Aksbaya Raj Goja v. Krishi Upaj Mandi — 1980 DIGILAW 379 (RAJ)

G.M. LODHA, J.— The petitioner was initially appointed as a Lower Division Clerk in the Krishi Upaj Mandi, Jodhpur, on June 18, 1968. On September 21, 1968, this order was superseded and the petitioner was ordered to be treated as an Upper Division Clerk on ad hoc basis. This was confirmed by the Marketing Officer, Agricultural Department vide letter dtd. October 8,1968. The Samiti vide order dated January 11, 1972, relieved him keeping his lien and treating him on leave without pay from January 12, 1972, as the petitioner was desirous of joining the University of Jodhpur. The Samiti thereafter passed an order on July 21, 1972, directing the petitioner to return back to the service, and in pursuance of that, he came back and joined the service on August 10, 1972. The period of the service of the petitioner as Upper Division Clerk, was extended from June 21, 1970 to March 31, 1973 vide order dated Nov. 29, 1973. He was then sent for training of Marketing Secretary vide order dated January 29,1975. On successful completion of this training, he was promoted as Assistant Secretary. But, without giving effect to this order he was promoted as Supervisor. The Rajasthan Agricultural Marketing Board approved this promo on vide its communication dated May 28, 1976. 2. In 1975, the State of Rajasthan framed the Rajasthan Agricultural Produce Markets (Market Committee Employees) Service Rules, 1975 (hereinafter referred to as the Rules). This was done under sec. 11 of the Rajasthan Agricultural Produce Markets Act, 1961. Rules 64 of the Rules prescribes the method of recruitment for superior posts. Proviso 2 to sub-rule (1) of Rule 64 provides that a person who has continuously held posts of temporary basis in the service for a period of not less than six months on January 1, 1975, shall be screened by the Selection Board referred to in Rule 65 (1) for adjudging their suitability to the posts held on January 1 , 1975 provided they possess the qualifications prescribed in the rules either for direct recruitment or for promotion, on the basis of which persons were selected for ad hoc/temporary appointments. 3. A screening committee was then constituted and the petitioner was selected for the post of Lower Division Clerk. In spite of that selection, the petitioner continued on the post of Supervisor. 4. 3. A screening committee was then constituted and the petitioner was selected for the post of Lower Division Clerk. In spite of that selection, the petitioner continued on the post of Supervisor. 4. On October 15, 1979, the petitioner has been recommended to be promoted as Upper Div. Clerk, and the promotion order was in passed in consequence thereof. The petitioner feeling aggrieved by the orders dated Oct. 15, 1979 and May 28, 1979, and from the threatened reversion, filed this writ petition and prayed that the following relief may be granted to him :— "That by an appropriate writ, order or direction, the orders dated 15.10.1979 and 28.5.1979 may be declared to be illegal in so far as the same relate to the petitioner and the respondents may be directed to get the case of the petitioner considered for appointment by screening on the post of U.D.C. on and from the date he is entitled to and get the case of the petitioner considered for appointment by promotion to the post of Supervisor after seniority being properly reckoned consequential to the relief aforesaid. That by an appropriate writ, order or direction the respondents may, in the meanwhile be restrained from effecting the reversion of the petitioner. Further, if in the meanwhile, for any reason the reversion of the petitioner is effected, the respondents may be directed to put back the petitioner on the post of Supervisor as if the order was never made, and the respondents may be directed to pay the petitioner all his emoluments and benefits consequential to such relief, if granted. That any other appropriate writ, order or direction which may be considered just and proper in the circumstances of the case may be issued in favour of the petitioner. That costs of the writ petition may be allowed to the petitioner." 5. The respondents have contested the writ petition. That any other appropriate writ, order or direction which may be considered just and proper in the circumstances of the case may be issued in favour of the petitioner. That costs of the writ petition may be allowed to the petitioner." 5. The respondents have contested the writ petition. The case of the respondents is that initial appointment of the petitioner as a U.D.C. was illegal, null and void because of the following reasons (a) that no person could be promoted to the post of U.D.C. without the working on the post of L.D.C. (b) that no appointment could have been made except through the Employment Ex-chang (c) that the petitioner had crossed the maximum age and (d) that since the petitioner was a temporary employee, he could not have been sent on deputation nor lien could have been kept on the post in the Krishi Upaj Mandi Samiti. 6. On the basis of the above, Mr. Mathur, learned counsel for Krishi Upaj Mandi Samiti and Mr. Bhandari, learned counsel for Marketing Board submitted that on the framing of the rules, the Screening Committee examined the case of the petitioner and found that his basic and initial appointment was illegal and, therefore, he could not have been and should not have been found suitable for the post of Upper Division Clerk. Consequently, the Committee recommended that he should be kept as an L.D.C. only. 7. The above contentions of Mr. Mathur and Mr. Bhandari were sought to be repelled by Mr. Mridul on the ground that the proviso to Rule 64 (1) nowhere empowers the Selection Board to reject or declare the petitioner unsuitable on the post of Upper Division Clerk on the basis of the grounds relied upon by the respondents. It was pointed out that at the relevant time when the petitioner was appointed as a U.D.C., there were no rules prescribed in the qualifications and whatever was required for the eligibility of a person for appointment or promotion to the post of Upper Division Clerk was duly fulfilled by the petitioner. 8. It would be now convenient to first reproduce rule 64 (1) with the proviso for ready reference as the entire fact of the case depends upon its interpretation,— "64-1. Method of recruitment for superior posts. 8. It would be now convenient to first reproduce rule 64 (1) with the proviso for ready reference as the entire fact of the case depends upon its interpretation,— "64-1. Method of recruitment for superior posts. (1) Recruitment to the service, after the commencement of these Rules, shall be made by the following methods :— (i) By direct recruitment: (ii) By promotion; (iii) By deputation from State Government; Provided that if the Secretary, or any authority authorised in this respect, is satisfied that suitable persons are not available for appointment by either method or recruitment in a particular year, appointment by either methed, in relaxation of the prescribed proportion, may be made in the same manner as specified in these Rules; Provided further that the persons, who have continuously held posts on temporary basis in the service for a period of not less than 6 months on 1-1-1975 shall be screened by the Selection Board referred to in Rule 65 (i) for adjudging their suitability to the posts held on 1-1-1975, provided they possess the qualifications prescribed in the Rules either for direct recruitment or for promotion, on the basis of which persons were selected for ad hoc/ temporary appointments." A plain reading of the proviso would show that the proviso contemplates the following conditions for the eligibility of the persons to be considered for suitability by the Selection Board (a) an employee must have continuously held a post on temporary basis in the service for a period not less than six months on 1-1-1975 and (b) that he should possess qualifications prescribed in the Rules either for direct recruitment or for promotion on the basis of which persons were selected for ad hoc/ temporary appointments. 9. It is not in dispute that on 1-1-75, the petitioner was holding the post of U. D. C. on temporary basis in the service of the Krishi Upaj Mandi Samiti, Jodhpur and had completed a period of six months. 10. The controversy centres round the second requirement of the qualifications. There again it is two-fold. The first question to be considered is whether the above requirements of the qualifications was laid by Mr. Mathur and Mr. Bhandari can be termed as qualifications ? The second limb of the submissions which were made by Mr. Mridul that they were never prescribed in the Rules would then require consideration. There again it is two-fold. The first question to be considered is whether the above requirements of the qualifications was laid by Mr. Mathur and Mr. Bhandari can be termed as qualifications ? The second limb of the submissions which were made by Mr. Mridul that they were never prescribed in the Rules would then require consideration. It is common ground that there were no such rules as the Rules of 1975. It was precisely on account of the absence of the rules that the proviso contemplated regularisation of the temporary appointments. However, Mr, Mathurs submission was that even though there were no such rules as 1975 Rules expressly framed and published under section 6 of the Rajasthan Agricultural Produce Market Act by the State Government having been previously published as required by sub - section 4 of that section but the orders or circulars containing the instructions in that respect should be treated as Rules. In order to substantiate his submission, he pointed out that under Sec. 36, the Government or the authority empowered by the Government is entitled to fram the Rules. Rule 41 of the Rajasthan Agriculture Produce Markets Rules, 1963, is as under, — "43. Servants of the market committee —(A) Every market committee shall have a Secretary appointed by the Government in case of Gazetted Officer (on deputation) and by Director in case of non- Gazetted Officer (on deputation) on such scale of pay and allowances as may be fixed by the Government" Sub - rule (14) of Rule 43 is as under, — "The terms and conditions of superior officers and servants shall be such as are approved by the Director and those of the inferior servants shall be such as the market committee itself may decide." Sub - rules (15) and (16) are as under,— "(15) The appointment of superior officers and servants shall be made by the Market Committee subject to the approval of the Director. Any punishment, revision in pay or terms of service or dismissal of the officers and servants shall be subject to the approval of the Director, those of the inferior servants shall be under the full control of the market committee but the committee shall make an immediate report to the Director in regard to their appointment, pay, punishment, dismissal and other matters relating to such servants. (16) The Director may by order in writing delegate any of his powers and duties under this rule to any of his subordinate officers subject to such conditions as he thinks fit." Anxs. D3, D6 and D7 are the orders in which certain instructions have been given about the appointment of the staff of the Mandi Samitis by the Marketing Officer. In Ex. D5, it is mentioned that it is expected that the recruitment has been made through the Employment Exchange. Again, in Ex D5, the Marketing Officer wrote to the Assistant Marketing Officer that he should explain to the Market Secretaries that they should draw the proceedings, prepare the budget estimates, draft resolutions and recommend promotion from L.D.C. to U.D.C. and from U.D.C. to Market Supervisors. A copy of this was sent to the Secretary of the Krishi Upaj Mandi Samiti concerned on 5-4-1968. On 1-6-68 the Director of Agriculture sent a circular Ex. D6 in which he emphasised that till the service rules are finalised, cases of promotion, recruitment in superior services and for that matter any arrangement or proposal should not be entertained without prior approval of the Director. Again on 7-9-68 by Ex.D7, the Marketing Officer intimated that till Service Rules are finalised, appointments only on the post of L.D.C., auction clerks and auctioneers be made. It was further pointed out that posts of U.D.Cs. in the higher grade should normally be filled up by promotion only after duly qualifying for the post. 11. Mr. Mathurs contention that these circulars and orders should be treated as Rules was sought to be substantiated by placing reliance upon the judgment of the Honble Supreme Court in B.S. Vadhera vs. Railway Board (1) wherein the question regarding the instructions issued by the Railway Board and other officers under Rule 157 of the Railway Establishment Code were examined. It was held that they are subsidiary rules. 12. Section 36 of the Act is relevant section for the purpose of enabling the State Government to frame rules for carrying out the provisions of this Act. These Rules, by virtue of sub-clause (4) of section 36 require prior publication. The requirement of prior publication can be dispensed with in exceptional cases if the State Government considers that it should be brought in force at once. These Rules, by virtue of sub-clause (4) of section 36 require prior publication. The requirement of prior publication can be dispensed with in exceptional cases if the State Government considers that it should be brought in force at once. Thereafter, under subclause (5) of the Act, the Rules are required to be placed before the Legislative Assembly when it is in Session for a period not less than 14 days The Legislature has got the powers to amend, modify and not to approve them. 13. The definition of Rule is defined in section 2 (15) which expressly says that rules mean Rules made under section 36. 14. In view of the above, a term Rules used in the proviso to rule 64 (1) therefore normally contemplates the Rules which may be framed under section 36 of the Act and which according to sub-clause (4), should have prior publication unless the publication is dispensed with by the Government. In the judgment of B. S. Vadhera (supra), the Honble Supreme Court was considering the Rules framed under proviso to Article 309 of the Constitution. Under rule 157, the President has directed the Railway Board to make rules of general application and therefore, since the Rules which were framed by the Board were under Rule 157 for which powers were given by the President under proviso to Art. 309, they were treated as the Rules. It would be pertinent to note that their Lordships of the Supreme Court has expressly laid down that this was so because of the absence of any Act having been passed by the appropriate legislature on the said matter. 15. In the instant case, section 36 is of the Act of Rajasthan Legislature. The Rajasthan Legislature has not authorised under section 36 that any one else except the State Government can frame Rules nor has it authorised that a subordinate officer or authority to the State Government can dispense with the requirement of prior publication. As a matter of fact, these circulars or orders which have been relied upon by Mr. Mathur in the form of Ex. R8, 9 and 10 are circulars or letters issued to the subordinate authorities like the Marketing Officer or the Secretaries inter-se. They were never published. As a matter of fact, these circulars or orders which have been relied upon by Mr. Mathur in the form of Ex. R8, 9 and 10 are circulars or letters issued to the subordinate authorities like the Marketing Officer or the Secretaries inter-se. They were never published. Rule 43 of the Rules and the relevant sub-rules extracted above certainly empowers the subordinate officer to lay down the conditions of service but they cannot be treated as the Rules for the purpose of proviso to rule 64(1). am, therefore, of the opinion that the requirement of recruitment or promotion through the Employment Exchange, a condition about the age. the requirement of the U.D.C to be recruited or promoted only from the L.D.Cs. were all pure and simple administrative instructions only and cannot be put at the high pedestal of the Rules contemplated by the proviso to Rule 64(1) and section 2(15) of the Act. In this view of the matter the entire foundation and the bedrock of the contentions raised by the respondents cannot survive on a legal scrutiny. At the time when the petitioner was appointed or promoted to the post of U.D.C., there were no rules providing such a promotion or about appointment except from the cadre of L.D.Cs. There were further no rules requiring that it should be attained only through the Employment Exchange. Again, there were no rules which require that a person having experience of L.D.C. for three years or seven years only can be promoted on the post of L.D.C. In the absence of that, it was too late in the year 1976 to oust the petitioner after he has worked on the post of U.D.C. from 1968 to 1976 and has been promoted even to the post of Supervisor to put back the clock by eight years and to insist that he should be reverted to the post of L.D.C. 16. Mr. Mathur, representing the Samiti, surprisingly tried to disown its own child by submitting that all the orders which were passed by the Samiti from 1968 to 1975 initially appointing the petitioner as U.D.C, permitting him to go to the University, getting his lien in the Samiti, permitting him to go back and join as U.D.C, confirming him on the post of U.D.C. and promoting him to the post of Supervisor were all illegal, null and void. Surprisingly again, it was an attempt of self condemnation by the Samiti but the petitioner cannot be made to suffer on account of such late realisation and wisdom which has drawn to the Samiti after about a decade. The respondents cannot be allowed to play with the careers of the employees in this casual and light hearted manner. It is curious that after making the payments of salaries and allowances giving promotions and passing a series of orders in favour of the petitioner and permitting him to work on the post of U.D.C. and Supervisor for such a long period now the Samiti wants this court to hold that all the orders which were passed by them were illegal, null and void. This, to say the least, is a very abnormal and unusual state of affairs The Samiti in this manner cannot be allowed to approbate and reprobate, to play the game of hide and seek with the life and careers of the employees. 17. It was held in Nayagarh Co- op. Central Bank vs. Narayan Rath (2) as under,— "Orissa Co operative Societies Rules (1953) Rr. 29 (d) and 34-Orissa Cooperative Societies Rules (1965). Rule 38-Appointment of Secretary-Appointment made in a meeting presided over by the Registrar,Co-operative Societies-Incumbent allowed to work for thirteen years-No action taken in the mean-time-Order by Registrar directing removal of incumbent on ground that appointment, was not made with his approval-Held, Registrar having acquiesced in the appointment and having allowed the incumbent to work for thirteen years, it was not open to him to set aside the appointment of the incumbent." Again, it was held in State of Assam vs. Raghava Rajgopalachari (3) that the respondents cannot be allowed to challenge their own order. 18. Again, in Faruq Ameen vs. State of Punjab (4) it was held,— " Constitution of India, Articles 162 and 226-Writ jurisdiction-Instructions laying down criteria and qualifications for appointment as Chairman and Trustees of Improvement Trust-Instructions not traceable to any statute Only guidelines- Non compliance in making appointments not to give any right to the petitioner to challenge appointments. Constitution of India, Article 162. Constitution of India, Article 162. Relaxation of qualifications-Government appointing Trustees-Trustees not fulfilling the qualifications prescribed in the executive instructions- No specific order relaxing qualifications -Entire record before Government when it appointed them-Relaxation implicit in the order of Government." I am, therefore, firmly of the opinion that none of the respondents can be permitted to successfully assail the qualifications even if they are deemed to be so of the petitioner on the date of his appointment as U.D.C. in the year 1968 or 1972. 19. Even if it is assumed, though I have held to the contrary, that the requirements mentioned above as pointed out by Mr. Mathur were contained in the Rules and the qualifications and orders of the Director and Marketing Officer had the effect of the Rules, then also a bare perusal of Ex. D5, D6 and D7 would show that the requirements were in the form of desires or expectations. In Ex D5, the words used were expected. In Ex. D7, also, a desire or expectation was pointed out. There was, thus, no blanket prohibition nor any mandatory requirement that only a person who has worked as an L D.C. for a number of years should be promoted as U.D.C. and that again should be done only through the employment exchange. An expectation or a desire or a wish may be laudable but it cannot be treated as laying down mandatory requirement of law or the Rule. That being so, I am convinced that in the year 1967 or 72,what-soever is taken, there was no requirement or the rules that appointment by promotion on the post of U.D.C. in the Mandi Samitis should be made only from the L D.C. and that too, after the L D C. has got some experience of three years or seven years. 20. The other limb of submissions of Mr Mathur was that the word suitability used in the proviso to sec.64(1) provided discretion to the Selection Committee and even though it is held that the petitioner was eligible, then also the discretion of the Selection Committee should not be disturbed and interfered with under Art. 226 of the Constitution. To start with, the submission appears to be plausible but on a close legal scrutiny, the submission cannot be sustained. The word suitable used in this proviso has got no relationship with the qualifi-citions. To start with, the submission appears to be plausible but on a close legal scrutiny, the submission cannot be sustained. The word suitable used in this proviso has got no relationship with the qualifi-citions. Undoubtedly it is nobodys case that suitability needs consideration of the merit or efficiency. It was a case of more or less screening and regularising. In Dr. Raghuviras dictionary, word suitable means "YOGY". In BLacks dictionary, the word suitable means fit and appropriate. The Selection Board cannot be permitted to expand the meaning and amplitude of the woRd suitable". 21. The original papers of the Selection Board were placed before me by Mr. Mathur and Mr. Bhandari. A perusal of them shows that the reason given for non selection of the petitioner as U.D.C. was that his original appointment was irregular. In view of the above, the basic question again is the same whether the original appointment of the petitioner was illegal or irregular as found by the Selection Board. Since 1 have come to the conclusion that the original appointment or promotion of the petitioner to the post of U.D.C. was not illegal nor irregular, I have got no hesitation in holdinG that the Selection Board while rejecting him for the post of U.D.C. adopted an illegal criteria and, therefore, its finding is vitiated. It is true that in the matter of discretion this Court would not interfere, but if the discretion is exercised for the purpose of unlawful or illegal criteria or extraneous or irrelevant considerations, not only this Court can but this Court should interfere as watchdogs of the Constitution. It has been repeatedly held that under Art. 226 of the Constitution, whenever a legal rights of citizens are adversely affected, invaded and infringed by the State or its functionaries, not only this Court can but it should in order to safeguard the rule of law and to see that the State functionaries and the State acts within the four corners of the law and the Constitution, should interfere and quash such order. While doing so, it should not accept the excuses or pretext as has been given in this case. 22. The result is that this writ application succeeds. The order directing the petitioners selection or appointment on the post of L.D.C. in pursuance of the recommendations of the Selection Board is quashed. The impugned orders dtd. While doing so, it should not accept the excuses or pretext as has been given in this case. 22. The result is that this writ application succeeds. The order directing the petitioners selection or appointment on the post of L.D.C. in pursuance of the recommendations of the Selection Board is quashed. The impugned orders dtd. 15.10.79 and 28.5.79 being illegal, so far as the petitioner is concerned, are quashed. The respondents are directed to get the case of the petitioner considered for appointment by screening on the post of U.D.C. on and from the date he was appointed U.D.C. initially in 1968. It is further directed that on the basis of the above findings, the petitioner should further be considered for appointment by promotion to the post of Supervisor. The respondents are further restrained from reverting the petitioner from the post of the Supervisor which he is holding now to any other post till full effect is given to the above findings of this Court by having a proper screening by the Board under the proviso to Rule 64 (1). The petitioner would also get the costs from the respondents No. 1 and 2.