The State of Rajasthan vs Dr. Premlata Purohit

REPORTABLE

By the judgment impugned dated 13.04.2010, learned

Single Bench while accepting S.B. Civil Writ Petition No.2584/2005

directed the respondent-State (appellant herein) to treat the

petitioners (respondents herein) as civil servants with entitlement

to all service benefits as per the Rajasthan Service Rules, 1951

(hereinafter referred to as ''the Rules of 1951'' and the Rajasthan

Civil Services (Pension) Rules, 1996 (hereinafter referred to as

''the Rules of 1996'').

Learned Single Bench, as per learned Additional

Advocate General, failed to appreciate that the appointment of the

petitioners, except petitioners Mrs. Rampyari Bhati and Mr. Narain

Lal Bhoi, were made on the post of "Pracheta" on contractual basis

for a specific term under a project, therefore, they could have not

been treated as civil servants. While referring to Rule 2(iii)(b) of

the Rules of 1951 and Rule 2(e) of the Rules of 1996, it is

submitted that neither the Rajasthan Service Rules nor Pension

Rules of 1996 are applicable to the petitioners. Reliance is also

placed by learned Additional Advocate General upon a Division

Bench judgment of this court in the Rajasthan Subordinate

Employees'' Union & Anr. Vs. State of Rajasthan & Anr. (D.B.

Civil Writ Petition No.6600/1992) decided on 21.01.2013 at

Jaipur to assert that the "Prachetas" working with the Women''s

Development Project cannot be treated as "civil servants".

On the other hand, while opposing the appeal, the

argument advanced by Mr. M.R. Singhvi, learned Senior Advocate,

assisted by Mr. Hukam Singh, is that the appointments to the

petitioners were given as per the provisions of the Rules framed

under proviso to Article 309 of the Constitution of India, being in

employment of State of Rajasthan from more than 2 decades and

further presently being already absorbed in the service of the

Panchayat Raj institutions and also in light of the judgment

rendered by Hon''ble Supreme Court in State of West Bengal &

Ors. Vs. Kaberi Khastagir & Ors. reported in (2009) 1 SCC

(L&S) 566, the petitioners are nothing but civil servants, thus,

learned Single Bench rightly accepted the petition for writ with a

direction to extend all benefits available to civil servants under the

Rules of 1951 and the Rules of 1996 to the petitioners also.

To understand the entire controversy, it shall be

appropriate to narrate and discuss all necessary facts and the

rules applicable.

The Rajasthan Civil Services (Special Selection and Special

Conditions of Service of Project Directors, Project Officers

and Other Officers in the Women''s Development Project)

Rules, 1984 :-

On 2nd October, 1975, the Government of India introduced

Integrated Child Development Services (ICDS) as an Indian

Government welfare programme to provide food, pre-school

education and primary health care to children under 6 years of

age and their mothers. The services under the project aforesaid

are provided from Anganwadi Centers established mainly in rural

areas and staffed with frontline workers. The project also intends

to combat gender inequality by providing girls the same resources

as boys. The project was expanded subsequently to include the

issue of women empowerment in it. The Government of India

desired to have say of women in her day to day life and also to

bring gender equality. As a matter of fact, the project was in

extension to the fundamental rights, fundamental duties and

directive principles enshrined in the Constitution of India. To

execute different schemes under the project, a complete roadmap

was provided by the Government of India, to be implemented

through the State Governments. The Government of Rajasthan at

its own also introduced the Rajasthan Women''s Development

Project. The State Government under the project is empowered to

have necessary staffing for effective implementation of the

schemes in accordance with the objects of the project.

In exercise of the powers conferred under proviso to

Article 309 of the Constitution of India, the Governor framed rules

laying down the procedure for special selection and special

conditions of service for appointment as Project Directors, Project

Officers and other officers in the Rajasthan Women''s Development

Project in the name of the Rajasthan Civil Services (Special

Selection and Special Conditions of Service of Project

Directors, Project Officers and Other Officers in the

Women''s Development Project) Rules, 1984 (hereinafter

referred to as ''the Rules of 1984''). The Rules of 1984 came into

force on 27.09.1984 and are having application to the

appointments of Project Directors, Project Officers, Prachetas and

such other categories of officers as the Government may by order

decide in the Women''s Development Project of the Government of

Rajasthan. As per clause (a) of Rule 3 of the Rules of 1984

"appointing authority" for the post of Project Director and Project

Officers is Government of Rajasthan and for the post of Prachetas

is the Project Director. As per Rule 5, the Women''s Development

Project of the Department of Rural Development and Panchayat

Raj is having 3 categories of posts as specified in Schedule I

appended with the rules to be held on tenure basis or as the

Government may sanction from time to time. The posts under the

project are solely meant for development of women and therefore,

are required to be held by women only. As per Rule 6, the

appointing authority is required to determine yearwise vacancies

for the posts under the Rules of 1984 on 1 st of April of each year.

Rule 7 of the Rules of 1984 pertains to tenure for the posts under

the project and that reads as follows :-

"7. Tenure .- (i) The posts of Project Directors, Project Officers and Prachetas shall be held by an Officer for a tenure ordinarily not exceeding three years which may be extended by the Appointing Authority for further terms not exceeding three years at a time.

(ii) All appointment of Project Directors, Project Officers and Prachetas shall in the first instance be on temporary transfer or deputation from parent department/Service or institution or on contract as the case may be and, for a period of one year which may be extended till the period indicated by Appointing Authority from time to time subject to the condition that such extension shall not be beyond the date of her retirement according to the condition of service of her

parent department service or institution. The officer so appointed shall have right of reversion or lien in their respective parent department, service or cadres or other bodies from which service they are drawn under rule 8 but on such reversion they shall be governed by conditions of service of the department service or institution but so far as Services under the Government of Rajasthan are concerned, service rendered under these Rule shall count for all purposes except that they shall not have any right to protection or pay or scale or status held by them as Project Director/ Project Officer or Pracheta, unless otherwise provided in these Rules:

Provided that a Project Director, Project Officer or Pracheta may on her violation, resign or seek retirement according to the conditions of service of her parent department service or institution will neither confer upon her any right than these ordinarily admissible under the Rajasthan Service Rule 1951."

As per Rule 8 of the Rules of 1984, selection for

appointment to the post of Project Director and Officers in the

project are to be made on recommendations of the committee

referred in Rule 10 from amongst the persons mentioned in

column 3 of Schedule I, who hold lien or who have been appointed

on regular basis otherwise than in adhoc, stop gap or fortuitous

basis on a post either under the Government or the Government

of India, Universities (including Deemed Universities) or

Government controlled or a Government aided or recognized

teaching Schools, College or Research Institute or Public Sector

Undertaking or any other State Government or Government

Controlled body. As a consequence to subsequent amendments,

the persons working with NGOs too were declared entitled to be

employed under the Rules of 1984.

Rule 9 pertains to eligibility for selection and Rule 10

relates to composition of selection committee. The criteria for

selection as per Rule 11 of the Rules of 1984 is an interview with

regard to aptitude for work in rural development, particularly for

programmes of women''s development, personality and character,

tact, intelligence, energy, integrity, previous record or service and

past experience.

Rule 12 provides a complete procedure for selection

and appointments are required to be given as per Rule 13 from

amongst the persons included in the list prepared under sub-rule

ii) of Rule 12 by the appointing authority in order of merit.

Rule 14 empowers the appointing authority to make

appointments on urgent temporary basis pending regular selection

process.

Rule 15 of the Rules of 1984 pertains to pay and other

conditions applicable for the Project Directors, Project Officers

including Prachetas and that is as follows :-

"15. Pay and other conditions - (i) The scale of pay and initial pay admissible to Project Directors, Project Officers, Prachetas and other officers who may be included in these Rules and other conditions relating to increase in pay on promotion in the parent cadre and retirement benefits shall be as laid down in Schedule-II and shall be such as may be sanctioned by the Government with the concurrence of the Finance Department from time to time.

(ii) The conditions of contract and deputation of Office other than Rajasthan State Government servants shall be such as may be agreed by the Government and the parent authority or the officer concerned.

(iii) Except as provided in these Rules, other Service conditions of the Project Directors, Project Officers and Prachetas shall be regulated by other Rules applicable to officers of the State Government made by the appropriate authority under the proviso to Article 309 of the Constitution of India and for the time being in force."

Schedule I appended with the Rules of 1984 prescribes

scales of pay and other eligibility to be considered for appointment

on the posts prescribed.

Schedule II mentions about the conditions of pay,

promotions and other conditions of service. As per clause 3 of

Schedule II, if the person concerned retires while holding the post

of Project Director, Project Officer and Pracheta, her emoluments

for the purpose of calculating pension, gratuity under Rule 250 (C)

of the Rules of 1951, shall be taken at what she would have been

entitled to, had she not been appointed as Project Director, Project

Officer and Pracheta.

Worthwhile to notice here that Rule 2(b) of the Rules of

1951 and Rule 2(e) of the Rules of 1996, as per learned Additional

Advocate General, excludes application of the Rules aforesaid qua

the petitioners, thus, it would be appropriate to quote the same,

which are as follows :-

Rule 2(iii)(b) of the Rules of 1951 :

(b) Notwithstanding anything contained in sub clause (a) these rules shall also apply to the persons initially appointed to such posts or services on the basis of contracts entered into but subsequently appointed in regular manner in respect of counting of contract service as qualifying service for the purpose of pension. The contracts service followed by regular appointment shall count as qualifying service for the purpose of pension if no contribution towards Contributory Provident Fund for the period of contract service has been paid by the Government. In cases where contribution towards Contributory Provident Fund has been paid by the Government, contract service would count for the purpose of pension if the concerned employee deposits in the general revenues of the State, the entire amount of contributions paid by the Government together with interest thereon @7% per annum for the period from the date of payment of contribution to the date of deposit in the general revenues of the State.

Rule 2(e) of the Rules of 1996 :

Application : Save as otherwise provided in these rules, these rules shall apply to Government servants appointed to Civil services and posts in connection with the affairs of the Rajasthan State which are borne on pensionable establishments, but shall not apply to -

(a) ......

(b) ......

(c) ......

(d) ......

(e) persons employed on contract except when the contract provides otherwise;

Facts pertaining to the petitioners :- The petitioners, except

Mrs. Rampyari Bhati and Mr. Narain Lal Bhoi, were employed as

"Pracheta" in between the year 1985 and 1990 after qualifying the

process of selection as per the Rules of 1984. From the date of

initial appointment, these petitioners are getting regular pay scale

as prescribed and that was also revised from time to time with

other Government servants of the State of Rajasthan. In light of

the Rules of 1984, the petitioners, who are holding the post of

Pracheta, also availed leaves and other benefits as per the

provisions of the Rules of 1951. Petitioners Mrs. Rampyari Bhati

and Mr. Narain Lal Bhoi are holding the post of Class 4 employee

and they too are getting regular pay scales from the date of their

initial appointment. The appointments to these petitioners were

also given in the year 1985.. These petitioners also availed

regular pay scales and other service benefits as per the provisions

of the Rules of 1951. Pertinent to mention that the Government

of Rajasthan under an order dated 22.07.1986 clarified that the

employees of the Women''s Development Project shall be entitled

to have benefits at par with other employees relating to

Contributory Provident Fund or the State Insurance. Accordingly,

necessary deductions in this regard were made from their pay.

Not only this, the Government of Rajasthan allowed them

Selection Grades on completion of 9, 18 and 27 years of service.

By the 73rd Constitutional Amendment, Part 9

containing Articles 243, 243-A and 243-O was inserted in the

Constitution of India with an object to strengthen democracy and

democratic values at grassroot level. By insertion of Part 9,

constitutional status was given to Panchayat Raj institutions. As

per Article 243-G, subject to the provisions of the Constitution,

the legislature of a State may by law endow the Panchayats with

such powers and authority as may be necessary to enable them to

function as institutions of self-government and such law may

contain provisions for devolution of powers and responsibilities

upon Panchayats at the appropriate level with respect to

preparation of plans for economic development and social justice

and also for implementation of schemes for economic

development and social justice as may be entruested in relation to

the matters listed in 11 th Schedule. Entry No.25 of the 11th

Schedule pertains to women and child development. The

Government of Rajasthan in light of the constitutional provisions

referred above handed over the entire Women''s Development

Project to the Panchayat Raj Institutions under an order dated

30.06.2003. Necessary details with regard to execution of

different schemes for women and child development were also

notified by the Panchayat Raj Department of the Government of

Rajasthan under an order dated 19.07.2003. As per the order

aforesaid, the powers with regard to have disciplinary action

against the Prachetas and other officers is given to the officers of

the Panchayat Raj Department with all other administrative

authorities including drawing and disbursing budget.

As already stated, the appointments under the Rules of

1984 are tenure appointments, but all the petitioners, though

were employed on tenure basis, are allowed to continue in service without any break till today or till the date of their retirement on

attaining the age of superannuation.

The Grievance of the petitioners and the judgment

impugned :- The petitioners after serving with Women''s

Development Project for several years demanded pension and

post retiral benefits from the Government of Rajasthan, but the

same were not allowed by treating them as the persons working

against tenure posts and by not treating them as civil servants.

Aggrieved by the same, they approached writ Bench of this court

to have a direction for the respondent-State to apply the Rules of

1996 for the grant of pension, gratuity, leave encashment,

commutation of pension etc. Learned Single Bench after

considering the claim of the petitioners held as under :-

"In the above judgment in Uma Devi''s case, the apex Court gave clear directions to the State Government for regularization of the employees working on daily wages, casual and temporary basis, then, the case of the petitioners is on better footing because they were appointed under the Rules of 1984 promulgated while exercising power conferred under proviso to Article 309 of the Constitution of India, but their appointment was tenure based and unlimited and to come to end upon attaining the age of superannuation. Relevant rules are the Rules of 1984 and we are now running in the year 2010; meaning thereby, for last 26 years Women and Child Development Project is going on and, obviously, till the community of mankind survives need of the Project shall persist. Therefore, merely by terming a State function as "Project" it does not divest the civil function executed by it of permanent status having

gained by it through continuity warranting prolonged services of employees recruited and appointed under the rules framed under Article 309 of the Constitution of India. I am, therefore, of the opinion that if appointment in the service is made under the rules, then, even though initially appointed on tenure basis, prolonged continuity in service endows permanent status to the services of the petitioners and petitioners cannot be treated as temporary or on deputation nor can they be denied the service benefits including pension, gratuity and other retiral benefits upon attaining the age of superannuation. From the judgment of the Hon''ble Supreme Court rendered in the case of State of West Bengal Vs. Kaberi Khastagir & Others, (2009) 1 SCC (L & S) 566, it is clear that though the Central Government funded the project but, at the same time, implementation of the project was left to the State Government, therefore, the State Government while performing the duty cast upon it framed the Rules of 1984 in exercise of power conferred under Article 309 of the Constitution of India in which complete process for appointment was provided. As per Article 309 of the Constitution of India, rules can be framed for regulating the service conditions of the State Government employees. Admittedly, Rules of 1984 were promulgated while exercising power conferred by proviso to Article 309 of the Constitution. Language of Article 309 of the Constitution of India is as follows :

"309.Recruitment and conditions of service of persons serving the Union or a State.- Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate 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 :

Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act."

In the case of State of West Bengal & Others Vs. Kaberi Khastagir & Others (supra), Hon''ble apex Court has decided the controversy with regard to status of the employees who were appointed under the rules framed under proviso to Article 309 of the Constitution of India to implement the scheme and project framed and funded by the Central Government.

In this view of the matter, once liberty has been given by the Central Government after framing scheme for women and child development to the State Government for making recruitment for implementation of the project and while performing the duty cast in the scheme the State Government has chosen to frame rules in exercise of power conferred under proviso to Article 309 of the Constitution of India, then, obviously the employees appointed under the Rules of 1984 are

civil servants and they are required to be treated at par with the regular government servants. Therefore, such employees are very much entitled to get all the service benefits like regular government servants."

Being aggrieved by the findings arrived, this appeal is

preferred. As already stated, the case of the appellant-State is

that the petitioners being employed on tenure basis and also in

light of Rule 2(iii)(b) of the Rules of 1951 and Rule 2(e) of the

Rules of 1996 are not entitled for the relief granted by learned

Single Bench. To substantiate the contention, learned Additional

Advocate General placed reliance upon the judgment rendered by

Division Bench of this court at Jaipur in Rajasthan Subordinate

Employees'' Union & Anr. Vs. State of Rajasthan & Anr. (supra).

Learned Additional Advocate General also placed reliance upon

other Division Bench judgment of this court in Smt. Pushpa

Lodha Vs. State & Ors. (D.B. Civil Special Appeal (Writ)

No.1220/2000) decided on 09.04.2010.

Heard learned counsel. At the threshold, we would like

to state that the judgment rendered in the case of Rajasthan

Subordinate Employees'' Union (supra) is having no application in

the present controversy. The petitioners in that matter were

employed on contractual basis, that too on recommendation made

by the placement agencies. Their appointments were not made

under the Rules, hence, the court held that they can''t be treated

as civil servant.

The law laid down in the case of Pushpa Lodha (supra)

too is having no application in the instant matter as that was the

case pertaining to termination of the employees immediately after

expiry of their second tenure of service. Those were the persons

who were discontinued from service on completion of maximum 6

years of service in the year 1992. In the case in hand, the

petitioners are the persons who were employed with the

appellant-respondent in between the year 1985 to 1990 and are

either yet serving the appellant or have retired from service on

attaining the age of superannuation as per the Rules of

1951/Rules of 1996. The issue involved, thus, is required to be

examined at its own merits.

The respondent-petitioners, except the respondent

No.7 and 18, were employed with the appellant-respondent in

accordance with the Rules of 1984. The Rules of 1984 were made

by the Governor of Rajasthan exercising powers under proviso to

Article 309 of the Constitution of India. Article 309 of the

Constitution of India empowers the appropriate legislature to

regulate the recruitment and conditions of service of persons

appointed to public services and posts in connection with the

affairs of the Union or any State. The appointment of the

petitioners being made under the Rules framed under the powers

conferred by Article 309 of the Constitution of India is sufficient

enough to hold that the petitioners are the persons employed with

public service on a post in connection with the affairs of the State

of Rajasthan. True it is, Article 309 of the Constitution of India or

proviso thereto nowhere used the term "civil service" or "civil

servant", but the employment for public service on a post in

connection with the affairs of State is an important aspect to

determine nature of the service, as to whether that is a civil

service or not. The terms "civil service" and "civil posts" are

referred in Article 310 of the Constitution of India, that keeps

tenure of office of every person, who is a member of civil service

or a holder of civil post under the pleasure of the President of

India or the Governor of any State, as the case may be. Article

311 of the Constitution of India checks the pleasure given under

Article 310 of the Constitution of India qua the members of civil

service and holders of civil posts under the Union or the State, as

the case may be. Under the Rules of 1984, the protection as

given under Article 311 of the Constitution of India is extended to

the persons employed therein by application of the Rajasthan Civil

Services (Classification, Control and Appeal) Rules, 1958

(hereinafter referred to as ''the Rules of 1958''). Pertinent to notice

here that it is not simple adoption of the Rules of 1958 to have a

procedure for disciplinary action, but as per sub-rule (2) of Rule

15 of the Rules of 1984, it is application of all laws made under

Article 309 of the Constitution of India or proviso thereto in

relation to the fields which are not covered under the Rules of

1984. On examination of the entire scheme of the Rules of 1984,

it is apparent that though the posts prescribed are having tenure,

but a person appointed under the Rules of 1984 may be allowed to

continue in service till attaining the age of superannuation. The

rules also ensures a fair process of selection by considering

candidature of eligible persons by a definite criteria. The service

conditions of the persons employed other than the conditions

prescribed under the Rules of 1984 are required to be settled by

the other rules framed under proviso to Article 309 of the

Constitution of India for the time being in force. Meaning thereby,

the discipline and other services conditions such as the age of

superannuation, pay, leave etc. are required to be determined as

per general supplementary Rules, i.e. the Rules of 1951, the Rules

of 1996 and the Rules of 1958.

This statutory background clearly indicates that the

respondent-petitioners are holding a public post in connection with

the affairs of the State, they are also having protection meant for

the members of the civil services and are also getting their other

service conditions except post retiral benefits by the Rules

applicable for other civil servants of the State, as such, they are

nothing but civil servants of the State of Rajasthan.

So far as the exclusion provisions pointed out by

learned Additional Advocate General under the Rules of 1951 and

the Rules of 1996 are concerned, those are not causing any

impediment for the respondent-petitioners. At the first instance, it

would be appropriate to mention that the Rules of 1984 nowhere

treat the persons appointed thereunder as contractual employees.

The Rules simply provides "tenure" of service. The appointment of

a specific tenure ipse dixit does not include the term "contractual

appointment" in it. The scheme of the Rules of 1984, as a matter

of fact, provide a tenure to hold a civil post, which at the

discretion of employer may extend till the date the employee

concerned retires from service on attaining the age of

superannuation.

Irrespective of that, for the sake of argument, even if it

is assumed that the appointment of the respondent-petitioners

was/is contractual, then too clause (b) of Rule 2(ii) of the Rules of

1951 takes care of such contract service, if followed by regular

appointment. In the case in hand, as already stated, all the

petitioners have already been absorbed in the service of

Panchayat Raj Department, therefore, the application of the Rules

of 1951 cannot be denied.

The law laid down by Hon''ble Apex Court in the case of

State of West Bengal & Ors. Vs. Kaberi Khastagir & Ors. (supra)

strengthens the view taken by learned Single Bench, to which are

inclined to uphold. In the case aforesaid, the Apex Court noticing

that the recruitment for the post of Supervisors of ICDS were

made in exercise of the powers conferred under Article 309 of the

Constitution of India, the State Government granted Government

scales of pay and other service conditions as per the rules and the

budget of the scheme was in extension to the constitutional goals,

held that the project employees are employees of the State

Government, thus, are entitled to have the same service

conditions as applicable to the civil servants of the State of West

Bengal. The same is the position here. The respondent-

petitioners, as already discussed, are also working for the State to

achieve constitutional goals, they were also employed as per the

Rules framed under proviso to Articles 309 of the Constitution of

India, they too are getting regular pay scales and the other

service conditions, except the service conditions referred under

the Rules of 1984, are also governed as per the Rules framed

under Article 309 of the Constitution of India. The case of the

respondent-petitioners, thus, is squarely covered by the law

enunciated by the Apex Court in the case referred above.

In result, we are having no hesitation in affirming the

findings arrived by learned Single Bench. Accordingly, the appeal

is dismissed. The respondent-State is directed to release pension

and other retiral benefits to the petitioners, who have already

retired from service, within a period of three months from today.