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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
SANGEET LODHA, MANOJ KUMAR GARG, JJ.
The State of Rajasthan, through the Principal Secretary, Department of Personnel, Secretariat, Jaipur, Rajasthan. - Petitioners
Versus
Ramgopal Verma S/o Shri Mani Ram - Respondents
D.B. Review Petition (Writ) No. 25/2019, 27/2019, 29/2019, 31/2019, 33/2019, 44/2019
Decided on : 20-09-2021
Rajasthan Voluntary Rural Education Service Rules, 2010 - Clauses (ii), (iii), (iv) (v) & (ix) of Rule 5 - Rajasthan Civil Services (Pension) Rules, 1996 - Government servant under Rajasthan Service Rules, 1951 - Rajasthan Civil Service (Revised Pay scale) Rules, 1998 - Rajasthan Civil Services (Revised Pay Scales for Government College Teachers including Librarian and PTI Rules, 2009 - Rajasthan Voluntary Rural Education Service (Second Amendment) Rules, 2012 - Terms and condition for appointment of employees in Government Service - Retirement/ termination of service/death - Appointment of employees in Government Service – Whether Contention of petitioners that amendment made does not make any difference and therefore, by virtue of judgment under review, same has to be treated redundant, cannot be countenanced by this Court - Whether order under review to extent of declaring Rule 5(ix) of Rules of 2010 unconstitutional and declaring respondents entitled to opt for Pension Scheme under Rules of 1996 deserves to be recalled
Findings of the Court - Respondents herein who had prayed for the relief set out in writ petitions as a consequence of Rule 5(ix) of Rules of 2010 being declared unconstitutional, were equally duty bound to inform Court about subsequent amendment - Contention of petitioners that amendment made does not make any difference and therefore, by virtue of judgment under review, same has to be treated redundant, cannot be countenanced by this Court - we are firmly of opinion that order under review to extent of declaring Rule 5(ix) of Rules of 2010 unconstitutional and declaring the respondents entitled to opt for Pension Scheme under Rules of 1996 deserves to be recalled - Since, vires of Rule 5(ix) of Rules of 2010 as substituted vide Amendment Rules, 2012 was not questioned by respondents being oblivion about amendment introduced, in interest of justice
Result: Petitions are allowed
Based on the provided legal document, the following key points emerge:
The court has declared sub-rule (ix) of Rule 5 of the Rules of 2010 unconstitutional because it violates the right to equality under Article 14 of the Constitution of India. This sub-rule previously denied pension benefits to employees of aided institutions appointed prior to the promulgation of the Rajasthan Civil Services (Contributory) Pension Rules, 2005, at par with government employees under the Pension Rules of 1996 (!) (!) .
The court has clarified that employees appointed before the introduction of the Rajasthan Civil Service (Contributory Pension) Rules, 2005, who are covered under the Pension Rules of 1996, are entitled to opt for pension benefits. These employees must deposit the provident fund they have already drawn, with interest, within a specified period, failing which they will lose the benefit (!) .
The court has recalled the order that declared Rule 5(ix) unconstitutional and has emphasized that the subsequent amendment to Rule 5(ix) (which makes employees ineligible for pension and aligns them with the rules governing contributory provident fund) was not considered at the time of the original order. The court has allowed the respondents to amend their petitions to challenge the vires of the amended rule (!) (!) .
The court has reiterated that the earlier decision upholding the vires of Rule 5(ix) was not brought to its notice, and the order under review is to be restored to its original position, permitting the respondents to challenge the vires of the amended Rule 5(ix) (!) (!) .
The court has highlighted the importance of considering the law in force at the time of the order and has pointed out that the order declaring Rule 5(ix) unconstitutional was based on the law as it existed then, not on the amended version (!) (!) .
The court has also discussed the legal principles related to the doctrine of merger, emphasizing that an order dismissing a special leave petition without reasons is not a speaking order and does not attract the doctrine of merger. Conversely, if reasons are provided, the order may be considered a speaking order and could have implications for subsequent proceedings (!) (!) .
The maintainability of review petitions after the dismissal of SLPs by the Supreme Court has been examined. It has been clarified that such review petitions are maintainable unless the order is a detailed, reasoned order that constitutes a declaration of law, in which case the doctrine of merger may apply. In this case, the order was not considered a speaking order, so review is permissible (!) (!) .
The court has noted that the SLPs filed by the State of Rajasthan were dismissed after the Court expressed agreement with the reasoning of the lower court, and the order was not a detailed, independent judgment. Therefore, the order under review does not merge into the Supreme Court's order, and the review petitions are maintainable (!) (!) .
The court has also addressed procedural issues, including the obligation of the parties to inform the court of subsequent amendments and developments in the law, and the importance of considering the law in force at the relevant time (!) (!) .
Finally, the court has ordered that the original petitions be restored, allowing the respondents to amend their petitions to challenge the vires of the amended Rule 5(ix), and directed the refund of deposited provident fund amounts with applicable interest (!) (!) .
These points collectively reflect the court's reasoning and decisions regarding the constitutional validity of the rules, the rights of the employees to pension benefits, and the procedural aspects related to review and appeal processes.
ORDER :
Mr.Sangeet Lodha, J.
1. By way of these petitions, the State of Rajasthan is seeking review of order dated 1.2.2018 passed in D.B. Civil Writ Petition No. 7568/2012 : Raj. Samayojit Shiksha Karmi Welfare Society Vs. The State of Rajasthan & Anr. and other connected writ petitions, by a Coordinate Bench of this Court of which, one of us (Mr. Justice Manoj Kumar Garg) was a member.
2. The facts relevant are that the respondents-writ petitioners filed writ petitions assailing the vires of Clauses (ii), (iii), (iv) (v) & (ix) of Rule 5 of Rajasthan Voluntary Rural Education Service Rules, 2010 (“the Rules of 2010”). The prayer made was that the benefits accruing to a Government servant under Rajasthan Service Rules, 1951 and Rajasthan Civil Services (Pension) Rules, 1996 (“the Rules of 1996”), must be extended to the employees of Non-Government Aided Educational Institutions absorbed in Government service under the Rules of 2010 with consequential benefits. The writ petitioners also prayed that the services rendered by them in Non-Government Aided Educational Institutions should be counted for the purpose of pension and other retiral benefits.
3. Rule 5 of the Rules of 2010, the vires whereof was challenged by the writ petitioners and examined by the Coordinate Bench while passing the order under review, reads as under :-
(i) The employee should possess the requisite educational and professional qualification for the respective posts as per the relevant service rules applicable to the Government servant of similar cadre.
(ii) The posts on which the employees shall be appointed in the Government shall constitute a separate dying cadre for each category of employees.
(iii) The appointed employees shall be posted only in the colleges/schools, as the case may be, in the rural areas on the equivalent posts specified in column number 2 of the Schedule. However, in case there is no such equivalent post in the government, they shall be appointed on other posts carrying the same pay scale of aided posts.
(iv) The employees appointed under these rules shall not be entitled for any promotion till they attain the age of superannuation. However, they shall be allowed benefit of Assured Career Progression/ Career Advancement Scheme as allowed to other employees of the State Government. The period from the date of their appointment on the sanctioned and aided posts would be counted for the purpose of grant of Assured Career Progression/ Career Advancement Scheme.
(v) The posts shall be automatically abolished as and when the posts become vacant for any reason whatsoever i.e. on account of superannuation/ voluntary retirement/ termination of service/death while in service/resignation of the employee etc.
(vi) The salary of all the appointed employees shall be fixed on the basis of the salary as drawn at the time of appointment as per the Sixth Pay Commission with effect from the date they join in the government under these rules. Those who are drawing salary in Rajasthan Civil Service (Revised Pay scale) Rules, 1998, Rajasthan Civil Services (Revised Pay Scales for Government College Teachers including Librarian and PTI) Rules, 1999 and Rajasthan Civil Services revised Pay Scales for Government Polytechnic College Teachers, Librarians and Physical Training Instructors Rules 2001) shall be allowed benefit of Rajasthan Civil Services (Revised Pay) Rules, 2008, Rajasthan Civil Services (Revised Pay Scales for Government College Teachers including Librarian and PTI Rules, 2009 and Rajasthan Civil Services Revised Pay scales for Government Polytechnic College Teachers, Libraria
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