M.B.SHARMA, J. - (1.) THE petitioner is an employee in Mahi Project Banswara and at the time when this petition was filed i.e. on January 12,1987, he was posted as Lathe Operator. He was initially appointed as a Fitter in the Mechanical Division -ll in the aforesaid Project on March 28, 1974 and it was as a result of promotion on October 23,1975 that he was appointed as Lathe Operator. The present petition has been filed by the petitioner on his own behalf as well as in representative capacity on behalf of the persons named in the Schedule annexed to the writ petition who too were appointed on various post mentioned against their names in Mahi Project Division I and II.
(2.) THE grievance raised in this petition by the petitioner is that the provisions of Rajasthan Service Rules, 1951 (for short, RSR) as well as the provisions of Rajasthan Service (Concessions on Project) Rules, 1962 (for short Project Rule) have been made inapplicable to the petitioner and other employees named in the Schedule annexed to the writ petition and provisions of RSR as well as Project Rules under which they have been made inapplicable are invalid being discriminatory and as such violative of Articles 14,16 and 21 of the Constitution of India. The RSR were framed by the then Rajpramukh of Rajasthan in exercise of the powers under the proviso to Article 309 of the Constitution of India. Rule 2 provides as to which of the employees the provisions of RSR will be applicable and under Rule 2(1), the RSR will apply to all persons appointed by the Government of Rajasthan to posts or services under its administrative control or in connection with the affairs if the State of Rajasthan on or after the seventh day of April, 1949 but under its second proviso the class of officers etc. to which the RSR is inapplicable has been specified and so far as present controversy is concerned, the Clauses (g),(h) and (i) are relevant. Under Clause (g) of Rule 2 of RSR, the provisions of RSR shall not apply to work charged employees, i.e. persons who are not on regular establishment and are paid out of provisions for expenditure on works, maintenance of works, or State trading schemes and similar other provision for funds other than provisions under budget unit of appropriation * Pay of Officers' and Pay of Establishment'. Under Clause (h), RSR, are not applicable to persons for whom special or specific provision in respect of any matter covered by the RSR has been made in the rules regulating their recruitment and conditions of service framed under proviso to Article 309 of the Constitution or under any Law or rules for their time being in force applicable to such persons. Under Clause (i) the RSR are not applicable to persons paid out of the consolidated fund of the State under budget unit of appropriation Pay of Officers' and Pay of Establishment' and who are at the same time Workman as defined in Section 2(s) of the Industrial Disputes Act, 1947 except to the extent provided in case of persons covered by Clause (h) above, in respect of (i) rules 43(c) and (d) regarding grant of honorarium, (ii) Chapter VI -Combination of Appointments, (iii) Chapter X and XI -Leave, (iv) Chapter XII - -Foreign Service and (v) Chapter XlV -Service under Local Fund. A perusal of the aforesaid clauses of Rule 2 of RSR will therefore show that the RSR is applicable only to the persons who are on regular establishment and they are not applicable to persons who are employees and are paid out of works etc. as mentioned in Clause (g). They are also not applicable to persons in respect of whom special or specific provision in respect of any matter covered by the RSR has been made in the rules regulating their recruitment and conditions of service framed under proviso to Article 309 of the Constitution. They are also not applicable to the persons paid out of consolidated fund of the State and who are at the same time workmen as defined in Section 2(s] of the Industrial Disputes Act, 1947, except as mentioned above.
(3.) CHAPTER v. of RSR is in respect of 'Addition to Pay and under its rule 42 power is vested in the Government subject to general rule that the allowance is not on the whole a source of profit to the recipient, the Government may grant such allowances to a Government servant under its control and may make rules prescribing their amounts and the conditions under which they may be drawn. In exercise of the aforesaid powers, the project Rules were framed. It may be stated that though the challenge in the present writ petition is to Rule 2 (b), (d) and (e) of the Project Rules, but the aforesaid Project Rules were superseded by the Rajasthan Civil Services [Project Allowance and Concessions in Project Areas) Rules, 1974 and the aforesaid Rules of 1974 were superseded by the Rajasthan Civil Services(Project Allowance and Concessions in Project Areas) Rules, 1975 (for short, the 1975 Rules). One of the objections raised in the reply is that the challange to the aforesaid Rules do not survive because they were superseded by the 1974 Rules and thereafter 1975 Rules which hold the field. But in our opinion a comparative study of the Project Rules as well as 1975 Rules will show that except that Rule 2(b) ,(d) and (e) Project Rules have been re -numbered as Sub -rules (2), (4) and (5) alongwith explanation respectively and there is not much difference. Thus the basic challenge being to the work charged employees, despite the fact that the writ petition was not amended and relief of the challenge to the aforesaid 1975 Rules not incorporated, we will proceed to examine the validity of the inapplicablity of 1975 Rules so far as the petitioner and other persons named in the schedule annexed to the writ petition are concerned.;