1. This is a writ petition by Fateh Chand under Article 226 of the Constitution and arises under the following circumstances:
The petitioner was first appointed as a clerk on work-charge basis in motor section of the office of the Executive Engineer, Water works, Jaipur, by an order dated 9 May 1952. Thereafter, by order dated 2 February 1955, he was appointed a lower division clerk in the same office as a temporary measure for a period of six months in the first instance with effect from 1 January 1955, against a permanent vacancy. He continued to ho]d this appointment until 1 March 1965. On 2 March 1965, he was served with a notice by the Chief Engineer (Health), Rajasthan, that his services were to be terminated with effect from one month of the issue of this letter. The reason for this termination was that the petitioner had failed to pass two departmental examinations for the recruitment of lower division clerks, first in June 1964 and the second in November 1964. Thereupon the petitioner made a representation to the Chief Engineer, and the actual termination of his service remained in abeyance (for certain reasons into which it is unnecessary to go for the purpose of the present writ petition) until 25 August 1965 (Ex. 9) when by a letter dated 25 August 19S5 the petitioner was informed that his representation had been considered and rejected by the Government and, therefore, he was being served with one month's notice of termination of service and that the same shall stand terminated on the expiry of one month from the issue of his letter. Aggrieved by this order the petitioner filed the present writ application in this Court on 24 September 1965. It may also be stated before proceeding further that the petitioner is a matriculate and that he was about 35 years of age at the time his services were sought to be terminated.
2. The petitioner's case put in a nutshell is that although he was a temporary employee, he held his post against a permanent vacancy that he had put in more than ten years' service as such and, therefore, the State was not entitled to terminate his service in the manner in which it was sought, just by giving a month's notice, and that his services as temporary clerk were fully protected under Rule 23A(2) of the Rajasthan Service Rules, hereinafter called the rules.
3. The State has opposed this writ petition and its defence is that Rule 23A(2) is not attracted into application in this case, the chief rea on being that the petitioner had failed to pass the departmental examination even in two attempts, and, that being so, his services were liable to be terminated in accordance with Government order No. F 15(1) OW/64, dated 5 March, 1964, Ex. A.1, made under proviso 2 to Rule 7 of the Rajasthan Subordinate Offices Ministerial Staff Rules 1957, hereinafter called the Ministerial Staff Rules, by which it was provided inter alia that in case a candidate failed a second time in the departmental examination his service will be terminated after due notice, unless otherwise he seeks his appointment through the regular channel prescribed in the service rules concerned.
4. At this stage we shall read Rule 23A of the rules:
23A. (1) Except as otherwise provided in Sub-rule (2), the service of a temporary Government servant shall be liable to termination at any time by a notice in writing given either by the Government servant to the appointing authority or by the appointing authority to the Government servant. The period of such notice shall be one month unless otherwise agreed to by the Government and by the Government servant:
Provided that service of any such Government servant may be terminated forthwith by payment to him of a sum equivalent to the amount of his pay for the period of notice or as the case may be, for the period by which such notice falls short of the month or any agreed longer period. The payment of allowances shall be subject to the condition under which such allowances are admissible.(2) The service of a temporary Government servant--
(a) who has been in continuous Government service for more than three years; and
(b) who satisfies the suitability in respect of age and qualifications prescribed for the post and has been appointed In consultation with the Rajasthan Public Service Commission where such consultation is necessary
shall be liable to termination
(1) in the same circumstances and in the same manner as a Government servant in permanent service; or
(ii) when reduction has occurred in the number of posts available for Government servants not in permanent service:Provided that termination of service consequent on reduction of posts in a cadre under the appointing authority shall take place in order of juniority.
5. Proviso 2 to Rule 7 of the Ministerial Staff Rules reads as follows:
(2) Provided that a person who joined service on a temporary basis before 1 January 1962, shall be made permanent as a lower division clerk or an upper division clerk, as the case may be, on his/her passing an examination to be held by the appointing authority concerned, on such terms and conditions as may be laid down by the Government.
6. These terms and conditions, it has been argued before us on behalf of the State, have been laid down by the Government in the Government order dated 5 March 1964, already referred to, whereunder among other terms and conditions it has also been laid down that
in case a candidate fails a second time his service will be terminated after due notice unless otherwise he seeks his appointment through the regular channel prescribed in the service rules concerned.
7. We may as well point out at this stage that by Rule 11 of the Ministerial Staff Rules it has been laid down that a candidate for direct recruitment to any cadre of subordinate service including a lower division clerk must have attained the age of 18 years and must not have attained the age of 25 years on the first day of January, of the year following the last date fixed for the receipt of applications, provided that upon 31 December 1958, the period of continuous Government service in temporary capacity shall be deducted from age for purposes of eligibility. By Rule 12(2) of these rules it has been further laid down that a candidate for direct recruitment to the category of lower division clerks must have passed the high school or higher secondary examination of the Rajasthan Secondary Education Board or of a university or board recognized by the Government for the purpose of this rule, or must possess Hindi or Sanskrit qualifications recognized by the Government as equivalent to that of Matriculation.
8. From what we have stated above, it should be clear, and it is indeed incapable of being disputed, that the petitioner was of the requisite age and also possessed the necessary academic qualification prescribed for the post of a lower division clerk. We may also make it clear that it has not been contested before us that his appointment was required to be made in consultation with the Public Service Commission of the State.
9. That being so, the short point for our determination is, whether the services of the petitioner could lawfully be terminated under Rule 23A(2) by giving him one month's notice of termination of his services. Sub-rule (1) of Rule 23A lays down the broad rule that the service of a temporary Government servant may be terminated at any time by a notice in writing which may be given either by the Government servant to the appointing authority or by the appointing authority to the Government servant, such notice being of one month's duration unless otherwise agreed to between the parties concerned. It has also been provided that such service could be terminated by the Government forthwith by giving the employee one month's pay for the period of notice or for the period by which such notice falls short of the month or any agreed longer period. This rule has, however, been expressly made subject to the exception provided in Sub-rule (2). This exception provides that where
(i) a temporary Government servant has been in continuous Government service for more than three years; and
(ii) he fulfils the necessary requirements as to age and qualifications prescribed for the post (and has been appointed in consultation with the Rajasthan Public Service Commission, where such consultation is necessary, but this condition is not material in the present case) then his service could not be terminated in the manner prescribed under Sub-rule (1) but it is liable to be terminated in the same circumstances and in the same manner as a Government servant in permanent service, that is, for proved misconduct; or, when reduction has occurred in the number of temporary posts required to be filled, in which case it has been further laid down that the last to come shall be the first to go. The language of this rule is plain enough and, in our opinion, does not call for any interpretative effort. And all that it clearly envisages is that in spite of the general rule to the contrary the services of a temporary Government servant who has been in continuous Government service for more than three years, who fulfils the necessary requirements in respect of age and the (academic) qualifications prescribed for the post, could not be terminated by a mere one month's notice of termination of service under Sub-rule (1) of Rule 23A, and such service could properly be terminated only under the two conditions laid down in this rule which we have adverted to above.
10. It has been strenuously argued before us, however, by the learned Deputy Government Advocate, appearing for the State, that in interpreting Rule 23A(2) we should take into account the proviso (2) to Rule 7 of the Ministerial Staff Rules which in effect lays down that a person who has joined service on a temporary basis before 1 January 1962, cannot be confirmed until he has passed the departmental examination on such terms and conditions as may be laid down by the Government and our attention has been pointedly drawn in this connexion to the order of the Government dated 5 March 1964, which, among other conditions, laid down for this purpose, definitely provides that if a candidate happens to fall in the departmental examination twice, his services would be liable to be terminated after due notice. We have given this contention our careful and anxious consideration and do not see our way to accept it. In the first place, we are of opinion that the object of proviso (2) to Rule 7 of the Ministerial Staff Rules is entirely different from that underlying in Rule 23A(2) of the rules. The former lays down that before a temporary lower division clerk could be made permanent he must pass the necessary departmental examination. This proviso does not contemplate what is to happen to such a Government servant on his failure to pass the required examination. Rule 23A, on the other hand, does not deal with confirmation at all. It lays down the mode by which the services of a temporary Government servant could be dispensed with. It first lays down the ordinary manner, and thereafter provides a safeguard for such of these servants who have been in long continuous Government service, that is, for a period exceeding three years and who fulfilled the necessary requirements as to age and the qualifications for the post prescribed in the rules at the time of their original recruitment. The purpose and the object of the two Bets of provisions being distinct, it would not be correct, in our opinion, to import the considerations underlying the one into the other.
11. We feel further fortified in coming to this conclusion because, if we were to give the extended meaning to Rule 23A(2), as contended for by the learned Deputy Government Advocate, in the sense that the word 'qualifications' as used therein embraces the requirement of the passing of a departmental examination also, then this provision would appear to become more or less otiose, because a temporary candidate who. in addition to possessing the other qualifications, academic and as to age, must also have passed the departmental examination, in which case such a person would obviously be entitled to be made permanent by virtue of the provision contained in Rule 7(2) of the Ministerial Staff Rules and would hardly need any protection as a temporary servant as contemplated under Rule 23A(2) of the rules. We have, therefore, not felt persuaded to hold that the interpretation of Rule 23A(2) proposed by the learned Deputy Government Advocate is correct.
12. We should further like to point out in this connexion that as at present advised we are disposed to think that the provision made in condition 4 of the Government order dated 5 March 1964 (Ex. A. 1), really falls outside the ambit of proviso (2) to Rule 7 of the Ministerial Staff Rules under which it has avowedly been made because a condition like this cannot be strictly said to be a term or condition of the examination to be held thereunder. More appropriately it can be said that it is the consequence of a candidate failing to pass such an examination, inasmuch as it has been laid down that if he falls to pass it in two attempts, his services would be liable to be terminated by giving him one month's notice.
13. Assuming, however, for the sake of argument that such a condition could be laid down under Rule 7(2) of the Ministerial Staff Rules we are faced with a further formidable difficulty, namely, that such a condition would come into inevitable conflict with Rule 23A(2) of the rules. To read the provision contained in the Government order in question as falling within the meaning of Rule 23A(2), would clearly amount to import something into it which is not there. Putting the whole thing in plain language, it would mean the addition of one more condition in Sub-rule (2) to the effect that such a temporary Government servant must not have failed twice in a departmental examination held for the purposes of his confirmation. We have no doubt that it is not our province as a Court of law to add something to Rule 23A which does not exist therein and we are not prepared to do anything of the kind. There is one factor which we cannot omit to take into consideration in this connexion that Rule 23A, as it exists at present, was amended on 1 January 1965, that is, after the Government order dated 5 March 1964, Ex. A. 1, came to be passed and on which the learned Deputy Government Advocate strongly relies. If these two provisions cover the same field in part, then we have no hesitation in saying that the latter provision should be read as superseding the former pro tanto and in that view of the matter the Government order in question must yield to Rule 23A(2).
14. It has been argued before us in the last resort that the meaning that we have put on Rule 23A would lead to the result that although a person could not be confirmed because of his failure to have passed the necessary examination or examinations, the Government could not ask him to quit and will have to retain him in service. It is also argued in this connexion that a person who fails to pass the departmental examination not in one, but even in two attempts, is hardly suitable to be retained in service. The argument may be plausible but has no substance in it. The chief reason which has persuaded us to come to this conclusion is that if there is any anomaly in the situation, that is of the Government's own making, and it is not for us to resolve it by putting an artificial interpretation upon Rule 23A. The remedy lies in the hands of the rule-making authority and it was open to it to have fashioned Rule 23A in a wider mould than at present. As we look at the matter, Rule 23A is obviously intended to give adequate protection to temporary servants of the Government who have long been employed and who otherwise fulfilled all the requirements as to age and other qualifications prescribed for the post, and, we are, by no means, sure that the purpose behind this rule would be better fulfilled by an insistence on a candidate's capacity to pass a departmental examination, which after all is said and done, Government servants having been drawn away for a long time from their academic life may not easily hope to pass.
15. For the reasons mentioned above, we are on the whole, definitely inclined to hold that the order dated 25 August 1965 (Ex. 9), by which the petitioner's service is ordered to be terminated by one month's notice, is illegal and inoperative as being violative of Rule 23A(2) of the rules and we hereby quash it. Under the circumstances we make no order as to costs.