M.C.JAIN, J. - (1.) THESE two writ petitions raise common questions, so they are being disposed of by this common order.
(2.) THE facts of these two writ petitions lie in a narrow compass. A number of posts including 102 posts of Lower Division Clerks (hereinafter referred to as "the L.D.Cs.") were advertised by the Rajasthan State Agricultural Marketing Board (hereinafter referred to as "the Board"), respondent No. 1. THE petitioners applied for the posts of L.DCs. THE petitioners took the selection test and both of them were qualified Subsequently, they were interviewed and they were declared successful both in the written test and the interview and they were called upon to undergo the typing test. THE petitioners were successful in the typing test, as well. Out of the successful candidates, the Secretary of the Board prepared a region wise merit list of the candidates considered suitable for appointment, as required by sub-rule (5) (a) of Rule 64-I of the Rajasthan Agriculture Produce Markets (Market Committee Employees) Service Rules, 1975 (hereinafter referred to as "the 1975 Rules"). As per the petitioner's case the Secretary then proceeded to allot the candidates to the various Market Committees of the region with the direction for issuance of the appointment orders of the candidates. Both the petitioners were allotted to Agricultural Produce Market Committee, Jodhpur. THE name of the petitioner Smt. Kamla Pareek appears in the list of allotted candidates at No. 3, whereas the name of the petitioner Miss. Meena Kumari Dave appears in the list of allotted candidates at No. 4. THE petitioners averred that the Market Committee concerned was under an obligation to proceed to make an appointment order in terms of Rule 641(6) of the 1975 Rules, but before this could be done, a telegram was received from the Directorate of Agriculture, Government of Rajasthan, directing not to issue appointment orders of newly selected candidates and in case of those whose appointment orders have already been issued, no body should be taken on duty. THE petitioners further averred that in case of some of the allotted candidates, the concerned Marketing Committee issued the appointment orders, as well. THE petitioners referred to a case of Shri Rajendra Singh, who too was not taken on duty and who filed SB. Civil Writ Petition No. 244 of 1981. | The petitioners have sought a direction to the Krishi Upaj Mandi Samiti Jodhpur, to issue the orders of appointment, appointing the petitioners as L.D.Cs. The above direction is sought on the grounds stated in para 11 of the writ petitions. It was stated that the Krishi Upaj Mandi Samiti had no option after the allotment of the petitioners to the Market Committee, but to issue the appointment orders in terms of Rule 64 1(6) (b). The failure on the part of the Market Committee to do so, was to disregard the mandatory provisions of Rule 64-1 of the Rules. It is further stated that the Rule does not vest any power in the Director of Agriculture or for that matter, even in the State Government in the matter of recruitment and appointment and so the appointment could not be declined to the petitioners. The action has also been challenged on the ground that it is ultra vires of Arts 14 and 16 of the Constitution. Besides that, a hostile discrimination has been practised inasmuch as some appointment orders had been issued by some Market Committees out of the list of the candidates allotted to those Market Committees. Returns to the writ petitions have been filed by the State of Rajasthan (respondent No. 3). It was stated that selection on the posts of clerks according to law was proposed to be made by the Board and steps were taken towards that. Certain candidates took written test and after qualifying the same they were interviewed. It was admitted that the petitioners even qualified the type test. The contents of para 6 of the writ petitions were also admitted, which relates to the appearance of the names of the petitioners in the list of allotted candidates to the Market Committee The contesting respondent, howrver, pleaded that the 1975 Rules were amended by a notification issued in the Rajasthan Gazette dated 2.8.1979, by the Rajasthan Agricultural Produce Markets (Market Committee Employees) Service (Amendment) Rules, 1979 (hereinafter referred to as "the Amendment Rules 1979"). By Rule 2 of the Amendment Rules, 1979, sub-rules (4) and (5) of Rule 64 were deleted and a new sub-rule (4) was inserted and by sub-rule (2) of Rule 2 of the Amendment Rules 1979 the existing sub-rule (6) and clauses (a) and (b) were deleted and clause (c) was renumbered as sub-rule (5) It was averred that one of the modes of selection provided in clause (ii) of sub-rule (4) of Rule 64-1 was after calling for the candidates from the local employment exchange of the area. It was stated that by virtue of these Rules, the so-called selection of the petitioners, cannot be called a proper selection and besides that the petitioners have no vested rights created in their favour and the writ petitions are not maintainable. It was further stated that the 1975 Rules were further amended by Notification dated 7-6 1980 by the Rajasthan Agricultural Produce Markets (Market Committee Employees) Service (Amendment) Rules, 1980 (hereinafter referred to as "the Amendment Rules, 1980). By Rule 10 for the word "Secretary" occurring in the first, proviso to sub-rule (1), in sub-rule (3) and in sub-rule (4), the word "Director" was substituted. In sub-rule (2) for words "the to the Secretary" the words "to the Director" were substituted. It was averred that by substitution of the word "Director in place of the word "Secretory", the authority given to the Secretary under Rule 64-1 was withdrawn and this authority was given to the Director and it was the Director, who was the competent authority to select the candidates, as contemplated under this rule. It was further averred that in view of the amendment, if the Secretary allotted any candidates to any Market Committee region was wise or otherwise, then it was illegal, although it was admitted that it was the Director, who not the Secretary. The grounds on which the action has been challenged, were denied and in reply to para 2 of the grounds it was averred that on 10 3.1981 the Deputy Secretary (Administration) in the Agriculture Department issued an order Ex R/2 in which it was stated that the selections made by the Board, have been cancelled by the State Government, as the selections were made by the Headquarter for all the Market Committees in the State of Rajasthan and not by the local Market Committees. According to the respondents, the purport of the order was that the respective Samitis were legally competent to select the candidates according to their needs and requirement in their respective regions and this order of the Government is based on the provisions contained in sub-rules (14) and (15) of the Rajasthan Agricultural Produce Market Rules, 1963 (hereinafter referred to as "the Rules 1963"). It was stated that the appointment of the superior officers and servants shall be made by the Market Committee subject to the approval of the Director. The powers of appointment of the superior officers vest in the respective Market Committees and not in any other authority. It was alleged that a person coming out of the same region is more useful, because of his knowledge about the local language, customs, and because of his knowledge about topography and geography of land and the like things. Under sub rules (14) and (15) of Rule 43 of the Rules 1963 the powers of the Director are only supervisory or confirmatory. The appointments of the superior officers are made by the Market Committees and the Director only comes to confirm them. It was alleged that it is clear that if sub-rules (14) and (15) of Rule 43 of the Rules, 1963, are read with Rule 64 or the 1975 Rules along with the Amendment Rules 1979, the legal position, which emerges, is that it is the Market Committees, which will select or choose the superior officers subject to the confirmation by the Director and so the order passed by the Government in March 1981 is in consonance of the spirit of Rule 43 of the Rules, 1963. It was stated that the petitioners have no right to be appointed and further issuing of the letter to some of the persons in the list does not give a right to the petitioners to claim the relief. However, it is submitted that the appointment orders issued in favour of one or two persons, have already been revoked Some pleas were also taken as "additional pleas", but it is not necessary to refer to them. A rejoinder to the reply has also been filed by the petitioners, in which the stand taken by the petitioners, has been reiterated and the stand taken by the respondents, has been refuted. I have heard Mr. M. Mridul, learned counsel for the petitioners, and Shri M. D. Purohit, learned Additional Government Advocate for the State of Rajasthan (respondent No. 3).
(3.) BEFORE referring to the respective contentions of both the sides, it is essentia! to read the relevant rules of the Rules, 1963, and the 1975 Rules, as amended by the Amendment Rules, 1979, and by the Amendment Rules, 1980. In view of the fact the controversy between the parties centres round to the question as to which rules will be applicable for the purpose of selection in the present case. The Rules, 1963, have been framed in exercise of the powers conferred by Sec. 36 of the Rajasthan Agricultural Markets Act, 1961 (Rajasthan Act 38 of 1961) (hereinafter referred to as "the Act") and the 1975 Rules have also been framed by virtue of the same powers. Sec. 11 of the Act makes a provision for appointment and salaries of servants of the Market Committee. Sec. 11 runs as under:- "11. Appointment and salaries of servants of the Market Commitfee:-(1) The Market Committee may employ in the prescribed manner such officers and servants as may be necessary for the management of the market and may pay such officers and servants such salaries as the Market Committee thinkes fit. (2) The Market Committee shall, in the case of any officer or servant of Government whom it employs, pay such pension contribution, gratuity or leave allowance as may be required by the conditions of his service under the State Government for the time being in force. (3) The Market Committee may also, in the case of any of its officers and servants, provide for the payment to them of such leave allowances, pensions or gratuities as it deems proper and may contribute to any provident fund which may be established for the benefit of such officers and servants. (4) The powers conferred by this section on the Market Committee shall be exercised subject to any rules which may be made in this behalf by the State Government." It would appear from the provision contained in sub-section (1) of Sec. 11 of the Act that the Market Committee may employ officers and servants in the prescribed manner and the word "prescribed" has been defined under clause (xii) of Sec. 2 of the Act, which means prescribed by rules under Section 36. The matters relating to service would further be dealt with in accordance with the provisions contained in sub-sections (2) to (4) of Sec. 11 and sub-section (4) of Sec. 11 clearly lays down that the powers conferred by the section on the Market Committee shall be exercised subject to any rules which may be made in this behalf by the State Government. Sec. 36 of the Act confers rule making powers to the State Government. Sub-section (1) of Sec. 36 is a general provision and under sub-sec. (2) certain matters have been specified in respect of which rules may be framed. Clause (t) of sub-section (2) of Sec. 36 of the Act provides the matter on which rules can be framed "as any matter which, by any provision of this Act, may be or is required to be prescribed or for which by such provision rules may be or are required to be made", and clause (u) relates to matters generally for carrying out the purposes and provisions of the Act. So in exercise of the powers conferred by Sec. 36 (1) as well as sub-sections (2) (t) and (u) the State Government framed the Rules, 1963 and thereafter the 1975 Rules. Rule 43 of the Rules, 1963 deals with servants of the Market Committee. This rule is divided into two parts (A) and (B) and part (B) deals with the powers and functions of the Secretary. Clauses (13). (14), (15) and (16) of part (B) of Sec. 43 are relevant for our purposes, which are reproduced hereunder:- "43 Servants of the Market Committee - (A) xx xx xxx xx xx xx (B) Powers and functions of the Secretary:- (13) Besides a Secretary, the Market Committee may empoly such other officers and servants as may be necessary and proper for the efficient execution of its duties. Such officers and servants shall be divided into two classes - (a) Superior Officers and Servants, and (b) Inferior Servants. Superior Officers and servants shall be the Assistant Secretary, Accounts, Treasurars, Supervisers Qanungos, Clerks and such officers and servants as the Director may determine besides a Secretary. The inferior servants shall be peons, watchman and other menial servants. (14) The terms and conditions of the Superior Officers and servants shall be such as are approved by the Director and those of the inferior servants shall be such as the Market Committee itself may decide. (15) The appointment of Superior Officers and servants shall be made by the Market Committee subject to the approval of the Director. Any punishment, revision in pay or terms of service or dismissal of the Superior Officers and servants shall also be subject to the approval of the Director. All inferior servants shall be under the full control of the Market Committee but the Committee shall make an immediate report to the Director in regard to their appointment, pay, punishment, dismissal and other matters relating to such servants. (16) The Director may by order in writing delegate any of his powers and duties under this rule to any of his subordinate officers subject to such conditions as he thinks fit." Clause (13) empowers the Secretary of the Market Committee to employ such other officers and servants as may be necessary and proper for the efficient execution of the duties. The officers and servants have been divided into two classes, (a) Superior Officers and servants and (b) inferior servants. In the first category the Assistant, Secretary, Accounts, Treasurers, Supervisers, Qanungoes, Clerks and such officers servants as the Director may determine, shall fall. The inferior servants shall be peons, watchman and other menial servants. Clause (14) confers powers on the Director power to approve the terms and conditions of the superior officers and servants and it confers powers on the Market Committee to determine the terms and conditions of the inferior servants. Clause (15) provides that the appointment of superior officers and servants shall be made by the Market Committee subject to the approval of the Director and for any punishment, revision in pay or terms of service or dismissal of the Superior Officers and servants, it is provided that it will be subject to the approval of the Director. Thus, it would appear that the authority to make appointment of Superior Officers and servants vests in the Secretary subject to the approval of the Director and the terms and conditions of their service are to be approved by the Director. Rule 64-I of the 1975 Rules is the most material rule in these cases, which provides for method of recruitment for superior posts, which reads as under:- "64-I. Method of recruitment for superior posts.-(1) Recruitment to the Service, after the commencement of these Rules, shall be made by the following methods:- (i) By direct recruitment; (ii) By promotion; (iii) By deputation from State Government: Provided that if the Director, or any authority, authorised in this respect, is satisfied that suitable persons are not available for appointment by either method of recruitment in a particular year appointment by either method, in relaxation of the prescribed proportion, may be made in the same manner as specified in these Rules: Provided further that the persons, who have continuously held post on temporary basis in the service for a period of not less then 6 months on 1.1. 1975 shall be screened by the Selection Board referred to in Rule 65 (i) for adjudging their suitability to the posts held on 1.1.1975, provided they possess the qualifications prescribed in the Rules either for direct recruitment or for promotion on the basis of which persons were selected for ad-hoc/temporary appointment. (2) The Secretary of the Market Committee concerned will submit at the beginning of every year a statement of existing vacancies in each grade under different categories including vacancies likely to fall vacant during the year, to the Director or to any officer authorised by him. (3) On receipt of a requisition for direct recruitment to the service, applications shall be invited by the Director, or any officer authorised by him, by advertising the vacancies in such manner as be may deem fit. (4) Notwithstanding any thing contained in the foregoing provisions, the recruitment shall be made by the Director or any officer authorised by him by either of the following methods as he may deem fit:- (i) by selecting the candidates after advertising the posts in daily news paper, or (ii) by selecting the candidates after calling for the candidates from the local employment exchange of the area. (5) All appointments to the inferior posts shall be made by the Market Committee." ;