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1978 DIGILAW 9 (RAJ)

V. N. Pande v. State of Rajasthan

1978-01-06

DWARKA PRASAD

body1978
JUDGMENT 1. - The facts of this case lie in a narrow compass. The petitioner was initially appointed as an Election Supervisor in the Election Department of the Government of Rajasthan, on his being selected for that post by the Rajasthan Public Service Commission. Subsequently, the post of Election Supervisor was redesignated as that of an Upper Division Clerk. It appears that some time later, the petitioner was transferred on the post of Upper Division Clerk in the Commercial Taxes Department of the State Government. The Commissioner of Commercial Taxes by his order dated July 22, 1958 appointed the petitioner temporarily as an Inspector, Commercial Taxes, Grade II in a purely temporary and ad hoc capacity The petitioner continued to hold the post of Inspector Grade II in the Commercial Taxes Department until he was reverted to the post of an Upper Division Clerk by the order of the Commissioner, Commercial Taxes Rajasthan, dated February 15,1973. The reversion of the petitioner was brought about with immediate effect as directed by the aforesaid order dated February 15, 1973 The petitioner's case is that he could not been reverted from the post of Inspector Grade II, which he was temporarily holding, without there being any valid reason for doing so and that it should be declared that the petitioner continued to hold the post of Inspector Grade II in the Commercial Taxes Department of the State inspite of the order of his reversion. The case of the respondents is that the petitioner was reverted from the post of Inspector Grade II because the appointment of the petitioner on the said post of Inspector Grade II was made in violation of the provisions of Rajasthan Subordinate Service (Recruitment and other Service Conditions) Rules, 1960 (hereinafter called 'the Rules') and further the petitioner was over-age at the time of his aforesaid appointment as Inspector Grade II. It was also submitted that as the petitioner was holding the post of Inspector Grade II in a purely officiating ad hoc or temporary capacity, he had no right to the post. 2. It is not in dispute between the parties that the appointment of the petitioner on the post of Inspector Grade II in the Commercial Taxes Department was governed by the provisions of the Rules. 2. It is not in dispute between the parties that the appointment of the petitioner on the post of Inspector Grade II in the Commercial Taxes Department was governed by the provisions of the Rules. The learned Deputy Government Advocate was asked to point out the particular rule, which according to him was violated at the time when the petitioner was appointed as Inspector Grade II in a temporary capacity The only reply that was furnished by the learned Deputy Government Advocate was that the petitioner's appointment was not in accordance with the provisions of Rule 17 of the Rules. There can be no dispute in that matter as it is not even the case of the petitioner that he was recruited on the post of Inspector Grade II in accordance with the provisions of Rule 17, but what has been asserted on behalf of the petitioner by his counsel is that the petitioner was temporarily appointed on the post of Inspector grade II in accordance with the provisions of Rule 19 of the Rules. It was also faintly suggested by the learned counsel for the State that the junior-most post in the cadre of Inspectors in the Commercial Taxes Department was that of Inspector Grade III and the petitioner being employed in the ministerial service of the State as an Upper Division Clerk, could not have been appointed directly as an Inspector Grade II, which is a subordinate service post. 3. The posts included in the subordinate services, existing in the Commercial Taxes Department of the State are enumerated in Schedule II annexed to the Rajasthan Civil Service (Classification, Control and Appeal) Rules, 1958 and there are three grades of Inspectors, included therein namely Inspectors Grade I, Inspectors Grade II and Inspectors Grade III, which are all subordinate service post. It may thus be said that the junior most post existing as the lowest ladder or the cadre of Inspectors in the Commercial Taxes Department is the post of Inspector Grade III, while the other two posts of Inspector Grade II and Inspector Grade I were senior posts as compared to the posts of Inspector Grade III. It may thus be said that the junior most post existing as the lowest ladder or the cadre of Inspectors in the Commercial Taxes Department is the post of Inspector Grade III, while the other two posts of Inspector Grade II and Inspector Grade I were senior posts as compared to the posts of Inspector Grade III. However, learned Deputy Government Advocate was unable to point out any Rule, order of notification by which the State Government or the appointing authority might have prescribed as to which of the posts of Inspectors in the Commercial Taxes Department would be filled in by direct recruitment and which of those posts would be filled in by promotion or which of them would be filled in by both methods of recruitment and in what proportion The proviso to sub rule (3) of Rule 7 of the Rules provides that the State Government at the instance of the appointing authority, shall decide which of the posts included in the subordinate service would be filled in by selection and which of them would be filled by promotion and in case it decides that some categories of posts are to be filled in both by selection and promotion, then the Government is also required to determine the percentage of recruitment, by either method. No decision of the State Government in this respect has been placed before me and in the absence thereof it is difficult to conclude that the posts of Inspectors Grade II were to be filled in entirely by promotion from the posts of Inspector Grade III and that direct recruitment under Rule 17 or temporary appointment under Rule 19 could only be made at the lowest ladder in the cadre namely, on the posts of Inspectors Grade III As a matter of fact, what rule 19 provides is that any vacant post, which is required to be filled in by direct recruitment, may be filled by the appointing authority temporarily by appointing thereto a suitable official eligible for appointment to the post concerned under the provisions of the Rules and under Rule 17 any subordinate service post could be filled in by direct recruitment, unless there is an order passed to the contrary by the State Government under the proviso to sub-rule (3) of Rule 7 4. The only question that emerges for consideration then is as to whether the petitioner was a 'suitable official eligible for appointment' to the post of Inspector Grade II in the Commercial Taxes Department. The fact that he was a suitable official cannot be denied as he was selected for temporary appointment to the aforesaid post by the appointing authority, namely, the Commissioner of Commercial Taxes. Moreover, learned Deputy Government Advocate was unable to point out as to in what manner the petitioner was not eligible for appointment to the post of Inspector Grade II, except saying that he was overage. No other ground of eligibility which the petitioner did not fulfil has been pointed out to me. As regards the question of age. Rule 11 of the Rules provides the maximum age of 25 years for direct recruitment to any post in the service. But the first proviso of Rule 11 authorises the State Government to relax the upper age limit upto a maximum of 15 years in respect of particular category or categories of posts or even in the case of individuals in exceptional circumstances The petitioner has relied upon, in the present case, on a notification issued by the State Government, dated March 18, 1963 by which the upper age limit in the case of direct recruitment to the posts of Inspector Grade II of the Excise and Taxation Department has been relaxed upto the age of 35 years. This relaxation continued to remain in force until it was withdrawn by the order of the State Government dated May 6, 1971. The petitioner was born on July 1, 1936 and as such, he was almost 32 years of age on July 22, 1968 when he was appointed as an Inspector Grade II in a temporary capacity by the Commissioner Direct Taxes, Rajasthan. In view of the aforesaid facts, it cannot be held that the petitioner did not fulfil the qualification regarding age, as prescribed by Rule 11 of the Rules and as relaxed by the Government notification dated March 18, 1963. 5. In view of the aforesaid facts, it cannot be held that the petitioner did not fulfil the qualification regarding age, as prescribed by Rule 11 of the Rules and as relaxed by the Government notification dated March 18, 1963. 5. It is not the case of the State Government that the petitioner was reverted from the post of Inspector Grade II to his original post of Upper Division Clerk because the circumstances which led to his temporary appointment, namely that some Inspectors had been suspended, they ceased to exist or that there was no vacant post available in the category of Inspectors II. As the respondents have not been able to show as to in what manner the initial temporary appointment of the petitioner on the post of Inspector Grade II was in violation of the provisions of the Rules, I am unable to uphold the order of reversion of the petitioner. It is settled law that even a temporary employee has a right to hold the post and his temporary employment can only be brought to an end in accordance with law and not otherwise, As no irregularity has been pointed out in the temporary appointment of the petitioner on the post of Inspector Grade II, there does not appear to be any valid reason for not permitting him to continue on the post of Inspector Grade II, in a temporary capacity until the same is terminated in accordance with law. The respondents were, of course, free to terminate the temporary employment of the petitioner in accordance with the provisions of Rule 23-A of the Rajasthan Service Rules, out they did not choose to follow the procedure prescribed thereunder. 6. It has been brought to my notice that after the present writ petition was filed in this Court, the Rajasthan Commercial Taxes subordinate Service (General Branch) Rules, 1975 have come into force on August 4, 1975 and that the post of Inspector Grade II in the Commercial Taxes Department is included in the Rajasthan Commercial Taxes Subordinate (General) Service, which has been created by the aforesaid Rules. Besides other methods of recruitment provided for in the last mentioned Rules, there is a provision for appointment by screening of persons holding the posts included in the service on an ad hoc, officiating or temporary basis and it would be for the respondents to consider the question as to whether the petitioner is eligible for being screened under the aforesaid provisions, then the respondents would have to get the suitability of the petitioner adjudged by the appropriate committee for the purposes of his permanent absorption in the new service, created by the 1975 Rules. 7. In the result, the writ petition is allowed. The order of reversion of the petitioner from the post of Inspector Grade II in the commercial Taxes Department dated February 15, 1973 is set aside and it is declared that the temporary appointment of the petitioner on the post of Inspector Grade II was not invalid and that the petitioner continued to hold the post of Inspector Grade II in the Commercial Taxes Department until such appointment is terminated in accordance with law of course, the petitioner would have to be screened for permanent appointment on the post of Inspector Grade II, in accordance with the provisions of the proviso (3) to Rule 6 of the Rajasthan Commercial Taxes Subordinate Service (General Branch) Rules 1975 in case, he is found eligible for the same. The petitioner shall also be entitled to all consequential benefits including monetary benefits. The parties are, however, left to bear their own costs.Petition allowed. *******