1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR ORDER Purkha Ram vs. State of Rajasthan & Ors. (S. B. Civil Writ Petition No.3583/94) Date of Order : 07.02.2008 HON'BLE MR. JUSTICE SANGEET LODHA Mr. Sunil Beniwal, for the petitioner. None present for the respondents. BY THE COURT:- 1. In this writ petition, the petitioner a class IV employee in the Education Department of Government of Rajasthan has sought directions against the respondents for consideration of his candidature for promotion on the post of Lower Division Clerk (in short “LDC” hereinafter) w.e.f. the date he acquired the eligibility for the promotion on the said post or from the date the persons junior to him in the cadre of class IV employee in the Department of Education were accorded promotion on the said post. 2. The brief facts relevant for adjudication of the controversy involved in the present writ petition are that 2 the petitioner entered the services of Department of Education, Government of Rajasthan on being appointed as Class IV employee w.e.f. 01.10.81. He acquired qualification of Prathama Examination from Hindi Sahitya Sammelan, Allahabad in the year 1984, which was recognised to be equivalent to secondary school examination by the State Government. 3. Eligibility for the promotion to the post of LDC under the Rajasthan Subordinate Offices Ministerial Staff Rules, 1957 (in short 'the Rules 1957' hereinafter) was 'Secondary School Examination or its equivalent examination recognised by the State Government'. Since, qualification of Prathama Examination was recognised equivalent to Secondary Education Examination by the State Government, therefore, the petitioner was eligible to be considered for promotion to the post of LDC against the existing vacancies belonging to promotion quota. 4. It is stated by the learned counsel for the petitioner that the seniority list of class IV employee was published wherein the petitioner's name appears at Serial No.533. The grievance of the petitioner is that Prathama qualification acquired by him is treated to be equivalent to the 3 Secondary School Examination, yet his candidature has not been considered for promotion to the post of LDC under the Rules of 1957 and the persons who stand lower in seniority list i.e. at serial Nos.546, 547, 548, 549, 566, have been accorded promotion on the post of LDC. The representation made by the petitioner for consideration of his candidature has not been acceded to by the respondents, hence, this petition. 5. A reply to the writ petition has been filed on behalf of the respondents wherein it is stated that the eligibility qualification prescribed for promotion of class IV employee to the post of LDC under the Rules of 1957, stands amended by the State Government vide notification dated 28.6.85, therefore, the petitioner cannot claim promotion on the post of LDC on the basis of qualification of Prathama Examination which is not treated to be equivalent to the Secondary School Examination. It is stated that the persons who have been promoted on the post of LDC were possessing requisite qualification and the petitioner has not been denied any of his legal or fundamental rights. 6. It is contended by learned counsel for the petitioner that admittedly the petitoner had acquired qualification of 4 Prathama Examination from Hindi Shatiya Sammelan, Allahabad in the year 1984 and the same was recognised by the State Government as equivalent to Secondary School Examination, therefore, as per the eligibility qualification prescribed during the relevant period the petitioner was eligible for promotion on the post of LDC. That apart, it is contended by learned counsel for the petitioner that many persons holding Prathama qualification have already been promoted by the respondents nothwithstanding amendment introduced in the Rules of 1957 vide notification dated 28.6.85. Learned counsel further submitted that the qualification amended vide notification dated 28.6.85 shall not apply to the petitioner because he had acquired the equivalent qualification prior to amendment of the Rules as aforesaid. The learned counsel urged that in any case the amended qualification cannot be made applicable to the vacancies which had occurred prior to the date of issuance of the notification dated 28.6.85. In this regard, the learned counsel has relied upon a decision of this Court in the matter of Shanker Lal Verma & Ors. Vs. Rajasthan Electricity Board (1999) 1 WLC 1. Thus, according to the learned counsel for the petitioner viewed from any angle the 5 petitioner cannot be denied promotion to the post of LDC. 7. It is not in dispute that the petitioner had acquired the qualification of Prathama Examination in the year 1984, which was recognised by the State Government to be equivalent to the Secondary School Examination. It is also not in dispute that as per his seniority, the petitioner was entitled to be considered on the post of LDC against the existing vacancies prior to issuance of notification dated 28.06.85. 8. In the matter of Shanker Lal Verma (supra) while deciding the reference made by the Division Bench of this Court, after examining the matter in its entirety the Full Bench of this Court has held as under : “In the result, we conclude that there is no force in the contention of the petitioners that the amended qualifications shall not apply to them because they had acquired the equivalent qualifications prior to the amendment of the rules. In our opinion, the amended rule and the qualifications will apply even to the candidates who have obtained the equivalent qualifications prior to the date of enforcement of amended rule. However, the amended qualifications shall not be applicable to the vacancies which had occurred prior to the date of enforcement of the amended rule and such vacancies shall be filled-in in accordance with the qualifications prescribed as on the date of occurrence of vacancies. We, therefore, answer the reference accordingly.” 6 Thus, the question with regard to the entitlement of the Class IV employees for consideration of their candidature to the post of LDC on the basis of equivalent qualification acquired prior to the date of enforcement of the amendment against the vacancies which had occurred prior to the date of the enforcement of amended rule stands concluded by the aforesaid Full Bench decision of this Court and the petitioner cannot be denied promotion on the post of LDC on the ground that the qualification acquired by the petitioner does not fulfill the eligibility prescribed under the Rules, 1957. It is not in dispute that many persons junior to the petitioner in the cadre of Class IV employee holding qualification of Prathama Examination, have been accorded promotion on the post of LDC notwithstanding the aforesaid amendment introduced in Rule 12 of the Rules,1957 w.e.f. 28.6.85. If the respondents have accorded promotion to the persons junior to the petitioner, may be on account of implementation of the judgments passed by this Court, the petitioner a senior person cannot be denied equal treatment taking shelter of amendment in the Rules. In my considered opinion, the treatment meted out to the 7 petitioner by the respondents is ex facie, discriminatory so as to violative of Article 14 and 16 of the Constitution of India. In the result, the writ petition is allowed. The respondents are directed to consider the candidature of the petitioner for promotion on the post of LDC according to his seniority against the the vacancies occurred prior to 28.6.85. In any case, the petitioner shall be accorded promotion on the post of LDC w.e.f the date the person immediately junior to the petitioner holding the qualification of Prathama examination has been accorded promotion. No order as to costs. (SANGEET LODHA),J.