Point of law: conciliation proceedings or any proceedings under the Industrial Disputes Act were pending and therefore in the middle of the proceedings under the Industrial Disputes Act, the Government had acted and framed the scheme and as such the same was bad and illegal. There were no proceedings pending under the Industrial Disputes Act, 1947

JUDGMENT :

(1) By way of the present writ petition, the petitioners have challenged the action of the respondents in denying them the reservation available under the category of Ex-Servicemen.

(2) The facts relevant for the present purposes, concisely stated are, that the State Government issued a recruitment notification dated 30.12.2015, notifying 178 posts for Driver-cum-Fire Machine Operator, out of which, 22 posts were shown to be earmarked for ex-servicemen.

(3) In pursuance of above notification, the petitioners participated in the selection process. According to the petitioners, having cleared written examination, they were called for driving test, but the same was, however, not conducted and the recruitment process was kept in abeyance.

(4) The process was re-initiated on 22.11.2019, however, with the following stipulation:-

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(5) Petitioners being ex-servicemen are aggrieved with the above condition in the notification dated 22.11.2019, as their right/reservation for the post of Driver-cum-Fire Machine Operator has been taken away.

(6) Learned counsel for the petitioners argued that when the recruitment was set in motion on 30.12.2015, 22 posts for exservicemen were clearly earmarked, hence the subsequent advertisement, which is nothing but a continuation of the earlier process, cannot do away with the seats reserved for exservicemen and petitioners’ vested rights cannot be taken away.

(7) Inviting Court’s attention towards the opening paragraph of the advertisement, learned counsel highlighted that the recruitment in question is governed by the Rajasthan Municipal (Subordinate and Ministerial Staff) Service Rules, 1963 (for short, ‘the Rules of 1963’). He submitted that the respondents have taken these 22 posts out of purview of reservation apparently in light of the amendment brought in various service rules by the notification dated 10.10.2008. He emphatically argued that the amendment in Rajasthan Civil Service (Absorption of Ex- Servicemen) Rules, 1988 (hereinafter referred to as ‘the rules of 1988’) cannot be made applicable to the present recruitment, which is governed by the Rules of 1963.

(8) He emphasized that as a matter of fact the post is “Drivers (Fire)” as prescribed in Clause (H) of Part (A) of the Schedule appended with the Rules of 1963 and hence, firstly the deletion of expression “Driver” by way of notification dated 10.10.2008, issued under the Rules of 1988, does not make any difference as the post in question is “Drivers (Fire)” and not “Drivers” simplicitor.

(9) Learned counsel for the petitioners submitted that Rule 6 of the Rules clearly define the services that are governed by the Rules of 1963. He pointed out that paras E and H of Rule 6 under the heading Motor Garage and Fire Fighting separately prescribes “Drivers (Motor Vehicles)” and Drivers (Fire) and thus, the post in question is covered by para ‘(H)’ of Rule 6(1)(A). According to him, the post Drivers (Fire) is nowhere mentioned in the Rules of 1988, hence, the amendment by notification dated 10.10.2008, deleting the post ‘Driver’ shall have no bearing on the reservation at least qua the post of Drivers (Fire).

(10) In other words, argument of learned counsel for the petitioner has been that unless Rules of 1963 are suitably amended, the applicability of reservation to the extent of 12.5% to ex-servicemen cannot be done away with, particularly when Rule 9(2) of the Rules of 1963 specifically provides for 12.5% reservation to ex-servicemen.

(11) He argued that Rajasthan Municipal (Subordinate Ministerial Service) Rules, 1963 is a special legislation meant for the employees of municipalities, whereas the Rajasthan Civil Services (Absorption of Ex-Servicemen) Rules, 1988 is a general legislation, applicable to almost all the departments of the Government, hence, the provision