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Govind Ram Gupta Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 1147/82
Judge
Reported in1982WLN(UC)391
AppellantGovind Ram Gupta
RespondentState of Rajasthan and ors.
DispositionPetition dismissed
Cases ReferredVishnudas Handumal v. The State of Madhya Pradesh (supra
Excerpt:
.....to continue on the post only on the ground that others who are junior to him are holding the post specially when those persons are not the party in the present writ petition and a relief has also been sought that the appointment of such persons should be quashed.;writ dismissed. - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen..........ever is earlier. petitioner has also pointed out my attention to the seniority list of the second grade teacher which has been appended to ex. 1 and his submission is that his name is at serial no. 16 whereas the persons who have been retained on deputation are far below in seniority and he wants to submit that the persons who are junior to him have been retained on deputation whereas he has been reverted to his parent department in an arbitrary way. the third grievance of the petitioner is that under the rajasthan panchyat samiti selection of vikas adhikari rules 1968 the petitioner being the member of the rajasthan educational subordinate services is entitled for promotion as vikas adhikari. he has invited my attention to rule 8 which has been further amended vide notification no......
Judgment:

D.L. Mehta, J.

Learned Counsel for both the parties submit that this writ petition may be finally heard and decided at this stage. The prayer is accepted

2. The petitioner has filed this writ petition challenging the orders Annexures 5 and 6 and played that the impugned orders may be quashed. Vide order Ex. 5 dated 8.6.82 it has been ordered that the petitioner should be reverted to his parent department and in consequence there of the order Ex. 6 has been passed on 15th June, 1982 by the Block Department Officer that the petitioner is being relieved from the forenoon of 15th June, 1982 and he is directed to report to the Commissioner Primary and Secondary Education Department Bikaner. He will pass the posting order. In reply to the writ petition Annexure R1 has been produced and the petitioner has been directed to be posted within the jurisdiction of the Deputy Director, Education. The main grievance of the petitioner is that he was appointed as First Grade Inspector on 9-10-79 and was simultaneously sent on deputation to the Community and Development Department and was to be posted as Education Extension Officer. Ex. 2, order, was issued and he was posted as Education Extension Officer Karanpur vide Ex. 2 and his name finds place at serial No. 8. In order Annexure t it has been specically mentioned that the petitioner is sent on deputation only upto May, 1980 on the date on which the persons duly selected by Public Service Commission Departmental Promotion Committee are available which ever is earlier. Petitioner has also pointed out my attention to the seniority list of the second grade teacher which has been appended to Ex. 1 and his submission is that his name is at serial No. 16 whereas the persons who have been retained on deputation are far below in seniority and he wants to submit that the persons who are junior to him have been retained on deputation whereas he has been reverted to his parent department in an arbitrary way. The third grievance of the petitioner is that under the Rajasthan Panchyat Samiti Selection of Vikas Adhikari Rules 1968 the petitioner being the member of the Rajasthan Educational Subordinate Services is entitled for promotion as Vikas Adhikari. He has invited my attention to Rule 8 which has been further amended vide notification No. 12-6-78 and the existing Rule 8 A. Rule 8 A has been reproduced by the petitioner at pages 5 and 6 of his writ petition. A person who completes five years service of Educational Extension Officer is eligible for promotion for the post of Vikas Adhikari. He has pointed out that prior to the coming into force of the Rules he has worked as Vikas Adhikari. He has submitted in para 4 of the writ petition that while working as second grade teacher the petitioner came to be promoted as Education Extension Officer in the year 1964 and be continued as such upto 15th of July, 1970 and for this reason also he is eligible as he has acted for a period of more than five years on the post of Educational Extension Officer and is having the experience of the same. The petitioner further submits that under the Rules only those persone are eligible who are holding the post at the relevant time and if a person is transferred to his parent department he loses the right of cligiblity for consideration for promotion and thus his right is infringed. Counsel for the petitioner has also submitted the rejoinder and submitted Ex 7, Ex. 7 will be dealt with at a proper time while dealing in detail with the case. The learned Counsel has submitted that the State Government has acted in an arbitrary manner and has discriminated the petitioner and has adopted the policy of pick and choose which is in violation of Articles 14 and 16 of the Constitution. The further contention of the petitioner is that vide Ex. 1 he was appointed for a period of six months or till the person selected by the PSC DPC are made available which is earlier. He further submits that after expiry of the period of six months only one condition remains that if a person who has been selected by the DPC/PSC is available only then he can be reverted back to his parent department and the condition of six months period goes away. It is no one's case that after the expiry of the period of six months fresh orders have been issued and both the parties are not in a position to make any statement whether the fresh orders were issued or not or if so what were the terms and conditions in it. Mr. Singhvi counsel for the petitioner submits that it was not necessary to issue fresh orders and automatically he continued with the terms and conditions that he will be reverted only when a person who has been found suitable by the DPC/PSC is available, and there before he cannot be reverted back to his parent department. The learned Counsel appearing on behalf on the respondent No. 3 and the Deputy Goverment Advocate Mr. R.P. Dave appearing on behalf of Respondents Nos. 1 and 2 have submitted that special selection and special conditions of the Service Vikas Adhikari Rules 1982 have come into force and every matter has to be considered in the light of the existing Rules. He has further submitted that in the light of the order Annexure 7, the petitioner was not eligible even at the time of his initial appointment. He has invited my attention to sub clause (kh) (g) and (gh) of clause (1) of Ex. 7 Clause (1) is reproduced and is as under:

^^ 1& ik=rk

d bl in ij fu;qfDrh ds fy, U;wure ;ksX;rk izf'kf{kr vf/kLFkk rd gksxh ijUrq xf.kr ] tho foKku] jlk;u 'kkL= ] HkkSfrd 'kkL=] x`gfoKku ] d`f'k fp=dyk] laxhr] mnwZ ] m|ksx okf.kT; vaxzsth ,oa laLd`r fo'k; ds ofj'B v/;kid bl in ij fu;qfDr gsrq ik= ugh gS A

[k ,sls O;fDr dks dqy 10 o'kZ dk v/;kid vuqer gksuk pkfg, ftles 5 o'kZ dk ofj'B v/;kid ds in dk vuqHko gksuk pkfg, A

x 45 o'kZ ls vf/kd vk;q okys vk'kFkhZ;ks dk p;u ugh fd;k tkuk pk;sxk A

?k dsoy iz;inksZ.kh Ja[kyk ds O;fDr bl in ij yxk;s tk;sxs A

M+ f}rh; osru Ja[kyk ds O;fDr dh inksUufr djds lh/ks bl in ij ugh yxk;k tk;sxk A^^

He has submitted that his initial appointment which has been made vide Ex. 1 was illegal as it was not consistent with the circular Ex. 7 dated 13-10-78. As the petitioner has attained the age of 52, which is evident from his own affidavit which he has filed with the writ petition and at the time of sending the petitioner on deputation the maximum age precribed is 45. So at the relevant time he was of about 50 years and thus there is a clear violation of Sub-clause (g) referred above. Mr. Shishodia counsel for the respondent also submitted that under clause (kh) it is necessary that the teacher should have at least 10 years experience and minimum experince of live years as a senior teacher is also required. He further submits that under clause (d) it is necessary that the person who gets the promotion from 2nd grade teacher as a first grade teacher (Senior Teacher) cannot be appointed simultaneously as Education Officer. He submits that the initial appointment made vide Ex. 1 in clear violation of Ex. 7 which is the foundation of the case of the petitioner. Counsel for the respondents have also invited my attention to the fact that Ex. P.4 is not acted upon and they have specifically submitted in their reply. The counsel for the Respondents have also submitted that the deputation to a post does not confer any right on the petitioner to remain on the post till he chooses. On the contrary his submission is that the person who has been sent on deputation can be called back or can be sent back any time and the person has only the right if any to make good the financial loss if any accruing because of the deputation contract. He submission is that in the instant case the petitioner's deputation was only for a short period upto May 1980 and by the lapse of period the deputation right which accrued to him vide Ex. 1 has come to an end. He further submits that the condition relating to the availability of a suitable person selected by the DPC/PSC cannot be considered and there is no right that he should be retained on deputation till the person selected by the DPC/PSC is available. After the dictation of this apart of the judgment Mr. Singhvi submits that during the lunch break he has received a message that age limit prescribed under Annexure 7 has been raised from 45 to 50 & he wants to verify fact and prays for time to verify it. Assuming it that the submission of Mr. Singhvi that the age limit has been raised from 45 to 50 is correct, even then the consideration which weighs in my mind is whether the initial appointment which was made vide Exs. 1 and 2 was legal and in terms of Annexure 7 or not. Mr. Singhvi further submits even during the course of arguments that Ex. 7 should be overlooked at all and his case should be considered in the light of the Rajasthan Educational Subordinate Services Rules 1971 hereinafter referred to as the Rules of 1971 and he further submits that the Rules of 1971 shall only apply as it relates to a case of promotion of 2nd grade teacher to a first grade and thereafter sending him on deputation, as the post is borne on the Rules.

3. I have heard the rival contentions of both the parties. As far as the Rules of 1971 are concerned they relate to the promotion of second grade teachers as first grade teachers and the schedule F relates about the promotion of 2nd grade teacher to the post of first grade teacher. The relevant part of schedule is as under:

8(a) Teacher grade II 50 per cent Accrued or equivalentEducation Extension by direct examination on whichOfficer/Sub-Deputy recruitment atleast 2 subjects taught inInspector/Enforcement and 50% by Schools with degreeAssistants promotion or diploma in educa-tion or Montessory.

S.F. general teachers Item 8A provides for the promotion of the grade third laboratory assistants teachers in deaf dumb and blind schools, on the post of second grade teachers, Education Extension Officers, Sub-Deputy Inspectors, Enforcement Assistants. Rules of 1971 has been further amended vide notification No.F.2 (1) DOP/A-11 (79) dated June 3, 1980 published in the Rajasthan Rajpatra dated 17th June, 1980. It is an admitted position that now only the first grade senior teachers are sent on deputation as Educational Extension Officers. The conditions for the deputation have been given in Ex.7. The promotion of the petitioner as senior teacher vide Ex.1 is not under challenge The counsel for the respondents have also submitted that his promotion from the post of second grade teacher to the post of first grade teacher is not under challenge & petitioner is still continuing as first grade senior teacher. Counsel for the Respondents have made the submission that the deputation cannot be equated with promotion and the Rules of 1971 will not govern the cases of deputation and they will be governd by Annexure 7, only. It has been submitted that the Community Development Department & Education Department are two separtment departments and it cannot be said that while working in the Community Development Department the person-is under the direct control of the Education Department. His work is assessed by the Community Development department. I agree with the submissions made by the counsel for the Respondents that the Rules of 1971 will not govern cases of deputation. Now the case of the petition has to be examined in the light of Annexure 7. It is an admitted position that the petitioner is not having the experience of Give years as senior teacher. Under clause (kh) the requirement is that a person who has the experience of 10 years as a teacher and minimum five years' experience as a senior teacher. Thus the petitioner does not fulfil the requirement of clause (kh) of Ex.7. Under clause (d) it has been specifically mentioned that a person who is promoted from the post of 2nd grade teacher should not be sent directly on deputation. I will not like to enter into the controversy which has been raised by the counsel for the petitioner that after May, 1980 it should be deemed that the condition was only that whenever a person selected by the Public Service Commission or D.P.C. is available he could only be appointed and he has a right to continue on the post of E.E.O. A person who is not qualified for appointment cannot be allowed to continue and even if once an illegality has been committed it cannot be allowed to continue by the direction of the Court. On this point Mr. Shishodia has cited a case Jagan Singh v. State Transport Appellate Tribunal Rajasthan and Anr., reported in . Their Lordships have held 'Allowing writ petition would result in restoring illegal order.' For this reason I am not inclired to interfere. Mr. Singhvi has invited my attention that in para 13 of the W.P. that he has specifically taken the ground that the persons named in Ex. 1 were promoted on the basis of seniority and the named of the petitioner appears at item No. 16. One hundred two persons were promoted vide Ex 1 and for no reason the petitioner has been picked up and is being sent to his parent department, whereas, the fact is that the persons whose names appear from No 17 to 102 in Ex.1 are still continuing as Education Extension Officer/Sub Dy. Inspectors. Thus, the petitioner is being subjected to a glaring and hostile discrimination and persons junior to the petitioner have been kept on deputation with the Community Development and Panchayat Department and the petitioner has been packed up for no reason. Counsel for the Respondents have submitted their reply and have not made any specific pleading on this point. They have submitted that the petitioner has been sent back to his parent department and there is no discrimination involved in it because the petitioner's pay, cadre etc, stand protected. Mr. Singhvi submits that just like petitioner the other persons also do not fulfil the requirement of requisite qualifications referred to in Ex.7. He further submits that from the seniority list submitted it is clear that the persons who are junior to the petitioner should be deemed to be the persons junior in all respect Counsel for the respondents have submitted that the persons have not been named and have also not been impleaded as a party. Their further submission is that in the relief clause the relief sought is that the Respondents be restrained from giving effect to Exs.5 and 6 vis a vis the petitioner, and they may be directed to allow the petitioner to continue as Education Extension Officer so long as a person junior to him so continues. Mr. Singhvi has invited my attention to the case of Vishnudas Handumal v. The State of Madhya Pradesh, reported in : [1981]3SCR234 . He has invited my attention to para 6 of the judgment and has submitted that their Lordships have held specifically as under:

Undoubtedly, the error or omission was on the part of the Regional Transport Authority in not supplying full in formation to the Special Secretary about all the valid permits inforce at the relevant time and which were either to be curtailed or cancelled consequent upon the approval of the scheme. This error or omission on the part of the Regional Transport Authority has resulted in gross discrimination between the transport operators in the same class in that some have their permits remaining intact with right to ply their vehicles on the notified route and some others whose permits are curtailed. That this is discrimination between persons in the same class does not call for any discussion. May be, the discrimination may arise out of error or omission on the part of a governmental agency but the question is can it be over looked on that account? Ramnath Verma's case (A.I.R, 1967 S. 1603) cannot help the respondents in this behalf because a Constitution Bench of this Court held in that case that discrimination under Article 14 is conscious discrimination and not accidental discrimination that arises from oversight which the State is ready to rectify.

The petitioner does not fulfil the requirements laid down in Annexure 7. Further a person on deputation can be sent back if he does not fulfil the requisite requirements. In such circumstances I am not inclined to interfere. However, it is observed that in the light of the judgment referred Vishnudas Handumal v. The State of Madhya Pradesh (supra) : [1981]3SCR234 , the State Goverment should see that the persons not fulfilling the requisite qualification laid down in Ex. 7 are not continued on the post. If any violation of Ex.7 is made by the State Government intentionally even after bringing it to the notice then the petitioner will be at liberty to take the redress at a proper forum. The petitioner cannot be allowed to continue on the post only on the ground that others who are junior to him a e holding the post specially when those persons are not the party in the present writ petition and a relief has also not been sought that the appointment of such persons should be quashed. The petitioner may seek the remedy in any way he chooses if there is a discrimination against him by retaining the persons not fulfilling requisite qualifications laid down in Ex.7.

4. In the result, this writ petition is dismissed. The parties shall bear their own costs.


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