Arun Kumar @APPELLANT@Hash State of Rajasthan

At the outset, learned counsel for the parties agree that the matter is covered by judgment of this Court given in the case of Rekha Ram Vs. State

of Rajasthan (S.B. Civil Writ Petition No.7711/2017, decided on 04.12.2017), which reads as follows :-

“ 1. The petitioners have preferred this writ petition under Article 226 of the Constitution of India with the following prayers:

“a. The petitioners be declared entitled for consideration of their candidature as Departmental candidate/Ministerial Employee in Junior Accountant

and Tehsil Revenue Accountant Competitive Exam- 2013;

b. By an appropriate writ, order or direction, therespondents may be directed to accord appointment to the petitioners as Junior Accountant as per

their merit under the Ministerial Employee category in the Junior Accountant and Tehsil Revenue Accountant Competitive Exam â€" 2013 with all

consequential benefits.

c. without prejudice to above, be please to declare thepetitioners being substantive appointee, eligible and entitled for selection to the post of Junior

Accountant under the Ministerial Employee (ME) category as per the provision of law, who applied during the probation period but completed the

same before the date of written competitive examinations;

d. any other appropriate order which is deemed just andproper in the facts and circumstances of the case may kindly be also passed; and

e. the petitioners may kindly be allowed the cost of thewrit petition.â€​

Learned counsel for both the parties admit that thepresent controversy is squarely covered by the judgment rendered by Jaipur Bench of this

Hon’ble Court in S.B. Civil Writ Petition NO.10008/2017; Lokendra Singh Vs. State of Rajasthan & Ors decided on 30.11.2017. The relevant

portion of the judgment reads as under:

“This Court finds that the Division Bench had considered the similar issue which is involved in the present batch of writ petitions. The petitioner in

that case had also participated for the post of Accountant/Junior Accountant/Tehsil Revenue Accountants (TRA) against a direct recruitment quota

by the recruitment process held by RPSC as per the Rajasthan Subordinate Accounts Service Rules, 1963, however, the parent department of the

petitioner where he has working as LDC, did not grant him a certificate that he was substantively appointed. The plea raised by the petitioner was that

his appointment was substantive and cancelling of appointment of petitioner was illegal. The Division Bench had held that an employee should be

treated as holding a post of substantive capacity and if a person is appointed after due selection even on temporary post, it was to be taken that he is

holding the post in substantive capacity.

The Apex Court in the judgment cited by learned counsel for the respondents, Mr. Rajendra Prasad, in AIR 1989 Supreme Court p.38 (Municipal

Corporation of Delhi Vs. Gurnam Kaur), has dealt with the issue where casual expressions are made and how the judgments are treated as

pronouncement of law and which are not part of ratio decidendi and are treated as obiter dicta and are not authoritative.

In the opinion of the Court, the case cited by the learned counsel for the respondents has no application and the Division Bench of this Court has dealt

with the similar issue and it has recorded its finding after considering the entire submissions of both the parties. The Division Bench also relied upon a

DB judgment of this Court in the case of Rajasthan High Court Private Secretaries and Stenographers’ Association Vs. The State of Rajasthan &

Anr. (D.B. Civil Writ Petition No.2705/1988), decidd on 12.12.1988.

The counsel for the respondent RPSC has relied upon the judgment of Punjab & Haryana High Court in the case of Smt. Sunita Devi Vs. State of

Punjab & Anr. (S.B. Civil Writ Petition No.9694/2009) decided on 05.02.2014. The Court in the said case was concerned with the date on which the

eligibility of the candidate who was applicant for a post, was to be considered. The said case cited by the learned counsel for the respondent does not

cover the controversy which the present Court is required to decided about status of the petitioners whether they were holding the post substantively

or not.

In the opinion of the Court, the action of the respondents in treating the petitioners not holding a post of substantive basis is wrong and petitioners have

illegally been deprived from consideration of their cases for appointment against 12.5% posts of Junior Accountant to be filled by direct recruitment

from the Ministerial Staff of the Department of Government. The condition of the respondents that since the petitioners were not confirmed and they

were not holding lien on the post on which they were appointed, is the wrong interpretation of the rules and as such, the petitioners have illegally been

deprived from their fair right of consideration for appointment.

The Court finds that the persons who have undergone the method of making direct recruitment by way of due selection by recruiting agency against

substantive vacancies, cannot be treated as not substantively appointed and merely, if no confirmation order was issued, at the time of filling

applications, such candidates cannot be rendered ineligible for participating against direct recruitment quota for the post of Junior Accountant to be

filled by Ministerial Staff of the deaprtment of government.

In the result, the writ petitions succeed and the respondents are directed to treat the petitioners eligible against 12.5% posts of Junior Accountant in

direct recruitment quota as a Ministerial Staff of the department of government holding a post in the cadre substantively and if the petitioners are

found in the merit and are otherwise suitable, their case may be considered for appointment. The said exercise shall be undertake by the State

Government within a period of one month from the receipt of the cop of this order.

The writ petitions are, accordingly, allowed.â€​

In light of such averments, the present writ petition is allowed on the same termsâ€​.

The judgment aforesaid has been affirmed by Division Bench of this Court in D.B. Civil Special Appeal (W) No. 292/2018 (State of Rajasthan &

Anr. Vs. Rekha Ram & Ors., decided on 05.02.2018), which reads as follows :

“ 1. We find no merit in the appeal.

The respondents were appointed after process of selection was undergone by them to the post of Lower Divisional Clerk in the State of Rajasthan

and services were governed by the Rajasthan Subordinate Offices Ministerial Services Rules, 1999.

The respondents are obviously ministerial employees. 3. The appellants are not treating them as ministerial employees for the reason they are still

probationers and yet to be confirmed.

Whether as probationers or confirmed, the fact ofmatter remains that as per the Rajasthan Subordinate Offices Ministerial Service Rules, 1999, the

respondents have to be treated as ministerial employees for all purposes. The respondents would thus be entitled to apply in the quota of departmental

candidates/ministerial employees for being appointed as Junior Accountants.

The appeal is dismissed.“

In light of the afore-quoted judgments the present writ petition is disposed of with a direction to the respondents to consider case of the petitioner in

the same terms as mentioned in the aforesaid precedent law.