Rajasthan High Court - Jodhpur

Rajnikant Mali vs State Of Rajasthan (2025:Rj-Jd:18465) on 15 April, 2025

Author: Vinit Kumar Mathur

Bench: Vinit Kumar Mathur

[2025:RJ-JD:18465]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                 S.B. Civil Writ Petition No. 7587/2025

Rajnikant Mali S/o Raghunath Mali, Aged About 45 Years, R/o
Near Uba Ganeshji Temple, Lal Bag Road, Nathdwara, District
Rajsamand (Raj.).
                                                                        ----Petitioner
                                      Versus
1.       State of Rajasthan, Through The Principal Secretary,
         Department Of Rural Development and Panchayati Raj
         (Panchayati      Raj),     Government            of       Rajasthan,   Jaipur,
         Rajasthan.
2.       The Commissioner, Rural Development and Panchayati Raj
         Department, Government of Rajasthan, Jaipur.
3.       The Additional Commissioner-cum-Dy. Secretary (First),
         Rural Development and Panchayati Raj Department,
         Government of Rajasthan, Jaipur.
4.       Chief Executive Officer, Zila Parishad Rajsamand, District
         Rajsamand.
5.       Development Officer, Panchayat Samiti Khamnore, District
         Rajsamand.
6.       Abhishek Sharma S/o Shri Damodar Lal Sharma, Through
         Panchayat Samiti Amet, District Rajsamand.
                                                                     ----Respondents


For Petitioner(s)           :     Mr. Pawan Singh.



         HON'BLE MR. JUSTICE VINIT KUMAR MATHUR

Order

15/04/2025

1. Heard learned counsel for the petitioner.

2. The present writ petition has been filed with the following

prayers:-

"I). The action of the respondents while not determining the seniority in the provisional seniority list dated 10.03.2025 (Annexure-14) on the basis of date of joining/date of confirmation of the LDCs and placing the

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petitioner much lower in the seniority list despite the fact that the petitioner has joined much prior than the aspirants who have joined/confirmed much after him, may kindly be declared per se bad in the eye of law, unjust, arbitrary, discriminatory and violative to Rule 285 of the Rajasthan Panchayati Raj Rules, 1996 and Articles 14, 16 and 21 of the Constitution of India; and/ or

II) The provisional seniority list dated 10.03.2025 (Annexure-14) may kindly be quashed and set aside and the respondents may kindly be directed to prepare a fresh seniority list while determining the seniority on the basis of date of joining/date of confirmation; and/or

III) The respondents may kindly be directed to determine the seniority of the petitioner as per his entitlement i.e. date of joining/date of confirmation and if the petitioner comes in merit, he be given promotion on the post of UDC; and/or

IV) The respondents may kindly be directed to consider and decide the objection of the petitioner objectively.

V) The respondents may kindly be directed to include the name of the petitioner in the final seniority list at his proper place as per his entitlement and not lower than the aspirants who have joined and confirmed much after the petitioner."

3. Briefly noted the facts in the present writ petition are that in

pursuance of the recruitment advertisement issued in the year

2013 by the Zila Parishad, the petitioner was appointed on the

post of Lower Division Clerk. After selection of the petitioner on

the post of LDC, a merit list was prepared by the respondent

department after completing document verification. The petitioner

joined the services on 01.07.2013 at the allotted place of posting.

While the petitioner was working on the post of LDC, a provisional

seniority list was prepared on 21.09.2022. The petitioner's name

was placed at Serial No.60. On the provisional seniority list,

objections were invited. On the objections received by the

department, the seniority list prepared on the basis of merit was

changed and a seniority list was prepared on the basis of date of

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joining. The petitioner's seniority list was reshuffled to Serial

No.61. The petitioner, in these circumstances, preferred a

representation, against which no action was taken. In the similar

situation, writ petitions were filed before this Court and the

controversy was decided by this Court in a bunch of writ petitions

led by S.B. Civil Writ Petition No.13204/2024 (Goverdhan Kumar &

Ors. Vs. The State of Rajasthan & Ors.). Vide order dated

23.09.2024, it was held that the seniority list is required to be

prepared as per merit keeping in mind the provisions of Rule 285

of the Rajasthan Panchayati Raj Rules, 1996 (hereinafter referred

to as 'Rules of 1996').

4. For complying with the orders passed by this Court, the

respondents are now preparing the seniority list afresh keeping in

mind the merit position of the persons including the petitioner. The

provisional list on the basis of merit is prepared on 10.03.2025.

Hence, the present writ petition has been filed for quashing the

provisional seniority list prepared on the basis of merit position of

the LDCs and it is prayed that the seniority list may be prepared

on the basis of date of joining/ date of confirmation.

5. Learned counsel for the petitioner vehemently submits that

the seniority list should be prepared on the basis of date of

joining. He further submits that preparation of the seniority list on

the basis of merit position is contrary to Rule 285 of the Rules of

1996. He, therefore, prays that the provisional seniority list

prepared on 10.03.2025 may be quashed and the respondents

may be directed to prepare a fresh seniority list on the basis of

date of joining/date of confirmation.

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6. I have considered the submissions made at the bar and have

gone through the relevant record of the case. The question raised

in the present writ petition had already been discussed,

deliberated and decided in the case of Goverdhan Kumar (supra)

vide order dated 23.09.2024 in the following terms:-

"I have considered the submissions made at the bar and also gone through the relevant rules.

The admitted position in the present case clearly depicts that the petitioner was selected by the District Establishment Committee and a merit list was prepared by the District Establishment Committee on 25.06.2013 wherein the name of the petitioner was reflected at serial No.163. In pursuance of the merit list prepared by the District Establishment committee, she was given appointment by the concerned Panchayat Samiti/Zila Parishad. In pursuance of the appointment order, she joined her duties on 01.07.2013. The petitioner rendered her services to the utmost satisfaction of the respondents. After completion of her probation period, she was confirmed on the said post vide order dated 17.12.2015. For consideration of promotion on the post of UDC (Senior Assistants), the respondents prepared a provisional/final seniority list. While preparing the seniority list of LDCs (junior Assistants), the respondents have taken into consideration her date of appointment/joining. For preparation of seniority list, section 90 of the Rajasthan Panchayati Raj Act, 1994 and Rules, 259, 270, 274, 276 and Rule 285 of the Rajasthan Panchayati Raj Rules, 1996 were taken into consideration. The relevant provisions of Section 90 of the Act of 1994 and Rule 259, 270, 274, 276 and Rule 285 of the Rules of 1996 are reproduced as under:-

"Section 90 : Constitution and Functions of the District Establishment Committee:- (1)..............

(2) The District Establishment committee shall -

(a) make selection or the posts in different grades and categories [except the posts specified in clauses (I),

(iii), (iv) and (v) of Sub-Section (2) of Section 89] [Substituted by Notification No.F.2(2), dated 9.4.2016 (w.e.f.23.4.1999).] existing in the service in the Panchayat Samiti and the Zila Parishad in the District in

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accordance with the rules made by the state government in this behalf;

(b) regulate the mode of temporary appointment and recommend the names of persons for extending such appointments beyond six months;

(c) prepare lists of persons for promotion in the prescribed manner; and

(d) advise the Panchayat Samitis of the district and Zila Parishad all disciplinary matters affecting the officers and other employees thereof other than those referred to in Secs.79 and 82, which may arise under Section

91."

Rule 259, Methods of Recruitment :-

259. Methods of Recruitment's.-

(1) The posts of state service may be filled in by transfer on deputation from appropriate service.

(6) Recruitment of posts encadred in Panchayat Samiti and Zila Parishad Services as per Sub-Section (2) of Section 89 shall be made district wise through District Establishment Committee as per provisions of Secs. 80 and 90 of the Act.

Procedure for Direct Recruitment

Rule 270. Inviting of applications -On a requisition for direct recruitment to the service having been made by the Panchayat Samiti or the Zila Parishad to the District Establishment Committee, applications shall be invited by the Committee through open advertisement in daily news paper having wide circulation.

Rule 274 Preparation of a merit list by the Committee.

(1) The committee shall prepare a merit list of candidates considered suitable for appointment to [each grade or category of posts except the post specified in clause (iii) of sub-section (2) of Section 89 of the Act in the district] and shall on receipt of requisition from the Panchayat Samitis or Zila Parishads allot candidates from the list in the order in which their names occur in the list:

Provided that: -

(i) the number of candidates in the merit list prepared by the Committee shall not exceed one and a half time the number of vacancies actually available at the time such merit list is prepared; and

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(ii) the merit list of candidates so prepared shall remain valid for a period of one year in general and up to end of academic session for teachers. After expiry of such period, it will be deemed to have lapsed.

(2) The Panchayat Samitis or Zila Parishads shall take into consideration the requirement of Rule 261 while sending their requisitions to the Committee.

Rule 276. Appointment by Panchayat Samiti or Zila Parishad.- The Panchayat Samiti or Zila Parishad shall appoint the candidates allotted by the Committee in the order in which their names are forwarded by the Committee.

Rule 280. Allotment and Appointment:- (1) On receipt of requisition from the Panchayat Samitis or Zila Parishad, the committee shall allot persons from the list, in the same order in which their names occur in the list.

(2) The Panchayat Samitis or Zila Parishad shall, on receipt of the allotment from the Commitee, appoint the persons so allotted to the posts for which they are selected by the Committee.

Rule 285. Seniority. - Seniority in lowest grade or category of the service shall be determined by the date of confirmation and in other higher posts filled by promotion shall be determined from the date of regular selection :

Provided :-

(i) that if two or more persons are appointed to posts in the same grade or category under the same order or orders of the same date, their seniority shall be in the same order in which their names appear in the list prepared by the Committee,

(ii) that the seniority of persons appointed by transfer shall be fixed below the persons substantively appointed and he will be the junior most though his pay will be protected as personal pay.

(iii) that persons appointed by promotion in a particular year shall be senior to persons appointed by direct recruitment".

Perusal of above quoted Rules clearly show that the District Establishment Committee is entrusted with the

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selection of LDCs for appointment in the Panchayat Samities/Zila Parishads. In the present case, admittedly, the recruitment was made in pursuance of Rule 259 of the Rules of 1996 by the District Establishment Committee after inviting the applications from the candidates under Rule 270 of the Rules of 1996. The Selection Committee i.e. the District Establishment Committee prepared a merit list of the candidates who were considered suitable for appointment on the post and thereafter, the names of the candidates were forwarded to the respective Panchayat Samities/Zila Parishads in furtherance of the requisitions received from them in the order of merit list prepared by the respondents. Further, the candidates whose names were forwarded by the District Establishment committee were given appointments by the concerned Panchayat Samities/Zila Parishads in view of their names forwarded by the Committee under Rule 276 of the Rules of 1996. The process of allotment and appointment of the candidates was done by the Committee as per Rule 280 of the Rules of 1996 in the order in which the names of the candidates occurred in the merit/selection list.

The harmonious reading of the above referred Section and Rules clearly shows that the appointing authority of the LDCs (Junior Assistant) in the respondent Department is District Establishment Committee and after the District Establishment committee selects the candidates on the post of LDCs, the seniority list is prepared by it in order of merit, thereafter, the candidates are sent to the different Panchayat Samities and Zila Parishads on the basis of the recommendations received. The Legislature has made the provision in such a fashion that the selections are made in a most transparent manner. The criteria adopted by the Legislature for selection and appointment of the LDCs by the different Panchayat Samities and Zila Parishads has been devised with a pious intention to minimize and to avoid different yardsticks in the selection process.

Looked at from another angle, if the date of appointment/joining of a candidate is taken into consideration for preparation of the seniority list, it may lead to discrepancies and chaotic/haphazard situation. For example, if a person who stood higher in the select list/merit list and was directed to join at a particular Panchayat Samiti or Zila Parishad, but for reasons beyond his/her control, he/she is unable to join on the given date and if a person lower in merit joins the place of posting earlier to that person, he will be given seniority above the meritorious person. For no fault of a senior person, he will

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loose his seniority viz-a-viz a junior person who has joined earlier despite being lower in merit. Such course of action was never intended by the legislature, therefore, the scheme of things as devised by the legislature, clearly shows that the seniority of LDC (Junior Assistant) should be assigned as per the merit list prepared by the District Establishment Committee.

In the considered opinion of this court, in order to maintain transparency and smooth functioning in the Panchayati Raj Department, the procedure of preparing the seniority list on the basis of merit has been devised.

This court is not inclined to take a different view from the view which has been taken by this court in the case of Bimla (supra). In the case of Bimla (supra), in similar set of facts, it was held that while preparing the seniority list of LDCs for promotion to the post of UDC (Senior Assistant), the respondents are required to adhere to Rule 285 of the Rajasthan Panchayati Raj Rules, 1996 and take into consideration merit position of a candidate while preparing the seniority list.

The operative portion of the judgment rendered by this court in S.B.Civil Writ Petition No.472/2023 Bimla V/s State of Rajasthan & Ors. decided on 21.08.2024 is quoted as under:-

"8. Since the petitioner was appointed on the post of LDC (Junior Assistant) on 26.06.2013 and he joined the post of LDC on 27.06.2013, therefore, the name of the petitioner should be reflected in the seniority list as per the merit list prepared by the respondents while giving appointment to the petitioner along with other candidates.

9. The basis for preparing the seniority list of the LDCs should be the merit position of a candidate reflected in the appointment order which should be taken into consideration while preparing the seniority list of the candidates (LDCs). Since learned counsel for the petitioner submits that the date of joining of the petitioner has been taken into consideration while preparing the seniority list, therefore, the respondents are directed to re-examine the matter and if the date of joining has been taken into consideration while preparing the seniority list of the LDCs, then the same is required to be corrected by taking into consideration the merit position of the petitioner in the appointment order and if any person, who is junior to the petitioner in the merit as reflected in the appointment order has been given promotion, the case of the petitioner should be considered viz-a-viz that person.

10. In view of the discussion made above, the present writ petition is disposed of with a direction to the respondents to reconsider the case of the petitioner in light of the Rule 285 of the Rules of

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1996 taking into account the merit position of the petitioner in the appointment order while preparing the seniority list of LDC (Junior Assistant) for promotion to the post of UDC (Senior Assistant), within a period of six weeks from the date of receipt of certified copy of this order."

In view of the discussion made above, the present writ petition is disposed of with a direction to the respondents to re-frame the seniority list of the petitioner for promotion to the post of UDC (Senior Assistant) taking into consideration her position in the merit list prepared by the District Establishment Committee at the time of her appointment and not her date of joining/appointment, in accordance with law."

7. Since, this Court has already decided the controversy in the

case of Goverdhan Kumar (supra) holding that the seniority list is

required to be prepared as per merit keeping in mind the

provisions of Rule 285 of the Rajasthan Panchayati Raj Rules,

1996, therefore, there is no reason for this Court to take a

different view than the view taken in the case of Goverdhan

Kumar (supra). Thus, this Court does not find any merit in the

present writ petition. The writ petition, is therefore, dismissed.

(VINIT KUMAR MATHUR),J 20-Shahenshah/-