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Rajasthan High Court · body

1995 DIGILAW 1071 (RAJ)

Shaitan Singh v. State of Rajasthan

1995-12-06

P.P.NAOLEKAR

body1995
Honble NAOLEKAR, J. – The relevant facts in brief are that the petitioners father late Shri Narpat Singh was a Police Constable (CP). He died on 17.2.65. The petitioner submitted an application for appointment in the Rajasthan State Police Service under the Rajasthan Recruitment of Dependants of Government Servants Dying while in Service Rules, 1975 (hereinafter called as `the Rules of 1975). After some proceedings taken up in the High Court , under the directions issued by the Court, the petitioner was given appointment on the post of Lower Division Clerk (L.D.C) by order dated 23.1.92. The appointment was for probation for a period of two years with a stipulation that the petitioner will be required to qualify in the typing test in Hindi or English within a period of six months. The order contained direction that in case his services are not found satisfactory, services will be liable to termination. Consequent of this order, the petitioner joined the service as L.D.C. on 23.1.92 . It is the case of the petitioner that disciplinary proceedings for having remained absent without leave, were taken against the petitioner three times under rule 17 of the Rajasthan Civil Service (Classification, Control & Appeal ) Rules, 1957 and a punishment of censure was imposed by orders dated 23.11.92, 21.1.93 and 24.2.93. The petitioner was asked to appear in the typing test in the month of October, 1992, but he could not appear in the test because of his ill health and physical and mental agony undergone on account of the death of his wife . He was given another opportunity to appear in the typing test and was told that failing which, his service shall be considered to be unsatisfactory and will be terminated. The petitioner thereafter took the typing test but could not clear the same. Thereafter the impugned order dated 20.8.93 of discharge was passed whereby the services of the petitioner were terminated on the ground that the petitioner was appointed on probation for a period of two years. The opportunities given to him were not availed of and as his work during the probation period was not satisfa- ctory, the order was issued in exercise of the powers conferred under rule 29 of the Rajasthan Subordinate Offices (Ministerial Staff) Rules ,1957 (hereinafter called as `the Rules of 1957). 2. The opportunities given to him were not availed of and as his work during the probation period was not satisfa- ctory, the order was issued in exercise of the powers conferred under rule 29 of the Rajasthan Subordinate Offices (Ministerial Staff) Rules ,1957 (hereinafter called as `the Rules of 1957). 2. According to the respondents, the petitioner was appointed on probation and the petitioner was rightly discharged taking resort to rule 29 of the Rules of 1957 as his services were unsatisfactory. The petitioner was called by the Appointing Authority to appear in the typing test but despite being given opportunities on various occasions, the petitioner used to remain absent from duty and at no point of time, he took the typing test. (3). It is contended by the counsel for the petitioner that the petitioner was appointed under the Rule of 1975 and as such , he was appointed permanently on the post of L.D.C. and not on probation as per the provisions of the Rajasthan Subordinate Offices Ministerial Staff Rules, 1957, and as such, his services could not have been terminated under rule 29 of the Rules of 1957. It is further urged that the petitioners services if at all, could have been terminated by taking recourse to rule 16 of the Rajasthan Civil Service (Classification, Control & Appeal) Rules , 1957, after appropriate disciplinary proceedings. (4). For deciding the question raised, it would be necessary to consider the relevant provisions of the Rules of 1957 and the Rules of 1975. Rule 7 of the Rules of 1957 lays down a method of recruitment by which the general cadre of the Lower Division Clerks are to be filled in from amongst the candidates who pass or have passed the Junior Diploma Course and if there remains vacancies, it shall be filled in by a competitive examination to be conducted by the Commission. It also provides for absorption of work charged employees. Rule 28 prescribes period of probation. According to it, all persons appointed to the service by direct recruitment against a substantive vacancy shall be placed on probation for a period of two years. It also provides for absorption of work charged employees. Rule 28 prescribes period of probation. According to it, all persons appointed to the service by direct recruitment against a substantive vacancy shall be placed on probation for a period of two years. Rule 30 provides for confirmation of probationer at the end of the period of his probation if he has passed a Departmental test of proficiency in Hindi , has passed the prescribed Departmental Examination, if any, completely and the Appointing Authority is satisfied that his integrity is unquestionable and he is otherwise fit for confirmation. Rule 30-C is an exception. It provides that notwithstanding anything contained in rule 30, a probationer shall be confirmed in his appointment at the end of his period of probation even if the prescribed Departmental Examination/training/proficiency test in Hindi, if any, are not held during the period of probation provided he is otherwise fit for confirmation. Rule 29 lays down that if it appears to the Appointing Authority, at any time, during or at the end of the period of probation, that a member of the Service has not made sufficient use of his opportunities or that he has failed to give satisfaction, the Appointing Authority may revert him to the post held substantively by him immediately preceding his appointment , if he holds a lien thereon or in other cases may discharge or terminate him from Service. Appointing Authority is authorised to extend the period of probation for further period of probation not exceeding two years, if he so thinks fit and proper in case of direct recruitment to Service. A reading of the aforesaid provisions in the Rules of 1957 makes it clear that the initial appointment to the Service shall be made for a period of two years on probation subject to extension by the Appointing Authority and the probationer so appointed is subject to discharge from the service if in the view of the Appointing Authority, he has not made sufficient use of his opportunities or he has failed to prove his satisfactory service. The aforesaid rule makes it abundantly clear that continuation of service on probation, extension of period of probation and confirmation in service depends upon satisfactory performance of the Govt. servant in view of the Appointing Authority. The aforesaid rule makes it abundantly clear that continuation of service on probation, extension of period of probation and confirmation in service depends upon satisfactory performance of the Govt. servant in view of the Appointing Authority. (5).The question is whether by virtue of appointment given under the Rules of 1975, the appointment shall be deemed to be a permanent appointment and not the appointment given on probation for a specified period. (6). The Rajasthan Recruitment of Dependants of Government Servants Dying while in Service Rules, 1975, came into force from 2.10.75. The Rules are applicable for recruitment of dependants of deceased Govt. servant dying while in service to public service and post in connection with the affairs of the State except the service and post in major State Service as Rajasthan Administrative Service, Rajasthan Police Service, Rajasthan Forest Service, Rajasthan Judicial Service and the Rajasthan Accounts Service. Rule 5 lays down that in case of deceased Govt. Servant, which is defined to be a Govt. servant dying while in service on or after 2.9.72, one member of his family who is not already employed under the Central/State Govt. or Statutory Board/Organisations/Corporations owned or controlled by the Central/State Govt. shall on making an application for appointment , be given suitable employment in Govt. Service without delay only against an existing vacancy, which is not within the purview of the State Public Service Commission. The appointment shall be given in relaxation of the normal recruitment rules subject to condition that such member fulfils the educational qualification prescribed for the post and is also otherwise qualified for Govt. Service. In the case of non- availability of a vacancy or any member of the family being unqualified or a minor and, therefore, not found suitable or eligible for immediate employment, then his case shall be considered immediately on availability of the post or any one of them becomes qualified or eligible for such employment under the Rules. Proviso is added to this rule by Notification dated 22.8.83 which provides that a recruitment may be made on posts which are within the purview of the Rajasthan Public Service Commission where the Appointing Authority is satisfied in consultation with the Department of Personnel and the Rajasthan Public Service Commission that a dependant of a deceased Govt. Proviso is added to this rule by Notification dated 22.8.83 which provides that a recruitment may be made on posts which are within the purview of the Rajasthan Public Service Commission where the Appointing Authority is satisfied in consultation with the Department of Personnel and the Rajasthan Public Service Commission that a dependant of a deceased Govt. servant is qualified and suitable for appointment to such post except the major State services mentioned in rule 3 i.e. the Rajasthan Administrative Service, the Rajasthan Police Service, the Rajasthan Forest Service, the Rajasthan Judicial Service and the Rajasthan Accounts Service. Thus , these rules are a departure from the normal rule applicable to appointments in public service that it should be made strictly on the basis of open invitation of applications and on merit. (7). Rule 8 is in respect to relaxation of the age and other requirements . Sub-rule (1) of rule 8 provides that a candidate seeking appointment under the Rules must not be less than 16 years at the time of appointment . Where the wife of the deceased Govt. servant is the only candidate eligible and qualified for such appointment, there shall be no maximum upper age limit. Sub-rule (2) of rule 8 further lays down that the procedure required for selection, such as written test, type test or interview by a Selection Committee or any other Authority shall be dispensed with. However, it is left open to the Appointing Authority to interview the candidate in order to satisfy himself that the candidate will be able to maintain the minimum standards of work and the efficiency ex- pected on the post or to prescribe any condition, if considered necessary for acquiring any training or proficiency e.g. typing speed or any other qualification etc. within a reasonable period, after such employment is made under these Rules. Therefore , it is permissible under the Rules that conditions can be laid down while appointing a person under the Rules to acquire the proficiency or training required for the post for which the appointment was made, within a reasonable period of the appointment. (8). within a reasonable period, after such employment is made under these Rules. Therefore , it is permissible under the Rules that conditions can be laid down while appointing a person under the Rules to acquire the proficiency or training required for the post for which the appointment was made, within a reasonable period of the appointment. (8). In Life Insurance Corporation of India vs. Asha Ramchandra Ambekar (Mrs.) & another (1) the appointment of a person on compassionate ground came up for consideration of the apex Court and it was held that the courts should endeavour to find out whether a particular case in which sympathetic considerations are to be weighed falls within the scope of law. Disregardful of law, however, hard the case may be, should never be done. The court cannot order appointment on compassionate grounds beyond the provisions of statutes, regulations and instructions. The principle has been reiterated in the case of State of Rajasthan vs. Chandra Narain Verma (2) when the Court says that it is one thing to say that a family member of the deceased is entitled to appointment on compassionate ground, but it is altogether a different thing to say that his appointment should be made regardless of the rules. (9). In Umesh Kumar Nagpal vs. State of Haryana and others (3), the Supreme Court observed as under :– "The whole object of granting compassionate employment is to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased , and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. The posts in Classes III and IV are the lowest posts in non- manual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency. The posts in Classes III and IV are the lowest posts in non- manual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency. Offering compassionate employment as a matter of course irrespective of the financial condition of the family of the deceased and making compassionate appointments in posts above Classes III and IV, is legally impermissible." Thus, the view of the Court is that the only ground which can justify compassionate employment is the penurious condition of the deceased family. The object being to help the family to get over the financial crisis which it faces at the time of death of the sole bread earner and the compassionate appointment can be given strictly in accordance with the rules governing such an employ- ment. (10). It is clear from the decisions of the apex Court that appointment has to be made strictly in accordance with the rules and the whole object to grant compassionate employment is to help the family to tide over the circumstances. The object is not to give employment to such family member on the post held by the deceased. The appointment is made to enable the family to get over the financial crisis and as the exception to the normal rule that appointment is to be made by way of open competition and on merits, is in consideration of the service rendered by the deceased employee and the legitimate expectations of the society in status and affairs of the family on account of the sudden demise of the person. (11). The Rules of 1975 do not indicate in any way that the person appointment on compassionate ground should be given a permanent appointment nor there is any indication that for the appointment to the State service, he shall not be governed by the Rules of 1957. Rule 28 of the Rules of 1957 pro- vides that all persons appointed to the service by direct recruitment against a substantive vacancy shall be placed on probation for a period of two years. This rule shall apply to the persons appointed even under the Rules of 1975. Rule 28 of the Rules of 1957 pro- vides that all persons appointed to the service by direct recruitment against a substantive vacancy shall be placed on probation for a period of two years. This rule shall apply to the persons appointed even under the Rules of 1975. The only exception being that before appointment, they shall not be subjected to the selection process such as written test, type test or interview by Selection Com- mittee or any other authority. The person appointed would also be required to fulfil the condition laid down in the appointment order. The person appointed under the Rules is given a favourable treatment but that favourable treatment at the time of appointment is subject to acquiring the proficiency of typing speed or any other qualification within a reasonable period as is specifically indicated in sub-rule (2) of rule 8 of the Rules of 1975. They are expected to reach to the standards required in the service after they are appointed. The fact cannot be lost sight of that they have been given a preference in employment forgetting the claim of millions of other meritorious persons, who are seeking Govt. employment. Thus, the favourable treatment given to them cannot be extended for more than the period provided under the Rules by treating their employment to be permanent and not on probation. (12). It is revealed from the record that the petitioner did not appear for typing test till 23.7.92 i.e. six months from the date of appointment. Thereafter, from 15.6.92 to 21.6.92 and again from 8.7.92 to 27.7.92, he wilfully remained absent from duty and, therefore, the test could not be held. The petitioner was again directed to appear in the typing test and for this, a date was fixed on 24.10.92. The petitioner did not appear on that date and sought time. On the request of the petitioner, the date for typing test was extended and the petitioner was asked by letter dated 18.1.93 to appear in the typing test. It was also men- tioned in the letter that if the petitioner fails to take the typing test. his services will be deemed to be not satisfactory and accordingly action will be taken against him. It was also men- tioned in the letter that if the petitioner fails to take the typing test. his services will be deemed to be not satisfactory and accordingly action will be taken against him. Despite this clear notice, the petitioner again did not appear in the typing test and, therefore, again a letter dated 20.5.93 was issued directing him to appear in the typing test on 19.6.93 . The letter has specifically mentioned that time and again dates of typing tests were extended on the petitioners request and no further extension will be granted if the petitioner fails to take the typing test, and shall be discharged from service. The petitioner as usual , did not appear and instead made an application dated 22.6.93 wherein the petitioner has admitted the terms of his appointment and mistake and carelessness for not learning typing or clearing the typing test and requested that as he is a poor person, he may be given further opportunity to take the typing examination. The typing test may be fixed on 17.8.93 and if he does not take the typing test, his services may be discharged as unsatisfactory services. The petitioners application was sympathetically considered and further date was fixed on 17.8.93 and the petitioner was informed that if he fails to take the typing examination, his services will be deemed to be dissatisfactory and he will be discharged from service. The petitioner was directed to appear in the typing test on 17.8.93 as requested by him. The petitioner again did not appear in the typing test. Therefore, ultimately the matter was considered/examined and the authorities came to the conclusion that it is not reasonably practicable to retain the petitioner in service and his services being unsatisfactory, he was discharged from service vide order dated 20.8.93. The petitioners appointment on probation with the condition of passing the typing test is in accordance with the Rules and the object for which the appointment was given. The petitioner has been given various opportunities to pass the typing test and he has failed to pass it. In fact, the respondents have filed the paper of the typing test taken by the Employment Officer at Banswara on 19.8.93 of the petitioner from which it is apparent that not a single correct word was typed by the petitioner. This shows the incompetency of the petitioner to continue in the Govt. service. In fact, the respondents have filed the paper of the typing test taken by the Employment Officer at Banswara on 19.8.93 of the petitioner from which it is apparent that not a single correct word was typed by the petitioner. This shows the incompetency of the petitioner to continue in the Govt. service. The order of discharge passed by the respondents in exercise of the powers conferred under rule 29 is in accordance with law. (13). Writ petition is dismissed . No order as to costs.