Ram Dinesh vs State Of Rajasthan
2023 Latest Caselaw 497 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Civil Writ Petition No. 8487/2022

Ram Dinesh S/o Shri Ganga Ram Chhipa, Aged About 51 Years, Bhangdiyo Ka Mohala, Ward No. 5, Parbatsar, District Nagaur.

----Petitioner Versus

1. State Of Rajasthan, Rural Development And Panchayati Raj Department, Jaipur.

2. Secretary Cum Commissioner, Rajasthan Rural Development And Panchayati Raj Department, Jaipur.

3. Director Cum Senior Administrative Secretary, Panchayati Raj Department, Jaipur.

4. Commissioner, Panchayati Raj Department, Jaipur.

5. Additional Commissioner And Joint Secretary, Panchayati Raj Department, Jaipur.

6. Chief Executive Officer, Zila Parishad, Nagaur.

----Respondents

Connected With D.B. Civil Writ Petition No. 8485/2022 Feb Singh Shekhawat S/o Shri Madan Singh, Aged About 55 Years, Devli Khurd, Post Gangwa, Via Makrana, District Nagaur.

----Petitioner Versus

1. State Of Rajasthan, Rural Development And Panchayati Raj Department, Jaipur.

2. Secretary Cum Commissioner, Rajasthan Rural Development And Panchayati Raj Department, Jaipur.

3. Director Cum Senior Administrative Secretary, Panchayati Raj Department, Jaipur.

4. Commissioner, Panchayati Raj Department, Jaipur.

5. Additional Commissioner And Joint Secretary, Panchayati Raj Department, Jaipur.

6. Chief Executive Officer, Zila Parishad, Nagaur.

                                                                ----Respondents




                                              (2 of 6)                   [CW-8487/2022]



For Petitioner(s)            :    Mr. Navneet Singh Birkh
For Respondent(s)            :    --


            HON'BLE MR. JUSTICE SANDEEP MEHTA
           HON'BLE MR. JUSTICE KULDEEP MATHUR
                                       Order

REPORTABLE

     12/01/2023

The present writ petitions have been filed challenging the

notification 06.03.2013 issued by the Governor of Rajasthan in

exercise of powers conferred by the proviso to Article 309 of the

Constitution of India which amended the Rajasthan Rural

Development and Panchayati Raj State and Subordinate Service

Rules, 1998 (hereinafter referred to as 'Rules of 1998').

The grievance of the petitioners is that by way of notification

06.03.2013, the minimum qualification for promotion to the post

of Assistant Secretary, Development Officer and Assistant Program

Officer has been amended from Higher Secondary School

Examination to Graduation from a recognised university rendering

the petitioners ineligible for promotion to the next higher post.

Learned counsel for the petitioners submits that at the time

when petitioners were appointed on the post of Gram Sevak, they

were governed by the unameded Rules of 1998 wherein they had

an opportunity of being promoted to the next higher post on the

basis of qualification of Higher Secondary School Examination.

Thus, the petitioners' eligibility for promotion to the next higher

post cannot be taken away by virtue of notification dated

06.03.2013 amending the Rules of 1998 causing undue hardship

and inconvenience. Learned counsel placed reliance on the

judgment rendered by Hon'ble the Supreme Court in the case of

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Chandan Banerjee vs. Krishna Prosad Ghosh reported in

2021 SCC OnLine SC 773.

A Co-ordinate Bench of this Court in the case of Ran Singh

& Ors. vs. State of Rajasthan & Ors. (D.B. C.W.

No.6132/2019), decided on 15.03.2022, held as under:-

"5. Prima facie, from the very tenor of averments made in the writ petition, it becomes clear that the petitioners are trying to dictate the manner in which the State should lay down the criterion for selection on a particular post. The post of Assistant Secretary, Zila Parishad bears a great deal of responsibility and as such, prescribing the bare minimum educational qualification of 'Graduation' for filling up the post by in-house promotion from amongst the employees already working in the department, cannot be said to be arbitrary or unjust in any manner whatsoever.

6. Education is never confined by boundaries of age or time. Thus, we are of the firm view that rather than raising a grouse about higher qualification required for promotion, the petitioners would be better advised to enhance their educational capacity and acquire the degree of Graduation. None of the arguments advanced by Shri Vyas, was sufficient to convince the Court that the amendment in Schedule-II whereby educational qualification for promotion to the post of Assistant Secretary, Zila Parishad has been prescribed as Graduation is arbitrary or unconstitutional in any manner."

Similarly, a Co-ordinate Bench of this Court in the case of

Madan Singh Boda vs. State of Rajasthan & Ors. (D.B. C.W.

No.19322/2018), decided on 04.01.2022, while examining a

similar eventuality, held as under:-

"There is always a presumption of constitutionality of a statute. Reference in this respect can be made to the decision of the Constitution Bench of Supreme Court in

(4 of 6) [CW-8487/2022]

the case of State of Jammu and Kashmir Vs. Triloki Nath Khosa and others (AIR 1974 SC 1). Such presumption attaches also to subordinate legislation. The wisdom of the rule making authority in introducing certain eligibility criteria particularly in relation to the educational qualification required, is ordinarily not within the judicial review of the Court. Unless such qualification is shown to be wholly arbitrary or suffering from mala fides, the Court would not interfere with such policy matter. What should be the educational qualification required for holding the post in the nature of Assistant Conservator of Forests, is ordinarily left to the rule making authority to judge. We also notice that as per the affidavit filed by the State Government, such prescription of eligibility criteria is also provided by the Central Government for Forest Services.

We do not find any reason to declare the rule as unconstitutional.

We also do not find that the rule is applied with retrospective effect. Merely because the petitioner was already in Government service, he cannot hope to be governed by set of statutory rules existing at the time of his entry in the Government service. Any rule which is introduced later on or existing rule is amended, would be applied to all existing employees of the Government. As long as such amendment is applied for future instances, merely because it applies to existing staff, cannot be stated to be a retrospective application of the rule. This is precisely what has been held by Supreme Court in the case of Triloki Nath Khosa (supra). It was observed that a rule which classifies existing employees for promotional purposes, undoubtedly operates on those who entered service before framing of the rule but it operates in future in the sense it governs the future right of promotion of those who are already in service. The impugned rules do not recall promotion already made. In such background, it was held that the rules do not have retrospective application."

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Manifestly thus, introduction of any amendment in the

educational qualification which applies to all existing employees of

the government cannot be held to be impermissible unless the

same affects those who have already been promoted to the next

higher post. It is a settled law that prescription of qualification and

other conditions of service being a policy decision lies within the

exclusive domain of the employer. Courts are not expected to

direct the employer to prescribe/substitute a particular mode of

recruitment or eligibility criteria unless it is established that the

same suffers from the vice of arbitrariness or malafides.

It would be pertinent to note here that hardship or

inconvenience faced by petitioners due to implementation of

notification dated 06.03.2013 cannot be construed as a ground to

render these provisions invalid. While laying challenge to the

constitutionality of an amendment in the service rules or

regulations, the petitioners have to establish that these

amendments are in contravention of the guarantees provided

under Part-III of the Constitution of India or any other right

accrued under any other article of the Constitution of India;

amendments have been introduced without legislative

competence; the amendments are manifestly arbitrary and

unreasonable to conclude that the legislature never intended to

extend any such authority.

In view of aforesaid discussion, we are of the firm view that

notification 06.03.2013 issued by the Governor of Rajasthan in

exercise of powers conferred by the proviso to Article 309 of the

Constitution of India amending the Rajasthan Rural Development

and Panchayati Raj State and Subordinate Service Rules, 1998

(6 of 6) [CW-8487/2022]

(hereinafter referred to as 'Rules of 1998') does not suffer from

any arbitrariness, malafides or legislative incompetence.

In the result, the writ petitions fail and are dismissed with

no order as to costs.

                                   (KULDEEP MATHUR),J                                     (SANDEEP MEHTA),J

                                    45-RaviKh/-









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