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2003 DIGILAW 263 (RAJ)

Shashi Kumar Pareek v. State of Rajasthan

2003-02-19

ANIL DEV SINGH, H.R.PANWAR

body2003
JUDGMENT 1. :- This Special Appeal is directed against the order of the learned Single Judge in S.B. Civil Writ Petition No. 251 of 1981 dated 6th February, 1992. The facts giving rise to the appeal are as follows. 2. On 29th June, 1974 an advertisement was issued inviting applications for nine permanent posts of Munsif Magistrate in the Rajasthan Judicial Service. This advertisement was issued by the Rajasthan Public Service Commission in consonance with the Rajasthan Judicial Service Rules, 1955. Pursuant to the advertisement the appellant applied for the post of Munsif. A competitive examination was held in the year 1976. The appellant succeeded in the examination and was appointed as Munsif by the order of the Government of Rajasthan dated 5th June, 1976. The appellant completed his period of probation and was confirmed on the post of Munsif by the order of this Court dated 9th June, 1978. Earlier to the appointment of the appellant in service, several candidates were recruited as Munsifs vide orders dated 19.8.1974 (Anx. 3), 12.9.1974 (Anx. 4), 19.11.1974 (Anx.5) 12.5.1995 (Anx. 7), 28.5.1978 (Anx. 8), 8.7.1975 (Anx. 9) and 1.8.1975 (Anx. 10). It is significant to mention that the recruitment of officers vide Annexures 3, 4, 5, 7, 8, 9 and 10 was made under the Rajasthan Judicial Service Special Recruitment Rules, 1973. 3. The appellant in the writ petition claimed seniority over private respondents 5 to 23, who were appointed by virtue of the aforesaid orders under the Rajasthan Judicial Service Special Recruitment Rules, 1973 through S.B. Civil Writ petition No. 251 of 1981. The learned Single Judge of this Court on February 6, 1992 dismissed the writ petition. Aggrieved by the order passed by the learned Single Judge the appellant has filed the instant appeal. 4. The learned counsel appearing for the appellant at the out set submitted that his client does not claim seniority over the officers who were appointed by virtue of the orders dated 19.8.1974 (Anx.3), 12.9.1974 (Anx. 4) and 19.11.1974 (Anx. 5) made under the Rajasthan Judicial Service Special Recruitment Rules, 1973 on the ground that they were appointed against the vacancies which arose prior to 1974. In respect of officers who were appointed vide order dated 28.5.1975 (Anx. 9) and 1.8.1975 (Anx.10) the appellant claims to be senior to them. 4) and 19.11.1974 (Anx. 5) made under the Rajasthan Judicial Service Special Recruitment Rules, 1973 on the ground that they were appointed against the vacancies which arose prior to 1974. In respect of officers who were appointed vide order dated 28.5.1975 (Anx. 9) and 1.8.1975 (Anx.10) the appellant claims to be senior to them. The claim of the appellant is based on the fact that the appellant was appointed against the vacancies existing in the year 1974 and the officers who were appointed vide Annexures 7, 8, 9 and 10 were also appointed against the vacancies of 1974.In support of the claim learned counsel relied upon Rule 22 of the Rajasthan Service Rules Special Recruitment Rules, 1973. Rule 22 reads as follows: "Seniority.- The seniority of the candidates appointed to the service under these rules shall be according to their position in the order of merit referred to in rule 20 and shall rank next after the seniority of the regularly recruited candidates for that year." 5. Learned counsel convassed that the appellant and the respondents 4 to 23 who were appointed under Rajasthan Judicial Service Special Recruitment Rules, 1973 were fixed up against the vacancies of 1974 and this being so, they were to rank next after the seniority of the regularly recruited candidates for that year. The learned counsel construed the words 'that year' occurring in Rule 22 as the year in which the vacancies arose. 6. We have considered the submission of the learned counsel for the appellant. We regret our inability to accept the interpretation placed by the appellant on Rule 22 of the Rajasthan Judicial Service Special Recruitment Rules, 1973. According to Rule 22 respondents 4 to 23 had to be assigned seniority according to the position in the order of merit referred to in Rule 20. Rule 20 of the Rules of 1973 provides that the Board shall prepare a list of the candidates who are considered by it to be suitable for appointment to the service in order of merit on the basis of the marks obtained by the candidates in the written and the viva-voce test. Rule 20 and part of Rule 22 deal with inter se seniority of the candidates appointed under the Rajasthan Judicial Service Special Recruitment Rules, 1973. Rule 20 and part of Rule 22 deal with inter se seniority of the candidates appointed under the Rajasthan Judicial Service Special Recruitment Rules, 1973. In so far as their seniority vis-a-vis regularly recruited candidates under Rajasthan Judicial Service Rules, 1955 is concerned, they are to rank next after the seniority of the regularly recruited candidates for that year. The plain meaning of the Rule can be illustrated by the following example: Candidate 'A' was regularly recruited under Rajasthan Judicial Service Rules, 1955 in the year 1974. Candidates 'B' and 'C' were recruited in the year 1974 under the Rajasthan Judicial Service Special Recruitment Rules, 1973. Applying Rule 22, 'A' would rank senior to 'B' and 'C' for the reason that 'B' and 'C' who were recruited under Rajasthan Judicial Service Special Recruitment Rules, 1973, are to rank next after the seniority of 'A' since he was recruited in the same year as 'B' and 'C'. 7. Rule 22 does not even remotely link the seniority of an incumbent with vacancy in a post. The candidates recruited under the Rajasthan Judicial Service Special Recruitment Rules, 1973 in the earlier years will rank senior to the candidates who were recruited in the latter years irrespective of the date when the vacancies arose in the service. Significantly, Rule 22 uses the tens 'recruited. This means that a distinction has to be drawn between initiation of the process of recruitment and the culmination of recruitment which results in a candidate being recruited. According to the dictionary meaning of 'recruitment' it is to be equated with the process of returning. 'Recruited' means appointed after the process of recruitment is complete. It appears that the framers of the Rajasthan Judicial Service Special Recruitment Rules, 1973 while using the term 'recruited' meant appointment of a candidate. 8. We fail to appreciate how and on what basis the learned counsel for the appellant wants us to hold that Rule 22 of the Rajasthan Judicial Service Special Recruitment Rules, 1973 when it talks of 'the year', refers to the year during which the vacancy arose. In Rudra Kumar Sain and others v. Union of India and others, (2000) 8 SCC 25 ) : [2000(4) SLR 787 (SC)], the Supreme Court recognised the principle that the seniority must be determined on the basis of continuous length of service in a cadre. In Rudra Kumar Sain and others v. Union of India and others, (2000) 8 SCC 25 ) : [2000(4) SLR 787 (SC)], the Supreme Court recognised the principle that the seniority must be determined on the basis of continuous length of service in a cadre. The respondents 4 to 23 undoubtedly were appointed earlier to the appellant in the cadre of Munsifs and, therefore, their seniority was correctly determined on the basis of length of service in consonance with Rule 22 of the Rajasthan judicial Service Special Recruitment Rules, 1973. No part of the service rendered by respondents No. 4 to 23 as Munsif can be excluded for determining their seniority. In case we exclude some part of the service of the aforesaid respondents, only then 'the appellant can be given seniority over them. This will be against the principle enumerated in Rudra Kumar Sain's case (supra). This will also go against the spirit of Rule 22 of the Rajasthan Judicial Service Special Recruitment Rules, 1973. 9. It is also significant to note that the appellant in the writ petition failed to disclose that he had appeared in the competitive examination which was held for the appointment of Munsifs under Rajasthan Judicial Service Special Recruitment Rules, 1973. In that examination he did not succeed. The learned Single Judge was of the opinion that the appellant was not entitled to invoke Article 226 of the Constitution for the relief claimed by him as he had suppressed the aforesaid material fact. The appellant having failed to qualify the competitive examination in which respondents No. 4 to 23 appeared and succeeded cannot by any stretch of imagination claim seniority over them. The said respondents were appointed earlier than the appellant in service and therefore, they are to rank senior to him. Otherwise, there will be a serious violation of Rule 22 of the Rajasthan Judicial Service Special Recruitment Rules, 1973. 10. The appellant made a representation against the seniority list in which he was assigned the lower position than respondents No. 4 to 23. The representation was rejected on 25th December, 1979. The writ petition was filed by the appellant on 13th January, 1981. It was submitted by the learned counsel for the respondents that the writ petition filed by the appellant was inordinately delayed. The representation was rejected on 25th December, 1979. The writ petition was filed by the appellant on 13th January, 1981. It was submitted by the learned counsel for the respondents that the writ petition filed by the appellant was inordinately delayed. According to the learned counsel, the appellant ought to have filed the writ petition within six months of the rejection of his representation. Since appellant filed the writ petition after one year of the rejection of his representation the same ought to be rejected on the ground of delay and laches. In support of the submission the learned counsel relied upon the decision of the Supreme Court in P.S. Sadasivaswamy v. State of Tamil Nadu, 1976 (1) SLR 53. 11. We do not find that the writ petition was inordinately delayed. The writ petition was filed within one year. The Supreme Court in the aforesaid decision laid down that in matters of seniority and promotion writ petition should be moved within six months to one year. Since the writ petition was moved within outer limit laid down by the Supreme Court, the same cannot be dismissed on the ground of laches. Notwithstanding the fact that we are not dismissing the writ petition on the ground of laches, the appeal is to be rejected on merits for the reasons already given above. 12. For the foregoing reasons we are unable to accept the contention of the learned counsel for the a ant. In the circumstances the appeal fails and is hereby dismissed. No order as to costs.Appeal dismissed. *******