-1- IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.
JUDGMENT(1) S.B.CIVIL WRIT PETITION NO.4144/2013 (Archana Vs. State of Rajasthan & Ors.) (2) D.B.CIVIL SPECIAL APPEAL NO.630/2013 In S.B.CIVIL WRIT PETITION NO.4144/2013 (State of Rajasthan & Ors. Vs. Archana & Anr.) (3) S.B.CIVIL WRIT PETITION NO.9780/2013 (Virendra Ragwani Vs. State of Rajasthan & Ors.) (4) S.B.CIVIL WRIT PETITION NO.10236/2013 (Ranveer Deharu & Ors. Vs. State of Rajasthan & Ors.) (5) D.B.CIVIL WRIT PETITION NO.5583/2013 (Nagendra Singh Chouhan Vs. State of Rajasthan & Ors.) DATE OF
JUDGMENT::
25. h September, 2013 PRESENT HON'BLE MR.JUSTICE GOVIND MATHUR HON'BLE MR.JUSTICE VIJAY BISHNOI Mr. G.S.Bafna, Advocate General assisted by Mr. Sarvesh Jain; and Mr. G.R.Punia, Additional Advocate General assisted by Mr. Mahendra Choudhary. Dr. P.S.Bhati and Dr. Nupur Bhati, counsels for the petitioners in SBCWP No.4144/2013. Mr. Ashok Chhangani, Mr. M.S.Godara and Mr. R.S.Choudhary, counsels for the petitioners in SBCWP Nos.9780, 10236 and 5583 of 2013). ..... BY THE COURT :(PER HON'BLE GOVIND MATHUR,J.) REPORTABLE 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 -2- 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. -3- 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: -4- 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.” 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 -5- 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 -6- 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. 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 -7- 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”. Learned Single Judge, thus, referred following three questions to the Larger Bench for appropriate answer :- -8- “(A) Whether the second proviso to Rule 273 of the Rajasthan Panchayat Raj Rules 1996 added vide notification dated 29.01.2013 is not an attempt to undo the judgment rendered by the Hon'ble Supreme Court in the case of Secretary, State of Karnataka Vs. Uma Devi, reported in (2006)4 SCC 1, because under the said proviso the State Government granted weightage of 10 marks for the experience of each year, up to three years, to the employees engaged on ad hoc/temporary/contract basis in the various schemes or projects of the Rural Development Department and deserves to be declared unconstitutional? (B) Whether in view of the existing Rule 273 in which written test is provided for recruitment on the post of L.D.C. whether under second proviso added vide notification dated 29.01.2013 the respondent State can make recruitment without conducting written examination? (C) Whether in the absence of any provision in the amended Rule 266 with regard to qualification of experience for the post of L.D.C. bonus marks for experience can be granted and whether the same is not violative of Articles 14 and 16 of the Constitution of India?” Learned Single Judge in two other petitions for writ viz. Virendra Ragwani v. State of Rajasthan & Ors. and Ranveer Deharu v. State of Rajasthan & Ors. also formulated certain -9- questions of law and made reference for their adjudication by Larger Bench. In these two petitions the petitioners sought a direction for respondents to conduct the process of selection for appointment to the post of Junior Engineer Degree/Diploma Holder on basis of the educational qualification prescribed in Rule 15 of the Rajasthan Rural Development and Panchayati Raj State and Subordinate Service Rules, 1998 (hereinafter referred to as “the Rules of 1998”) without extending any weightage/bonus marks on basis of experience. Suffice to mention that in an another petition for writ (DBCivil Writ Petition No.5583/2013, Nagendra Singh Chouhan v. State of Rajasthan & Ors., a challenge is given to proviso to Rule 23 of the Rules of 1998. In the cases of Virendra Ragwani, Ranveer Deharu and Nagendra Singh Chouhan the petitioners are Engineers and aspirants for appointment to the post of Junior Engineer Degree/Diploma Holder under the process of selection initiated vide an advertisement dated 25.3.2013, issued by the Secretary to the Government of Rajasthan-cum-Commissioner, Department of Rural Development and Panchayati Raj. Recruitment to the posts referred in the advertisement mentioned above is required to be made as per the Rules of 1998. The Government of Rajasthan by Rajasthan Rural Development and Panchayati Raj State and Subordinate Service (Amendment) Rules, 2013 substituted first proviso to Rule 23 in following terms :- -10- “Provided that in case of appointment to the post of Junior Engineer, Assistant Programme Officer, Computer Instructor (PR), Accounts Assistant, Co-ordinator Training, Co-ordinator I.E.C. and Co-ordinator Supervision 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 such minimum academic qualification or technical qualification, except allied qualifications, as mentioned in the Schedule of these rules and such marks as may be specified by the State Government having regard to the length of experience, exceeding one year by persons on the similar work under MGNREGA, or any scheme or project of the Department of Rural Development and Panchayati Raj or the Department of Education in this State. Explanation: (i) Wherever percentage of the marks can't 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. (ii) For the purpose of this rule allied qualification means certificate / diploma / degree relating to knowledge of Computer Application. (iii) For the purpose of this rule, experience on similar work shall be ascertained as under, namely:- -11- S.No. Experience of working gained as To be considered for the Remarks post 1. Junior Technical Assistant/Senior Junior Engineer Technical Assistant/Junior Engineer working in Department of Rural Development and Panchayati Raj or the Department of the Education 2. Programme Officer/Assistant Assistant Programme Programme Officer/Manager Officer SGSY 3. Programmer/MIS Manager Computer Instructor (PR) 4. Lekha Sahayak/Accountant/ Accounts Assistant Assistant Accounts Officer 5. Co-ordinator Training/ Co-ordinator Training Consultant Training 6. Co-ordinator I.E.C. Co-ordinator I.E.C.
7. Co-ordinator Supervision Co-ordinator Supervision After substituting the proviso first to Rule 23 in the terms above, the Government of Rajasthan prescribed weightage against experience to the extent of ten marks in the event of service above one year but less than two years; 20 marks in the event of experience of service about two years but less than three years and of 30 marks for having experience of service for three or more years. Petitioner Nagendra Singh Chouhan has questioned correctness of the proviso to Rule 23 of the Rules of 1998 on several counts including that grant of weightage under the proviso aforesaid is nothing but an effort to frustrate the judgment of Hon'ble Supreme Court in the case of State of Karnataka v. Uma Devi (supra). It is also asserted that under the Rules of 1998 the eligibility prescribed for recruitment to the -12- post of Junior Engineer Degree/Diploma Holder is having either a Degree or Diploma in Engineering, but no reference of experience is given therein, as such, by proviso an additional eligibility could have not been prescribed. It is also asserted that grant of weightage against the experience is having no rational with the object sought to be achieved by making recruitment under the Rules of 1998. The object of the Rules is to have best available merit and that can be served only by recruiting the hands with meritorious qualificational eligibility. The experience is nothing to do with merit desirable for the lowest post cadered under the Rules of 1998. The issues involved in the case of Virendra Ragwani, Ranveer Deharu and Nagendra Singh Chouhan are same, as such, the questions referred in the cases of Virendra Ragwani and Ranveer Deharu are also applicable to the case of Nagendra Singh Chouhan. The questions so referred are as under:- “(A) Whether substitution of existing proviso to Rule 23 is not contrary to the judgment rendered by the Hon'ble Supreme Court in Uma Devi's case (supra), in which, it has been held that appointment should be made in accordance with law and there should not be any regularization of those employees who were appointed contrary to the rules framed under proviso to Article 309 of the Constitution of India; -13- (B) Whether the respondent State can give complete good-bye to Rule 15 and original Rule 23 which are in existence and grant bonus marks for the services rendered by the employees on different posts in the projects as per the proviso added vide notification dated 06.03.2013; (C) Whether providing only 70% marks for educational and professional qualification and providing 30 marks for experience acquired by the candidates in different projects is in consonance with Articles 14, 16 and 21 of the Constitution of India. If not, then, why the amendment made vide notification dated 06.03.2013 should not be declared unconstitutional; and (D) Whether such bonus marks can be provided by the State Government without making any amendment in the qualification laid down in the Schedule appended to the Rules of 1998.” On being referred, these matters are before us in accordance with Rule 59 of the Rajasthan High Court Rules, 1952. It is pertinent to note that the order of reference itself too is under challenge in DBCivil Special Appeal No.630/2013, State of Rajasthan & Ors. Vs. Archana. -14- Learned Advocate General Shri G.S.Bafna, learned Additional Advocate General Shri G.R.Punia, Shri Pushpendra Singh Bhati, counsel for petitioner Archana addressed the Court on several counts including that - (1) The reference made by learned Single Judge is incompetent in view of the fact that as per Rule 59 of the Rajasthan High Court Rules, 1952 reference could have been made only on a question or questions of law arising in the case concerned. In the present case there was no issue with regard to validity of the grant of weightage in the form of bonus marks against the experience; (2) In the case in hand no one questioned validity of the proviso second to Rule 273 of the Rules of 1996 for grant of weightage against the experience, thus, validity of the provision cannot be examined; (3) Learned Single Judge misconstrued the judgment of Hon'ble Supreme Court in Secretary, State of Karnataka Vs. Uma Devi, reported in (2006)4 SCC 1. The case aforesaid is having no application to the facts of the present case. Beside that even in the case of Uma Devi it is kept open for having a provision to extend weightage for experience (reference para 55 of the judgment); -15- (4) The weightage against the experience is prescribed to ensure merit in service and that has already been settled by several judicial pronouncements as a valid criteria. The experience decorates personality with maturity and that extends desired efficiency to public service; and (5) The quantum of weightage given in the form of bonus marks is absolutely within the domain of the State Government and as such it is not open for examination by the Court. No challenge too is given to the quantum of weightage and as such that is not required to be examined while considering this reference. Shri Mahendra Singh Godara and Shri Ashok Chhangani have supported the reference made with assertion that in view of the judgment in the case of State of Karnataka v. Uma Devi (supra) no weightage could have been allowed to the aspirants having experience of working with the schemes floated under MGNREGA and under the Department of Rural Development and Panchayati Raj. It is asserted that the relevant Rules nowhere prescribe experience as an eligibility, therefore, that cannot be treated as a valid criteria for determining merit. According to learned counsels the proviso introduced under Rule 273 of the Rules of 1996 and proviso to Rule 23 of the Rules of 1998 are bad being in contravention to the principle eligibility prescribed under the relevant Rules. -16- It is asserted by Shri Ashok Chhangani, learned counsel for the petitioner in the case of Nagendra Singh Chouhan that a proviso to Rule is something engrafted on a preceding enactment, but in the instant case the proviso is creating a substantive right in favour of the aspirants who are having experience of service. According to Shri Chhangani neither Rule 273 of the Rules of 1996 nor Rule 23 of the Rules of 1998 are concerned with eligibility or determination of merit, as such, by way of granting weightage through proviso the respondents are extending a new right, which as a matter of fact is not concerned with the main provision. The provisos as such are bad. Heard and considered the rival submissions advanced by learned counsels. So far as the argument advanced by learned Advocate General relating to competence of making a reference is concerned, suffice to mention that Rule 59 of the Rajasthan High Court Rules, 1952 (hereinafter referred to as “the Rules of 1952”) provides that “the Chief Justice may constitute a Bench of two or more Judges to decide a case or any question or questions of law formulated by a Bench hearing a case. In the latter event the decision of such Bench on the questions so formulated shall be returned to the Bench hearing the case that Bench shall follow that decision on such question or questions -17- and dispose of the case after deciding the remaining questions, if any, arising therein”. As per Rule 59 of the Rules of 1952 reference is required to be made by Hon'ble the Chief Justice on the questions of law formulated by the Bench hearing a case. The issues framed by learned Single Judge are quite relevant and are arising from the cases concerned in view of the fact that ultimately the issue relates to a fair recruitment by determining merit by a fair mode of selection. Learned Single Judge formulated the question about validity of the weightage i.e. to be granted for determination of merit while making appointments on the posts concerned and these are pure questions of law. True it is, in the petition for writ preferred by Ms. Archana no challenge is given to the weightage given, but the same is claimed as settled by the State of Rajasthan, however, it is always open for writ Court to see that whatever claimed is constitutional or not, though may be having statutory credil. If the claim made is based on a statute and validity of that too is having doubt, then that can very well be examined by the writ Court. As per Rule 55 of the Rules of 1952 a Single Judge cannot adjudicate the constitutionality of a statute, thus, in the instant matter learned Single Bench formulated the questions and referred the same to a Larger Bench. Beside the above, the argument advanced with regard to competence of reference looses its importance in view of the fact that in the case of -18- Nagendra Singh Chouhan a challenge is also given to the provision prescribing authority to the State of Rajasthan for extending weightage on basis of the experience. It is also pertinent to note that in the case of Nagendra Singh Chouhan the issue with regard to quantum of weightage (quantum of bonus marks) given against the experience is also questioned. Learned Single Judge has also made a reference in the case of Virendra Ragwani and Ranveer Deharu in the terms that “whether providing only 70% marks for educational and professional qualification and providing 30 marks for experience acquired by the candidates in different projects is in consonance with Articles 14, 16 and 21 of the Constitution of India. If not, then, why the amendment made vide notification dated 06.03.2013 should not be declared unconstitutional”. Looking to this factual background, we are of the view that all the questions referred by learned Single Judge for adjudication by Larger Bench are required to be examined and answered. The questions raised in the case of Nagendra Singh Chouhan being interlinked with the questions referred to the Larger Bench too are required to be adjudicated by us. For our convenience we have rearranged the seriatim of the questions formulated by learned Single Bench and i.e. as under:- -19- (1)Whether in view of the existing Rule 273 in which written test is provided for recruitment on the post of L.D.C. whether under second proviso added vide notification dated 29.01.2013 the respondent State can make recruitment without conducting written examination? (2)Whether in the absence of any provision in the amended Rule 266 with regard to qualification of experience for the post of L.D.C. bonus marks for experience can be granted and whether the same is not violative of Articles 14 and 16 of the Constitution of India? (3)Whether the respondent State can give complete good-bye to Rule 15 and original Rule 23 which are in existence and grant bonus marks for the services rendered by the employees on different posts in the projects as per the proviso added vide notification dated 06.03.2013? (4)Whether such bonus marks can be provided by the State Government without making any amendment in the qualification laid down in the Schedule appended to the Rules of 1998? (5)(a)Whether the second proviso to Rule 273 of the Rajasthan Panchayat Raj Rules 1996 added vide notification dated 29.01.2013 is not an attempt to undo the judgment rendered by the Hon'ble Supreme Court in the case of Secretary, State of -20- Karnataka Vs. Uma Devi, reported in (2006)4 SCC 1, because under the said proviso the State Government granted weightage of 10 marks for the experience of each year, up to three years, to the employees engaged on ad hoc/temporary/contract basis in the various schemes or projects of the Rural Development Department and deserves to be declared unconstitutional? (5)(b) Whether substitution of existing proviso to Rule 23 is not contrary to the judgment rendered by the Hon'ble Supreme Court in Uma Devi's case (supra), in which, it has been held that appointment should be made in accordance with law and there should not be any regularization of those employees who were appointed contrary to the rules framed under proviso to Article 309 of the Constitution of India? (6) Whether providing only 70% marks for educational and professional qualification and providing 30 marks for experience acquired by the candidates in different projects is in consonance with Articles 14, 16 and 21 of the Constitution of India. If not, then, why the amendment made vide notification dated 06.03.2013 should not be declared unconstitutional? QUESTION NO.1 :- The first issue required to be answered by us is that whether the requirement of holding written test as per Rule 273 -21- of the Rules of 1996 has wrongly been dispensed with while making recruitment to the post of Lower Division Clerk? As already stated, as per the Rules of 1996 direct recruitment to the post of Lower Division Clerk is required to be made as per the procedure prescribed from Rule 270 to Rule 277. As per Rule 270 of the Rules of 1996, on a requisition for direct recruitment to the service having been made by the Panchayat Samiti or the Zila Parishad, the District Establishment Committee shall invite applications through open advertisement in daily newspapers having wide circulation. The application for appointment is required to be made in the format prescribed by the committee. As per Rule 272 of the Rules of 1996 “the committee shall scrutinise the applications received by it and call the candidates eligible for appointment under these Rules to appear before it for interview/written test”. Under Rule 272 the District Establishment Committee is having option either to call the candidates to face interview or to hold a written test. Rule 273 prescribes a broad discretion to the committee to hold a written test, if required, as such holding of written test is not mandatory. A plain reading of the Rules 272 and 273 of the Rules of 1996 quite satisfactorily convey that holding of written test is not a condition precedent for making direct recruitment. The respondents, thus, committed no illegality or even irregularity by proceeding with selection through direct recruitment without conducting written examination. -22- QUESTION NO.2 :- The question No.2 as formulated by learned Single Bench is having two limbs and those are :- (1)Whether the weightage in the form of bonus marks could have been granted without making an amendment under Rule 266 of the Rules of 1996 that prescribes eligibility for appointment to the post of Lower Division Clerk inter-alia? (2)That whether grant of bonus marks does not violate the fundamental principle of equality enshrined under Articles 14 and 16 of the Constitution of India? So far as Rule 266 of the Rules of 1996 is concerned, it prescribes that a person having the qualification of Secondary from a recognised Board with a typing speed of 20 and 25 words per minute in Hindi and English typing respectively can be considered for appointment as Lower Division Clerk. For appointment to the post of Lower Division Clerk there is no eligibility to have experience. As per the order of reference made by learned Single Judge when the experience is not prescribed as an eligibility, then no bonus marks could be awarded while determining merit for appointment and, if merit is prepared otherwise, then that shall not only be in violation of Rule 266 of -23- the Rules of 1996, but shall also be in violation of doctrine of equality. An aspirant for appointment to the post of Lower Division Clerk and other posts referred in Rule 266 is required to have minimum eligibility given in the Rule concerned. No appointment can be made on the posts referred in Rule 266 by a person who is not having requisite qualification. However, the grant of weightage in the form of bonus marks is not a part of eligibility but a mode adopted to extend more efficiency, skill and maturity to the service by giving preference to experienced hands. In public service the prime object of recruitment process is to sort out the most meritorious person to give an edge to service that is essential to serve and execute public duties and policies. The determination of such merit depends on several factors including qualificational eligibility and experience. In the instant matter the respondents are making appointments to the posts available with Panchayati Raj Institutions. A Division Bench of this Court in DBCivil Writ Petition No.1723/2013, Mitendra Singh Rathore & Ors. v. State of Rajasthan & Ors., had an occasion to examine the importance of the experience required in services including Panchayat Raj service and observed as under:- “The Panchayati Raj Institutions as per Schedule-XI of the Constitution of India read with Rajasthan Panchayati Raj Act, 1994 and the Rules framed -24- thereunder are having a very significant role in nation building by extending and implementing various developmental plans. Several schemes under MGNREGA too are supposed to be accomplished through Panchayati Raj Institutions. In such circumstances the need of a big man force is obvious. The service further requires skill with insight for the nature of job to meet the task given. An experienced person by examining, understanding and factually undertaking same task catch an insight and propound understanding of the job concern. Such insight and understanding of the work extends an edge to such persons in doing the work assigned with passion and interest. It also introduces such persons with the world of work and to learn dos and don'ts attached thereto. The experience comprises knowledge, skill, exposure, concept of the task given and procedural knowledge thereof. All these ingredients provides a merit that is necessary for service. This merit helps in accomplishing the task successfully, as such, the grant of weightage for experience is in interest of service so also in interest of the objects for which service is created. The need of granting weightage under 2nd Proviso to Rule 273 of the Rules of 1996 is with this view only. The experience required under Proviso second of Rule 273 of the Rules of 1996 is on definite posts under definite schemes sponsored by the Panchayati Raj Institutions and under MGNREGA. This too is having a rational as the schemes are required to be implemented with a new vision of development and governance at the grass root level through the Panchayat Raj Institutions as per thrust of the 73rd constitutional amendment and the State enactment -25- made in consonance thereto. The need of experience hands in service, thus, is rational and required.” While adopting the reasonings given in the case of Mitendra Singh (supra) we are of the view that the grant of weightage while making appointment to the post in Panchayat Raj service is neither irrational nor it makes any classification without having intelligible differentia. We are also of the view that such bonus marks in no manner offends the eligibility prescribed under Rule 266 of the Rules of 1996. Rule 266, prescribes minimum eligibility, but not the criteria for determining merit, which as a matter of fact is given under proviso to Rule 273 of the Rules of 1996. While examining this question, we also deem it appropriate to deal with the argument advanced by Shri Ashok Chhangani that the proviso is something engrafted on a preceding enactment, but the proviso in question is creating a substantive right in favour of the aspirants possessing service experience, the proviso, therefore, is contrary to the principles of legislative drafting. It is asserted that providing of the proviso in the form of a positive right is illegal and, therefore, that deserves to be declared bad. The argument advanced is substantiated with the aid of several judgments including Union of India v. Sanjay Kumar Jain, reported in (2004) 6 SCC 708; Ali M.K. & Ors. v. State of Kerala & Ors., reported in (2003) 11 SCC -26- 632; A.N.Sehgal & Ors. v. Raje Ram Sheoran & Ors., reported in 1992 Supp (1) SCC 304; State of Maharashtra v. Chandrabhan, reported in AIR 1983 SC 803; and Col. A.S.Sangwan v. Union of India & Ors., reported in AIR 1981 SC 1545. The law laid down in the cases aforesaid is that a proviso is subsidiary to the main section and it must be construed in light of section itself. The object of the proviso is to carve out from the main section a class or category to which the main section does not apply. But in carving out from the main section one must always bear in mind what is the class referred to in the main section and must also remember that carving out intended by the proviso is from the particular class dealt with by the main section and from no other class. Ordinarily a proviso is designed to restrict rather than to enlarge the provision to which it is appended, but that is not inflexible rule. There may be cases in which the language might well lead to conclusion that the legislature intended to exercise its right enacting power by proviso too. The Court on overall examination of the provision to which proviso is attached, if arrives to the conclusion that the legislature intended to create a liability, then it is the duty of the Court to give effect to that intention may that be embodied in a proviso. Hon'ble Supreme Court in State of Tamil Nadu v. Kodaikanal Motor Union (P) Ltd., reported in AIR 1986 SC 1973, -27- while discussing the principles of interpretation, observed as under:- “The courts must always seek to find out the intention of the legislature. Though the courts must find out the intention of the statute from the language used, but language more often than not is an imperfect instrument of expression of human thought. As Lord Denning said it would be idle to expect every statutory provision to be drafted with divine prescience and perfect clarity. As judge Learned Hand said, we must not make a fortress out of dictionary but remember that statutes must have some purpose or object, whose imaginative discovery is judicial craftsmanship. We need not always cling to literalness and should seek to endeavour to avoid an unjust or absurd result. We should not make a mockery of legislation. To make sense out of an unhappily worded provision, where the purpose is apparent to the judicial eye 'some' violence to language is permissible.” The fundamental duty of the Court, thus, is to construe a provision as per intention of the legislature only. We are duty bound to act upon the true intention of the legislature and nothing else. The Courts while interpreting or construing an statute are supposed to see intention of the legislature with an approach to ascertain its literal meaning as well as its functionality. It is well established that the rules of interpretation are not the rules of law and are not required to be applied like the rules enacted by the legislature. -28- In view of this legal position we are also required to interpret the proviso as per the intention of the enacting authority and in consonance with the dominant object that is to be served by the proviso, hence, the provisos in question are required to be interpreted to make them functional in consonance with the intention of legislature. Rule 273 of the Rules of 1996 is part of procedure for direct recruitment on several posts under Panchayat Raj Institutions, and as per this provision the District Establishment Committee is required to conduct a written test, if required and then to prepare a merit list. Subsequent to it the proviso in question is given that empowers the State Government to settle a mode of granting weightage on basis of experience. True it is, that Rule 23 of the Rules of 1998 substantively relates to the discretion available for holding written examination, but at the same time it also pertains to settling determination of merit of the aspirants. The legislature while enacting the proviso has prescribed a liability for the State to have most meritorious persons in service and while doing so a weightage is to be given on basis of experience. With the aid of proviso the legislature intends to carve out the experienced persons for having some weightage while determining the merit. The carving of such aspirants is with an intention to have mature and meritorious persons in the service concerned. The proviso, -29- therefore, cannot be said as an alien to the main provision. The proviso to Rule 273 of the Rules of 1996, as such, serves the intention of its enacting authority. The provisos in question are also carving out a group from a particular class i.e. of the aspirants for appointment to specific service. This carving out must be on rational basis and we have already ascertained the rationality behind the grant of weightage to the experience hands. The discussion above leads to negativate the argument advanced by Shri Ashok Chhangani. The reasoning given also covers the question relating to the proviso added with Rule 23 of the Rules of 1998. QUESTION NO.3 :- This question as a matter of fact stands answered in view of the findings given with regard to question No.2 referred above. Suffice to mention that Rule 15 of the Rajasthan Panchayati Raj State and Subordinate Service Rules, 1998 provides academic and technical qualification and experience for direct recruitment to the post specified in Schedule-I and II appended with the Rules and Rule 23 pertains to scrutiny of an application wherein amendment has been introduced by adding a proviso in the same terms of proviso to Rule 273 of the Rules of 1996. -30- QUESTION NO.4 :- This question too stands covered by the reasonings and findings given for question No.2. QUESTION NO.5(a) and (b) :- These questions demand a clear understanding of the judgment rendered by Hon'ble Supreme Court in State of Karnataka vs. Uma Devi (supra). The judgment begins with emphasis for maintaining equality and the constitutional scheme in public employment while making appointments to the public posts and at the same time hammers the extraneous considerations in this process. The initial paras of the judgment, thus, deserve to be quoted :-
“2. Public employment in a sovereign socialist secular democratic republic, has to be as set down by the Constitution and the laws made thereunder. Our constitutional scheme envisages employment by the Government and its instrumentalities on the basis of a procedure established in that behalf. Equality of opportunity is the hallmark, and the Constitution has provided also for affirmative action to ensure that unequals are not treated equals. Thus, any public employment has to be in terms of the constitutional scheme. -31- 3. A sovereign government, considering the economic situation in the country and the work to be got done, is not precluded from making temporary appointments or engaging workers on daily wages. Going by a law newly enacted, The National Rural Employment Guarantee Act, 2005, the object is to give employment to at least one member of a family for hundred days in an year, on paying wages as fixed under that Act. But, a regular process of recruitment or appointment has to be resorted to, when regular vacancies in posts, at a particular point of time, are to be filled up and the filling up of those vacancies cannot be done in a haphazard manner or based on patronage or other considerations. Regular appointment must be the rule.
4. But, sometimes this process is not adhered to and the Constitutional scheme of public employment is by-passed. The Union, the States, their departments and instrumentalities have resorted to irregular appointments, especially in the lower rungs of the service, without reference to the duty to ensure a proper appointment procedure through the Public Service Commission or otherwise as per the rules adopted and to permit these irregular appointees or those appointed on contract or on daily wages, to continue year after year, thus, keeping out those who are qualified to apply for the post concerned and depriving them of an opportunity to compete for the post. It has also led to persons who get employed, without the following of a regular procedure or even through the backdoor or on daily wages, approaching Courts, seeking directions to make them permanent in their posts and to prevent regular recruitment to the concerned posts. Courts have not always kept -32- the legal aspects in mind and have occasionally even stayed the regular process of employment being set in motion and in some cases, even directed that these illegal, irregular or improper entrants be absorbed into service. A class of employment which can only be called 'litigious employment', has risen like a phoenix seriously impairing the constitutional scheme. Such orders are passed apparently in exercise of the wide powers under Article 226 of the Constitution of India. Whether the wide powers under Article 226 of the Constitution is intended to be used for a purpose certain to defeat the concept of social justice and equal opportunity for all, subject to affirmative action in the matter of public employment as recognized by our Constitution, has to be seriously pondered over. It is time, that Courts desist from issuing orders preventing regular selection or recruitment at the instance of such persons and from issuing directions for continuance of those who have not secured regular appointments as per procedure established. The passing of orders for continuance, tends to defeat the very Constitutional scheme of public employment. It has to be emphasized that this is not the role envisaged for High Courts in the scheme of things and their wide powers under Article 226 of the Constitution of India are not intended to be used for the purpose of perpetuating illegalities, irregularities or improprieties or for scuttling the whole scheme of public employment. Its role as the sentinel and as the guardian of equal rights protection should not be forgotten.” In State of Karnataka v. Uma Devi (supra) a Constitutional Bench of Hon'ble Supreme Court comprising of -33- five Judges was dealing with a reference made to it in following terms :- 1. "Apart from the conflicting opinions between the three-Judge Bench decisions in Ashwani Kumar v. State of Bihar, State of Haryana v. Piara Singh and Dharwad Distt. P.W.D. Literate Daily Wage Employees Assn. v. State of Karnataka on the one hand and State of H.P. v. Suresh Kumar Verma, State of Punjab v. Surinder Kumar and B.N. Nagarajan v. State of Karnataka on the other, which have been brought out in one of the judgments under appeal of Karnataka High Court in State of Karnataka v. H. Ganesh Rao, decided on 1.6.2000, the learned Additional Solicitor General urged that the scheme for regularization is repugnant to Articles 16(4), 309, 320 and 335 of the Constitution and, therefore, these cases are required to be heard by a Bench of Five learned Judges (Constitution Bench).
2. On the other hand, Mr. M.C. Bhandare, learned senior counsel, appearing for the employees urged that such a scheme for regularization is consistent with the provision of Articles 14 and 21 of the Constitution.
3. Mr. V. Lakshmi Narayan, learned counsel, appearing in CCs Nos.109-498 of 2003, has filed the GO dated 19.7.2002 and submitted that orders have already been implemented.
4. After having found that there is conflict of opinion between three Judges Bench decisions of this Court, we are of the view that these cases are required to be heard by a Bench of five learned Judges. -34- 5. Let these matters be placed before Hon'ble the Chief Justice for appropriate orders." Hon'ble Supreme Court while noticing the constitutional schemes for public employment accepted the need of engaging persons on temporary basis or on daily rates, but shown its concern for regularising such persons against regular posts ignoring the constitutional scheme for public employment. The initial consideration of the issue by Hon'ble Apex Court in the case aforesaid reads as under :-
“12. .....there may be occasions when the sovereign State or its instrumentalities will have to employ persons, in posts which are temporary, on daily wages, as additional hands or taking them in without following the required procedure, to discharge the duties in respect of the posts that are sanctioned and that are required to be filled in terms of the relevant procedure established by the Constitution or for work in temporary posts or projects that are not needed permanently. This right of the Union or of the State Government cannot but be recognized and there is nothing in the Constitution which prohibits such engaging of persons temporarily or on daily wages, to meet the needs of the situation. But the fact that such engagements are resorted to, cannot be used to defeat the very scheme of public employment. Nor can a court say that the Union or the State Governments do not have the right to engage persons in various capacities for a duration or until the work in a particular project is completed. Once this right of the Government is recognized and the mandate of the constitutional requirement for public -35- employment is respected, there cannot be much difficulty in coming to the conclusion that it is ordinarily not proper for courts whether acting under Article 226 of the Constitution or under Article 32 of the Constitution, to direct absorption in permanent employment of those who have been engaged without following a due process of selection as envisaged by the constitutional scheme.
13. What is sought to be pitted against this approach, is the so called equity arising out of giving of temporary employment or engagement on daily wages and the continuance of such persons in the engaged work for a certain length of time. Such considerations can have only a limited role to play, when every qualified citizen has a right to apply for appointment, the adoption of the concept of rule of law and the scheme of the Constitution for appointment to posts. It cannot also be forgotten that it is not the role of courts to ignore, encourage or approve appointments made or engagements given outside the constitutional scheme. In effect, orders based on such sentiments or approach would result in perpetuating illegalities and in the jettisoning of the scheme of public employment adopted by us while adopting the Constitution. The approving of such acts also results in depriving many of their opportunity to compete for public employment.
26. ....why should the State be allowed to depart from the normal rule and indulge in temporary employment in permanent posts? This Court, in our view, is bound to insist on the State making regular and proper recruitments and is bound not to -36- encourage or shut its eyes to the persistent transgression of the rules of regular recruitment. The direction to make permanent -- the distinction between regularization and making permanent, was not emphasized here -- can only encourage the State, the model employer, to flout its own rules and would confer undue benefits on a few at the cost of many waiting to compete.” While deprecating the practicing of appointments by way of regularisation the Apex Court emphasised need of regular appointment on public posts as per the constitutional scheme. The observation made by the Apex Court in this regard is “by and large what emerges is that regular recruitment should be insisted upon, only in a contingency an ad hoc appointment can be made in a permanent vacancy, but the same should soon be followed by a regular recruitment and that appointments to non- available posts should not be taken note of for regularization. The cases directing regularization have mainly proceeded on the basis that having permitted the employee to work for some period, he should be absorbed, without really laying down any law to that effect, after discussing the constitutional scheme for public employment.” The most important feature of this judgment is declaration of Rule of equality in public employment as basic feature of our Constitution. As per Hon'ble Supreme Court, “adherence to the rule of equality in public employment is a -37- basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules.” The theory of legitimate expectation of an employee for regularisation in service has not been accepted by the Court. The discussion made in this regard reads as under:- -38-
“47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in concerned cases, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.” It was held by Hon'ble Supreme Court that the need of regularisation of service due to its long span is nothing to do with the concept of equality and also to the right of life. While examining this aspect, Hon'ble Supreme Court held as under:-
“48. .....There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by -39- this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules. The arguments based on Articles 14 and 16 of the Constitution are therefore overruled.
49. It is contended that the State action in not regularizing the employees was not fair within the framework of the rule of law. The rule of law compels the State to make appointments as envisaged by the Constitution and in the manner we have indicated earlier. In most of these cases, no doubt, the employees had worked for some length of time but this has also been brought about by the pendency of proceedings in Tribunals and courts initiated at the instance of the employees. Moreover, accepting an argument of this nature would mean that the State would be permitted to perpetuate an illegality in the matter of public employment and that would be a negation of the constitutional scheme adopted by us, the people of India. It is therefore not possible to accept the argument that there must be a direction to make permanent all the persons employed on daily wages. When the court is approached for relief by way of a writ, the court has necessarily to ask itself whether the person before it had any legal right -40- to be enforced. Considered in the light of the very clear constitutional scheme, it cannot be said that the employees have been able to establish a legal right to be made permanent even though they have never been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution.
51. The argument that the right to life protected by Article 21 of the Constitution of India would include the right to employment cannot also be accepted at this juncture. The law is dynamic and our Constitution is a living document. May be at some future point of time, the right to employment can also be brought in under the concept of right to life or even included as a fundamental right. The new statute is perhaps a beginning. As things now stand, the acceptance of such a plea at the instance of the employees before us would lead to the consequence of depriving a large number of other aspirants of an opportunity to compete for the post or employment. Their right to employment, if it is a part of right to life, would stand denuded by the preferring of those who have got in casually or those who have come through the back door. The obligation cast on the State under Article 39(a) of the Constitution of India is to ensure that all citizens equally have the right to adequate means of livelihood. It will be more consistent with that policy if the courts recognize that an appointment to a post in government service or in the service of its instrumentalities, can only be by way of a proper selection in the manner recognized by the relevant legislation in the context of the relevant provisions of the Constitution. In the name of individualizing justice, it is also not possible to shut our eyes to the constitutional scheme and the -41- right of the numerous as against the few who are before the court. The Directive Principles of State Policy have also to be reconciled with the rights available to the citizen under Part III of the Constitution and the obligation of the State to one and all and not to a particular group of citizens. We, therefore, overrule the argument based on Article 21 of the Constitution.” The ratio of judgment in State of Karnataka v. Uma Devi (supra), while dealing with the issue pertaining to regularisation of the persons in service against public posts, who at some point of time were employed either in some scheme or against the public posts on daily rate basis/contractual basis/casual basis, is that equality and equity are not the concepts applicable for regularisation of the persons in service against public posts, if were employed dehor the Rules. The Court found that as a matter of fact such regularisation causes injury to the doctrine of equality and fairness in public employment, as that denies opportunity of participation in process of recruitment to the public employment to other eligible persons, who were not employed earlier. The cases in hand are not of regularisation, but of direct recruitment by a process of selection. True it is, the excessive weightage may cause injury to the fairness desirable in process of selection, but before coming to that issue we would like to mention that under Rule 273 of the Rules of 1996 and -42- Rule 23 of the Rules of 1998 the weightage is given to the persons who were appointed in the schemes introduced in MGNREGA or by the Department of Panchayat Raj and Rural Development. The persons so employed were recruited on contractual basis or otherwise after following the norms prescribed under the scheme concerned. The posts under the scheme were/are not supposed to be filled in as per the Rules framed under Article 309 of the Constitution of India or as per its proviso, but by the norms given in the scheme itself. It is also pertinent to mention that the post under the schemes were/are planned posts and appointment to these posts does not create any status for the persons so employed. The Government of Rajasthan now wants to run developmental programmes at its own and as such is in need of employees on various posts. The developmental programmes sought to be executed are alternative to the schemes earlier in currency, as such a weightage is given to the persons having experience. The cases of the persons employed by a fair process of selection as prescribed in the schemes concerned, for whom the weightage is applied under the relevant provisions, cannot be compared with the cases of the persons employed in contravention of Rules or without following the procedure given under the Rules or made entry in service from back door. The resultant is that providing of weightage to the experienced hands does not violate or frustrate the law laid -43- down by Hon'ble Supreme Court in the case of State of Karnataka v. Uma Devi (supra). QUESTION NO.6 :- The important question now deserves consideration is about the quantum of weightage given in the form of bonus marks. The bonus marks as already stated are prescribed in three layers against the experience. An aspirant having experience of service for a year or more but less than two years is entitled to have 10 bonus marks, an aspirant having experience of two years or more but less than three years is entitled to have 20 bonus marks and 30 bonus marks are earmarked for the persons having service experience of three or more years. The question referred for adjudication is that whether the grant of bonus marks to the extent above is not arbitrary and discriminator, specially where the marks kept for educational qualification are 70 only? Learned counsels, who are supporting the bonus marks settled by the State Government, submitted that the Court is not supposed to assess the quantum of weightage given that being absolutely within the domain of the Government. The objection advanced is not at all acceptable for the simple reason -44- that every action of the State authority is open for judicial review, if that suffers from arbitrariness or unfairness being antithesis to the fundamental rights protected under Article 14 of the Constitution of India. While coming to the main issue it shall be appropriate to understand the mode of determining merit of the aspirants who are entitled for bonus marks and who are not entitled for that. As per the respondents, 70% of the marks obtained in eligibility qualification are to be taken first and then bonus marks are to be added, if aspirant is entitled for the same. It shall be more easy to understand this mode through illustrations:- Illustration No.1 :- If an aspirant for appointment had secured 70 marks in eligibility qualification, then 70% of it is to be taken as marks against the qualification and that would be 49. If this person is having no experience or the experience less than one year, then the merit marks for him shall be 49 only. At the same time if a person secures 33 marks in his eligibility qualification, then 70% of it i.e. 23.1 marks shall be taken into consideration against the qualification. If this person is having service experience of three -45- years or more, then he shall be entitled for 30 bonus marks. By adding these marks, his merit mark shall be 23.1 + 30 = 53.1. In this way the person having only 33 marks in qualifying examination shall march over the person having 70 marks in educational qualification. The result of giving bonus marks upto 30 as illustrated above results into beating of a person having 70 marks by the person having 33 marks only. Illustration No.2 :- Suppose a person not entitled for bonus marks is having 100 marks out of 100 in his eligibility qualification, as per the formula applied by the respondents his marks in educational qualification shall be treated as 70 and these shall be his merit marks also. Now other person who is entitled for 30 bonus marks has secured 60% marks in his educational qualification. The 70% of 60 marks shall be 42 and by adding 30 bonus marks to it, he will secure 72 merit marks. The bonus availing person shall march over the person who secured 100% marks in educational qualification. Illustration No.3 :- Another interesting illustration shall be where a person secures 90% marks in educational qualification and his marking against this head as per the respondents shall be 90 x -46- 70/100 = 63 only. At the same time a person is having 65% marks in his eligibility educational qualification, but he is entitled for 20 bonus marks. . The merit marks of this person shall be 65 x 70/100 = 45.5 + 20 = 65.5. Here in this case the gap of 25 marks in educational qualification is covered by the bonus marks those may even be less than 20. Illustration No.4 :- In a case where a person secures 33 marks in educational qualification but entitled for 10 bonus marks shall have 33.1 (23.1 +
10) merit marks. This fellow will march over a person having 47% marks as the merit marks of this person shall be treated as 47 x 70/100 = 32.9. The illustrations clearly indicate major role of bonus marks in elevating the merit marks to a very high level. True it is, the weightage against experience is having its importance and positive factors, but in no manner it may have absolute supremacy vis-a-vis the educational qualification. The educational qualification is the basic eligibility and the weightage is only an essence of experience. The essence can provide fragrance to a body but cannot be identified as body itself. The bonus marks to the extent of 30 as assigned by the respondents clearly indicates the throttling of educational merit by service experience. The bonus marks fixed by the respondents are not -47- maintaining required balance with the educational qualification, as such the repression of educational merit as illustrated above is highly unjust and arbitrary. The State Government while determining the bonus marks should have settled a balance in basic eligibility and the weightage i.e. to be assigned against a service experience. The weightage in no way could have absolute supremacy in determining merit. We would also like to mention here that as per the respondents themselves about 14000 persons coming in select list of 17000 persons have availed bonus marks. The statistics given is quite startling and sufficient to establish undue advantage of higher bonus marks against the experience. The advantage so given, thus, is declared bad. The State Government is at liberty to settle a fair weightage under the provisos in question. The important question is that what should be the “fair weightage”? We have not come across any precedent discussing or defining “fair weightage”. However, it is well settled that fairness is a quality that keep equitable balance in homogeneous group as well as in a group having reasonable classification. In the instant matter the homogeneous group of aspirants for appointment is having a rational and reasonable classification on basis of service experience. A fair and equitable balance among these classified persons means a little elevation to the experience holders looking to the nature of service and skill available with them but -48- not such a high elevation that may result into falling of the cap of other classified group while measuring elevation given. Hon'ble Supreme Court in several cases found the marks from 12.5% to 15% reasonable for personality assessment through viva voce/interview, while making appointments to lower category posts. The experience is also feather in personality of an incumbent and posts in question are the lowest posts in their cadre, as such, in our opinion the maximum bonus marks those can be awarded against the experience should be within the cap of 15%. As a consequent to the entire discussion above, our answers to the referred questions are as follows:- (1)The respondents can make recruitment to the posts in the services concerned even without conducting written examination; (2)Weightage in the form of bonus marks against service experience can be given while adhering the eligibility prescribed for various posts under the existing Rule 266 of the Rules of 1996 and there shall be no violation of Articles 14 and 16 of the Constitution of India in the event of extending weightage against service experience; -49- (3)The respondents did not commit any wrong while extending weightage in the form of bonus marks against the service experience as per proviso to Rule 23 of the Rules of 1998 and such grant of weightage in no manner is in violation of Rule 15 of the Rules of 1998; (4)For providing bonus marks there is no need to make any amendment in the qualification prescribed in the Schedule appended with the Rules of 1998. (5)The grant of weightage in the form of bonus marks while making recruitment to the post in the services in question is not at all in contravention of the law laid down in the case of State of Karnataka v. Uma Devi (supra), and it is also not an effort to frustrate the law laid down in the case aforesaid; and (6)The grant of bonus marks to the extent of 30 marks is unjust, arbitrary and unfair, hence, is declared illegal and is quashed. The State Government may grant the weightage in the form of bonus marks against service experience within the cap of 15 marks. With the answers above, let the writ petition i.e. SBCivil Writ Petition No.4144/2013, Archana v. State of Rajasthan & Ors., be placed before Single Bench for its adjudication on other merits of the case. -50- DBCivil Special Appeal No.630/2013, State of Rajasthan & Ors. v. Archana & Anr.; SBCivil Writ Petition No.9780/2013, Virendra Ragwani v. State of Rajasthan & Ors.; SBCivil Writ Petition No.10236/2013, Ranveer Deharu & Ors. v. State of Rajasthan & Ors. and DBCivil Writ Petition No.5583/2013, Nagendra Singh Chouhan v. State of Rajasthan & Ors., stand dismissed. (VIJAY BISHNOI),J.
(GOVIND MATHUR),J.
MathuriaKK/PS