1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : O R D E R : S.B. Civil Writ Petition No.2584/2005. (Dr. Premlata Purohit & Others Vs. State of Rajasthan & Others) DATE OF ORDER : April 13th, 2010 P R E S E N T HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS __________________________________________ Reportable Mr. M.R. Singhvi for the petitioners. Mr. Durga Ram, Government Counsel. BY THE COURT : By this joint writ petition, employees of Woman & Child Development Department of Government of Rajasthan, Jaipur are seeking the following relief : “(i) the petitioners may be declared as civil servants and may be granted all consequential benefits; (ii) it may further be held that the Rules of 1996 are applicable to them and they are entitled for all benefits under the Rules of 1996 by way of granting them pension, gratuity, leave encashment, commutation of pension, etc. etc.; (iii) the petitioners may also be granted the benefit of selection scale and the arrears arising therefrom may also kindly be granted along interest @ 24% per annum; (iv) the State Government may be 2 directed to provide at least two avenues of promotion so that the Government is able to get the proper services from the petitioner; and (v) any other appropriate writ, order, or direction, which this Hon'ble Court may deem fit in favour of the petitioner, may also kindly be granted in the interest of justice.” As per facts of the case, it is jointly prayed by the employees of the Woman & Chief Development Department, Jaipur that the Hon'ble Governor, in exercise of powers conferred by proviso to Article 309 of the Constitution of India, made the rules known as 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 (in short, to be called hereinafter as “Rules of 1984”). After publication of the said rules, the petitioners were selected as per procedure laid down in the Rules of 1984 on the posts of Pracheta and Class IV. The detail of qualifications of the petitioners is mentioned in Schedule-A annexed to the writ petition. The case of the petitioners is that all the petitioners were provided appointment in particular pay- scale and they are still continuing on the said posts. It is specifically averred in the writ petition that petitioner 3 No.1 was appointed temporarily in the pay-scale of Rs.1140-2250 after following procedure laid down in the rules; and, further she was directed to undergo training and after acquiring training a certificate certifying that she has undergone the training was issued. Petitioners No.2 to 9 were also appointed in regular manner in accordance with Rules of 1984. Out of all the petitioner, two petitioners namely, Ram Pyari and Narayan Lal Bhoi are working on Class IV employees. In the writ petition, it is stated that all the petitioners were allowed benefit of revised pay-scale and other benefit of selection grade and regular increments which is provided to regular government employees as per the RSR. The petitioners were appointed as per tenure provided in the Rules and, from time to time, their tenure has been extended; but, the respondent State is not treating the petitioners as “civil” servants, therefore, the petitioners are still working on their respective posts on tenure basis which is extended from time to time. While inviting attention towards the above facts, it is contended that although service benefits like revision of pay scale, grant of increments and selection grade has been made applicable but the respondent State is 4 not treating the petitioners as government servants for all purposes because they were provided appointment on tenure basis under the Rules promulgated under proviso to Article 309 of the Constitution of India. In the writ petition, it is mentioned that after 73rd amendment in the Constitution, constitutional status was given to the Panchayat Samitis and Eleventh Schedule was appended to the Constitution of India. The State Government through Panchayat Raj Department, in view of 73rd amendment in the Constitution of India, issued communication dated 27.06.2003 addressing all the CEOs of the Zila Parishads of the State annexing order of the Government dated 19.06.2003, by which, Woman Development Agency was ordered to be merged with the Zila Parishads and, accordingly, persons like the petitioners who were working as Pracheta and on other posts were placed under the control of Chief Executive Officer of respective Zila Parishad; meaning thereby, the petitioners' services came to be transferred to respective Zila Parishad and so far as the Zila Parishads are concerned their employees are always treated as government servants and RSR is applicable to them. The State Government issued a circular dated 5 25.01.1992, whereby, the Government provided selection scale to the employees on completion of 9, 18 and 27 years of service and the said circular was also made applicable in respect of the employees named in the office order dated 30.03.1996. It is also mentioned in the writ petition that the Government despite issuance of the order dated 28.07.1989, Annex.-21, for deducting CPF and state insurance from the salary of the employees of the District Women Development Agency but no deduction of State Insurance has been made because the respondents are not treating the petitioners as government servants, therefore, in this writ petition it is prayed that the respondents may be directed to treat the petitioners as “civil servants” and grant all the benefits as are available to the government servants during their service period and after their retirement they may be held entitled for retiral benefits including pension and gratuity as per Rajasthan Civil Services (Pension) Rules, 1996. Per contra, while filing reply to the writ petition, it is submitted on behalf of the State that petitioners were appointed in a registered society known as District Women Development Agency and that society falls in the category of semi-permanent government service, 6 therefore, since the services rendered under the District Women Development Agency is semi-government, so, G.P.F. and State insurance are not deducted. It is also stated in the reply that posts of Pracheta can be filled in by the District Women Development Agency which is registered society as per Rules of 1984. Therefore, that society does not fall within the category of a department of the State Government and as such even if the petitioners were appointed under the rules framed under proviso to Article 309 of the Constitution of India they are not entitled to get any service benefits like regular government servants because as per Rules of 1984 there is tenure prescribed for the appointment. In this view of the matter, the employees of the District Women Development Agency are not government servants because petitioners are working under District Women's Development Agency which is registered society and is a semi-government agency, therefore, petitioners being the employees of District Women's Development Agency are not entitled to get any service benefits provided under the Rajasthan Service Rules, 1951 because the employees of the Agency do not fall within the “definition” of government servant as provided in the R.S.R. 7 In the reply, it is also pointed out that Jaipur Bench of this Court in the case of Smt. Vimla Kumari Vs. State of Rajasthan (S.B. Civil Writ Petition No.5606/1992), decided on 22.10.1996, has held that Pracheta has no right to continue on the post, so also, not entitled for regularization, therefore, petitioners are not entitled for any service benefit as provided to the regular government employees because they were provided appointment by the District Women Development Agency which is registered society and, for this reason, they cannot claim benefit at par with the regular government servants. The service conditions of the government servants are governed under the Rajasthan Service Rules, 1951 which is not applicable to the employees of District Women Development Agency. In the rejoinder, it is submitted by the petitioners that as a matter of fact this is misnomer to project the Women Development Agency as a society and not an instrumentality of the State because all appointments are being made by the State Government and persons in the government department are being sent on deputation as per Rules of 1984 and entire finances are being made available by the CentralState Government, 8 therefore, the mask of “society” has to be lifted and in real sense the Women Development Agency is a government department of the State and, therefore, at various centers all the orders of the Government such as selection grade, leave encashment and other similar orders have been given effect to and employees have been given benefit thereunder. Further, it is denied that the District Women Development Agency can be termed as semi government service because for all practical purposes the petitioners are working as government servants after appointment under the rules framed under proviso to Article 309 of the Constitution of India. The registration as a society of the District Women Development Agency is nothing but a cloak or mask just to deprive the employees of their just and lawful rights. The State Government being a welfare State is not expected to practice and adopt such kind of practice. The State Government cannot be permitted to adopt such kind of device and deny just and lawful rights of the employees of the District Women Development Agency because persons like the petitioners have served for 15 – 20 years and still they are not assured about their status. Agony of the petitioners is that they are performing duties as 9 government servants but this fact is denied, therefore, the petitioners are raising their voice that once their appointment has been made under the rules promulgated in exercise of power conferred by proviso to Article 309 of the Constitution of India, merely on the ground that in the rules the appointment is to be made for fixed term, which may be extended from time to time, the benefit of regular government servants cannot be denied. Learned counsel for the petitioner submits that on the basis of the above facts pleaded before this Court by both the parties, it is abundantly clear that the petitioners are entitled to be treated as civil servants, so also, they are entitled for all the benefits which are available to regular government servants, therefore, on the basis of the grounds raised, the petitioners are entitled to be treated government servants and directions are required to be issued to the Government for granting them the benefits of regular government servants. Learned counsel for the petitioners invited my attention towards the judgment of the Supreme Court, reported in (2009) 1 SCC (L & S) 566, State of West Bengal & Others Vs. Kaberi Khastagir & Others, and submits that in the light of para 35, 39 and 47 of 10 the Scheme the apex Court held that employees of the Integrated Child Development Scheme were State Government employees. Therefore, in view of the judgment of the Supreme Court this writ petition may be allowed. In reply to the rejoinder, learned counsel appearing on behalf of the State vehemently argued that as per reply filed by the State no case is made out by the petitioners to treat them as government servants. The purpose of enactment of the Rules of 1984 was to regulate the appointments in the District Women Development Agency and as per provisions of the Rules of 1984 there is no provision for granting any service benefit which is available to the government employees, therefore, this writ petition may be dismissed. I have considered the rival submissions made by both the parties. First of all, the recent judgment of Hon'ble Supreme Court, reported in (2009) 1 SCC (L & S) 566 is required to be considered, in which, the question of treating employees appointed by the State Government for implementation of scheme of the Central Government has been adjudicated. Para 31 to 36 11 of the said judgment are as follows : “31. Having considered the submissions made on behalf of the respective parties, we find ourselves unable to agree with the reasoning either of the learned Single Judge or the Division Bench of the High Court in holding that the writ petitioners were project employees in respect of the ICDS Project and not employee of the State Government and that their services were conterminous with the Project. Para 35 of the Scheme clearly provides that though the same was a Centrally sponsored scheme, its implementation was left to the respective State Government with 100% financial assistance from the Central Government for inputs other than supplementary nutrition which was identified as the responsibility of the State Government. In fact, Para 47 of the Scheme, which has been extracted hereinabove, in no uncertain terms makes it very clear that even though funds for the Scheme would be provided by the Central Government, the staff would be borne on the appropriate cadres of the States which could sanction the posts in the appropriate corresponding State pay scale. In the face of such provision it is difficult to accept that the writ petitioners were project workers and not employees of the State Government. 32. From the various annexures set out in the special leave petition and referred to by Mr. Venugopal it will be apparent that persons appointed as Child Development Project Officers of the Integrated Child Development Scheme Project were employees of the State Government as contemplated under Para 47 of the Scheme. 33. The Notification dated 3-6- 1983, issued by the Department of Relief 12 and Welfare, Government of West Bengal provides for the constitution of the West Bengal Junior Social Welfare Service which includes Child Development Project Officers of the ICDS Project. From the orders of appointment issued by the Director of Social Welfare, Government of West Bengal on 22-3-1984, 29-3-1984 and 31-3-1984 in favour of Respondents 1, 2 and 3, it will be apparent that the service conditions of the said respondents were also to be that as were applicable to other government servants of the same category under the rules and orders of the Government. 34. Even the Rules made on 11- 10-1985 in supersession of the earlier Rules framed by the Department of Relief and Welfare, Government of West Bengal, dated 23-3-1981, which deal with the method of and the qualifications required for recruitment to posts included in the West Bengal Junior Social Welfare Services under the Welfare Branch of the Relief and Welfare Department of the State Government provide that the appointing authority would be the Governor of West Bengal and that the method of recruitment would be by selection on the results of the West Bengal Civil Services (Executive) Examination or by promotion on the basis of a preliminary written test to be conducted by the Public Service Commission, West Bengal, for screening of candidates, followed by interview of the successful candidates by the said Commission. Since the ICDS Project was included under West Bengal Junior Social Welfare Service, the said Rules of 1985 would no doubt be applicable to the officers of the said Scheme as well. 35. Subsequently, on 16-12-1989 further rules were made in the Relief and Welfare Department (Welfare Branch) of 13 the Government of West Bengal relating to recruitment of Supervisors in the ICDS Project which again provide that the appointing authority would be the Directorate of Social Welfare, West Bengal. A similar Notification dated 23- 12-2002, was issued by the Department of Women and Child Development and Social Welfare, Government of West Bengal, regarding the post of ACDPO where again the appointing authority is the Director of Social Welfare, West Bengal. 36. All the aforesaid Rules promulgated by the State Government under Para 47 of the Integrated Child Development Scheme leave little room for doubt that Respondents 1, 2 and 3 and others similarly situated, were, in fact, State Government employees. The learned Single Judge, as well as the Division Bench of the High Court, appear to have been swayed by the submissions made on behalf of Respondents 1, 2 and 3 (writ petitioners before the High Court) that the State of West Bengal is merely a nodal agency to supervise the implementation of the Scheme which was in the nature of a project and that the employees thereunder were, therefore, project employees, overlooking the overall intention and object of the Scheme that in order to provide child care and nutrition for children and lactating mothers, the Central Government was willing to fund the entire project but left the implementation thereof to the State Governments who were authorised under the Scheme to appoint the staff of the project, who were to be borne on the appropriate cadres of the States. Para 35 of the scheme, which deals with the functional responsibilities, makes this position very clear.” It is admitted position in this case that the 14 petitioners were appointed for implementation of the project of Central Government as per Rules of 1984. The Rules of 1984 were framed by the State Government as a nodal agency to implement the project for which the Central Government was willing to fund the entire project. As per Rule 5 of these rules, composition, nature and strength of posts is provided therein. Rule 5 of the Rules of 1984 reads as under : “5. Composition, Nature and Strength of Posts.-(i) The Project being solely meant for the development of women, and all the posts to which these Rules apply shall be held by women only. (ii) There shall be three categories of posts as pecified in Schedule 1 to be held on tenure basis or as the Government may sanction from time to time. (iii) The strength of the posts of each category shall be such as may be sanctioned by the Government from time to time. Provided that the Government may leave unfilled or held in abeyance or abolish any post without thereby entitling any person to any compensation.” In sub-rule (2) of Rule 5, it is provided that there shall be three categories of posts as specified in Schedule-I to be held on tenure basis or as the Government may sanction from time to time. In Rule 6 there is provision of determination of vacancies. Under 15 Rule 7, there is provision for tenure of the posts. For the purpose of adjudicating this matter, Rule 7, in which tenure has been provided, is important to be discussed. Rule 7 of the Rules of 1984 runs as under : “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 the 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 the 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 the 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 Rules 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, 16 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 Rules, 1951.” As per sub-rule (1) of Rule 7, the post of Project Director, Project Officer and Pracheta 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; meaning thereby, at one point of time, the tenure can be extended for three years. As per Rule 7, sub-rule (2), there is provision that at the first instance appointment of Project Director/Project Officer or Pracheta shall be on temporary transfer or deputation from the parent department for a period of one year which may be extended till the period indicated by the appointing authority from time to time subject to the condition that such extension shall not be beyond the date of her retirement. The service rules for regulating the working in the Woman and Child Development Department, Jaipur, were promulgated under proviso to Article 309 of the Constitution of India and certain benefits which are 17 available to government employees for grant of revised pay-scale and selection scale were made applicable upon the employees of the respondent Department but, as per rules, the appointment cannot be made on substantive basis and can only be made for particular term. As per Rule 7 which provides tenure for the post of Project Director/Project Officer and Pracheta, the same can be held by an officer for a term ordinarily not exceeding three years which may be extended by the appointing authority for a further term not exceeding three years at a time. The source of appointment is provided under Rule 8 of the Rules of 1984 which reads as under : “8.Source of Selection.-(1) Selection for appointment to the posts of Project Directors and Officer after commencement of these Rules shall be made on the recommendation of the Committee referred to in rule 10 from amongst persons mentioned in Column 3 of Schedule-I who hold lien or who have been appointed on regular basis otherwise than in ad hoc, 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 recognised teaching Schools, College or Research Institute or Public Sector Undertaking or any other State Government or Government Controlled body.” I have perused Rule 8 of the Rules of 1984, in 18 which, source of selection has been provided, according to which, selection for appointment to the post of Project Director and Project Officer and Pracheta after commencement of these rules were made on recommendation of the committee referred to in Rule 10 from amongst persons mentioned in column No.3 of Schedule who hold lien or who have been appointed on regular basis otherwise than in ad hoc, stop gap or fortuitous basis for a post either in government, or government controlled, or government aided or recognized teaching institution or school, or in other State Government or Government controlled body; meaning thereby, in the respondent department no direct recruitment against substantive vacancy could be made, all the appointments for the post of Project Director/Project Officer and Pracheta are to be made on tenure basis from the category of the posts mentioned in Rule 8 of the Rules of 1984. Therefore, although the respondent department is created as per the funds provided under the scheme and project of the Central Government for Woman and Child Development but, for all purposes, the State Government is utilizing services of all the employees in election, census and other national programmes does not entitle them to be 19 treated as government servants. When the petitioners do not fall within the definition of government servants as they have been appointed in the District Women Development Agency which is semi-government society. Therefore, the Rajasthan Service