- (1.) THIS special appeal is directed against the order dated 3. 9. 93 passed by the learned single Judge of this Court dismissing the writ petition of the appellant-petitioner.
(2.) THE facts giving rise to the instant appeal briefly stated are as under: The appellant-petitioner was initially appointed on the post of Class-IVth employee in the office of Director, Dairy Development Rajasthan, Jaipur on 21. 8. 76 on sponsoring his name from the Regional Employment Exchange under Order No. 5539-44 dated 21. 8. 76. The appellant-petitioner was transferred from Dairy Development Department in the Relief Department in the same capacity. Subsequently, he was promoted on the post of Jamadar and was confirmed on the said post w. e. f. 18. 8. 90. In the seniority list issued by the Deputy Secretary to the Government Relief Department appellant-petitioner has been shown at Sr. No. 10 and his date of appointment has been shown as 21. 8. 76 whereas, the name of the respondent No. 3, Om Prakash Sharma has been shown at Sr. No. 13 and his date of appointment has been mentioned as 28. 1. 82. Thus, it is evident that the appellant-petitioner was senior to the respondent No. 3. The appellant petitioner had passed Hindi Rashtra Bhasha Parichaya Examination from Bardha in February, 1985. The said degree was recognised by the Government of Rajasthan vide order dated 13. 5. 74 and the aforesaid degree was to be treated equivalent to High School or Higher Secondary 1st Year. It was also averred by the appellant-petitioner that since he passed Hindi Rashtra Bhasha Parichaya Examination he was fully qualified and eligible for promotion to the post of Lower Division Clerk from the post of Class-IV employee. It appears that there are two modes of recruitment for the post of LDC in the Rajasthan Subordinate Offices (Ministerial Staff) Rules, 1957 one; by way of direct recruitment and other by promotion from amongst the lower category i. e. Class- IVth and the eligibility for promotion to the post of LDC is that a Class-IVth employee must qualify the examination from the Secondary Board or the examination equivalent to the Secondary Examination which is recognised by the Government of Rajasthan. Further, the qualification to be possessed by such candidate was experience of 5 years. There were two vacant posts of LDC in the Relief Department out of which, one was to be filled up by direct recruitment and the other by promotion from amongst Class IVth employees. Since the appellant-petitioner had passed the Hindi Rashtra Bhasha Parichaya Examination in February, 1985 he approached the respondent No. l and 2 and requested that his case may be considered for promotion to the post of LDC on the basis of the Government order dated 13. 5. 74. The appellant-petitioner also submitted several representations without any fruitful result. It appears that the Government of Rajasthan through Notification No. F. 3 (45)/dop/a-II/83 dated 28. 6. 85 amended the Rules of 1957 by which the Hindi or Sanskrit qualification recognised by the Government of Rajasthan as equivalent to that of Matriculation was deleted and was always be deemed to have been deleted w. e. f. 1. 4. 85. However, ultimately the appellant-petitioner was informed orally on 15. 12. 92 that his case will not be considered for the post of LDC as the Hindi examination including Rashtrabhasha examination qualification has been derecognised by the State Government w. e. f. 28. 6. 85. As soon as, the appellant-petitioner was informed about the said fact he immediately served a Notice for Demand of Justice through his Advocate and since the grievance of the appellant-petitioner had not been ventilated, he approached this Court in writ petition under Article 226 of the Constitution of India. The learned Single Judge by the impugned-order dated 3. 9. 93 dismissed the writ petition of the appellant-petitioner on the ground that since the recognition awarded to Hindi Rashtrabhasha Parichaya Examination had been withdrawn by the Government Order dated 28. 6. 85 the case of the appellant-petitioner for promotion from Class-IVth to LDC could not be considered. Appellant-petitioner feeling aggrieved against the aforesaid order has preferred this special appeal. Mr. A. K. Rastogi, learned counsel appearing on behalf of the appellant-petitioner contends that the order of the learned Single Judge is in the teeth of the judgment of the Division Bench of this court rendered in D. B. Civil Special Appeal No. 6/90 State of Rajasthan & Anr. V/s. Shiv Karan & Ors. (1) and as such the same deserves to be quashed. The facts giving rise to the aforesaid D. B. Civil Special Appeal No. 6/90 State of Rajasthan & Anr. (Supra) briefly stated are as under: - "prior to 1978, the petitioner-respondents were appointed as Class IV employee- s in different departments of the Government of Rajasthan and while they were in service, they passed Prathama Examination held by Hindi Sahitya Sammellan, Allahabad/prayag prior to the year 1985. By notification dated 13. 5. 74, the Government of Rajasthan in the Department of General Administration, Jaipur, Prathama of Hindi Sahitya Sammellan, Allahabad, was recognised as equivalent to that of High School/matriculation. On its basis, the petitioner-respondents claimed their promotion under Sec. 7 (3), Rajasthan Subordinate Offices (Ministerial Staff) Rules, 1957 but their claim was rejected on the ground that by notification dated 28. 6. 85 issued by the Department of Personnel and Administrative Reforms, Government of Rajasthan, Jaipur, the said Hindi qualification which was equivalent to that of Matriculation/high School has been derecognised. Thereafter, petitioner- respondents filed a writ petition for directing the appellant- State to consider their cases for promotion to the posts of lower division clerks from the date they have passed the Hindi Examination. The State of Rajasthan filed the reply seriously opposing the writ petition and the learned Single Judge after hearing the parties allowed the petition and directions were issued. The State of Rajasthan challenged the order of the learned single Judge and filed the special appeal as aforesaid. The main thrust of the argument of the State of Rajasthan before the Division Bench of this Court was that the Notification dated June 28th, 1985 was retrospective in effect and even the persons who had passed the degrees which were recognised to be equivalent to High School/ Matriculation examination were having been derecognised and as such they were not entitled to be considered for promotion after the aforesaid date. Such argument of the State of Rajasthan was negatived by the Division - Bench of this court and the special appeal filed by the State was dismissed upholding the order of the learned Single Judge passed earlier. Mr. B. P. Agrawal, Advocate General has not cited any decision in which a contrary view has been taken and moreover he frankly conceded that the controversy involved in the instant case is squarely covered by the decision of the Division Bench of this court in : D. B. Civil Special Appeal No. 6/90 State of Rajasthan & Another vs. Shiv Karan & Ors. (Supra ). After hearing the learned counsel for the parties and after perusal of the judgment of the Division Bench of this Court in State of Rajasthan & Anr. Vs. Shiv Karan & Ors. (Supra), we are in the full agreement with the view expressed by th Division Bench in State of Rajasthan & Anr. (supra) and in our opinion the order of the learned Single Judge appears to be erroneous and deserves to be quashed.
(3.) IN the result, special appeal succeeds and is allowed. The order of the learned Single Judge dated 3. 9. 93 is set-aside and the respondents are directed to consider the case of the appellant for promotion to the post of Lower Division Clerk and in case the appellant is promoted he shall be entitled to due seniority and other consequential benefits to which he was entitled in case, he would have been promoted on the date he was to be considered for promotion. Parties are left to bear their own costs. .;