CHAUHAN, J. - (1.) IN these writ petitions and the writ petitions mentioned in the Schedule annexed to this judgment and order, common questions of facts and law are involved, therefore, all these petitions were heard together and they are being disposed of by this common judgment/order, taking the Writ Petition No. 1722/2000, Renu Sharma vs. State of Rajasthan & Ors., as the leading case.
(2.) THE instant writ petition has been filed for quashing the Notification dated 16.11.1999 making amendment in rule 296 of the Rajasthan Panchayati Raj Rules, 1996 (for short, "the Rules, 1996") and other consequential orders; for issuing direction to offer appointment to the petitioner as she stood over and above contesting respondents No. 3 and 4 in the merit list prepared in pursuance of the advertisement No. 1/96 for the posts of Teacher Grade III from the date the said respondents have been appointed with all consequential benefits; and to quash the appointments of the private respondents. Respondent No. 2 had issued an advertisement No. 1/96 inviting applications for 93 vacancies on the post of Teacher Grade III in district Sawai Madhopur with a stipulation that number of vacancies may be increased or decreased. Last date for submitting the application forms was fixed as 30.10.96 but was further extended upto 20.12.1996. Directions were issued to prepare the merit list in pursuance of the criteria fixed by the Government as per the Circular dated 24.7.95 which had been issued in exercise of powers under Rule 17(2) of the Rajasthan Panchayat Samitis and Zila Parishads Act, 1959 (for short, "the Act, 1959"), which provided the assessment of merit of the candidates on the basis of the marks secured in Secondary + B.S.T.C. or B.Ed., as the case may be. Subsequently, the merit criteria was changed before finalisation of the selection process and, thus, litigation started and writ petition of Radhey Shyam Sharma vs. State of Rajasthan & Ors. (1), was filed before this Court and the selection process could not be finalised. The said writ petition was decided vide judgment and order dated 6.11.1997 issuing direction to the respondents to prepare the merit list in accordance with the Circular dated 24.7.95. The matter was agitated before the Division Bench, wherein the writ petition itself was allowed to be withdrawn as the Government had arrived at the conclusion that the merit list was to be prepared as per the criteria fixed by the Circular dated 24.7.95. When litigation came to an end, a select list was prepared on 7.3.1998 but it was not given effect to for a period of one and half years and another select list was prepared in September, 1999 and against 93 vacancies advertised for the year 1996, in all 232 persons were given appointment upto 1.3.2000. In addition thereto, vide order dated 9/10.03.2000, the contesting respondents No. 3 and 4 were also appointed ignoring the claim of more than one thousand candidates in case of respondent No. 3 and seven hundred candidates in respect of respondent No. 4, including the petitioners who stood higher to them in the merit list as the Government relaxed the Rules in exercise of its power under rule 296 of the Rules, 1996 and directed to appoint the said respondent. Dharmendra Kumar, respondent No. 3, at Serial No. 1249 and Madan Lal, respondents. No. 4, at Serial No. 944 in the merit list. Hence these petitions. The main ground in the petition of Renu Sharma has been that as Rule 296, as amended, confers arbitrary and unfettered power upon the Executive to put the constitutional and statutory rights of the eligible candidates at naught, the amended rule be declared ultra vires and unconstitutional. In other petitions, the relief of appointment had been sought on the ground that appointing the persons who were much below them in the merit list, amounts to hostile discrimination and is not permissible, therefore, they are also entitled to be appointed. Rule 296 of the Rules, 1996 read as under:- "Power to relax rules: On a reference by the Panchayat Samiti/Zila Parishad concern, in an exceptional case, where the Administrative Department is satisfied that operation of the rules relating to age or regarding requirement of experience for recruitment, if any, causes undue hardship in any particular case or where the Government is of the opinion that it is necessary or expedient to relax any of the provisions of these Rules with respect to age or experience of any person, it may, with the concurrence of the Department of Personnel & Administrative Reforms, relax the relevant provision of these Rules to such extent and subject to such conditions as it may consider necessary for dealing with the case in a just and equitable manner........" The said provision enabled the State Government to relax the age and experience in a particular appropriate case to a particular extent. In Indian Air Lines Ltd. vs. S. Gopal Krishanan (2), the Hon'ble Supreme Court explained that there should be no confusion regarding the requisite qualification and experience as experience is required after gaining the requisite qualification. The said Rule did not provide for relaxation in other eligibility, i.e. educational qualification, nor it enabled the Government to pick and choose any person from the merit list and offer him appointment ignoring the claim of persons over and above him in the merit list.
(3.) THE Government issued Notification dated 16.11.1999 amending the provisions of rule 296, reading as under:- "THE State Government, on a reference by the Panchayat Samiti/Zila Parishad concerned, or on its own motion, in an exceptional case where the administrative department is satisfied that operation of the Rules relating to any provision for recruitment, if any causes undue hardship or where the Government is of the opinion that it is necessary or expedient to relax any of the provision of these Rules, may, with the concurrence of the Department of Personnel & Administrative Reforms, relax the relevant provisions of these Rules to such extent and subject to such condition, as may be considered necessary for dealing with the case in a just and equitable manner." The validity of this amendment is under challenge on the ground that it confers unbridled powers upon the Executive, which may make the statutory provisions redundant and in the instant case, the appointments had been made after expiry of the select list; to a larger extent than vacancies advertised; and respondents No. 3 and 4 have been appointed ignoring the merit of others. Sec. 102 of the Rajasthan Panchayati Raj Act, 1994 (for short, "the Act, 1994") enables the State Government to frame the Rules in respect of service matters also. However, Sub- section (3) thereof reads as under:- "All rules made under this Sec. shall be laid, as soon as may be after they are so made, before the House of the State Legislature, while it is in Session, for a period of not less than fourteen days, which may be comprised in one session or in two successive sessions and, if before the expiry of the session in which they are laid or of the session immediately following the House of the State Legislature, makes any modification in any of such rule or resolve that any such rule should not be made, such rule shall thereafter have effect only in such modified form or be of no effect as the case may be, howsoever, that any such modification or annulment shall be without prejudice to the validity of anything previously done thereunder." ;