Richhpal Singh vs State of Rajasthan

Instant appeal has been filed against order of the ld. Single Judge dt. 10.05.2006.

The facts which are relevant for our consideration and disposal of the instant appeal are that the present appellants who are three in number, initially joined service on the post of Cattle Guard and were temporarily absorbed/adjusted against the post of Forest Guard vide order dt. 24.04.1998 but when the matter was considered by the Absorption Committee for their final absorption on the post of Forest Guard, it revealed that under the circular issued by the State Government dt. 26.03.1998, an administrative decision was taken for absorption to the post of Forest Guard, the minimum qualification must be Secondary Examination and since either of the appellant was not holding the secondary qualification which was contemplated under the circular issued by the State Government and they being temporarily adjusted/absorbed on the post of Forest Guard, all the three appellants were repatriated back to their substantive post of Cattle Guard vide order dt. 30.07.1998, which was subject matter of challenge in the writ petition before the ld. Single Judge and that came to be dismissed vide order impugned dt. 10.05.2006 primarily on the premise that the appellants were absorbed on temporary basis on the post of Forest Guard vide order dt. 24.04.1998 and either of them was not holding minimum qualification of secondary examination for absorption on the post of Forest Guard, in terms of the circular dt. 26.03.1998, as such, there appears no error being committed in repatriating them back to their substantive post of Cattle Guard.

Counsel for petitioners-appellants submits that indisputably, from the material which came on record, all the three appellants were holding minimum qualification of middle pass which was the requirement under the scheme of Rules at the relevant time and the post of Forest Guard is included in the schedule appended to the Rajasthan Forest Subordinate Service Rules, 1963 and at that time they were temporarily absorbed on the post of Forest Guard vide order dt. 24.04.1998 and when the subsequent order, repatriating them back to their substantive post of Cattle Guard dt. 30.07.1998 came to be passed, under the scheme of Rules, the minimum qualification was "middle pass" and the amendment has been made under the schedule appended to the scheme of Rules vide notification dt. 21.06.2010 and "Middle Pass" has been substituted with the expression "Secondary or its equivalent qualification for a recognized Board" and submits that the minimum qualification could not be substituted by administrative decision for the post of Forest Guard, as contemplated under the statutory Rules, 1963 and submits that in the light of the scheme of Rules, as existing on the date of passing of order by the concerned authority dt. 30.07.1998, the very reason assigned on the basis of which they were not considered for absorption is arbitrary and violative of Art. 14 of the Constitution of India.

It is informed to the court that the appellants are still working on the post of Forest Guard because of the interim orders passed by the court.

Counsel appearing on behalf of State Government, while supporting the order of ld. Single Judge was unable to dispute as regards factual position of scheme of Rules, 1963 is concerned but submits that the circular which came to be issued by the State Government dt. 26.03.1998 laying down "secondary examination" as minimum qualification, which was never subject matter of challenge, as such no error was committed by the State Government in passing the order dt. 30.07.1998 rejecting the candidature of the appellants for permanent absorption. In addition, it is submitted that the post of Forest Guard is to be filled 100% by direct recruitment and the appellants have been adjusted on the post of Forest Guard without following the procedure, as contemplated under the scheme of Rules and if any error has been committed by the State Government in passing the order of permanent absorption in the case of other incumbents, who were not holding the minimum qualification, as notified under the circular dt. 26.03.1998, at least no right could be claimed of the present appellants.

We have heard counsel for the parties and with their assistance perused the material available on record.

The post of Forest Guard is included in the schedule appended to the Rajasthan Forest Subordinate Service Rules, 1963, is to be filled 100% by direct recruitment and initially at the time when the post was included in the schedule appended to the scheme of Rules, "middle pass" was the minimum qualification and that came to be substituted vide notification dt. 17.02.1982 and indisputably it has been substituted vide notification dt. 21.06.2010 holding secondary examination and from February, 1982 till the later amendment made in June, 2010, "middle pass" was the minimum qualification to hold the post of Forest Guard and this factual position, counsel for respondent is unable to controvert. However, the submission made that in terms of circular dt. 26.03.1998, "secondary pass" became minimum qualification for the post of Forest Guard, in our considered opinion, is without substance for the reason that statutory scheme of Rules could not be substituted by administrative decision and when the amendment has taken place vide notification dt. 21.06.2010, such of the incumbents including the present appellants, who are indisputably holding the minimum qualification for the post of Forest Guard could not have been absorbed for their final absorption keeping in view the circular dt. 26.03.1998, such action of the respondents could not be countenanced by this court.

So far as the other submission made by counsel that the post of Forest Guard is to be filled 100% by direct recruitment unless absorption is permissible under the law, in our considered opinion is without substance for the reason that as regards absorption is concerned, it is not provided under the scheme of Rules, 1963 and is always to be considered under the Rajasthan Civil Services (Absorption of Surplus Personnel) Rules, 1959 which is in addition to regular mode of recruitment to the posts and apart from it once the decision has been taken by the State Government to absorb such of the Cattle Guards who hold the minimum qualification of the post of Forest Guards and obviously holding substantively the post of Cattle Guard and such of the incumbents who were holding the post of Forest Guard after being absorbed in service became member of service Rules, 1963, in our considered opinion, other incumbents like present appellants who too hold the minimum qualification and temporarily absorbed on the post of Forest Guard, provided under the scheme of Rules, 1963, could not have been deprived from their fair right of consideration and rejecting their candidature for being considered to the post of Forest Guard on the ground that they are not holding the minimum qualification of "secondary pass" is not legally sustainable in the eye of law.

Consequently, the instant appeal stands allowed. The order of ld. Single Judge dt. 10.05.2006 so also rejection of candidature of appellants from permanent absorption dt. 30.07.1998 is hereby quashed and set aside. The respondents are directed to now consider the candidature of the respective appellants for their absorption alike others, referred to in the order dt. 24.04.1998 and appropriate orders be passed within three months with all consequential benefits flowing thereto.

It is informed that other similarly situated Cattle Guards, who were temporarily absorbed in the first instance by order dt. 24.04.1998 did not approach this court, after rejection of their writ petition. It is expected from the State Government to consider the candidature of such like other persons, who have been left out and such of the Cattle Guards holding minimum qualifications prescribed under the Scheme of Rules, 1963 without resorting to the circular dt. 26.03.1998 and such benefit be also extended to them as well. No costs.