MOHAMMAD RAFIQ, J. - (1.) HEARD learned counsel for the parties.
(2.) THESE writ petitions have been filed challenging the notification dated 10.4.1995 whereby amendment in Rajasthan Education Service Rules, 1970, (for short Rule of 1970), which was vide earlier notification dated 30.10.1993 made effective from 6.9.1990 was again enforced on 1.9.1988, the date on which such amendment rules were made effective when the original amendment notification was issued on 6.9.1990. In fact, originally the Government vide two notifications dated 30.10.1993 and 6.6.1990 amended the Rajasthan Education Service Rules, 1970 and Rajasthan Education Subordinate Service Rules, 1971 and gave retrospective effect to such amendments from 1.9.1988. Those amendments were subjected to challenge including on the question of giving retrospective effect to them, in two writ petitions namely; DB Civil Writ Petition No.5562/1990 : Rajasthan Lecturers Association (School Education) Vs. State of Rajasthan & Ors decided on 7.10.1991 and DB Civil Writ Petition No.5562/1990 : Rajasthan Shiksha Sewa Parishad Vs. State of Rajasthan & Ors. In one of the writ petitions, the challenge was made to the note appended to Rule 7 of Amendment Rules, 1990, which provided that method of recruitment by promotion would come into force only after regularly appointed candidates on the posts of Head Masters, Secondary School and equivalent posts upto 31.8.1988, are regularly selected and appointed against the future vacancies of Headmaster Higher Secondary Schools. Subsequently, the Government again issued two notifications of even number both dated 30.10.1993 re-amending the amendment Rules of 1990, both in respect of Rajasthan Educational Service Rules and Rajasthan Subordinate Service Rules making them effective from 6.9.1990 rather than from 1.9.1988, the date originally notified for their enforcement in the previous notification dated 6.9.1990. Then, the Government had a re-thinking over the matter and by issue notification dated 10.4.1995 restored back 1.9.1988 as such date, on which the amendment in the Rules vide originally issued notification 6.9.1990 would be made effective, which gave rise to filing the present writ petitions. Although, it may be a fact that subsequent notification issued by Government on 10.4.1995 has given rise to a fresh cause of action entitling the petitioners, but nevertheless the arguments advanced by learned counsel for the parties are the same, which were either raised or considered or which were available to them which the above referred to two writ petitions were dismissed by a detailed and considered judgment by Division Bench of this Court on 7.10.1991 in which the validity of amendment rules including on the question of retrospectively w.e.f. 6.9.1990 was considered and upheld. The Division Bench in paras No.8 to 11 held as under :- "As said earlier, the rule making authority has power to amend the Rules and that power has not been challenged and only challenge on behalf of the Rajasthan Shiksha Parishad which claims to represent thousands of officers of Education Service, is that the same is arbitrary and that should be struck down. We find no merit in the aforesaid argument. If the rule making authority or for that matter the State Government has given higher pay scale of pay scale to the Lecturers School Education and the scale of pay has been given at par with the Headmasters, Secondary School, and the post of Lecturer etc which earlier was under the Subordinate Service Rules, has been brought in the State Service Rules having been deleted from the Schedule to the Subordinate Service Rules and included in the Schedule to the State Service Rules, it cannot be said that the decision to do so is arbitrary. There can be no dispute that the lecturers do not possess lesser educational qualification than Headmasters, Secondary School. Even earlier so far as posts of Headmasters, Secondary Schools are concerned, which posts fell under Group 'E' of Schedule I to the State Service Rules, were to be filled in 100% by promotion from Group 'F' posts and under Group 'F' posts, were the posts of Headmasters Secondary School, and 50% of those posts were to be filled in by direct recruitment and 50% by promotion and so far as channel of promotion to the said 50% is concerned, it was 'Teachers in Grade-II and teacher in Grade I in Sections C, D, E & F of the Schedule appended to the Subordinate Service Rules. Thus, the posts of Headmaster,s Secondary School were filled in by promotion from two sources, Teachers Grade-II and Teachers Grade-I in proportion to 4 : 1." The posts of Teachers, or for that matter Teacher Grade-II falling under Subordinate Service Rules were lower posts than the post of Teachers Grade-I or Senior Teachers or Lecturers, but still promotions to the post of Headmaster in the aforesaid ratio were made from the posts of Teaches Grade-II as well as Teachers Grade-I. But once the posts of lecturers have been brought under the State Service Rules, have been encadred under the State Service Rules and encadred posts they cease to be the posts under the Subordinate Service Rules and there can be no promotion even in the earlier ration 4 : 1 to the post of Headmasters, Secondary School from amongst Lecturers, the post of Lecturer and Headmaster, Secondary School are in the same grade and are equivalent posts and therefore, if the State Service Rules now provide that the posts of Headmasters, Higher Secondary Schools, 50% posts are to be filled in by promotion from among the Headmasters, Secondary School and 50% from amongst Lecturers, the rule cannot be said to be arbitrary, and rather, it can be said that it has done justice to the lecturers, though it has been done belatedly and thus, the Rule cannot be said to be arbitrary. We, therefore, uphold the amendment in Schedule I and III to the State Service Rules vise rule 3 and other rules of the Amendment Rules of 1990 by which various entries have been added.
(3.) NOW the question arises as to whether giving retrospective effect to the Amendment Rules of 1990 w.e.f. September 1, 1988 can be upheld ? We have already said in the earlier part of this order that the rule making authority has power to give to the amendment retrospective effect, unless such an amendment affects vested right. So far as rule 2 of the Amendment Rules of 1990 by which sub-rule (2) of rule 23 of the State Service Rules has been deleted and rules 3, 4 and 5 of the aforesaid Amendment Rules of 1990 under which various entries were added in Schedule I, Schedule II and Schedule III and the posts of lecturers were encadred in the State Service Rules, are concerned, we are of the opinion that they do not affect any vested rights of the members of Rajasthan Shiksha Sewa Parishad which claims to represent about 5000 officers of the State Educational Service holding the posts from Group F to Group A. It was as a result of the settlement arrived in between the Association of Lecturers School Education and the State Government that the said amendment was introduced and the lecturers withdrew their agitation in view of the settlement dated October 21, 1988. It is as a result of the aforesaid settlement that that aforesaid rules of the Amendment Rules of 1990 were given retrospective effect w.e.f. September 1, 1988 and it was provided that they shall be deemed to have come into force with effect from that date. We will deal later on as to what is the effect of rule 7 of the Amendment Rules of 1990 as that rule has also been given retrospective effect w.e.f. September 1, 1988. The contention of the Rajasthan Shiksha Sewa Parishad that the posts of lecturers are subordinate to the post of Headmaster, Secondary School has no force in view of the fact that the post of lecturer has been encadred in the State Service Rules vide notification dated January 6, 1990 published in the Rajasthan Gazatee Pt.4 (C) (1) dated September 17, 1990-P, 35 (14). Prior to the aforesaid amendment, no doubt the posts of Lecturers were subordinate posts to the posts of Headmaster, Secondary School, being governed by the Subordinate Service Rules, rather the channel of promotion to the post of Headmaster, Secondary School was from Teachers Grade-II and Teacher Grade-I (redesignated as Lecturers) in the ratio of 4 : 1 but after the demand of lecturers, the posts of lecturers were encadred in the State Service Rules, they were given the same pay scale as was being paid to the Headmasters, Secondary School, they ceased to be the posts subordinate or inferior to the post of Headmasters, Secondary School, and were equal posts. Therefore, prior to the aforesaid amendment, whereas the Government might have said that the post of Lecturers are subordinate to the post of Headmasters, Secondary School, is not relevant to the present controversy. We are of the opinion that giving retrospective effect to rule 2, 3, 4 & 5 by adding entries in Schedules I, II and III in respect of lecturers and encadering those posts in the State Service making them members of the State Service cannot be said to be unreasonable, and invalid and it does not affect any vested right of the holders of the posts of Headmasters, Secondary School, the posts falling under Schedule I Group E of the State Service Rules. ;