State of Rajasthan and anr. Vs. Ajay Sharma - Court Judgment

SooperKanoon Citationsooperkanoon.com/770356
SubjectService
CourtRajasthan High Court
Decided OnJan-16-2002
Case NumberD.B. Civil Special Appeal (Writ) No. 1389 of 1997
Judge M.R. Calla and; K.C. Sharma, JJ.
Reported inRLW2003(2)Raj1070; 2002(3)WLC187; 2002(5)WLN180
ActsRajasthan Recruitment of Dependents of Government Servants (Dying while in Service) Rules, 1975; Rajasthan Computer State and Subordinate Service Rules, 1992 - Rules 5, 6, 6(1) and 6(1A)
AppellantState of Rajasthan and anr.
RespondentAjay Sharma
Appellant Advocate S.N. Kumawat, Adv.
Respondent Advocate Ajay Rastogi, Adv.
Excerpt:
recruitment of dependents of government servants (dying while in service) rules, 1975 - rules 2 & 4--rajasthan computer state and subordinate service rules, 1992--rules 5(b), 6(1-a) proviso (ii) & 34--respondent given appointment on compassionate ground under rules of 1975 on 23.3.1990--rules of 1992 promulgated on 5.1.1993 but to become member of service under rules of 1992 it was not necessary to subject him to screening under rule 6(1) proviso (ii) of rules of 1992--however rules of 1975 and 1992 are conspicuously silent as to how and in what manner the seniority of person appointed on compassionate ground and becomes member of service has to the reckoned--held, therefore, in the circumstances for the purpose of determining seniority of such person rule of continuous length of service is to be applied.; special appeal partly allowed - calla, j.1. respondent herein was given an appointment on compassionate ground under the provisions of the recruitment of dependents of government servants (dying while in service) rules, 1975, (for short 'the rules of 1975). the appointment order was issued in his favour for the post of programmer on 23.3.1990 and at that time, the post of programmer was not included in any set of rules and it appears that it must have been created as an ex cadre post. while the respondent was continuing as programmer on the basis of appointment order dated 23.3.1990 the rajasthan computer state & subordinate service rules, 1992 (for short the rules of 1992') were promulgated on 5.1.1993. the question, therefore, arose as to how the respondent could become a member of service? under the rajasthan computer state & subordinate service rules, 1992, he was subjected to screening under rule 6(1)(ii) and was found to be suitable.2. in our opinion it was not necessary to subject him to screening proviso (ii) under rule 6(1-a) of 1992 rules, he was recruited to the post under the rules of 1975 and the rules of 1975 have an overriding effect and as such he has to be treated as a member of service under rule 5(b) of 1992 rules. it has already been held by a division bench (in which one of us m.r. calls, j. was a member) of this court in d.b. civil special appeal (writ) no. 130/93 decided on 5.11.1993 that appointees on compassionate grounds are regular appointees. the learned single judge has rightly held that the respondent held a regular appointment under the rules of 1975 and therefore he could become a member of service under rules of 1992 under rule 5(b) but the directions as have been given by him in the matter of assigning seniority to the respondent may render number of existing employees to be junior to him merely because the respondent got a regular appointment on compassionate grounds under the rules of 1975 and therefore the question of seniority has engaged our attention in this appeal.3. rule 5 and proviso (ii) under rule 6(1-a) and rule 34 are reproduced as under:'5. constitution of the service - the service shall consist of.(a) all persons holding substantively the post/posts specified in schedule 1 and ii on the date of commencement of these rules.(b) all persons recruited to the post/posts included in the service before the commencement of these rules; and(c) all persons recruited to the service in accordance with the provisions of these rules, except urgent temporary appointment under rule 33. 6. methods of recruitment- (1) recruitment to the posts in the service after the commencement of these rules shall be made by the following methods in proportion as indicated in column 3 and 4 of schedule i and ii.[(i-a). recruitment to the service by the aforesaid method shall be made in such a manner that the persons appointed to the service by each method do not at any time exceed the percentage laid down in the rules/schedule of the total cadre strength as sanctioned for each category from time to time.](ii) the persons not covered by rule 5, who were appointed to the posts included in schedule-i and ii on adhoc or officiating or urgent temporary basis and who have been continuously holding such posts for at least one year on the date of commencement of these rules shall be screened by a committee referred to in rules 29 for adjudging their suitability on the posts held, provided they possessed the requisite qualifications prescribed in the rules either for direct recruitment or promotion or the prescribed qualifications on the basis of which such persons were selected for adhoc/officiating/urgent temporary appointment. this provision shall be subject to the following conditions.34. seniority- seniority of persons appointed to the lowest post of the service or lowest categories of posts in each of the group/section of the service, as the case may be, shall be determined from the date of confirmation of such persons to the said posts but in respect of persons appointed by promotion to other higher posts in the service or other higher categories of posts in each of the group/section in the service, as the case may be, shall be determined from the date of their regular selection to such posts.provided : (i) that the seniority of the persons screened under rule 6(1)(ii) shallbe fixed below all the persons appointed regularly by direct recruitment or by promotion upto the date of commencement of theserules and the seniority interse of these persons shall be determinedby the committee according to the length of continuous service inan adhoc or officiating capacity or on urgent temporary basis;(ii) that the interse seniority of persons appointment to a post in a particular category by direct recruitment on the basis of one and the same selection except these who do not join service when a post is offered to them within a period of six weeks from the date of issue of order or longer, if extended by the appointing authority, shall follow the order in which their names have been placed in the list prepared under rule 25.(iii) that if two or more persons are appointed to the service during the same year a person appointed by promotion shall be senior to a person appointed by direct recruitment;(iv) that the persons selected and appointed as a result of a selection, which is not subject to review and revision, shall rank senior to the persons who are selected and appointed as a result of subsequent selection.seniority interse of person selected on the basis of seniority cum merit and on the basis of merit in the same selection shall be the same as in the next below grade.(v) that if a candidate belonging to the scheduled caste/scheduled tribe is promoted to an immediate higher post/grade against a reserved vacancy earlier than his senior general/o.b.c. candidate who is promoted later to the said immediate higher post/grade, the general/o.b.c. candidate will regain his seniority over such earlier promoted candidate of the scheduled caste/scheduled tribe in the immediate higher post/grade. 4. we have heard learned counsel for both the sides. we find that rule 5 of the rajasthan computer state & subordinate service rules, 1992, provides for the constitution of service and rule 5(b) says that all persons recruited to the post/posts included in the service before the commencement of these rules, shall also constitute the service. the respondent herein was appointed under the rules of 1975 and therefore, he was a person duly recruited to the post of programmer. by virtue of rule 5(b) he stands included in the service and therefore he must be deemed to be a member of the service. it was not necessary to subject him to screening under proviso (ii) to rule 6(1-a) of the rajasthan computer state and subordinate service rules, 1992. even if the respondent is taken to be the member of the service under rule 5(b) and he was not required to be subjected to screening, the question has to be decided with regard to his placement in the seniority list. for this purpose, after reading rule 34 of the rules relating to seniority, we find that in respect of the persons appointed by promotion to other higher post in service or other higher category of posts in each of the group/section in the service as the case may be, seniority has to be determined from the date of regular selection to such posts, provided that the seniority of the persons screened under rule 6 i-a (ii) shall be fixed below all the persons appointed regularly by direct recruitment or by promotion upto date of the commencement of these rules. the facts of the present case depict a peculiar situation in which it can be said that the respondent became a member of the service under rule 5(b) notwithstanding the factum of screening as provided in rule 6. if proviso (i) under rule 34 is applied in this case, he would not only rank senior to the persons who became members of the service by way of initial constitution of service on the basis of screening under rule 6, he would also steal a march over those employees who had been working in the department even prior to his appointment and in the facts of this case there are number of persons who have been working much prior to his appointment in the year 1990. the respondent herein got an appointment under the rules of 1975, i.e., the rajasthan recruitment of dependents of government servants (dying while in service) rules, 1975. the whole object of the scheme of these rules is to support the bereaved family immediately and therefore notwithstanding the procedure which is required to be followed in case of various posts included in the different services, to give compassionate appointment immediately and for that purpose in rule 4 of these rules, it has been mentioned that these rules and the orders issued thereunder shall have effect notwithstanding anything to the contrary contained in any rule or order in force at the time of commencement of these rules. therefore, it is clear that the legislature's intention behind the rules of 1975 was to provide support to the bereaved family and give an appointment to a member of bereaved family so as to meet the hardship on account of loosing the bread earner of the family. however, the benefit of appointment under these rules cannot be meant so as to cause prejudice and adversely affect the seniority of the existing employees in the department in which the person is appointed on compassionate ground. the rules of 1975 and the rajasthan computer state & subordinate service rules, 1992 are conspicuously silent as to how and in what manner the seniority of such a person who is appointed on compassionate ground and becomes member of the service, has to be reckoned. in the absence of any provisions in either of the two schemes of the rules, i.e., rules of 1975 and rules of 1992 on the question of seniority, it has to be decided on the basis of the general principles for the purpose of determination of seniority. it would be iniquitous if the respondent herein by becoming a member of the service under rule 5(b) on the basis of his appointment on compassionate ground under rules of 1975 is allowed to steal a march over the existing employees. one benefit of getting an appointment on the compassionate ground without facing any regular recruitment under any set of rules or otherwise has already been gained by the respondent and now he also claims the benefit of seniority over the existing employees. such double benefit is neither contemplated by the scheme of the rules nor the same can be said to be equitable. such appointments on compassionate ground are meant to help the bereaved family and not to confer any right of claiming higher seniority on the basis of appointment on compassionate ground so as to steal a march in the matter of seniority or the chances of future prospects of promotion over the existing employees in the department. the claim of higher seniority on the basis of the compassionate appointment is and must be held to be alien to the principles or the relevant rules on the basis of which the seniority is decided. strictly speaking the respondent herein cannot be even said to be a person appointed regularly or by direct recruitment or promotion upto the date of the commencement of these rules of 1992 and he remains an appointee under the rules of 1975 and may become the member of the service under rule 5(b) without facing the recruitment under the rules of 1992 or the screening. it is also settled that in the absence of rules for the purpose of determining the seniority the continuous length of service is the touch stone to be applied. therefore, we find that the respondent cannot be held to be entitled to be placed in the seniority list above any of the candidates who became the member of the service by screening under rule 6 who have to their credit a greater length of service than the respondent. therefore, the respondent has to be placed in the seniority list above the candidates who became members of the service on the basis of screening but their length of service is shorter than the respondent and below those screened candidates who had been working in the department even prior to the date of the respondent's appointment on compassionate ground and such persons who had a greater length of service to their credit in comparison to the person and they cannot be deprived of the benefit of the service which they had already rendered prior to the commencement of these rules of 1992 and from the year 1985 onwards upto 23.3.1990, i.e., the date of appointment of the respondent in the facts of the present case.5. we therefore determine the respondents status as member of the service under rule 5(b) instead of as a screened candidates under rule 6, allow this appeal partly and set aside the judgment of the learned single judge to the limited extent as above and direct the appellant to determine the seniority in accordance with the principles laid down as aforesaid by treating him to be a member of service under rule 5(b) and place the present respondent above the candidates screened under rule 6 with length of service shorter than the respondent, i.e., the person appointed after 23.3.90 but he shall be placed below all the existing employee (who became member of service by screening) who were existing employees on the date of the respondent's appointment, i.e. 23.3.90 or the date of his joining in persuance of his appointment on the compassionate ground. the order as has been passed by the learned single judge including the order of costs is set aside accordingly.
Judgment:

Calla, J.

1. Respondent herein was given an appointment on compassionate ground under the provisions of the Recruitment of Dependents of Government Servants (Dying While in Service) Rules, 1975, (for short 'The Rules of 1975). The appointment order was issued in his favour for the post of Programmer on 23.3.1990 and at that time, the post of Programmer was not included in any set of Rules and it appears that it must have been created as an ex cadre post. While the respondent was continuing as Programmer on the basis of appointment order dated 23.3.1990 the Rajasthan Computer State & Subordinate Service Rules, 1992 (for short The Rules of 1992') were promulgated on 5.1.1993. The question, therefore, arose as to how the respondent could become a member of service? Under the Rajasthan Computer State & Subordinate Service Rules, 1992, he was subjected to screening under Rule 6(1)(ii) and was found to be suitable.

2. In our opinion it was not necessary to subject him to screening proviso (ii) under Rule 6(1-A) of 1992 rules, he was recruited to the post under the rules of 1975 and the rules of 1975 have an overriding effect and as such he has to be treated as a member of service Under Rule 5(b) of 1992 rules. It has already been held by a Division Bench (in which one of us M.R. Calls, J. was a member) of this Court in D.B. Civil Special Appeal (Writ) No. 130/93 decided on 5.11.1993 that appointees on compassionate grounds are regular appointees. The learned Single Judge has rightly held that the respondent held a regular appointment under the rules of 1975 and therefore he could become a member of service under rules of 1992 under Rule 5(b) but the directions as have been given by him in the matter of assigning seniority to the respondent may render number of existing employees to be junior to him merely because the respondent got a regular appointment on compassionate grounds under the rules of 1975 and therefore the question of seniority has engaged our attention in this appeal.

3. Rule 5 and proviso (ii) under Rule 6(1-A) and Rule 34 are reproduced as under:

'5. Constitution of the Service - The Service shall consist of.

(a) All persons holding substantively the post/posts specified in Schedule 1 and II on the date of commencement of these rules.

(b) All persons recruited to the post/posts included in the Service before the commencement of these rules; and

(c) All persons recruited to the Service in accordance with the provisions of these rules, except urgent temporary appointment under Rule 33.

6. Methods of Recruitment- (1) Recruitment to the posts in the Service after the commencement of these rules shall be made by the following methods in proportion as indicated in column 3 and 4 of Schedule I and II.

[(I-A). Recruitment to the Service by the aforesaid method shall be made in such a manner that the persons appointed to the service by each method do not at any time exceed the percentage laid down in the Rules/Schedule of the total cadre strength as sanctioned for each category from time to time.]

(ii) the persons not covered by Rule 5, who were appointed to the posts included in Schedule-I and II on adhoc or officiating or urgent temporary basis and who have been continuously holding such posts for at least one year on the date of commencement of these rules shall be screened by a committee referred to in Rules 29 for adjudging their suitability on the posts held, provided they possessed the requisite qualifications prescribed in the rules either for direct recruitment or promotion or the prescribed qualifications on the basis of which such persons were selected for adhoc/officiating/urgent temporary appointment. This provision shall be subject to the following conditions.

34. Seniority- Seniority of persons appointed to the lowest post of the Service or lowest categories of posts in each of the Group/Section of the Service, as the case may be, shall be determined from the date of confirmation of such persons to the said posts but in respect of persons appointed by promotion to other higher posts in the Service or other higher categories of posts in each of the Group/Section in the Service, as the case may be, shall be determined from the date of their regular selection to such posts.

Provided :

(i) that the seniority of the persons screened under Rule 6(1)(ii) shallbe fixed below all the persons appointed regularly by direct recruitment or by promotion upto the date of commencement of theseRules and the seniority interse of these persons shall be determinedby the Committee according to the length of continuous Service inan adhoc or officiating capacity or on urgent temporary basis;

(ii) that the interse seniority of persons appointment to a post in a particular category by direct recruitment on the basis of one and the same selection except these who do not join Service when a post is offered to them within a period of six weeks from the date of issue of order or longer, if extended by the Appointing Authority, shall follow the order in which their names have been placed in the list prepared under Rule 25.

(iii) that if two or more persons are appointed to the Service during the same year a person appointed by promotion shall be senior to a person appointed by direct recruitment;

(iv) that the persons selected and appointed as a result of a selection, which is not subject to review and revision, shall rank senior to the persons who are selected and appointed as a result of subsequent selection.

Seniority interse of person selected on the basis of seniority cum merit and on the basis of merit in the same selection shall be the same as in the next below grade.

(v) that if a candidate belonging to the Scheduled Caste/Scheduled Tribe is promoted to an immediate higher post/grade against a reserved vacancy earlier than his senior general/O.B.C. candidate who is promoted later to the said immediate higher post/grade, the general/O.B.C. candidate will regain his seniority over such earlier promoted candidate of the Scheduled Caste/Scheduled Tribe in the immediate higher post/grade.

4. We have heard learned counsel for both the sides. We find that Rule 5 of the Rajasthan Computer State & Subordinate Service Rules, 1992, provides for the constitution of service and Rule 5(b) says that all persons recruited to the post/posts included in the service before the commencement of these rules, shall also constitute the service. The respondent herein was appointed under the Rules of 1975 and therefore, he was a person duly recruited to the post of Programmer. By virtue of Rule 5(b) he stands included in the service and therefore he must be deemed to be a member of the service. It was not necessary to subject him to screening under proviso (ii) to Rule 6(1-A) of the Rajasthan Computer State and Subordinate Service Rules, 1992. Even if the respondent is taken to be the member of the service under Rule 5(b) and he was not required to be subjected to screening, the question has to be decided with regard to his placement in the seniority list. For this purpose, after reading Rule 34 of the Rules relating to seniority, we find that in respect of the persons appointed by promotion to other higher post in service or other higher category of posts in each of the group/section in the service as the case may be, seniority has to be determined from the date of regular selection to such posts, provided that the seniority of the persons screened under Rule 6 I-A (ii) shall be fixed below all the persons appointed regularly by direct recruitment or by promotion upto date of the commencement of these rules. The facts of the present case depict a peculiar situation in which it can be said that the respondent became a member of the service under Rule 5(b) notwithstanding the factum of screening as provided in Rule 6. If proviso (i) under Rule 34 is applied in this case, he would not only rank senior to the persons who became members of the service by way of initial constitution of service on the basis of screening under Rule 6, he would also steal a march over those employees who had been working in the department even prior to his appointment and in the facts of this case there are number of persons who have been working much prior to his appointment in the year 1990. The respondent herein got an appointment under the Rules of 1975, i.e., the Rajasthan Recruitment of Dependents of Government Servants (Dying While in Service) Rules, 1975. The whole object of the scheme of these rules is to support the bereaved family immediately and therefore notwithstanding the procedure which is required to be followed in case of various posts included in the different services, to give compassionate appointment immediately and for that purpose in Rule 4 of these rules, it has been mentioned that these rules and the orders issued thereunder shall have effect notwithstanding anything to the contrary contained in any rule or order in force at the time of commencement of these rules. Therefore, it is clear that the legislature's intention behind the Rules of 1975 was to provide support to the bereaved family and give an appointment to a member of bereaved family so as to meet the hardship on account of loosing the bread earner of the family. However, the benefit of appointment under these rules cannot be meant so as to cause prejudice and adversely affect the seniority of the existing employees in the department in which the person is appointed on compassionate ground. The Rules of 1975 and the Rajasthan Computer State & Subordinate Service Rules, 1992 are conspicuously silent as to how and in what manner the seniority of such a person who is appointed on compassionate ground and becomes member of the service, has to be reckoned. In the absence of any provisions in either of the two schemes of the Rules, i.e., Rules of 1975 and Rules of 1992 on the question of seniority, it has to be decided on the basis of the general principles for the purpose of determination of seniority. It would be iniquitous if the respondent herein by becoming a member of the service under Rule 5(b) on the basis of his appointment on compassionate ground under Rules of 1975 is allowed to steal a march over the existing employees. One benefit of getting an appointment on the compassionate ground without facing any regular recruitment under any set of rules or otherwise has already been gained by the respondent and now he also claims the benefit of seniority over the existing employees. Such double benefit is neither contemplated by the scheme of the Rules nor the same can be said to be equitable. Such appointments on compassionate ground are meant to help the bereaved family and not to confer any right of claiming higher seniority on the basis of appointment on compassionate ground so as to steal a march in the matter of seniority or the chances of future prospects of promotion over the existing employees in the department. The claim of higher seniority on the basis of the compassionate appointment is and must be held to be alien to the principles or the relevant rules on the basis of which the seniority is decided. Strictly speaking the respondent herein cannot be even said to be a person appointed regularly or by direct recruitment or promotion upto the date of the commencement of these rules of 1992 and he remains an appointee under the rules of 1975 and may become the member of the service under Rule 5(b) without facing the recruitment under the rules of 1992 or the screening. It is also settled that in the absence of rules for the purpose of determining the seniority the continuous length of service is the touch stone to be applied. Therefore, we find that the respondent cannot be held to be entitled to be placed in the seniority list above any of the candidates who became the member of the service by screening under Rule 6 who have to their credit a greater length of service than the respondent. Therefore, the respondent has to be placed in the seniority list above the candidates who became members of the service on the basis of screening but their length of service is shorter than the respondent and below those screened candidates who had been working in the department even prior to the date of the respondent's appointment on compassionate ground and such persons who had a greater length of service to their credit in comparison to the person and they cannot be deprived of the benefit of the service which they had already rendered prior to the commencement of these rules of 1992 and from the year 1985 onwards upto 23.3.1990, i.e., the date of appointment of the respondent in the facts of the present case.

5. We therefore determine the respondents status as member of the service under Rule 5(b) instead of as a screened candidates Under Rule 6, allow this appeal partly and set aside the judgment of the learned Single Judge to the limited extent as above and direct the appellant to determine the seniority in accordance with the principles laid down as aforesaid by treating him to be a member of service Under Rule 5(b) and place the present respondent above the candidates screened under Rule 6 with length of service shorter than the respondent, i.e., the person appointed after 23.3.90 but he shall be placed below all the existing employee (who became member of service by screening) who were existing employees on the date of the respondent's appointment, i.e. 23.3.90 or the date of his joining in persuance of his appointment on the compassionate ground. The order as has been passed by the learned Single Judge including the order of costs is set aside accordingly.