1 IN THE HIGH COURT OF JUDICATURE FORRAJASTHAN AT JODHPUR. O R D E R [1] S.B. CIVIL WRIT PETITION No.4722/2006 [MOHAN PURI & ORS. VS. STATE OF RAJ. & ORS.] [2] S.B. CIVIL WRIT PETITION No.2392/2006 [BHANWAR LAL DUDI VS. STATE OF RAJ. & ORS.] [3] S.B. CIVIL WRIT PETITION No.2273/2006 [VIRENDER PAL VS. STATE OF RAJ. & ORS.] [4] S.B. CIVIL WRIT PETITION No2666/2006 [KHETA RAM & ORS. VS. STATE OF RAJ. & ORS.] [5] S.B. CIVIL WRIT PETITION No.2825/2006 [AJEET KUMAR & ORS. VS. STATE OF RAJ. & ORS.] [6] S.B. CIVIL WRIT PETITION No.2966/2006 [TULCHA RAM & ANR. VS. STATE OF RAJ. & ORS.] [7] S.B. CIVIL WRIT PETITION No.3052/2006 [VEENA RAM CHOUDHARY ORS. VS. STATE OF RAJ. & ORS.] [8] S.B. CIVIL WRIT PETITION No.3059/2006 [BHANWAR SINGH VS. STATE OF RAJ. & ORS.] [9] S.B. CIVIL WRIT PETITION No.3093/2006 [SHANKER LAL VS. STATE OF RAJ. & ORS.] [10] S.B. CIVIL WRIT PETITION No.3094/2006 [SAMDAR SINGH & ORS. VS. STATE OF RAJ. & ORS.] [11] S.B. CIVIL WRIT PETITION No.2834/2006 [JASWANT KUMAR & ORS. VS. STATE OF RAJ. & ORS.] [12] S.B. CIVIL WRIT PETITION No.2319/2006 [RUPA RAM & ORS. VS. STATE OF RAJ. & ORS.] DATE OF ORDER 27.02.2008 2 PRESENT HON'BLE MR. JUSTICE MUNISHWAR NATH BHANDARI Mr. K.K.Shah } Mr.D.L. Mahalana] Mr.J.R.Beniwal} Mr. Bharat Devasi} for the petitioner. Mr.N.M.Lodha AAG] Mr.S.N.Toshniwal for the respondent. BY THE COURT: By these writ petitions, a challenge has been made to the order dated 19.04.2006 whereby the Government decided to extend the service period of the petitioners working on the post of Live Stock Assistant till 30.04.2006 and, thereafter, their services were to be treated as terminated. A further prayer has been made to seek a direction for regularisation of the service of the petitioners and at the same time for passing of a restrain order to the appointment of others pursuant the fresh advertisement. Learned counsel for the petitioners submits that pursuant to the advertisement dated 09.09.2003, the petitioners were appointed after a proper process of selections though while issuing the order of appointment it was made for a period of two years and salary on a consolidate amount of Rs.3,000/-. The service of the petitioners, however, continued without interpretation and if the order dated 19.04.2006 would not have been passed it 3 was likely to be continued further. The petitioners have thus aggrieved at the first instance by the order dated 19.04.2006. The further contention of the learned counsel for the petitioners is that vide advertisement dated 22.02.2006 applications were called to fill up the post of Live Stock Assistant in the regular pay scale. The grievance of the petitioners is that despite of continuation of their services, the same posts should not have been advertised by the respondents, more so when the petitioners were selected as per the Rules. The merit list was prepared based on marks obtained by the candidates in one year Live Stock Assistant course. While undertaking the process pursuant to the advertisement dated 22.02.2006 the respondents are going to consider marks of senior secondary examination/having the scheme of 10 + 2 as well as marks of Ist and IInd year Live Stock Assistant course along with grant of 10% marks towards experience. In view of the aforesaid criteria , the petitioners may not secure necessary merit position thus the respondents should not be permitted to undertake the said process of selection. Learned AAG appearing for the State Government submits that pursuant to the first advertisement dated 09.09.2003, the process undertaken for appointment was not in accordance to the Rules and otherwise the perusal of the conditions made in the advertisement as well as the appointment order demonstrates that the appointment of the petitioners were not on the regular basis, infact it was on a consolidate amount and for a period of two years, therefore, to fill up the post on the regular basis, the advertisement was issued 4 on 22.02.2006. The petitioners were permitted to appear in the said selection and looking to their service experience even additional 10 marks were provided for their benefit. In view of the above it is submitted that the prayer made in the writ petitions should not be accepted and so far as other aspects taken in the writ petitions are concerned it was submitted that no argument should be considered or accepted which otherwise has not been prayed in the writ petition. It was also contented that the respondents have not challenged advertisement subsequently issued and now pursuant to the said advertisement of 2006, appointments have already been made. It was lastly contented that issue otherwise raised in the writ petition is not more open for any debate in view of the judgment of this Court in S.B. Civil Writ Petition No.4750/2006 wherein considering the same issue in respect of some posts and advertisement this court has already held that initial appointments were not made on regular basis. After considering the rival submissions made by the learned counsel for the parties, I have gone through the entire record as well as the judgments cited on the issue. The first fact requires consideration is as to whether the petitioners were initially selected by process of regular selections so as to claim benefit of regularisation on that ground suffice it to say that this Court while considering the same aspect in the case of Laxmi Narayan Meena came to the conclusion that the selections so made pursuant to the advertisement 5 dated 09.09.2003 being on fixed term and on a consolidate salary thus cannot be treated as regular more so when looking to the terms and conditions of the advertisement, many eligible persons might not have applied for the post at the relevant time. Since regular selections is to be made now, it cannot be withheld. The Court further held that prayer of the petitioners for regularisation cannot be accepted in view of the judgment of the Hon'ble Apex Court in the case of State of Karnataka Vs. Uma Devi(2006 (4) SCC1). Apart from the judgment of this Court in the case of Narayan Meena in S.B. Civil Writ Petition No. 4757/2006 decided on 13.03.2007, the facts remain that as per the statement of fact narrated in the writ petition at Para 8 it comes out that the basis of selection on two different occasions is not same. It is required to be seem as to what are the provisions under the Rules for such selection. As per the Rajasthan Animal and Husbandry Service Rules, the respondents are required to make selections as per the provisions under Part IV. Rule 20. It provides recommendation of commission or the appointing authority for appointment. Perusal of the Rule shows that commission or appointing authority as the case may be, prepare a list of candidates to whom they consider suitable for appointment on the post concerned and their merit position would be arranged accordingly. The perusal of the Rules shows that so far as the procedure for direct recruitment is concerned, it has not been disclosed rather the outcome of these Rules is that entire selection procedure has been kept on the discretion of the appointing authorities. 6 In view of the above, if the situation of these cases are taken into consideration then looking to the fact that pursuant to the advertisement dated 22.02.2006 a different yard stick has been applied for appointment which otherwise has been narrated in the writ petition and not refuted by the respondents. It becomes clear that so far the selections pursuant to the advertisement dated 22.02.2006 and selection of 2003 are not on same yard stick or the procedure hence in absence of a procedure prescribed under the Rules, it cannot be presumed that even if an appointment has been made on a consolidate amount and that too for a limited period it can be treated as regular appointment more so when in view of the judgment of the Laxmi Naryan Meena where observation has been made by this Court that many of the eligible candidates might not have applied looking to the fact tht it was not on regular basis. The fact however remains that the petitioners have continued on the post for quite some time pursuant to the selection made in reference to the advertisement dated 09.09.2003, the learned counsel for the petitioners submits that in view of the Division Bench judgment in the case of Dr. Abhijit Sutradhar Vs. State of Raj. & Ors. Passed in D.B. Civil Special Appeal No.1091/2000 and like matters since vacancies exist, the petitioners should not be removed from the post they are holding, more so when they are being continued pursuant to the interim order passed by this Court. The situation now so exist is that pursuant to the advertisement dated 22.02.2006 7 new selections have been made wherein appointee like petitioners have also been selected but at the same time many of them may have been left out. The issue thus remains for consideration as to whether even if the petitioners initial selection is not treated to be as per regular mode of selection, any shelter can be given to them in the facts and circumstances of the case. The discussion made above shows that petitioners are working on the post of Live Stock Assistant from the Year 2003 and it is otherwise a fact that many of similarly placed employees have already been selected even on regular basis therefore out of many candidates so selected in the Year 2004 out of advertisement of 2003 only few ones have been left out from the benefit of regular selection. Thus it would be appropriate to direct the respondents to see as to whether the petitioners can be continued on the same conditions, if vacancies exist even after regular selection. In view of the judgment of the Division Bench in the case of Dr. Abhijit Sutradhar the effort of the respondent should remain that the petitioner may be continued on the vacant post till regularly selected candidates are made available but subject to existence of vacancies. In view of the above, the writ petitions are disposed of with a direction aforesaid and it is expected from the respondents that they will take necessary decision as directed above within a period of two months from the date of 8 receipt of certified copy of this Order and till then petitioners shall not be removed who otherwise are continued as per interim order of this Court. It is further directed that if similar situated appointee of Year 2004 have been continued by the respondents at their own then petitioners would also be given the same treatment without making discrimination between similarly placed person. (MUNISHWAR NATH BHANDARI), J. mamta