RAJESH KUMAR Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS cluster of appeal and petitions seek to invoke the extraordinary writ jurisdiction of this Court chiefly to annul the Rajasthan Rural Development and Panchayati Raj State and Subordinate Service Rules, 1998 (for short, hereafter referred as '1998 Rules'), the amendments inter alia to Rules 14 and 23 thereof occasioned by the Rajasthan Rural Development and Panchayati Raj State and Subordinate Service (Amendment) Rules, 2013 (for short, hereafter referred to as '2013 Rules') and corresponding clauses of the advertisement dated 25.3.2013 in conformity therewith. A broad spectrum of assailments has been projected encompassing the aspects of upper age limit and academic qualifications as conditions of eligibility and grant of weightage on experience of identified posts by way of bonus marks having the potential of excluding a host of candidates who claim themselves to be otherwise eligible to participate in the process of recruitment to the post of Junior Engineer in the Rajasthan Subordinate Service under the Rural Development and Panchayati Raj Department of the State.

(2.) WE have heard Mr.Sandeep Taneja, Mr.S.S.Shekhawat, Mr.Tarun Choudhary, Mr.Sandeep Maheshwari, Mr.Raj Kumar Goyal, Mr.Tanveer Ahmed, Mr.Vijay Pathak, Mr.Gaurav Sharma, Mr.Arvind Sharma, for the petitioners and Mr. S.K. Gupta, Additional Advocate General assisted by Mr.Gaurav Tanwar for the State.

(3.) MR .Taneja, leading the arguments on behalf of the petitioners, has urged that in the face of the Rajasthan Panchayati Raj Act, 1994 (for short, hereafter referred to as 'Act 1994') and the Rajasthan Panchayati Raj Rules, 1996 (for short, hereafter referred to as '1996 Rules') framed thereunder, the 1998 Rules formulated in exercise of powers under Article 309 of the Constitution of India, pertaining to the areas already occupied thereby (Act 1994 and 1996 Rules), is clearly non est and is liable to be adjudged invalid and void ab initio. Referring to Article 309 of the Constitution of India, the learned counsel has urged that the 1998 Rules, in the teeth of the Act 1994 and 1996 Rules, dwelling on the same domain is wholly incompetent. According to Mr.Taneja, rules regulating the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State, as the case may be, is comprehended, only in absence of an Act of the appropriate Legislature or any provision made thereunder and thus, the 1998 Rules flies in the face of Act 1994 and Rules 1996 framed thereunder, rendering it non -existent in law. Referring to Section 89 of the Act 1994 constituting the Rajasthan Panchayat Samiti and Zila Parishad Service and delineating, amongst others, the method of recruitment to various posts therein, in conjunction with Rules 258 to 277 under Chapter XII of the 1996 Rules, the learned counsel has insistently argued that the same do exclude the 1998 Rules framed subsequently, so far as the same pertain to the common field of operation. Adverting to, in particular, Rule 259(5) of the 1996 Rules providing for filling up of the posts of Junior Engineers in the concerned services inter alia by direct recruitment, as per the procedure prescribed by the 1998 Rules, Mr.Taneja has emphatically pleaded that it is a clear instance of legislative maneuvering, impermissible in law thus, rendering the impugned advertisement, designed thereon, to be essentially invalid. As the 1998 Rules has neither any legal status nor existence, in the face of the Act 1994 and the 1996 Rules, incorporation of the provisions thereof for the purpose of direct recruitment to the post of Junior Engineer in the concerned service, is an act of legislative indiscretion, he urged. He insisted that as the 1998 Rules qua the Act 1994 and 1996 Rules is for all intents and purposes non -existent, the provisions thereof could, by no means, have been incorporated in any of the provision of the 1996 Rules. According to Mr.Taneja, the process of direct recruitment to the post of Junior Engineer in the service as per 1998 Rules, is thus legally inconceivable. Defining the amendment to Rule 259(5) of the 1996 Rules enjoining direct recruitment to the posts of Junior Engineers as per the procedure prescribed under the 1998 Rules, to be a piece of legislation by reference, the learned counsel has urged that in the event of the 1998 Rules being adjudged to be invalid and non est, the impugned advertisement dated 25.3.2013 and the process initiated thereby would stand annihilated as well. To buttress his pleas, Mr.Taneja has placed reliance on the decisions of the Apex Court in State of Tamil Nadu V. M/s. Hind Stone AIR 1981 SC 711, Rajasthan State Road Transport Corporation, Jaipur Vs. Smt.Poonam Pahwa and Ors. AIR 1997 SC 2951 and A.B.Krishna and Ors. Vs. State of Karnataka, AIR 1998 SC 1050.