GOVIND MATHUR,J. - (1.) BY 73rd amendment of the Constitution of India, a constitutional status was conferred on Panchayati Raj Institutions as the third stratum of governance. The amendment aforesaid was a landmark step to satisfy directives of the State Policy enshrined under the Constitution. With an object to bring a law relating to Panchayati Raj Institution in conformity with the constitutional status granted to such institutions, the Rajasthan State Legislature enacted Rajasthan Panchayati Raj Act, 1994 (hereinafter referred to as 'the Act of 1994 '). The Act of 1994 is a complete code of governance through Panchayati Raj Institutions in rural area of the State. Section 78 to Section 84 of the Act of 1994 deals with appointment and deputation of officers and staff, while Section 89 deals with the formation of service for the Panchayati Raj Institutions in the name of "Rajasthan Panchayat Samiti and Zila Parishad Service ". Section 90 deals with the constitution and functions of District Establishment Committee and Section 91 pertains to discipline among the members of the Panchayat Samiti and Zila Parishad service. Section 102 of the Act of 1994 empowers the State Government to make Rules to carry out objects and the purposes of the Act. Exercising this power, the State of Rajasthan framed "The Rajasthan Panchayati Raj Rules, 1996 " (hereinafter referred to as the 'Rules of 1996 '). Chapter XII of the Rules of 1996 relates to the recruitment of staff for the Panchayati Raj Institutions and to regulate other service conditions for the employees. A complete procedure required to be adhered while making direct recruitment to the Rajasthan Panchayat Samiti and Zila Parishad Service is given in Rules 270 to 277. As per Rule 270, the District Establishment Committee on receiving requisitions for direct recruitment by the Panchayat Samiti or the Zila Parishad, as the case may be, shall invite applications through open advertisement in daily newspaper having wide circulation. The application as per Rule 271 is required to be made in a format prescribed by the District Establishment Committee. After scrutiny of the applications, the District Establishment Committee is required to conduct written test for all categories of service except for Class-IV service and for the post of Drivers. The written test aforesaid is to be conducted as per the procedure given in Rule 273 of the Rules of 1996. At the time of introduction of the Rules, the Rule 273 was in the following terms : "Rule 273. Written test.-The Committee may hold a written test for all categories of service except drivers and class IV. [The examination shall be conducted as per directions of the State Govt. The syllabus for competitive examination for direct recruitment to the post of [School teachers class 1 to 5 shall be as specified in Schedule II and Teachers classes 6 to 8 shall be specified in schedule III.] D.E.C. Will prepare the merit list on such basis: Provided that selections for the various posts shall be made in accordance with the general directions given by the State Government from time to time in this respect. It may not be necessary to call the candidate for interview if so provided in those directions. " A second proviso was added to Rule 273 under a notification dated 11.5.2011 and that reads as under : "Provided further that for the recruitment of Teachers Classes 1 to V and VI to VIII, the District Establishment Committee shall prepare merit list on the basis of marks obtained in written test and adding 20% of marks obtained in Teacher Eligibility Test. "
(2.) AN amendment was further made in Rule 273 aforesaid by introducing a new proviso vide the Government of Rajasthan notification dated 17.12.2012, however, the same was re-amended by the Rajasthan Panchayati Raj (Amendment) Rules, 2013 notified under a notification dated 29.1.2013 and the existing second proviso reads as under : "Provided also that in case of appointment to the post of Lower Division Clerk, merit shall be prepared by the Appointing Authority on the basis of such weightage as may be specified by the State Government for the marks obtained in Senior Secondary or its equivalent examination and such marks as may be specified by the State Government having regard to the length of experience exceeding one year acquired by persons engaged on the post of Junior Technical Assistant (J.T.A.), Junior Engineer, Gram Rozgar Sahayak, Data Entry Operator, Computer Operator with Machine, Lekha Sahayak, Lower Division Clerk, Co-ordinator IEC, Coordinator Training, Coordinator Supervision, other than through placement agency, in MGNREGA or in any other scheme of the Department of Rural Development and Panchayati Raj in the State. Explanation : Wherever percentage of the marks can not be ascertained due to grade awarded to the candidate in the particular examination, the median of the grade awarded to the candidate in such examination shall be basis for the preparation of the merit list. " In view of the second proviso to Rule 273, the persons who have acquired experience of working exceeding one year as Junior Technical Assistant (J.T.A.), Junior Engineer, Gram Rozgar Sahayak, Data Entry Operator, Computer Operator with Machine, Lekha Sahayak, Lower Division Clerk, Co-ordinator IEC, Coordinator Training, Coordinator Supervision in Mahatma Gandhi National Rural Employment Guarantee Scheme (hereafter referred to as 'MGNREGA') or in any other scheme of the Department of Rural Development and Panchayati Raj in the State of Rajasthan are entitled to have additional weightage as specified by the State Government while getting their candidature considered for recruitment. The Government of Rajasthan in pursuance to the proviso aforesaid decided to allow 10 bonus marks on having experience of more than one year but less than two years on the specified posts. The bonus marks to the tune of 20 and 30 respectively are required to be given in the event of having experience of more than two years but less than three years and of more than three years. While providing such weightage an exclusion is made under proviso second for the persons having experience on the specified posts, if employed through Placement Agencies.
(3.) THE classification made under proviso second to Rule 273 of the Rules of 1996 on basis of the mode of engagement on specified post in MGNREGA came to be declared bad by a Division Bench of this Court in batch of writ petitions led by DBCivil Writ Petition No.1723/2013, Mitendra Singh Rathore & Ors. v. State of Rajasthan & Ors. In result, the proviso second to Rule 273 of the Rules of 1996 now reads as under : "Provided also that in case of appointment to the post of Lower Division Clerk, merit shall be prepared by the Appointing Authority on the basis of such weightage as may be specified by the State Government for the marks obtained in Senior Secondary or its equivalent examination and such marks as may be specified by the State Government having regard to the length of experience exceeding on year acquired by persons engaged on the post of Junior Technical Assistant (J.T.A.), Junior Engineer, Gram Rozgar Sahayak, Data Entry Operator, Computer Operator with Machine, Lekha Sahayak, Lower Division Clerk, Co-ordinator IEC, Coordinator Training, Coordinator Supervision in MGNREGA or in any other scheme of the Department of Rural Development and Panchayati Raj in the State. " A process of selection was initiated by different Zila Parishads in the State of Rajasthan to fill up the existing vacancies relating to the post of Lower Division Clerk and while making such selection a weightage is required to be given to the experienced hands. Petitioner Archana preferred a petition for writ (SBCivil Writ Petition No.4144/2013) to have a direction for the respondents to issue a certificate of experience to her and further to grant bonus marks accordingly. Learned Single Judge, while considering the petition, examined several provisions of the Act of 1996 and prima facie arrived at the conclusion that the grant of bonus marks against the experience is an "unconstitutional action of the State ". ;