Rajasthan High Court - Jodhpur

Devkinandan Kasotiya vs State Of Rajasthan on 13 August, 2021

Bench: Dinesh Mehta

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 9078/2020

Devkinandan Kasotiya S/o Late Shri Ramdev Regar, Aged About 37 Years, R/o Village Sampla, Tehsil Sarwad, Distt. Ajmer Present Working As Lower Division Clear, In Department Of Fisheries, Pratapgarh (Raj.).

----Petitioner Versus

1. State Of Rajasthan, Through Secretary, Department Of Fisheries, Secretariat, Govt. Of Rajasthan Jaipur.

2. Accounts Officer, Fisheries Department, Govt. Of Rajasthan Jaipur.

3. Fisheries Development Officer, Pratapgarh.

----Respondents

For Petitioner(s) : Mr. R.P. Singaria For Respondent(s) : Mr. A.K. Gaur, AAG

JUSTICE DINESH MEHTA

Order

13/08/2021

1. The petitioner was given appointment vide order dated

09.10.2016 under Rajasthan Compassionate Appointment to

Dependants of Deceased Government Servants Rules, 1996 (for

short, 'the Rules'). The appointment order contained a condition of

clearing typing test within a period of three years.

2. The petitioner has approached this Court with an assertion

that he is having deformity in his left hand and in spite of the fact

that he is having proficiency in computer, he cannot type at a

speed which is required to clear typing test. It has been prayed

that the respondents be directed to exempt him from clearing the

typing test.

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3. Vide order dated 20.07.2021, this Court had directed the

petitioner to appear before the Principal, Medical College, Ajmer

with a corresponding direction to the Principal, Medical College to

examine the petitioner, particularly in relation to his disablement/

difficulty in the hand and also to report as to whether he can type

properly or not.

4. A report dated 05.08.2021 has been sent by the Principal &

Dean, JLN Medical College, Ajmer, which reads thus:-

"Opinion - Patient is able to type but at much slower speed than normal person.

As per gazetted notification his permanent physical disability is 40.22%."

5. Mr. A.K. Gaur, learned Additional Advocate General, though

did not dispute the fact that the petitioner can do the typing work,

but a remark that his speed is a bit slow.

6. It is to be noted that vide notification No.F.3(1) DOP/A-

11/2013 dated 02.01.2017, the Government has substituted Rule

9 of the Rules of 1996. The notification dated 02.01.2017 reads

thus:-

"In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Rajasthan hereby makes the following rules further to amend the Rajasthan Compassionate Appointment of Dependants of Deceased Government Servants Rules, 1996, namely:-

1. Short title and commencement.- (1) These rules may be called the Rajasthan Compassionate Appointment of Dependants of Deceased Government Servants (Amendment) Rules, 2017.

(2) They shall come into force with immediate effect.

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2. Substitution of rule 9.- The existing rule 9 of the Rajasthan Compassionate Appointment of Dependants of Deceased Government Servants Rules, 1996, shall be substituted by the following, namely.-

'9. Procedural requirement etc.- The procedural requirement for selection such as.-

(i) computer qualification shall not be insisted upon at the time of appointment. The dependants of the deceased Government Servant shall have to possess any of the computer qualification as prescribed in the relevant rules within the period of probation, failing which his/her probation shall be deemed to be extended, unless the appointing authority terminates his/her services finding the performance wholly unsatisfactory.

(ii) training or departmental examination or typing on computer shall not be insisted upon at the time of appointment. The dependants shall however, be required to clear such training or departmental examination or typing test on computer in any one language, either in English or in Hindi, within a period of three years, unless the period is relaxed by Department of Personnel, for entitlement for confirmation, failing which his/her appointment shall be liable to be terminated. No annual grade increments will be allowed until he/she acquires such qualification. On acquiring such qualification, annual grade increments shall be allowed notionally from the date of appointment but no arrears shall be paid:

Provided that the widow appointed under the provisions of these rules shall be exempted from having computer qualification and passing the typing test on computer.

Provided further that the persons with disabilities appointed under the provisions of these rules shall be exempted from passing the typing test on computer."

(emphasis supplied)

7. The aforesaid amendment was not brought to the notice of

this Court by any of the rival parties. The arguments about its

applicability were thus, not advanced. However, a natural

question which crops up for consideration is, as to whether the

second proviso, which has been introduced vide notification dated

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02.01.2017, can apply to the petitioner's case, who was given

appointment on 09.10.2016.

8. It is pertinent that para No.1(2) of the above quoted

notification provides that the amendment shall come into force

with immediate effect; a probable view, therefore, can be that the

second proviso to Rule 9 of the Rules of 1996 is applicable to the

appointments made after 02.01.2017.

9. But, in the opinion of this Court, since the second proviso to

Rule 9 of the Rules of 1996 is a beneficial legislation, having been

inserted apparently to provide relief or overcome the difficulty

faced by the persons with disabilities, it should apply retroactively

and should cover petitioner's case as well.

10. My aforesaid view is fortified by the judgment of this Court,

rendered in the case of Dr. Poonam Parakh Vs. State of Rajasthan

& Ors., reported in (2011) 3 ILR 508.

11. Hon'ble the Supreme Court, in the case of Allied Motors (P)

Ltd. Vs. Commissioner of Income-Tax, Delhi, reported in (1997) 3

SCC 472, has observed thus:-

"As observed by G.P. Singh in his Principles of Statutory Interpretation, 4th Edn. Page 291, 'It is well settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended.' In fact the amendment would not serve its object in such a situation unless it is construed as retrospective."

12. In view of the aforesaid, since the proviso to Rule 9 of the

Rules of 1996 and the amendment brought vide notification dated

02.01.2017 is beneficial in nature, unless it is given retrospective

effect, it will not convey it's advantage or benefit to the persons

for whom the amendment was intended.

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                                   13.   A     statute,   which      remedies         the     rigors,   should   apply

retrospectively, whereas a statute that creates obligation; casts

duty or takes away pre-existing rights, should apply prospectively.

14. The writ petition, therefore, succeeds.

15. The following condition No.9 in the appointment order is

hereby declared illegal, in view of second proviso to Rule 9 of the

Rules of 1996:-

"9& izkscs'ujh dks dk;Zxzg.k djus dh frfFk ls rhu o"kZ ds vUnj&vUnj fu;ekuqlkj Vad.k ijh{kk mrhZ.k djuk vko";d gksxkA Vad.k ijh{kk mrhZ.k ugha djus ij fu;qfDr lekIr gksus ds nkf;Rok/khu gksxhA"

16. Consequences to follow. Petitioner's confirmation/

regularization, if not done so far, be done within eight weeks from

today.

17. The stay application also stands disposed of accordingly.

(DINESH MEHTA),J

145-skm/-