STATE OF RAJASTHAN vs VIJAY KUMAR JOSHI

[2026:RJ-JD:19264-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR

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HON'BLE MR. JUSTICE VINIT KUMAR MATHUR
HON'BLE MR. JUSTICE CHANDRA SHEKHAR SHARMA
Judgment
Reportable
23/04/2026
1. The present Special Appeal has been filed by the appellant –
State aggrieved against the judgment and order dated 02.09.2024
passed by the learned Single bench in S.B. Civil Writ Petition
No.2961/2016 whereby the writ petition filed by the petitioners-
respondents has been partly allowed and following order was
passed by the learned Single Bench:
“24. Resultantly, the writ petition is allowed in part.
The respondents are directed to include the services
rendered by the petitioners on the post of Ayurved
Chikitsak from the year 2002/2004 (as the case
may be) for the purpose of calculating qualifying
service for pension. The petitioners shall be entitled
for privilege leave for the entire period from the
date of joining in the year 2002/2004. The action of
the respondents in subjecting the petitioners to
probation on fixed remuneration vide appointment
order dated 25.08.2015 is declared invalid and
consequently, they shall be entitled to full
remuneration applicable for post of Rural Ayurved
Chikitsak from the date of their joining in pursuance
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of the order dated 25.08.2015. The respondents
shall make necessary fixation of pay of the
petitioners and give them arrears of salary for the
entire period commencing from their date of joining
in the year 2015. The petitioners, who have
superannuated from service upon attaining the age
of retirement during the pendency of this writ
petition shall also be entitled for the above relief.
2. The facts apposite for adjudication of the present Special
Appeal are that the appellants–State issued advertisements dated
19.12.2001 and 06.10.2003 inviting applications from the eligible
candidates for appointment on the post of Ayurved Chikitsak on
contractual basis. Thereafter, the appellant-State prepared the
merit list on the basis of merit in accordance with the criteria
determined by the Department of Ayurved, Government of
Rajasthan and thereafter, the same were issued on 14.02.2002,
09.02.2004 and 11.11.2004. Pursuant thereto, the respondents-
petitioners were appointed on contractual basis on consolidated
remuneration and continued to discharge their duties.
3. In the year 2008, the appellant-State framed the Rajasthan
Rural Ayurvedic, Unani, Homeopathy and Naturopathy Service
Rules, 2008 (hereinafter referred to as “the Rules of 2008”),
constituting separate service wings and providing provisions for
initial recruitment, direct recruitment and promotion. The
provision for initial recruitment was intended to regularize the
services of Ayurved Chikitsaks working on contractual basis. In
pursuance thereof, an advertisement dated 21.07.2008 was issued
inviting applications for 320 posts of Ayurved Chikitsak. The
respondents-petitioners participated in the selection process and,
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upon selection, were appointed on substantive basis vide order
dated 02.06.2009.
4. Subsequently, a bunch of writ petitions led by S.B. Civil Writ
Petition No.5259/2009 was filed before the Jaipur Bench
challenging the selection process pursuant to advertisement dated
21.07.2008 on the ground that no criteria had been prescribed for
determination of merit. The learned Single Bench, vide order
dated 29.04.2011, quashed the selection and appointments and
directed the appellants–State to conduct a fresh selection process
after determining proper criteria. However, considering the need
to ensure continuity of medical services in rural areas, it was
directed that the candidates already appointed shall not be
disturbed till completion of the fresh selection process, though any
candidate not selected in the fresh selection would have to vacate
the post. The respondents-petitioners, therefore, continued in
service without interruption. The said judgment was upheld by the
Division Bench on 31.10.2011, and the Special Leave Petition
preferred there against was also dismissed by the Hon’ble
Supreme Court vide order dated 26.03.2012.
5. In compliance of the aforesaid directions issued by learned
Single Bench, an advertisement dated 30.04.2012 was issued
inviting applications for selection to 378 posts (later increased to
382) of Gramin Ayurved Chikitsak. The selection process was
again challenged before the learned Single Bench by way of filing
writ petition, which came to be allowed vide order dated
24.04.2014. However, the Division Bench, vide judgment dated
29.06.2015, set aside the order of the Single Bench and upheld
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the selection process, directing the appellant-State Government to
declare the select list forthwith. Pursuant thereto, the appellant-
State Government issued the select list and the respondents-
petitioners’ names were included therein. The appointment orders
dated 25.08.2015 were thereafter, issued and the respondents-
petitioners joined their duties as Ayurved Chikitsak. Most of the
respondents-petitioners continue in service, while some have
retired upon attaining the age of superannuation.
6. The grievance of the respondents-petitioners before the
learned Single Bench in the present writ petition was that despite
their continuous service since the years 2002/2004, and despite
having completed probation pursuant to the appointment order
dated 02.06.2009 prior to the direction of this Court to conduct
fresh selection, they were again subjected to probation period for
two years on fixed remuneration pursuant to appointment order
dated 25.08.2015. The respondents-petitioners have further
contended that despite rendering uninterrupted service for more
than a decade, the appellant-State have not counted the period of
service rendered prior to their appointment order dated
25.08.2015 for the purposes of qualifying service, pension, retiral
benefits, gratuity and earned leave, thereby causing serious
financial prejudice, particularly as some respondents-petitioners
may not complete the minimum qualifying service required for
pension.
7. The learned Single Bench vide judgment dated 02.09.2024,
partly allowed the writ petition and hence, aggrieved against the
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judgment passed by the learned Single Bench, the appellant-
State has preferred the present special appeal.
8. Heard learned counsel for the parties.
Submissions on behalf of the Appellant-State :
9. Learned Additional Advocate General Mr. N.S Rajpurohit
appearing on behalf of the appellant–State at the very outset
submits that the learned Single Bench has failed to properly
appreciate the nature of the alleged initial appointment of the
respondents-petitioners, which in fact, does not fall within the
ambit of an “initial appointment” to any substantive or regular
post. He submits that a bare perusal of initial advertisement
clearly demonstrates that the engagement of the respondents-
petitioners was purely on a “contractual basis” for the limited
purpose of facilitating medical services in the remote and rural
areas of State of Rajasthan. The said engagements were neither
made against any substantive or regular posts, nor were the
respondents-petitioners selected through any process for
appointment to such posts.
10. Learned Additional Advocate General submits that the
material placed on record clearly establishes that the engagement
of the respondents-petitioners was purely contractual in nature
and was governed by specific terms and conditions agreed upon
by the parties by way of executing the contract letters. A perusal
of the contract letter issued to the respondents-petitioners, clearly
stipulates as under:–
Condition No. 1 that the State Government agreed
to engage the respondents-petitioners on a
contractual basis as Doctor/Nurse/Computer
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Operator on a fixed monthly amount for rendering
services.
Condition No. 5 categorically provides that the
concerned contractual employee shall not claim any
increase in the fixed monthly remuneration or any
other facility, nor initiate any legal proceedings in
that regard.
11. Learned Additional Advocate General further submits that a
short-term advertisement dated 06.10.2003 was issued for such
engagements providing the selection process based on merit for
appointments in dispensaries located in rural areas of the State.
The said advertisement expressly mentioned that the selected
candidates would not be treated as regularly appointed employees
and would not be entitled to any other benefits on the basis of
such engagement. Moreover, the appointment order dated
09.02.2004 also contains a Condition No. 2 that the
appointments were purely on contractual basis and shall not be
treated as regular appointments of any kind . In view of the above
contractual stipulations, it is evident that the respondents-
petitioners had consciously accepted the terms of engagement,
which clearly excluded any claim for regular service benefits.
12. Learned Additional Advocate General further submits that in
these circumstances, grant of pensionary benefits from the date of
their initial contractual engagement is wholly contrary to the
agreed terms of the contract and also contrary to Rule 2(e) of the
Rajasthan Civil Services (Pension) Rules, 1996 (hereinafter
referred to as the Pension Rules, 1996 for short), which
specifically provides that the said Rules shall not apply to persons
employed on contract unless the contract itself provides otherwise.
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In the present case, the contractual documents do not provide for
any such benefit and, in fact, clearly stipulate that the contractual
engagement shall not create any right in favour of the
respondents-petitioners for regular service benefits; therefore, the
claim of the respondents-petitioners for counting their contractual
period for grant of pensionary benefits, is legally untenable.
13. Learned Additional Advocate General submits that an
advertisement dated 21.07.2008 was issued inviting applications
for recruitment to the post of Gramin Ayurvedic Chikitsak.
However, the said recruitment process was challenged before the
Single Bench of this Court on the ground that the recruitment was
intended to accommodate the existing contractual employees. The
learned Single Bench, after examining the matter, quashed the
said selection process holding that the proper recruitment
procedure had not been followed. The aforesaid order of quashing
the selection process was further challenged before the Division
Bench and the Division Bench rejected the special appeal
upholding the order passed by the learned Single Bench.
14. Learned Additional Advocate General further submits that
once it has been conclusively held by the competent Court that
contractual employees cannot be accommodated through such
recruitment, and the said findings have attained finality, then by
no stretch of imagination, the subsequent selection of the
respondents-petitioners cannot be treated as regularization of
their earlier contractual engagement. On the contrary, the
subsequent process of selection was a fresh recruitment
conducted in accordance with law, wherein the respondents-
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petitioners participated along with other eligible candidates and
were considered at par with them. Hence, the appointment of the
respondents-petitioners pursuant to the said recruitment cannot
be construed as regularization of their previous contractual
engagement. Learned Additional Advocate General submits that a
fresh advertisement dated 30.04.2012 was issued for recruitment
to the concerned post. The said advertisement was again
challenged before the Hon’ble Court on the ground that the cut-off
date for determination of eligibility ought to be “01.01.2013”, and
it was further prayed that the condition restricting eligibility only
to those candidates, who had acquired the requisite educational
qualification prior to 15.09.2008 be declared illegal. The learned
Single Bench, while deciding the matter, held that the educational
qualification acquired up to the date of advertisement is required
to be considered and consequently declared the condition
restricting eligibility only to those candidates, who had acquired
the qualification prior to 15.09.2008, as illegal. The said order was
challenged by way of filing a Special Appeal. The Division Bench
allowed the Special Appeal, however, it maintained the cut-off
date of educational qualification as 30.04.2012, as already
determined by the learned Single Bench, observing that the
Division Bench had earlier taken the same view and therefore no
second adjudication on the issue was required. He therefore
submits that the earlier attempts to seek accommodation or
regularization of the contractual employees had already been
discouraged and deprecated by this Court, and the findings in that
regard have attained finality. In such circumstances, the same
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cause cannot be permitted to be agitated again by the
respondents-petitioners in the present proceedings.
15. Learned Additional Advocate General submits that Rule 12
(b) of Pension Rules, 1996 has been incorrectly interpreted by the
learned Single Bench. The opening words of the Rules clearly state
“Subject to the provisions of these Rules”, and therefore Rule
12(b) cannot be read in isolation. When Rule 2(e) of the Pension
Rules of 1996 specifically excludes the applicability of the Pension
Rules to persons employed on contract, unless the contract itself
provides otherwise, the services rendered on contractual basis
cannot be treated as qualifying service for the purpose of pension.
Further, Rule 12(b) contemplates counting of service rendered by
a person appointed in substantive, officiating or temporary
capacity. The respondents-petitioners were admittedly not
appointed in any of the aforesaid capacities prior to the year 2015.
They were neither appointed in substantive capacity nor in
officiating capacity, and their engagement cannot be treated as a
temporary appointment under any statutory rules, particularly
when the terms of the contract specifically provided otherwise.
Moreover, the respondents-petitioners, being contractual
employees, cannot be termed as Government servants, as a
Government servant is one who holds a lien on a post in
government service.
16. Learned Additional Advocate General also made reference of
definition of “officiate” provided under Rule 7(23) of the Rajasthan
Service Rules, 1951, which presupposes that a person holds a lien
on a post. Similarly, “substantive appointment” is defined under
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Rule 7(34A) of the Rajasthan Service Rules, 1951, and “temporary
post” is defined under Rule 7(35) of the Rajasthan Service Rules,
1951, which refers to a post carrying a definite rate of pay
sanctioned for a limited period. The respondents-petitioners do
not fall within any of the aforesaid categories and, therefore,
cannot be treated as Government servants for the purpose of
pension rules. Consequently, Rule 12 (b) of the Rules of 1996 has
no application to the case of the respondents-petitioners.
17. Learned Additional Advocate General submits that the
respondents-petitioners were eventually selected pursuant to the
advertisement dated 01.08.2012, which was a regular open
recruitment process open to all eligible candidates. The said
recruitment cannot, by any stretch of imagination, be construed
as a regularization of their earlier contractual engagement. Once
the respondents-petitioners were appointed through the said
regular recruitment process, the earlier contractual engagement
automatically came to an end, and therefore, any benefit arising
out of the contractual service cannot be claimed by the
respondents-petitioners.
18. Learned Additional Advocate General further submits that
Rule 12 (b) of the Pension Rules of 1996 must be read in
conjunction with Rule 13 of the Pension Rules, 1996, which lays
down the conditions subject to which service qualifies for pension.
As per Rule 13 of the Pension Rules, the “service” must be paid by
the Government from the Consolidated Fund and should not
include service rendered in a post paid from contingencies or in a
non-pensionable establishment. In the present case, the
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respondents-petitioners were engaged on contractual basis and
were not paid from the Consolidated Fund of the State, and their
engagement was in a non-pensionable establishment, therefore
the provisions of Rule 12(b) of the Rules of 1996 are not
attracted. Although the Government is empowered under Rule 14
of the Rules of 1996 to declare any service as qualifying service
for pension, such declaration lies exclusively within the discretion
of the Government, and the same cannot be directed to be
exercised by way of a mandamus by the Court.
19. Learned Additional Advocate General submits that the Rule
17 of the Rules of 1996, which deals with counting of service
rendered on contract, provides that the services of an
establishment paid from contract service allowance or similar
arrangements where the Government does not directly bear the
liability shall not be counted for the purpose of pension. In view of
the aforesaid statutory provisions, learned AAG submits that the
direction of the learned Single Bench granting pensionary benefits
from the date of initial contractual engagement is legally
unsustainable.
20. Learned Additional Advocate General submits that Rule 23 of
the Rules of 1996 provides for forfeiture of past service upon
dismissal or removal. In the present case, the services of the
respondents-petitioners under the contractual arrangement came
to an end and, thereafter, they were appointed afresh through a
fresh selection process, which clearly indicates that there was no
regularization of the earlier engagement, but a fresh appointment.
Consequently, in terms of Rule 23 read with Rule 26 of the Rules
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of 1996, there was a clear interruption in service, and therefore,
the earlier contractual engagement cannot be counted for the
purpose of pension.
21. Learned Additional Advocate General further submits that the
continuation of the respondents-petitioners pursuant to the order
of the learned Single Bench dated 29.04.2011 was only a
continuation in their capacity as contractual employees. The said
order did not save or validate the earlier selection process.
Therefore, upon their selection in the subsequent recruitment
process, the respondents-petitioners were required to undergo
probation in accordance with the applicable rules. In this regard,
the definition of “probationer” is provided under Rule 7(30) of the
Rajasthan Service Rules, which states that a probationer is a
person appointed provisionally against a substantive vacancy. The
respondents-petitioners were appointed against substantive
vacancies only vide appointment order dated 25.08.2015, and
prior to that they were not appointed in substantive capacity.
Further, rule 8 of the Rajasthan Service Rules, 1951 provides that
all appointments in Government service made on or after
20.01.2006 shall be made as Probationer Trainee for a period of
two years, during which period only fixed remuneration is payable.
22. Learned AAG vehemently submitted that the learned Single
Bench has wrongly quashed the order of probation period to be
computed in case of the respondents-petitioners from 25.8.2015
as rule 8 of the Rules of 1951 specifically mandates that the
probation period of two years shall be computed from the date of
appointment of a candidate on the substantive post and he
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submits that since the appointment of the respondents-petitioners
was made for the first time on substantive basis in the year 2015,
therefore, the appellant – State has rightly ordered for probation
period to be computed from the date of joining on their
substantive post.
23. Learned Additional Advocate General submits that the
respondents–petitioners are not entitled to any privilege leave for
the period prior to 2015, as they were not appointed as temporary
employees during that time. It is contended that in terms of Rule
95 of the Rules of 1951, the benefit of privilege leave accrues only
upon appointment on a substantive basis. Since the respondents–
petitioners were appointed on the post of Ayurved Chikitsak on a
substantive basis only in the year 2015, they became eligible for
such benefit thereafter. He further submits that as the
respondents–petitioners were engaged on a contractual basis from
2002/2004 till 2015, they are not entitled to claim the benefit of
Rule 95 of the Rules of 1951 for the said period.
24. Lastly, the learned Additional Advocate General submits that
the learned Single Bench failed to consider the applicability of the
relevant statutory provisions while allowing the writ petition. It is
an admitted position that the respondents–petitioners were
substantively appointed on 25.08.2015, and therefore, completion
of the prescribed probation period was mandatory under the
applicable rules. However, the learned Single Bench, while
ignoring these statutory provisions as well as the material facts on
record, proceeded to allow the writ petition. Consequently, the
impugned order suffers from serious legal infirmities and is
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unsustainable in the eyes of law. He further submits that the
learned Single Bench has erroneously observed that the
respondents–petitioners were initially appointed in the years
2002/2004, as recorded in the order dated 02.09.2024. The said
finding is contrary to the material available on record and the
factual matrix of the case. Therefore, the impugned order
deserves to be quashed and set aside, and the writ petition filed
by the respondents–petitioners is liable to be dismissed.
25. Learned Additional Advocate General submits that the issue
involved in the present matter is no longer res-integra and stands
settled by various authoritative pronouncements. Reliance was
placed upon the judgment of the Hon’ble Supreme Court in
Director General, Doordarshan Prasar Bharti Corporation of
India & Anr. vs. Maghi S. Desai, reported in (2023) 18 SCC
705 wherein the Hon’ble Apex Court has categorically held that
the services rendered as a casual or contractual employee cannot
be treated as services rendered on substantive appointment for
the purpose of pensionary benefits, in the absence of any
statutory rule, regulation, or scheme providing for such benefit.
Further, reliance was placed on the judgment of the Hon'ble Apex
Court delivered in the case of Union of India vs. Rakesh
Kumar, (2017) 13 SCC 388 , wherein the Hon’ble Supreme
Court elaborated upon the distinction between “temporary status”
and a “temporary government servant.” The Hon’ble Apex Court
held that grant of temporary status does not amount to
appointment as a temporary servant against a sanctioned post,
and merely conferring temporary status upon an employee does
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not mean that the person has been appointed to a post in any
capacity under the Government.
26. In light of the aforesaid authoritative pronouncements of the
Hon’ble Supreme Court, learned AAG submits that the services
rendered by the respondents-petitioners on contractual basis
cannot be treated as qualifying service for pension, and therefore
the impugned judgment granting pensionary benefits from the
date of their initial contractual engagement is contrary to settled
principles of law and deserves to be set aside.
Submissions on behalf of learned counsel for
respondents-petitioners:
27. Per contra Mr. M.S. Singhvi learned Senior Counsel appearing
on behalf of the respondents–petitioners submits that the present
appeal filed by the appellant–State of Rajasthan challenging the
order dated 02.09.2024 passed by the learned Single Bench is
devoid of merit, inasmuch as the learned Single Bench has rightly
directed that the services rendered by the respondents-petitioners
on temporary/contractual basis be counted for the purposes of
pension. At the outset he submits that during the course of
arguments, the appellant–State has sought to raise several fresh
grounds, which were neither pleaded in the reply to the writ
petition nor in the memo of appeal, and such contentions cannot
be permitted to be raised at this belated stage. He further submits
that subsequent to the impugned judgment, the Hon’ble Supreme
Court has consistently held that long and continuous engagement
of employees on temporary or contractual basis is indicative of the
substantive nature of appointment, and such employees cannot be
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denied continuity of service benefits, particularly pension and
increments.
28. Learned Senior Counsel vehemently submits that the
respondents-petitioners approached this Court after their
substantive appointment, having been duly selected in accordance
with the Rajasthan Rural Ayurvedic, Unani, Homoeopathy and
Naturopathy Service Rules, 2008. The mere fact that they had
earlier rendered service described as contractual does not
preclude the applicability of the Pension Rules of 1996. On the
contrary, Rule 12(b) of the said Rules expressly permits counting
of service rendered in an officiating or temporary capacity towards
qualifying service for pension. Rule 17, which excludes certain
categories of contractual service, is inapplicable in the present
case as the respondents-petitioners were never paid from any
Contract Establishment Allowance; rather, their salaries were
drawn against sanctioned posts under the direct control of the
State Government, from the consolidated fund.
29. He submits that the respondents-petitioners were appointed
against sanctioned cadre posts of Ayurvedic Chikitsak under the
Rajasthan Ayurvedic, Unani, Homoeopathy and Naturopathy
Service Rules, 1973, which do not envisage contractual
appointments. The nomenclature of “contractual” was merely a
device adopted by the State to deny regular pay scales and
attendant benefits. In substance, the appointments were made on
an urgent temporary basis under Rule 27 of the Rules of 1973,
pending regular selection by the Rajasthan Public Service
Commission. The selection process was duly followed even for
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such appointments, and the respondents-petitioners continued on
the same posts and at the same places even after subsequent
regular selections, clearly establishing the continuity and
substantive nature of their service. To buttress his contentions,
learned Senior counsel relied upon the following judgments:
(1) Jaggo Vs. UOI reported in 2024 INCS 1034
(2) Shripal Vs. Nagar Nigam Ghaziabad reported
in 2025 INCS 144
30. Learned Senior Counsel emphasizes that the nature of
duties, responsibilities, and service conditions of the respondents-
petitioners were identical to those of regularly selected
candidates, a fact which has not been specifically denied by the
appellant-State in its pleadings. Documentary evidence, including
salary records, service certificates, and pay register entries,
further substantiates that the respondents-petitioners were
continuously working against regular posts and were paid from
government funds. Therefore, the exclusion sought to be invoked
under Rule 2(e) of the Pension Rules must be read subject to rule
3(r) and Rule 12 and in light of judicial pronouncements, including
those of the Hon’ble Supreme Court, which have held that once an
employee is regularized, prior service rendered even on a
contractual basis is liable to be counted for pension. In this
regard, a reliance has been placed to the judgments of the Hon'ble
Supreme Court delivered in the case of State of HP Vs. Sheela
reported in 2023 SC Online 1272 and in the case of KS
Pundir Vs. State of HP reported in 2004(13) SCC 93 .
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31. Learned Senior Counsel submits that the terms in the
appointment orders, advertisements, and bonds describing the
employment as contractual are unconscionable, arbitrary, and
opposed to public policy, particularly when imposed upon
unemployed, but qualified individuals with no real bargaining
power. Such terms, being violative of Article 14 and Article 39(d)
of the Constitution of India, cannot operate to the detriment of the
respondents-petitioners.
32. Insofar as Rule 17 of the Pension Rules is concerned, it is
contended that the same has no application as both prerequisite
conditions i.e., payment from Contract Establishment Allowance
and absence of governmental control are conspicuously absent in
the present case. The respondents-petitioners were appointed
against sanctioned posts, selected through a process, paid from
the State treasury, and were under full administrative control of
the Government.
33. Learned Senior Counsel further submits that the services
rendered by the respondents-petitioners from the date of their
initial appointment, though described as contractual, are in
substance temporary services against sanctioned posts and are
liable to be counted for all service benefits, including pension. In
this regard, learned Senior Counsel relied upon the following
judgments:
1. Vinod Kumar & Ors. Vs. UOI reported in 2024 (9)
SCC 327
2. Rajkaran Singh Vs. UOI reported in 2024 SCC
Online SC 2138
3. SD Jaiprakash & Ors. Vs. UOI & Ors reported in
2025 SCC Online SC 973
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4. Dalamchand & Ors. Vs. State of Rajasthan & Ors
(DBCWP No.1268/2003), decided on 10.7.2025
5. K. Anbazhagan Vs. Registrar General reported
2018 (9) SCC 293
6. All India Judges Association Vs. UOI reported in
2025 SCC Online SC 1146
7. State of Rajasthan & Ors. Vs. Dr. Paritosh Ujjawal
& Ors (DBSAW No.532/2016), decided on
9.7.2025.
34. Learned Senior Counsel further submits that since the
appellant – State was not providing appointment to the selected
candidates pursuant to advertisement dated 17.5.2011, they
preferred a writ petition before this Court being SBCWP
No.14145/2012 and the same came to be disposed of by this
Court vide order dated 18.12.2012 with the following
observations:
“The outcome of the observation aforesaid is that those who
would be recruited pursuant to initial recruitment would rank
senior to the petitioners though initial recruitees would be
given appointment subsequent to the petitioners. The
aforesaid arrangement is accepted by both the parties
looking to the fact that on account of delay in initial
recruitment due to multiple litigation and an interim order
therein. In the facts and circumstances and as an exception,
respondents are allowed to make appointment of petitioners
pursuant to second recruitment as expeditiously as possible.
However, it may be mentioned and clarified in the order of
appointment itself that they would be ranked junior to those
who would now be appointed pursuant to the initial
recruitment and thereby if initial recruitees are appointed
subsequent to the petitioners, they would be ranked senior.
The anomaly in the pay scale would however be considered
by the Government in that case if initial recruitment is
delayed for indefinite period or beyond a reasonable time.
With the aforesaid, writ petition stands disposed. of.”
35. In view of the above, learned Senior Counsel submits that,
pursuant to the aforesaid order passed by this Court, the
respondents–petitioners were declared and treated as senior to
those candidates who were offered appointment pursuant to the
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order dated 18.12.2012. It is, therefore, contended that the
seniority of the respondents–petitioners stands duly protected by
the order of the learned Single Bench vis-à-vis other candidates
selected by the RPSC. Learned Senior Counsel further submits
that, by virtue of the said order, it can safely be inferred that the
services rendered by the respondents–petitioners from their
inception have been recognized and protected, and the
consequential benefits of seniority have been rightfully extended
to them.
36. Lastly, learned Senior Counsel submits that in view of the
aforesaid facts and legal position the services rendered by the
respondents-petitioners from the date of initial appointment are
liable to be counted for the purpose of pension and other
consequential benefits, and the judgment passed by the learned
Single Bench does not call for any interference and the present
appeal filed by the appellant–State may be dismissed.
Reasoned Findings and Analysis:
37. We have considered the submissions made at the bar and
gone through the relevant record of the case and the impugned
order dated 2.9.2024.
38. Though the contention of the learned Additional Advocate
General that as per the advertisement and the offer letters issued
to the respondents–petitioners, their engagement was purely
contractual is not disputed, but the said contention must be
examined keeping in mind the Rajasthan Rural Ayurvedic, Unani,
Homeopathy and Naturopathy Service Rules, 1973, which were
holding the field at the time of engagement of the respondents-
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petitioners in the year 2002/2004. The Rules envisages the
appointment in the nature of urgent temporary basis. The
appellant-State therefore, keeping in mind the spirit of those
rules, have undertaken the selection process, but in the
advertisement they have mentioned that engagement will be on
the contractual basis, although the Rules of 1973 does not
envisage contractual appointments. Since the appellant-State was
in dire need of the Ayurved Chikitsaks, therefore, a recourse of
the engagement of the respondents-petitioners on contractual
basis was undertaken. In the considered opinion of this Court,
the same was basically engagement on urgent temporary basis
and, therefore, for all intends and purposes, the same is liable to
be treated as such. Since the respondents-petitioners have
continued on their posts for a number of years before they were
being appointed on substantive basis in the year 2015, thus, it can
safely be inferred that they were engaged/appointed on temporary
basis. This position is further reinforced by the fact that such
engagement ultimately culminated in their regular selection by the
appellant–State in the year 2015. In these circumstances,
exclusion of the services rendered by the respondents–petitioners
from the years 2002/2004 till 2015 for the purposes of pensionary
benefits would result in a travesty of justice.
39. Further, the contention of the learned AAG is that the
advertisement inviting applications for the post of Ayurved
Chikitsak contemplated contractual appointments and, therefore,
such engagement cannot be treated as appointment to a
substantive post. Though the submission appears attractive at first
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glance, but upon a closer examination of the facts and
circumstances of the present case, the same does not merit
acceptance for the simple reason that even as per the Rules of
1973 a procedure was provided for appointment on urgent
temporary basis. The appellant-State has adopted the same
procedure and the respondents-petitioners after having duly
undergoing such procedure were engaged/appointed on the post
of Ayurved Chikitsaks in the year 2002-2004. Their initial
appointment can, therefore, be reasonably construed as one made
in furtherance of the said Rules. It is also noted that certain
infirmities in implementation of the Rules led to challenge before
this Court, and ultimately, after adjudication, the selection process
culminated in the regular appointment of the respondents–
petitioners in the year 2015. Significantly, it is also noted that
during the interregnum period, the engagement/appointment of
the respondents-petitioners was protected by judicial orders, and
they continued to serve the appellant-department uninterruptedly
from the years 2002/2004 onwards. Thus, although the initial
engagement was termed as contractual, but it eventually merged
into a regular appointment without any break in service. The
record further reflects that certificates acknowledging satisfactory
service were issued by the competent authorities.
40. In this backdrop, the present matter is required to be
examined keeping in mind the scheme of the Rajasthan Civil
Services (Pension) Rules, 1996. The said Rules are required to be
interpreted harmoniously. For the purpose of brevity, rule 2(e),
3(r) and 12 of the Rules of 1996 are reproduced as under:
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“Rule 2(e) persons employed on contract except when the
contract provides otherwise;
Rule 3(r) ‘qualifying services’ means service rendered
while on duty or otherwise which shall be taken into account
for the purpose of pensions and gratuities admissible under
these rules;
Rule 12. Commencement of qualifying service
(a) Except for compensation gratuity, a Government
servants service does not qualify till he has completed
eighteen years of age.
(b) Subject to the provisions of these rules, the qualifying
service of a Government servant shall commence from the
date he takes over charge of the post to which he is first
appointed, either substantively or in an officiating or
temporary capacity.”
41. A close reading of Rule 2(e) of the Rules of 1996 excludes
contractual employees from certain benefits, such exclusion
operates in a situation where an employee continues purely in
contractual employment. However, where an employee, initially
appointed on a contractual basis, is subsequently regularised
without interruption of service, the provisions relating to
“qualifying service” assume relevance. Rule 3(r) defines qualifying
service for the purpose of pension and gratuity and contemplates
inclusion of service rendered while on duty. Further, Rule 12
clearly provides that qualifying service shall commence from the
date a government servant takes charge of the post to which he is
first appointed, whether substantively, or in an officiating or
temporary capacity.
In the present case, though the respondents-petitioners
were first engaged/appointed in the year 2002/2004 on
contractual basis, but essentially the engagement/appointment
itself can be termed as an appointment on urgent temporary
basis, which can easily be equated with officiating or temporary
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appointment as the same was against the vacant post and,
therefore, a liberal interpretation of Rule 12 include the services
rendered by the respondents-petitioners on contractual basis to be
included for the purpose of qualifying the service for pension.
42. In the present case, it is an admitted position that the
respondents–petitioners, though initially engaged on contractual
terms, were regularized in the year 2015 without any break in
service. Consequently, the period of service rendered from
2002/2004 till 2015 is liable to be reckoned in terms of Rule 3(r)
read with Rule 12 of the Rules of 1996.
43. This Court, therefore, has no hesitation in holding that the
services rendered by the respondents–petitioners are required to
be counted as qualifying service for the purpose of pension. Rule
2(e) operates in a different field and cannot be invoked to deny
the benefit of counting past service once regularization has taken
place without interruption. It is also noteworthy that the
remuneration paid to the respondents–petitioners was drawn from
the Consolidated Fund of the State and not from any contingent or
contractual establishment fund, which further substantiates that
the appointments/engagements were against substantive posts.
Additionally, the respondents–petitioners discharged duties
identical to those performed by regularly appointed employees,
and their services were consistently found satisfactory, as
evidenced by certificates issued by the competent authority. The
judgments relied upon by the learned AAG in the cases of Maghi
S. Desai and Rakesh Kumar (supra) are thus clearly
distinguishable on facts and do not advance the case of the
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appellant-State as rule 3(r) and 12(b) mandates the State
Government to count the services rendered by the respondents-
petitioners prior to 2015 for the purpose of pension.
44. Further, the statutory scheme itself clearly contemplates
grant of pensionary benefits to those employees whose services
fall within the ambit of “qualifying service” as defined under the
Rules of 1996. Once the services rendered satisfy the
requirements of qualifying service, the entitlement to pension
necessarily follows in accordance with the said Rules. Even the
Hon’ble Supreme Court, in State of Himachal Pradesh vs.
Sheela Devi (supra) , has affirmed this position in law. Para no.9
of the said judgment reads thus:
“9. The Learned Advocate General is correct in his
interpretation, inasmuch as a facial reading of Rule 2(g)
would indicate that contractual employees are excluded from
the pale of Pension Rules . However, what is significant is
that the rule itself in its opening terms saves the application
of other provisions of the pension rules: "Save as otherwise
provided in these rules". If the opening phrase of Rule 2
were to be understood in this context, any interpretation of
Rule 17 as render such substantive provision redundant.
Rule 17 was engrafted essentially to cater to the eventuality,
where the employees working on contract basis were
regularized at a later stage. It is only for the purposes of
pension that the past service as a contractual
employee is to be taken into account .”
45. The Hon’ble Supreme Court in K.S. Pundir vs. State of H.P.
(supra), relied upon by learned counsel for both sides, has
categorically held that where a person is initially engaged by the
Government on a contractual basis for a specified period and is
thereafter appointed, without any interruption, to the same or
another post in a substantive capacity in a pensionable
establishment under the same Government, the period of service
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rendered on contractual basis is liable to be counted for the
purpose of pension. Para nos.2 and 3 of the said judgment are
relevant, which are reproduced as under:
“2. The short question that arose for consideration before
the High Court in the writ petition filed by the State of
Himachal Pradesh was that whether the service rendered by
the appellant herein in the Special Frontier Force
Establishment 22, Government of India should be counted
for the purpose of pension and the State of Himachal
Pradesh should give pension and other retiral benefits on
that basis. The facts that are not in dispute are that the
appellant rendered service between 12-11-1969 to 2-6-1974
on contract basis with the Government of India. Later he
was appointed in the State service. When the time came for
fixing the pension, he made claim to count the said period of
12-11-1969 to 2-6-1974 for the pensionary benefits. He
approached the Himachal Pradesh Administrative Tribunal for
the purpose of getting the relief. The Tribunal allowed his
application and gave direction to the State of Himachal
Pradesh to count the said period for the purpose of pension.
The State was not happy with the order of the Tribunal and
hence, filed the writ petition in the High Court. The High
Court relying on Rule 17 of the CCS (Pension) Rules, 1972
found that the interpretation placed by the Tribunal was not
correct and in terms of Rule 17 the appellant was not
entitled for counting the said period for the purpose of
pension. The High Court also found that the instructions
issued on 25-10-1996 under Rule 14 of the said Rules were
also not applicable to the facts of the case. The High Court
found that Rule 17 applies to the cases where a person was
initially engaged by the Government on contract basis for a
specified period and was subsequently appointed to the
same or another post in a substantive capacity in a
pensionable establishment without interruption of his duty.
The High Court a took the view that the engagement on
contract basis and subsequent appointment to the same or
another post in a substantive capacity should be under the
same Government. In our view, the interpretation of Rule 17
placed by the High Court is correct and in that view the
impugned judgment does not call for interference. We find
no merit in the appeal. It is accordingly dismissed.
3. At this stage, learned counsel for the appellant submitted
that pursuant to the order made by the tribunal, pensionary
benefits were given to the appellant and there may not be
any recovery of excess amount already paid. We direct that
the State Government shall not recover the excess amount
of pension paid pursuant to the direction of the tribunal.
Except this, in all other respects the impugned judgment
shall remained undisturbed. No costs.”
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46. In the said case, the Hon’ble Supreme Court applied Rule 17
of the CCS (Pension) Rules, 1972. On a parity of reasoning, this
Court finds that Rule 3(r) read with Rule 12 of the Rajasthan Civil
Services (Pension) Rules, 1996 operates on the same principle and
extends a similar benefit to the respondents–petitioners in the
present case.
47. In view of the above, the argument advanced by the learned
AAG does not appear to be well founded. The respondents–
petitioners have been discharging their duties continuously since
2002/2004 without any interruption, and their services have
consistently been found satisfactory, with no adverse remarks
recorded by any competent authority. Merely because an order of
appointment was issued in their favour in the year 2015, they
cannot be deprived of the benefits accruing from the date of their
initial appointment.
48. The Hon’ble Supreme court in the case of Jaggo vs. Union
of India (UOI) (SLP (C) No.5580 of 2024) decided on
20.12.2024 has held as under:-
21. The High Court placed undue emphasis
on the initial label of the Appellants'
engagements and the outsourcing decision
taken after their dismissal. Courts must
look beyond the surface labels and consider
the realities of employment: continuous,
long-term service, indispensable duties,
and absence of any mala fide or illegalities
in their appointments. In that light,
refusing regularization simply because
their original terms did not explicitly state
so, or because an outsourcing policy was
belatedly introduced, would be contrary to
principles of fairness and equity .
22. The pervasive misuse of temporary
employment contracts, as exemplified in
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this case, reflects a broader systemic issue
that adversely affects workers' rights and
job security. In the private sector, the rise
of the gig economy has led to an increase
in precarious employment arrangements,
often characterized by lack of benefits, job
security, and fair treatment. Such practices
have been criticized for exploiting workers
and undermining labour standards.
Government institutions, entrusted with
upholding the principles of fairness and
justice, bear an even greater responsibility
to avoid such exploitative employment
practices. When public sector entities
engage in misuse of temporary contracts, it
not only mirrors the detrimental trends
observed in the gig economy but also sets a
concerning precedent that can erode public
trust in governmental operations .
49. The aforesaid judgment delivered in the case of Jaggo
(supra) was further relied upon by the Hon’ble Supreme Court in
the case of Shripal and Ors. vs. Nagar Nigam, Ghaziabad
(Civil Appeal No.8157 of 2024) decided on January 31,
2025.
50. The Hon’ble Supreme Court in the case of Dharam Singh
and Ors. vs. State of U.P. and Ors., reported in 2025 AIR
Supreme Court 3897 has held as under :-
17. Before concluding, we think it necessary to
recall that the State (here referring to both the
Union and the State governments) is not a mere
market participant but a constitutional employer.
It cannot balance budgets on the backs of those
who perform the most basic and recurring public
functions. Where work recurs day after day and
year after year, the establishment must reflect
that reality in its sanctioned strength and
engagement practices. The long-term extraction
of regular labour under temporary labels
corrodes confidence in public administration and
offends the promise of equal protection.
Financial stringency certainly has a place in
public policy, but it is not a talisman that
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overrides fairness, reason and the duty to
organise work on lawful lines.
18. Moreover, it must necessarily be noted that
"ad-hocism" thrives where administration is
opaque. The State Departments must keep and
produce accurate establishment registers,
muster rolls and outsourcing arrangements, and
they must explain, with evidence, why they
prefer precarious engagement over sanctioned
posts where the work is perennial. If "constraint"
is invoked, the record should show what
alternatives were considered, why similarly
placed workers were treated differently, and how
the chosen course aligns with Articles 14, 16 and
21 of the Constitution of India. Sensitivity to the
human consequences of prolonged insecurity is
not sentimentality. It is a constitutional discipline
that should inform every decision affecting those
who keep public offices running.
………………..
20. We have framed these directions
comprehensively because, case after case,
orders of this Court in such matters have been
met with fresh technicalities, rolling
"reconsiderations," and administrative drift
which further prolongs the insecurity for those
who have already laboured for years on daily
wages. Therefore, we have learned that Justice
in such cases cannot rest on simpliciter
directions, but it demands imposition of clear
duties, fixed timelines, and verifiable
compliance. As a constitutional employer, the
State is held to a higher standard and therefore
it must organise its perennial workers on a
sanctioned footing, create a budget for lawful
engagement, and implement judicial directions
in letter and spirit. Delay to follow these
obligations is not mere negligence but rather it
is a conscious method of denial that erodes
livelihoods and dignity for these workers. The
operative scheme we have set here comprising
of creation of supernumerary posts, full
regularization, subsequent financial benefits,
and a sworn affidavit of compliance, is therefore
a pathway designed to convert rights into
outcomes and to reaffirm that fairness in
engagement and transparency in administration
are not matters of grace, but obligations Under
Articles 14, 16 and 21 of the Constitution of
India.
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51. Hence, we are of the view that the respondents–petitioners
had been continuously discharging their duties on the very same
posts since 2002/2004, performing functions identical to those
discharged by regularly appointed employees of the appellant–
department. Their services during this entire period remained
uninterrupted and were duly assessed in the ordinary course of
administration.
52. This Court also noted that, in view of the order dated
18.12.2012 passed by the learned Single Judge, the respondents-
petitioners herein have been granted protection of their seniority
vis-à-vis candidates subsequently selected by the RPSC. In such
circumstances, it can reasonably be inferred that the services
rendered by the respondents-petitioners from the inception stand
implicitly recognized. Consequently, such services are liable to be
reckoned for all intents and purposes, including for the grant of
pensionary benefits in the present case.
53. The concept of a probation period is intended to assess the
suitability and performance of a candidate for the post. While it is
true that, in the ordinary course, Rule 7(30) and Rule 8 of the
Rajasthan Service Rules provides for a probation period of two
years from the date of first appointment, in the peculiar facts of
the present case, the initial appointment of the respondents–
petitioners dates back to 2002/2004, albeit termed contractual,
and their performance throughout this period has never been
found deficient. It can, therefore, reasonably be presumed that
the appellant–State was satisfied with their suitability and
performance, and that they had effectively fulfilled the
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requirement of probation under Rule 8 of the Rajasthan Service
Rules from the date of their initial joining. It is a settled
proposition of law that mere technicalities cannot defeat
substantive rights where a person is otherwise legally entitled. In
this view of the matter, the learned Single Bench has rightly held
that the probation period of the respondents–petitioners cannot be
reckoned from the year 2015.
54. The purpose of prescribing a probationary period is to
evaluate the suitability, efficiency, and overall performance of an
employee. In the present case, such evaluation was, in effect,
already undertaken over a substantial length of time during which
the respondents–petitioners served the department continuously
and satisfactorily. Merely because the order of substantive
appointment came to be issued in the year 2015, the
respondents–petitioners cannot be deprived of the benefit of the
period during which they had already demonstrated their
suitability and competence on the post. To hold otherwise would
amount to elevating form over substance and ignoring the actual
nature and continuity of service rendered by them.
55. In the considered opinion of this Court, when the assessment
of service for the purpose of probation is to be based on the work
performed and conduct exhibited by the employee, the appellant–
State cannot be permitted to artificially confine the probation
period to commence only from the date of issuance of the
substantive appointment order in 2015. Such an approach would
be contrary to the underlying object of probation and would result
in manifest injustice. Accordingly, it is held that the probation
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period of the respondents–petitioners cannot be reckoned solely
from the year 2015, but must take into account their continuous
service rendered from the date of their initial engagement.
56. So far as the benefit of privilege leave is concern, rule 95 of
the Rules of 1951 clearly holds the field, which is reproduced as
under:-
“95. Leave to a temporary employee appointed
substantively without interruption in duty .—An official
not in permanent employ appointed without interruption of
duty substantively to a permanent post will be credited with
the privilege leave which would have been admissible if his
previous duty had been duty as a Government servant in
permanent employ diminished by any leave already taken.
Leave is not an interruption of duty for the purpose of this
rule.”
57. A close reading of Rule 95 of the Rules of 1951 clearly
indicates that where an employee, though not initially appointed
on a permanent basis, is subsequently appointed substantively in
government service without any interruption, such employee is
entitled to the benefit of grant of privilege leave for the services
rendered prior to such substantive appointment. In the present
case, the respondents–petitioners served the department
continuously and without any interruption prior to their
substantive appointment. Therefore, they are entitled to the
benefits of Rule 95 of the Rules of 1951. Merely because they
were engaged on a contractual basis does not disentitle them from
such benefit, particularly when they were discharging their duties
against permanent vacancies in the respondent department.
Consequently, for all intents and purposes, the services rendered
by them are liable to be treated as those of “temporary
employees” within the meaning of the Rules of 1951.
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58. In view of the discussions made above, we find no error in
the order passed by the learned Single Bench.
59. The appeal is, therefore, devoid of any force and the same is
hereby dismissed.
60. All pending applications, if any, also stand dismissed.

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