reservation is not allowed. A further reference of judgment of Hon’ble Supreme Court in the case of Rajesh Kumar Daria Vs. Rajasthan Public Service Commission, reported in (2007) 8 SCC 785 has been given wherein also migration of woman candidates from one category to another is not permitted.

Learned Counsel for petitioners have further given reference of judgments in the case of Public Service Commission, Uttaranchal Vs. Mamta Bisht and Ors., reported in (2010)12 SCC 204 and Naresh Kumar Vs. State of Rajasthan, reported in 2012 (1) WLC (Raj.) 538. It is accordingly prayed that migration of reserve caste woman candidates should not be permitted on the post meant for general/open category women rather these posts should be filled from general caste women being vulnerable in their own category.

The second issue is that quota meant for widow and divorcee to the extent of 8% and 2% respectively is to be on the posts meant for woman candidates and not on the total posts. The respondents are providing reservation in favour of widow and divorcee to the extent of 8% & 2% respectively on overall posts instead of 30% post meant for female. It is contrary to the notification providing reservation for widow and divorcee. The second issue is limited to the writ petitions pertaining to the posts of Teacher and not to other writ petitions thus direction in that regard would apply to the writ petitions pertaining to the appointment on the post of Teacher.

Learned Counsel for petitioners have not pressed any other issue.

Learned Additional Advocate General Shri S.N. Kumawat, opposing prayers of the petitioners, submits that counsel for petitioners have unnecessarily confused the issue in reference to Article 16(2) and Article 15(3) of the Constitution of India. The reservation in favour of women has already been held to be constitutional thus principle of horizontal reservation has rightly been applied to provide reservation to the woman candidates. Learned AAG submits that there exist broadly four categories whose merit list is prepared at the first instance namely; Open, OBC, SC & ST category. The further bifurcation is towards special reservation for woman, disabled person, etc. So far as open/general category is concerned, it consists of all categories. The merit list therein cannot be prepared from and amongst general caste candidates only, but has to be of all the categories and castes strictly as per merit. The Hon’ble Apex Court has already defined the words general/open category to include all the castes and categories subject to merit. Applying the aforesaid principle, quota meant for open/general category female has to be filled. It cannot be kept reserved only for general caste woman candidates. Applying the aforesaid, migration of reserve category woman candidates is allowed to general/open category, if they have secured higher marks in comparison to general caste woman candidates.

It is further submitted that none of the judgments cited by learned counsel for petitioners address the issue raised in these petitions, rather issue has been raised for the first time as to whether migration of reserve caste woman candidates would be permissible to open/general women category quota based on higher marks. The learned AAG has referred various judgments of Hon’ble Apex Court to support his arguments. First judgment referred is in the case of Indra Sawhney etc. etc Vs. Union of India and others, etc. etc., reported in 1992 Supp (3) SCC 217. In the aforesaid judgment, difference was indicated between social reservation and special reservation. First reservation is vertical and other to be horizontal. Further reference of following judgments has been given in the case of Govt. of Andhra Pradesh Vs. P.B. Vijaykumar and another, reported in 1995 (4) SCC 520, Anil Kumar Gupta and Ors. Vs. State of U.P. and Ors., reported in 1995 (5) SCC 173, Union of India (UOI) and Anr. Vs. Satya Prakash and Ors., reported in 2006 (4) SCC 550, Rajesh Kumar Daria Vs. Rajasthan Public Service Commission and Ors., reported in 2007 (8) SCC 785, Union of India Vs. Ramesh Ram & others, reported in 2010 (7) SCC 234, Public Service Commission, Uttaranchal Vs. Mamta Bisht and Ors., reported in 2010 (12) SCC 204 and Sheikh Mohd. Afzal & Anr. Vs. The State of Rajasthan & Anr., reported in 2008 (1) WLC (Raj.) 186.

Learned AAG submits that judgments referred to above clarify that not only reservation in favour of female candidates is permissible but general principle of reservation would allow migration from one category to another. In that regard, much emphasis has been made on the judgment of Hon’ble Apex Court in the case of P.B. Vijaykumar (supra). Therein, issue in reference to women reservation was decided and in that regard a further reference of the judgment in the case of Vijay Lakshmi Vs. Punjab University and Ors., reported in 2003 (8) SCC 440 has been given. Referring to the judgment aforesaid, it is submitted that women can be provided reservation in reference to Article 15(3) of the Constitution of India and in doing so, Article 16(2) is not offended. If reservation in favour of women is permissible then principle of migration as applicable for reservation would obviously apply. It is moreso when open/general category does not indicate a reservation for general caste candidate, but a category open for all candidates whether general caste or reserve caste. The placement in the open/general category is strictly as per merit position obtained by the candidate. Accordingly, if a woman of reserve category has obtained higher marks to that of a general caste woman then she cannot be denied benefit of migration from reserve category to general/open category. In view of the above, first issue raised by learned counsel for petitioners may be answered against them.

Coming to the second issue, it is submitted that 8% and 2% reservation for widow and divorcee respectively is on the total posts meant for female and not on overall posts. Learned AAG has supported the arguments of the learned counsel for petitioners. It is clarified that 8% meant for widow and 2% for divorcee would be on the 30% seats meant for women and not on the total posts. If any Zila Parishad had acted and provided reservation to widow and divorcee on total posts and not on the posts meant for women, then necessary correction would be made. With the aforesaid prayer is made that while accepting second ground, first issue raised by petitioners may be rejected.

I have considered rival submissions of the parties and scanned the matter carefully.

To address the issue of vital importance, it would be necessary to refer certain provisions of Constitution of India. Article 16 of the Constitution of India gives right of equality in public employment, whereas Article 15 of Constitution of India prohibits discrimination on the ground of religion, race, caste, sex or place of birth. Learned counsel for the parties have referred both the provisions thus it would be gainful to quote both the provisions for ready reference:

15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.-(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to

(a) access to shops, public restaurants, hotels and places of public entertainment; or

(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.

(3) Nothing in this article shall prevent the State from making any special provision for women and children.

(4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.

(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.

16. Equality of opportunity in matters of public employment.-(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.

(3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment.

(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.

(4A) Nothing in this article shall prevent the State from making any provision for reservation 3[in matters of promotion, with consequential seniority, to any class] or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.

(4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent. reservation on total number of vacancies of that year.

(5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.

Perusal of Article 15 prohibits discrimination against any citizen on the ground of religion, race, caste, sex or place of birth. In view of the above, no discrimination on the ground of sex can be made amongst citizens. Article 15(3) however gives liberty to the State for making any special provision for women and children. A careful reading of the aforesaid provision does not show a liberty to the State to provide reservation in favour of women and children, but permits special provision for women and children. It seems to be nothing but a deliberate deviation from the provision which otherwise exists under Article 16(4) of the Constitution of India. It is further necessary to refer that so far as public employment is concerned, it is governed by Article 16 of the Constitution of India. It is special provision for public employment thus question would be as to whether any other provision of the Constitution can nullify or deviate from Article 16 pertaining to public employment? If Article 16(2) is looked into, discrimination in public employment on the ground of sex is prohibited. In view of specific prohibition of Article 16(2) of the Constitution of India, a citizen cannot be discriminated on the ground of religion, race, sex, caste, etc. in public employment. It was clarified by Hon’ble Apex Court in Indra Sawhney etc. etc Vs. Union of India (supra). Para 514 is quoted hereunder for ready reference:

514. It is necessary to add here a word about reservations for women. Clause (2) of Article 16 bars reservation in services on the ground of sex. Article 15(3) cannot save the situation since all reservations in the services under the State can only be made under Article 16. Further, women come from both backward and forward classes. If reservations are kept for women as a class under Article 16(1), the same inequitous phenomenon will emerge. The women from the advanced classes will secure all the posts, leaving those from the backward classes without any. It will amount to indirectly providing statutory reservations for the advanced classes as such, which is impermissible under any of the provisions of Article 16. However, there is no doubt that women are a vulnerable section of the society, whatever the strata to which they belong. They are more disadvantaged than men in their own social class. Hence reservations for them on that ground would be fully justified, if they are kept in the quota of the respective class, as for other categories of persons, as explained above. If that is done, there is no need to keep a special quota for women as such and whatever the percentage-limit on the reservations under Article 16, need not be exceeded.

The perusal of Constitutional Bench judgment reveals that Article 15(3) cannot save the situation as all the reservations are under Article 16. It however permitted quota for women if it is kept in respective class as women are vulnerable section of the society, whatever the strata to which they belong. They are more disadvantaged than men in their own social class. If reservation is provided in the respective class, it would be permissible. It should not be for advanced class only.

The question would still be as to whether there exists conflict between Article 16(2) and Article 15(3) of the Constitution of India if reservation to vulnerable class is provided? It is for the reason that Article 15(3) provides special provision for women and children and not reservation, whereas Article 16(2) prohibits discrimination in public employment on the ground of sex. It would be necessary to give harmonious interpretation to both the provisions so as to avoid conflict and mis-interpretation. It is required to find out as to whether women can be allowed reservation or be treated by special provision. In Para 514 quoted above, reservation for women is not saved by Article 15(3) and is barred by Article 16(2) but the last portion of the para aforesaid allows post for women in their respective class. The issue aforesaid is relevant to answer the question raised in these writ petitions.

To give harmonious interpretation of Article 15(3) and Article 16(2) of the Constitution of India, it can conveniently be held that Article 16(2) prohibits discrimination amongst citizens on the ground of race, sex, caste, etc. for public employment and reservation is permissible under Article 16(4) of the Constitution of India, but it is only for backward class of citizens without discrimination on the ground of sex, caste, etc. In view of the above, what can be meant for women is the special provision under Article 15(3) but not the reservation as it would offend Article 16(2). The aforesaid has been clarified by Hon’ble Apex Court in the case of Indra Sawhney (supra) holding that women reservation cannot be under Article 15(3). It was however observed that women are vulnerable class thus be given reservation category-wise. The word reservation has been used in para 514 of the said judgment for women however in the earlier part of the said para, it is not saved by Art.15(3) and held to be barred by Article 16(2). There is no provision for reservation of women. To avoid conflict, whenever posts are kept for women, it should be considered to be a special provision instead of reservation. In that situation, posts meant for women would be filled category-wise without applying principle of reservation which permits migration.

It would be relevant to refer the judgment cited by the parties in the case of P.B. Vijaykumar (supra). In the case aforesaid, the issue was raised in reference to Rule 22A(2) of Andhra Pradesh State and Subordinate Service Rules. The rule aforesaid was providing preference to the women to the extent of 30%. Relevant Paras 4, 5, 6, 7, 8, 9 & 10 are quoted hereunder for ready reference:

4. Article16(2) provides that no citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State. The ambit of Article 16(2) is more limited in scope than Article 15(1) because it is confined to employment or office under the State. Article 15(1), on the other hand, covers the entire range of State activities. At the same time, the prohibited grounds of discrimination under Article16(2) are somewhat wider than those under Article15(2) because Article 16(2) prohibits discrimination on the additional grounds of descent and residence apart from religion, race, caste, sex and place of birth. For our purposes, however, both Articles 15(1) and 16(2) contain prohibition of discrimination on the ground of sex.

5. The respondent before us has submitted that if Article 16(2) is read with Article 16(4) it is clear that reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State is expressly permitted. But there is no such express provision in relation to reservation of appointments or posts in favour of women under Article 16. Therefore, the respondent contends that the State cannot make any reservation in favour of women in relation to appointments or posts under the State. According to the respondent this would amount to discrimination on the ground of sex in public employment to posts under the State and would violate Article 16(2).

6. This argument ignores Article 15(3). The inter-relation between Articles 14, 15 and 16 has been considered in a number of cases by this Court. Article 15 deals with every kind of State action in relation to the citizens of this country. Every sphere of activity of the State is controlled by Article 15(1). There is, therefore, no reason to exclude from the ambit of Article 15(1) employment under the State. At the same time Article 15(3) permits special provisions for women. Both Articles15(1) and15(3) go together. In addition to Article 15(1) Article 16(1), however, places certain additional prohibitions in respect of a specific area of state activity viz. employment under the State. These are in addition to the grounds of prohibition enumerated under Article 15(1) which are also included under Article 16(2). There are, however, certain specific provisions in connection with employment under the State under Article 16. Article16(3) permits the State to prescribe a requirement of residence within the State or Union Territory by parliamentary legislation; while Article 16(4) permits reservation of posts in favour of backward classes. Article 16(5) permits a law which may require a person to profess a particular religion or may require him to belong to a particular religious denomination, if he is the incumbent of an office in connection with the affairs of the religious or denominational institution. Therefore, the prohibition against discrimination on the grounds set out in Article 16(2) in respect of any employment or office under the State is qualified by clauses (3), (4) and (5) of Article 16. Therefore, in dealing with employment under the State, it has to bear in mind both Articles 15 and 16 – the former being a more general provision and the latter, a more specific provision. Since Article 16 does not touch upon any special provision for women being made by the State, it cannot in any manner derogate from the power conferred upon the State in this connection under Article 15(3). This power conferred by Article15(3) is wide enough to cover the entire range of State activity including employment under the State.

7. The insertion of Clause (3) of Article 15 in relation to women is a recognition of the fact that for centuries, women of this country have been socially and economically handicapped. As a result, they are unable to participate in the socio-economic activities of the nation on a footing of equality. It is in order to eliminate this socio-economic backwardness of women and to empower them in a manner that would bring about effective equality between men and women that Article 15(3) is placed in Article 15. Its object is to strengthen and improve the status of women. An important limb of this concept of gender equality is creating job opportunities for women. To say that under Article 15(3), job opportunities for women cannot be created would be to cut at the very root of the underlying inspiration behind this Article. Making special provisions for women in respect of employment or posts under the State is an integral part of Article 15(3). This power conferred under Article 15(3) is not whittled down in any manner by Article 16.

8. What then is meant by “any special provision for women” in Article 15(3)? This “special provision”, which the State may make to improve women’s participation in all activities under the supervision and control of the State can be in the form of either affirmative action or reservation. It is interesting to note that the same phraseology finds a place in Article 15(4) which deals with any special provision for the advancement of any socially or educationally backward class of citizens or Scheduled Castes or Scheduled Tribes. Article 15 as originally enacted did not contain Article 15(4). It was inserted by the Constitution First Amendment Act, 1951 as a result of the decision in the case of The State of Madras v. Champakam Dorairajan AIR 1951 SC 226 setting aside reservation of seats in educational institutions on the basis of caste and community. This Court observed that the Government’s order was violative of Article 15 or Article 29(2). It said: –

Seeing however, that clause (4) was inserted in Article 16, the omission of such an express provision from Article 29 cannot but be regarded as significant.

9. In the light of these constitutional provisions, if we look at Rule 22-A(2) it is apparent that the Rule does make certain special provisions for women as contemplated under Article 15(3). Rule 22-A(2) provides for preference being given to women to the extent of 30% of the posts, other things being equal. This is clearly not a reservation for women in the normal sense of the term. Reservation normally implies a separate quota which is reserved for a special category of persons. Within that category appointments to the reserved posts may be made in the order of merit. Nevertheless, the category for whose benefit a reservation is provided, is not required to compete on equal terms with the open category. Their selection and appointment to reserved posts is independently on their inter se merit and not as compared with the merit of candidates in the open category. The very purpose of reservation is to protect this weak category against competition from the open category candidates. In the case of Indra Sawhney while dealing with reservations, this Court has observed (at paragraph 836) :-

It cannot also be ignored that the very idea of reservation implies selection of a less meritorious person. At the same time, we recognise that this much cost has to be paid, if the constitutional promise of social justice is to be redeemed.

These remarks are qualified by observing that efficiency, competence and merit are not synonymous and that it is undeniable that nature has endowed merit upon members of backward classes as much as it has endowed upon members of other classes. What is required is an opportunity to prove it. It is precisely a lack of opportunity which has led to social backwardness, not merely amongst what are commonly considered as the backward classes, but also amongst women. Reservation, therefore, is one of the constitutionally recognised methods of overcoming this type of backwardness. Such reservation is permissible under Article 15(3).

10. Rule 22-A(2), however, does not provide for this kind of reservation for women. It is a Rule for a very limited affirmative action. It operates, first of all, in respect of direct recruitment to posts for which men and women are equally suited. Secondly, it operates only when both men and women candidates are equally meritorious. This is an express condition of Rule 22-A (2), thus limiting its application. In other words, it contemplates a situation where, in the selection test – whether it is written or oral or both, a certain number of men and women candidates have got an equal number of marks. If the number of posts to which these equally situated men and women can be appointed are limited, and all of them cannot be appointed, then preference to the extent of 30% is required to be given to women. This is clearly an affirmative action of preference to the extent of 30% for women. To give an illustration, supposing there are in the merit list, at a certain point in the order of merit, 20 candidates – men and women, who have secured equal marks. There are only ten posts which have to be distributed amongst these 20 candidates. In such a situation, 3 out of these 10 posts will be given to women while the remaining 7 posts will have to be allotted among the remaining 17 candidates. In such a situation if there are any departmental rules for giving preference they will operate. For example such rules at times provide that a person who is older in age will be preferred, all other thing being equal. This kind of preference may have nothing to do with merit. It may be merely an administrative guideline to select from amongst those who are equally meritorious. Sometimes educational qualifications are looked at to find out the marks obtained by the candidates in the examination. It could be that the examination taken by different candidates is of different institutions or universities and is taken at different times. Nevertheless, these marks are looked at to select some candidates out of a group of equally meritorious persons. These norms for selection out of equally meritorious persons, do not come into play under Rule 22-A(2) for giving preference to women. The phrase “other things being equal” does not refer to these other norms for choosing from out of equally meritorious persons. For example, it would be somewhat starting to find men and women who have not merely got the same number of marks in the selection test but are also born on the same day in the same year. It is not the intention of Rule 22-A(2) that it would apply only if all the candidates have not merely the same number of marks in the selection test but are also born on the same date, or have identical marks in the qualifying diploma or degree examination. The preference contemplated under Rule 22-A(2) will come into operation at the initial stage when in the selection test for the post in question, candidates obtain the same number of marks or are found to be equally meritorious. Rule 22-A(2) prescribes a minimum preference of 30% for women, clearly contemplating that for the remaining posts also, if women candidates are available and can be selected on the basis of other criteria of selection among equals which are applied to the remaining candidates, they can also be selected. The 30% rule is also not inflexible. In a situation where sufficient number of women are not available, preference that may be given to them could be less than 30%.

Perusal of paras quoted above reveals that Article 15(3) of the Constitution of India provides for affirmative action even in public employment. It may be even reservation in favour of women. The fact however cannot be ignored that Article 16(2) prohibits discrimination amongst citizens in public employment on the ground of sex and Article 16(4) does not provide reservation in favour of women. The Constitutional Bench judgment in the case of Indra Sawhney (supra) has not approved reservation for women under Article 15(3) rather it is barred under Article 16(2). I have no hesitation to observe that when specific provision exists in the Constitution to provide fundamental right to citizen in public employment, it cannot be subjected to other provision of the Constitution governing different field otherwise there would be conflict in two fundamental rights. The aforesaid view is supported by para 514 of Indra Sawhney’s judgment (supra) where reservation for women is not saved by Article 15(3). It seems that relevant para of Constitutional Bench judgment was not brought to the notice of the Court in the case of P.B. Vijaykumar (supra). In any case, this court is to follow larger Bench judgment in case of conflict in two judgments.

In my opinion, judgment of the Hon’ble Apex Court in the case of P.B. Vijaykumar (supra) has to be read in reference to Rule 22A of the Rules referred therein. It was not to provide reservation to women, but preference to the extent of 30% posts. It was held that every thing being equal, preference can be given to the women. In that event, it would not violate Article 16(2) of the Constitution of India, rather saved by Article 15(3) of the Constitution of India. It can be thus safely held that so far as earmarking certain posts for women are concerned, it can be saved by Article 15(3), if considered special provision for women and not by reservation. In the instant case, 30% posts have been reserved for women, but to simplify the issue, it can be construed to be a special provision for women to earmark 30% posts for them. By giving aforesaid interpretation, obvious violation of Article 16(2) would be avoided to save provision for keeping 30% posts for women under Article 15(3) of the Constitution of India without holding it to be reservation. Keeping 30% posts for women may result and be loudly construed to be reservation, but argument aforesaid can be nullified by holding that for 30% posts for women by special provision, principle as applicable to the reservation would not be applicable. The posts meant for women would be filled from the category it is meant, without inter changeability as women are vulnerable in each category as held in para 514 in the case of Indra Sawhney (supra). There keeping posts for women category-wise is made permissible. The obvious deviation from the general principle of reservation is regarding inter changeability. In reservation, open/general category means every category but if it is construed to be special provision, it would not be required to be dealt with the same principle of inter changeability as applicable in reservation and while doing so, difference between reservation and special provision would come out and is required to be made otherwise there would be no difference in reservation and special provision. The special provision would provide post to each class separately as women are vulnerable in each category, whether general, SC, ST and OBC.

Learned AAG has cited several judgments, but I find those judgments either on an issue different than raised herein or if judgment is in reference of women reservation then it was not on interchangeability of woman candidates from one category to another. If the reservation in favour of women is saved under Article 15(3) then it would be in conflict with the judgment of Constitutional Bench in the case of Indra Sawhney (supra). What will prevail is the judgment of Constitutional Bench thus I am not required to discuss all the judgments referred by counsel for either of the parties other than relevant and referred in the earlier paras and judgments in conflict to Constitutional Bench judgment.

Coming to the facts of this case, it would be necessary to refer the relevant rule. It was brought by way of amendment. The relevant rule is quoted hereunder for ready reference. The rule was amended further to provide quota for widow and divorcee.

7B. Reservation of vacancies for woman candidates.- Reservation of vacancies for woman candidates shall be 30% categorywise, in direct recruitment. In the event of non-availability of eligible and suitable woman candidates in a particular year, the vacancies so reserved for them shall be filled up by male candidates and such vacancies shall not be carried forward to the subsequent year and reservation shall be treated as horizontal reservation i.e. the reservation of woman candidates shall be adjusted proportionately in the respective category to which the woman candidates belong.

The rule aforesaid is applicable to all the services listed in the amendment. As per rule, posts meant for women should be filled from the category to which she belongs. The rule however used the word reservation in favour of women though it is not permissible under Article 16(2) of the Constitution of India and not saved by Article 15(3) in view of Constitutional Bench judgment in the case of Indra Sawhney (supra). The posts meant for female candidates can be saved only when it is termed to be special provision instead of reservation. The detailed discussion has already been made on the aforesaid issue. Thus, applying the principle laid down in this judgment and difference made between reservation and special provision, migration of reserve category to open category, as is permissible in reservation, cannot apply. Interpretation of the rule has to be made in such a manner which may save the posts meant for female and at the same time, it remains in consonance to the constitutional mandate and ratio propounded by Hon’ble Apex Court in the case of Indra Sawhney (supra). Para 514 of the said judgment quoted earlier reveals that while reservation in favour of women is not saved under Article 15(3) yet looking to the vulnerable condition of female in each category, special provision can be made for general, SC/ST and OBC women. In the background aforesaid, posts kept for women are looking to their vulnerable condition in their own category irrespective of caste and class. Hence, posts meant for each category are to be filled from an amongst said category alone and not by way of migration. If migration is permitted then virtually posts meant for women will turn out to be reservation not permissible under Article 16(2) of the Constitution of India. In the background aforesaid, even the definition of general/open category as applicable in reservation would not apply herein otherwise there would be no difference between reservation and special provision. It is however necessary to clarify that keeping posts for women (general) without migration would not be a reservation in favour of general caste, but is an outcome of special provision in favour of women in all categories looking to their vulnerable condition. The upliftment of women is required in all the categories, whether general, SC, ST or OBC etc. In view of above discussion, the first question is answered in favour of the petitioners. The merit list of the respective posts may be prepared accordingly.

The time has now come to consider the pattern of reservation exists in the country. It should not be for the purpose to divide citizens on the basis of caste and at the same time to see that a downtrodden citizen of any caste is given benefit of reservation so as to give true meaning to backward class used under Article 16(4) of the Constitution of India.

The question now comes regarding 8% and 2% posts meant for widow and divorcee. The issue aforesaid needs no discussion as it has been agreed by learned Additional Advocate General that calculation of 8% and 2% posts meant for widow and divorcee would be maintained on the posts earmarked for women and not on the total posts advertised for any category. The issue aforesaid is concluded by the aforesaid.

With the discussion made above, all the writ petitions are disposed of. This disposes of stay applications also.

[M.N. BHANDARI],J.

FRBOHRA/11119CWP2012.doc

Certificate:

All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.

FATEH RAJ BOHRA, P.A.

Sh Teerth Guru Pushkar Purohit … vs Pt Ramakant Parashar on 10 January, 2013

Rajasthan High Court
Sh Teerth Guru Pushkar Purohit … vs Pt Ramakant Parashar on 10 January, 2013
    

 
 
 

 (1) S.B. Civil Misc.  Appeal No. 2477 of 2012
Shri Teerth Guru Pushkar Purohit Sangh Trust and anr. vs. Pt. Ramkakant Parashar 
(2) S.B. Civil Misc.  Appeal No. 1638 of 2011
Pandit Hari Prasad Parashar vs. Shri Teerth Guru Pushkar Purohit Sangh Trust and anr 
(3) S.B. Civil Misc.  Appeal No. 1593 of 2011
Pandit Prashant Parashar vs. Shri Teerth Guru Pushkar Purohit Sangh Trust and anr.   

(4) S.B. Civil Misc.  Appeal No. 1642 of 2011
Pandit Ajay  Parashar vs. Shri Teerth Guru Pushkar Purohit Sangh Trust and anr.  
(5) S.B. Civil Misc.  Appeal No. 1758 of 2011
Pandit Ashok Parashar vs. Shri Teerth Guru Pushkar Purohit Sangh Trust and anr. 
(6) S.B. Civil Misc.  Appeal No. 1759 of 2011
Pandit Narendra Parashar vs. Shri Teerth Guru Pushkar Purohit Sangh Trust and anr.   
  
 ---- 

HONBLE MR. JUSTICE MAHESH CHANDRA SHARMA

10.1.2013

Mr.Mahendra Goyal in SBCMA No. 2477 of 2012 for the appellants
Mr. Kapil Prakash Mathur for the appellants in SBCMA Nos.1593/2011,1758/2011 and 1759/2011 and for the respondent in SBCMA No.2477 of 2012.

Mr. Peush Nag for the appellants in SBCMA No. 1638 of 2011 and 1642 of 2011
Mr. Sunil Kumar Singh for the respondents in SBCMA Nos.1593/2011, 1758/2011, 1642/2011, and 1638/2011

The subject matter of dispute in all these appeals is same and hence they are being heard together and are being disposed by this common order.

2. SBCMA No.2477 of 2012 has been filed by Shree Teerth Guru Pushkar Purohit Sangh Trust and its President against the order dated 11.4.2012 passed by Additional District Judge No.2 Ajmer in Civil Misc. Case No. 7/12 (178/11) whereby the application filed by the respondent-plaintiff under Order 39 Rules 1 and 2 CPC was allowed. SBCMA Nos.1593/2011, 1638/2011, 1642/2011, 1758/2011 and 1759/2011 have been filed by the appellants Pandit Prashant Parashar, Pandit Hari Prasad, Pandit Ajay Parashar and Pandit Nartendra Parashar against the different order dated 5.2.2011 passed by Additional District Judge No.3 Ajmer in Civil Suit Nos. 277/2010, 278/2010, 283/2010, 101/2010 and 102/2010 whereby the applications for interim injunction filed by the plaintiffs under Order 39 Rules 1 and 2 CPC against the defendant- respondents, who are respondents in these appeals were rejected.

3. Brief facts of the case as stated in SBCMA No. 2477 of 2012 are that Pushkar Sarovar, the most sacred lake in India, also recknoned as the Holi of the Holiest is situated in Pushkar known as the kind of sacred places. As per Padam Puran, the lake came to be created by the Lotus which fell to earth from the hand of the Brahma, the creator of the World. As per the Bronze inscription ( Tamra Patra) in Samwat 1144, the then Maharaja Nahar Rao Padihar of Mandore, Jodhpur who also ruled the Pushkar, conferred the honour and office of the Pushkar Guru and all the rights relating to Purohitai of the Pushkar Sarovar upon the ancestors of the appellants/defendants, i.e. Guru Shri Gokleshwarji. It was stipulated that the rights of Purohitai would be hereditary and the descendants of Guru Shri Gokleshwar ji only would be entitled to do Seva Pooja and Purohitai of the Pushkar Sarovar. Since then, the descendants of Guru Gokleshwar Ji who now are divided in seven thoks comprising of about 1800 families, which constitute a religious denomination in itself, are doing Purohitai and do perform the Seva Pooja and other rituals of Pushkar Sarovar as pr their religious belief. To do Seva Pooja, ministration of Seva Pooja to have offerings not only from the Jijmans but also from the pilgrims of Pushkar Sarovar is the ancestral, hereditary and customary right and privilege of the descendants of Guru Gokleshwar Ji. The law and the custom have recognised the Jijmani and Purohitai rights as proprietary and customary rights and privileges which are not only inheritable but sometimes, transferable also. Maharaja Nahar Rao Padihar and subsequently, the other Ruilers of Pushkar have conferred Jagirdari of Pushkar as well as of Villages in the vicinity upon the descendants of Guru Gokleshwar Ji. During the British Rule, the Rules were framed for guidance of Shamlat Committee which comprised of the seven Thoks, the descendants of Guru Gokleshwar Ji, in the matter of management and distribution of the income from the Jagir of Pushkar. The elections of the Shamlat Committee were being held under the control of the Tehsildar, Ajmer. With the advent of the Ajmer Abolition of Intermediaries and Land Reforms Act, 1955, the Jagir came to be abolished and the members of seven Thoks were held entitled for the compensation of the Jagir and tangilble immnovable rights in the property by the court of Compensation Commissioner, Ajmer vide its order dated 17.8.1963. The right of seven Thoks to receive compensation on resumption of the Jagir was recognised by the civil court vide its order dated 12.11.1959. These findings were upheld even by the Division Bench of the High Court vide its judgment dated 9.9.1969. Even after abolition of the Jagir, the hereditary and customary right of ministering worship and Purohitai of Pushkar Sarovar continues with the descendants of Guru Gokleshwarji which has not been taken away by any provision of law. The appellants have exclusive right to accept the offerings from the Jijmans and pilgrims coming for worship of Pushkar Sarovar.

4. It has been stated in appeal No.2477 of 2012 that the plaintiff- respondent who admittedly was not the member of seven Thoks or for that matter, the descendants of Guru Gokeshwarji filed a suit for permanent injunction without seeking the relief of declaration against the appellants alleging that he was prevented on 26.8.2010 by some people from ministering Seva Poojas and from Purohitai at Sarovar. Since he was member of the registered Trust, the defendant No.1, he was entitled for minsitering Seva Pooja and Purohitai. An injunction was sought against the defendants not to prevent him to do worship of Pushkar Sarovar and to accept offerings from the pilgrims coming for worship of Pushkar Sarovar. Alongwith the suit the plaintiff filed an application under Order 39 Rules 1 and 2 CPC read with section 151 CPC. The defendants filed their reply to the application for temporary injunction wherein it was submitted that the plaintiff was resident of village Palsana, Jaipur, has started living in Pushkar about 7-8 years ago only and was running his Kirana business in the name of Sidheshwar General Store. It was denied that the plaintiff had any ancestral or customary right of Purohitai at Pushkar Sarovar which was available to the descendants of Guru Gokleshwar Ji only. It was prayed that the application filed by the plaintiff may be dismissed. The trial court vide its order dated 11.4.2012 allowed the temporary injunction application filed by the plaintiff.

5. Similarly the temporary injunctions applications in SBCMA Nos. 1593/2011, 1638/2011, 1642/2011, 1758/2011 and 1759/2011 before the trial after hearing the parties, the trial court rejected the temporary injunction applications filed by the plaintiff- appellants and hence they have filed the the above appeals. In SBCMA Nos.1593/2011, 1638/2011, 1642/2011, 1758/2011 and 1759/2011 this court on different dates passed interim orders and the respondents were restrained to stop the appellants from performing the work of Purohitai at Pushkar Lake.

6. I have heard the learned counsel for the parties and also perused the orders passed by the trial court in the temporary injunction applications filed by the appellants. It would be in the interest of justice to direct the trial court in all the civil suits pending before the trial court to conclude the trial within a period of six months from the date of receipt of certified copy of this order. Ordered accordingly. Till then the interim orders passed by this court in the appeals filed by the appellants in SBCMA Nos.1593/2011, 1638/2011, 1642/2011, 1758/2011 and 1759/2011 and the temporary injunction granted by the trial court (Additional District Judge No.2 Ajmer ) in Civil Misc. Case No. 7/12 (178/11) dated 11.4.2012 shall remain continued.

7. With the above directions these misc. appeals are disposed of. The stay applications are also stand disposed of. The record of the case if received in all these appeals may be sent back to the trial court immediately.

(Mahesh Chandra Sharma) J.

Pareek/-

All corrections made in the judgment/order have been incorporated in the judgment/ order being emailed.

(O P Pareek)
PS-cum JW

Sita Ram Baberval vs State Of Rajasthan Through P.P on 21 November, 2011

Rajasthan High Court
Sita Ram Baberval vs State Of Rajasthan Through P.P on 21 November, 2011
    

 
 
 

  In the Court of Judicature for Rajasthan at Jaipur Bench Jaipur
Judgment

SB Criminal Misc. 2nd  Bail Application No.8812/2011
Sita Ram Baberwal-Applicant
vs.
State of Rajasthan-Respondent

Date of Judgment : 21st November,2011

HON’BLE JUSTICE MS. BELA M. TRIVEDI

Mr.Biri Singh Sr. Advocate along with Mr.Rajesh Kumar Saini, for the applicant.

Mr.Laxman Meena, Public Prosecutor for the State

This is a second bail application filed by the applicant accused after the dismissal of first application being SB Cr. Misc. Bail Application No.5549/2011 which was permitted to be withdrawn at the said stage.

Applicant along with the other accused was arrested in connection with FIR No.238/2011 registered at Police Station J.D.A., Jaipur for the offences under sections 420,467,468,471 and 120B IPC.

It has been submitted by learned Sr. counsel Mr. Biri Singh for the applicant that the earlier application was withdrawn by the applicant and therefore was not decided on merit. It has further been submitted that the chargesheet in the instant case has already been filed by the Investigating Officer after the completion of investigation and the complainant Ashok Kumar Jain along with others have already filed civil suit being No.223/2011 against the present accused and others in the court of District and Sessions Judge, Jaipur Metropolitan, Jaipur in which the Addl. District and Sessions Judge No.6, Jaipur Metropolitan, Jaipur had directed the parties to maintain status quo as regards the suit property with the consent of the parties. He also submitted that the applicant is ready and willing to abide any condition that may be imposed by the court. Learned Public Prosecutor Mr. Laxman Meena has not much resisted the application.

Having regard to the submission made by learned counsel for the parties and to the documents on record, it appears that the chargesheet has already been submitted by the Investigating Officer. Without entering into the merits of the case, since the chargesheet has already been filed and some civil suit is already pending between the parties, the present application deserves to be allowed.

Accordingly, the second bail application is allowed and the applicant is released on bail in FIR No.238/2011 registered at PS JDA, Jaipur on his furnishing a surety of Rs.50,000/- with personal bond of the like amount to the satisfaction of the trial court, on the following conditions:-

(a) that the applicant shall make himself available for interrogation by the Investigation Officer as and when required and shall cooperate with the Investigation Officer ;

(b) that the applicant shall not commit an offence similar to the offence of which he is accused or suspected, of the commission of which he is suspected;

(c) that the applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer or temper with the evidence;

(d) that the applicant shall attend the concerned court as and when directed and found necessary;

(e) that the applicant shall not leave the territory of India without previous permission of the concerned trial court, and shall deposit the passport, if any, before the trial court;

(f) that the applicant shall furnish his present correct residential alongwith the contact number before the trial court and shall also intimate the change, if any, which may take place in future to the trial court.

(BELA M. TRIVEDI ) J.

om

Rajni Naruka vs State And Ors on 16 November, 2011

Rajasthan High Court
Rajni Naruka vs State And Ors on 16 November, 2011
    

 
 
 

 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR

D.B. Civil Writ Petition No.2672/2001
Smt. Rajni Naruka vs. State & Anr.


Date of order	:: 16.11.2010.


HON'BLE THE ACTING CHIEF JUSTICE MR. ARUN MISHRA
HON'BLE MR. JUSTICE MOHAMMAD RAFIQ

None present.

***

(PER HON’BLE MOHAMMAD RAFIQ, J.)

This writ petition has been filed by the petitioner who is working as LDC on temporary basis with the respondents, with the prayer that the respondents be directed to regularise her services from the date of her initial appointment on 23.9.1998 and they be further directed not to discontinue / terminate her services and that the provisions of Section 7, 9 and 11 of the Rajasthan (Regulation of Appointment to Public Service and Rationalisation of Staff) Act of 1999 (for short-`the Act of 1999) be declared ultra vires and violative of Article 14, 16 and 21 and 39A & D of the Constitution of India.

None has appeared for the petitioner, however, we find that the matter has been laid before division bench on account of the fact that the petitioner is assailing the validity of Section 7, 9 and 11 of the Act of 1999.

Validity of those provisions have already been considered by division bench of this Court in Bhawani Singh & 17 Anr. vs. State & Ors.-2002 (3) WLC (Raj.) 728 and Section 2(v)(e) and Sections 9 & 11 of the Act have been declared ultra vires.

That issue is now not required to be examined. However, regarding the other prayer of petitioner claiming regularisation of her services, it is not known whether the petitioner is still working with the respondents because her stay application was rejected way back on 3.7.2001. If she is still working with the respondents, it is open to her to represent the respondents for redressal of her remaining grievances.

The writ petition is accordingly disposed of.

(MOHAMMAD RAFIQ), J.     (ARUN MISHRA),ACTING CJ.


RS/

Ramesh Chand And Anr vs Sub Divisional Officer And Ors on 9 November, 2011

Rajasthan High Court
Ramesh Chand And Anr vs Sub Divisional Officer And Ors on 9 November, 2011
    

 
 
 

 			In the High Court of Judicature for Rajasthan 
				                 Jaipur Bench 
					                  **

Civil Stay Application No.4153/2011
in Civil Writ Petition No.4606/2011
Ramesh Chand & Ors Versus SDO Bharatpur & Ors

Date of Order ::: 09/11/2011

Hon’ble Mr. Justice Ajay Rastogi

Mr. Saransh Saini, for petitioners
Mr. Shiv Garg, for respondents-2 & 3
Since CWP-4606/2011 has been disposed of today, instant stay application does not survive which accordingly stands dismissed.

(Ajay Rastogi), J.

K.Khatri/p1/
4153Stay4606CW2011Nov9-Ds.doc

Raj Kumar Khemani vs Nagar Mal Goyal on 3 November, 2011

Rajasthan High Court
Raj Kumar Khemani vs Nagar Mal Goyal on 3 November, 2011
    

 
 
 

 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR.


S.B.CIVIL FIRST APPEAL NO. 482/2011

RAJ KUMAR KHEMANI ...DEFENDANT-APPELLANT
VS.
NAGAR MAL GOYAL  ...PLAINTIFF-RESPONDENT

DATE OF JUDGMENT:-      NOVEMBER 3, 2011

HON'BLE MS.JUSTICE BELA M.TRIVEDI

Dr. P.C.Jain, counsel for the appellant,

Mr. R.S.Yadav, counsel for the respondent

BY THE COURT

The present appeal has been filed by the appellant ( original defendant ) challenging the judgment and decree dated 27th May 2011 passed by the Additional District Judge No.6,Jaipur,(hereinafter referred as ‘the trial court’) in Civil Suit No. 23/2008, whereby the trial court has decreed the suit of the respondent original plaintiff, directing the appellant defendant to pay Rs. 77,500/- to the respondent-plaintiff.

2. The short facts giving rise to the present appeal are that the present respondent-plaintiff filed the suit being No. 23/2008 seeking recovery of Rs. 77,500/- with interest, towards arrears of rent for the period from 15.7.2006 to 30.9.2007 from the appellant-defendant. The said suit came to be decreed by the trial court. Being aggrieved by the same, the appellant defendant has preferred the present appeal.

3. At the out set, the learned counsel
Dr. P.C.Jain for the appellant raising preliminary issue as regards the jurisdiction of the trial court submitted that the suit of the respondent plaintiff being for the recovery of arrears of rent from the appellant, the trial court being Civil Court did not have the jurisdiction to entertain the same and the court competent to decide the suit would be the Rent Tribunal. Learned counsel for the respondent also could not satisfy the Court as to how the trial court had the jurisdiction to entertain the suit, ofcourse he has submitted that the issue of jurisdiction should have been raised by the defendant at the earliest stage of the suit and the same having not been raised even at the time of framing of issue, the appellant could not have agitated the same in the appeal.

4. Having regard to the submissions made by the learned counsel for the parties and without going into the merits of the impugned decree it transpires that the issue of jurisdiction which goes to the root of the case was neither pleaded nor raised by the appellant-defendant in the suit, however, the said issue of jurisdiction being pure question of law could be raised at any stage of the proceedings and even in the appeal. Having regard to the nature of the suit being for recovery of the arrears of rent, this Court is of the opinion that the said issue of jurisdiction which was essential for the right decision of the suit was required to be raised and decided by the trial court before deciding the suit on merits and the same having not been done so, the matter is required to be remanded to the trial court under Order 41 Rule 23(A) of C.P.C.

5. In that view of the matter, the impugned judgment and decree passed by the trial court deserves to be set-aside and the case is required to be remanded to the trial court for deciding the case afresh after raising and deciding the issue of its jurisdiction. Under the circumstances, the judgment and decree dated 27th May 2011 passed by the trial court is set-aside and the matter is remanded to the trial court for deciding afresh in the light of the above observations. Both the parties shall be at liberty to lead additional evidence, only on the issue of jurisdiction and the trial court shall decide the suit afresh without being influenced by the observations made by this court in this Appeal. The Appeal stands allowed accordingly.

(BELA M.TRIVEDI)J.

ij

Dr Raizada Prakash Narain Saxe vs State on 1 November, 2011

Rajasthan High Court
Dr Raizada Prakash Narain Saxe vs State on 1 November, 2011
    

 
 
 

 IN  THE  HIGH  COURT OF JUDICATURE FOR RAJASTHAN  AT JAIPUR  BENCH, JAIPUR.  


S.B.CIVIL REGULAR FIRST APPEAL NO.510/2011

DR. RAIZADA PRAKASH NARAIN SAKSENA
...PLAINTIFF-APPELLANT

VS

STATE OF RAJASTHAN 
...DEFENDANT-RESPONDENT

DATE OF JUDGMENT:-      NOVEMBER 1, 2011

HON'BLE MS.JUSTICE BELA M.TRIVEDI

Mr. Sunil Samdaria, counsel for the appellant,


BY THE COURT 

Heard learned counsel for the appellant.

2. In this appeal it appears that the decree dated 10th of April 2002 passed by the learned Additional District and Sessions Judge, Ajmer, in Civil Suit No. 268/2001 (68/88), has been sought to be challenged, whereby the trial court had dismissed the suit of the appellant-plaintiff. It is pertinent to note that though the appeal was filed in the year 2002, it remained pending in the office for about nine years, as the application of the appellant seeking permission to file appeal as an indigent person was not disposed of. The said application of the appellant under Order 33 Rule 1 came to be allowed by the Court on 24th August 2011 and thereafter the appeal has been put up for admission/hearing today. It is very surprising that neither the appellant nor the counsel for the appellant had ever bothered to move the office for the disposal of the application pending under Order 33 Rule 1 for about nine years.

3. Be that as it may, so far as the merits of the appeal are concerned, it appears from the impugned judgment and decree passed by the trial court that appellant was appointed by the respondent on 27th July 1960 and was dismissed from service on 26.3.1961. The said order of dismissal was challenged by the appellant by filing Civil Suit being No. 17/1962 in the Court of Civil Judge Ajmer, which came to be decreed by the Court on 29th July 1969. The said decree was challenged by the respondent State Govt. by filing appeal before the District Court which was dismissed on 18.5.1972. The Second Appeal being No.643/72 filed by the State Govt. was also dismissed by the High Court on 18.3.1982, whereby the order of dismissal from service passed by the respondent was declared null and void, however, no relief for payment of arrears of salary was granted by the Court. It further appears that in the meantime the appellant kept on filing the Civil Suits being Nos. 71/72, 7/76, 124/81 and 122/1985, praying for the payment of the salary, though the appeals against the decree passed in Civil Suit No. 17/62, before the District Court and High Court were pending. The appellant again filed the present suit being No. 68/88 (268/2001) seeking arrears of salary from May 1985 to July 1988 under the guise of the decree passed in Civil Suit No. 17/62.

4. The trial court considering the evidence on record observed that the suit filed by the appellant was not maintainable as the appellant-plaintiff instead of filing execution proceedings for the execution of the decree passed in Civil Suit No. 17/62 had kept on filing suits one after the other. The trial court also observed that though the decree had become final on 18.3.1982 as per the order passed by the High Court, the suit was filed in 1988 seeking arrears of salary for the period May 1985 to July 1988, though no such relief was granted and as such was not maintainable in view of the earlier suits filed by the plaintiff. The trial Court also considered the undisputed position that the appellant-plaintiff had never served the respondents-defendants after the passing of the decree in Civil Suit 17/62 till the filing of the suit, and dismissed the suit of the plaintiff.

5. This Court does not find any illegality or perversity in the impugned judgment and decree passed by the trial court. The learned counsel for the appellant has also failed to point out any infirmities in the said decree passed by the Trial Court. There being no substance in the present appeal, the same deserves to be dismissed in limine. Accordingly the appeal is dismissed in limine.

(BELA M.TRIVEDI)J.

ij

Hari Kishore Sharma vs The State Of Raj & Ors on 21 October, 2011

Rajasthan High Court
Hari Kishore Sharma vs The State Of Raj & Ors on 21 October, 2011
    

 
 
 

 			In the High Court of Judicature for Rajasthan 
				                 Jaipur Bench 
					                  **

S.No. CWPNos. / Name of Petitioners/ Versus

1.5940/2003 Hari Kishore Sharma Versus State & Ors.

2.4950/2002 Narayan Lal Sharma Versus State & Ors.

3.4991/2002 G.D. Falor Versus State & Ors.

4.5033/2002 S.P. Garg Versus State & Ors.

5.5424/2002 Laxman Dass Dewani Versus State & Ors.

6.8097/2002 N.L. Middha Versus State & Ors.

7.9007/2002 Heera Lal Verma & ors Versus State & Ors.

8.9011/2002 Raj. Rajya Vidyut Karmachari Versus State & Ors.

9.691/2003 Natwar Lal Harkut & anr. Versus State & Ors.

10.800/2003 Aziz & ors. Versus State & Ors.

11.807/2003 Prakash Chand Sharma & Ors Vs. State & Ors
12.2243/2003 Dhanpat Rai Yadav Versus RRVPNL & Ors.

13.3773/2003 Vipin Kumar Agarwal Versus State & Ors.

14.4801/2003 Sobhag Mal Chandak Versus State & Ors.

15.7242/2003 Manmohan Chand Jain Versus RRVPNL & Anr.

16.69/2004     Kamal Kishore Kapoor Versus State & Ors.
17.86/2004     Ganesh Narayan Jhalani Versus State & Ors.
18.2382/2004 Radhey Shyam Gupta Versus State & Anr.
19.2393/2004 Ved Prakash Arora Versus State & Anr.
20.3100/2004 Surendra Agarwal Versus State & Ors.
21.6719/2004 Bhagwan Singh & Anr. Versus Secy. Energy & Ors.
22.5476/2005 Prakash Chandra Saxena Versus State & Ors.
23.9728/2006 Sitaram Swami Versus State & Ors.
24.505/2007   G.S. Bhardwaj Versus State & Ors.
25.5033/2007 Prem Ratan Toshniwal Versus State & Ors.
26.1079/2008 Hari Singh Versus State & Ors.
27.4065/2008 S.K. Sharma & Ors. Versus State & Ors.
28.4306/2008 Ghan Shyam Gupta Versus State & Ors.
29.6007/2008 Rajendra Kumar Versus State & Ors.
30.7251/2008 Mohan Lal & Ors. Versus State & Ors.
31.8537/2008 T.S. Arora Versus RRVPNL & Anr.
32.9845/2008  R.P. Singh & Ors. Versus State & Ors.
33.10711/2008 Badri Lal Karan Versus RRVPNL
34.10915/2008 Smt. Sarwan Kaur Versus RRVPNL
35.11427/2008 S.P. Rastogi Versus RRVPNL.
36.11428/2008 Rakesh Kumar Gupta Versus RRVPNL.
37.12260/2008 Suresh Chand Tiwari &  Ors. Versus State & Ors.
38.13401/2008 Mahesh Chand Agarwal Versus RRVPNL.
39.776/2009     Hari Om Sharma Versus State & Ors.
40.778/2009     Shiv Lal  Yadav Versus State & Ors.
41.2150/2009   Rajkumar Agrawal Versus State & Ors.
42.2404/2009   Ramji Lal Versus State & Ors.
43.6266/2009  Satya Narayan Higer Versus State & Ors.
44.7081/2009  Shankar Lal Vaswani Versus  Chairman, RRVPNL
45.7083/2009   Hanuman Sahai Versus Chairman, RRVPNL
46.7084/2009   Rajender Kumar Saxena Versus Chairman, RRVPNL
47.7749/2009   Shri K.C. Mittal & Ors. Versus Secy. (ED) & Ors.
48.7914/2009   Kailash Kanwatia Versus State & Ors.
49.8018/2009   Nanchi Lal Versus Chairman, RRVPNL
50.8988/2009   Manoj Kumar Gupta & Ors. Versus State & Ors.
51.9237/2009   C.V. Thomas Versus RRVPNL & Ors.
52.9420/2009   Vidhyut Mandal Sachiwalaya Versus Secy. (ED) & Ors.
53.10288/2009  Dinesh Chandra Sharma & Ors. Versus Secy(ED)&Anr
54.10728/2009  Nathu Lal Sharma Versus State & Ors.
55.12164/2009  Nawal Kishore Agrawal & Ors. Versus State & Ors.
56.12230/2009  Kailash Chandra Bhatt Versus State & Ors.
57.12374/2009  Jagdish Prasad Agrawal & Anr. Versus State & Ors.
58.12789/2009  Surendra Kumar Nigam & Ors. Versus State & Ors.
59.12974/2009  Hemant Mishra & Ors. Versus State & Ors.
60.13500/2009  Manohar Lal Gobhuj & Ors. Versus State & Ors.
61.13802/2009  Jai Singh Saini Versus Chairman & MD & Anr.
62.391/2010     Ashok Kumar Rathore & Ors. Versus State & Ors.
63.1731/2010   Vinay Kumar Bhatnagar & Ors. Versus State & Ors.
64.3526/2010   Kamlesh Kumar Sharma & Ors. Versus State & Ors.
65.5238/2010   Shankar Lal Napit & Ors. Versus State & Ors.
66.5662/2010   Lalit Kumar Bakliwal & Ors. Versus Secy. ED & Ors.
67.8111/2010  Smt. Asha Batra & Ors. Versus State & Ors.
68.9409/2010  Tikam Chand Khatri & Ors. Versus State & Ors.
69.10900/2010 Dwarka Prasad Koolwal & Ors. Versus State & Ors.
70.12920/2010 Shiv Kumar Sharma & Ors. Versus State & Ors.
71.13183/2010 Devki Nandan & Ors. Versus Secy (Energy) & Ors.
72.13215/2010 Shri Krishna Dutta & Ors. Versus State & Ors.
73.13473/2010 Jagdish Prasad Tank & Ors. Versus State & Ors.
74.15447/2010 Suresh Kumar Rajpurawala & Ors. Vs. State & Ors.
75.1158/2011   Khyali Ram Sharma & Ors. Versus State & Ors.
76.2180/2011   Ramesh Chand Garg & Anr. Versus State & Ors.
77.2620/2011   Harish Chandra Bakhtiani Versus State & Ors.
78.3407/2011   Uttam Prakash Lalwani & Ors. Versus State & Anr.
79.3615/2011   Praveen Kumar Mathur Versus State & Ors.
80.4659/2011   Surendra Kumar Varyani Versus State & Ors.
81.10606/2011 Nikhil Choudhary Vs State (Deptt of Energy)& Ors.
82.10607/2011 Rakesh Kr. Kasliwal Vs State (Deptt of Energy)& Ors.
83.11831/2011 Bhagwati Prasad & Anr.Vs State (Energy Deptt.) Ors.

		               Date of Order     :::        21/10/2011
\Reportable/
			       Hon'ble Mr. Justice Ajay Rastogi

For petitioners: 
Mr. RN Mathur, Sr. Adv.,  & Mr. Ashok Gaur Sr. Adv., with 
Mr. Kapil Bardhar, Mr. Shashank Agrawal, 
Mr. HOP Mathur, Mr. VK Mathur, 
Mr. Rajendra Arora, Mr. Ashok Yadav, 
Mr. Prahlad Sharma, & Mr. Nitin Jain, 

For respondents:
Mr. SM Mehta, Sr. Advocate 
Mr. GC Garg, & Ms Sonal Singh, & 
Mr. LL Gupta,  for respondents-RRVPNL
Mr. Virendra Lodha, Sr. Adv. With Mr. Ankit Jain, 
Mr. Jag Mohan Saxena, & Mr. Shantanu Sharma
Mr. Pradeep Kalwani, Addl. Govt. Counsel for State
		These petitions have been filed by employees of erstwhile Rajasthan State Electricity Board ("RSEB") and presently members of Five companies came into existence after unbundling of RSEB in the year 2000. 

RSEB was constituted on 28/06/1957. However, RSEB was dissolved in exercise of powers vested under Rajasthan Power Sector Reforms Act, 1999 through Rajasthan Power Sector Reforms Transfer Scheme, 2000 and on its unbundling, it was converted into Five Companies ad infra:

(A) Rajasthan Rajaya Vidyut Utpadan Nigam Limited, Jyoti Nagar, Jaipur (“RRVUNL”)

(B) Rajasthan Rajya Vidyut Prasaran Nigam Ltd., Jyoti Nagar, Jaipur (“RRVPNL”)

(C) Jaipur Vidyut Vitran Nigam Limited, Jyoti Nagar, Jaipur. (“JVVNL”)

(D) Ajmer Vidyut Vitran Nigam Limited, Hati Bhata, Ajmer. (“AVVNL”)

(E) Jodhpur Vidyut Vitran Nigam Ltd, New Power House, Indl. Area, Jodhpur
All afore Five Electricity Companies are owned & controlled by Government of Rajasthan and its employees are absorbed in respective electricity Company on the same terms & conditions as governed while being employees of erstwhile RSEB.

All the writ petitioners are primarily aggrieved by the act of respondents in not permitting them to exercise their options for pension & GPF under the Scheme of Regulations, 1988 in place of CPF Scheme of which they have been members on their entry into service of RSEB, since Contributory Provident Fund Scheme (“CPF Scheme”) was made effective on its employees being appointed on or after 01/07/1957 and after constitution of RSEB, since there was only CPF scheme obviously they became member of CPF Scheme.

Instant petitioners were appointed on various posts in the erstwhile RSEB which was a statutory body created by the Act of the State for performing the work of generation, transmission & distribution of electricity in the State of Rajasthan. Recruitment & service conditions of its employees were governed by Rules & Regulations framed by RSEB.

It is also a matter of record that majority of petitioners are holding lowest posts in respective services of different companies created after unbundling of RSEB; and from the list made available to the Court, it appears that they are either working as LDC, Helper, Peon, Junior Engineer, Jr.Accountant, Stenographer or on technical posts-Electrician Welder, Lineman, Fitter, Meter Readers etc.; and at the same time, few of writ petitioners are holding posts of Class-II & I, as well. But, most of them are in ministerial/technical cadre holding lowest posts in the ladder.

In exercise of powers conferred U/s 79 of Electricity (Supply) Act, 1948, the RSEB constituted by Rajasthan Government vide Notification dt.28/06/1957 framed the following Regulations for the matters provided in S.79(c) of the Act for its employees & officers :

(1) RSEB Employees Pension Regulations, 1988 (Pension Scheme, 1988″) and
(2) RSEB Employees General Provident Fund Regulations, 1988 (“GPF Scheme, 1988”);

making it effective from 28/11/1988. Pursuant to which, options were invited by the RSEB from its officers & employees to submit their written consent for pensionary & gratuity benefits on the same lines/Rules as are being allowed to the erstwhile employees of the Electrical & Mechanical (E&M) Department opted Board’s service, within Ninety days from the date of notice issued pursuant to the Pension & GPF Scheme, 1988 having come into force.

After introduction of RSEB Pension & GPF Scheme, 1988, first notice came to be issued on 06/01/1989 for grant of options to the RSEB employees who are availing retiring benefits admissible under the RSEB CPF Rules/Jodhpur CPF Rules to come over to the pensionary & GPF benefits under RSEB Pension & GPF Regulations, 1988. Thereafter, time & again such like notices came to be issued inviting options from the employees and lastly it was issued on 04/02/1997 to exercise their options on or before 30/06/1997.

But instant writ petitioners are those unfortunate who for one reason or the other details whereof will be furnished in a later part of the order, could not submit their options pursuant to any of notices issued under Pension & GPF Regulations, 1988. When the matter again came up for consideration on a number of representations of RSEB employees pouring in to allow for exercising option to come over pensionary benefits, order came to be issued by the Secretary of RSEB on 12/03/1999 and it was observed that the mater was considered and it has been felt that it would not be desirable to provide any more option to employees as it would be a never ending exercise and it was further clarified that any request for allowing opportunity to exercise option for pensionary benefits should not be entertained in any circumstances in future.

Since opportunity to exercise option to come over pensionary benefits was completely closed, and the petitioners stood deprived from submitting their option, majority of them preferred writ petitions (CWP-6719/2004 Bhagwan Singh & Ors Vs. Secy.Energy & Ors) alongwith bunch of petitions which came to be disposed of vide order dt.28/02/2008 directing writ petitioners to make their representations and respondents were directed to examine such representations, if made and decide in accordance with law. Pursuant to Court order dt.28/02/2008, the employees submitted their representations which were rejected vide order dt.26/06/2008 by the Committee constituted by the respondents which came to be assailed in instant bunch of petitions.

It appears that some of writ petitions filed in the year 2002 or thereafter remained pending and most of the petitions in instant bunch have been filed after rejection of their representations submitted pursuant to Court orders passed in their earlier writ petitions, and the issue raised in instant bunch of petitions since being common even in pending writ petitions prior to Court order dt. 28/02/2008, they were heard together and are being decided by present order.

It is relevant to record that though the opportunity to exercise options to come over pensionary benefits was granted to RSEB employees time & again, but it appears that looking to geographical structure of the State of Rajasthan where RSEB employees are being posted in remotest areas where there are no means of communications, such employees remain completely unaware of any of such notices issued asking for options to come over pensionary benefits pursuant to Pension Regulations, 1988 and GPF Regulations, 1988.

It appears that to resolve the dispute for giving option for Pension Scheme by RSEB employees, Whole Time members & Head of Departments resolved in its meeting held on 04/01/1995 – copy of the minutes was circulated vide communication dt.02/02/1995, observed ad infra:

“1. Extension in the date of giving option for pension Scheme.

It was brought to notice that the last date for giving option for Pension Scheme by the employees under CPF Scheme had expired in1991 and many representations were being received to extend this date. Looking to the difficulty of the employees, it was decided that the facility of opting for Pension Scheme will also be available upto 6 months before retirement to the serving employees only i.e. the employee can opt for GPF pension Scheme while in service. The employee will himself be allowed to give option and not his nominee after death.”

Minutes of the meeting of the Whole Time Members & HODs (supra) was never placed before the Board if at all required for its ratification and in absence of its ratification it was not carried out. It is relevant to record that the respondents in their reply to writ petition has specifically averred that the agenda (supra) was never placed before the Board for ratification.

Main thrust of the contentions advanced by Shri RN Mathur, learned Senior Counsel appearing for petitioners is that options were invited by erstwhile RSEB indisputably on eight different occasions but in fact there was no proper circulation of such consistent notices inviting options – in absence whereof, petitioners were completely unaware of any fair opportunity being available to opt for becoming members of Pension & GPF Schemes 1988 and there being complete absence of wide publicity and circulation undertaken by the authority upon and failed to serve notices upon individual employee and on account of the fault being committed by respondents, valuable rights of petitioners to opt for and exercise option to come over pensionary benefits despite they being eligible & having fulfilled conditions provided under Pension & GPF Schemes, 1988, on account of mere technicality, their right to claim pension have seriously been jeoparadised. In support, reliance has been placed on the judgment in Dakshin Haryana Bijli Vitran Nigam Vs. Bachan Singh (2009(14) SCC 793).

Counsel further submits that Whole Time Members & HOD in its meeting held on 04/01/1995 (Ann.A/13) took unequivocal decision holding that the facility of opting for Pension Scheme will be available upto 6 months before retirement to the serving employees only and as is evident from its communication dt.02/02/1995 (Ann.A/13), and such resolution was not required to be ratified by the Board and the respondents are under obligation to act upon the decision taken by Whole Time Members in its meeting (supra) and the petitioners being in service certainly are entitled to claim by opting for pension Scheme before six months of their retirement and to opt for Pension & GPF Scheme while in service as and when they consider to be appropriate.

Counsel further submits that what has been recorded by Whole Time Members in its meeting held on 04/01/1995 is certainly in conformity with the Pension & GPF Schemes, 1988 and that apart, after introduction of RSEB employees GPF Regulations, 1988, a Note was appended & substituted vide Order No.13 dt. 09/03/1994 making it effective from the date of Pension & GPF Scheme in the Board and adequate safeguards have been provided for adjustment of CPF contribution amount out of pension & gratuity for those who opt for Pension & GPF Scheme, 1988; inasmuch as even if options being provided for existing employees at a later stage, that in no manner is going to cause any prejudice either to respondents or anyone else since inbuilt safeguards have been provided in Scheme of Pension & GPF Regulation, 1988.

Counsel further submits that when representations were made, Secretary of erstwhile RSEB took its own decision, without there being decision of the Board vide Order dt.12/03/1999 and circulated that no more opportunity will be provided to opt for pension Scheme in any circumstances which became the cause of litigation. Counsel further submits that when the decision was taken by erstwhile Board at all stages inviting options from existing RSEB employees, the decision was expected to be taken by the Board as to whether such opportunity could be further afforded or not but the Secretary or the Chairman of the Board in his individual capacity does not hold any competence in taking decision dt.12/03/1999 and rejection of their representation/ objections vide order dt.26/06/2008 is wholly arbitrary and deserves to be quashed.

In supplement to what has been urged by Shri RN Mathur, Senior Counsel (supra), Shri Ashok Gaur, Senior Counsel further submits that under Pension & GPF Regulations, 1988, there is no time fixed for option being invited from existing employees covered by definition Cl.3(k) of Pension Regulations, 1988; & restriction having been later on imposed or fixing the time Schedule in calling options from existing employees was beyond authority & competence and was not in terms of Pension Regulations 1988, options could have been furnished by existing employees while in service and time schedule provided in GPF Scheme, 1988 will not be imposed upon employees who are interested to opt for under pension Scheme, 1988.

Counsel further submits that the respondents were not competent to withhold right of existing employees in submitting options, merely on passing of administrative order dt.12/03/1999 and the benevolent Scheme could not be supplanted by administrative decision of the Board in putting ban from submitting options provided under Pension Scheme 1988 and a decision taken by respondents in not permitting existing employees to submit their option for pension Scheme, 1988 after 30/06/1997 being without authority & competence is in violation of Art.14 & 16 of the Constitution and deserves to be quashed.

A list has been supplied giving details of certain individual cases, which this Court consider it appropriate to refer herein below.

CWP-800/2003 (Aziz & Ors Vs. State) has been jointly filed by four petitioners but after death of petitioner-1 (Aziz) on 30/06/2006, his legal representatives were taken on record and who are claiming pension on the basis of option exercised by them. It has been specifically averred in the writ petition that option cum nomination exercised by petitioner-1 (Aziz) in May, 1997 was forwarded by his controlling Officer (Assistant Engineer (O&M) RSEB, Amber, Jaipur) vide letter No. 3777/dt.28/03/1998 (Ann.11) but his option form was not considered by the respondents on the premise that his option form was not acknowledged by Controller of Accounts (P&F) RSEB, Jaipur. But the fact remains that option form was submitted by petitioner-1 (Aziz) in May, 1997 and forwarded by Assistant Engineer (O&M), RSEB, Amber Jaipur on 28/03/1998 and this fact could not have been controverted by respondents in the reply and for no fault of petitioner-1 (Aziz), his option to come over pension Scheme, 1988 could not be denied.

In CWP-3100/2004 (Surendra Agarwal Vs. State), it has been inter-alia averred that petitioner submitted his option form before last date 20/05/1989 and it was forwarded by his controlling officer to the Controller of Accounts (P&F), RSEB, Jaipur but as alleged, after a delay of 11 days vide letter (No.310/ dt.01/06/1989) and this delay having occurred due to no fault on his part could not come in his way which may deny his rightful claim; however, the extension was granted upto 30/06/1997.

In CWP-13401/2008 (Mahesh Chand Agarwal Vs. RRVNP) the petitioner inter-alia averred that he submitted his option form vide letter dt.20/02/1996 (Ann.2) which was forwarded by his controlling authority to the Secretary P&F) RSEB vide letter dt.06/03/1996 (Ann.3). But he was informed vide letter dt.10/04/1996 that his option form being conditional has not been accepted, in response to which he sent representation dt.20/04/1996 (Ann.4) that there was no condition, which could be construed to be any kind thereof; yet, he clarified vide his letter dt.20/04/1996 (Ann.4) that alleged condition under letter dt. 10/04/1996 may kindly be treated as deleted and his option form may be considered. But the petitioner stood retired from service on 31/03/2010 and has prayed that he is entitled for option without going into controversy pursuant to form submitted on 20/02/1996.

In CWP-12230/2009 (Kailash Chandra Bhatt Vs. State), option form submitted by petitioner was forwarded by his controlling officer (Executive Engineer (TCU-II), rSEB, Bhilwara) vide letter dt.30/03/1996 (Ann.6) and despite last date being 30/06/1997 and his option form was forwarded by controlling authority in March, 1996 and stood retired without having benefit of pension and with this grievance, he approached this Court.

In CWP-505/2007 (GS Bhardwaj Vs. State), petitioner submitted his option form through Executive Engineer (TDM-II/III) RSEB Jaipur vide letter dt.30/03/1996 (Ann.5) much before the last date (30/06/1997). Yet his grievance was rejected by the Committee vide order dt.26/06/2008.

In CWP-1079/2008 (Hari Singh Vs. State) petitioner exercised his option in the year 1996 which was forwarded by Assistant Engineer (D-I) RSEB, Bharatpur alongwith 33 other option forms vide letter dt.30/03/1996 (in which his bane appears at S.No.7) prior to the last date i.e. 30/06/1997 but his option form has not been accepted despite it was within time fixed by respondents.

Reply to the writ petitions has been filed by respondents raising preliminary objection that instant petitions have been belatedly filed after atleast a decade of issuance of order dt.12/03/1999 when the respondents took decision not to allow any more opportunity to exercise option to come over pensionary benefits as it would be a never ending process. Further objection is that in absence of any duty being casted to extend benefit of Pension Scheme, 1988 that too when petitioners did not opt for the same despite umpteen opportunities being afforded, they cannot claim as a matter of right to exercise option to come over pensionary benefits under Pension Scheme, 1988 and being hopelessly belated, that itself disentitles them to avail of discretionary remedy U/Art.226 of the Constitution. Reliance has been placed upon decision of Apex Court in ShivDass Vs. Union of India (AIR 2007 SC 1330).

Apart from preliminary objections (supra), it has been averred in the reply that after the Pension & GPF Scheme, 1988 came into force; notices were issued by erstwhile RSEB affording opportunity to such existing employees if so desired, to exercise option to come over pensionary benefits and despite eight times, opportunities being afforded still petitioners failed to exercise such options and are raising lame excuses, that will not give any right to seek protection of the Court, claiming permission to become members of Pension & GPF Scheme, 1988, more so when the Scheme, 1988 does not permit to this effect and that apart, the Board took its decision vide its order dt.12/03/1999 that hence forth, it has been decided not to consider any more request in future.

Regarding minutes of meeting of Whole Time Members held on 04/01/1995, it has been averred in the reply that aforesaid minutes were never approved by the Board and in absence whereof, such minutes have no legal sanctity particularly in view of subsequent decision being taken by the Board granting opportunity to submit options at least on three different occasions, thereafter. It has also been averred that one of the options to come over pensionary benefits vide notice dt. 22/08/1995 was published in official gazette dt.11/11/1999 (Ann.R/1-CWP-1731/2010) and presumption can be drawn of wide publicity extended by the Board.

Shri SM Mehta, and Shri Virendra Lodha learned Senior Counsel for respondents submits that many a times, opportunities were afforded to employees of erstwhile RSEB to submit options and become members of Scheme, 1988 but if petitioners for the reasons best known to them, had failed to submit their options to come over pensionary benefits under Pension Scheme, 1988, no legal right can be conferred in their favour seeking mandamus from this Court in seeking further opportunity to submit their option under pension scheme, 1988.

Senior Counsel further submits that cut off date fixed by the RSEB inviting options was upto 30/06/1997 and that cannot be said to be arbitrary and it has a reasonable nexus to be achieved and some cut off date was to be fixed by the authority under the Scheme, 1988; and in instant case, after the RSEB employees Pension Scheme, came into force in November, 1988, options from its employees were called for to come over pensionary benefits and become members of Pension & GPF Scheme, 1988 upto 30/06/1997 and still employees if failed to submit their option, it cannot be said that any legal right of the employee have been infringed – in absence whereof, no writ could be issued in their favour as prayed for. In support, reliance has been placed upon decisions in All India Reserve Bank Retired Officers Assoc. Vs. Union of India (1992(Supp)(1) SCC 664); State of UP Vs. UP University Colleges Pensioners’ Assoc. (1994 (2) SCC 729); Union of India Vs. PN Menon (1994 (4) SCC 68); Krishena Kumar Vs. Union of India (1990 (4) SCC 207) and Union of India Vs. MK Sarkar (2010(2) SCC 59).

This Court has considered rival contentions of the parties and with their assistance, examined material on record. It is an admitted position amongst the parties that all the petitioners are employees of erstwhile RSEB and members of the CPF Scheme at relevant point of time when RSEB Pension Regulations, 1988 & RSEB GPF Regulations, 1988 came into force w.e.f. 28/11/1988 and other than impediments of the option which they had not submitted after the Pension & GPF Scheme, 1988 came into force, all the petitioners fulfill other conditions of eligibility to become members of Pension/GPF Scheme, 1988.

Only question having remains for consideration in bunch of instant writ petitions is as to whether the decision of the Board denying to the petitioners in exercising options to come over pensionary benefits and to become members of the Pension Scheme, 1988, how far action of respondents can be said to be justified and is in conformity with Pension/GPF Regulations, 1988 or is in violation of Art.14 of the Constitution of India.

Before examining submissions made at the bar, it is relevant to first quote some of relevant provisions of Pension & GPF Scheme, 1988 ad infra:

“3. Definitions – Pension Scheme –

In these Regulations unless there is anything repugnant in the subject or context –

(i) “Employee” means any person who is in the service of the Board, but does not include daily labour, Work-charged or casual employee and persons engaged on retention-cum-fee, part time, or any other basis as consultant adviser or counsels for legal, professional or any other purposes.”

(j) “Excluded employee” means an employee on regular time scale/ service who is member of the RSEB CPF Scheme and opts to continue to be the member of the said Scheme. Person employee on daily Labour/ work-charged and through contractor shall also be considered as excluded employee.”

(k) “Existing employee” means an employee who is already in the regular time scales/service of the Board on or before the commencement of the RSEB Pension Regulations, 1988.

(l) “Option” means a written consent of the existing regular employee for Pensionary & gratuity benefits on the same lines/Rules as are being allowed to the employees of erstwhile employees of the E & M Department opted Board’s service with Pensionary benefits or to continue to be the member of the CPF/EPF with benefits of RSEB Gratuity Rules, 1972 or Jodhpur CPF Scheme with benefit of gratuity under the Gratuity Act, 1972.

Note: Any person who is not covered under the definition of employee shall not be entitled to opt for Pensionary and gratuity benefits as per Board’s Government Rules/ Regulations.”

“3. Definitions – GPF Scheme, 1988
In these Regulations unless there is anything repugnant in the subject or context –

(l) “Employee” means any person employed by the Board on payment of wages or salary for any kind of work manual or otherwise.”

(m) “Excluded Employee” means an employee who having been subscriber to the RSEB CPF Scheme and Jodhpur CPF Scheme opts to continue to be the member of the said Scheme.”

(n) “Existing employee” means an employee who is already in service of the Board on or before the commencement of the RSEB Employees General Provident Fund Scheme, 1988.”

(o) “Option” means a written consent of the existing employee to become either members of the Employees General Provident Fund Scheme, 1988 or to continue as member of the existing CPF/EPF scheme covered under the EPF Act, 1952 within a period of 90 days from the date of commencement of Employees General Provident Fund Scheme, 1988 by the RSEB. Any existing employee who does not exercise the option within specified period of 90 days shall be deemed to have exercised option in favour of the existing CPF/EPF Scheme covered under the provisions of Employees Provident Fund Act, 1952. The option once exercised or deemed to have been exercised shall be considered as final and no representation in this respect shall be considered valid for any revision. It will be the personal responsibility of the concerned employee/officer to ensure that his option reaches timely in the office of the COA (P&F) RSEB, Jaipur.

Provided that a Board employee who is on that day out of India/ within India on leave or deputation or foreign service or under suspension, may exercise option within one month from the date he takes over the charge of the post, in case he does not get any intimation for exercising option within one month from the date he is required to exercise it.

(s) “Fund” means the RSEB Employees General Provident Fund, 1988.”

Note : All funds pertaining to the subscribers of the RSEB CPF, who have opted for employees General Provident Fund Scheme shall be transferred to the said Fund on its receipts from the various sources while the employer’s contribution along with interest shall be transferred to RSEB Superannuation Fund. ”

Both the Schemes of Pension & GPF, 1988 are inter-dependant and after Pension & GPF Regulations, 1988 came into force w.e.f. 28/11/1988, notices were alleged to be issued firstly on 06/01/1989 inviting options to be furnished by RSEB employees with 90 days from the date of issue (06/01/1989) in prescribed format appended to the notice in the form of Ann.A in terms of Reg.3(o) of GPF Scheme, 1988.

It further appears that since looking to geographical condition of the State where employees being posted even in remote areas of Rajasthan and are unable to understand as to what is beneficial to them or not ? Notices were issued from the Office of RSEB situated at Jaipur – brief resume whereof is furnished in tabular form ad infra:

		            Last date to exercise 	Date of notice		option to come over 							pensionary benefits  
-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-
1.06/01/1989 		90 days from the date of
					Notice dt.06/01/89.
2.04/04/1989			Further 45 days after 						expiry of 90 days fixed
					vide notice dt.06/01/89
3.11/05/1989			Extending 45 days after 						expiry of 90 days fixed
					vide notice dt.06/01/89
4.19/05/1990			Option to be exercised 
					upto 30/06/1990
5.17/09/1991			Option to be exercised 
					within 90 days from the  						date of order dt.17/09/91
6.27/01/1993			Option to be exercised 
					upto 15/03/1993
7.08/05/1995			Option to be exercised 
					upto 31/03/1996
8.22/08/1995 		Option to be exercised 
					upto 30/11/1995
9.04/02/1997			Option to be exercised 
(Last Notice)		upto 30/06/1997

It will be relevant to record that in initial notice dt.06/01/1989, it was observed ad infra:

“This notice shall be given wide publicity. Pasting of this notice on the Notice Board of Secretary, Chief Engineers, Head of Departments, Superintending Engineers, Executive Engineers and the Assistant Engineers of the Board will be treated as sufficient notice to all the Board employees for whom it is intended that they should exercise their option within the stipulated period.”

But subsequent notices issued on 04/04/1989, 11/05/1989, 19/05/1990, 17/09/1991, 27/01/1993, 08/05/1995, 22/08/1995, and 04/02/1997, nowhere indicates that such notices were given publicity or pasted at any of the conspicuous places in the Offices of the RSEB during the period in question. However, in para 3 of the notice dt.22/08/95 it has been noted ad infra:

“3. Pasting of this notice on the Notice Board of various offices of the RSEB will be treated as sufficient notice to all the retired employees of the Board for whom it is intended.”

Other than the two notices (supra), there is no indication even that notice was at all circulated in the Offices of RSEB. To be more precise, after a bunch of notices (supra), reference of notice having been published was of 06/01/1989 and thereafter there was only mention made in the salutary notice dt.22/08/1995 but from which also it is not clear as to where such notices calling for option was circulated. It appears from the record that no one has taken care of being looked into and there is no whisper of these notices being published or circulated by giving wide publicity or pasting notices on the conspicuous places of the offices of the Board and that apart, no material has been placed on record which can prima facie support that notices calling options details whereof (supra) are widely circulated or the mode which was adopted by the respondents giving it a wide publicity to make the employees who are upto the grass root level aware of their right available to exercise option if desired. It is further relevant to record that while representations were made by the petitioners in compliance of the order of the Court, that also came to be rejected vide order dt.26/06/2008.

The submissions made that notices were not sufficiently circulated or given wide publicity by the respondents while inviting options, was repelled only on the premise that on eight different occasions, notices have been issued inviting options to be furnished by RSEB employees besides initial opportunity being afforded to exercise option within 90 days as prescribed under Pension & GPF Schemes, 1988 and from the year 1989 till 30/06/1997 option was available for pension & GPF but the applicants consciously chose RSEB CPF Scheme as it being more lucrative & beneficial to them at that time and option cannot remain open endlessly & no request can now be entertained.

As regards Minutes of the meetings of Whole Time Members held on 04/01/1995, where the decision was taken to make available facility of opting for Pension Scheme upto 6 months before retirement to the serving employees meaning thereby the employee can opt for GPF Pension Scheme while in service; it was repelled on the premise that Minutes of Whole Time Members were never placed before the Board for ratification and no order/amendment was ever issued of the nature of minutes of Whole Time Members; therefore, was never implemented.

At the same time, it is relevant to record that facility of options was provided to those surplus employees of different public Sector Undertakings/Companies having subscribed for CPF in their parent organisation but on absorption in Vidhyut Cos., have been allowed to opt RSEB employees pension Scheme, 1988 at much later stage vide orders dt.14/09/2000, 19/05/2001 & 23/05/2001, respectively.

However, this Court can take judicial notice of geographical position of State of Rajasthan that the RSEB runs its offices in remotest areas as well, being situated far away having distances from Head Office, Jaipur where from Circulars/notices under various Schemes are issued and where employees are posted at far flung remote areas and it would be very difficult for applicants to know when options are being invited from amongst persons after Pension & GPF Scheme, 1988 came into force.

This Court records appreciation that as & when representations were received from employees, generosity has been shown by erstwhile Board and the notices were issued from time to time inviting from the employees to exercise their options to come over pensionary benefits under Pension & GPF Scheme, 1988; but at the same time, this fact cannot be forgotten by the Court that indeed notices (supra) are issued from the office of the Board but no one has taken care to monitor that such notices are at all received in the remote areas where the employees are posted and it was the duty of the employer to see that such notices which confer right upon the employees must reach and be served upon individual employee since his consent in the positive terms was to be obtained and he has to positively fill the option form. Apart from restrictions being imposed, pension is other-wise a right of employee and is not a bounty being paid but contraire, it is a reward for the services rendered by employee and this fact cannot be ruled out that when there were two parallel schemes available after Pension & GPF Scheme, 1988 came into force, option was to be mandatorily furnished by each employee after due application of mind as to whether he wants to continue as a member of RSEB CPF/EPF Scheme with benefits of RSEB Gratuity Rules, 1972 or Jodhpur CPF Scheme with benefit of gratuity under the Gratuity Act, 1972; or did not want to opt for Pension/Gratuity benefits introduced vide Pension & GPF Scheme, 1988.

From Option Form appended to first notice dt.06/01/1989 inviting options from individual employee, having been quoted co-extensively (supra), clearly indicates that intention to issue notice inviting option from employees was not a mere formality; and the intention behind it was that notices inviting options must reach to individual employee posted at far flung remote places so that he should apply his mind and take its own decision that he did not want to exercise option to come over pensionary benefits under Pension & GPF Scheme, 1988 and want to continue as member of CPF/EPF Scheme which he was continuing since his initial appointment with RSEB. To strengthen what has been inferred by the Court is supported by Option Form (Ann.A) appended to the initial notice dt.06/01/1989, which this Court would like to quote since it has a bearing on the issue to be decided, ad infra: Annexure A
Option Form
I, ……. S/o……. who held the post of …… on the …….Nov. 1988 and working in the office of …… RSEB…. hereby declare as under:-

*1. That I opt the benefit of pension and GPF Schemes including Gratuity as per provision made in the RSEB employees Pension Regulations, 1988 and RSEB Employees GPF Regulations, 1988. My date of appointment in regular service of the Board is ….

I also give my option that the accumulation in my RSEB CPF A/C No…../Jodhpur Contributory Fund A/C No. ……. representing as employees subscription with interest thereon be credited to the GPF A/c to be opened.

I also undertake to contribute monthly subscription towards GPF Scheme at the rates as may be decided by the Board from time to time.

I further opt that I shall not be entitled to the amount of Gratuity admissible under the RSEB Payment of Gratuity Rules, 1972/Gratuity Act, 1972/EDRI 1976 and family pension under the RSEB Employees Family Pension under the RSEB Employees Family Pension Scheme, 1971. OR
“2. I do not opt the RSEB Employees Pension/GPF Scheme, 1988 and want to continue to retain the existing benefits under RSEB CPF Scheme/ Jodhpur Contributory Provident Fund Scheme as the case may be. (Emphasis added) Signature
Attested and certified that he above employee has opted, for Pension and GPF Schemes/opted to retain the RSEB CPF Scheme/Jodhpur Contributory Provident Fund Scheme of which he is already a subscriber.

Head Office
Head of Department Signature
Name & Designation
Advance copy submitted to the Controller of Accounts (P&F) RSEB, Jaipur
Signature of the employee.”

A careful reading of option form (supra) attached to first notice (Ann.A) clearly depicts that option was invited from each of the employees of the RSEB and has to furnish undertaking that he did not intend to opt RSEB employees Pension/GPF Scheme, 1988 and wanted to continue to retain existing benefit under RSEB CPF Scheme/Jodhpur CPF Scheme; and it was to be signed by the applicant and was further to be attested by the Head of Office or Head of Department that the employee is not inclined to opt for pension & GPF Scheme and to retain the RSEB CPF Scheme/Jodhpur CPF Scheme of which he is already a subscriber.

What has been quoted (supra) indicates that the intention of the Board was not to publish a notice alone and discharged its obligation but the object behind issuance of notice under Pension Scheme, 1988 was that it must reach to the remote areas for being communicated to individual employee who has to exercise option to come over the pensionary benefits and who has to positively disclose his mind that he did not want to opt for RSEB Employees Pension Scheme, 1988; and want to continue as member of the CPF Scheme and in facts of instant case, issuance of notices inviting options to come over the pension & gratuity Scheme, 1988, in the opinion of this Court in substance remains empty formality being complied with but responsible officer has not looked into as to whether notices having been issued from the office of the Board, has ever reached to individual employee posted at remotest places in Rajasthan situated far away from Jaipur and whether his intention has been obtained in the Option Form (Ann.A) appended to the Notice dt.06/01/1989, which as informed to the Court came to be attached at all occasions, whenever notices came to be issued inviting options.

At the same time, There is no material placed on record in support of the notices inviting options (supra) that they were at all given wide publicity through circulation to make it known to each of employees posted in remote areas of Rajasthan and to obtain wishes of individual employee of the Board. In the opinion of this Court, right conferred upon RSEB employees to exercise option to come over pensionary benefits under Pension & GPF Scheme, 1988 has been seriously infringed and such action of the respondents in no manner can be considered to be in conformity with the mandate of Art.14 of the Constitution.

Apex Court in Dakshin Haryana Bijli Vitran Nigam Vs. Bachan Singh (2009(14) SCC 793) has also considered similar issue where instructions came to be issued and circulars were issued to exercise option of pension scheme but the authority failed to show and produce any material on record that such instructions were got noted in writing to the employees and in the absence whereof, it was inferred that the employee had no knowledge of the option as called for pursuant to Circulars and taking note of earlier judgment, it has been observed ad infra:

“20. This Court has taken the view that pension is reward for long service rendered by the employee and not a bounty. The Supreme Court in Subrata Sen Vs. Union of India (2001(8) SCC 71) held that: (SCC p.78, para 14)
“14. … As observed in Nakara case (1983(1) SCC 305) pension is neither a bounty, not a matter of grace depending upon the sweet will of the employer, nor an ex gratia payment. It is a payment for the past services rendered. It is a social welfare measure rendering socio-economic justice to those who in the heyday of their life ceaselessly toiled for the employer on an assurance that in their old age, they would not be left in the lurch.”

“28. In view of the law as has been articulated in a large number of cases where this Court has observed that any discriminatory action on the part of the Government would be liable to be struck down. Hence in this case, it would be totally unreasonable and irrational to deny the respondent pensionary benefits under the Scheme particularly when the appellants have failed to produce any record showing that the instructions dated 06/08/1993 & 09/08/1994 were actually got noted in writing by the respondent. In the absence of any such material, it can well be inferred that the respondent had no knowledge about the options called by the appellants.”

In the instant case, from the statements of petitioners made available to the Court, majority of petitioner-employees barring few, all are employees at the lowest in the ladder in their respective cadre holding posts of LDC, Class IV, Helper, Steno, and Technical posts of Meter Reader, Fitter, etc., and that apart, there are few employees who are either Class-II & I officers or Gazetted officers.

It is also not the case of respondents that those who are Senior Officers were ever served with notices or they had any knowledge of notices having been issued from time to time. As has been noticed by this Court, it was the duty of the Board to see that notices much reach to the employees upto grass root level since individual consent in positive terms was required to be obtained duly attested & certified by Head of Office/Department. In the facts & circumstances (supra), this Court is of the considered opinion that respondents have failed in discharge of their duty/obligation in giving wide publicity to those notices inviting options from employees to come over pensionary benefits under the scheme, 1988.

Once beneficial scheme (Pension & GPF Regulations, 1988) having come into force, employees were supposed to know while taking decision as asked for by the Board to disclose in positive terms that he did not want to opt for pension Scheme and to continue as member of CPF/EPF Scheme of which he was already a subscriber prior to the Pension & GPF Scheme having come into force w.e.f. 28/11/1988.

Further, a gazette notification has been placed before this Court alongwith reply filed by respondents to show that what more efforts was required when endeavour has been made by the Board to get notice published in the gazette, itself. It is really sorry to say that option notice dt.22/08/1995 by which respondent wants to give strength to their duty being discharged in giving wide publicity, as is evident from this notice dt.22/08/1995, it was published in official gazette dt.11/11/1999 (Ann.R/1-CWP-1731/2010) much after last date to submit option having expired on 30/06/1997 and even prior to publication whereof in official gazette dt.11/11/1999, the Board took final decision vide order dt.12/03/1999 to the effect that no such representation to exercise options to come over pensionary benefits will now be entertained as it would be a never ending exercise.

This Court also finds substance in the submissions made on behalf of petitioners that once decision was taken by Whole Time Members in the meeting held on 04/01/1995, it was atleast required to be placed before the Board for its ratification; but what has been averred by respondent is that it was never placed and approved by the Board. In the opinion of this Court, once Whole Time Members have taken decision in its meeting held on 04/01/1995 (quoted supra) which has been admitted by the respondents, it was the duty of the authority to place it before the Board being the authority in taking final decision as to whether resolution of Whole Time Members deserve ratification or not. But if there was no further process initiated pursuant to the resolution taken by Whole Time Members, mere taking decision thereafter providing further time to invite options from the employees to come over the pensionary benefits will not supersede the decision of Whole Time Members without there being express application of mind of the Board and it is also not the case of the respondents that after perusal of the minutes of the Whole Time Members, the Board took decision to grant further opportunity to the employees calling options to come over pension & GPF Scheme, 1988 and in the opinion of this Court, it was expected to be placed before the Board for ratification and by subsequent decision inviting options from the existing employees, the resolution of Whole Time members cannot stand superseded as averred by respondents. It will be relevant to record that in all such notices inviting options from RSEB employees, the decision was of the Chairman & Whole Time Member and it was subject to ratification by the Board and presumption can be drawn that extension of time granted pursuant to notices (supra) must have been ratified by the Board at a later stage but there appears no justification, why the decision of the Chairman & Whole Time Members dt.04/01/1995 was not placed for ratification by the Board.

This Court further finds substance in the submission made on behalf of petitioners that final decision was to be taken by the Board being competent authority and not by the Chairman or Secretary, as the case may be, which came to be communicated vide Order dt. 12/03/1999 holding that it would not be desirable to provide any more option to the employees as it would be a never ending exercise. No material ha been placed on record despite objection being raised by petitioners that the order came to be issued by the Secretary on 12/03/1999 and it was not the outcome of the Board’s decision which was the cause of litigation, in the absence whereof, such decision of the Secretary of the RSEB or Chairman, as the case may be, in their individual capacity, in the opinion of this Court, cannot hold good and such order/decision dt.12/03/1999 deserves to be quashed.

However, it is made clear that it is always open for the Board to take its decision at relevant point of time, but as observed (supra), Circulars & notices issued having not been given its due & wide publicity and not being notified to individual employees for taking their consent in writing, it remained an empty formality and in the opinion of this Court, sufficient opportunities have not been afforded to employees of the erstwhile RSEB in taking decision as to whether the employee wanted to continue with their existing CPF/EPF Scheme or to opt for Pension & GPF Scheme, 1988 having come into force w.e.f. 28/11/1988.

In additional affidavit filed by Shri ND Mishra, Dy. Controller of Accounts (P&F), RRVPNL, Jaipur in CWP-5940/2003 it has been stated that after unbundling of RSEB in July, 2000, the issue arising for switching over RSEB Pension & GPF Scheme, 1988 was placed thrice before the Co-ordination Committee in its 48th meeting held on 04/10/2002, 51st meeting held on 06/01/2003 & 67th meeting held on 19/02/2004 and took the decision ad infra:

“????? ?? ????? ???: ???? ???? ?? ?????? ?? ???? ???? ???????? ??????? ??? ?? ????? ??? ???? ??? ?????? ????? ?????? ?? ???? ?? ???? ???? ??? ? ?? ?? ?? ???? ??? ?? ??????? ???????? ?? ????????????? ???? ????? ????? ?? ????? ???? ???? ?”

It has been further stated in additional affidavit that presently the payment of pension is to the tune of Rs.132 Crores per annum and the contribution to the superannuation fund is Rs.55 Crores per annum and if the employees of RSEB are being afforded opportunity to opt for and become member of Pension Scheme, 1988, there will be additional financial burden besides burden after 6th Pay Commission report being adopted, as has been referred to in para 14 of additional affidavit of Shri ND Mishra. The underlined objection of respondents in not permitting to furnish option appears to be the additional financial burden to be parted with either by the Government or the Electricity Companies.

Once a positive declaration was required to be made by individual employee while filling up option form (Ann.A) appended to the notice dt.06/01/1989 after RSEB Pension/ GPF Scheme, 1988 came into force, to which he is otherwise entitled for, his right to seek option cannot be denied only on the premise that State Government or Electricity Companies claiming themselves to be the model employers have to meet out additional financial burden, if permission for submitting options at this stage is granted to the employees. But when it is looked from other side of the coin, the employees discharging duties & rendering services to the Institution, their reward in the form of Pension could not be denied to them which is otherwise their right to claim unless forbidden by law under the Pension/GPF Scheme, 1988.

The pension which the employee became entitled for, after Pension Scheme 1988 having come into force, is neither bounty or mater of grace depending upon sweat-will of the employer nor is ex-gratia payment. It is the reward for devoted services rendered and socio welfare measure rendering socio economic justice to those who in the heyday of their life ceaselessly toiled for the employer on the assurance that in their old age, they would not be left in the lurch.

That apart, on the date of presentation of the writ petitions, the petitioners were in service and it has been informed that few of them pendente petitions have retired and few of them have died and their legal representatives were brought on record. Be that as it may, they must be making their contribution as provided being member of CPF scheme and being in service are subscribers. However, there is provision under GPF Scheme, 1988 that after employee submits option and becomes members of GPF & Pension Schemes, 1988, all funds pertaining to the subscribers of the RSEB CPF who have opted for Employees GPF Scheme shall be transferred to the said Fund on its receipts from various sources while employer’s contribution along with interest shall be transferred to the RSEB superannuation fund.

Thus, apart from making cross entry in the Books of Accounts and adjustment of the funds of subscribers of RSEB CPF who opted for Pension/GPF Scheme, 1988, no further exercise is required to be undertaken and if the employee opts for pension Scheme, 1988 and that being considered to be financial burden upon State Government/Electricity Companies which appears to be root cause in constructing a Wall before them, such decision of so called model employer cannot be approved by this Court.

Submission made by Counsel for petitioner finds further strength that when surplus employees of other PSUs/Govt. Bodies absorbed/appointed after 28/11/1988 against direct recruitment quota vacancies as fresh appointees pursuant to Govt of Rajasthan (State Enterprises Department) guidelines and member of CPF Scheme in their parent organisation, they all have been permitted to become members of Pension/GPF schemes, 1988 having no lien in the department prior to entry into service in the office of respondents. At the same time, such of employees of erstwhile E & M Department & later on absorbed in erstwhile RSEB, were granted benefit of pension, may be after intervention of the Court. But ultimate fact remains that those who were employees of E & M department & absorbed in the erstwhile RSEB or such of employees of PSUs & absorbed in the erstwhile RSEB after 28/11/1988 were granted benefit of pension/GPF Scheme, 1988. There appears to be no justification as to why different standards are being adopted for those who are serving erstwhile RSEB from inception of their service & are now members of Electricity Companies after unbundling of the RSEB. In the opinion of this Court, there appears to be no justification for respondents in not permitting employees of erstwhile RSEB to submit their options, and no justifiable reason is forth coming to deprive the existing employee from their legitimate right to submit options under Pension/GPF Schemes, 1988.

Submission made by learned Senior Counsel appearing for the respondents that there was inordinate delay in filing writ petitions which dis-entitles from invoking discretionary jurisdiction of the Court U/Art. 226 of the Constitution, in the opinion of this Court does not hold good for obvious reason that indisputably, earlier writ petitioners have approached to this Court and their petitions came to be decided with the directions to submit representations and the authorities were called upon to decide the same in accordance with law and after their representations came to be rejected by the authorities vide communication dt.26/06/2008, delay, if any, cannot be attributed to writ petitioners. However, laches having caused pendente lis at least cannot be attributed to individual writ petitioner.

That apart, the rule which says that the Court may not inquire into belated or stale claims, is not a rule of law but a rule of practice based on sound & proper exercise of discretion and there is no inviolable rule that whenever there is delay the Court must refuse to entertain the petition and the question is one of discretion to be followed on the facts of each case. However, the Court may proceed in refusing grievance of petitioner on the ground of delay or laches, if any; and the delay in filing petition should not be allowed to disturb rights of third parties unless there was reasonable explanation for the delay.

However, in the instant case, no third party’s rights have conferred or accrued by reason of delay in the intervening period, in view thereof, what has been urged by respondents, is wholly without substance and deserves to be rejected.

Submission made by Counsel for the respondents while placing reliance on the series of judgments of Apex Court, that cut off date fixed by the Board which finally came to be 30/06/1997 cannot be considered to be arbitrary and it has reasonable nexus sought to be achieved, is wholly without substance for the reason that in Union of India Vs. PN Menon (supra), the Apex Court had occasion to examine that if the date has been introduced in making one entitlement to the benefits of the Scheme to those who are in service on the cut off date, thus came to the conclusion at a later stage, whether such date makes a distinction between two classes of employees amongst those who are considered to be valid classification in the given case.

But in the instant case, question for consideration is that after the Pension/GPF Scheme came into force on 28/11/1988 which indisputably makes present petitioners (being RSEB employees) entitled to become members of the Scheme, 1988 but option could not have been furnished, which has not been accepted by this Court, can that be considered to be reason to deny the right conferred upon employees to submit options when he is otherwise eligible to become member of Scheme, 1988 and cut off date is not the real question for being examined. There could be a cut off date where Scheme has been introduced for the persons who have superannuated from service, due to many constraints and it is not possible to extend the same benefits to one & all irrespective of the date of superannuation and if revised scheme regarding post retirement benefits is implemented with cut off date, its reason-ability can be examined but that is not the issue for consideration in the instant case.

Another judgment on which Counsel for respondents placed reliance in Krishena Kumar Vs. Union of India (1990(4) SCC 207) on the premise that ample opportunities have been afforded to submit option, which cannot be further extended by judicial intervention, is of no assistance for the reason that it was a case where Provident Fund Scheme was replaced in Year 1957 by the Pension Scheme that would provide posterior to this retirement certain monthly pension to each retired employee instead of making prior contribution to his provident fund; and the employees, who were already in the service on 01/04/1957 were given an option either to retain the PF benefits or to switch over to the pensionary benefits; and the fact is that all the times, 12 notices were issued while having given wide publicity and cut off date was anterior to the date of notification, and as a result, those who retired from service after cut off date (specified date) and before the notification were made eligible for exercising option despite the fact that they had already retired in the meantime and the writ petitions were filed much after the writ petitioners having retired from service and despite opportunity even after their retirement being afforded; and it was not the case that those notifications referred to in para 6 of the judgment were not made known to the individual employee who stood retired from service.

Here is the converse position where employees are still in service and options were never notified to each individual employee; and such notices were never given wide circulation and majority of employees are holding lowest post in the ladder in their respective cadre; and as observed (supra), they are working through out the State and at the places where there is no mode of communication and the authorities have failed in discharge of their duties in giving them proper notices for taking their independent decision as to whether one is wanted to continue in CPF Scheme to which he is member or to switch over the Pension Scheme, 1988 came into force w.e.f. 28/11/1988.

As regards judgment on which Senior Counsel for respondents placed reliance, in Union of India Vs. MK Sarkar (2010(2) SCC 59), it was a case where employee stood retired from service taking all benefits & having received dues under CPF Scheme and after 22 years of retirement, grievance was raised to switchover pension scheme, which was rejected by the Apex Court, hence this decision does not help in any manner to the respondents in instant case.

A number of incidences have been referred of individual petitioner that despite option form being submitted and sent through controlling authority but either it did not reach to the option accepting authority (Controller of Accounts (GPF) RSEB, Jaipur) or acknowledgment have not been obtained. When the employees are posted at different places, option form in the form of written consent was to be sent through controlling authority and some administrative decision has to be taken by the authority as to how option form submitted by individual could be brought to the office of Controller of Accounts who is final authority for the purposes so that inconvenience may not cause to individual employee and such kind of stray instances can be meted out which has also be kept in mind by the authority.

Before parting with the judgment, this Court would like to record that once a beneficial Pension/GPF Scheme, 1988 has been made effective and brought into force with an object of socio economic justice, it has to be made socially liberalized and to see that each employee being member of the service on the date of Pension/GPF Scheme, 1988 brought into force, must be provided with open opportunity in taking independent decision; as observed (supra), and his positive decision has to be obtained as to whether he did not want to opt for Pension/GPF Scheme,1988 and wants to continue with CPF Scheme of which he has already been a subscriber, and this being the basic object of Pension/GPF Scheme, 1988, this Court expects from the authority that it ought to have given a wide circulation either by publication in news paper or any other mode which may now be considered appropriate; but it may be kept in mind that it must get wide circulation/publication in the manner which may be deemed to be proper but view of the Court is that notice must reach to individual employee who are at grass root level posted in remote areas giving valuable services to the State and are completely unaware of beneficial Pension/ GPF Scheme, 1988 introduced for them.

In the net result, all the writ petitions succeed and are hereby allowed. Communication of rejection dt.26/06/2008 and Circular dt.12/03/1999 are quashed & set aside. All the RSEB existing employees covered under Reg.3(k) & 3(n) of Pension & GPF Regulations, 1988 including writ petitioners or their legal representatives who are interested to submit their options, are at liberty to exercise option as required to be furnished in the Form appended to (1) RSEB Employees Pension & (2) General Provident Fund Regulations, 1988 within reasonable time as considered by respondents to be appropriate and if such options are furnished, the respondents may take appropriate decision in accordance with law.

However, it is made clear that there is no need to file any other writ petition by any of existing employees covered under aforesaid Scheme, 1988 (supra), and the respondents are directed to afford opportunity to all similarly situated employees even if they have not approached this Court and if otherwise eligible may be granted permission to submit their respective options if inclined to become members of Pension/GPF Scheme, 1988. The procedure may be adopted in the light of observations made (supra). No costs.

(Ajay Rastogi), J.

K.Khatri/p49/5940CW2003Rsr21OctRSEB.doc