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2000 DIGILAW 739 (RAJ)

Sri Chand v. State of Rajasthan

2000-07-03

SHIV KUMAR SHARMA

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JUDGMENT 1. - The petitioner after having been selected by Rajasthan Public Service Commission, was appointed on the post of Vidhi Rachnakar against vacancy reserved for Scheduled Caste vide order dated July 19, 1997. After joining his duties on July 26, 1997 the petitioner started performing his duties as Vidhi Rachnakar. Thereafter the petitioner qualified the competitive examination conducted by the RPSC under the Rajasthan Prosecution Subordinate Service Rules, 1978 (for short 1978 Rules) and was appointed on the post of Assistant Public Prosecutor Grade II vide order dated January 28, 1999. After the petitioner opted to join as Assistant Public Prosecutor II, the State of Rajasthan vide its order dated Feb. 27, 1999 relieved him on the same day. It was specifically directed in the order that the petitioner himself desired to be relieved from the post of Vidhi Rachnakar and his lien shall stand terminated from the law and Legal Work Department. 2. The petitioner joined on Feb. 27, 1999 for training as APP II. After training he was posted in the Court of Additional Civil Judge (Junior Division) Cum Judicial Magistrate No.3 Alwar, where he joined his duties on March 30, 1999. 3. Grievance projected by the petitioner in the instant writ petition is that while he was only under training as APP II he had applied for his repatriation on the post of Vidhi Rachnakar and as he acquired lien on the said post, he became entitled to come back to the said post, but the respondent No.1 refused to repatriate the petitioner for accommodating and giving appointment to respondent No.2 who comes under the General Category and who stood at No.2 in the reserve list prepared by the RPSC. Therefore the petitioner has sought direction to repatriate and appoint him on the post of Vidhi Rachnakar with continuity of his service and to restrain the respondent No.1 from appointing the respondent No.2 on the post of Vidhi Rachnakar. 4. In the reply, the respondent No.1 averred the fact that the petitioner was relieved on Feb. 27, 1999 culminated into terminating his lien from his earlier post and there was no saving to the contrary. The petitioner cannot claim as a matter of right to get the old appointment again revived which stood terminated by his own action. 4. In the reply, the respondent No.1 averred the fact that the petitioner was relieved on Feb. 27, 1999 culminated into terminating his lien from his earlier post and there was no saving to the contrary. The petitioner cannot claim as a matter of right to get the old appointment again revived which stood terminated by his own action. It was further pleaded that there is nothing illegal in the action of the State Government in seeking to make use of the waiting list which had been requisitioned and received within six months from the date on which the original list was forwarded by the RPSC to the Government in view of proviso to Rule 24 of the Rajasthan Vidhi Rachnakar State and Subordinate Service Rules, 1981 (for short the 1981 Rules). Reply was also filed by the respondent No.2 stating therein that the petitioner had no legal right to get repatriation as desired by him as he had left the Law Department at his own will. It was also averred that the petitioner has no business to raise the question as to whether a candidate of General Category should be appointed or not to the post in question. Because the issue of appointment of a person of General Category or otherwise has no relevance in the subject matter under consideration. 5. I have reflected over the rival submissions and carefully weighed the material on record. 6. I was taken through Rules 7(17), 7(30), 7(34-A) and 18 of the Rajasthan Service Rules (for short the RSR) by Mr. Rajendra Prasad, learned counsel the attempt was made to establish that the petitioner's lien could not have been terminated even with his consent. The petitioner had a lien on the post of Vidhi Rachnakar therefore he has every right to be repatriated on the said post of Vidhi Rachnakar therefore he has every right to be repatriated on the said post. 7. On the other hand it was canvassed by Mr. M.C. Sharma, learned counsel appearing for the respondent No.2 that the petitioner had acquired lien on the post of APP II therefore his lien stood terminated on the post of Vidhi Rachnakar. Reliance was placed on (1) Jiwan Das Vs. Municipal Ors. Delhi (1971 SLR 277) , (2) Dr. Binoy Kumar Das Vs. State of Orissa (1974(1) SLR 320) and (3) Ajudhia Nath Dhingra Vs. U.O.I. (1975(2) SLR 230) . 8. Reliance was placed on (1) Jiwan Das Vs. Municipal Ors. Delhi (1971 SLR 277) , (2) Dr. Binoy Kumar Das Vs. State of Orissa (1974(1) SLR 320) and (3) Ajudhia Nath Dhingra Vs. U.O.I. (1975(2) SLR 230) . 8. Before proceeding further, I deem it necessary to look at the relevant statutory provisions.Rule 18 of the RSR provides thus "18. Termination of lien:-(a) A Government servant's lien on a post may in no circumstances be terminated even with his consent if the result will be to leave him without a lien or suspended lien upon a permanent post. (b) A Government servant's lien on a post stands terminated on his acquiring a lien on a permanent post (whether under the Government or Central/other State Government) outside the cadre on which he is borne. " Rule 7(17) defines 'Lien' as under:- "Lien - means the title of a Government servant to hold substantively, either immediately or on the termination of a period or periods of absence, a permanent post including a tenure post, to which he has been appointed substantively." Rule 7(26) defines 'Permanent post' thus "Permanent post - means a post carrying a definite rate of pay sanctioned without limit of time." Rule 7(34-A) defines substantive appointment as under:- "Substantive appointment - means the appointment of a Government servant on a permanent post and on which he acquires a lien." According to Rule 7(30) "Probationer means a person appointed provisionally against a substantive vacancy in the cadre of a service or on a substantively vacant post." 9. Admittedly the petitioner was appointed as APP II under Rule 22 of 1978 Rules after having been duly selected by the RPSC. The appointment of the petitioner was made against a substantive vacancy in view of Rule 24 which says that the appointment to the post in the service by direct recruitment shall be made by the Appointing Authority on occurrence of substantive vacancies from the candidate selected under Rule 22 in the order of merit. [Rule 26 of 1978 Rules provides that every person appointed against a substantive vacancy in the service by direct recruitment shall be placed on probation for a period of two years. [Rule 26 of 1978 Rules provides that every person appointed against a substantive vacancy in the service by direct recruitment shall be placed on probation for a period of two years. Rule 2(j) of 1978 Rules defines "substantive appointment" thus]:- "(j) 'Substantive appointment' means an appointment made under the provisions of these rules to a substantive vacancy after due selection by [any rules and includes an appointment on probation or as a probation followed by confirmation on the completion of the probationary period."] (Underlining is mine) 10. It is thus evident that the petitioner on March 30, 1999 when he assumed the charge of APP II in the Court of Additional Civil Judge (Junior Division) cum Judicial Magistrate No.3, Alwar held substantively a permanent post as his appointment was made under the provisions of 1978 Rules against the substantive vacancy. As the petitioner acquired lien on a permanent post of APP II, his lien on the post of Vidhi Rachnakar stood terminated in view of Rule 18(b) of the RSR. I do not find any merit in the submissions of Mr. Rajendra Prasad, learned counsel that as the petitioner was temporarily appointed on the post of APP II he did not acquire lien on the said post. Had the scheme of 1978 Rules been examined thoroughly, there was no scope of this argument. 11. As the lien of the petitioner on the post of Vidhi Rachnakar stood terminated, he has no right to be repatriated on the said post. 12. In so far as submission in respect of appointment from the reserve list is concerned, a look at the proviso to Rule 24 of 1981 Rules is necessary. It provides that the RPSC may to the extent of 50% of the advertised vacancies, keep names of suitable candidates on the reserve list. 13. The question that arises now is as to who are the suitable candidates ? Can a vacancy reserved for Scheduled Caste, be filled from the reserve list by appointing a candidate from the General Category ? In Shorter Oxford English Dictionary (Revised Edition 1975), the word 'suitable' means 'analogous' or 'corresponding or of two or more things, that are in agreement or accord." Schedule Caste is not analogous to 'General Caste'. Under proviso to Rule 24 of 1981 Rules it was the duty of the RPSC to keep names of suitable candidates in the reserve list. In Shorter Oxford English Dictionary (Revised Edition 1975), the word 'suitable' means 'analogous' or 'corresponding or of two or more things, that are in agreement or accord." Schedule Caste is not analogous to 'General Caste'. Under proviso to Rule 24 of 1981 Rules it was the duty of the RPSC to keep names of suitable candidates in the reserve list. It implies that candidates from Scheduled Caste according to merit should have been included in the reserve list. In my considered opinion the vacancy arose on account of leaving the job by a candidate belonging to Schedule Caste, can only be filled by another Scheduled Caste candidate shown in the reserve list and not by a candidate of General Category. Thus the respondent No.2 is not entitled to be appointed on the post of Vidhi Rachnakar that had been fallen vacant on account of relinquishing the same by the petitioner. 14. In view of what I have discussed hereinabove the writ petition is partly allowed. First prayer of the petitioner seeking repatriation on the post of Vidhi Rachnakar stands rejected but the second prayer appears reasonable. While allowing it I direct respondent No.1 not to appoint any candidate belonging to General Category from the reserve list against the vacancy caused by the petitioner. Costs easy.Petition Partly Allowed. *******