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1994 DIGILAW 780 (RAJ)

Mool Chand Verma v. State of Rajasthan

1994-09-26

G.C.MITTAL, R.S.VERMA

body1994
Honble VERMA, J. — Petitioners this case are regularly in appointed Tehsildars, promoted from subordinate service in accordance with the provisions of Rajasthan Tehsildars Service Rules, 1956 ( for short, the Rules)- Petitioner Mool Chand was promoted vide order dated 22.1.1990 against the vacancy of the year 1988-89. Peititionrs Lal Mohan & Rikhab Chand were promoted vide order dated 18.11.1993 against the vacancy of the year 1991- 92. Petitioners Bhagwan Singh & Ghasi Ram were also promoted vide order dated 18.11.1993 against the vacancy of the year 1992-93. (2). The order dated 22.01.1990 (Annexure 1) by which petitioner Mool Chand was promoted, stipulated that he shall be on probation of one year, and further that, he would be confirmed on the post of Tehsildar only after he has passed departmental examination. The orders dated 18.11.1993 (Annexure 2 & 3) by which Lal Mohan Rikhab Chand. Bhagwan Singh, & Ghasi Ram were promoted as Tehsildars, do also make similar stipulations. All the petitioners were sent for training in a condensed course of 16 weeks at the All Purposes Revenue Training School, Tonk, and all of them successfully completed their training. (3). All the petitioners had completed 45 years of age and hence moved representation (s)for being granted exemption from appearing at the departmental examination which was to be held in accordance with Rule 14(d) of the Rajasthan Tehsildars Service (Departmental Examination) Rules, 1960 (for short, the Tehsildars Departmental Examination Rules). The representations were rejected and hence the petitioners have filed this writ petition under Article 226 of the Constitution of India. (4). The grievance of the petitioners is that the concerned rule fixes a cut-off date of 1.01.1982, and lays down that Government employees who have attained the age of 45 years and* are otherwise eligible, are exempted from appearing in departmental examination. It is pleaded that fixing of this dale is arbitrary and has no nexus with the object to be achieved and hence the rule may be declared to be ultra vires and unconstitutional and the respondents be directed to exemp the petitioners from appearing in the departmental examination and the petitioners be declared to be confirmed on the post of Tehsildar. (5). (5). Other grievance of the petitioners is that even though the petitioner No. 1 was promoted against the vacancy of the year 1988-89, yet he has not been paid salary on the post of Tehsildar from 01.04.1998 to 22.01.1990 on the ground that he did not actually discharge duties of the Tehsildar for the aforesaid period. Likewise, petitioner Nos.2 &3 were promoted as Tehsildares against the vacancy of the year 1991-92 but they have not been paid salary of the post of Tehsildar for the period from 01.04.1991 to 18.11.1993 on the ground as that of the petitioner No.l. Likewise, petitioner Nos.4 &5 have also not been paid salary for the post of Tehsildar for the period from 01.04.1992 to 18.11.1993, It is pleaded on behalf of the petitioners that the respondents were under a duty to determine vacancies year wise and fill them yearwise, and the petitioners could not be deprived of their salary for the aforesaid respective periods on the ground of non action on the part of the respondents in not filling the vacancies as and when they fell due and, therefore, the respondents be directed to pay to them salary for the post of Tehsildar for the respective periods, as claimed by them. (6). Shri Maneesh Bhandari, has put in appearance on behalf of the respondents but, has not filed any reply to the writ petition as in his view, no reply -was required and it was only a question of interpretation of the legal provisions. Mr. Bhandari opposes the writ petition on both the counts. (7). Shri Sanjay Pareek, learned counsel for the petitioner submits that first controversy regarding cut-off dated in Rule 14(d) of the Tehsildars Departmental Examination Rules, is squarely concluded by DB decision of this Court rendered in Basliram Mangal Vs. State of Rajasthan & others (1) wherein similar cut-off date incorporated in similar provisions of Rajasthan Civil Services ( Departmental Examinations ) Rules, 1959 was struck down by this court,. On the second point, his contention is that the petitioners could not be made to suffer pecuniary loss because of the inaction on the part of the respondents in not filling the vacancies yearwise timely. (8). Mr. On the second point, his contention is that the petitioners could not be made to suffer pecuniary loss because of the inaction on the part of the respondents in not filling the vacancies yearwise timely. (8). Mr. Bhandari on behalf of the respondents could not controvert the proposition that fixing of the cut off date in R. 14(d) of the Tehsidars Departmental Examination Rules did not have any nexus with the object to be achieved and the similar rule of cut- off date was struck down by this court as unconstitutional and ultra vires in Bastiram Mangals case (supra). (9). On the second point, Shari Bhandari submits that since the petitioners did not actually work as Tehsildars from the dates the vacancies occurred, they cannot claim any salary for the periods they did not work as Tehsildars and they can be granted salary only for the periods for which they have actually worked as Tehsildars. (10). We have given out earnest consideration to the contentions advanced before us. We take second point, first. It is unfortunate that the respondents did not take steps to fill up vacancies in time with the result, that the petitioners could not join posts of Tehsildars even though promoted on the dates vacancies actually became available. Such administrative delays demoralise an employee and also cause avoidable pecuniary loss to him, resulting in unnecessary litigation. However, this cannot be a ground for allowing petitionrs salary for the periods for which they did not actually discharge duties of Tehsildar. The respondents should set their house in orders so that this sort of thing does not recur. The Government should also find out and take suitable action against persons due to whose fault, the Departmental Promotion Committee could not be convened in time and the petitioners could not be promoted timely. However, we leave this matter at that and at the cost of repetition may state that the petitioners are not entitled to the salary of the post of Tehsildars for the period(s) for which they did not actually discharge duties of Tehsildar. The principle of no work, no pay is well entrenched in our service jurisprudence and fully governs the present case. (11). Now, reverting to the first contention we may state that there is no apparent or ostensible purpose for fixing cut-off date as 1st January,1982. The principle of no work, no pay is well entrenched in our service jurisprudence and fully governs the present case. (11). Now, reverting to the first contention we may state that there is no apparent or ostensible purpose for fixing cut-off date as 1st January,1982. The idea appears to be that Government employees who have attained 45 years of age be exempted from appearing in the departmental examination. Cut-off date given in Rule 14(d) does not subserve any purpose, whatsoever. Mr. Bhandari could not point to us as to what was the purpose of inserting the impugned cut-off date, and what were the reasons which prevailed with the Government to fix up such a date. (12).. In Bastiram Mangals case (supra), relevant Rule was couched in the following terms: — "18(1) Govt. employees who have attained, the age of 45 years on or before 1.01.1982, are exempted from appearing at the departmental examination." In that case, ibid, writ petitioner challenged cut-off date and contended that there was no purpose in fixing such a cut-off date in respect of such employees who had attained the age of 45 years. All the employees, who had attained 45 years of age fromed one class and no distinction could be made between those who had attained the age of 45 years on or before 01.01.1982 and those who had attainded the age of 45 years after the said date. After discussing the case-law on the point it was held that fixing of cut-off date was arbitrary and did not serve andy rational purpose and hence, fixing of cut-off date was declared as ultra- vires. (13). In our opinion, the ratio of Bastiram Mangals case (supra) squarely applies to the facts of the present case and in our opinion, cut-off date inserted in Rules 14(d) of the Tehsildars Departmental Examination Rules is arbitrary, illegal and ultra vires as it creates two artificial classes. We accordingly strike out the words,"on or before 1.01.1982" from Rule 14(d) of the aforesaid Rules as being unconstitutional. After offending portion is struck out and deleted, relevant Rule would read as under: — "14(d) Government employees who have attained the age of 45 years are exempted from appearing at the Departmental Examination." (14). No other point was urged before us. (15). After offending portion is struck out and deleted, relevant Rule would read as under: — "14(d) Government employees who have attained the age of 45 years are exempted from appearing at the Departmental Examination." (14). No other point was urged before us. (15). Consequently, we partly allow this writ petition and directs the respondents to confirm the petitioners on the posts of Tehsildar without undergoing a departmental examination subject ofcorse to suitability for confirmation on other relevant considerations. Other reliefs claimed in the writ petition cannot be granted and are refused. In the circumstances of the case, we make no order as to costs.