GARG, J. - (1.) BOTH the abovementioned writ petitions are being decided by this common order as in both of them some questions are identical in nature and apart from this, through Writ Petition No. 3038/98 the appointments of the petitioners of Writ Petition No. 5109/92 are also challenged and, therefore, from this point of view also, both petitions are being decided together. S. B. Civil Writ Petition No. 5109/92
(2.) THIS writ petition has been filed by the petitioners against the respondents on 24. 9. 1992 with the prayer that by an appropriate writ, order or direction, the orders Annex. 8 and Annex. 9 dated 17. 9. 1992 passed by the respondent No. 2 District Education Officer (Boys), Bikaner terminating the services of the petitioners be quashed and further, the respondents be directed to continue the petitioners on the post held by them and to consider their cases for regularisation of service in the light of the Rajasthan Employment of Physically Handicapped Rules, 1976 (hereinafter referred to as "the Rules of 1976") It arises in the following circumstances:- Both the petitioners, namely, Prem Kumar Purohit and Girja Shankar Acharya are physically handicapped persons, as is evident from the Certificates Annex. 1 and Annex. 13. Both the petitioners are possessing requisite minimum qualifications for appointment on the post of LDC. The petitioner No. 1 did Higher Secondary from Shri Sardar Vallabh Bhai Vidhyapeeth, Anand in the year 1983 and the copy of the marked sheet is marked as Annex. 3. The petitioner No. 2 did Secondary from the Board of Secondary Education, Rajasthan in the year 1989. The petitioner No. 1 submitted an application to the Director, Primary & Secondary Education, Rajasthan, Bikaner and on that application, he sent the case of the petitioner No. 1 to the District Education Officer (Boys) (respondent No. 2) for giving him appointment on the post of LDC against the post falling in the quota of physically handicapped persons. A copy of the letter dated 25. 3. 1992 whereby the case of the petitioner No. 1 was forwarded by Director, Primary & Secondary Education, Rajasthan, Bikaner to the respondent No. 2 District Education Officer (Boys), Bikaner is marked as Annex. 4. Likewise, on an application submitted by the petitioner No. 2, his case was also forwarded by the Dy. Director (Admn.), Primary & Secondary Education, Rajasthan, Bikaner to the respondent No. 2 District Education Officer (Boys), Bikaner through letter dated 13. 1. 1992 (Annex. 5) for giving appointment on the post of LDC against the post reserved for physically handicapped persons. In compliance of the aforesaid letters/orders, the respondent No. 2 District Education Officer (Boys), Bikaner issued order dated 27. 5. 1992 whereby he appointed both the petitioners as LDC on temporary basis in the pay scale of Rs. 950-1680. A copy of the said order dated 27. 5. 1992 is marked as Annex. 6. In pursuance of the said order dated 27. 5. 1992 (Annex. 6), both the petitioners Prem Kumar Purohit and Girja Shankar Acharya joined duty on 27. 6. 92 in the Government Secondary School, Bhikampur and Government Secondary School, Pugal respectively. The copy of the joining report of the petitioner No. 1 is marked as Annex. 7. Thereafter, orders dated 17. 9. 1992 were issued by the respondent No. 2 District Education Officer (Boys), Bikaner whereby the services of the petitioners were terminated on the ground that their names were not found in the select list of Rajasthan Public Service Commission and further that they have not been appointed as per Rules. The copy of the order dated 17. 9. 1992 terminating the services of the petitioners Prem Kumar Purohit and Girja Shanker Acharya are marked as Annex. 8 and Annex. 9 respectively and in this petition both the termination orders Annex. 8 and Annex. 9 have been challenged on various grounds and some of them are as follows: (1) That through Notification dated 7. 12. 1989, an amendment was made in sub-rule 1 (b) of Rule 7 of the Rajasthan Subordinate Offices Ministerial Staff Rules, 1957 (hereinafter referred to as "the Rules of 1957") in the following manner:- " 1. After the existing proviso to sub-rules 1 (b) of Rule 7 the following proviso shall be added, namely:- " Provided further that the Appointing Authority may appoint a physically handicapped person to any post of the service in accordance with the provisions of the Rajasthan Employment of Physically Handicapped Rules, 1976. Such appointment shall be treated as regular appointment. " and thus, after amendment, the requirement for appointment of LDC through competitive examination to be conducted by the Rajasthan Public Service Commission has been relaxed and therefore, the ground which was taken by the respondents in the impugned termination orders that since the petitioners did not come through RPSC, therefore, their appointments were bad, has no meaning and their appointments are to be governed by the Rules of 1976 alone. Furthermore, proviso to sub rule 1 (b) of Rule 7 of the Rules of the 1957 authorises the Appointing Authority to make appointment of physically handicapped persons in accordance with the provisions of the Rules of 1976, but in the Rules of 1976, there is no provision that before making appointment of handicapped persons on the post of LDC, RPSC should be consulted on handicapped persons cannot be appointed without passing the examinations conducted by the RPSC. Thus, the termination of services of the petitioners is arbitrary and discriminatory and, therefore, in violation of the mandate of Articles 14, 16 and 21 read with Articles 41 and 46 of the Constitution of India. (2) That since the petitioners are in service since 27. 6. 1992, therefore, their services should have been regularised and termination of their services after such a long period is violative of Articles 14 and 16 of the Constitution of India and thus, from this point of view also, they are entitled to be regularised in service. A reply to the writ petitioner was filed by the respondents No. 1 to 4 in which it has been averred by them that the District Education Officer (Boys) (respondent No. 2) had issued appointment order Annex. 6 of both the petitioners in doubtful circumstances and furthermore, it was averred that no official copy of the said order was available on record which was maintained by the respondent No. 2 District Education Officer (Boys) and the said order was not despatched from that office and apart from this, the facts and circumstances of the case reveal that the appointments of the case reveal that the appointments of both the petitioners were not validity made and the entire affairs were fishy and furthermore, since the posts were not advertised, therefore, the appointments of the petitioners are per se illegal and against the Rules of 1957. Hence, this writ petition be dismissed. A rejoinder to the reply was also filed by the petitioner No. 2 to clarify on some points and through which he also submitted Certificate (Annex. 13) showing that he is physically handicapped person. I have heard the learned counsel appearing for the petitioners and the learned counsel appearing for the respondents and gone through the materials available on record. There is no dispute on the point that both the petitioners are physically handicapped persons and they were appointed by the respondents No. 2 District Education Officer (Boys) on the post of LDC against handicapped quota vide order dated 27. 5. 1992 (Annex. 6) and in pursuance of the said order dated 27. 5. 1992 (Annex. 6), they joined their duties on 27. 6. 1992. There is also no dispute on the point that the services of both the petitioners Prem Kumar Purohit and Girja Shankar Acharya were terminated vide orders 17. 9. 1992 (Annex. 8) and 17. 9. 1992 (Annex. 9) respectively and they were relieved through order dated 18. 9. 1992 (Annex. 10 ). But, in view of the stay order of this Court dated 19. 11. 1992 staying the operation of the orders Annexs. 8 and 9 dated 17. 9. 1992 till the final disposal of the writ petition, the petitioners are still in service and there is no dispute on that point. Legal aspect of executive power versus statutory rules In State of Haryana and ors. vs. Piara Singh and Ors. (1), the Hon'ble Supreme Court has held that it is the Executive again that lays down the conditions of service subject, of course, to a law made by the appropriate Legislature. This power to prescribe the conditions of service can be exercised either by making Rules under the proviso to Article 309 of the Constitution or (in the absence of such Rules) by issuing Rules, instructions in exercise of its executive power.
(3.) IN J & K Public Service Commission vs. Dr. Narinder Mohan and Ors. (2), the Hon'ble Supreme Court has held that the existence of Statutory Rules is not a condition precedent to appoint an eligible and fit person to a post. The executive power is co- extensive with legislative power of the State and under Art. 162, the State can create civil posts and fill them up according to executive instructions consistent with Articles 14 and 16 of the Constitution. It is settled law that once statutory rules have been made, the appointment shall be only in accordance with the rules. The executive power could be exercised only to fill in the gaps but the instructions cannot and should not supplant the law, but would only supplement the law. In the present case, there are Rules of 1957 regulating appointment of LDCs and for appointment of handicapped persons, there are Rules of 1976. Through Notification dated 7. 12. 1989, an amendment was made in sub-rule 1 (b) of Rule 7 of the Rules of 1957 (quoted above) and the contention of the learned counsel appearing for the petitioners is that after that amendment, physically handicapped persons can be regularly appointed without examination being conducted for their selection by the RPSC, as required by Rule 7 (1) (b) of the Rules of 1957. Proviso to Rule 7 of the Rules of 1957, which authorises the Appointing Authority to appoint physically handicapped person under the Rules of 1976, has to be read harmoniously with the other provisions of Rule 7 of the Rules of 1957 in such a way that a full effect has to be given to both the Rules. ;