C.M. Lodha, J.
1. This is an appeal by an unsuccessful plaintiff whose suit for declaration that he was entitled to be interviewed for permanent appointment to the Rajasthan Administrative Service has been dismissed by both the lower courts.
2. The plaintiff's case was that he was a Naib Nazim in the year 1940 in the erstwhile State of Alwar and was working as a Magistrate First Class in April 1948 when the erstwhile State of Alwar was merged in the United State of Matsva which was again merged in the United State of Rajasthan in the month of May 1949. It was alleged that the Government of Rajasthan published the rules and instructions for selection of Government servants and fixation of seniority by notification dated 8.8.1950 published in the Rajasthan Rajpatra dated 12- 8- 1950, and since the plaintiff was eligible for appointment to the Rajasthan Administrative Service he made an application through proper channel The plaintiff's grievance is that the Committee constituted under the said rules was bound to call him for interview and consider his case for appointment to the Rajasthan Administrative Service. But the plaintiff was never called for interview and on his having made repeated representations he was informed vide letter dated 17-7-1958 from the Deputy Secretary to the Government of Rajasthan, Appointment (C) Department, Jaipur that the Selection Committee for 1957 had examined his case and his record of service, and had found that he was unsuitable to appointment to Rajasthan Administrative Service, He has, therefore, filed the present suit out for which this second appeal arises on 24-10-1959 praying that the order of the Government of Rajasthan dated 17-7-1958 (Ex. 1) be declared illegal and void and it may be held that the plaintiff is entitled to be interviewed for selection to Rajasthan Administrative Service under the 1950 Rules referred to above.
3. The State of Rajasthan opposed the plaintiff's claim and pleaded inter-alia that the suit was time-barred and that the plaintiff's application for selection to the Rajasthan Administrative Service did not reach the Secretary, Integration Department, and that the impugned order dated 17-7-1957 did not give any cause of action to the plaintiff to file the suit.
4. On the pleadings of the parties the trial court framed the following three issues:
(1) Is the suit against the Chief Secretary incompetent as the Government of Rajasthan is not a party to the suit?
(2) Is the suit time-barred?
(3) Is the suit barred by provisions of Section 9, Civil P.C.?
5. None of the parties produced any oral evidence and the plaintiff placed sole reliance on Ex. 1 the impugned order dated 17-7- 58, and the notice served on the Chief Secretary. Government of Rajasthan under Section 80 C. P. C. In fact both the parties made categorical statements before the trial court that they did not want to produce any evidence (vide order sheet of the trial court, dated 25-5-60).
6. After hearing learned counsel for the parties the trial court decided issues Nos. 2 and 3 against the plaintiff and dismissed the suit. Aggrieved by the judgment and decree of the trial court the plaintiff filed appeal in the Court of District Judge, Alwar but was unsuccessful. Consequently he has come in second appeal to this Court.
7. Learned counsel for the appellant has urged that the lower court had committed an error of law in holding that the plaintiff's suit is barred by time, and has prayed that the suit should be remanded to the trial court for decision on merits.
8. The Rules in question were published in the Rajasthan Rajpatra dated 12-8-1950, and it was provided in Rule 7 that the applications in the prescribed form (Schedule II) should be sent to as to reach the. Secretary, Integration Department by 15th September, 1950, at the latest. The applications received thereafter are liable to be rejected without consideration. 'The first question that arises for consideration that assuming every thing in favour of the plaintiff whether he had submitted the application as prescribed under Rule 7 of the aforesaid rules? In this connection reference may be made to paragraphs 12 and 16 of the plaint on which learned counsel for the appellant has placed strong reliance In para No. 12 it has been held that the plaintiff had submitted his application for interview through proper channel, and it has been further stated in para No 16 that the plaintiff had duly submitted the application which was lost in the Secretariat, as has been mentioned in the impunged order of the Government dated 17-7-1958. The defendant has denied this Goverment in the written statement and has further pleaded that there was no provision in the Rules that the plaintiff should apply through proper channel, and that the plaintiff should have sent his application to the Integration Secretary. It was also pleaded that the plaintiff's application had not reached the Secretary of the Integration Department, and it is not known to the defendant as to where it was sent and what happened to it. This the defendant clearly denied that the plaintiff had ever applied to the proper authority for appointment to Rajasthan Administrative Service. Learned counsel for the appellant streneously urged that the trial court should have framed proper issues on this question. It is true that no issue has been framed on this point, but in my opinion the plaintiff is to blame for it, In cation to the Integration Secretary. It was also pleaded that the plaintiff's application had not reached the Secretary of the Integration Department, and it is not known to the defendant as to where it was sent and what happened to it, This the defendant clearly denied that the plaintiff had ever applied to the proper authority for appointment to the Rajasthan Administrative Service. Learned counsel for the appellant streneously urged that the trial court should have framed proper issues on this question It is true that no issue has been framed on this point,but in my opinion the plaintiff is to be blamed for it. In the first place, he did not press for any such issue upto the decision of the case by the first appellate court. Apart from that, there is no allegation any where in the plaint that the plaintiff had submitted his application in the prescribed form so as to reach the Secretary, Integration Department by 15th September, 1950 at the latest. It may be observed in this connection that Rule 7 itself provides that the applications received thereafter, that is, after 15th September, 1960 are liable to be rejected without consideration. In absence of positive assertion to the effect that the plaintiff had submitted the application within the time limit prescribed under the Rules, no useful purpose would be served by framing an issue on the point and sending the case back to the trial court for decision on this point. The plaintiff has however relied upon the letter Ex.1 to show that the Government itself had admitted that the plaintiff's application had been lost in the Secretariat,
9. I have carefully gone through the order Ex.1 and in my opinion it does not contain any such admission. The first paragraph of this letter only repeats the gist of the report made by the plaintiff to the effect that his application had been lost in the Secretariat. There is nothing in this letter to show that the plaintiff's application had been received in time and had been lost in the secretariat. It is true that in this letter the Government has mentioned that the plaintiff's case bad been examined and that it was further of the view that the process of appointment to the Rajasthan Administrative Service by integration had come to an end with the publication of the Rajasthan Administrative Service Rules, 1954 It is further mentioned in the letter that the Selection Committee for 1957 examined the plaintiff's case and his record of service and advised the Government that the plaintiff was not suitable for appointment to the Rajasthan Administrative Service. It is also mentioned in this letter that in 1955. In 1956 and 1957 the plaintiff's name was not even recomended by the recommending authorities for appointment to the Rajasthan Administrative Service by ordinary promotion, and in view of this assessment the plaintiff's claim for appointment to the Rajasthan administrative Service in the process of integration was turned down. Learned counsel for the appellant submits that the reasons given by the Government; in the aforesaid letter give rise to an inference that the plaintiff's application must have been received in time and lost in the Secretariat. However, I find it difficult to accept this contention. The mere fact that irrespective of the question of the submission of the application by the plaintiff within limitation the Government examined his case and found him unsuitable, does not lead to the conclusion that the plaintiff had submitted his application within time in accordance with the Rules. In this view of the matter the plaintiff's claim is liable to be negatived for the simple reason that there is no pleading much less the proof that he had applied within the prescribed time to the prescribed authority and unless that is done the question of calling him for interview and considering his case for selection to, the Rajasthan Administrative Service does dot arise, and it is also not necessary to consider the question of limitation for the suit etc.
10. This appeal is. therefore, without force. However, learned counsel for the appellant submits that sicne the appellant's suit has been dismissed on a. technical point the parties may be left to bear their own costs throughout. Having regard to the circumstances of the case I direct that the parties will bear their own costs throughout.
11. The appeal is, therefore, dismissed with this slight modification in the judgment of the lower court that (the parties are left to bear their owa costs throughout.