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Mahendra Surana and ors. Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 589 of 1981
Judge
Reported in1983WLN165
AppellantMahendra Surana and ors.
RespondentState of Rajasthan and ors.
DispositionPetition dismissed
Cases ReferredAnand Prakash Saxena v. Union of India and Ors.
Excerpt:
constitution of india - articles 14 & 16 and rajasthan administrative service (emergency recruitment) rules, 1970--rule 25--validity of--persons selected under r.a.s. emergency rules form distinct group than members of r.a.s.--distinction is based upon intelligent differentia--hardship caused to petitioners--held, rule 25 cannot be struck down as violative of articles 14 & 16.;the persons selected under the emergency recruitment to become members of the rajasthan administrative service, form a distinct group or class than those who become member of such service under the r as. rules. such distinction is based on an intelligible differentia and this kind of classification based on experience, educational qualification and in some cases emoluments drawn by them and further have to.....n.m. kasliwal, j.1. as identical questions of fact and law are involved in all the above writ petitions as such the same are disposed of by one common judgment.2. in all the above writ petitions validity of rule 25 of the rajasthan administrative service (emergency recruitment) rules, 1976 (here in after referred to as the emergency rules'), has been challenged. all the petitioners are the members of the rajasthan administrative service rules, 1954 (here in-after referred to as 'the ras rules' part iii of the ras rules deals with recruitment to the service. rule 7 of the ras rules provides sources of recruitment. there are for sources of recruitment to the service after the commencement of these rules (a) by a competitive examination, (b) by promotion of administrative subordinate; (c) by.....
Judgment:

N.M. Kasliwal, J.

1. AS identical questions of fact and law are involved in all the above writ petitions as such the same are disposed of by one common judgment.

2. In all the above writ petitions validity of Rule 25 of the Rajasthan Administrative Service (Emergency Recruitment) Rules, 1976 (here in after referred to as the Emergency Rules'), has been challenged. All the petitioners are the members of the Rajasthan Administrative Service Rules, 1954 (here in-after referred to as 'the RAS Rules' Part III of the RAS Rules deals with recruitment to the service. Rule 7 of the RAS Rules provides sources of recruitment. There are for sources of recruitment to the service after the commencement of these Rules (a) by a competitive examination, (b) by promotion of administrative subordinate; (c) by selection from among the extension officers out of the categories mentioned therein (d) by special selection, from among persons other than administrative subordinates and persons governed item (c) above serving in connection with the affairs of the State. Under Sub-rule (2) of Rule 7 of the RAS Rules recruitment by competitive examinations promotion, selection from amongst extension officers and special selection shall be made in the ratio of 16:6:2:1.

3. The petitioner in writ petition No. 589 of 1981 is a direct recruit of 1972, in writ petition No. 1211 of 1981 a direct recruit of 1974, in writ petition No. 635 of 1981 a direct recruit of 1976. The petitioner in writ petition No. 1334 of 1981 is a special selectee of 1974 and the petitioner in writ petition No. 1368 of 1981 is a promotee of 1976 Except the petitioner in writ petition No. 519 of 1981, all other petitioners were already in Government Service for a number of years ranging from 5 to 25 years before their appointment to the Rajasthan Administrative Service either by direct recruitment or by promotion or by special selection. Rule 33 of the RAS Rules provides for seniority as under:

R. 33 - Seniority of persons appointed to the lowest post of the service or lowest categories of post or in each of the group/section of the service, as the case may by, shall be determined from the date of confirmation of such persons to the said post but in respect of persons appointed by promotion to other higher posts in the service or other categories of posts in each of the group/section in the service, as the case may be, shall be determined from the date of their regular selections to such posts.'

(i) that the seniority inter se of the persons appointed to the service before the commencement of these Rules shall be such as may have been determined or as here in after be determined by the State Government in accordance with the principles' and instructions set ont in Schedule V:

(ii) that subject to proviso (iii) among persons appointed to the Service during the same year from the five sources specified in Rule 7 persons appointed by promotion shall be senior to those appointed by special selection and persons appointed by special selection shall be senior to those by direct recruitment

(iii) that the persons appointed to the services by selection this year from amongst the non-RAS VA in the manner prescribe d in Sub-clause (3) to Rule 7 shall be senior to those appointed by direct recruitment in 1960 but below those to be appointed by Emergency Recruitment of 1960, i.e. persons appointed by promotions special selection and Emergency Recruitment of 1960 shall be senior to the above officers.

(iv) the persons appointed to the service by selection from the categories referred to in rule 7(ii)(c) shall be junior to those appointed by special selection but senior to those appointed by direct recruitment in the same year.

(v) that the seniority of a person appointed to the Service by special selection, if he had been appointed Assistant Secretary to Government in a substantive capacity before the promulgation of these Rules shall be calculated according to the formula by which the seniority of persons appointed to the Service' before the promulgation of this Rules is calculated namely Schedule V.

(vi) that the persons selected and appointed as a result of a selection, which is not subject to review and revision, shall rank senior to the persons who ate selected and appointed as a result of subsequent selection:

Seniority inter se of persons selected on the basis of seniority-cum-merit and on the basis of merit in the same selection shall be the same as in the next below grade.

(vii) that the seniority inter se of the persons appointed to the Service on the result of one and the same examination, except these who do not join the Service when a vacancy is offered to them, shall follow the order in which they have been placed in the list prepared by the Commission under Rule 25:

(2) In determining seniority of persons appointed to the Service in accordance with the provisions of Sub-rule (1) Government, if satisfied of any error or commission having been made in the seniority list (in consequence of incorrect date supplied by the persons appointed to the Service or otherwise) shall have the power.

(i) to fit in and adjust any person so appointed at such position therein as it may deem just and proper, and

(ii) to alter the position for the time being of any such person in the said list;

Provided-

that change in the seniority list of persons covered by proviso (i) of Sub-rule (1) will not be made by Government after 31.12.58

2. This will have effect from the 9th day of July, 1954.

Part IV of the RAS Rules deals with procedure for direct recruitment which is done by a competetive examination for recruitment to the service conducted by the Rajasthan Public Service Commission. Part V deals with procedure for recruitment by promotion. Part VI deals with procedure for recruitment by special selection. According to the petitioners RAS Rules of 1954 deal with every matter relating to the persons belonging to the Rajasthan Administrative Service. These Rules provide right from the point of determination of vacancies, to the point of appointment, promotion, confirmation, seniority, pay, discipline and conduct etc. The procedure prescribed for recruitment by RAS Rules has been in vogue for last 30 years and several recruitments have been made by the Government from time to time, through the agency of the Rajasthan Public Service Commission. However, in the years 1956, 1959 and 1976, the Governor of Rajasthan promulgated the Rajasthan Administrative Service (Emergency Recruitment) Rules. Rule 2(9) of the Emergency Rules, 1976 define service which means the Rajasthan Administrative Service. Rule 6 relates to the source of recruitment. Rule 30 relates to age, while Rule 11 relates to qualifications. Procedure for recruitment is prescribed in Part IV. Rule 25 deals with the seniority of the employees appointed under the Emergency Recruitment Rules which has been challenged in these writ petitions. Rules 6, 11 and 25 of the Emergency Rules, 1976 are reproduced hereunder, as their reference would be necessary while dealing with the arguments advanced by learned Counsel for both the parties:

Rule 6 - Source of recruitment - (1) Upto 25% of the vacancies shall be filled up from amongst employees of the Government of Rajas-than who on 31.12.1975 either held in a substantive capacity or have been working for a period of three years on 31.12.1975 in an officiating/ ad hoc/temporary capacity, on the following posts:

(i) Tehsildar;

(ii) Grade I Inspector of Devasthan Department;

(iii) Assistant Commercial Taxes Officer;

(iv) Assistant Regional Transport Officer; and

(v) Assistant Excise Officer.

The names of the candidates selected against the vacancies reserved under this sub-rule shall be arranged in the order of merit irrespective of the service to which they belong.

(2) The remaining vacancies shall be filled up from amongst other persons (hereinafter referred to as 'other persons') in profession, business or any Government or semi Government or Private employment having total monthly emoluments of Rs. 450/-.'

R.M - Qualifications - (1) A candidate must hold a degree in Articles Science, Engineering, Agriculture or Commerce of a University established by law in India or of a foreign University declared by a Government to be equivalent to a degree of a University established by law in India or a degree or diploma recognised by the Government as equivalent thereof.

(2) In respect of persons referred to in Sub-rule (2) of rule 6, a candidate must have acquired by the 1st of the month in which notice is issued by the Commission inviting applications for emergency recruitment to the service any of the following experience:

(a) continuous service for three years in any department of the Government of Rajasthan or any other State Government or the Govt., of India or Commercial firm or with a private employer on the monthly emoluments of Rs. 450/-or above;

(b) experience at the Bar for three years continuously as a Registered Legal Practitioner after obtaining degree of Bachelor of Law or equivalent degree;

Provided that the condition of the monthly emoluments of Rs. 450/- as provided in Clause (a) above shall not apply in case of candidates belonging to the Scheduled Caste and the Scheduled Tribes and woman candidates. In case of woman candidates the condition of three years continuous service shall also not apply. Provided further that in case of Ex-serviceman the condition of the monthly emoluments of Rs. 450/- as provided in Clause (a) above shall not apply if their monthly emoluments at the time of application is less than Rs. 450/- provided monthly emoluments at the time of honourable discharge/retirement from the armed forces were Rs. 450/- or above.

Explanation - Persons other than Government servants who are eligible under Clause (a) and (b) above shall furnish such proof as may be required by the Commission and an affidavit in respect of their income.

Rule 25 - Seniority - (1) Not with standing anything contained in Sule 33, of the Rajasthan Administrative Service Rules, 1954, seniority of persons appointed to the Service under these rules shall be on the basis of a mentioned year of allotment determined as follows : Year of allotment - 976 (NI + Half of N 2) where-

NI means a completed years, including broken period, after the age of 25 years of employment or practice of profession as on 1.4.76. with regular monthly emoluments there from amounting to atleast Rs. 625/-.

N2 means-Completed years after the age of 28 years of employment or practice of profession as on 1.4.76. with regular monthly emoluments there from amounting to less than Rs. 625/-.

(2) After assignment of years of allotment under Sub-rule (1), a person shall be placed in the list of Rajasthan Administrative Service Officers immediately below the junior most Rajasthan Administrative Service Officer appointed by direct recruitment in that year.

(3) Among persons appointed to the grade under there rules who are assigned the same year of allotment, inter se seniority shall be determined on the basis of age.

According to the petitioners the persons selected under the Emergency Recruitment Rules become members of the Rajasthan Administrative Service and Rule 27 of the Emergency Rules further lays down that except as provided in these rules, probation, pay, allowances, pension, leave and any other conditions of service of a person appointed to the service by Emergency Recruitment under these rules shall be regulated by the provisions of the Rajasthan Administrative Service Rules, 1954 as amended from time to time. The case of the petitioners is that the persons selected under the Emergency Rules become members of the Rajasthan Administrative Service and are regulated by the same conditions of service as a member of the Rajasthan Administrative Service except in the matter of determination of seniority which has been provided under Rule 25 of the Emergency Rules, ft is further pointed out that Rule 23 of the Emergency Recruitment Rules of 1956 which laid down a provision for determination of seniority came to be challenged by a writ petition No. 175 of 1973 filed by Shri Praveen Chand Jain. That writ petition was allowed by a learned Single Judge of this Court whereby Rule 23 of the Emergency Rules was struck down and the seniority-list prepared on that basis was also declared invalid and quashed. Special appeals were preferred by four aggrieved parties being special appeal Nos. 43/80; 151/80, 152/80 and 165/80 and the same were dismissed by a Division Bench of this Court by judgment, dated August 14,1980. Thus the Division Bench upheld the decision of the Single Bench whereby Rule 23 of the Emergency Recruitment Rules, 1956 had been struck down. It is further submitted that the State of Rajasthan also accepted the principles laid down by this Hon'ble Court in the decision referred to above and for that reason notifications have been issued on June 12,1981, (Annexures 6 and 7 in writ petition No. 569/81) by which Rule 23 of the Emergency Recruitment Rules of 1956 and 1959 has been amended. This amendment has been given retrospective effect from June 4, 1956 and December 4, 1959 respectively (the dates en which the rules of 1956 and 1959 were promulgated). Rule 23 as it stands now in the aforesaid two rules reads as under:

Rule 23 - Seniority-The persons appointed to the service by Emergency Recruitment shall rank junior to the persons appointed by the special selection and senior to the persons appointed by direct recruitment, during the same year.

Mr. Singhvi, learned Counsel for the petitioners has challenged the rule of seniority contained in Rule 25 of the Emergency Rules. It is contended that for emergency recruits of 1956 and 1959 there was one set of rule as contained in notifications issued on June 12, 1981 as reproduced above and for the emergency recruits of 1976, a different rule has been provided under Rule 25 of the Emergency Rules for the purpose of determination of seniority. The emergency recruits under the rules of 1956 and 1959 have been assigned seniority only above the direct, recruits of that particular year but below the special selectees, selectees and promotees of that year. However, the emergency recruits under the Rules of 1976 are shown to be assigned seniority by giving them the benefit of a national year of allotment as determined according to the formula under Rule 25 of the Emergency Rules.

4. It was also contended that a number of persons who had appeared in the competitive examination by direct recruitment held under the Rajasthan Administrative Service Rules of 1954 were not selected, while the petitioners and persons similarly placed were selected in the year 1972, 1973, and.1974 and 1976. Thus the persons who could not compete by way of direct recruitment were subsequently selected under the Emergency Recruitment Rules of 1976. Though the persons who were already in Govt. Service and were appointed by direct recruitment under the R.A.S. Rules of 1954 have not been given a day's benefit for the purpose of assignment yea r of allotment, yet the Emergency Recruits have been given such a benefit with the help of formula N 1, N 2.

5. It is also contended that the petitioner K.D. Khan, in writ petition No. 1334 of 1981 and petitioner Baloo Ram in writ petition No. 1368 of 1981 had long years of Government service to their credit. Baloo Ram had entered Govt. Service in 1951 and was substantively appointed as Tehsildar in 1960. K.D. Khan entered Govt. Service in 1958 and came to be appointed as Record Officer in 1975. Balloo Ram was promoted to Rajasthan Administrative Service on December 8, 1973. Inspite of that neither of them has been given any weightier of their part service or experience except that they were entitled to rank senior to the direct recruits of the year in which they were recruited by promotion or special selection. Against this Balooram Kamlesh whose name appears at item No. 86 had entered Govt. Service in 1972 as Naib Tehsildar and had been recruited under the Emergency Rules. 1976 and has been assigned seniority over Baloo-Ram, who had 19 years more service than Baloo Ram Kamlesh. Likewise Shri Jagdish Narain who was appointed in the service in 1962 and promoted; as Tehsildar much after Balooram has been assigned seniority at No. 22 Balaram Madnop who had now been assigned seniority at No. 93 had entered Government service on October 7, 1971.

6. It is next contended that actual method of recruitment under the Emergency Rules is the same and once they are appointed to the Rajasthan Administrative Service, they merge with the general cadre of Rajasthan Administrative Service and no distinction remains with reference to the source of recruitment. Once all Rajasthan Administrative Service Officers become member of the service, no distinction can be made with reference to their source of recruitment for the purpose of assignment of seniority, Reliance in this regard is placed on the following rulings in Roshan Lal Tandon and other v. Union of India and Ors. : (1968)ILLJ576SC . The General Manager, South Central Railway, Secunderahod and Anr. v. A.V.R. Sidhanti and Ors. : (1974)ILLJ312SC and Mohammed Shaut All and Ors. v. Union of India and Ors. : (1976)IILLJ115SC . On the basis of the above ruling it is contended that rule regarding seniority must have a co-relation with the object sought to be achieved by it and with the distinction sought to be made between the persons recruited under the R.A.S. Rules of 1954 and under the Emergency Rules, 1976. It is submitted that Rule 25 of the Emergency Rules fails in both the tests. It makes no absolute artificial classification of persons recruited under the Emergency Rules, 1976 from the larger class of persons who constitute the Rajasthan Administrative Service.

7. It is also contended that when the direct recruits under the R.A.S. Rules & Emergency Rules recruits under the emergency rules are appointed to the Rajasthan Administrative Service with the similar academic qualifications, there is absolutely no justification for making a distinction between these two classes. That apart so far as the promotes, selectees and special selectees are concerned, they are all Government servants and have vast administrative experience on subordinate and other parts. Now if the rule making authority has considered their past service etc. only for the purpose of giving them seniority over the direct recruits of that particular year, there cannot be any justification for giving weightier by way of allotment to these recruits under the Emergency Rules on the ground that these persons were experienced persons.

8. It was further submitted that Rules 6(2) and 11 of the Emergency Rules envisaged that in the Emergency recruitment a person. Who filled the requisite academic qualifications need not be in a Government service. He could be in a private employment or may be in a gainful employment in any business or Corporation. For the purpose of eligibility under Rule 11(2)(b) even there was no requirement of particular monthly emoluments. This rule has not been an acted necessarily with the object of having experienced hands only. A broad object of the rule was only to recruit persons to Rajasthan Administrative Service necessitated by immediate requirement of officers and nothing more than that. That being so, it was absolutely irrational to give benefit of so called national year of allotment with reference to one year's period after 20 years taking into consideration the emoluments of Rs. 625/- p.m. or less than Rs. 625/-. It is further argued that the pay scale of the R.A.S. Officers with effect from September 1, 1976 is in the grade of Rs. 750- 1150 being the basic pay & approximate emoluments of a person who entered the Rajasthan Administrative Service on September 1, 1976 by direct recruitment was about Rs. 1,000/-. That being so the fixing of Rs. 625/- cannot have any justification for the purpose of determination of seniority.

9. It is also argued by Mr. Singhvi that so far as the promotees under the Rajasthan Administrative Service Rules are concerned only persons belonging to the category of Administrative Subordinates can be promoted These administrative subordinates who are promoted under the RAS Rules are not entitled to any benefit of their past service, but a person who is appointed from amongst the category of Administrative Subordinates under the Emergency Rules is entitled to count his past service with reference to formula N1 + N2.

10. Mr C.N. Sharma on behalf of the respondents, on the other hand, argued that so far as services of the Emergency Recruitment Rules as a whole are concerned were earlier challenged vide writ petition No. 365/78, Anand Kumar v. State and two other similar writ petitions namely, Hurt Narain v. State and Noor Mohammad v. State and the aforesaid three writ petitions were dismissed by a common judgment, dated November 6, 1976 and it was held that the RAS (Emergency Recruitment) Rules, 1976 were valid. Apart from the above decision of this Court the rule laid down by Hon'ble Supreme Court of India in the case A.P. Saxena v. Union of India AIR 1965 SC 754 fully answers the objection raised by the petitioners. It is contended that like the RAS Rules, 1954 there are also Indian Administrative Service Rules, 1954. Under the said IAS Rules, Rule 4(1) provides for the recruitment to the Indian Administrative Service by the following three, methods-(a) by competitive examination; (b) by promotion of substantive members of State Civil Service and (c) by selection in special cases from among the persons holding gazetted post in substantive capacity who are not members of the State Civil Service. This Rule 4(1) of the IAS Rules in material particulars is the same as Rule 7 of the RAS Rules. Rule 4(3) of the IAS (Recruitment) Rules, 1904 provides as under:

Rule 4(3) Not with standing anything contained in Sub-rule (1) if in the opinion of the Central Government the exigencies of the service so require, the Central Government may after consultation with the State Government and the Commission, adopt such methods of recruitment to the service other than these specified in the said sub-rule, as it may by regulations made in this behalf prescribe.

Under the provisions of the aforesaid Rule 40) of the IAS (Recruitments) Rules, the Central Government framed the Indian Administrative Service (Special Recruitment) Regulation, 1956. It is submitted that the Indian Administrative Service (Special Recruitment) Regulations, 1956 are in material particulars of the same nature as the RAS (Emergency Recruitment) Rules 1976. It is thus submitted that Rule 4(3) of the IAS (Recruitment) Rules was challenged before the Supreme Court in A.P. Saxena's case (supra) and the Supreme Court held it was a valid Rule and in para 20 made the following significant observations:

Rule 4(3) does not suffer from the vice of excessive delegation. It authorises the Central Government to make regulations for special recruitment. In making the regulations the Central Government is to be guided by the exigencies of the service and the advice of the State Governments, and the Union Public Service Commission. These authorities are the best judges of the appropriate regulations to be made in the matter. In the light of their expert knowledge they can adapt for this purpose the existing regulations for other, methods of recruitment with suitable modifications or make other appropriate regulations having regard the exigencies of the service. As a matter of fact, the special recruitment Regulations, 1960, framed under Rules 4(3) have adapted for the purposes of special recruitment by competitive examination, promotion and selection with appropriate modifications.

11. It was next contended that the Governor was competent to frame a different seniority Rule for the emergency recruits as there was a separate seniority Rule for special recruits under the I.A Section (Special Recruitment) Regulations. In this connection it is pointed out that for fixing inter se seniority of I.A.S Officers recruited by one of the three methods under the I.A.S. (Recruitment) Rules, 1954 the Central Government framed the I.A.S. (Regulation of Seniority) Rules, 1954. Rule 5-A of the I.A.S. (Regulation of Seniority) Rules, 1954 provided as under:

5-A. Seniority of Officers appointed under the Indian Administrative Service (Special Recruitment) Regulations 1956.

Notwithstanding anything contained in any of the provisions of these rules, the seniority of officers appointed to the Service in accordance with the regulations framed under Sub-rule (3) of Rule 4 of the Indian Administrative Service Recruitment Rules, 1954, shall be determined in accordance with such regulations, as the Central Government may, after consultation with the State Governments and the Commission from time to time make.

It is then submitted that under the aforesaid Rule 5-A the Central Government framed the Indian Administrative Service (Seniority of Special Recruits) Regulations, 1960, Relevant provisions of the above mentioned Regulations, 1960 are reproduced below:

3. Assignment of year of allotment.

(1) Every officer appointed to the service under regulation 3 of the I.A.S. (Special Recruitment) Regulations 1956, shall be assigned a year of allotment in accordance with the provisions of this regulation.

(2) In the case of officers appointed in accordance with for the sake of ready reference Clause (a) of Regulation 3 of the I.A.S. (Special Recruitment) Regulations 1956 is reproduced below;-'(a) by direct recruitment by selection.

Clause (a) of Regulation 3 of the I-A Section (Special Recruitment) Regulations 1956, their year of allotment shall be determined on the following basis:

Year of allotment : 1956 Minus (N 1 plus half of N 2)

provided that in calculating N 1 and N 2 only completed years of service shall be taken into account.. ... ... ... ... ... ... ... ... ... ... ...Explanation-

The period (including broken periods) spent in service or other employment or profession of calling by an officer after attaining the age of 25 years upto 31st March, 1958, will be N.N will be divided into two parts, N1 and N2.

(a) N, will be period (including broken period) Out of N during which the officer drew a basic pay of Rs. 800/- per mensem and above.

(b) N2 will be. period (including broken period ) out of N during which the officer drew a basicp ay of Rs. 200/- per mensem and above but less than Rs. 810/- per mensem.

(3) In the case of officers recruited by promotion from the State Civil Service under Clause (b) of Regulation 3 read with Regulation 9 of the IAS (Special Recruitment) Regulations 1956 the year of allotment shall be fixed in accordance with the provisions of Clause (b) of Sub-rule (3) of Rule 3 of the IAS (Regulation of Seniority) Rules, 1954.

(4) ...

(5) ...

It is contended that the aforesaid regulation 3 of the Regulations of 1960 was challenged as being violative of Articles 14 and 16 of the Constitution of India. Negativing the challenge the Supreme Court in A.P. Saxana's case (supra) in para 22 observed as under:

Special recruits from a distinct class; They are neither direct recruits nor promotees. Rule 9 of the IAS Recruitment Rules does not treat them as direct recruits. Regulation 3(3) of the Special Recruits Seniority Regulations properly adapts the formula applicable to promotees for fixing the seniority of special recruits. The regulation, therefore, is not arbitrary nor violative of Articles 14 and 16 of the Constitution of India.

It is thus submitted that the impugned Rule 25 of the Emergency Rules, 1976 is on similar lines as Regulation 3(1) and (2) of the IAS (Seniority of Special Recruits) Regulations, 1960.

12. Mr. Sharma further argued that the emergency recruits are not equals with the persons selected under the RAS, Rules and Articles 14 and 16 of the Constitution cannot be made applicable in case of persons who are not equals. It was also submitted by Mr. Sharma that the petitioners have been recruited under the provisions of RAS Rules which prescribe different conditions of eligiblity than the Emergency Rules, 1976 under which the respondents have been recruited. The respondent form a distinct group from which the petitioners have been left out. Similarly the petitioners form a distinct group from which the respondents have been left out. The petitioners and the respondents thus form separate and distinct groups and they are not equals. In the case of Jaisinghani v. Union of India : [1967]65ITR34(SC) it has been held by the Supreme Court as under.

The concept of equality in the matter of promotion can be predicated only when the promotees are drawn from the same source. If the preferential treatment of one source in relation to the other is based on the differences between the said two sources, and the said differences have a reasonable relation to the nature of the office or offices to which recruitment is made, the said recruitment can legitimately be sustained on the basis of a valid classification.

Reliance is also placed by Mr. Sharma on the following observations in Ramesh Prasad v. State of Bihar : (1978)ILLJ197SC :

Though the concept of equal protection and equal opportunity undoubtedly permits the whole spectrum of an individuals employment from appointment through promotion and termination to the payment of gratuity and pension, it has an inherent limitation arising from the very nature of the constitutional guarantee. Equality is for equals, that is to say those who are similarly circumstanced are entitled to an equal treatment. The guarantee of equality does not imply that the same rules should be made applicable to all persons inspite of differences in their circumstances and conditions.

It is further argued by Mr. Sharma that the Emergency recruits have been recruited on the basis of their experience acquired by them in State Service, profession of law and other professions with minimum monthly/income and educational qualification and Rule 25 gives weight age to only those emergency recruits for their past experience who were drawing monthly emoluments of Rs. 625/-. These emergency recruits were required to man the service for the efficient implementation of Five Year Plans on the basis of their experience and maturity. Reliance is placed on the following observations in State of Mysore v. P. Nar Singha Rao : (1968)IILLJ120SC .

It is well settled that though Article 14 forbids class legislation, it does not forbid reasonable classification for the purpose of legislation. Where any impugned Rule or statutory provision is assailed on the ground that it contravenes Article 14, its validity can be sustained if two tests are satisfied. The first test is that the classification on which it is founded must be based on an intelligible differentia which distinguishes persons or things grouped together from others left out of the group and the second test is that the differentia in question must have a reasonable relation to the object to be achieved by the Rule or statutory provision in question. As we have already stated, Articles 14 and 16 form part of the same constitutional code of guarantees & supplement each other. In other words Article 16 is only an instance of the applicability of the general rule of equality laid down in Article 14 and it should be construed as such. Hence there is no denial of equality of opportunity unless the person who complains of discrimination is equally situated with the person or persons who are alleged to have been favoured.

Mr. Sharma also placed reliance on Col. A.S. Iyer v. V. Balasubramanyam : (1980)ILLJ441SC and in para 44 it was observed as under.

The reasoning is simple. The functional compulsions of the Survey of India require army engineers to be inducted, say half its Class I strength. These engineering officers have to possess some years of experience. How, then, can they be attracted into the Survey except by assuring them what they were enjoying in their existing service, viz., credit for the years under commission in reckoning seniority and fitment of their salary at a point in the scale of class I officers so that, by way of personal pay or otherwise, a cut may be obviated. This is not discrimination or favoured treatment but justice to those whom, of necessity, you want and must, therefore, pay what they were being paid in the Army and give service credit for the years on commission because you need man with specified years of commissioned service. To equate them with general civilian freshers is precisely the Procrustean exercise which is unconstitutional equality asethemtized by Article 14.

He also placed reliance on the following observation in Bishan Sarup Gupta and Ors. v. Union of India and Ors. : [1975]1SCR104 ;

Various considerations came in when recruitment is made from various sources and dates other than the dates of appointment may determine the seniority inter se. There is no question of discrimination in such circumstances.' (Paras 12 & 13)

For the purpose of fixing inter-se seniority, it cannot be contended that promotees and direct recruits become one class immediately pn entry because unless they are integrated in accordance with the seniority rules, there is no question of their becoming one class. (Paras 14 & 15)

It must be clearly understood that this Court is not concerned with Govt.'s policy in recruiting officers to any service. Government runs the service and it is presumed that it knows what is best in the public interest. Govt. knows the calibre of candidates available and it is for the Govt., to determine how a particular service is to be manned-whether by direct recruits or by promotees or by both and if by both what should be the ratio between the two sources having regard to the age factor, experience and other exigencies at service. Commissions and Committees appointed by the Govt., may indeed give useful advice, but ultimately it is for the Govt. to decide for itself. (Para) 17)

In the next place, we have to remember that it would be wrong to pronounce adversely upon the new seniority rule merely because its impact on the fortunes of any particular individual officer.

Mr. Sharma also placed reliance on Ganga Ram and Ors. v. The Union of India and Ors. : [1970]3SCR481 It was also argued by Mr. Sharma that the respondents are not intergrated into one class of RAS on their recruitment under the Emergency Rules, 1976, but are integrated into service only after the application of Rule 25 of the Emergency Rules. It is also submitted by Mr. Sharma that the promotees, selectees and special selectees under the RAS Rules do not belong to the same class as emergency recruits. The promotees, selectees and special selectees have neither to appear in a written competitive examination like the emergency recruits nor the promotees have to face an interview before a high powered Board which the emergency recruits have to face. The promotees are promoted in due cource and they are selected on the basis of seuiority-cum-merit which means that unless the Confidential Reports of a particular person is bad, he would be promoted automatically.

13. It was also argued by Mr. Sharma that the vires of a statutory Rule cannot be assailed merely for the reason that it adversely effects the prospects of an individual. Reliance in this regard is placed on Bishan Swaroop Gupta's case (supra). Apart from that it is also pointed out that the special selectees under the RAS Rules get their seniority from back date according to the year of vacancies for special selectees.

14. Mr. A.K. Bhandari, appearing for the respondents supported the arguments of Mr. Sharma and further placed reliance on Ram Nagina Prasad v. The Union of India and Ors. 1979 (3) SLR 379. The State of Punjab v. Joginder Singh : AIR1963SC913 , Ramlal Wadhwa and Anr. v. The State Reserve Bank of India v. N.C. Paliwal and Ors. : [1977]1SCR377 K.B. Shola and Ors. v. Union of India and Ors. UJ (SC) 1979 page 3196 & Ramesh Prasad Singh v. State of Bihar and Ors. : (1978)ILLJ197SC .

15. I have given my thoughtful consideration to the arguments advanced by learned Counsel for both the parties and have throughly perused the record.

16. The petitioners have not challenged the entire Emergency Recruitment Rules and rightly so as the validity of such Rules has been upheld by this Court Anand Kumar v. State of Rajasthan & two other writ petitions decided on November 6, J 978 as already referred to above. The Supreme Court also in A.P. Saxena's case (supra) has upheld the validity of the Indian Administrative Service (Special Recruitment) Regulations, 1956. The only controversy which has been raised in these writ petitions is the validity of Rule 25 of the Emergency Rules and quashing the seniority-list prepared in pursuance to the aforesaid Rules. In this regard it has to be examined whether Rule 25 of the Emergency Rules is violative of Articles 14 and 16 of the Constitution or not? It is well settled that though Article 14 forbids class legislation, it does not forbid reasonable classification for the purpose of legislation. When any Rule is assailed on the ground that it contravenes Article 14, its validity can be sustained if two tests are Satisfied. The first test is that the classification on which it is founded must be based on an intelligible differentia which distinguishes persons or things grouped together from others left out of the group, and the second test is that the differentia in question must have a reasonable nexus with the object to be achieved by such rule or statutory provision in question. It is also well settled that there is no denial of equality of opportunity unless the person who complains of discrimination in equality situated with the person or persons who are alleged to have been favoured.

17. I shall now consider the validity of Rule 25 of the Emergency Rules on the above touch-stone. The preamble of the Emergency Rules of 1976 provides that these rules have been made by the Governor under Article 309 of the Constitution of India regarding emergency recruitment to posts in the Rajasthan Administrative Service necessitated by the immediate requirement of officers. Sub-rule (1) of Rule 6 of the Emergency Rules provides for sources of recruitment according to which up to 25% of vacancies shall be filled up from amongst employees of the Government of Rajasthan who on December 31, 1975 either held in a substantive capacity or have been working for a period of three years on December 31, 1975 in an officiating/ad hoc/temporary capacity on the posts, mentioned therein. The posts mentioned in this sub-rule are identical with the administrative subordinates defined under the RAS Rules. But under the RAS Rules administrative subordinates are entitled to be recruited in the service by promotion. Under Sub-rule (2) of Rule 6 of the Emergency Rules the remaining vacancies shall be filled up from amongst other persons in profession, business or any Govt., or semi Govt., or private employment having total monthly emoluments of Rs. 450/-. Rule 11 of the Emergency Rules prescribes that a candidate must hold a degree in Arts, Science, Engineering, Agriculture or Commerce of a University established by law in India or of a foreign University declared by the Government to be equivalent to a degree of a University established by law in India or a degree or Diploma recognised by the Government as equivalent thereof. It is also provided under Clause (a) of Sub-rule (2) of Rule II of the Emergency Rules that a candidate should be in continuous service for three year's in ally department of the Government of Rajasthans or any other State Government or the Government of India or Commercial firm or with a private employer on the monthly emoluments of Rs. 450/- or above, under Clause (b) continuous gainful employment for three year in any business, occupation other than the legal profession and under Clause (c) experience at the Bar for three years continuously as a registered legal practitioner after obtaining degree of bachelor of law or equivalent degree. Under proviso (ii) of this Rule it is provided that the condition of the monthly emoluments of Rs. 450/- as provided in Clause (a) above shall not apply in case of candidates belonging to the Scheduled Caste and the Scheduled Tribes and woman candidates. In case of woman candidates the condition of three years continuous service shall also not apply. Part IV of the. Emergency Rules provides for procedure of recruitment by inviting applications under Rule 15 of the Emergency Rules! Rule 18 of the Emergency Rules provides for scrutiny of applications. Rule 19 of the Emergency Rules provides for written test according to which the candidates who are found eligible shall be required to undergo written test; in the three paper of General English and Essay, General Hindi Essay's and General Knowledge The written test shall be conducted by the Commission. Rule 20 of the Emergency Rules then provides for viva voce which carries 200 marks. The minimum qualifying marks in viva voce have been provided as 70 marks for candidates other than those belonging in the Scheduled Castes and the Scheduled Tribes and for the Scheduled Castes and Scheduled Tribes candidates it shall be 50 marks. Under Rule 22 of the Emergency Rules the recruitment Board shall prepare a list of candidates whom they consider suitable for appointment to the service and the final selection is then made by the Government under Rule 23 of the Emergency Rules. The entire scheme of the above provisions shows that all such persons who are to be recruited under the Emergency Recruitment must possess qualifications prescribed under Rule 11 of the Emergency Rules and have to quality in the written test and also obtain minimum qualifying marks in viva voce and then the candidates are selected who stand highest in the order of merit in the list prepared by the recruitment Board under Rule 2 of the Emergency Rules. There is thus a clear departure in the source of recruitment, qualifications and procedure of recruitment in between the emergency recruits and the persons becoming the member of the Service under the RAS Rules So far as the promoters which are taken from the administrative subordinates, selectees and special selectees under the RAS Rules are concerned, they need hot be graduates and they are not required to pass any written test or secure any qualifying marks in viva voce. So far as the direct recruits under the RAS Rules ate, concerned they are tot required to have any experience of three years as provided under sub-rule (2) of Rule 11 of the Emergency Rules. That means even a fresh graduate from the University is entitled to be selected by direct recruitment under the RAS Rules, but in case of emergency recruitment, ft is necessary for a candidates apart from holding a degree, to further possess any experience of three years either as a servant of a State Government or Government of India and holding and drawing monthly emoluments of Rs. 450/- of above, of continuous gainful employment for three years in any business, occupation or experience of the Bar for three years. Thus it is proved beyond any manner of doubt that persons selected under the Emergency recruitment to become members of the Rajasthan Administrative Service, form a distinct group or class than those who become member of such Service under the RAS Rules. Such distinction is based on an intelligible differentia and this kind of classification based on experience, educational qualification and in tome cases emoluments drawn by them and further have to qualify in the written test and viva voce, cannot not be held to be violative under Article 14 of the Constitution of India.

18. The next question closely connected with the first question is whether the rule of seniority laid down under Rule 25 of the Emergency Rule satisfies the reasonableness of the object to be achieved by such rule. Once it is held that the emergency recruits form a distinct class or group and are not equally situated with the persons who become members of the Service under the RAS Rules, it becomes necessary for the State Government to lay down upon principle regarding seniority of emergency recruits. The State Government, while making such rules in the light of their expert knowledge can adopt for this purpose the existing regulations for other methods of recruitment with suitable modifications or make other appropriate provisions having regard to the exigencies of the service. Such rules can be struck down by this Court if they have no reasonable nexus with the object to be achieved or may be clearly arbitrary. In the present case Rule 25 of the Emergency Rules provides for giving a national year of allotment for toe purpose of seniority which is determined as follows;

Year of Allotment + 1976 (N 1 + Half of N 2), where:

N 1 means-completed years, including broken periods, after the age of 28 years, of employment or practice of profession as on 1.4.1976, with regular monthly emoluments therefrom amounting to atleast Rs. 625/-.

N 2 means-completed years, after the age of 28 years of employment or practice of profession as on 1.4.1976, with regular monthly emoluments therefrom amounting to less than Rs. 625/-.

Under the above provision N 1 applies where a person has completed years after the age of 28 years in the employment or practice of profession as on 1.4.1976 with regular monthly emoluments amounting to atleast Rs. 625/-. While N 2 means completed years after the age of 28 years of employment or practice of profession as on 1.4.1976 with regular monthly emoluments amounting to less than Rs. 625/-.In case of year of allotment only half of N2 will be counted. Thus the above rule which gives weightage to the experience after the age of 28 years of employment or practice of profession and gives completed years in case of regular monthly emoluments amounting to at atleast Rs. 625/- and half of such period in case where monthly emoluments are less than Rs. 625/-, cannot be said to be arbitrary or having no reasonable nexus with the object to be achieved. The rule of seniority contained under Rule 13 of the RAS Rules can have no similarity with Rule 25 of the Emergency Rules as the persons falling in these two classes are not equals and form a distinct class or group. Even if for arguments sake it may be admitted that this rule of seniority as contained in Rule 25 of the Emergency Rules is acting harsh in the case of the petitioners Balooram and K.D. Khun as illustrated in the arguments by Mr. Singhyi, but that cannot be made a basis to strike down Rule 25 of the Emergency Rules as being discriminatory under Articles 14 and 16 of the Constitution of India. The petitioner Baloo Ram might have become Tehsildar in 1960, but he was promoted to Rajasthan Administrative Service on the basis of seniority-cum-merit and had not to undergo the written test and viva voce as was necessary for emergency recruits. It has not been stated in the writ petition that he is a graduate.

19. I shall now deal with Praveen Chand Jain's case decided by Division Bench of this Court to which I was a party and on which strong reliance has been placed by Mr. Singhvi. In that case Praveen Chand who was a member of the Rajasthan Administrative Service having been selected, by direct recruitment, had challenged the validity of Rule 13 of the Rajasthan Administrative Service (Emergency Recruitment) Rules, 1936. Praveen Chand became a member of the Rajasthan Administrative Service on the basis of selection through a competitive examination held by Rajasthan Public Service Commission in January 1956 and was appointed by order, dated August 20, 1956. On May 31, 1956, Emergency Rules of 1956 were promulgated. Kumari Sukalika Sen and four others were appointed to the Rajasthan Administrative Service by selection is accordance with the Emergency Rules and were appointed to the Service by an order of the Government, dated July 10, 1957. The Government issued a seniority-list on July 30, 1958 and other seniority-list on July 15, 1960 and July 1, 1964 and in all the-these lists Praveen Chand was shown senior to all the Emergency recruits. Clause (c) of Rule 23 of the Emergency Rules, 1976 laid down that persons who were eligible to appear at the competitive examinations held in December 1954 and in January, 1956 for recruitment to the service shall be placed junior to those who were appointed to the service as a recruit of those examinations. By a notification, dated July 27, 1967, the above Clause (c) of Rule 23 of the Emergency Rules was deleted. Even after the aforesaid amendment in Rule 23, a seniority-list of RAS Officers as on November 1, 1967, was published in which Shri P.C. Jain was shown senior to the above five persons. Thereafter by an order dated February 23, 1972 the Government re-determined the seniority and placed Praveen Chand Jain below the above five persons In these circumstances Praveen Chand filed a representation to the Government on March, 11,1972, but his representation was. rejected on May 24, 1972, and then he filed a writ petition on January 13, 1973, challenging the vires of Rule 32 and to quash the seniority-list published on February 23, 1972, The writ petition was allowed by Agrawal, J. and the judgment of learned Single Judge was challenged by filing special appeals under Section 18 of the Rajasthan High Court Ordinance. It was held as under:

Now under the RAS Service (Emergency Recruitment) Rules, 1976, Rule 15 deals with the determination a seniority of persons appointed to the service under the said Rules and a formula has been deprived for determination of the national order of appointment on the basis of the length and experience in service of practice of profession with regular monthly emoluments there from amounting to atleast Rs. 625/-. There is no such provision in Rule 23 of the Emergency Rules and gives a blanket power to the State Government to determine the seniority is as ad hoc manner. This post of power without laying down any guidelines or principles for determining the inter se seniority of persons appointed to the Service by emergency recruitment and by direct recruitment under the RAS Rules being violative of Articles 14 and 16 of the Constitution of India has to be struck down.

While dealing with the case of Anand Prakash Saxena v. Union of India and Ors. : (1969)ILLJ373SC it was observed in Praveen Chand's case's as under:

Learned Counsel for the appellants have placed reliance on Anand Prakash Saxena v. Union of India and Ors. : (1969)ILLJ373SC . In this case tbeir lordships of the Supreme Court considered the vires of Rule 3(3)(b) of Indian Administrative Service (Regulation of Seniority) Rules, 1954, and held that it was not violative of the provisions of Article 14 and 16 of the Constitution as it attempted to strike the just balance between the conflicting claims of the promotees and direct recruits by giving to the promotees the year of allotment of the junior most direct recruits officiating continuously in a senior post earlier than the date of commencement of such officiating by the promotee and only in these cases where no direct recruit was officiating continuously in a senior post on an earlier date, the seniority was to be determined ad hoc. It was observed that the said regulation properly adopt the formula applicable to promotee for fixation of seniority of such recruitees entitled by promotion and that is the matter of seniority of officers recruited from the State Civil Services are placed on the same footing. As already discussed by us earlier Rule 21 of the Emergency Rules do not specify the aforesaid test laid down by their Lordships of the Supreme Court in the above case. Rule 23 does not adopt the formula laid down in Anand Prakash Saxena's case (supra), on the contrary it enables the State Government to fix seniority in a manner as to render the persons appointed to Service by emergency recurtment senior to persons, who have already been appointed under the RAS Rules. We have already pointed out that there is no provision like the determination of the national year of appointment, on the basis of length or experience in Service under Rule 23, as has been laid down in Rule 25 of the RAS (Emergency Recruitment) Rules, 1976.

The above observations in Praveen Chand's case do not lend any assistance to the petitioners, rather go contrary to their submissions.

20. In the result, I find no force in these writ petitions and the same are dismissed with no order as to costs.


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