Vikram Singh Shekhwat S/O Sh. ... vs State Of Rajasthan
2021 Latest Caselaw 770 Raj/2

                                                  (1 of 18)                       [CW-16836/2019]


        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                   S.B. Civil Writ Petition No. 16836/2019

1.       Vikram Singh Shekhwat S/o Sh. M.s.shekhawat, Aged
         About 41 Years, R/o Village And Post Ajari Kalan, District
         Jhunjhunu (Rajasthan).
2.       Rakesh          Singh        Shekhawat             S/o       Sh.      Sumer          Singh
         Shekhawat, Aged About 43 Years, R/o Khetri, District
         Jhunjhunu (Rajasthan)
3.       Kishor Kumar S/o Sh. Ram Karan, Aged About 38 Years,
         R/o Village Post Chudela, District Jhunjhunu (Rajasthan)
4.       Rakesh Kumar Joshi S/o Shri Deen Dayal Joshi, Aged
         About 39 Years, R/o House No. 75, Kishanpura, Pahel,
         District Alwar (Rajasthan)
5.       Bhagwana Ram S/o Shri Narayan Ram, Aged About 41
         Years, R/o Ward No. 6, Vpo Dhani Bada Wali, Kotri
         Dhaylan, District Sikar (Rajasthan)
6.       Bhanwar Singh Dhaka S/o Sh. Hanuman Singh Dhaka,
         Aged About 37 Years, R/o Village Basni, Post- Bairas,
         District Sikar (Rajasthan)
7.       Prahalad Singh S/o Sh. Nathu Singh, Aged About 47
         Years, R/o Village Dholas, Lachu Mangar, District Sikar
         (Rajasthan)
8.       Anil Kumar Jain S/o Sh. Mahavir Prasad Jain, Aged About
         41 Years, R/o 255, Amrit Nagar, Mansarovar, Iscon Road,
         Jaipur (Rajasthan)
                                                                                 ----Petitioners
                                             Versus
1.       State Of Rajasthan, Through Secretary, Department Of
         Secondary Education, Government Secretariat, Jaipur
2.       Secretary, Department Of Personnel, Government Of
         Rajasthan, Secretariat, Jaipur
3.       Director Secondary Education, Bikaner, Rajasthan.
4.       Secretary Rajasthan Public Service Commission, Ajmer.
                                                                             ----Respondents

Connected With S.B. Civil Writ Petition No. 13183/2019 Shyamvir Singh S/o Late Puran Chand, Aged About 53 Years, R/o

(D.B. SAW/717/2020 has been filed in this matter. Please refer the same for further orders)

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House No. 30, Ekta Vihar Colony, Behind Fci Godown, Sonk Road, Bharatpur.

----Petitioner Versus

1. The State Of Rajasthan, Through Principal Secretary, Secondary Education Department, Rajasthan, Secretariat, Jaipur.

2. Director Secondary Education, Rajasthan, Bikaner.

3. Rajasthan Public Service Commission, Ajmer, Through Its Secretary.

----Respondents S.B. Civil Writ Petition No. 14107/2019

1. Surgyan Singh S/o Udda Ram Gurjar, Aged About 36 Years, By Caste Gurjar, R/o Village- Kishorpura, Post- Lalwari, Tehsil-Niwai, District Bundi Rajasthan

2. Vijay Singh Gurjar S/o Ram Singh Gurjar, Aged About 43 Years, R/o Village Neeman Ka Pura, Mothiyapura, Hindaun City, District Karauli Rajasthan.

----Petitioners Versus

1. State Of Rajasthan, Through Its Principal Secretary, Education Department, Government Secretariat, Jaipur (Rajasthan)

2. The Secretary Rajasthan Public Service Commission, Ghooghra Ghati, Jaipur Road Ajmer Rajasthan

3. Director Secondary Education, Bikaner Rajasthan

----Respondents S.B. Civil Writ Petition No. 20639/2019

1. Narayan Singh S/o Shri Ganesh Ram, Aged About 50 Years, By Caste Jat, R/o Jalu, Post Garoda, Tehsil Laxmangarh, District Sikar. At Present R/o A-22, Street No. 4, Laxmi Vihar Colony, Bikaner.

2. Ummed Singh S/o Shri Bishamber Dayal Yadav, Aged About 47 Years, By Caste Yadav, R/o Vpo Bhungra Ahir, Tehsil Mundawar, District Alwar (Rajasthan)

----Petitioners Versus

1. State Of Rajasthan, Through Secretary, Department Of

(D.B. SAW/717/2020 has been filed in this matter. Please refer the same for further orders)

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Education, Government Of Rajasthan, Secretariat, Jaipur (Rajasthan)

2. Secretary, Department Of Personnel, Govt. Of Rajasthan, Secretariat, Jaipur (Rajasthan)

3. Director, Secondary Education, Bikaner (Rajasthan)

4. Rajasthan Public Service Commission, Ajmer (Rajasthan) Through Its Secretary.

----Respondents S.B. Civil Writ Petition No. 20813/2019 Bhoopendra Singh Panwar S/o Shri Hansraj Gurjar, Aged About 31 Years, R/o Naurangabad, Post Shri Mahaveerji, District Karauli, At Present Posted As Teacher Gr.iii, At Government Upper Primary School, Khohra Ghunseti, Tehsil Hindaun, District Karauli.

----Petitioner Versus

1. State Of Rajasthan, Through Its Principal Secretary, Department Of Education, Secretariat, Jaipur.

2. The Director, Secondary Education, Department Of Education, Bikaner

3. Rajasthan Public Service Commission, Through Its Secretary, Ajmer.

----Respondents

For Petitioner(s) : Mr. R N Mathur Sr. Advocate with Ms.Savita Khalia Mr. Suresh Pareek Sr. Advocate with Mr. N C Sharma Mr. R S Bhardwaj Mr. Shribhan Gurjar Mr. Satya Pal Poshwal For Respondent(s) : Mr. C.L. Saini, AAG Mr. S Zakawat Ali, Addl.GC with Mr. Aditya Jain Mr. M F Baig Mr. Raghu Nandan Sharma Mr. Shailesh Prakash Sharma Mr. Nitin Jain Mr. Dheeraj Palia on behalf of Mr. Ram Pratap Saini

Mr. Vigyan Shah-As Intervenor

(D.B. SAW/717/2020 has been filed in this matter. Please refer the same for further orders)

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HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA

Order

27/01/2021

1. The petitioners by way of these writ petitions have prayed

that the Rajasthan Public Service Commission (hereinafter

referred to be as "RPSC") should strictly adhere to the circular

issued by the State Government dated 16.8.2016 wherein it is

provided that the ex-servicemen can take benefit of reservation

only once in the State Government services and submit that the

circular dated 22.08.2019 shall not be given retrospective effect

and would not affect the selection process which has been initiated

vide advertisement dated 28th March, 2018.

2. For the purpose of deciding the controversy, the facts of S.B.

Civil Writ Petition No.16836/2019 (Vikram Singh Shekhwat & Ors.

versus State of Rajasthan & Ors.) are being dealt with as a lead

case as other connected writ petitions involve the same

controversy.

3. It is stated that the advertisement was issued by the RPSC

for filling up the post of Headmaster (School) on 28 th March, 2018.

A corrigendum was thereafter issued on 22 nd May, 2018 for MBC

reservation. The written examination for selection to the post of

Headmaster was conducted on 2nd September, 2018 and the result

has been declared on 23rd September, 2019. Learned counsel

submits that a vested right has been created in favour of those

candidates who have been declared successful and shall not be

governed under the circular issued by the State Government dated

22.8.2019 declaring that even those candidates who had been

(D.B. SAW/717/2020 has been filed in this matter. Please refer the same for further orders)

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earlier appointed with the State Subordinate Services as Teacher

Grade-II or Teacher Grade-III under the ex-servicemen quota

would be considered for the purpose of granting them ex-

serviceman quota for the post of Headmaster ought not be applied

to the present advertisement as the process of selection had

already started.

4. Learned counsel submits that the petitioners are those

candidates who were Education Instructors in the Armed Forces

and were holding the post equivalent to that of PG Teacher and

were, therefore, having the requisite qualification for the purpose

of consideration for appointment on the post of Headmaster.

5. Learned counsel submits that the introduction of the circular

dated 22.8.2019 would result in adding the candidates who are

otherwise ineligible as they have already availed the benefit of ex-

servicemen quota on the lower post.

6. Learned counsel has relied on the judgment passed by the

Co-ordinate Bench at Principal Seat, Jodhpur in S.B. Civil Writ

Petition No.7737/2020, Prem Singh Rathore & Ors. versus

RPSC & Anr., decided on 16.12.2020. He also relies on the

judgment of the Supreme Court in the case of M. Surender

Reddy versus State of Andhra Pradesh & Ors., reported in

(2015) 8 SCC 410 and the judgment passed by the Coordinate

Bench at Principal Seat, Jodhpur in S.B. Civil Writ Petition

No.12732/2013, Prem Singh Jodha versus State of

Rajasthan & Ors., decided on 08.05.2015.

(D.B. SAW/717/2020 has been filed in this matter. Please refer the same for further orders)

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7. Shri Satyapal Poshwal, learned counsel appearing for

petitioner-Bhoopendra Singh Panwar in SB Civil Writ Petition

No.20813/2019 adopts the submissions of learned Senior

Counsel Shri R.N. Mathur and also relies on the judgment passed

by this court in the case of Madan Lal & 24 Ors. Vs. State of

Raj. & Ors., reported in 2012 (5) WLC (Raj.) 253.

8. Mr. Suresh Pareek, Senior Advocate, appears for one

Narayan Singh who has also independently filed one writ petition

bearing No.20639/2019 wherein it has been prayed to declare

the circular dated 21.05.2019 and the letter dated 06.08.2019 as

illegal and unconstitutional to the provisions of Rule 6B of the

Rajasthan Civil Services (Absorption of Ex-servicemen) Rules,

1988 (hereinafter referred to as "the Rules of 1988") as well as

third proviso to Rule 11(2) of the Rajasthan Education Service

Rules, 1970 (hereinafter referred to as "the Rules of 1970") and

submits that the petitioners Vikram Singh Shekhawat and others

cannot be said to possess the experience for participation as

Headmaster. It is submitted that the petitioners-Vikram Singh

Shekhawat and similarly situated persons had not even attained

the age of superannuation and cannot be treated as ex-

servicemen and the circular dated 21.05.2019 explaining the

amendment made in the Rajasthan Civil Services (Absorption of

Ex-servicemen) (Amendment) Rules, 1988 vide Notification dated

17.04.2018, cannot be applied to the present advertisement.

9. Learned Senior counsel further submits that the letter issued

by the Director, Secondary Education, Rajasthan declaring that the

experience certificate would be acceptable after it is duly

(D.B. SAW/717/2020 has been filed in this matter. Please refer the same for further orders)

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countersigned by the Director, State Social Welfare Board and the

Press Note issued by the RPSC taking such certificates of those

duly countersigned by the Soldier Welfare Board as sufficient for

the purpose of granting five years experience of teaching schools

is also unjustified and submit that no such experience could have

been certified by the Director, Soldier Welfare Board as the

experience has to be treated in accordance with the definition as

provided under Rule 2(g) of the Rules of 1970.

10. Apart from above, counsel for respondent Nos.5 to 11 Shri

Shailesh Prakash Sharma and Shri Raghu Nandan Sharma have

supported the contentions raised by Shri R N Mathur, Sr. Advocate

and further submit that they have already been selected as per

the Select List published by the RPSC and their names were

recommended to the State Government for appointment, holding

them to be ex-servicemen having due experience and eligible for

being appointed as per their merit on the post under the ex-

servicemen quota.

11. Learned counsel has taken this Court to the notification

issued by the Director of Army Education Headquarters as

published by the Central Board of Secondary Education dated 21 st

July, 1978 whereby the Army Education provided in Army Senior

Secondary School Examination was treated equivalent to that of

Central Board of Secondary Education.

12. Learned counsel has also taken to the letter dated 31 st

October, 2003, whereby the civil recognition of equivalent

technical or non-technical courses was published and the Trade of

Education Instructor in Armed Forces was treated equivalent to

(D.B. SAW/717/2020 has been filed in this matter. Please refer the same for further orders)

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civil qualification of PGT Teacher and mentioned to be recognized

by the National Classification of Occupations available with

Employment Exchange and Zila Sainik Board and duly authorized

by Ministry of Labour vide its Government of India letter dated 4 th

June, 2003.

13. Learned counsel has also relied on a Division Bench

judgment passed in D.B. Special Appeal (Writ) No.311/2019,

State of Rajasthan & Anr. vs. Baniram on 1 st August, 2019

to submit that the qualification of AEC Certificate/Diploma course

is deemed to be equivalent to the qualification of Primary Teacher

and thus submit that there can be no objection to the experience

gained by the respondents while serving in Army as Army

Education Instructors to be treated as equivalence of experience

for the requisite experience for the purpose of appointment on the

post of Headmaster.

14. Mr. Vigyan Shah, learned counsel, who appeared on behalf of

the petitioners in Writ Petition Nos.24234/2018 and 13963/2019,

which have been rendered infructuous today, seeks to intervene in

the present cases and submit that those candidates who have

been appointed on subordinate post under the ex-servicemen

quota would have to be treated as ex-servicemen for the purpose

of consideration against ex-servicemen quota for the post of

Headmaster. It is his submission that the circular was issued prior

to the declaration of result dated 23.9.2019 and thus it cannot be

said that the vested rights of the candidates have already been

crystallized before the circular issued.

(D.B. SAW/717/2020 has been filed in this matter. Please refer the same for further orders)

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15. Learned counsel further submits that the circular only

explains the position of an ex-serviceman who is appointed on a

lower post and is eligible for appointment on the higher post.

16. Learned counsel submits that the notification was issued on

17th April, 2018 whereby, for the first time, 5% reservation was

provided in the State Services for ex-serviceman and those ex-

servicemen who had already been appointed to subordinate

services would also become eligible as there is an experience

required for appointment in the State services on the post of

Headmaster, therefore, the circular issued by the State

Government allowing them to be treated as ex-servicemen cannot

be said to be unjustified.

17. Learned counsel appearing in S.B. Civil Writ Petition

No.14107/2019, Surgyan Singh and Others has also similarly

argued and adopted the submissions already made by Mr. Vigyan

Shah.

18. Mr. Vigyan Shah has further submitted that the judgment of

Prem Singh Jodha (supra) has not taken into consideration

earlier judgment passed by another Co-ordinate Bench of Principal

Seat, Jodhpur in case of Sheshnath Rai vs. State & Ors., Civil

Writ No.4720/2005, decided vide order dated 12.04.2006

where the Co-ordinate Bench had taken a view that if a candidate

has once been absorbed as an ex-serviceman in the State

Employment can always apply for subsequent employment as an

ex-serviceman. It is stated that the earlier judgment if not taken

into consideration by a subsequent Bench of same category then

the earlier judgment would apply. Learned counsel has, in support

(D.B. SAW/717/2020 has been filed in this matter. Please refer the same for further orders)

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thereof, relied on a judgment of the Supreme Court in the case of

State of Bihar Vs. Kalika Kuer Alias Kalika Singh & Ors.,

reported in (2003) 5 SCC 448 to submit that subsequent

judgment has to be treated as per-incuriam. Learned counsel also

relied on a judgment of the Supreme Court in the case of

Rajasthan Public Service Commission & Anr. Vs. Harish

Kumar Purohit & Ors., reported in (2003) 5 SCC 480.

19. Learned Additional Advocate General Shri C.L. Saini has

supported the stand taken by the State Government and submits

that the circular dated 22.08.2019 is a clarificatory order and it

allows ex-servicemen who are already in service to be given the

same status while applying for the post in State services as the

5% State quota has been provided only after 17 th April, 2018,

such candidates, therefore, ought not to be ousted.

20. It is submitted that most of the ex-servicemen who may not

have had any teaching experience would be deprived of

participation as teaching experience can only be gained while

working on a subordinate post, therefore, circular which has been

issued was rightly taken into consideration for the purpose of

including the said candidates.

21. I have considered the submissions as above.

22. The Rajasthan Civil Services (Absorption of Ex-servicemen)

Rules, 1988 provided reservation for ex-servicemen for

appointment to various posts in the Department of State

Government, initially, the reservation was provided in Ministerial

and Subordinate Services as well as in Class IV Service. The State

(D.B. SAW/717/2020 has been filed in this matter. Please refer the same for further orders)

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Government vide its Notification dated 17.04.2018 amended the

existing Rule 2 of the Rules, 1988 which reads as under:-

"2. Reservation of posts for the ex-servicemen.- (1) Notwithstanding the provisions contained in any rule regulating the recruitment to any post, reservation of posts for the ex-servicemen under the State, to be filled in by direct recruitment, shall be as under,-

(a) 5% of the posts in the State Services;

(b) 12 ½ % of the posts in the Ministerial and Subordinate Services; and

(c) 15% of the posts in class-IV;

or

such percentage of posts as reserved under relevant service rules, whichever is higher.

(2) Maximum number of such ex-servicemen in a particular cadre shall also be limited to the percentage as specified in sub-rule (1) above.

(3) The reservation for ex-servicemen shall be treated as horizontal reservation and it shall be adjusted in the respective category to which the ex-servicemen belongs.

(4) Where a vacancy reserved for ex-servicemen under these rules, remains unfilled due to non-availability of suitable ex-servicemen in a particular year, the vacancies so reserved for them shall be filled in accordance with the normal procedure and equal number of vacancies shall be carried forward to the next recruitment year and there after such vacancies would lapse."

(D.B. SAW/717/2020 has been filed in this matter. Please refer the same for further orders)

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23. Rule 22 of the Rules of 1988 lays down provision for removal

of doubts which reads as under:-

"22. Removal of doubts:- If any doubt arises relating to the application and scope of these rules, it shall be referred to Government in the Department of Personnel whose decision thereon shall be final."

24. Thus, if any, doubt arises relating to the application and

scope of Rules, the Government can issue orders and clarify the

position of Rules. A look at the circular dated 22 nd August, 2019

shows that the Department of Personnel has clarified its earlier

circular dated 16.08.2016 and noticed that there was a difficulty

arising in filling up the post for ex-servicemen on account of the

interpretation taken of the earlier circular dated 16.08.2016. For

the purpose of this judgment, suffice it to notice the contents of

circular dated 22nd August, 2019 as under:-

"vr% dkfeZd foHkkx ds ifji= fnukad 16-08-2016 ds vfrØe.k esa HkwriwoZ lSfudksa dks jkT; dh lsokvksa esa ,d ckj ls vf/kd ¼nksgjk½ ykHk nsus ds laca/k esa fuEukuqlkj funsZ'k iznku fd;s tkrs gSa %&

1- fdlh HkwriwoZ lSfud }kjk jkT; ds v/khu fdlh Hkh yksd lsok esa fu;kstu Lohdkj dj ysus ds ckn og HkwriwoZ lSfud ds :i esa viuh izkfLFkfr ¼status½ [kks nsxk vkSj og dsoy yksdlsod ¼ civil employee½ ads :i esa gh ekuk tk,xkA vFkkZr HkwriwoZ lSfud ds :i esa ns; vkj{k.k dk ykHk izkIr djus ds mijkUr yksd lsok ds fdlh in ij iqfufuZ;kstu Lohdkj djrs gh mldk HkwriwoZ lSfud ds :i esa dksbZ Hkh ykHk izkIr djus dk vf/kdkj lkekU;r% lekIr le>k tkosxkA

(D.B. SAW/717/2020 has been filed in this matter. Please refer the same for further orders)

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ijUrq lh/kh HkrhZ ds ,sls inksa ds laca/k esa] tgka fu;eksa esa fuEu in dk vuqHko Hkh fu/kkZfjr fd;k x;k gS] fdlh HkwriwoZ lSfud }kjk fuEu in ij fu;ksftr gksus ds dkj.k] HkwriwoZ lSfud ds :i esa vkj+{k.k dk vf/kdj lekIr gqvk ugha le>k tk,xkA

2- ^HkwriwoZ lSfud* vU; yksd lsodksa dks lkekU; fLFkfr esa vuqKkr vk;q vkfn dh f'kfFkyrk tSls ykHk izkIr djus dk vf/kdkjh ekuk tk,xk vFkkZr jktLFkku flfoy lsok ¼HkwriwoZ lSfudksa dk vkesyu½ fu;e] 1988 ;Fkkla'kksf/kr ds izko/kkuksa ds gksrs gq, Hkh fdlh HkrhZ ls lacf/kr lsok fu;eksa esa vk;q laca/kh tks f'kfFkyrk vU; yksd [email protected] vH;fFkZ;ksa dks ns; gS] og HkwriwoZ lSfud dks Hkh ns; gksxh vFkkZr vk;q laaca/kh f'kfFkyrk ds laca/k esa nksuksa fu;eksa esa tks Hkh fgrdj izko/kku gS] mldk ykHk HkwriwoZ lSfudksa dks feysxkA

3- ;fn dksbZ HkwriwoZ lSfud fdlh futh daiuh esa fu;kstu izkIr djrk gS vFkok fdlh Lok;Rr'kklh laLFkk] lkoZtfud miØe ;k jktdh; dk;kZy; esa [email protected] lafonk @ vLFkkbZ @ rnFkZ vk/kkj ij fu;kstu izkIr djrk gS rks mls bl iz;kstu gsrq yksd lsod ds :i esa ,d ckj vkj{k.k dk ykHk izkIr fd;k gqvk ugha ekuk tk,xk] D;ksafd ,slh lsok ls deZpkjh dks dHkh Hkh gVk;k tk ldrk gSA

4- ;fn dksbZ HkwriwoZ lSfud] ns; vkj{k.k dk ykHk izkIr dj] fdlh ,d yksd lsok esa iqufuZ;kstu Lohdkj djrk gS vkSj mlls iwoZ mlus vU; fdlh in dh HkrhZ gsqr Hkh vkosnu izLrqr fd;k gqvk gS] rks mls vius lsok fu;a=d vf/kdkjh dks ,sls fd, gq, vkosnuksa dh fnukadokj iwoZ lwpuk @ Lo?kks"k.kk dk;Zxzg.k ds lkFk gh izLrqr dj nsus dh fLFkfr esa] ,sls dk;Zxzg.k ls iwoZ fd, gq, vkosnuksa ds laca/k esa Hkh HkwriwoZ lSfud ds :Ik esa vkj{k.k dk ykHk ns; gksxkA

(D.B. SAW/717/2020 has been filed in this matter. Please refer the same for further orders)

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vr% leLr fu;qfDr izkf/kdkfj;ksa dks funsZf'kr fd;k tkrk gS fd jkT; lsokvksa esa HkwriwoZ lSfudksa dks vkj{k.k fn;s tkus ds laca/k esa mDr funsZ'kksa dh dBksjrk ls ikyuk dh tkosA"

25. Thus, the circular explains the position and status of an ex-

serviceman and provides for an existing government servant who

has been appointed under the ex-servicemen quota to continue to

have status of ex-serviceman for the purpose of further selection

to State Services and, therefore, to be eligible for reservation

under the ex-servicemen quota in the State Services too.

26. The definition of "ex-servicemen" is to be noticed under the

Rules of 1988 to mean a person who has served in any rank

whether as a combatant or non-combatant in the Regular Army,

Navy and Air Force of the Indian Union is as under:-

(a) "An ex-servicemen" means a person who has served in any rank whether as a combatant or non-combatant in the Regular Army, navy and Air Force of the Indian Union and-

(i) who retired from such service after earning his/her pension; or

(ii) who has been released from such service on medical grounds attributable to military service or circumstances beyond his control and awarded medical or other disability pension; or

(iii) who has been released otherwise than on his own request, from such service as a result of reduction in establishment; or

(iv) who has released from such service after completing the specific period of engagements, otherwise than at his own request or by way of dismissal or discharge n account of misconduct or inefficiency, and has been given a gratuity;

and includes personnel of the Territorial army of the following categories, namely:-

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(i) pension holders for continuous embodies service.

(ii) persons with disability attributable to military service; and

(iii) Gallantry award winners;

27. A specific query was asked from the counsels as to what will

be the status of an ex-serviceman after he joins the State

Government Services on any post. It has been informed that the

ex-serviceman continues to draw his pension from Army even

though he may be serving with the State Services. Thus, in the

opinion of this Court, the status of ex-serviceman continues to

remain an employee even if he is working with the State Services.

28. In view of the definition of "ex-servicemen" provided under

the Rules of 1988, the circular dated 22 nd August, 2019, in the

opinion of this Court, rightly allows an employee in the State

working on any post to be still continued and considered as an ex-

serviceman for any future direct recruitment post. Thus, in the

opinion of this Court, even those candidates who were working on

the post of Teacher Grade-III or Teacher Grade-II and appointed

as ex-servicemen under the ex-servicemen quota, would still

continue to maintain the status of being ex-servicemen for the

purpose of participation for direct recruitment for higher post in

State Services namely, for the post of Headmaster. They would be

treated and counted in ex-servicemen quota if they fall in merit.

29. In the opinion of this Court, the submission of learned

counsel for the petitioners that a vested right has been created in

their favour under the advertisement which was issued on 28 th

(D.B. SAW/717/2020 has been filed in this matter. Please refer the same for further orders)

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March, 2018, which was further modified by corrigendum dated

22.5.2018 is without any basis. A substantive right or vested right

of a candidate participating in the selection process under an

advertisement, can be only created after a final result and merit

list is drawn by the appointing authority.

30. Thus, in the opinion of this Court, as the result was declared

of the said examination only on 23 rd September, 2019 and the

circulars were issued prior to that i.e. on 16 th August, 2016 & 22nd

August, 2019, no substantive right or vested right can be said to

have been taken away of the petitioners who participated in the

selection process as ex-servicemen and the circular can be said to

be having retrospective effect. It is also noticed that the other

candidates who applied under the ex-servicemen quota and had

already been working with the State Services, have also been

treated by the RPSC as ex-servicemen. Thus, there is no conflict

between the view taken by the State Government as well as that

of the RPSC. Merely because more competition has arisen, it

would not mean that more meritorious candidates who are

continued to remain as ex-servicemen should be deprived of their

rightful placement.

31. The law as cited by Senior counsel relating to retrospectivity

would not apply in view of above. In the opinion of this Court, the

circulars are not an amendment in the Rules but are explanatory

and they flow out from the power available to the State under

Rule 22 of the Rules of 1988. No exception can thus be made to

such circulars as they explain and lay down the guidelines for the

appointing authority and the examining body namely, RPSC. The

(D.B. SAW/717/2020 has been filed in this matter. Please refer the same for further orders)

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contention of learned Senior Counsel Shri Suresh Pareek relating

to the letter issued by the Director, Secondary Education dated

06.08.2019 and the Press Note dated 07.08.2019 being ultra virus

and such power thereof available with the Director, Secondary

Education, is found to be without any basis as stated earlier. The

State Government has an authority inherent with them to explain

and issue directions to the examining body as to how an

experience is required to be counted.

32. This Court is satisfied with the contentions raised by Shri

Raghu Nandan Sharma and Shri Shailesh Prakash Sharma,

learned counsel for the respondents, that ex-servicemen who are

working as Education Instructors do possess experience of five

years of teaching. The Schedule appended to the Rules of 1970

explains in detail how the five years experience is to be counted

and even candidates who have experience on the post of Research

Assistant or Coordinator in the State Institute of Education have

been treated to be having experience of teaching Secondary

Classes. In the case of Education Instructors as noticed above,

already the Central Board of Secondary Education has recognized

the certificates being issued by the Army Secondary School

Examination as equivalent to that of Central Board and the

recognition of Education Instructor as equivalent to that of a PGT

Instructor i.e. Post Graduate Teacher, has already been recognized

by the Government of India. The State Government's instructions

of 06.08.2019 and 07.08.2019 thus cannot be said to be in any

manner illegal or arbitrary. Once the experience certificate is

already counter-signed by the Director, Soldier Welfare Board, no

(D.B. SAW/717/2020 has been filed in this matter. Please refer the same for further orders)

(18 of 18) [CW-16836/2019]

objection can be raised with regard to the said experience. Even

otherwise, the question regarding recognition of any kind of

experience lies exclusively within the domain of the State

Government or its authorities and this Court would not under

Article 226 of the Constitution of India delve into the aspect

whether the particular experience should be counted or not.

33. Keeping in view above, these writ petitions fail and the same

are accordingly dismissed. The respondent-RPSC is now directed

to declare the result accordingly and treat all ex-servicemen equal

for the purpose of consideration for selection under the ex-

servicemen quota. The result may now be declared and the State

Authorities may proceed on the basis of recommendations made

by the RPSC. No costs.

34. All pending applications also stand disposed of.

(SANJEEV PRAKASH SHARMA),J

SAURABH YADAV/151-157

(D.B. SAW/717/2020 has been filed in this matter. Please refer the same for further orders)

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