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2010 Supreme(Raj) 172
[Citation : 2011(3) RLW 2405 (Raj.)]
(Rajasthan High Court)
Jaipur Bench
State of Raj. & Anr. Vs. Bajrang Lal Sharma & Ors. (Jain, J.)
HON'BLE NARENDRA KUMAR JAIN, J.
HON'BLE RAGHUVENDRA S. RATHORE, J.
State of Rajasthan & Anr.
Versus
Bajrang Lal Sharma & Ors.
D.B. Civil Special Appeal (Writ) No. 618 of 2009 & 6 Others,
decided on 05.02.2010
Sanjeev Prakash Sharma with Shobhit Tiwari, for Bajrang Lal Sharma & Others;
Ashok Gaur, for Suraj Bhan Meena;
R.C. Joshi, for M.M. Joshi;
S.C. Gupta, for Gyan Prakash Shukla & Anr.;
H.P. Verma, for Sriram Choradia;
G.S. Bapna, Advocate General;
S.N. Kumawat, Additional Advocate General, for State of Rajasthan;
Sushil Sharma, for Union of India;
Sanjay Pareek, for UPSC
Headnote:Service Matters — Reservation in promotion — Rajasthan various Service Rules and Rajasthan Administrative Service Rules, 1954 read with Constitution of India, Art. 16(4-A) — Rules amended through Notifications — Rajasthan Government through Notification provided reservation in promotion to SC/ST Officers in government service — Challenge on the ground of ultra vires — Held — Notification by which the various service rules including those of RAS were modified to adjust the candidates of SC and ST in promotion over and above the available senior candidates from general category, quashed — Declared ultra vires since it takes away vested and accrued rights retrospectively. (Paras 111 to 114)
Writ petition disposed of.
lsok ekeys & inksUufr esa vkj{k.k & jktLFkku fofHkUu lsok fu;e ,oa jktLFkku iz'kklfud lsok fu;e] 1954 lifBr Hkkjr dk lafo/kku] vuq- 16¼4-d½ & vf/klwpuk ds tfj;s fu;e la'kksf/kr fd;s & jktLFkku ljdkj us vf/klwpuk ds tfj;s fu;e la'kksf/kr fd;s & jktLFkku ljdkj us vf/klwpuk ds tfj;s ljdkjh lsok esa vuqlwfpr tkfr@vuqlwfpr tu tkfr ds vf/kdkfj;ksa dks inksUufr esa vkj{k.k fn;k & vf/kdkjkrhr ds vk/kkj ij pqukSfr nh & vfHkfu/kkZfjr & og vf/klwpuk ftlds }kjk jktLFkku iz'kklfud lsok ds fu;eksa lfgr fofHkUu lsok fu;eksa dks] lkekU; Js.kh ls miyC/k ofj"B vH;fFkZ;ksa ls Åij inksUufr esa vuqlwfpr tkfr@vuqlwfpr tu tkfr ds vH;fFkZ;ksa dks lek;ksftr djus gsrq la'kksf/kr fd;s x;s Fks] mUgsa vfHk[kf.Mr fd;k & mUgsa vf/kdkjkrhr ?kksf"kr fd;k D;ksafd ;s Hkwry{kh izHkko ls fufgr ,oa izksn~Hkwr vf/kdkj gVk ys tkrs gSA ¼in la- 111 ls 114½
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2. On 27.7.2009, the said special appeal was listed before the Division Bench presided by the then Hon'ble Acting Chief Justice, and it was directed that appeal be listed on 29.7.2009 alongwith the appeals No.05313/2009, 610/2009, 611/2009 & 612/2009 and writ petition 8157/2009. The above cases were listed on 20.10.2009 and the Division Bench passed an order that, “as suggested and agreed by both the parties, the registry is directed to list the writ petitions as well as the special appeals” (14 in number), as mentioned in the order. Again on 26.10.2009, the Division Bench passed an order to list the cases alongwith the connected matters, as mentioned in the order. Thereafter, the matters were listed on 4.12.2009, and on that date, one of the member of Division Bench made an exception, therefore, the matters were put up before Hon'ble the Chief Justice on 17.12.2009, who constituted this Bench for hearing the above matters as well as other connected matters, as mentioned in the note-sheet of the registry. In these circumstances, these matters have come up before us for hearing.
3. We have heard the learned counsel for the parties and examined the record.
4. Since common questions of fact and law are involved in these matters, therefore, they are being disposed of by this common order.
5. Since the writ petitions as well as special appeals have been tagged together and writ petition No.8104/2008 is the main case, therefore, we are referring the facts of the said writ petition.
6. Petitioners No.1 to 10, who are members of the Rajasthan Administrative Service, have preferred this writ petition under Article 226 of the Constitution of India challenging the Notification dated 25.4.2008 (Annexure-14), whereby the Government of Rajasthan, while exercising powers conferred by the proviso to Article 309 of the Constitution of India, amended the Rajasthan Various Service Rules, (hereinafter referred to as 'the Various Service Rules'), as mentioned in the Schedule appended therewith with effect from 28.12.2002, whereby the following existing proviso to the rule, as mentioned in Column No.3 against each of the Service Rules (110 in number), listed in Column No.2 of the said Schedule, has been deleted:-
“Provided that a candidate who has got the benefit of proviso inserted vide Notification No.F.7 (1) DOP/A-II/96 dated 01.04.1997 on promotion to an immediate higher post shall not be reverted and his seniority shall remain uneffected. This proviso is subject to final decision of the Hon'ble Supreme Court of India in Writ Petition (Civil) No.234/2002 All India Equality Forum vs. Union of India & Others.”
7. The petitioners have also prayed; to issue appropriate writ directing the respondents to strictly adhere to the “catch-up” rule and revise the seniority of all the petitioners in comparison to the candidates belonging to Scheduled Castes and Scheduled Tribes (for short' the SCs and the STs) after giving the benefit of regaining of the seniority by the general/OBC category candidates as envisaged by the Notification dated 1.4.1997 (Annexure-3) and provisional seniority list dated 26.6.2000 of Selection Scale of the RAS (Annexure-4); to restrain the respondents from providing the consequential seniority to the candidates belonging to the SCs and the STs as the Rajasthan Administrative Service Rules, 1954 (hereinafter referred to as 'the RAS Rules) were not framed in pursuance of Article 16(4-A) of the Constitution of India. In t
