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2005 DIGILAW 115 (RAJ)

Kamlesh Soni v. State of Rajasthan

2005-01-13

GOVIND MATHUR

body2005
Judgment Govind Mathur, J.-This petition has been preferred by the petitioner assailing the validity and propriety of the order dated 02.08.1997 passed by the District Election Officer (Collector, Jodhpur). 2. The District Election Officer (Collector, Jodhpur) by the order referred to above, ordered for termination of the petitioners services w.e.f. 31.08.1991. The petitioner has also prayed to regularise his services in the light of Sub-rule (10) of Rule 25 of the Rajasthan Subordinate Offices Ministerial Staff Service Rules, 1957 (hereinafter referred to as the the Rules of 1957) 3. To adjudicate the claim made by the petitioner, the necessary facts in brief are as follows:-Under an order dated 14.03.1990 passed by the Collector, Jodhpur, appointment was given to the petitioner purely on ad hoc basis for a period of two months as LDC. By order dated 30.05.1990, the term of the petitioner on the post of LDC was extended uptil 30.06.1990. The term of the services of the petitioner as LDC was further extended by the order dated 02.07.1990 passed by the Collector (Relief), Jodhpur upto 31.07.1990. Nothing has been said in the writ petition as well as in the reply to the writ petition about further continuity of the petitioner in services till the issuance of the order dated 23.04.1991 whereby the appointment was given to the petitioner as LDC in the pay-scale of Rs. 950-1680 on basis of the recommendations said to be made by the Selection Committee constituted to fill up newly created temporary vacancies pertaining to the post of LDC. The order dated 23.04.1991 though refers to certain selection proceedings, however, there is nothing on the record about the procedure adopted by the District Election Officer (Collector, Jodhpur) for holding the aforesaid selection proceedings and with regard to the authority to hold such selection proceedings. 4. The petitioner in pursuance of the order dated 23.04.1991 joined the services as LDC in the office of District Election Officer (Collector, Jodhpur). The District Collector, Jodhpur under an another order dated 30.08.1991 transferred/posted the petitioner as LDC in the office of District Supply Officer, Jodhpur as a consequence of abolition of the post of LDC in the office of District Election Officer. By another order dated 20.09.1991, the Joint Director, Social Welfare Department transferred the petitioner as LDC from the office of District Supply Officer, Jodhpur to the office of Assistant Director, Social Welfare Department, Jodhpur. By another order dated 20.09.1991, the Joint Director, Social Welfare Department transferred the petitioner as LDC from the office of District Supply Officer, Jodhpur to the office of Assistant Director, Social Welfare Department, Jodhpur. The aforesaid transfer was made by the Joint Director, Social Welfare Department acting upon the application dated 16.09.1991 submitted by the petitioner and forwarded to the Joint Director, Social Welfare Department by the Collector, Jodhpur. The transfer of the petitioner in the Social Welfare Department was confirmed by the Director, Social Welfare Department by order dated 31.01.1992. 5. The Social Welfare Department published a seniority list of the LDCs working in the Department as on 01.04.1996. In the said tentative seniority list, the name of the petitioner appears at Sr. No. 86. In Column No. 5 of the seniority list, the source of recruitment of the petitioner is shown as transfer from other Department. 6. By another order dated 13.06.1997. The Director, Social Welfare Department relieved the petitioner from the post of LDC and ordered to report in his parent office i.e., in the office of Collector & District Magistrate, Jodhpur. 7. The In-charge Election Office i.e. the Additional Collector, Jodhpur under a communication dated 04.07.1997 directed the petitioner to appear before the District Election Officer (Collector, Jodhpur) to explain as to why his services be not discontinued w.e.f. 31.08.1991. A reply to the notice to show-cause dated 04.07.1997 was submitted by the petitioner. After considering the same District Election Officer by order dated 02.08.1997 discontinued the petitioner from service w.e.f. 31.08.1991. 8. As stated above, the order passed by the District Election Officer is under challenge in the present writ petition. 9. I have heard the learned Counsel for the petitioner as well as the learned Counsel for the State of Rajasthan and others. 10. The first limb of argument of the learned Counsel for the petitioner is that the order impugned dated 02.08.1997 deserves to be quashed and set aside as no reasonable opportunity was afforded to him before imposing a major punishment. According to the petitioner, the consequence of the order impugned dated 02.08.1997 is removal from service and, therefore, the order is punitive and no such order could be passed without adhering the procedure prescribed under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (hereinafter referred to as the Rules of 1958). 11. According to the petitioner, the consequence of the order impugned dated 02.08.1997 is removal from service and, therefore, the order is punitive and no such order could be passed without adhering the procedure prescribed under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (hereinafter referred to as the Rules of 1958). 11. In my considered opinion the contention raised by the Counsel for the petitioner is having no force as the Rules of 1958 are having application to Government servants, definition of which is given under Clause (e) of Rule 2 of the Rules of 1958 and for the ready reference the same is reproduced below:- "Government servant means a person who is member of a service or who holds a civil post under the Government of Rajasthan and includes any such person on foreign services, or whose services are temporarily placed at the disposal of a local or other authority and also any person in the service of a local or other authority whose services are temporarily placed at the disposal of Government of Rajasthan or a person in service on a contract or a person who has retired from Government service elsewhere and is re-employed under the Government of India, but does not include a person in the Civil Service of the Indian Union or State Government Serving on depuration in Rajasthan who will continue to be governed by the Rules applicable to such person. " 12. The petitioner by no stretch of imagination can be treated as a Government servant as he was not holding a civil post. The appointment of the petitioner was made in the office of Collector (Relief), Jodhpur at the first instance, by the order dated 14.03.1990. He continued in the office of Collector (Relief), Jodhpur upto 31.03.1990. The petitioner thereafter was appointed in the office of District Election Officer, Jodhpur under the order dated 23.04.1991. The appointment of the petitioner was made de-hors the Rules. No procedure as prescribed under the Rules of 1957 was adhered to while making appointment of the petitioner. The petitioners service surprisingly stood transferred under the order dated 20.09.1991 passed by the Joint Director, Social Welfare Department, Jodhpur on the basis of an application preferred by the petitioner himself and forwarded by the Collector, Jodhpur. No procedure as prescribed under the Rules of 1957 was adhered to while making appointment of the petitioner. The petitioners service surprisingly stood transferred under the order dated 20.09.1991 passed by the Joint Director, Social Welfare Department, Jodhpur on the basis of an application preferred by the petitioner himself and forwarded by the Collector, Jodhpur. Such type of inter-departmental transfer of a daily rated employee is not at all permissible under the Rules. The Counsel for the petitioner has failed to satisfy me with regard to the validity of the transfer of his service from the office of District Election Officer to the office of Joint Director, Social Welfare Department. It is all the more surprising that the Director, Social Welfare Department, Jaipur under a notification dated 09.01.1997 published a tentative seniority list pertaining to LDCs working in the Social Welfare Department as on 01.04.1996, wherein the name of the petitioner appears as Sr. No. 86 and the source of his appointment has been shown as transfer from other department. 13. As stated in the preceding paras, the petitioner was never appointed to the post of LDC in accordance with the Rules and, therefore, his transfer to the Social Welfare Department and his placement in the seniority list of the Social Welfare Department itself is illegal and no right accrues in favour of the petitioner by these orders on the basis of which he can be treated as a civil servant. 14. In view of the facts stated above, the petitioner was not holding the post of LDC in accordance with law, therefore, he cannot be held a civil servant as also a government servant as defined under Clause (c) of Rule 2 of the Rules of 1958. In view of it the petitioner cannot claim any protection under the Rules of 1958. 15. It is also pertinent to note here that the petitioner has assailed the validity of the order impugned dated 02.08.1997, which was passed by the District Election Officer, Jodhpur. The District Election Officer, Jodhpur who is the author of the order impugned is not a party to the proceedings and on this account also no relief can be extended by this Court to the petitioner under Article 220 of the Constitution of India. 16. The District Election Officer, Jodhpur who is the author of the order impugned is not a party to the proceedings and on this account also no relief can be extended by this Court to the petitioner under Article 220 of the Constitution of India. 16. The petitioner has further contended that the Director, Social Welfare Department failed to take appropriate action for regularisation of his services in the light of Sub-rule (x) of Rule 25 of the Rules of 1957. According to the petitioner, as the date of his initial appointment is 14.03.1990, therefore, he was entitled to be screened for regularisation of his services under the Rules of 1957. Sub-rule (x) of the Rules of 1957 reads as under:- "10. Notwithstanding anything contained in Rule 7, all persons appointed as LDCs. On ad hoc basis or on daily wages basis during the period from 01.01.1985 to 31.03.1990 and are still working as such on the date this amendment comes into force shall be appointed on regular basis on availability of vacancy subject to the condition that they pass a performance test conducted by the head of the department concerned within a period of three years in accordance with the syllabus prescribed in para -IV of Schedule-I. Such persons shall be allowed three chances to pass the said test to be availed within a period of three years: Provided that if a person fails to pass the said test in three chances to be availed within a period of three years, he shall be liable to be removed from services." 17. Sub-rule (x) of the Rules of 1957 provides that a Lower Division Clerk appointed on ad hoc or daily rated basis shall be entitled for regularisation of his service after qualifying departmental efficiency test conducted by the Head of the Department subject to the condition that the appointment should have been made within the period commencing from 01.01.1985 to 31.03.1990. According to the petitioner, he was in the employment of the Director, Social Welfare Department on 110.1992 i.e., the date on which Sub-rule (x) to Rule 25 of the Rules of 1957 was added to the statute and his appointment was made on 14.03.1990 and, therefore, he should have been subjected to a departmental efficiency test. In my considered opinion, this contention of the learned Counsel for the petitioner is also having no force. In my considered opinion, this contention of the learned Counsel for the petitioner is also having no force. The petitioner was appointed as LDC for a period of two months under the order dated 14.03.1990 by passed by the Collector, Jodhpur. The term was further extended upto 30.06.1990. By another order dated 30.05.1990 and then upto 31.07.1990 under the order dated 02.07.1990 passed by the Collector (Relief), Jodhpur. The petitioner thereafter was employed in the office of District Election Officer (Collector, Jodhpur) under the order dated 23.04.1991. The appointment of the petitioner which came into existence as the consequence of the order dated 14.03.1990 reached to an end on 31.07.1990. The petitioner was employed afresh under the order dated 23.04.1991. In view of it, it cannot be said that the date of initial appointment of the petitioner is 14.03.1990. In view of it, Sub-Rule (x) of Rule 25 of the Rules of 1957 is having no application in the present case as it gives entitlement for getting the services regularised after qualifying the efficiency test to the LDCs appointed during the period commencing from 01.01.1985 to 30.03.1990. The petitioner being an appointee to the post of LDC under the order dated 23.04.1991, cannot claim any entitlement under the aforesaid Rules. The contention of the petitioner is, therefore, frivolous and the same deserves to be rejected. 18. In view of it, I do not find any merit in this petition and the same is, therefore, dismissed.