1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR (1) S.B. Civil Writ Petition No.1045/1997 Ved Prakash Sharma Vs. State of Rajasthan (2) S.B. Civil Writ Petition No. 406/1997 Keshav Kumar Sharma Vs. State of Rajasthan Date of order : 26/8/2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Anand Sharma for the petitioners. Shri S.D.Khaspuria, Additional. Govt. Counsel for the respondents. ****** By the Court: These two writ petitions were filed by the petitioners way back in the year 1997, inter- alia with the prayers that by writ of mandamus the petitioners be held eligible for appointment on the post of Data Entry Operator immediately after they completed their training of the said post in the year 1986 and the respondents be directed to appoint them against the post of Data Entry Operator w.e.f. 17.8.1995, the date on which Smt. Shobha Gupta was given such appointment, with all consequential benefits. 2 Mr. Anand Sharma, learned counsel appearing for the petitioners has argued that the petitioners were working in the office of Director, State Insurance and Provident Fund, Government of Rajasthan, Jaipur, as Lower Division Clerk. Respondents invited applications for appointment on the post of Data Entry Operator from existing LDCs of their Department, who are Graduates and having knowledge of English typing. A notification to this effect was issued by the Department on 1.2.1986, fixing 17.2.1986 as the last date for submissions of applications. Similar notice was issued on 4th September, 1986, requiring the candidates to submit their applications on or before 16th September, 1986. Typing speed test was conducted on 30th October, 1986. Petitioners and other candidates having qualified the typing speed test were required to undergo prescribed training of Data Entry Operator, vide order dated 4th November, 1986. After successful completion of required training, the Department vide order dated 27th January, 1987 posted the petitioners as Data Entry Operators in the Computer Cell. Learned counsel further argued that the 3 Additional Director (Admn.), State Insurance and Provident Fund Department vide letter dated 1st January, 1991 informed the Employees' union that whenever regular recruitment would be held, efforts shall be made to fill up 5 vacant posts of Date Entry Operator. The Additional Director subsequently vide letter dated 9th March, 1994 recommended to the Government in its Department of Finance to upgrade the appointments of the petitioner and one more person working in the Department as Data Entry Operator, keeping in view the fact that about 109 posts were lying vacant with the Department. Surprisingly enough, the respondents vide order dated 15th July, 1997 gave regular posting to one of the candidates, namely Shobha Gupta on the post of Data Entry Operator in the regular pay scale of Rs. 1200- 2050 and did not pass any such order with regard to the petitioners. Fixation of her pay was also made vide order dated 17th August, 1995. Feeling aggrieved by the action of the respondents, the petitioners got served a legal notice for demand of justice through an Advocate and when their grievances were not 4 remedied, they approached this Court under Article 226 of the Constitution of India. Main thrust of argument of the learned counsel for the petitioners is that once the petitioners were subjected to English Tying speed test and having passed the typing speed test they were required to undergo training, which also they successfully completed, they should have been straight-way posted as Data Entry Operator, particularly the respondents themselves had invited applications for such appointment. Instead of doing so, the respondents merely posted the petitioners as Data Entry Operator, while retaining their substantive appointment as L.D.C. which was absolutely illegal. Learned counsel submitted that when petitioners and Smt. Shobha Gupta were simultaneously posted as Data Entry Operator, there was no reason why the petitioners would not be given similar treatment appointing them as Data Entry Operator and why Smt. Shobha alone was picked up for being appointed as Data Entry Operator. It is further contended that Rajasthan Computer State and Subordinate Service Rules, 1992 (for short, “the Rules) were framed in the year 1992 5 and therefore, the provisions contained in the Rules would not have any hurdle in the matter of appointment of the petitioners as Data Entry Operator because at the relevant time there were no rules in force and, therefore, the process for making appointment would be regulated by executive orders. In these circumstances it is submitted that the action of the respondents was discriminatory qua the petitioner and, therefore, violative of Articles 14 and 16 of the Constitution of India. Per contra, Shri S.D. Khaspuria learned Additional Government Counsel appearing for the respondents opposed the writ petition and submitted that the petitioners were merely given posting to work as Data Entry Operator, while they were substantively continuing as L.D.Cs. Before promulgation of the Rules, all the posts of Data Entry Operator were created and treated as isolated and ex-cadre post and the postings of the petitioners and many others against those posts were merely by way of stopgap arrangement. Learned counsel submitted that it was clearly made out from the Government instructions that process for 6 filling up the posts of Data Entry Operator on regular basis would be taken up by the respondents. The recommendations of the Additional Director (Admn) would not make any difference. Learned counsel appearing for the respondents has referred to the provisions of the Rules of 1992 and argued that as per Rule 6 (ii) of the Rules, Screening Committee was constituted and on the recommendations of the Screening Committee, regular appointment as Data Entry Operator was given to Smt. Shobha Gupta and the cases of the petitioners were also placed before the Screening Committee and the Committee found that in the examination that was conducted by the Computer Department, four candidates, namely Smt. Shobha Gupta, Shri Kesav Kumar, Shri Ved Prakash and Shri Suresh Kumar had appeared at the examination for adjudging their suitability but only one candidate Shobha Gupta could qualify such examination and, therefore, name of only Smt. Shobha Gupta was recommended for regular appointment as Data Entry Operation. Both the petitioners were not adjudged suitable for being appointed as Data Entry Operator on 7 regular basis. Learned counsel has produced before this Court copy of the proceedings of the Screening Committee and also made a reference to the document i.e. the order dated 3rd March, 1989 issued by the Director, State Insurance and Provident Fund Department. He has also placed before the Court a copy of the proceedings drawn in the meeting of the Screening Committee held on 2nd June, 1995 so as to substantiate the pleadings in the reply to the writ petition. On the strength of above submissions, learned counsel prayed for dismissal of the writ petition. I have given my anxious consideration to the rival submissions made at the bar. Upon hearing learned counsel for the parties and on perusal of the record, it is evident that the petitioners along with Smt. Shobha Gupta and Suresh Kumar were required to appear in the examination conducted by the Computer Department, but it was only Shobha Gupta who could qualify the said examination and others failed. The petitioners have not at all rebutted the fact as has been categorically mentioned in the reply that they were subjected to screening. It is worthy to note that the 8 writ petitions were filed by the petitioners much after the result of the examination conducted by the Computer Department was declared i.e. in 1989 and even after the result of screening was declared. Surprisingly enough, the petitioners have not made any mention whatsoever of either of the fact. The petitioners have based their claim solely on the basis of the order dated 17th August, 1995 by which Smt. Shobha Gupta was appointed as Data Entry Operator on substantive basis and that too without impleading her as a party to the writ petition. Thus, in my view the argument of the learned counsel for the petitioner that the petitioners were subjected to discrimination has no legs to stand, inasmuch as the respondents had every reason to give substantive appointment to Smt. Shobha Gupta after she was screened and adjudged suitable by the Screening Committee, meeting of which was held after promulgation of the Rules of 1992. Petitioners' cases were also placed before the Screening Committee, but they were not adjudged suitable for valid reasons. It may also be noted that the earlier orders by which the petitioners were required to work as 9 Data Entry Operator were merely posting orders and not the appointment orders. The posts of Data Entry Operator and L.D.C. are completely different in rank and pay scale. It is for that reason that at the time when the Rules of 1992 were promulgated, screening clause was purposely inserted for all those who were working on the post of Data Entry Operator at that time so as to adjudge their suitability. For the reasons aforesaid, both the writ petitions being devoid of merit, are liable to be dismissed and are dismissed accordingly, with no order as to costs. (Mohammad Rafiq), J. thanvi