- (1.) THIS writ petition under Article 226 of the Constitution of India has been filed by the petitioner against the respondents on 4 -8 -97 and amended on 25 -7 -98 with a prayer that by an appropriate writ, order or directions, sub -rule (3) of Rule 5 of the Rajasthan Civil Services (Appointment and other Service Conditions of Employees of Private Institutions and other Establishment Taken Over by Government) Rules, 1977 (hereinafter referred to as the Rules of 1977) be declared ultra vires to the Articles 14 and 16 of the Constitution of India and further the petitioner be paid post retiral benefits considering and counting the complete post services rendered by the petitioner in the private aided school and the orders dtd. 12 -3 -97 and 7 -6 -97 (Annex. 5 and 6 respectively) by which recovery of already paid amount to the petitioner had been ordered to be effected, be quashed.
(2.) THE facts as put forward by the petitioner are as under : i) That the petitioner was initially appointed as Assistant Teacher in the Sagubari, Dist. Nagpur vide order dtd. 25 -12 -58 and was confirmed w.e.f. 1 -1 -60. ii) That looking to the efficiency of the petitioner, he was promoted as Head Mas ter vide order dtd. 28 -6 -63 w.e.f. 1 -7 -63 and also was confirmed to the post of Ilnd grade teacher w.e.f. 1 -7 -64. iii) That Sagubari School was aided School and substantial grant was being given by the Government. In the year 1975, the Government conveyed sanction of the Governor for taking over of SDM Sagubari (Dist. Nagpur), school and accordingly on 5 -1 -76 this Sagubari aided school was taken over by the Government and all the employees of the School became Government employees. iv) That the case of the petitioner is that after his retirement, he is entitled to retiral benefits after counting his seniority from the date of initial appointment i.e. 1 -5 -59 and not from the date i.e. 5 -1 -76 when the aided School was taken over by the Government and in this respect, it has been further prayed that sub -rule (3) of Rule 5 of the Rules of 1977 be declared unconstitutional. It further appears that some amount was accordingly paid to the petitioner and, therefore, the respondent passed two orders one on 12 -3 -97 and another on 7 -6 -97 (Annex. 5 and 6) by which the amount which was paid earlier to the petitioner was ordered to be recovered from him. Hence, this writ petition with the abovementioned prayer. Reply to the writ petition was filed by the respondents and it has been submitted that sub -rule (3) of Rule 5 of the Rules of 1977 is not ultra vires to the Constitution of India and seniority of a person appointed as a result of taking over of private institutions shall be determined with reference to the year of taking over of such employee and not from the date of initial appointment in private institution. On second point, it has been replied by the respondents that if some wrong payment has been made to the petitioner, the State has got right to recover it without hesitation and the petitioner is not entitled to challenge the recovery orders (Annexs. 5 and 6). Hence, this writ petition should be dismissed.
(3.) THAT during the course of argument, the learned counsel for the petitioner has not assailed the validity of sub -rule (3) of Rule 5 of the Rules of 1977 and thus, the first prayer stands rejected.;