MATHUR, J. - (1.) ALL the writ petitions, mentioned above, involve common question of law, therefore, they are disposed of by this common order.
(2.) FOR the convenient disposal of all these writ petitions, the facts mentioned in D. B. Civil Writ Petition No. 4282/1991 Baljit Kaur and others V State of Rajasthan & Ors. are taken into consideration. The petitioners by this writ petition have prayed that the notification dated 22-2-1991 (Annex. 3) may be declared illegal and be struck down. Petitioners have also prayed that the circular dated 26-2-1991 (Annex. 4) may be declared illegal and be quashed. It has also been prayed that the respondents may be restrained from making selections in pursuance of the notification dated 22-2-1991 (Annex. 3) and the Circular dated 26-2-1991 (Annex. 4). The petitioners were employed as Teachers Gr. III in the Panchayat Samiti, Sri Karanpur. The petitioners were first appointed vide order dated 8-2-1989, but their services were brought to end at the end of the academic session 1988-89. Thereafter, these petitioners were again appointed vide order dated 1-7-1989. It is alleged that these petitioners were appointed after inviting their names from the Employment Exchange and they were subjected to selection. The academic qualifications of the petitioners have been given in the schedule annexed to the writ petition. A perusal of the Schedule would show that some of them are M. A. ; B. Ed. and some of them are B. A. , B. Ed. and one; is M. A. , B. S. T. C. way back in the year 1989, 400 posts of Teachers were advertised by the Zila Parishad, Sri Ganganagar. The petitioner applied and were interviewed, but they could not be selected. That out of the 400 candidates selected only 200 candidates could get appointment and, thereafter the Government stayed the appointments. Even those selected candidates could not be appointed because of the litigation before this Court. It is alleged that according to the petitioner's information a merit list has been prepared after allotting marks in accordance that this fact of preparation of merit list was not known to the petitioners earlier but now that fact has come to their notice and, therefore, they are challenging the preparation of that merit list by filing the present writ petition. It is alleged that the earlier selections made by the Zila Parishad were considered to be illegal by this Court in the case of Rajvendra & Ors. V. State of Rajasthan & Ors. as the selections were made on the basis of the instructions issued by the State Government, which were found to be illegal. Thereafter, the State Government in order to overcome of that, amended Rule 17 of the Rajasthan Panchayat Samitis and Zila Parishads Sen/ice Rules, 1959 (hereinafter referred to as 'the Rules of 1959') and added a new proviso by the notification dated 22-2-1991 and issued a circular in pursuance therefo dated 26-2-1991. Therefore, in these circumstances, the petitioners, have filed the present writ petition challenging that proviso added to Rule 17 by the notification dated February 22, 1991 and the Circular dated February 26, 1991 issued in pursuance thereof. A return has been filed by the State Government as well as by the respondents No. 2 and 3, Panchayat Samiti and the District Establishment Committee, Zila Parishad, Sri Ganganagar, respectively. The detailed academic achievements of all these petitioners have been mentioned and it has been pointed out that the petitioners were initially appointed temporarily for a period of six months or till the selected candidates are made available. It is also submitted that some of the candidates who have obtained B. Ed. degree their degree has not been recognised by the Government. It is also submitted that the Government amended the Rules of 1959 in the purported exercise of the powers conferred by section 79 of the Act, and, thereafter issued the circular for general guidance so as to bring uniformity in the recruitment all over Rajasthan. Now, in this back ground, the principal submission of the learned counsel for the petitioners is regard to the competence of the State Government to add the proviso to rule 17 of the Rules of 1959 and the circular issued thereunder.
(3.) IN order to appreciate the controversy which has been raised by the learned counsel for the petitioners, it is necessary to first refer to the relevant provisions of the Act and the Rules bearing on the subject. The Rajasthan Panchayat Samitis and Zila Parishads Act, 1959 (referred to hereinafter as 'the Act of 1959') regulates the working of the Panchayat Samitis and Zila Parishads all over Rajasthan. Section 79 of the Act of 1959 confers power on the State Government to make the Rules. Section 79 of the Act of 1959 reads as under: "79. Power to make rules: (1) The State Government may, by notification, make rules for carrying out the purposes of this Act. (2) All rules made under this section shall, as soon as may be after they are made, be laid for not less than fourteen days before the House of the State Legislature and shall be subject to such modification whether by way of repeal of amendment, as the said House may make during the session in which they are so laid." Section 86 deals with the constitution of Rajasthan Panchayat Samiti and Zila Parishad Service and it lays down as to how the Panchayat Samitis and Zila Parishads shall make recruitment. Section 86 which is relevant for our purposes reads as under: "86. Constitution of Rajasthan Panchayat Samiti and Zila Parishad Service : (1) There shall be constituted for the State a service designated as the Rajasthan Panchayat Samiti and Zila Parishad Service and here after in this section referred to as the Service and recruitment there-to shall be made district-wise. (2) The service may be divided into different categories, each category being divided into different grades, and shall consist of - (i) Village level workers, (ii) Gram Sevikas, (iii) Primary school teachers, (iv) Ministerial establishment (except accounts clerks) (v) Fieldmen, (vi) Stockmen, and (vii) Vaccinators, (3) The State Government may encadre in the Service any other category or grade of Officers and employees of Panchayat Samitis and Zila Parishads not included in Class IV services. (4) The State Government may prescribe the duties, functions and powers of each grade and eacgh category of officers and employees encadred in the service. (5) xxx xxx xxx xxx xxx (6) Appointment by direct recruitment shall be made by a Panchayat Samiti or Zila Parishad, as the case may be, in accordance with the rules made in this behalf by the State Government, from out of the persons selected for the posts in a grade or category in the district by the District Establishment Committee referred to in sub-section (1) of section 88. (7) xxx xxx xxx xxx xxx (8) The appointing Authority may, so long as selection is not made by the District Establishment Committee or selected persons are not available for appointment, make appointments in the prescribed manner on a temporary basis for a period not exceeding six months and the said period may be extended only after consultation with the District Establishment Committee." ;