Manoj Kumar Saini Vs. State of Raj. and ors - Court Judgment

Excerpt:
d.b.civil writ petition no.10799/2012 toga ram versus state of rajasthan & ors.alongwith one connected matter 1 in the high court of judicature for rajasthan at jodhpur :order: (1) d.b.civil writ petition no.10799/2012 toga ram versus state of rajasthan & ors.(2) d.b.civil writ petition no.10673/2012 manoj kumar saini versus state of rajasthan & ors.date of order : 15th october 2013 present hon’ble mr.justice dinesh maheshwari hon’ble mr.justice p.k.lohra mr.vikas bijrania for the petitioners mr.g.r.punia, aag and senior advocate with mr.mahendra choudhary for the respondents reportable by the court: (per dinesh maheshwari,j.) these two petitions have been placed before this bench for answer to the reference made by a learned single judge of this court on the following questions:-.....

Judgment:

D.B.Civil Writ Petition No.10799/2012 Toga Ram versus State of Rajasthan & ORS.alongwith one connected matter 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :

ORDER

: (1) D.B.Civil Writ Petition No.10799/2012 Toga Ram versus State of Rajasthan & ORS.(2) D.B.Civil Writ Petition No.10673/2012 Manoj Kumar Saini versus State of Rajasthan & ORS.Date of Order : 15th October 2013 PRESENT HON’BLE MR.JUSTICE DINESH MAHESHWARI HON’BLE MR.JUSTICE P.K.LOHRA Mr.Vikas Bijrania for the petitioners Mr.G.R.Punia, AAG and Senior Advocate with Mr.Mahendra Choudhary for the respondents Reportable BY THE COURT: (Per Dinesh Maheshwari,J.) These two petitions have been placed before this bench for answer to the reference made by a learned Single Judge of this Court on the following questions:- “1.

Whether the judgment rendered by the co-ordinate Bench of this Court at Jaipur Bench in S.B.Civil Writ Petition No.14215/2012, Vikram Chand versus State of Rajasthan, decided on 03.10.2012 along with three other writ petitions is contrary to the judgments of the Hon'ble Supreme Court?.

2.

Whether any government employee who is on probation has a legitimate right to file writ petition under Article 226 of the Constitution of India for enforcement of guidelines with regard to posting without any previous sanction of the State Government as per Rule 23 of the Rajasthan Civil Services (Conduct) Rules, 1971?.

D.B.Civil Writ Petition No.10799/2012 Toga Ram versus State of Rajasthan & ORS.alongwith one connected matter 2 In brief, the background in which the questions aforesaid have been referred by the learned Single Judge could be noticed in the following: The process for selection to the post of Teacher Grade III under the Rajasthan Panchayati Raj Act, 1994 [‘the Act of 1994’].and the Rajasthan Panchayati Raj Rules, 1996 [‘the Rules of 1996’].came to be initiated by different Zila Parishads in the State of Rajasthan.

The petitioner of CWP No.10799/2012 Shri Toga Ram offered his candidature for the post of Teacher Grade III Level Second (Social Studies) in the process taken up by Zila Parishad, Pali.

He has secured merit position No.472; and has been allotted Panchayat Samiti, Bali.

On the other hand, the petitioner of CWP No.10673/2012 Shri Manoj Kumar Saini offered his candidature for the post of Teacher Grade III Level Second (English) in the process taken up by Zila Parishad, Nagaur.

He has secured merit position No.25; and has been allotted Panchayat Samiti, Parabatsar.

The grievance of each of the writ-petitioners is that he has not been allotted the Panchayat Samiti as per the choice given, though he stands higher in merit.

While stating that less meritorious persons have been allotted their own Panchayat Samities or nearby places; and that their grievances have not been redressed despite making of representations, the writ-petitioners have filed these petitions seeking writ, order or direction against the respondents for allotment of Panchayat Samiti as per merit and preference.

The petitioners have, inter alia, referred to and relied upon an order dated 03.08.2012 whereby, the Government of Rajasthan in its Rural Development and Panchayati Raj Department has issued D.B.Civil Writ Petition No.10799/2012 Toga Ram versus State of Rajasthan & ORS.alongwith one connected matter 3 various instructions and guidelines to be followed while posting the newly selected persons on the post of Teacher Grade III.

In the fiRs.part of this order, it is envisaged that the newly selected teachers shall be allotted different Panchayat Samities on proportionate basis for the purpose of filling up the vacant posts.

It is also envisaged that in the fiRs.place, the differently-abled person, widow, destitute and single female shall be allotted their own Panchayat Samiti, as far as possible.

Then, para 1(3) of this order provides that the selected teachers in the district be allotted, as far as possible, their own Panchayat Samities as per merit.

The relevant part of the order dated 03.08.2012 reads as under:- “प थम क श ल ओ एव उच प थम क श ल ओ क मलय र क पद क भ न क दष स ज"ल # नव यननत अधय पक क पदसथ पन ब बत ननमन ननद+ श पस र त ककय " त ह.:- I- ज"ल पर षद - 1.

प यत सम नतय # उपलब2 र क पद क भ न क मलए उपलब2 नव यननत अधय पक क प यत सम नतव आन4प नतक आ2 प आवटन ककय " य । 2.

सव7पथ नन:शक"न, षव2व हहल , पर तयक व एकल हहल क यथ समभव उनक गह; प यत सम नत क ह< आवटन ककय " व# । 3.

ज"ल क यननत अधय पक क यथ सभव उनक सवय क प यत सम नत # ह< .र ट क आ2 प आवटन ककय " य। 4.

उक शण?.य क अधय पक स आवटन हत4 उनक प यत सम नत क " नक < ऑनल ईन प प क " य।" It appears that several such writ petitions came up before this Court with the respective writ-petitioners raising similar nature grievance that posting had not been accorded as per their merit and preference.

A batch of similar nature petitions led by S.B.Civil Writ Petition No.14215/2012, Vikram Chand versus State of Rajasthan, came to be considered and disposed of by a learned Single Judge of this Court at the Jaipur Bench by a short order dated 03.10.2012 that reads as under:- D.B.Civil Writ Petition No.10799/2012 Toga Ram versus State of Rajasthan & ORS.alongwith one connected matter 4 “Short controveRs.involved in these writ petitions is regarding postings of the candidates selected and appointed on the post of Teacher Grade III level I and II.

The respondents have ignored preference sought and given for posting as per merit.

Learned counsel appearing for the respondents submits that the postings would be given to the candidates as per their merit and preference.

The exception would be in the case of disabled, divorcee, widow and single female.

Those four categories would be given preference in postings irrespective of their merit position however, if any, issue of preference in four categories mentioned above comes, preference would be as per merit amongst them.

In view of the submissions of the counsel for the respondents and satisfaction shown by the petitioneRs.these writ petitions are disposed of with a direction to the respondents that postings of Teacher Gr.

III level I and II should be given as per the preference given by the candidates subject to their merits, thereby meritorious candidates would have better choice of postings in comparison to less meritorious candidates.

The exception of the aforesaid would be for disbled, divorcee, widows and single female.

However, in case of preference between these four categories, meritorious candidates would get preference in postings.

This order would not only apply to these petitions but would be followed by the State of Rajasthan for entire State.

This is to avoid any controveRs.of postings and litigations in that regard.

Thus, State Government is directed to regulate the postings as directed above.

With the aforesaid, the writ petitions and the stay applications are allowed.”

.

It appears further that upon taking up of the present writ petitions for consideration, the writ-petitioners referred to the aforesaid order passed in Vikram Chand’s case and sought the relief in the similar lines.

The learned Single Judge, however, expressed disagreement with the decision in Vikram Chand’s case while observing, inter alia, that ‘on the basis of merit and eligibility any citizen can claim consideration for appointment as a matter of right; but, he is required to perform his duties as per the administrative exigency and lawful directions of the employer’.

The learned Single Judge was of the view that the petitioners had already been considered and provided appointment but the claim of posting as per choice in pursuance of the Guidelines issued by the State Government could not be countenanced.

The learned D.B.Civil Writ Petition No.10799/2012 Toga Ram versus State of Rajasthan & ORS.alongwith one connected matter 5 Single Judge observed that for enforcement of Guidelines, this Court cannot issue any direction; and in this regard, referred to the decision of the Hon'ble Supreme Court in the case of Union of India versus S.L.Abbas: AIR1993S.C.2444 wherein, the Hon'ble Supreme Court has, inter alia, observed as under:- “7.Who should be transferred where, is a matter for the appropriate authority to decide.

Unless the order of transfer is vitiated by malafides or is made in violation of any statutory provisions, the Court cannot interfere with it.

While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject.

Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration.

The guidelines say that as far as possible, husband and wife must be posted at the same place.

The said guideline however does not confer upon the Government employee a legally enforceable right.”

.

The learned Judge further referred to the following passage in the case of State of Punjab versus Joginder Singh Dhatt: AIR1993SC2486wherein, Hon'ble Supreme Court has held that it was entirely for the employer to decide as to when, where and at what point of time a public servant be transferred from his present posting: “3.

We have heard learned Counsel for the parties.

This Court has time and again expressed its disapproval of the courts below interfering with the order of transfer of public servant from one place to another.

It is entirely for the employer to decide when, where and at what point of time a public servant is transferred from his present posting.

Ordinarily the courts have no jurisdiction to interfere with the order of transfer.

The High Court grossly erred in quashing the order of transfer of the respondent from Hoshiarpur to Sangrur.

The High Court was not justified in extending its jurisdiction under Article 226 of the Constitution of India in a matter where, on the face of it, no injustice was caused.”

.

After having referred to the aforesaid decisions, the learned Single Judge expressed the opinion that the decision in Vikram D.B.Civil Writ Petition No.10799/2012 Toga Ram versus State of Rajasthan & ORS.alongwith one connected matter 6 Chand's case (supra) runs contrary to the propositions of law laid down by the Hon'ble Supreme Court and said:- “In view of the above judgments, in my opinion, the Co.ordinate Bench judgment in Vikram Chand’s case is contrary to the proposition of law laid down by the Hon'ble Supreme Court because no mandamus can be issued for enforcement of guidelines issued for posting as per choice.”

.

The learned Single Judge further took note of the fact that several such petitioners were approaching the Court during the probation period for their posting as per choice without representing their grievance before the employer; and opined that ‘such type of conduct of the employee is misconduct in view of Rule 23 of the Rajasthan Civil Services (Conduct) Rules, 1971’.

The learned Judge observed,- “(B) Now a days a newly appointed employees are repeatedly filing writ petitions after their appointment in the probation period for their posting as per choice without representing their grievance before the employer.

Such type of conduct of the employee is misconduct in view of Rule 23 of the Rajasthan Civil Services (Conduct) Rules, 1971.

Therefore, in my opinion, for filing writ petitions by the employee working on probation for posting he is required to take previous permission of the Government for taking recouRs.to Courts but, in very casual manner, the employees appointed on probation are filing writ petitions before the Court for non-compliance of guidelines and, in the case of Vikram Chand (supra).the co-ordinate Bench of this Court has passed an order for recalling posting which is in contravention of the law laid down by the Hon'ble Supreme Court.”

.

For the reasons and on the grounds foregoing, the learned Single Judge has referred the questions, as noticed at the outset, for determination by a Larger Bench.

The learned counsel Mr.Vikas Bijrania appearing for the petitioners has referred to another order dated 25.09.2012, as passed by another learned Single Judge of this Court in S.B.Civil Writ Petition No.9526/2012: Surendra Singh versus State of Rajasthan & Ors.; and has also referred to the order dated D.B.Civil Writ Petition No.10799/2012 Toga Ram versus State of Rajasthan & ORS.alongwith one connected matter 7 05.10.2012 as passed in one of the present petitions i.e., CWP No.10799/2012.

The learned counsel submitted that it has not even been an issue between the parties as to whether the instructions issued under the order dated 03.08.2012 are required to be adhered to; and, in fact, postings have been accorded to the selected teachers only with reference to these instructions.

According to the learned counsel, the case of the present petitioneRs.stating grievance against discrimination as also seeking fairness with uniform yardstick in allotment of Panchayat Samitis to the teachers after selection, cannot be equated with the decisions referred by the learned Single Judge in the referral order, which relate to the matters of transfer during a service tenure.

According to the learned counsel, the policy or guideline in relation to transfer does not stand at the same footing with the order of the Government, which has been issued specifically for the purpose of regulating the initial posting of a teacher after selection by allotment of a Panchayat Samiti as per merit and preference.

The learned Additional Advocate General appearing for the respondents could not dispute the position that several decisions in similar nature petitions have been rendered by this Court, directing allotment of Panchayat Samities to the selected teachers in accordance with Para I(3) of the order dated 03.08.2012; and deviation therefrom has been held permissible only for exceptional reasons and circumstances.

Having pondered over the matter with reference to the basic principles governing judicial review of administrative action, D.B.Civil Writ Petition No.10799/2012 Toga Ram versus State of Rajasthan & ORS.alongwith one connected matter 8 we are, with respect, inclined to answer the referred question No.1 in the negative and No.2 in the affirmative.

In the referral order, the learned Single Judge has referred to the decision of the Hon'ble Supreme Court in Union of India versus S.L.Abbas (supra) to observe that the Guidelines do not confer upon the government employee a legally enforceable right.

The decision of the Hon'ble Supreme Court in the case of State of Punjab versus Joginder Singh Dhatt (supra) has also been referred to point out that it is entirely for the employer to decide as to when, where and at what point of time, a public servant is to be transferred from his present posting.

There arise no question of any doubt about the principles expounded in the referred decisions of the Hon'ble Supreme Court.

However, we are, with respect, unable to endORS.the analogy sought to be drawn in the referral order in the issues involved in the present petitions and those involved in the said matters before the Hon'ble Supreme Court concerning the orders of transfer.

The law is well settled, not only per the decisions in S.L.Abbas and Joginder Singh Dhatt (supra) but in scores of decisions of the Hon'ble Supreme Court, that an order of transfer can only be challenged either on the ground of mala fide or on the ground of violation of statutory provision but not otherwise; and that the departmental guidelines in regard to the matters of transfer/posting do not invest the government employee with any legally enforceable right.

It is also more than settled that the transfer is a natural incident of service and the Courts, ordinarily, do not interfere with the orders of transfer except on the limited D.B.Civil Writ Petition No.10799/2012 Toga Ram versus State of Rajasthan & ORS.alongwith one connected matter 9 grounds, as mentioned above.

However, the question is as to whether the principles in the decisions referred by the learned Single Judge have any application to the present cases?.

In our opinion, answer is in the negative.

The present writ petitions do not relate to any grievance of a serving employee as regards his transfer from one place of posting to another.

The grievance of the writ-petitioners is against the action of the respondents in allegedly not allotting them the Panchayat Samitis after selection as per their merit standing and as per the preferences given.

The subject-matter of these writ petitions being far away from and different than a matter of transfer order simplictor, these cases cannot be examined on the anvil of the principles governing the limitations on judicial review of the orders of transfer.

It appears that for the present petitioners having made a claim for posting after initial selection as per the order issued by the State Government on 03.08.2012, which has been described as laying down 'Guideline', the learned Single Judge has held it to be a matter of an incumbent seeking a particular posting with reference to the Guidelines and has, thus, expressed reservations on the maintainability of such a claim in the Court.

In our view, neither the system of judicial review of administrative action proceeds with a feel of total repugnance towards the expression 'Guideline' nor has it been laid down as an absolute proposition of law that never and in no case a legal grievance could be raised with reference to a particular Guideline or that no mandamus could be issued for the purpose of D.B.Civil Writ Petition No.10799/2012 Toga Ram versus State of Rajasthan & ORS.alongwith one connected matter 10 adherence to the Guideline.

In other words, neither the system of judicial review of administrative action is aveRs.to the expression ‘Guideline’ nor the doors of Courts are closed merely for anyone seeking relief with reference to a particular Guideline or Administrative Instruction.

In our view, it would be too broad a proposition to say that all kind of Guidelines are unenforceable in the Courts of law.

Whether a relief could be granted or not with reference to a particular Guideline is a matter entirely different and it would depend on the nature of Guideline, its object, and its implication.

There could be the Guidelines purely for administrative purposes and may not invest an individual with any legal right to claim.

They are usually in the nature of policies of a particular organizational set up.

A classic example of such a Guideline is that of transfer policy of an organization/department that is usually held not enforceable in the Courts of law; and a claim based merely and solely on such a Guideline may not be countenanced by the Court.

However, there are umpteen number of such Guidelines which are, in essence, the Administrative Instructions; and are issued either as supplemental to, or in the aid of the statutory rules; and are also issued to fill in the gaps in the statutory rules.

In this regard, we may usefully refer to the observations of the Hon'ble Supreme Court in the case of State of Gujarat versus Akhilesh C.Bhargav & Ors.: AIR1987Supreme Court 2135 as under:- “…It is true that Government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed.”

.

D.B.Civil Writ Petition No.10799/2012 Toga Ram versus State of Rajasthan & ORS.alongwith one connected matter 11 Indisputably, the basic rule is that an administrative instruction/direction is not as such enforceable in a Court of law either against an individual or against administration but then, this rule of non-enforceability of directions is not immutable and is subject to certain well-known exceptions.

The principles have been summed up by the Hon'ble Supreme Court in Union of India versus K.P.Joseph & Ors.: AIR1973SC303as follows:- “9.

Generally speaking, an administrative Order confers no jus- ticiable right, but this rule, like all other general rules, is subject to exceptions.

This Court has held in Sant Ram Sharma v.

State of Rajathan, (1968) 1 SCR111= (AIR1967SC1910 that although Government cannot supersede statutory rules by administrative instructions, yet, if the rules framed under Art.

309 of the Constitution are silent on any particular point, the Government can fill up gaps and supplement the rules and is- sue instructions not inconsistent with the rules already framed and these instructions will govern the conditions of service.

10.

In Union of India v.

M/S.Indo Afghan Agencies LTD.(1968) 2 SCR366at p.377 = (AIR1968SC718, this Court, in con- sidering the nature of the Import Trade Policy said: "Granting that it is executive in character, this Court has held that Courts have the power in ap- propriate cases to compel performance of the obligations imposed by the Schemes upon the departmental authorities.

" To say that an administrative order can never confer any right would be too wide a proposition.

There are administrative or- ders which confer rights and impose duties.

It is because an administrative order can abridge or take away rights that we have imported the principle of natural justice of audi alteram partem into this area…”.

Thus, a claim made by any individual with reference to the Administrative Instructions is not looked upon by the Courts with disfavour only because directly a case of violation of statutory rules has not been shown.

In appropriate cases, the directions/instructions, which supplement or fill in the gaps in the D.B.Civil Writ Petition No.10799/2012 Toga Ram versus State of Rajasthan & ORS.alongwith one connected matter 12 Rules are, of course, enforced by the Courts for maintaining the rule of law.

Adverting to the facts and the issue involved in the present cases, as noticed, the writ-petitioners had been the participants in the process of selection for appointment to the post of Teacher Grade-III under the Act of 1994 and the Rules of 1996.

The petitioners have faced the selection process and have stood in merit at respective places.

In such nature selection, when the Rules of 1996 are silent as regards the manner of according initial posting to the successful candidate with allotment of a particular Panchayat Samiti, the Government of Rajasthan seems to have stepped in and issued the said order dated 03.08.2012 containing several instructions and guidelines required to be followed by all the Zila Parishads/Panchayat Samitis while making appointments and according posting to the selected teacheRs.It is evident that a uniform and reasonable methodology has been envisaged in the said order dated 03.08.2012 requiring proportionate allotment of the selected persons to different Panchayat Samities by the Zila Parishads.

The requirement of convenience of specific classes of persons has also been kept in view directing allotment of home Panchayat Samitis to differently- abled persons, widows, destitutes and single females.

Thereafter, it has been provided that the selected teachers shall be allotted, as far as possible, their own Panchayat Samities as per merit.

These nature instructions and guidelines, which are essentially in the aid of the Rules of 1996, and are issued to fill in the gaps so as to ensure uniformity and to guard against D.B.Civil Writ Petition No.10799/2012 Toga Ram versus State of Rajasthan & ORS.alongwith one connected matter 13 discrimination, for all intent and purport, stand at an entirely different footing, and rather higher pedestal, than the Guidelines issued only for the purpose of transfer/posting of the existing employees.

These Guidelines/Instructions do confer rights on the selected candidates and impose corresponding duties on the respondents.

May be, the rights so conferred are not in absolute terms and are conditioned by the phrase “as far as possible”.

but and nevertheless, looking to their intent and purport, if a grievance of discrimination qua less meritorious persons is raised; and thereby, the infringement of the available right is asserted, the remedy in the writ jurisdiction cannot be held unavailable altogether.

It is noteworthy that not only in the referred order dated 03.10.2012 passed in Vikram Chand’s case (supra).another learned Single Judge of this Court in Surendra’s case (supra) had issued similar directions for allotment of Panchayat Samitis to the selected teachers in accord with Para I(3) of the said order dated 03.08.2012.

In fact, such directions have been issued after taking note of a fair stand taken by the respondents themselves that postings would be given to the candidates as per their merit and preference, with the exception being in relation to the identified classes of persons viz., differently-abled, widow, destitute and single female, to whom postings are given, as far as possible, in the home Panchayat Samiti, irrespective of merit position.

It is but clear that the referred Administrative Instructions in the order dated 03.08.2012 have not been issued merely as the Office Guidelines of administrative nature, which may not be D.B.Civil Writ Petition No.10799/2012 Toga Ram versus State of Rajasthan & ORS.alongwith one connected matter 14 justiciable in the Courts of law.

As observed hereinbefore, these Administrative Instructions are essentially supplemental to the Rules and are issued in the aid of the Rules.

Viewed from other angle, it is but apparent that if such Instructions are allowed to be flouted, the result may be of hostile discrimination and arbitrariness in the matters of initial postings by allotment of particular Panchayat Samitis to the selected candidates.

Such a scenario is not countenanced by law and the instructions in question appear to be in an effort to maintain uniformity in the matter of initial postings of the newly selected teacheRs.In the given set of facts and circumstances, we are clearly of the view that the referred decisions in S.L.Abbas (supra) and Joginder Singh Dhatt (supra) are of no application to the present case; and the decision in Vikram Chand’s case (supra) cannot be said to be standing contrary to the applicable decisions of the Hon'ble Supreme Court.

We would hasten to observe that as to whether on merits, the particular claim as made by the writ- petitioner is to be allowed or not, is a matter entirely different and that would be open for adjudication at the appropriate stage.

Suffice it to observe for the present purpose that the decision in Vikram Chand’s case (supra) does not stand contrary to the applicable decisions of the Hon'ble Supreme Court.

The referred question No.1 is, therefore, required to be answered in the negative.

So far as the referred question No.2 is concerned, with respect, we are clearly of the view that Rule 23 of the Conduct D.B.Civil Writ Petition No.10799/2012 Toga Ram versus State of Rajasthan & ORS.alongwith one connected matter 15 Rules of 1971 has no application to the case at hands.

The referred Rule 23 reads as under:- “Rule 23.

Vindication of act and character of Government servants – No Government servant shall, except with the previous sanction of Government, have recouRs.to any court or to the press for the vindication of any official act which has been the subject matter of adveRs.criticism or an attack of defamatory character.

Explanation – Nothing in this rule shall limit or otherwise effect the right of any Government servant to vindicate his private acts or character.”

.

It is but apparent that the said Rule requires previous sanction of the Government if a Government servant seeks to take recouRs.to any Court or to the press for vindication of any official act which has been subject matter of adveRs.criticism or an attack of defamatory character.

There is nothing of any claim of any of the writ-petitioners for vindication of any official act which has been put to criticism or attacked in a defamatory manner.

What the writ-petitioners are seeking is a writ, order or direction for vindication of their own legal right of appropriate allotment of Panchayat Samiti at the time of initial posting.

We do not find any warrant for the proposition that for the purpose of filing such a writ petition too, the writ-petitioners would have required a sanction of the Government.

We are also unable to find any requirement for an employee on probation to seek previous permission of the Government for taking recouRs.to the Courts in relation to the grievance of the present nature.

We do not propose to deal with this issue at any extra length and suffice it to observe for the present purpose that Article 226 is couched in the widest possible terMs.and unless there is a clear bar to its jurisdiction, the High Court’s powers under this D.B.Civil Writ Petition No.10799/2012 Toga Ram versus State of Rajasthan & ORS.alongwith one connected matter 16 Article could be exercised whenever there is any act which is against any provision of law or violative of the constitutional provisions.

Of course, existence of a legal right and infringement thereof is a condition precedent for maintaining a petition under Article 226 but, there appears nothing in Rule 23 of the Conduct Rules of 1971 which, in any manner, obligates an employee to seek sanction of the Government before approaching the High Court in relation to his legal right in the matter of employment.

This question is also required to be answered accordingly.

Hence, our answers to the referred questions are as under:- (1) The decision rendered by the learned Single Judge of this Court at Jaipur Bench in S.B.Civil Writ Petition No.14215/2012 alongwith three other writ petitions is not running contrary to the applicable decisions of Hon'ble Supreme Court .

(2) Rule 23 of the Rajasthan Civil Services (Conduct) Rules, 1971 does not debar a government employee on probation to file a writ petition under Article 226 of the Constitution of India without previous sanction of the State Government when the employee alleges existence of a legal right in relation to the employment and infringement thereof.

The referred questions having been answered, these writ petitions be processed appropriately for further proceedings in accordance with law.

(P.K.LOHRA),J.

(DINESH MAESHWARI),J.

mk D.B.Civil Writ Petition No.10799/2012 Toga Ram versus State of Rajasthan & ORS.alongwith one connected matter 17 D.B.Civil Writ Petition No.10673/2012 Manoj Kumar Saini versus State of Rajasthan & ORS.Date of Order : 15th October 2013 PRESENT HON’BLE MR.JUSTICE DINESH MAHESHWARI HON’BLE MR.JUSTICE P.K.LOHRA Mr.Vikas Bijrania for the petitioners Mr.G.R.Punia, AAG and Senior Advocate with Mr.Mahendra Choudhary for the respondents <><><> Reference stands answered [Vide common order made in D.B.Civil Writ Petition No.10799/2012 : Toga Ram versus State of Rajasthan & Ors.].(P.K.LOHRA),J.

(DINESH MAESHWARI),J.

mk