ARUN MADAN, J. - (1.) THE petitioner who la an employed of the Rajasthan State Text Book Board, Jaipur, has filed this writ petition in the matter of violation of his fundamental rights under Articles 14 and 16 of the Constitution of India read with Rajasthan State Text Book Board Employees Service, (Discipline and Conduct) Rules, 1979.
(2.) THE facts giving rise to the filing of this writ petition, briefly stated, are that the petitioner Joined the service of the respondent Board i.e., the Rajasthan State Text Book Board (hereinafter referred to as the 'Board'), on 8.1.1974 as Lower Division Clerk on temporary basis for a period of three months. He was subsequently confirmed as L.D.C. w.e.f. 22.12.78. The petitioner received ad -hoc promotion on the post of U.D.C. w.e.f. 22.5.1979. Subsequently the petitioner was confirmed on the post of U.D.C. prior to completion of one year's probationary period w.e.f. 1.4.1980. It has been further contended in the writ petition that the petitioner received ad -hoc promotion on the next promotional post of officer assistant with the respondent borad w.e.f. 25.12.1982. It has been contended in the writ petition that the length of service required for determining the eligibility for the post of U.D.C. as per the rules, was five years of service for which the petitioner became eligible w.e.f. 7.1.1979 but since the D.P.C. was not convened in time, petitioner was promoted on ad -hoc basis as U.D.C. on 22.5.1979 though his Juniors were promoted on the post of U.D.C. on ad -hoc basis earlier to the petitioner w.e.f. 4.5.78. It has been further contended on behalf of the petitioner that in May, 1987 D.P.C. was convened for considering the cases of eligible candidates for regular promotion from the post of L.D.C. to that of U.D.C. and the petitioner was found eligible for promotion to the post of U.D.C. against the vacancies of 1979 -80. Persons who were Junior to the petitioner received promotions earlier on ad -hoc basis and the D.P.C. placed them below the petitioner in the year 1979 -80. In view of this the petitioner was promoted w.e.f. 1.4.1979 as U.D.C. on ad -hoc basis and was placed under one year's probation by deeming clause Under Rule 11(A) of the D.P.C. Rules. Admittedly the petitioner had been confirmed as U.D.C. w.e.f. 1.4.80 as stated above and this fact has not been disputed by the respondents in their reply. It has been further contended in the. writ petition that as per the Rules governing the petitioner's appointment and promotion, i.e., Rajasthan State Text Book Board Employees Service, Discipline and Conduct Rules, 1979 (hereinafter referred to as the 'Rules of 1979') the criteria which has been stipulated for promotion from L.D.C. to U.D.C. it two fold, i.e., (i) candidate should have two years length of service on the substantive post of L.D.C. and (ii) candidate should be secondary/high school passed and for promotion he should have 3 years' service experienence with typing. Thus, the criteria which has to be adopted by the D.P.C. for determining the eligibility of the candidates for promotion from L.D.C. to U.D.C. is seniority of the candidate concerned as stated above and it is 100% promotional post. It has been further contained by the petitioner that for receiving further promotion from the post of U.D.C. to the post of office assistant, the criteria is provided in Rule 11(A) of the D.P,C. Rules as applicable to the petitioner and other employees of the respondent board. It has been further contended by the petitioner that there has been violation of Rule 11(A) of the D.P.C. Rules in not extending the benefit to the petitioner by promoting him as office assistant, since the petitioner was confirmed L.D.C. and had received ad -hoc promotion on the post of U.D.C. instead of giving him confirmation on the said post w.e.f. the date when persons junior to him were promoted, since the petitioner had been wrongly promoted on ad -hoc basis w.e.f. 22.5.79. instead of confirming him w.e.f. the said date. It has been further contended that on account of delay in confirmation of the petitioner on the post of U.D.C. w.e.f. 1.4.80, the persons who were junior to the petitioner had already been promoted prior to the confirmation of the petitioner as U.D.C. The candidature of the petitioner was was lower in seniority as U.D.C. by the D.P.C. contrary to Rule 11(a), as a result of which instead of receiving regular promotion on the post of office assistant, the petitioner had been given ad -hoc promotion on the said post w.e.f. 25.12.82 while junior persons had been given ad -hoc promotion earlier to the petitioner on the post of office assistant. It has been further contended by the petitioner that Rule 11(A) of the D.P.C. Rules is a statutory rule framed under the provisions of Article 309 of the Constitution of India on authorisation of the State and hence is binding on the respondent -board. It has been further contended that the respondent -board is body registered under the Societies Registration Act, 1958 and is instrumentality of the State of as envisaged under Article 12 of the Constitution of India and hence amenable to the writ jurisdiction of this Court under Article 226 of the Constitution of India. The Executive Council of the Board comprises of the members who are Govt. functionaries and the governing council of the Board in governed by Rule of 1979 which came into force w.e.f. 1.9.1979 and hence the respondent -board being an instrumentality of the State is under the pervasive control of the State Government and its primary function is in education department.
(3.) IT has been further contended that prior to framing of these Rules the service conditions of the employees were governed by relevant rules regarding recruitment etc. applicable to the government servants on corresponding course. In the present case Rajasthan Subordinate Offices Ministerial Staff Rules, 1957 (for short as the 'Rules of 1957'), are relevant for consideration of the petitioner's case. Rule 9 of the Rules of 1957 provides for yearwise determination of the vacancies. As per this Rule an L.D.C. in order to be promoted as U.D.C. ought to have three years' working experience in case of graduates and five years' experience in case of non -graduates. Both for next promotional post of office assistant, office superintendent etc. the same period of experience is required both for graduates and non graduates. However, under the Conduct Rules of 1979, for the purpose of promotion to the post of U.D.C, the requisite experience in two years' for a graduate and three years for non -graduate. For the purpose of promotion to next higher post, i.e., office assistant different experience between graduates (2 years) and non -graduates (3 years) has been prescribed under the Rules. Next promotional post from office assistant is that of Depot Manager Grade I for which there is no distinction between graduate and non -graduate. As per Rule 12 of the Rules of 1979, the procedure for recruitment for regular appointments is provided in Schedule 'DH -2'. As per the schedule, Rules for seniority and promotion are framed by the State Government for the employees of the board which will be applicable to the employees of the board and as amended from time to time.;