Rajendra Singh Sodha vs The State Of Rajasthan
2022 Latest Caselaw 1336 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Civil Writ Petition No. 15695/2021

1. Rajendra Singh Sodha S/o Sardar Singh Sodha, Aged About 59 Years, B/c Rajput, R/o Village Lunawas (Sodha Ki Dhani - Post Lunawas). Tehsil Bagoda District, Jalore. At Present Posted As Prabodhak At Government Primary School, Sardar Singh Sodha Ki Dhani, Lunawas, District Jalore.

2. Talsa Ram S/o Moola Ram, Aged About 47 Years, B/c Megwal, R/o Village Manohar Ji Ka Was, Tehsil Jaswantpura, District Jalore. At Present Posted As Prabodhak At Government Upper Primary School, Kodita, District, Jalore.

3. Pushpa W/o Ram Kishore Sharma D/o Kailash Chandra Mishra, Aged About 42 Years, B/c Brahmin, R/o Ushapuri Gate, Sumerpur, District Pali (Raj.). At Present Posted As Prabodhak At Government Upper Primary School, Pomawa, Sumerpur, District Pali (Raj).

4. Prabha Awasthi W/o Kailash Chandra Awasthi D/o Dagar Chand Trivedi, Aged About 54 Years, B/c Brahmin, R/o Adrsh Colony 29 B, Kanoma Kripa, Sumerpur, District Pali (Raj). At Present Posted As Prabodhak At Government Upper Primary School, Angor, Sumerpur, District Pali (Raj).

5. Maya Vyas W/o Banshidhar Vyas D/o Banshilal, Aged About 54 Years, B/c Brahmin, R/o Adrsh Colony, Polish Thane Ke Peeche, Sumerpur, District Pali (Raj). At Present Posted As Prabodhak At Government Girls Upper Primary School, Jawai Bandh, Sumerpur, District Pali (Raj).

6. Leela Kanwar D/o Bhanwar Singh W/o Karan Singh, Aged About 46 Years, B/c Rawna Rajput, R/o Near Power House Takhatgarh (Sumerpur) District Pali (Raj). At Present Posted As Government Girls Upper Primary School, Nayakera, Sumerpur, District Pali (Raj).

7. Bheekh Dan S/o Prabhu Dan, Aged About 41 Years, B/c Charan, R/o Village Rewara Mahiya, Tehsil Pachpadra, District Barmer. At Present Posted As Govt. Upper Primary School, Sindiyon Ki Dhani Rewara Mahiya, District Barmer.

8. Bheem Raj Parihar S/o Deva Ram Parihar, Aged About 47 Years, B/c Sargara, R/o Hanuman Chouk Bisalpur, District Pali (Raj.). At Present Posted As Govt. Upper Primary School, Pomawa Panchayat Samity Sumerpur District Pali (Raj).

9. Subhash Chandra Choudhary S/o Hukma Ram, Aged About 50 Years, B/c Jat, R/o Vpo Kodesar Via Bissau, District Jhunjhunnu, Rajasthan. At Present Posted As Govt. Upper Primary School Mithi Beri, Tehsil Pachapadara, District Barmer (Raj).

                                                             ----Petitioners
                                 Versus


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1. The State Of Rajasthan, Through The Secretary, Rural Development And Panchayati Raj Department, Secretariat Jaipur.

2. The Secretary, Department Of Education, Government Of Rajasthan, Jaipur.

3. The Secretary, Department Of Finance, Secretariat Jaipur.

4. The Director (Elementary Education), Bikaner.

5. The District Education Officer Cum Additional Chief Executive Officer, Zila Parishad Jalore.

6. The District Education Officer Cum Additional Chief Executive Officer, Zila Parishad Pali.

7. The District Education Officer Cum Additional Chief Executive Officer, Zila Parishad Barmer.

----Respondents Connected With D.B. Civil Writ Petition No. 12461/2018

1. Bhabuta Ram S/o Shri Vagaramji Mali, Aged About 43 Years, By Caste Mali, Resident Of Bhinmal,district Jalore (Rajasthan).

2. Ibrahim Khan S/o Shri Kheru Khan, Aged About 47 Years, By Caste Musalman, Resident Of Bhinmal, District Jalore (Rajasthan)

3. Talkamram S/o Shri Narsaramji, Aged About 43 Years, Resident Of Bhinmal, District Jalore (Rajasthan)

4. Ranjeet S/o Shri Harjiram, Aged About 47 Years, Resident Of Bhinmal, District Jalore (Rajasthan).

5. Rekharam S/o Shri Khindaram, Aged About 48 Years, Resident Of Bhinmal, District Jalore (Rajasthan).

6. Ganpat Singh S/o Shri Karan Singh, Aged About 46 Years, Resident Of Bhinmal, District Jalore (Rajasthan)

7. Mohan Lal S/o Shri Vagtaram, Aged About 44 Years, Resident Of Bhinmal, District Jalore (Rajasthan)

8. Mohan Lal S/o Shri Pokar Ram, Aged About 43 Years, Resident Of Bhinmal, District Jalore (Rajasthan)

9. Hamaram S/o Shri Jiyaram, Aged About 48 Years, Resident Of Bhinmal, District Jalore (Rajasthan).

10. Jagram S/o Shri Premaram, Aged About 42 Years, Resident Of Bhinmal, District Jalore (Rajasthan).

11. Siriyaram S/o Shri Manaram, Aged About 45 Years, Resident Of Bhinmal, District Jalore (Rajasthan).

----Petitioners Versus

1. State Of Rajasthan, Secretary, Department Of School Education, Government Of Rajasthan, Jaipur.

2. Deputy Secretary, Department Of Elementary Education, Government Of Rajasthan, Jaipur.

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3.    Secretary, Rural Development And Panchayati                         Raj.

Department, Government Of Rajasthan, Jaipur.

4. Director, Elementary Education, Rajasthan, Bikaner.

5. Chief Executive Officer, Zila Parishad, Jalore

----Respondents D.B. Civil Writ Petition No. 10674/2020

1. Harji Ram S/o Umaram Godara, Aged About 53 Years, B/c Godara, R/o Village Post Baghsara Athuna Sujangarh, District Chur (At Present Poste As Parbodhak At Government Primary School Jognadi, Telap Sujangarh, Churu).

2. Shera Ram Prajapat S/o Pusa Ram, Aged About 47 Years, B/c Prajapat, R/ovillage Post Baghsara Athuna Sujangarh, District Churu. At Present Posted As Parbodhak At Government Upper Primary School, Dhani Bamnia Sujangarh, Churu.

3. Magha Ram Meghwal S/o Sugna Ram, Aged About 38 Years, B/c Meghwal, R/o Village Post Baghsara Athuna Sujangarh, District Churu. At Present Posted As Parbodhak At Government Upper Primary School, Khara, Sujangarh, Churu.

4. Purna Ram S/o Jena Ram, Aged About 42 Years, B/c Meghwal, R/o Village Post Baghsara Athuna Sujangarh, District Churu. At Present Posted As Parbodhak Atgskps, Jhandiyapur. Sujangarh, District Churu.

5. Gopala Ram S/o Padma Ram Godara, Aged About 50 Years, B/c Jat, R/o Village Post Baghsara Athuna Sujangarh, District Churu. At Present Posted As Parbodhak Atgovernment Primary School Gomnada, Sujangarh, Churu.

6. Kanta Trivadi W/o Yadvendra Trivadi, Aged About 53 Years, B/c Sharma, R/o Gandhi Basti, Sujangarh Churu. At Present Posted As Government Girls Upper Primary School Gopalpura, Sujangarh, Churu.

7. Navratan D/o Pahlad Rai, Aged About 47 Years, B/c Sharma, R/o Naya Bass Sujangarh, Churu. At Present Posted As Parbodhak At Upper Primary School Bhojlai Road, Sujangarh, Churu.

8. Jhumar Ram S/o Ghasi Ram, Aged About 42 Years, B/c Jat, R/o Village Post Sunari, Tehsil Ladnun, District Nagaur. At Present Posted As Parbodhak At Government Primary School Dhani Bilki, Sujangarh, Churu.

9. Mangi Lal Israwan S/o Pusha Ram, Aged About 46 Years, B/c Jat, R/o Village Bada, Tehsil Sujangarh.district Churu. At Present Posted As Parbodhak At Government Primary School Dhani Bilki, Sujangarh, Churu.

10. Suresh Kumar Prajapat S/o Nanu Ram, Aged About 38 Years, B/c Prajapat, R/ovillage Post Sarothiya Sujangarh. At Present Posted As Parbodhak At Gskps Dhani Hansalaisujangarh, District Churu.

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11. Hukama Ram Jhooria S/o Kumbha Ram Jhooria, Aged About 48 Years, R/ovillage Post Mundraa, Sujangarh, Churu. At Present Posted As Parbodhak At Gsks Chak Mundrasujangarh, District Churu.

12. Prakash Ram Gena S/o Lichhaman Ram, Aged About 37 Years, B/c Gena, R/ovillage Post Mundra, Sujangarh, Churu. At Present Posted As Parbodhak At Gsks Jhuriyon Ki Dhani, Sujangarh, District Churu.

13. Ramgopal Jyani S/o Shri Rameshwar, Aged About 37 Years, B/c Jyani, R/o Village Post Likhamansar, Sujangarh, Churu. At Present Posted As Parbodhak At Government Primary School Mangalwasi, Sujangarh, Churu.

14. Mahaveer Singh Bhati S/o Jethu Singh, Aged About 39 Years, B/c Rajput, R/o Village Post Likhamansar, Sujangarh, Churu. At Present Posted As Parbodhak At Government Primary School Dhani Kerla. Sujangarh, District Churu.

15. Ram Niwas S/o Har Sukh Ram, Aged About 45 Years, B/c Jat, R/o Village Post Jilli, Sujangarh, Churu. At Present Posted As Parbodhak At Gsks Tornie,sujangarh, District Churu.

16. Jagdish Prasad S/o Mangi Lal, Aged About 44 Years, B/c Bargav, R/o Village Post Jilli, Sujangarh, Churu. At Present Posted As Parbodhak At Gsks Tornie,sujangarh, District Churu.

17. Triloka Ram S/o Ram Sukha Ram, Aged About 48 Years, B/c Dhaka, R/o Village And Post Likhmansar, Sujangarh, Churu. At Present Posted As Parbodhak At Government Primary School Dhani Kerla, Sujangarh, Churu.

18. Phoosharam Meghwal S/o Shera Ram, Aged About 49 Years, B/c Meghwal, R/o Village And Post Joglia, Sujangarh. At Present Posted As Parbodhak At Ggups Jogliasujangarh, Churu.

19. Ramkori D/o Khinwa Ram, Aged About 41 Years, B/c Jat, R/o Village And Post Harasar, Sujangarh, Churu. At Present Posted As Parbodhak At Ggups Absarsujangarh, District Churu.

20. Jeev Raj Singh S/o Adu Ram, Aged About 47 Years, B/c Jat, R/o Jili, Village And Post Sujangarh, Churu. At Present Posted As Parbodhak At Government Upper Primary School Meghwal Basti, Dewani, Sujangarh, Churu.

21. Rajesh Jangir S/o Rama Kishan, Aged About 46 Years, B/c Jangir, R/o Gandhi Basti Sujangarh, Churu. At Present Posted As Parbodhak At Government Primary School Bidbass Guleria, Sujangarh, Churu.

22. Ramchandra Veer S/o Dungar Ram Veer, Aged About 46 Years, B/c Jat, R/o Village And Post Badabar, Tehsil Sujangarh. At Present Posted As Parbodhak At Government Girls Upper Primary School, Badabar, Sujangarh, District Churu.

23. Bhanwar Lal Jat S/o Shri Ghisha Ram, Aged About 42

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Years, B/c Jat, R/ovillage And Post Malasisar, Sujangarh, Churu. At Present Posted As Parbodhak At Government Upper Primary School Tada, Sujangarh, District Churu.

24. Sukha Ram Birda S/o Shri Kumaram Birda, Aged About 44 Years, B/c Jat, R/o Village And Post Malasisar, Sujangarh, Churu. At Present Posted As Parbodhak At Government Upper Primary School Tada, Sujangarh, District Churu.

25. Vinod Kumar Pareek S/o Hulsh Chand Pareek, Aged About 51 Years, B/c Sharma, R/o Naya Bass,ward No.22 Sujangarh, Churu. At Present Posted As Parbodhak At Government Upper Primary School Tada, Sujangarh, Churu.

26. Kiran Veer D/o Bagasa Ram Veer, Aged About 41 Years, B/c Jat, R/ovillage And Post Badabar, Tehsil Sujangarh, District Churu. At Present Posted As Parbodhak At Government Girls Upper Primary School, Badabar, Sujangarh, Churu.

27. Vinita Pareek D/o Jugal Kishore, Aged About 52 Years, B/c Sharma, R/o Ward No.3, Sujangarh. At Present Posted As Parbodhak At Government Girls Upper Primary School, Badabar, Sujangarh, District Churu.

28. Sardar Ram Dhaka S/o Bhoora Ram Dhaka, Aged About 43 Years, B/c Jat, R/o Village And Post Jetasar. At Present Posted As Parbodhak At Government Upper Primary School Dewani, Sujangarh, Churu.

29. Kalu Singh Rathore S/o Sher Singh Rathore, Aged About 44 Years, B/c Rajput, R/ovillage And Post Bhanisariya Tej, Aabsar District Churu. At Present Posted As Parbodhak At Government Primary School Jyanio Ki Dhani, Bidas Sujangarh, District Churu.

30. Kanu Ram Meghwal S/o Girdhari Lal Meghwal, Aged About 44 Years, B/c Meghwal, R/o Village And Post Bhanisariya Tej. At Present Posted As Parbodhak At Government Upper Primary School Lona, Sujangarh, Churu.

31. Babulal Meghwal S/o Girdhari Lal Meghwal, Aged About 44 Years, B/c Meghwal, R/o Village And Post Bhanisariya Tej. At Present Posted As Parbodhak At Government Upper Primary School Lona, Sujangarh, Churu.

32. Dedaram Meghwal S/o Taru Ram Meghwal, Aged About 48 Years, B/c Meghwal, R/ovillage And Post Dewani, Chhapar, Tehsil Sujangarh, District Churu. At Present Posted As Parbodhak At Government Primary School Randhisar,pahari. Sujangarh, District Churu.

33. Khinwa Ram Jat S/o Bhaira Ram Jat, Aged About 52 Years, B/c Jat, R/o Village And Post Rampur, Chhapar, Tehsil Sujangarh, District Churu. At Present Posting As Parbodhak At Government Primary School Bhanisariya Harawtan, Sujangarh, District Churu.

34. Mani Ram S/o Lichman Ram, Aged About 54 Years, B/c Jat, R/o Village And Post Jetasar, Tehsil Sujangarh, Churu. At Present Posting As Parbodhak At Government Girls

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Upper Primary School Jetasar Sujangarh, District Churu.

35. Pratap Singh S/o Bhanwar Singh, Aged About 45 Years, B/c Rajput, R/ovillage And Post Dhani Bhanisarya Haravtan, At Present Posted As Parbodhak At Gsks Dhani, Bhanisar. Sujangarh, District Churu.

36. Virendra S/o Jagmohan, Aged About 50 Years, B/c Sharma, R/o Ward No. 11, Chhapar Government Upper Primary School Meghwal Basti Dewani, District Churu. At Present Posted As Parbodhak At Government Upper Primary School Dewani, Sujangarh, District Churu.

37. Prithvi Singh S/o Bhanwar Singh, Aged About 47 Years, B/c Rajput, R/o Village Basipurvi, Post Badabar. At Present Posted As Parbodhak At Gsks Basi Purvi. Sujangarh, District Churu.

38. Ranjeet Singh S/o Sultan Singh, Aged About 46 Years, B/c Rajput, R/ovillage Dhani Bhanisarya,harawtan Sujangarh, District Churu. At Present Posted As Parbodhak At Gsks Dhani Bhanisaryasujangarh, District Churu.

39. Dewa Ram S/o Nathu Ram, Aged About 52 Years, B/c Meghwal, R/o Dhatri Sujangarh, Churu. At Present Posted As Parbodhak At Ggups Jogaliya.sujangarh, District Churu.

40. Maya Kour D/o Mani Ram, Aged About 48 Years, B/c Jat, R/o Kothari Road Tal Chhapar, Churu. At Present Posted As Parbodhak At Ggups Jogaliya,sujangarh, District Churu.

41. Bajrang Das S/o Likham Das, Aged About 55 Years, B/c Swami Sarangsar, R/o Post Luhara, Tehsil Bidasar, Churu. At Present Posted As Parbodhak At Gskps, Rajeev Basti, Saranagasar,tehsil Bidasar Sujangarh, District Churu.

42. Vijay Singh Arya S/o Sohan Ram, Aged About 55 Years, B/c Jat R/o Village Post Luhara, Tehsil Bidasar, Churu. At Present Posted As Parbodhak At Gskps Akanadi Sarangsar, Tehsil Bidasar District Churu.

43. Gumanaram Godara S/o Tiku Ram Godara, Aged About 48 Years, B/c Jat R/o Village Kanuta, Tehsil Sujangarh, District Churu. At Present Posted As Parbodhak At Government Shiksha Karmi, Primary School Mangrasar Phanta, Kanuta, Tehsil Sujangarh, District Churu.

44. Kamla Devi W/o Satyanarayan Jakhar, Aged About 40 Years, B/c Jat R/o Village Post Sarothia, Via Lalgarh, Tehsil Sujangarh, District Churu. At Present Posted As Parbodhak At Govt. Shiksha Karmi Primary School, Hansalee, Sarothia.sujangarh, District Churu.

45. Ram Narayan Jyani S/o Tulchha Ram Jat, Aged About 46 Years, B/c Jat R/o Village And Post Bambu, Tehsil Bidasar, District Churu. At Present Posted As Parbodhak At Gps Nadatalai Bambu Tehsil Bidasar, District Churu

----Petitioners Versus

1. The State Of Rajasthan, Through The Secretary, Rural Development And Panchayati Raj Department, Secretariat,

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Jaipur.

2. The Secretary, Department Of Education, Government Of Rajasthan, Jaipur.

3. The Secretary, Department Of Education, Government Of Rajasthan, Jaipur.

4. The Director (Elementary Education), Bikaner.

5. The District Education Officer Cum Additioanl Chief Executive Officer, Zila Parishad Churu.

                                                                ----Respondents



For Petitioner(s)        :    Mr. Sukesh Bhati
through V.C.
For Respondent(s)        :    Mr. Sunil Beniwal, AAG
through V.C.

HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON'BLE MR. JUSTICE MADAN GOPAL VYAS

Order

28/01/2022

The petitioners have challenged Rule 38(v) of Rajasthan

Panchayati Raj Prabodhak Service Rules 2008 (hereinafter to be

referred to as 'the Rules of 2008'). As per this clause (v) the

petitioners and other similarly situated Prabodhaks would be

governed by the Rajasthan Civil Services (Contributory Pension)

Rules, 2005 (hereinafter to be referred as 'new pension Rules of

2005'). The desire of the petitioners is that they should be

governed by the old pension rules of the Rajasthan State under

the Rajasthan Civil Services (Pension) Rules, 1996 (hereinafter to

be referred as 'old pension Rules of 1996). The petitions arise in

the following background:-

In the State of Rajasthan, there were large number of ad-

hoc teachers serving under the scheme and who were referred to

as "Shiksha Karmi". There was no permanency in their tenure nor

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were receiving regular pay scales. Many of these Shiksha Karmi

including the petitioners were engaged for a considerable period of

time. The State of Rajasthan therefore framed the Rules of 2008

with the purpose of absorbing these ad-hoc teachers on

permanent basis. In exercise of powers under Section 102 read

with Section 89 of the Rajasthan Panchayati Raj Act, 1994 the

State of Rajasthan framed the said Rules of 2008. Rule 4 of the

said Rules pertains to composition and strength of service. As per

Sub-rule (1) of Rule 4, such service shall consist of the posts

specified in Column 2 of the Schedule which were the posts of

Prabodhak and Senior Prabodhak. Rule 6 pertains to the methods

of recruitment. So far as the post of Prabodhak is concerned, the

same would be filled up 100 percent through direct recruitment.

Column 6 of the Schedule prescribes the qualifications and

experience for direct recruitment to the post of Prabodhak. This

required any of the alternate qualifications prescribed therein such

as Senior Secondary School certificate etc. and at least 5 years of

continuous teaching experience without any break in any

recognized educational institution/educational project. This

prescription for experience was thus designed specially to suit the

requirement of the ad-hoc teachers serving in different schemes

and generally referred to as Siksha Karmi. Part IV of the Rules of

2008 contains procedure for direct recruitment. As per Rule 26,

selection of the candidates would be made by the appointing

authority of the candidates who stand highest in the order of merit

in the list prepared by the Committee under Rule 25.

Part-VI pertains to appointment, probation and confirmation.

As per Rule 33 contained in the said part, a person entering the

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service by way of direct recruitment against the clear vacancy

would be placed as a probationer trainee for a period of two years.

Part-VII pertains to pay during probation. Rule 37 contained

in the said part provides that a probationer trainee appointed to

the service by direct recruitment shall be paid monthly fixed

remuneration during the period of probation on such rates as may

be fixed by the Government from time to time. Rule 37A was

inserted subsequently and provides that a Prabodhak appointed as

a probationer trainee on fixed remuneration, on successful

completion of probation period, shall be granted one increment for

every additional 3 years of continuous teaching experience gained

before his appointment, beyond the required minimum 5 years of

continuous teaching experience without any break, in any

recognized educational institution or educational project. Rule 38

pertains to regulations of pay, leave, allowances, contributory

pension etc and reads as under:-

"38. Regulations of pay, leaves, allowances, contributory pension etc. -- Except as provided in these rules, the pay, allowances, contributory pension, leave and other conditions of service of the member of the Service, shall be regulated by -

(i) The Rajasthan Service Rules, 1951, as amended from time to time.

(ii) The Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958, as amended from time to time,

(iii) The Rajasthan Travelling Allowance Rules, 1971, as amended from time to time.

(iv) The Rajasthan Civil Services (Revised Pay Scales) Rules, 1998, as amended from time to time.

(v) The Rajasthan Civil Services (Contributory Pension) Rules, as amended from time to time.

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(vi) The Rajasthan Civil Services (Conduct) Rules, 1971, as amended from time to time."

As per Clause (v) of Rule 38, since a person appointed as a

Prabodhak under these Rules is to be governed by the New

Pension Scheme of 2005, the petitioners have raised the

grievance. According to them, Clause (v) of Rule 38 is arbitrary,

unreasonable and violative of Articles 14 and 16 of the

Constitution of India. Learned counsel for the petitioners

submitted that the petitioners were engaged by the Government

as teachers several years before they were appointed to the post

of Prabodhak. While granting them pay fixation on such

appointment also, the past services have been taken into account

as provided in Rule 37A of the Rules of 2008. The petitioners

therefore for all practical purposes were working as regular

Government servants even before they were appointed to the post

of Prabodhak. To treat the petitioners as new employees in the

Government service and to subject them to new pension scheme

is thus wholly arbitrary and unreasonable.

On the other hand, Mr. Sunil Beniwal, Additional Advocate

General opposed the petition contending that it was under peculiar

circumstances, the State Government had decided to regularize

the services of ad-hoc teachers who had worked for several years

under specified schemes. Before regularization, they did not hold

any permanent post. They were engaged under ongoing schemes

and had no permanency. They became Government servants only

upon being absorbed as Prabodhaks which happened under the

Rules of 2008. By this time, the State Government had already

introduced the contributory pension scheme. Under the Rules of

2005 Government servants entering the Government service after

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cut-off date prescribed in the said Rules would be governed by the

New Pension Scheme. The petitioners cannot claim different

treatment. He pointed out that at one stage in the case of private

aided educational institutions the teachers who were absorbed in

regular service had claimed benefit of old pension scheme which

was allowed by this Court. However, subsequently the Division

Bench in the case of State of Rajasthan and others Vs. Ramgopal

Verma vide judgment dated 20.09.2021 had recalled the earlier

judgment of the Division Bench and dismissed the writ petitions.

He also relied on the decision of Supreme Court in the case of

Parmeshwar Nanda etc. Vs. The State of Jharkhand and

others, (2020) 12 SCC 131, in which, in the context of eligibility

for regular pension to project employees, the Supreme Court had

made following observations:-

"20. The entire case is based upon Rule 59 of the Rules and the Circular dated 12th August, 1969 of the erstwhile State of Bihar. We do not find any merit in the arguments raised by the learned counsel for the appellants. Rule 59 of the Rules empowers the State Government to declare any specified kind of service rendered by one in a non-gazetted service to qualify for pension, provided, that the salary is paid from the general revenue. Rule 58 of the Rules contemplates the conditions that are required to be satisfied for services to be pensionable. Herein, as it has been reiterated before, first condition is that the service must be under the Government; second, that it must be substantive and permanent; and third, that it must be paid by the Government.

21. The appellants were appointed under a specific Scheme i.e. the Project. Such project was not a permanent establishment of the Government as it was meant for a specific purpose funded by the Central Government for a specified period. The appointment of the appellants under the Project is not a part of any cadre of the State Government.

Therefore, the first condition of Rule 58 that the service rendered must be under the State

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Government is not satisfied by the appellants having been appointed under the Project. The second condition that employment must be substantive and permanent is again not satisfied by the appellants as the employment of the appellants was under the Project. A permanent post in terms of Rule 31 of the Rules means a post carrying a definite rate of pay and that is sanctioned without a time limit. The appointment of the appellants under the project was not in a pay scale nor was it sanctioned without a time limit. Further, substantive pay is defined in Rule 38 of the Rules as a person who is appointed in a cadre. At best, the appellants satisfied only the third condition i.e. that they were paid by the Government.

22. If the first and second conditions mentioned in Rule 58 of the Rules are not satisfied, the State Government can declare any specified kind of service rendered in a non-gazetted capacity to qualify for pension. The Circular dated 12th August, 1969 deals with pensionary benefits to a temporary Government servant. The appellants were never appointed by the Government either on a temporary or on permanent basis. The appellants were engaged under the Project i.e. a scheme, therefore, the benefit of such a Circular cannot be claimed by the appellants. Still further, sub- rule (1) of Rule 59 of the Rules empowers the State to declare any specific kind of service to qualify for pension. The notification for absorption circulated on 30th May, 2007 and the subsequent letter of appointments do not contain any condition that the services rendered by the appellants under the Project shall qualify for pension. The policy decision contemplates that it is a fresh appointment and no benefit either of seniority or pay protection shall be given. The appellants have not disputed such condition of appointment having been appointed under such policy decision vide the notification dated 30th May, 2007. The Circular has not granted pensionary benefits. In the absence of any specific condition in the Circular to grant pensionary benefits, it is not possible to read that pensionary benefits are to be granted to the erstwhile employees of the Project. The appellants cannot turn around to say that the services rendered by them under the Project shall be counted for pension. The Circular dated 12th August, 1969 is not even remotely applicable to the employees appointed under the Project as the very

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nature of the appointment was for a specific purpose and not for an unlimited period of time."

Having heard learned counsel for the parties and having

perused the documents on record, we do not find that the

petitioners have made out any case for interference. To begin

with, the decision of this Court in the case of Ramgopal Verma

(supra) would substantially cover the issues which the petitioners

seek to raise in these petitions. In fact, earlier judgment of

Division Bench of this Court (which came to be reviewed and

recalled by the said judgment) was heavily relied upon by the

learned counsel for the petitioners. In the judgment in the case of

Ramgopal Verma (supra), the Division Bench considered the

issues at a considerable length. After disposing of the objections of

the original petitioners to entertain the review petition after the

SLP against the judgment of the High Court was dismissed, the

Division Bench proceeded to examine the merits of the claim of

the petitioners therein for being governed by the Old Pension

Scheme though they were made regular employees after the New

Pension Scheme was already introduced. It was observed as

under:-

"53. By way of Rule 5(ix), it was made clear that the persons who are appointed in Government service under the Rules of 2010, shall not be eligible for pension scheme and they may either continue to be the members of Contributory Provident Fund or they may opt for Rajasthan Civil Services (Contributory Pension) Rules, 2005. It was further provided therein that the Contributory Provident Fund Contribution if not deposited by Non-Government Aided Educational Institution for the period prior to the date of joining under the Rules of 2010, shall not be paid by the Government.

54. Rule 5 (ix) vires whereof were challenged by the respondents, which has been declared unconstitutional

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by this Court by the order under review, to the extent indicated above, reads as under:

"(ix) The persons who are appointed in the government service under these rules shall not be eligible for pension scheme, Contributory Provident Fund Contribution, if not deposited by the Non- Government Aided Educational Institution for the period prior to the date of their joining in the Government after appointment under these rules, shall not be paid by the State Government. They may either continue to be members of the Contributory Provident Fund or they may opt for the Rajasthan Civil Service (Contributory Pension) Rules, 2005. Employer's contribution towards Contributory Provident Fund shall be paid by the Government for the period they are in government service."

55. The reasons assigned by the Court while declaring the Rule 5(ix) unconstitutional by order under review, are as under:

"In the aforesaid provision, the State legislature has made an attempt to deny benefit of pension scheme and specifically provided that they may either continue to be member of contributory provident fund or they may opt for Rajasthan Civil Services (Contributory Pension) Rules, 2005 but no other rule/provision incorporated for those employees of aided institution, who were appointed prior to framing of Rules of 2005.

Upon consideration of judgment of the Hon'ble Apex Court in the case of D.S.Nakara vs. U.O.I. (supra) coupled with Article 14 and 21 of the Constitution of India, we are of the firm opinion that on the one hand the State Government is owning the responsibility of the employees working against the sanctioned post in the aided institution and framed Rules of 2010 for their appointment and absorption in the Government services, and on the other hand, denied the benefit of pension to the employees who were appointed prior to promulgation of the Rajasthan Civil Service (Contributory Pension) Rules, 2005 to opt for pension as provided under the Rules of 1996, therefore, obviously it is a case of clear cut discrimination because under the Rules of 2010, the State Government has created a separate cadre amongst Government employees knowingly well that financial aid was provided to the aided institutions for the purpose of imparting education. Thus the provisions for denial of pension in the aforesaid subrule (ix) of Rule 5, quoted herein above, is hereby declared to be illegal and in contravention of the fundamental rights of the

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employees to the extent of denial of pension to the employees who were appointed prior to 2005."

56. It is pertinent to note that the employees of Non- Government Aided Educational Institutions prior to their appointment in Government service under the Rules of 2010 were governed by Contributory Provident Fund Scheme envisaged under the Rules of 1993 and not the Pension Scheme. Further, any person inducted in the service of the State Government after commencement of the Rules of 2005, is governed by the Contributory Pension Scheme and not the Pension Scheme envisaged under the Rules of 1996. To put in other words, the employees inducted in the State Government service by way of regular recruitment on or after 1.1.04, under the various relevant service rules, are not entitled to opt for Pension Scheme in terms of Rules of 1996. But, it appears that this aspect of the matter was not specifically brought to the notice of the Division Bench, deciding the writ petitions by order under review. It remains a vital question to be examined as to whether the employees of Non-Government Aided Educational Institution, who have been accorded appointment under the Government service under the Rules of 2010, which have come into force w.e.f. 1.2.2011, against a dying cadre created, can claim the benefits of the Pension Scheme under the Rules of 1996, which are applicable only to the Government servants appointed before 1.1.2004.

57. There is yet another important aspect of the matter, which was not taken note of while passing the order under review. As per Rule 2 of the Rules of 1996, the said rules are applicable to Government servant appointed to Civil Services and the post in connection with the affairs of the Rajasthan State, which are born on pensionable establishment but, by virtue of Clause

(c) of Rule 2, the Rules of 1996 are not made applicable to the persons entitled to benefit of Contributory Provident Fund. The question whether the Rules of 1996 which were not applicable to the Government servant entitled to the benefit of Contributory Provident Fund at the time of commencement of the rules, shall still be applicable to the employees of Non-Government Aided Educational Institution, who admittedly as employees of Non- Government Institutions were governed by Contributory Provident Fund prior to their induction in service of the State Government under the Rules of 2010. A perusal of the order under review reveals that the provisions of Rule 2(c) of the Rules of 1996, was not even brought to the notice of the Court and therefore, the Court had no occasion to examine the effect thereof while adjudicating the controversy involved in the petition including the vires of Rule 5(ix) of the Rules of 2010. In our considered opinion the provisions of Rule

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2(c) of the Rules of 1996 have a direct bearing to the controversy raised and therefore, the effect thereof needs to be examined by the Court.

58. Further, vide order under review, this Court had examined the vires of the provisions of Rule 5(ix) of the Rules of 2010, framed in terms quoted hereinabove, which as a matter of fact, had already been substituted by the Rajasthan Voluntary Rural Education Service (Second Amendment) Rules, 2012 ('Amendment Rules 2012'), notified vide notification dated 23.3.12 in the following terms:

"(ix) The persons who are appointed in the government service under these rules shall be governed by the provisions of the Rajasthan Civil Services (Contributory Pension) Rules, 2005 and the Provision of the Rajasthan Civil Service (Pension) Rules, 1996 shall not be applicable to them. Contributory Provident Fund Contribution, if not deposited by the Non-Government Aided Educational Institutions for the period prior to the date of their joining in the government after appointment under these rules, shall not be paid by the State Government."

59. It is not disputed before this Court that amended Rule 5 (ix) substituted vide Amendment Rules, 2012 was not even brought to the notice of the Court during the course of hearing of the writ petitions and thus, while considering the rival submissions, this Court has declared the Rule 5(ix) of the Rules of 2010 unconstitutional, which was not even in existence as on the date of the passing of the order under review. Of course, it was duty of the State counsel to bring the amendment in the rules to the notice of the Court but then, the respondents herein who had prayed for the relief set out in the writ petitions as a consequence of Rule 5(ix) of the Rules of 2010 being declared unconstitutional, were equally duty bound to inform the Court about the subsequent amendment. The contention of the petitioners that the amendment made does not make any difference and therefore, by virtue of the judgment under review, the same has to be treated redundant, cannot be countenanced by this Court. It is pertinent to note that by way of amendment, the Rules of 1996 are made specifically non-applicable to the employees appointed under the Rules of 2010 and therefore, the vires of Rule 5(ix) as substituted has to be examined in context of the Rules of 1996 as well. In any case, there cannot be any automatic declaration of the rule as unconstitutional without there being a challenge thereto and examination thereof by the Court.

60. It is also not disputed before this Court that earlier Bench decision of this Court in Prem Prakash's case

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(supra), upholding the vires of Rule 5(ix), which is declared unconstitutional by order under review, was not brought to the notice of the Court.

61. For the aforementioned reasons, we are firmly of the opinion that the order under review to the extent of declaring Rule 5(ix) of the Rules of 2010 unconstitutional and declaring the respondents entitled to opt for Pension Scheme under the Rules of 1996 deserves to be recalled. Since, vires of Rule 5(ix) of the Rules of 2010 as substituted vide Amendment Rules, 2012 was not questioned by the respondents being oblivion about the amendment introduced, in the interest of justice, the respondents deserve to be extended an opportunity to amend their petitions to incorporate the challenge to the said rule in the petitions, if so advised.

62. Accordingly, the review petitions are allowed. The order under review to the extent of declaring Rule 5(ix) of the Rules of 2010 as unconstitutional and holding that all the employees who were appointed against the sanctioned/aided posts prior to promulgation of Rajasthan Civil Service (Contributory Pension) Rules, 2005 in the aided institutions and subsequently appointed/absorbed under the Rules of 2010 shall be governed by Rajasthan Civil Service (Pension) Rules, 1996, and consequential orders passed for deposit of the amount of Provident Fund, is recalled. The writ petitions are restored to their original numbers. The respondents shall be entitled to amend the petitions so as to challenge the vires of Rule 5(ix) as substituted by Rajasthan Voluntary Rural Education Service (Second Amendment) Rules, 2012, on all available grounds. The writ petitions restored shall be heard only on the question of vires of Rule 5(ix) of the Rules of 2010 and the consequential relief, if any.

63. The respondents who have deposited the amount of Provident Fund with interest as directed by the Court by order under review, shall be refunded the entire amount deposited alongwith interest @ 6% per annum from the date of deposit till the date of refund by the State Government, within a period of four weeks from the date of this order, failing which the amount shall carry interest @ 9% per annum from the date of deposit till the date of actual payment.

No order as to costs."

Quite apart from the said judgment of the Division Bench of

this Court, we find that under the Rules of 2008, the State

legislature had created a service consisting of posts specified in

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Column (ii) to the Schedule which included Prabodhaks and Senior

Prabodhaks. The petitioners were absorbed against the vacancies

to the post of Prabodhaks which were created under these Rules.

Their absorption obviously therefore was in the year 2008 and

thereafter. It is well known that in the State of Rajasthan, the Old

Pension Scheme was contained in the Rules of 1996.

Subsequently, the New Pension Rules 2005 were framed. These

Rules were brought into effect from 01.01.2004. As per Rule 2,

save as otherwise provided in these Rules, they would apply to the

Government servants appointed on or after 01.01.2004 to civil

services and posts in connection with the affairs of the Rajasthan

State which are borne on New Contributory Pensionable

establishments but shall not apply to certain specified services,

with which we are not concerned. As per these Rules, any

government servant entering the service after 01.01.2004 would

be covered by the New Pension Scheme. Clause (v) of Rule 38

only clarifies and emphasizes this aspect of the matter when it

provides that besides others, the members of the service would be

governed by the Rajasthan Civil Service (Contributory Pension)

Rules as amended from time to time. There is thus nothing

arbitrary or discriminatory about this portion of Rule 38. Reference

to Rule 37A of the Rules of 2008 would not change this position.

As noted, as per this Rule 37A, a Prabodhak would be granted one

additional increment for every 3 years of continuous teaching

experience over and above the minimum experience required for

direct recruitment. This Rule only governs the pay fixation of a

Prabodhak and does not predate his entry in Government service.

Grant of additional increment is entirely different from the date of

entry into Government service. For the purpose of being governed

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by the New or Old Pension Scheme. What is of relevance is the

date of appointment as a Government servant.

In the result petitions fail and are dismissed.

(MADAN GOPAL VYAS),J (AKIL KURESHI),CJ 88to90-jayesh/-

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