Decided on February 08,1984

B L Ojha Appellant

Referred Judgements :-



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had appeared and according to him, selected for that post but for one reason or the other, the recommendations were withdrawn by the Commission in 1963 and the petitioner could not be appointed as Assistant Registrar on that basis.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.
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.

(3.)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.

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