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2001 DIGILAW 184 (RAJ)

Mahesh Singh v. State of Rajasthan

2001-02-05

A.R.LAKSHMANAN, RAJESH BALIA

body2001
R.L. Jangid, Addl. Advocate General and B.L. Bhansali, for Respondents Honble LAKSHMANAN, C.J.–This special appeal is filed by the appellant against the judgment dated 30.4.1997 passed by the learned Single Judge in S.B. Civil Writ Petition No. 766/1991 filed by him by which order the learned Single Judge has dismissed the writ petition. The writ petition was filed to direct the respondents to assign seniority to the petitioner, appellant herein from the date of his initial appointment and also to declare that proviso (11-a) to Rule 27 of the Rajasthan Subordinate Offices Ministerial Staff Rules, 1957 (hereinafter referred to as `the Rules of 1957) does not affect the case of the petitioner-appellant. A further prayer to amend the seniority list dated 21.3.1990 was also made. The case of the appellant was that he appeared in the examination conducted by the Rajasthan Public Services Commission, Ajmer for recruitment to the post of Lower Division Clerks in the year and was declared successful and was allotted to the Irrigation Department in the Rajasthan Canal Project. He was appointed in the year 1978 and was posted in the Rajasthan Canal Project. He submitted an application to the Chief Engineer, Irrigation Department for his transfer in the Ajmer District or to a place near to Ajmer. The application is Annexure-1 to the writ petition. The applications of the petitioner and one another L.D.C. were forwarded by the concerned officer to the Chief Engineer, Irrigation, Jaipur on 16.6.1979. Although the application was made in the 1979, yet orders for transfer was made only on 25.2.1982 under Annexure-3. In the said order (Annexure-3) it is stated that the seniority of the appellant will be determined from the date of his joining in the new department. The appellant was transferred to Irrigation Zone, Jaipur and Circle Jodhpur. However, at that time the seniority was to be maintained circle-wise. It is submitted that Ajmer was not in the Jodhpur Circle at that time. Earlier Pali was in Jodhpur Circle but subsequently, Jodhpur Circle was bifurcated and an independent Pali Circle was created. The provisional seniority list of the Lower Division Clerks was issued on 12.2.1988 under the orders of the respondent No.2 (Annexure-4) and the seniority of the appellant had been counted from the date of his joining in the new seniority unit. Earlier Pali was in Jodhpur Circle but subsequently, Jodhpur Circle was bifurcated and an independent Pali Circle was created. The provisional seniority list of the Lower Division Clerks was issued on 12.2.1988 under the orders of the respondent No.2 (Annexure-4) and the seniority of the appellant had been counted from the date of his joining in the new seniority unit. According to the appellant, he has been deprived of the benefit of computation of past services. The appellant submitted a representation against provisional seniority list on 15.3.1988 (Annexure-5) which was followed by another representation dated 7.4.1988 and further reminders on 3.3.1989 and 28.9.1989. Ultimately, vide communication dated 21.3.1990, the seniority list which had been finalised under the orders of the Additional Chief Engineer, Irrigation Zone, Jodhpur (Annexure-7). In this seniority list, the appellant had not been given the benefit of the past services rendered prior to transfer from the Rajasthan Canal Project. The appellant, therefore, submitted another representation on 31.5.1990, which was followed by the representation dated 18.6.1990. In the meantime, one Suresh Kumar Tamboli, who was transferred in the same manner was given benefit of the services rendered by him prior to the transfer and his name was accordingly placed at Sl. No. 12A in the seniority list on provisional basis vide communication dated 17.7.1990. On coming to know about this, the appellant submitted representation on 3.8.1990 for giving the same benefit to him. Vide order dated 22.11.1990 (Annexure-13), the representation made by the appellant was rejected by the respondents. Thus, on the basis of the provisional seniority list the respondents have accorded promotion to the posts of Upper Division Clerk vide order dated 13.12.1990 (Annexure-14). (2). That in the above circumstances, the petitioner approached this Court by filing the above mentioned writ petition. A reply was filed by the respondents contending therein that the appellant has not challenged the condition imposed in the transfer order dated 25.2.1982 and hence, it was not open for the appellant to claim the seniority. (2). That in the above circumstances, the petitioner approached this Court by filing the above mentioned writ petition. A reply was filed by the respondents contending therein that the appellant has not challenged the condition imposed in the transfer order dated 25.2.1982 and hence, it was not open for the appellant to claim the seniority. It was further submitted that when the appellant was transferred he was posted under Jawai Canals Division, Sumerpur which division was transferred to Irrigation Circle, Jodhpur from Irrigation Circle, Ajmer on 2.11.1981 as per the Government Order No. F. 6(281)/CBI/13671 dated 2.11.1981, also stated that the Irrigation Circle Pali was created vide order dated 25.5.1987 when the seniority of the Lower Division Clerks was being maintained Zone-wise as per order dated 21.8.1986 issued by the Chief Engineer, Irrigation Rajasthan, Jaipur which came into force with effect from 1.1.1986. It was submitted that the seniority of the appellant was determined according to the condition mentioned in the transfer order issued by the Chief Engineer, Irrigation on 25.2.1982 (Annexure-3) on which condition, the appellant accepted the order and joined the place of posting, he cannot resile from that condition hence, the question of depriving the appellant from the benefit does not arise. It is further submitted that order dated 17.7.1990 was issued as Shri Suresh Kumar Tamboli came to be transferred and joined the duties in Irrigation Circle, Jodhpur on 25.9.1980 i.e. earlier to the appellant. The clarification bearing No. F3/28/Personnel/K-2/84 dated 9.2.1990 issued by the Government is applicable in the case of Shri Suresh Kumar Tamboli because he joined the said circle before 13.5.1981 and thus, the said order dated 9.2.1990 is not applicable in the case of the appellant as the appellant joined the said circle on 15.3.1982. Therefore, it was submitted that the case regarding determination of the seniority of Shri Suresh Kumar Tamboli is not similar to that of the appellants case. It was then submitted that the appellant was also not entitled to the seniority from the date of initial appointment as he was not on the roll of Jodhpur Circle and he served the Circle in question on transfer and joining of the duty. In the instant case, the transfer was made on the application and request of the appellant and he was transferred to the place where vacancies were available. In the instant case, the transfer was made on the application and request of the appellant and he was transferred to the place where vacancies were available. It is seen from Annexure-3 that transfer was not of the appellant only but other persons were also included in that order. (3). Honble Mr. Justice Bhagwati Prasad, the learned Single Judge after considering the rival submissions came to the conclusion that even though the seniority is a right but if the appellant on his own volition submitted to the jurisdiction of the departmental authorities then he cannot be permitted to assert that his right has been taken away without the provision of law retrospectively. The learned Single Judge has further observed that the appellant while framing the writ petition, the petitioner appellant herein has not claimed the seniority from the date of confirmation and that the claim of the appellant that he was entitled to seniority in terms of Rule 27 of the Rules of 1957 is not the basis of the writ petition, which cannot be made the basis of impugning the order (Annexure-3) and consequent mode of determination of his seniority. While considering the submissions made by the counsel for the appellant in regard to his grievance that he was discriminated and another employee by name Suresh Kumar Tamboli had been assigned seniority from the date of his initial appointment, the learned Single Judge has held that this grievance of discrimination is not available to the appellant in view of departmental circular Annexure/R/1 and, in any case if some action has been taken by the respondents in isolation bereft of circular Annexure-R/1, unless the said Suresh Kumar Tamboli is made a party and validity of any such order passed in his case is impugned, this Court would be slow in interfering with the matter. (4). Being aggrieved by the action of the respondents and the judgment of the learned Single Judge, the appellant has preferred the present Special Appeal. (5). We have heard Mr. M.S. Singhvi learned counsel for the appellant and Mr. B.L. Bhansali and Mr. R.L. Jangid, Additional Advocate General for the respondents. (6). It is not in dispute that the service condition of the appellant is governed by the provisions contained in Rule 27 of the Rules of 1957. (5). We have heard Mr. M.S. Singhvi learned counsel for the appellant and Mr. B.L. Bhansali and Mr. R.L. Jangid, Additional Advocate General for the respondents. (6). It is not in dispute that the service condition of the appellant is governed by the provisions contained in Rule 27 of the Rules of 1957. Vide Notification No. F.3(13) DOP/A-II/80 dated 19.8.1982, the relevant proviso (xi-a) governing the case of transfer of the government employee on his own request, was added for the first time to Rule 27 of the Rules of 1957, which is as under:- ``(xi-a) that notwithstanding anything contained to the contrary in substantive part of R. 27, in case of a person holding a post mentioned in sub-r.(2) or R.6 of these rules in a Department and has been transferred from one department to another on the corresponding post in the cadre concerned at his own request in accordance with proviso (1) to sub-e. (1) of R. 7, the inter-se seniority of such person vis-a-vis persons of the Department in which such person has been taken on transfer at his own request shall be determined from the date he joins the new Department on the post concerned. (7). The aforesaid proviso (xi-a) to Rule 27 of the Rules of 1957 came into force with effect from 19.8.1982. This proviso also does not give any indication that it is retrospective in operation. This proviso is applicable to only those persons who have been transferred on their own request after it came into force i.e. with effect from 19.8.1982. (8). As per this Notification after transfer at his own request a transferee has to get his seniority in the transferred department from the date of joining the new department. In the instant case, although the appellant was transferred prior to the issuance of this Notification, sofar the appellant is concerned, he is entitled to get the benefit of the service rendered by him prior to his transfer and this notification cannot be applied in his case. This Notification being prospective in nature can only be made applicable to those employees who got their transfer after issuance of this Notification. In this case, the appellant had requested for his transfer immediately after his appointment but the respondents took more than 2 years for acting on the requests of the appellant. This Notification being prospective in nature can only be made applicable to those employees who got their transfer after issuance of this Notification. In this case, the appellant had requested for his transfer immediately after his appointment but the respondents took more than 2 years for acting on the requests of the appellant. That apart, sofar as the appellant is concerned he had submitted request for transfer in the Ajmer District or to a place nearby Ajmer. (9). Mr. Singhvi, learned counsel for the appellant, at the time of hearing invited our attention to the relevant Rules of 1957, the Annexures filed along with the writ petition and also the findings recorded by the learned Single Judge. We have perused the pleadings and the judgment rendered by the learned Single Judge. (10). It is a settled law that there can be no estoppel against the Statute. The appellant was claiming seniority in the cadre of Lower Division Clerk in accordance with the Rules of 1957. Under Rule 27 of the Rules of 1957, in our view, the appellant was not liable to loose his seniority even though he was transferred on his own request because at that time, no such condition was prevailing in the Rules denying the benefit of seniority in the event of transfer on the request of the incumbent. The provision to this effect was inserted for the first time by making amendment and inserting proviso (xi-a) to Rule 27 of the Rules of 1957 vide Notification dated 19.8.1982. Under such circumstances, the finding recorded by the learned Single Judge that in the case of the appellant the newly added proviso (xi-a) to Rule 27 of the Rules of 1957 is applicable, is, not correct and contrary to law. The learned Single Judge has also observed that the conduct of the appellant disentitles him to claim seniority. As a matter of fact, the respondents imposed the condition on the appellant denying seniority without any authority of law. There was no need for the appellant to challenge the condition as the appellant was entitled to claim seniority under Rules of 1957. We also tried to find out as to whether there any other rule to govern the seniority in the Ministerial Services of the State. There was no need for the appellant to challenge the condition as the appellant was entitled to claim seniority under Rules of 1957. We also tried to find out as to whether there any other rule to govern the seniority in the Ministerial Services of the State. For the first time, the amendment in the Rules was made by the Notification dated 19.8.1982 denying seniority to the transferees on their own request. Therefore, it would apply only to the persons who were transferred prior to 19.8.1982, the date of issuance of the Notification. Admittedly, the appellant was transferred prior to 19.8.1982 and, therefore, he could not be made to give up his claim for seniority. In our view, the condition imposed is void ab initio. (11). It is pointed out that the learned Single Judge has erred in relying upon Proviso 9-A to Rule 27 of the Rules of 1957. It is the specific case of the appellant that this proviso cannot be made applicable to the persons who were transferred prior to its coming into force. Therefore, that proviso could not be applied to the case of the appellant herein. It is also pointed out that the finding of the learned Single Judge that the case of Shri Suresh Kumar Tamboli is a totally different one in view of the Circular Annex.-R/1, issued by the State Govt. In this context it may be noticed that the circular Annexure-R/1 is contrary to the Statutory Rules of 1957 and, therefore, the respondents are not entitled to forfeit the services of an employee who has been transferred at his own request prior to 19.8.1982. Moreover, Shri Suresh Kumar Tamboli was transferred with the same condition with which the appellant was transferred. However, in the case of Shri Suresh Kumar Tamboli, the objection was accepted and he was assigned seniority whereas in the case of the appellant, seniority was denied to him. It is true that Suresh Kumar Tamboli was not made a party to the action by the appellant. But in our view, he is not a necessary party as the appellant in his writ petition has not challenged the seniority of Shri Suresh Kumar Tamboli in the cadre of Lower Division Clerk but he has challenged the action of the respondents in applying different yardsticks to the similarly situated persons. But in our view, he is not a necessary party as the appellant in his writ petition has not challenged the seniority of Shri Suresh Kumar Tamboli in the cadre of Lower Division Clerk but he has challenged the action of the respondents in applying different yardsticks to the similarly situated persons. Therefore, in our view Shri Suresh Kumar Tamboli was neither a necessary nor a proper party to the writ petition. The learned Single Judge, in our view, is not correct in rejecting the petition on this ground. (12). In the case of A.K. Roy and Another vs. State of Punjab and others (1), the Apex Court has held that the Rules framed under a Statute cannot go against the provision of the Statute and where Statute confers a power to be exercised or performed in a specific manner, other modes of exercise or performance are impliedly barred. In Union of India and others vs. C.N. Ponnappan (2), their Lordships of the Supreme Court have held as under:- ``The fact that as a result of transfer the employee is placed at the bottom of the seniority list at the place of transfer does not wipe out his service at the place from where he was transferred. The said service being regular service in the grade, has to be taken into account as part of his experience for the purpose of eligibility for promotion and it cannot be ignored only on the ground that it was not rendered at the place where he has been transferred. In our opinion, the Tribunal has rightly held that the service held at the place from where the employee has been transferred has to be counted as experience for the purpose of eligibility for promotion at the place where he has been transferred. (13). In our opinion, the appellant should have been given the benefit of his services rendered by him prior to his transfer from Rajasthan Canal Project. As noticed above proviso (xi-a) to Rules 27 of the Rules of 1957 has been added vide Notification dated 19.8.1982 and as per the said Notification after the appellant has to get seniority from the date of his joining in the new department even though the appellant was transferred prior to issuance of this Notification. As noticed above proviso (xi-a) to Rules 27 of the Rules of 1957 has been added vide Notification dated 19.8.1982 and as per the said Notification after the appellant has to get seniority from the date of his joining in the new department even though the appellant was transferred prior to issuance of this Notification. Sofar as the appellant is concerned, he is entitled to get the benefit of the service rendered by him prior to his transfer and this Notification cannot be applied to the appellant. This proviso in our view, does not give any indication that it is retrospective in nature. This proviso is applicable to only those persons who have been transferred on their own request after it came into force i.e. w.e.f. 19.8.1982. The similar view was taken by a Division Bench of this Court Principal Seat) consisting of Honble Mr. Justice Rajesh Balia and Honble Mr. Justice Mohd. Yamin in State of Rajasthan & Ors. vs. Bachhraj Soni and Anr. (3). Since this Notification being prospective in nature, can only be made applicable to the transfers made after issuance of the Notification. It is also not out of place to mention here that the respondents took more than two years for acting on the request of the appellant. We, therefore, hold that the impugned action of the respondents is discriminatory and unreasonable and also violative of Articles 14 and 16 of the Constitution of India. The appellant cannot be deprived of his seniority from the date of his initial appointment on the basis of the Notification as in the case of Shri Suresh Kumar Tamboli, the respondents have granted the benefit of the period prior to his transfer and in the case of the appellant, this benefit has been refused, which is illegal, unreasonable and would amount to hostitle discrimination being practised among the similarly situated persons. The appellant is entitled to have his seniority reckoned from the date of his initial appointment and also entitled to get his seniority in the writ from the date he submitted his application for transfer. (14). In the result, the appeal and the writ petition succeed and the order of the learned Single Judge under appeal is set aside. The appellant is entitled to have his seniority reckoned from the date of his initial appointment and also entitled to get his seniority in the writ from the date he submitted his application for transfer. (14). In the result, the appeal and the writ petition succeed and the order of the learned Single Judge under appeal is set aside. The respondents are directed to amend the seniority list in accordance with directions given in the preceding paragraph and also directed to grant all consequential benefits to the appellant including promotion to the post of Upper Division Clerk on and from the date the persons junior to him were so promoted with all consequential benefits. However, in the facts and circumstances of the case, we order no costs. T T T End of the Volume 2001(2)...