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B.L. Ojha Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 1231 of 1975
Judge
Reported in1984WLN(UC)84
AppellantB.L. Ojha
RespondentState of Rajasthan and ors.
DispositionPetition dismissed
Cases ReferredP.C. Bhagotia v. State of Rajasthan and Ors.
Excerpt:
.....in sub-rule (v) of rule 28 as otherwise the officers belonging to the sub-ordinate cooperative service (class-i) would have gained undue advantage over these, who were cleared by the departmental promotion committee in 1962 or selected by the commission in 1962. in other words, these persons belonging to the sub-ordinate cooperative service (class-i) could at best be entitled to all they would have received if it was the departmental promotion committee and not the screening committee which would have met in 1966 to consider their cases. in my opinion, this ground can not be said to be without substance and the classification thus made between officers appointed under rule 24a can not be said to be arbitrary or unjustified.;writ rejected - section 2(k), 2(1), 7 & 40 & juvenile..........the petitioner shri b.l. ojha challenges the vires of rule 28(v) of the rajasthan cooperative service rules, 1954 (hereinafter called 'the rules').2. bereft of unnecessary details, the facts giving rise to this writ application are that initially the petitioner was appointed as an auditor in the cooperative department on 17-10-52 and was confirmed on that post with effect from 14-11-53 by order dated 27-9-55. thereafter posts of grade ii inspector were advertised by the rajasthan public service commission (hereinafter called 'the commission'). the petitioner applied for that post and was selected and was appointed as inspector on temporary basis on 5-3-55. later by an order of the government dated 8-8-55, the posts of auditor were also converted into the posts of inspectors grade ii.....
Judgment:

K.S. Lodha, J.

1. By this writ application, the petitioner Shri B.L. Ojha challenges the vires of Rule 28(v) of the Rajasthan Cooperative Service Rules, 1954 (hereinafter called 'the Rules').

2. Bereft of unnecessary details, the facts giving rise to this writ application are that initially the petitioner was appointed as an Auditor in the Cooperative department on 17-10-52 and was confirmed on that post with effect from 14-11-53 by order dated 27-9-55. Thereafter posts of Grade II Inspector were advertised by the Rajasthan Public Service Commission (hereinafter called 'the Commission'). The petitioner applied for that post and was selected and was appointed as Inspector on temporary basis on 5-3-55. Later by an order of the Government dated 8-8-55, the posts of Auditor were also converted into the posts of Inspectors Grade II and the petitioner was also placed in that cadre. The posts of Assistant Registrar were advertised by the Commission in the year 1959 and the petitioner had appeared and according to him, selected for that post but for one reason or the other, the recommendations were withdrawn by the Commission in 1963 and the petitioner could not be appointed as Assistant Registrar on that basis. However, he was appointed as Assistant Registrar on a temporary basis by an order dated 2-11-60.

3. Thereafter again the Commission advertised for the post of Assistant Resister in 1952. The petitions, however, did not apply for that post and non-petitioners No. 26 to 38 were selected and appointed as Assistant Registrar by an order dated 22-8-63. Thereafter some promotions were made on the basis of the recommendation of the Departmental Promotion Committee but the petitioner's case according to him was not correctly placed before the Committee and, therefore, he could not be considered by the Departmental Promotion Committee. He had filed a writ application in that respect but later he withdrew the same. In the meantime, some other officers of the department, namely, Shri P.C. Bhagotia and others had filed writ applications before this Court, which were ultimately decided by a Division Beach of this Court and the judgment is reported in P.C. Bhagotia v. State of Rajasthan and Ors. ILR (1972) 22 Raj. 502. They had challenged the vires of Rule 24A. I need not refer to that rather in detail since the same stands reported as indicated above. It may only be mentioned that in that judgment, the Court has dealt with in detail the sources and channels of recruitment and promotion including those Under Rule 24A, which had been introduced in the Rules by way of amendment by notification dated 19-6-65 and the petitioner along with some other persons had been screened by the Selection Committee under Rule 24A and they were appointed as Assistant Registrars by order dated 4-2-66. The provisional seniority list of Assistant Registrars was thereafter issued on 28-8-69. Shri P.C. Bhagotia and Shri Ashok Jaiman etc. had challenged the validity of Rule 24A in those writ applications and the Division Bench of this Court in an appeal against the order of a learned single Judge of this Court in the writ application while maintaining the orders of appointment of a number of officers under Rule 24A, struck down Rule 24(4)(b) and, inter alia, directed the State Government to evolve principles on rational basis for giving due seniority to persons who were directly recruited by open competitive examination and the regular promotes in 1963 vis-a-vis those who were recruited under Rule 24A. It is in pursuance of this direction that the State Government in consultation with the Commission provided for the seniority by introducing Sub-rule (5) of Rule 28. It reads as under:

Not with standing the provision contained in Rule 25 regarding occurrence of substantive vacancies, the seniority of a person selected under Rule 24-A and appointed to the Service shall be determined from a date not earlier than the 31st July, 1962 or the date calculated representing one half of the period from the date of continuous officiating on the post of Assistant Registrar whichever is later, subject to the restriction that members of the Rajasthan Subordinate Co-operative Service (Class-I) so appointed shall rank en-block junior to those appointed by selection under Rule 22 and 24 in the same year or earlier years.

The petitioner is aggrieved of this in part only. To be more specific, he is aggrieved of the later part of this sub-rule by which it has been provided 'subject to the restriction that members of the Rajasthan Subordinate Co-operative Service (Class-I) so appointed shall rank en-block junior to those appointed by selection under Rule 22 and 24 in the same year or earlier years.' The contention of the learned Counsel is that this condition under Sub-rule (v) of Rule 28 discriminates between two kinds of officers who have been promoted under Rule 24A, namely, officers coming from the Rajasthan Subordinate Co-operative Service (Class-I) and the officers, who had been, put in the terms of petitioner smuggled into the co-operative department from other departments. It is contended that once the officers of the Rajasthan Subordinate Co-operative Service (Class-I) and the other officers coming from other departments had been considered as persons holding a post in the Service and screened by Screening Committee under Rule 24A, they form one class and no discrimination can be made with respect to one class of officers & the other class in the matter of seniority in these circumstances. It was also contended that by this condition, the rule meets out a better treatment to the category of persons, who were not members of the Rajasthan Subordinate Co-operative Service.

4. It was also contended that the petitioner's case was not correctly placed before the Departmental Promotion Committee and, therefore, he could not be selected in 1962 and if the correct position had been placed before the Departmental Promotion Committee, the petitioner would certainly have been selected and non-petitioners Nos. 16 to 25 would not have been so selected. One of the contentions of the learned Counsel was also to the effect that the selections made by the Commission in 1959 had wrongly been withdrawn.

5. The respondents have contested the writ application and have contended that Rule 28(v) as it stands is valid and the seniority assigned to the petitioner and non-petitioners Nos. 3 to 50 are in no way incorrect or illegal. It was contended by the learned Addl. Advocate General that the rule is not discriminatory and even if there is any classification, it is based on reason and cannot be said to be arbitrary.

6. I have given my careful consideration to the rival contentions. As already stated above, the introduction of Sub-rule (v) to Rule 28 to the Rules was on account of or in pursuance of the direction given by this Court in the special appeal in Shri P.C. Bhagotia's case (supra). Since the sources and channel of recruitment and promotion have fully been considered in detail in the aforesaid authority, I do not think it necessary to refer to the same in this order. Suffice it to say that the reason why Rule 24A under which the petitioner & non-petitioners No. 16 to 38 had been appointed as Assistant Registrar, was considered and the Division Bench had observed as under:

The conclusions of the learned single Judge and the argument of the learned Counsel are that some officers of other Departments were imported into the Co-operative Department and some of them were highly connected people smacked of nepotism. But it was done a some time in the year 1965. Ad hoc appointments became the order of the day notwithstanding a complete procedure available for direct recruitment and recruitment by promotion and emergency recruitment. We must confess that it was not a happy state of affairs. It appears to us that unable to put the clock back for continued in action from 1954 to 1965 barring on two occasions the Governor thought it fit to provide a new method of recruitment to the Cooperative Service. Thus was born Rule 24-A.

7. Now the main grievance of the petitioner is that there has been an unreasonable discrimination between the members of the Rajasthan Subordinate Co-operative Service (Class-I) and the officers who had been brought into the department from other departments although both of them have been now appointed under Rule 24A. The reason for this discrimination has been explained by the learned Addl. Advocate General on the basis of a note along with the letter of the Special Secretary to the Government Co-operative Department to the Commission dated 8-1-74. The explanation is based on the fact that under Rule 24A certain dates have been specifically mentioned and they are not without significance and it is in view of those dates that the special condition about the members of the Rajasthan Subordinate Co-operative Service (Class-I) being made en-block junior to those appointed by selection under Rules 22 and 24 in the same year or earlier years, has been imposed. According to the learned Addl. Advocate General if such a condition had not been placed in Sub-rule (v) of Rule 28, the subordinate officer who had not been cleared by the Departmental Promotion Committee held in 1962 would go up in seniority in comparison to the officers who had been so cleared by the Departmental Promotion Committee as also those officers, who had been selected by the Commission in 1963 and such a position could not have been envisaged in the same service. It was with this in view that this condition had been incorporated in Sub-rule (v) of Rule 28 as otherwise the officers belonging to the Subordinate Co-operative Service (Class-I) would have gained undue advantage over those, who were cleared by the departmental Promotion Committee in 1962 or selected by the Commission in 1963. In other words these persons belonging to the Subordinate Cooperative Service (Class-I) could at best be entitled to all they would have received if it was the Departmental Promotion Committee aid not the Screening Committee which would have met in 1966 to consider their cases. In my opinion, this ground cannot be said to be without substance and the classification thus made between officers appointed under Rule 24A cannot be said to be arbitrary or unjustified. It is true that officers, who had come from other departments to the Co-operative department and had been considered under Rule 24A may get seniority over those who were appointed on account of their having cleared by the Departmental Promotion Committee in 1962 on account of the length of their service in pursuance of Sub-rule (v) of Rule 28 whereas the members of the Subordinate Co-operative Service (Class-I) may not get that benefit but on that account alone, the rule cannot be said to be discriminatory because it has a purpose behind it and that purpose appears to be justified and reasonable. The rule therefore, cannot be struck down on this count. So far as the other contentions of the learned Counsel for the petitioner are concerned, in my opinion, they do not deserve any consideration at this stage in as much as the petitioner had already filed a writ application earlier and had withdrawn it and thereafter he did not challenge the selections made by the Departmental Promotion Committee in 1962 or the appointments made in pursuant of the selection made by the Commission in 1963. He therefore, cannot now be allowed to raise any, objection to those appointments. It would not be out of place to mention that the petitioner has already retired on superannuation and the non-petitioners have been in the capacity in which they are for a long time and, therefore, at this space of time, it would not be proper to disturb their seniority.

8. In this view of the matter, this writ application fails and is hereby rejected. No order as to costs.


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