Alok Garg vs State of Rajasthan and Others

Veerender Singh Siradhana, J.—This is second round of litigation on behalf of the petitioner wherein he has approached this Court praying for the following relief(s):--

"(i) Give placement, scale, Seniority other financial benefits as are being given to his batch mates of the 1997 and the respondents may also be directed to place the petitioner above the person in seniority who had cleared position No. 53 in 1997 selection batch.

(ii) Apply the old Service Rules prior to 2006 amendment as are applicable to his batch.

(iii) Give back wages to the petitioner from June, 2001 onwards.

(iv) Any other relief to which the petitioner may be entitled to may also be granted in his favour."

Briefly, the indispensable skeletal material facts necessary for appreciation of the controversy raised herein needs to be first noticed. The petitioner successfully participated in the competitive examination conducted by the Rajasthan Public Service Commission, Ajmer (hereinafter referred to as the ''Commission'', for short), for the post of Lower Division Clerk. Name of the petitioner found place at serial number 52 in the merit list, and he was allotted the Law and Legal Affairs Department for placement vide communication dated 20th July, 2001. Later on, the petitioner was directed to appear before the State Consumer Commission on 28th November, 2001. Since, the petitioner was not allowed joining, he moved this Court by instituting SBCWP Number 4445 of 2003, which was decided on 10th October, 2006, directing the respondents to allow joining for which the petitioner was insisting since 2001.

In compliance of the direction, the petitioner was accorded posting and appointment vide order dated 9th February, 2007, with the terms and conditions stipulated therein. Since, the petitioner has been declined placement, scale, seniority and other financial benefits, as accorded to his batch mates of the year 1997; hence, this petition.

In response to the notice of the writ application, the State-respondents have filed their counter affidavit supporting their stand relying upon the notification dated 13th February, 2007 (Annexure-8), amending the Rajasthan Service Rules, 1951 (for short ''Rules of 1951''), by insertion of ''Note (vi)'' below Rule 8, which contemplates appointments of the selectees to be governed in accordance with the amended rules with an exception to the recruitment process, which was completed and appointments were issued prior to 20th January, 2006, except to some of the selectees because of stay orders of Court or any other justified reason. The State-respondents relied upon Rule 30 of the Rajasthan Public Service Commission (Ministerial and Subordinate Service) Rules and Regulations, 1999, which contemplates that inclusion of a candidate''s name in the list confers no right to appointment unless the appointing authority is satisfied, after such inquiry as may be considered necessary, that such candidate is suitable in all other respect for appointment to the post concerned.

The learned counsel for the petitioner reiterating the pleaded facts and grounds of the writ application asserted that the petitioner was denied posting/placement and appointment at the relevant time as a consequence of recruitment process commenced in the year 1997 and concluded in the year 2001, in an illegal and arbitrary manner. The petitioner, therefore, approached this Court whereupon a direction was issued to accord posting and appointment to the petitioner, as would be reflected from the order dated 10th October, 2006.

The respondents having accorded appointment in compliance of the order dated 10th October, 2006, vide order dated 9th February, 2007, are not justified in declining the claim of the petitioner for placement, scale, seniority and other financial benefits as has been accorded to his batch mates of the year 1997. According to the learned counsel, the petitioner is entitled to placement and all other consequential benefits reckoning his place in the seniority, over and above the candidate, who was at position number 53 in the year 1997 selection batch.

It is further urged that a bare perusal of notification dated 13th February, 2007, would leave no room for any doubt that the case of the petitioner is within the exception because the recruitment process was completed in the instant case at hand in the year 2001, much prior to 20th January, 2006. Since the State-respondents on an illegal interpretation of the penalty suffered by the petitioner, declined the appointment to the petitioner, he was compelled to institute the writ proceedings, which resulted into an order in his favour attaining finality, as would be reflected from order dated 10th October, 2006.

The notification made a specific exception with reference to the recruitment process that was completed and appointment orders were issued prior to 20th January, 2006. It has been further provided under the same notification that where the selectees could not be accorded appointment orders for any other justified reason in view of stay orders of the Court; the appointments of remaining selectees will be governed under the provisions of various other rules in force prior to 20th January, 2006. In support of his submissions, learned counsel relied upon the opinion of the Hon''ble Supreme Court in the case of Union of India (UOI) and Others Vs. Parmanand, (1996) 74 FLR 2658 : (1996) 9 JT 544 : (1996) 6 SCALE 657 : (1996) 10 SCC 434 : (1997) SCC(L&S) 104 : (1996) 4 SCR 751 Supp .

I have heard the learned counsel for the parties and with their assistance, perused the materials available on record.

Indisputably, the recruitment process commenced in the year 1997 and concluded in the year 2001. The petitioner was not accorded appointment for on a police verification it was found that petitioner was convicted under Section 13 of the Rajasthan Public Gambling Ordinance on 28th January, 1998 on confession before the Court of Magistrate for playing cards and as a consequence he was fined with Rs. 50/- (Rupees : Fifty Only).

The matter was dealt with by the Coordinate Bench in SBCWP Number 4445 of 2003, decided on 10th October, 2006, in the backdrop of the law declared by the Hon''ble Supreme Court in the case of Pawan Kumar Vs. State of Haryana and another, (1996) 5 AD 1 : AIR 1996 SC 3300 : (1996) 73 FLR 1501 : (1996) 5 JT 155 : (1996) LabIC 1740 : (1996) 2 LLJ 703 : (1996) 4 SCALE 480 : (1996) 4 SCC 17 : (1996) 2 SCR 392 Supp : (1996) 2 SLJ 9 : (1996) 2 UJ 184 . In the result, the writ petition was allowed with a direction to the respondents to allow the petitioner to join his services on the post of L.D.C. In compliance of the directions, the respondents accorded appointment to the petitioner vide order dated 9th February, 2007.

From the pleadings and materials available on record, it is evident that the appointment of the petitioner dates back to the recruitment process initiated in the year 1997 and concluded in the year 2001. Since the petitioner was denied joining in spite of having been declared successful by the Commission, he had to avail of legal remedy under the law.

The amendment introduced vide notification dated 13th February, 2007, as referred to and relied upon by the State-respondents, is the reason for denying the benefits to the petitioner. Rule 8 of the Rules of 1951, as amended vide notification dated 13th February, 2007, reads thus:--

"Rule 8. Notwithstanding anything contained in any rules all appointments in Government service on or after 20.1.2006 shall be made as a probationer-trainee for a period of 2 years and during the period of probation training, he/she will be paid fixed remuneration at such rates as may be prescribed by the Government form time to time. After successful completion of probation training he/she will be allowed minimum pay in the pay scale of the post and the period of probation training shall not count for grant of annual grade increment(s).

Note : In cases where recruitment process has started the following procedure shall be followed by the RPSC/recruiting authority:--

"(i) Where a request of recruitment has already gone to the RPSC/recruiting authority but the RPSC/recruiting authority is still to issue the advertisement or last date of filling application is yet not over: Administrative department may request the RPSC/recruiting authority to ensure that the advertisement is issued in light of the amendment. In cases where advertisements have issued, but last date for filling application is yet not over. In such cases, the RPSC/recruiting authority, both through advertisement and letters, should inform the applicants about the amended rule and give him/her the option of withdrawing from the proposed examination, if he/she, so desired, on a full refund basis (refund of application fee).

(ii) In case where the request of recruitment to the RPSC/recruiting authority has gone and the advertisement has also issued, and last date of filling forms by the candidates is also over: In such cases, the RPSC/recruiting authority, both through advertisement and letters, should inform the applicants about the amended rule and give him/her the option of withdrawing from the proposed examination, if he/she, so desired, on a full refund basis (refused of application fee).

(iii) Where the RPSC/recruiting authority has already conducted the written examination but interviews have not been held: The RPSC/recruiting authority should inform all the interviews in writing of the changed rules and take his/her written acceptance of his/her willingness to appear for continuing to be a candidate in the job, before the interview itself.

(iv) Where the RPSC/recruiting authority has conducted the interviews and made recommendations to the appointing authority: Before issuing the appointment letters, the appointing authority should inform the candidates of the changed rules and obtained his/her consent for being appointed under the new rules before a final letter of appointment is issued.

(v) Where appointment letters have already been issued (prior to issuance of DOP Notifications dated 20.01.2006), the appointments will have to be made under the olds rules.

(iv) where recruitment process was completed and appointment orders were issued prior to 20.1.2006 except to some of the selectees because of stay orders of court or any other justified reasons, appointments of such remaining selectees will be governed under the provisions of the various rules in force prior to 20.1.2006."

Provided that in the case of a Medical Officer, the period of probation training shall be one year instead of two years as they spent one year period in internship."

Be that as it may, by now, it is well settled that any amendment cannot divest the individual of the vested rights. In the instant case at hand, there is no dispute about the fact that the recruitment process was completed in the year 2001, much before 20th January, 2006. However, the petitioner was not allowed joining despite his selection, and therefore, he had to institute writ proceedings before this Court. As a consequence of the direction vide order dated 10th October, 2006, in SBCWP No. 4445 of 2003, he was accorded appointment vide order dated 9th February, 2007.

Clause 5 of the Rajasthan General Clauses Act, 1955, contemplates that any Rajasthan law or any rule, regulation or bye-law made thereunder shall be notified or published and be deemed to be duly made, if it is published in the Rajasthan Gazette. Clause 25 of the General Clauses Act, 1897, reads thus:--

"25. Publication of orders, etc. in Rajasthan Gazette to be deemed to be due publication - Where in any Rajasthan law or any rule, regulation or bye-law made thereunder it is directed that any rule, regulation, bye-law, notification, order, scheme, form or other matter shall be notified or published, then such notification or publication shall, unless such law, rule, regulation or bye-law otherwise provides, be deemed to be duly made if it is published in the Rajasthan Gazette."

In the case of State of U.P. and Others Vs. Mahesh Narain Etc., AIR 2013 SC 1778 : (2013) 137 FLR 316 : (2013) 3 JT 546 : (2013) LabIC 2181 : (2013) 3 SCALE 218 : (2013) 4 SCC 169 : (2013) 2 SCC(L&S) 212 : (2013) 2 SCT 671 : (2013) 2 SLJ 387 : (2013) AIRSCW 2297 , the Hon''ble Supreme Court in no uncertain term held that rules cannot be held to be made effective from the date of their preparation, but will attain legal sanctity, and hence, will be capable of enforcement only when the rules are made effective, and the date on which they are to be made effective would obviously be the date when the rules are published vide the gazette notification. In the instant case at hand, the petitioner was accorded appointment vide order dated 9th February, 2007, in compliance of the order dated 10th October, 2006, in SBCWP Number 4445 of 2003, preferred by the petitioner. It is not in dispute that the recruitment process involved herein commenced in the year 1997, and was concluded in the year 2001, and since then, the petitioner has been pressing hard to join his services, but the respondents did not allow him for the punishment of fine of Rs. 50/- (Rupees: Fifty Only), inflicted for an offence under Section 13 of the Rajasthan Public Gambling Ordinance on 28th January, 1998. The action was ultimately held to be illegal by this Court in earlier writ proceedings i.e., SBCWP Number 4445 of 2003, which have attained finality and were not challenged any further. The order dated 10th October, 2006, passed in the writ application aforesaid reads thus:--

"The controversy arise when the Police verification was conducted and it was observed that the petitioner was convicted under section 13 of the Rajasthan Public Gambling Ordinance on 28.1.98 and on confession before the Court of Magistrate of playing cards, the punishment of fine of Rs. 50/- was awarded.

Since the Law Department refused to allow him to join, the respondent sent the petitioner to the State Consumer Commission for placement as L.D.C. On 28.11.2001 the petitioner was asked to appear before the State Consumer Commission but was not allowed to join his duty on account of conviction and fine under the Rajasthan Public Gambling Ordinance.

The petitioner in support of his submission placed reliance on the judgment of Hon''ble the Supreme Court in the case of Pawan Kumar Vs. State of Haryana and another, (1996) 5 AD 1 : AIR 1996 SC 3300 : (1996) 73 FLR 1501 : (1996) 5 JT 155 : (1996) LabIC 1740 : (1996) 2 LLJ 703 : (1996) 4 SCALE 480 : (1996) 4 SCC 17 : (1996) 2 SCR 392 Supp : (1996) 2 SLJ 9 : (1996) 2 UJ 184 , wherein under the Offence under section 294 IPC, the appellant was sentenced to fine of Rs. 20/- on his pleading guilty and Hon''ble the Supreme Court has held that the conviction of the appellant under section 294 IPC per se would not establish moral turpitude unless the tests laid down in the policy decision are satisfied.

Here, in the instant case also, the petitioner was sentenced to a fine of Rs. 50/- on his pleading guilty. Thus, conviction of the petitioner would not establish moral turpitude and in view of the ratio decided by Hon''ble the Supreme Court, this writ petition stands allowed and the respondents are directed to allow him to join his services on the post of L.D.C. And since 2001, as the petitioner is pressing hard to join his services, the respondents are expected to do the needful expeditiously.

With these observations, the writ petition stands allowed."

By now, it is a well settled law that a litigant cannot be allowed to take advantage of his own wrong, and thereafter, blame the Court. In such a situation, it is duty of the Court to undo the wrong done to a party. The petitioner, in the instant case at hand, aggrieved of the action of the State-respondents in not allowing him to join despite his selection in the process, which commenced in the year 1997, and concluded in the year 2001, compelled him to initiate the writ proceedings (SBCWP Number 4445 of 2003), which ultimately resulted into an order in his favour with a direction to the State-respondents to accord him appointment. The respondents having complied with the order dated 10th October, 2006, made in SBCWP Number 4445 of 2003 (Alok Garg versus State of Rajasthan and Ors.), ought to have extended the benefit on notional basis.

For the reasons and discussions herein above, the writ petition succeeds and is hereby allowed.

The petitioner would be entitled to placement, scale, seniority and other benefits on national basis. However, from the date of joining the petitioner would be entitled to actual monetary benefits according to his merit position with his batch mates of the year 1997 batch.

The respondents are directed to carry out the necessary exercise within a period of three months from the date of receipt of a certified copy of this order.