M.N. Bhandari, J. - (1.) By this writ petition, a challenge is made to the order dated 1st October, 2014 passed by the Deputy Secretary, Department of Education, State of Rajasthan.
(2.) Learned counsel for petitioners submits that this case has a chequered history thus needs to be explained for proper consideration of the issue. It is submitted that petitioners were appointed on the post of Jr. Stenographer from time to time starting from the year 1984 and last appointment of Dhirendra Sharma is in the year 1997. They were governed by the Board of Secondary Education Rajasthan Employees Service Regulations 1972 (in short "the Regulations of 1972"). As per regulations, Stenographers were having avenue of promotion upto the post of Director and their hierarchy of promotion has been narrated in the writ petition. A Junior Stenographer was eligible for promotion to the post of Stenographer followed by promotion on the post of Senior Stenographer/P.A. He/she was then eligible for promotion to the post of Personal Secretary and alternatively Assistant Director and then Deputy Director and lastly on the post of Director. For promotion to the post of Director, one was required to give option for the post of Assistant Director and if one opts for the post of Personal Secretary then not entitled to go upto the post of Director. All the petitioners were appointed under the Regulations of 1972, thus are entitled for their promotion as per avenue then existing. The promotion was not given and in the meanwhile, the Board of Secondary Education, Rajasthan Employees Service Regulations, 2004 (in short "the Regulations of 2004") were brought providing different avenue of promotion thus a dispute arose as to whether existing employees working on the post of Stenographer are entitled for promotion as per avenue available under the Regulations of 1972. The Board took a decision to allow promotion to the Stenographer as per avenue existing earlier. It was vide their resolution dated 25th August, 2008. The resolution however could not be carried out as it was stayed by the Secretary under the direction of the Chairman. A challenge to the order passed by the Secretary was made by filing a writ petition bearing No. 10660/2008. This court granted interim order against the order passed by the Secretary. The Board thereupon made promotion as per hierarchy of promotion existing under the Regulations of 1972. It was vide order dated 21st December, 2010. It was however made subject to final outcome of the writ petition. The promotion was against the vacancy year of 2008 -09, 2009 -10 and 2010 -11. Subsequent to the promotion of the petitioners, no dispute remain but at the instance of a Union of Scheduled Caste and Scheduled Tribe Candidates, impugned order was passed by none else but by the Deputy Secretary, Education Department, Government of Rajasthan. It was even in ignorance of the earlier decision of the Board. A decision was taken by the Board to keep three posts of Assistant Director/Personal Secretary reserved for Stenographers. In pursuance to the subsequent resolution, an order was passed thereupon on 22nd January, 2013. There was no occasion for the Deputy Secretary, Education Department, Government of Rajasthan to issue impugned letter. The new issue raised was pertaining to denial of reservation to the SC and ST candidates. A direction was given to hold review DPC as per the Regulations of 2004. It was without considering the fact that subsequent to the Regulations of 2004, the option was to be taken from the existing employees, whether to be governed by the Regulations of 1972 or by the Regulations of 2004. In any case, some of the petitioners were given promotion vide order dated 12th February, 2013. In the background aforesaid, a direction of review DPC in accordance with the Regulations of 2004 is illegal. Once the Board has passed resolution on 25th August, 2008 followed by another resolution taking a decision to provide three posts of Assistant Director/Personal Secretary to the Stenographer cadre, then a direction to hold review DPC goes contrary to resolution of the Board. In view of above, impugned order deserves to be quashed.
(3.) Per contra, learned counsel appearing for the respondents submit that impugned order is nothing but a direction to act as per Regulations of 2004. The said order has been passed by the Deputy Secretary, Education Department, Government of Rajasthan by exercising powers under Sec. 28 of the Secondary Education Act, 1957 (in short "the Act of 1957"). The exercise of powers was in the background that in violation of the Regulations of 2004, promotion was made from time to time. If promotion was made in pursuance to the resolution of the Board then also it is contrary to the Regulations of 2004, thus, should not have been carried out. In the background aforesaid and taking overall facts into consideration, the Government is directed to hold review DPC.;