Rahul Sharma Andors vs State P H E D Ors
2022 Latest Caselaw 3505 Raj/2

         HIGH COURT OF JUDICATURE FOR RAJASTHAN
                     BENCH AT JAIPUR

                 S.B. Civil Writ Petition No. 1279/2015

1.   Rahul Sharma S/o Shri Mohanlal Sharma, Aged about 34
years, R/o Plot No. 199, Aditya Nagar, Morija Road, Chomu,
District Jaipur.
2.       Balveer Saini S/o Shri Manoharlal Saini, aged about 34
years, R/o Police Ka Mohalla, Chhawani, Neem Ka Thana, District
Sikar.
3.       Anoop Agarwal S/o Shri Om Prakash Agarwal, aged about
34 years, R/o House No. 376/10, Gauri Bhawan, Bapu Nagar,
Ajmer.
4.        Kumari Rajbala D/o Shri Jaisingh Poonia, aged about 32
years, R/o 172/A, Moti Nagar, Shiv Colony, Queens Road, Jaipur
                                                                   ----Petitioners
                                    Versus
1.   State of Rajasthan through Principal Secretary, Public Health
Engineering Department, Secretariat, Jaipur.
2.        The Chief Engineer (Rural), Public Health Engineering
Department, Jal Bhawan, Jacob Road, Jaipur.
3.         The   Chief   Engineer       (Administration),         Public   Health
Engineering Department, Jal Bhawan, Jacob Road, Jaipur.
                                                                 ----Respondents

For Petitioner(s) : Mr. Gaurav Sharma For Respondent(s) : Ms. Archana on behalf of Mr. Anil Mehta, AAG

HON'BLE MR. JUSTICE INDERJEET SINGH

Order

04/05/2022

Heard on the application.

Counsel for the petitioner submits that the issue involved in

this writ petition has already been considered and decided by a

Co-ordinate Bench of this Court in the matter of "Vimla Devi Saini

(2 of 6) [CW-1279/2015]

Vs. State of Rajasthan & Ors." [S.B. Civil Writ Petition

No.7330/2016] decided on 20.11.2017, which reads as under:-

"Learned counsel for the petitioner submits that controversy raised in the instant writ application stands resolved in view of the adjudication made by a Coordinate Bench of this Court at Principal Seat, Jodhpur, in the case of Charu Joshi Vs. State of Rajasthan & Ors.: SBCWP No. 419/2015, decided on 22nd January, 2016, after affording an opportunity of hearing to the counsel for the Staterespondents observing thus:

"5. I have heard learned counsel for the parties and have considered the facts of the case.

6. Rule 6 (1A) of the Rules of 1967 reads as under:-

"6. Methods of Recruitment:- Recruitment to the Service after the commencement of these rules shall be made by the following methods in the (D.B. SAW/877/2019 has been filed in this matter. Please refer the same for further orders) proportion as indicated in column 3 of the schedule-

(a) direct recruitment in accordance with part IV of these rules, and

(b) Promotion (in accordance with Part V) of these rules):Provided-

               (1) that if the Appointing
               Authority     is     satisfied    in
               consultation         with       the

Commission, where necessary, that suitable persons are not available for appointment by either method of recruitment in a particular year, appointment by the other method in relaxation of the prescribed proportion may be made in the same manner as specified in these rules; (1A) If a Diploma Holder Junior Engineer

(3 of 6) [CW-1279/2015]

attains the qualifications of B.E.

(Civil/Mechanical/Electrical), or AMIE, he shall be entitled on his application and subject to availability of vacancy, to be appointed as direct recruitment but in that case his seniority amongst the Junior Engineers(Degree Holders) shall be determined from the date of occurrence of vacancy against which such Junior Engineer has been appointed on the post of Junior Engineer (Degree Holder) and one third of his previous experience shall be counted as experience on the post of Junior Engineer for the purpose of promotion to the next higher post."

A reading of the aforesaid rule shows that a person who is Junior Engineer(Diploma Holder) attains the qualification of B.E. (Civil, Mechanical, Electrical or A.M.I.E.) shall be entitled, on an application, to be appointed as Junior Engineer(Degree Holder) by transfer against the quota of direct recruitment, but his case for seniority amongst the Junior Engineer(Degree Holder) shall be determined from the date of occurrence of vacancy with a further rider that 1/3rd of his previous experience shall be counted as experience on the post of Junior Engineer for the purpose of promotion to the next post.

7. This rule can be broken up into two segments, first being that if Junior Engineer (Diploma Holder) attains additional qualification, namely, B.E. (Civil, Mechanical, Electrical or A.M.I.E.), he can move an application to be

(4 of 6) [CW-1279/2015]

appointed as Junior Engineer(Degree Holder) by way of transfer against the quota meant for direct recruitment of Degree Holders, but this would only be subject to availability of vacancy. The second limb of the rule pertains to, how the seniority is to be determined.

8. Admittedly, the petitioner was Diploma Holder in Civil (D.B. SAW/877/2019 has been filed in this matter. Please refer the same for further orders) Engineering on the date of submission of his application form, i.e. 30.6.2008. The interview was held on 23.5.2009 and appointment was offered on 17.9.2009. The additional qualification of A.M.I.E. was acquired subsequent to the date of submission of application. Rule 6(1A) clearly specified that a Junior Engineer (Diploma Holder) who attains qualification of A.M.I.E. shall be entitled to be appointed as Junior Engineer (Degree Holder) by transfer against the quota of direct recruitment only on availability of vacancy. Reading of rule does not show that a only such Junior Engineer (Diploma Holder), can be considered for transfer to the quota of direct recruitment of Degree Holders if he has obtained degree while in service and after obtaining permission from the Department. Rule is silent to that effect and it certainly cannot be construed otherwise.

9. In the present case, the petitioner on the date of application was only had the qualification of Diploma Holder, even though he was undergoing A.M.I.E. Course and was in the final year. If the petitioner had applied, there was no guarantee that he would have qualified . The only surety, in his hands, was that he was a Diploma Holder and had a reasonable opportunity of being appointed as Junior Engineer(Diploma Holder). In case, he did not qualify in the degree course, he would have lost the

(5 of 6) [CW-1279/2015]

opportunity under the Diploma quota as well. Rule 6(1A) only specifies that in case a Junior Engineer(Diploma Holder) attained qualification, he shall be entitled to be appointed as Junior Engineer(Degree Holder) by way of transfer against the quota of direct recruitment only on availability of a vacancy. Nonconsideration of his candidatures was on the ground that he did not apply in the advertisement under the Degree Holder quota and especially since he was already undergoing the third/final year examination is not tenable in view of the fact that the petitioner would be entitled to transfer only in case there is a vacancy and then of course the seniority would be reckoned as per rules.

10. In view of the above, the above noted writ petition is allowed with the direction to the respondent to consider the case of the petitioner for transfer in the quota of direct recruitment of Junior Engineer(Degree Holder) by way of transfer in case there is a vacancy and to compute his seniority according to the Rules.

"Learned counsel further submits that instant writ application (D.B. SAW/877/2019 has been filed in this matter. Please refer the same for further orders) be also disposed of in terms of the order in the case of Charu Joshi (supra). In view of the statement made, the instant writ application stands disposed off in terms of the order in the case of Charu Joshi (supra) as extracted hereinabove.

The application (IA No.66480/2017) stands closed."

Counsel for the respondents submits that the respondent-

state of Rajasthan filed Special Leave Petition (Civil) Diary No(s).

No.26449/2020, which was dismissed by the Hon'ble Supreme

Court vide order dated 02.03.2021, which reads as under:-

(6 of 6) [CW-1279/2015]

"We see no ground to interfere with the orders passed by the High Court. The Special leave Petitioners are dismissed. However, the question of law is left open."

Pending application(s), if any, shall stand disposed of.

Counsel appearing on behalf of the respondents has not

disputed the submissions made by the counsel for the petitioner.

In that view of the matter, the present writ petition stands

disposed of in view of the judgment passed by a Co-ordinate

Bench of this Court in the matter of Vimla Devi Saini (supra).

All the pending applications stand disposed of.

(INDERJEET SINGH),J

CHETNA BEHRANI /50

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