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Vednidhi Sharma Vs. Director Tech. Edu. and anr. - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 462 of 1967
Judge
Reported in1971WLN302
AppellantVednidhi Sharma
RespondentDirector Tech. Edu. and anr.
DispositionPetition dismissed
Cases ReferredState of Rajasthan and Anr. v. Fateh Chand and Anr.
Excerpt:
rajasthan service rules - rule 23a(2)--employee failing 3 times in test--whether entitled to protection under rule 23a(2).;since the petitioner appeared in those tests or examination three times but failed to qualify it must be held that he did not possess the necessary qualification for recruitment to the post in question.;it is therefore quite clear that the protection of rule 23a(2) can, be available to those temporary servants who are not at fault in securing a permanent status and to whom that status has to be denied because of the exigencies of the service, applying this test also, the petitioner has no case because, he was himself to blame for failing qualify at the examination or test held by the directorate of technical education, even though three chances were given to him for..........because, according to him, he was entitled to the protection of rule 23a(2) of the rajasthan service rules. he applied for leave on august 17, 1967. leave was sanctioned to him from august 21, 1967 up to august 26, 1967. august 27, 1967 and august 28, 1967 were gazetted holidays.3. a letter (ex. 5) was sent by the head of the civil engineering department of the bikaner polytechnic to the petitioner on august 23, 1967, along with a copy of the principal's letter ex. 6 of the same date, asking the petitioner to hand over the charge to one lal chand. the petitioner did not carry out that order and filed the present petition under article 226 of the constitution, on the ground that he was being removed in contravention of the provisions of rule 23a(2) of the rajasthan service rules.4......
Judgment:

P.N. Shinghal, J.

1. Petitioner Vednidhi Sharma obtained a diploma in Civil Engineering in 1968. An advertisement (Ex. 1) was issued for recruitment to certain temporary posts of Drawing Instructors. He applied for one of those posts and was appointed temporarily as Drawing Instructor (Civil Engineering) with effect from January 17, 1964, or the date of his joining, for a period of six months, or until such time as his services were required or until a suitable candidate selected by the Rajasthan Public Service Commission joined his duties, whichever was earlier. That order of appointment is Ex. (II). The petitioner joined his duties in the Bikaner Polytechnic oh January 18, 1964.

2. He received a letter (Ex. 3) dated August 14, 1967 from the Principal of the Bikaner Polytechnic informing him that he would be relieved of his employment when the candidate selected by a Selection Committee joined the post. The petitioner felt aggrieved because, according to him, he was entitled to the protection of Rule 23A(2) of the Rajasthan Service Rules. He applied for leave on August 17, 1967. Leave was sanctioned to him from August 21, 1967 up to August 26, 1967. August 27, 1967 and August 28, 1967 were gazetted holidays.

3. A letter (Ex. 5) was sent by the head of the Civil Engineering Department of the Bikaner Polytechnic to the petitioner on August 23, 1967, along with a copy of the Principal's letter Ex. 6 of the same date, asking the petitioner to hand over the charge to one Lal Chand. The petitioner did not carry out that order and filed the present petition under Article 226 of the Constitution, on the ground that he was being removed in contravention of the provisions of Rule 23A(2) of the Rajasthan Service Rules.

4. The respondents have denied the petitioner's contention. They have taken the plea that it was specifically stated in the advertisement (Ex. 1) that it was necessary for the petitioner to take his chance for permanent absorption, along with other candidates, as and when the posts were advertised by the Central Board of Selections, Directorate of Technical Education. It has also been contended that it was specifically stated in the order of appointment Ex. 2 that the appointment was for a period of six months or till such time as the petitioner's services were required, or until a suitable candidate selected by the Rajasthan Public Service Commission joined his Judges, whichever was earlier. It appear that thereafter the post went out of purview of the Rajasthan Public Service Commission, and the respondents have stated that even though the petitioner was thrice allowed to appear before the Selection Board for his appointment oh a permanent basis, he Was found unsuitable on every occasion and that was why it became necessary to terminate his temporary appointment by order Ex. 6 dated August 23, 1967. The respondent have pointed out that the petitioner's leave was curtailed by an order dated August 22, 1967, in accordance with the condition of sanction of the leave, and that although the petitioner was present on August 23, 1967 when he was asked to hand over charge to the new incumbent, he did not carry out that order. The case of the respondents therefore is that the petitioner's service has rightly been terminated in terms of the aforesaid order Ex. 6 dated August 23, 1967.

5. I have heard the learned Counsel for the parties, and they are in agreement that the post of Drawing Instructor ceased to fall within the category of those posts which had to be filled in consultation with the Rajasthan Public Service Commission because of an amendment which was made to the Rajasthan Public Service Commission (Limitation of Functions) Regulations 1951, by notification No. 4(8)Apptts/A/lV/56 dated September 25, 1963, appearing in the Rajasthan Gazette dated March 12, 1964. The short question for decision, therefore, is whether the petitioner is entitled to the protection of Rule 23A(2) of the Rajasthan Service Rules as has been argued by his learned Counsel Mr. Lodha

6. Rule 23A(2) of the Rajasthan Service Rules provides at follows,

(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 punch consultation is necessary, shall be liable to termination:

(i) 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.

It is not disputed that the petitioner had been in continuous service for more 3 years when order Ex. 6 dated August 23, 1967 was issued for the termination of his employment as Drawing Instructor. It is also beyond controversy that the post fell outside the purview of the Rajasthan Public Service Commission, so that consolation with the Commission was not necessary any longer. So also, it is not in dispute that the petitioner satisfied the requirement in respect of the age of appointment. The question however is whether he could be said to satisfy the suitability in respect of the qualifications prescribed for the post?

7. It is not the case of any of the parties before me that there were any rules which prescribed the qualifications for the post of Drawing Instructor. Both the learned Counsels have therefore relied on the qualifications stated in the aforesaid advertisement Ex. 1. A perusal of that advertisement shows that it prescribed the academic qualification that the candidate should come out successful at the chances given to him for permanent absorption along with the other candidates as and when the post was advertised by the Central Board of Selections of the Directorate of Technical Education. It is not disputed that the petitioner possesses the academic qualification as well as the experience. He did not however qualify for permanent absorption along with other candidate when the posts were advertised by the Central Board of Selections of the Directorate of Technical Education for, as has been stated, he was allowed to take three chances but failed in each one of them. It therefore remains to examine whether that failure could be said to deprive the petitioner of the benefit of Rule 23A(2) of the Rajasthan Service Rules.

8. The learned Counsel for the parties have, in this connection, invited my attention to a decision of their Lordships of the Supreme Court in State of Rajasthan and Anr. v. Fateh Chand and Anr. : AIR1970SC1099 , where their Lordships interpreted the meaning and scope of Rule 23A(2) of the Rajasthan Service Rules. In doing so, their Lordships examined the meaning of the expression 'qualifications to the post' and held as follows:

The expression 'qualifications to the post' in Clause 2 of the rule, therefore, means qualification of which only the person in question could have been recruited to the post.

It has therefore been laid down by their Lordships that the question whether the incumbent satisfies the suitability in respect of the prescribed qualification has to be answered with reference to those qualifications of which he could have been 'recruited to the post'.

9. Now a perusal of the aforesaid advertisement (Ex. 1) shows that while applications were invited for temporary appointments, it was clearly stated that those selected for temporary appointments shall be allowed to take their chance for permanent absorption along with other candidates as and when the posts were advertised, inter alia, by the Central Board of Selections of the Directorate of Technical Education, Rajasthan, Jodhpur. It was therefore an essential qualification for recruitment to the post of Drawing Instructor that the candidate should pass the test or examination to be held by the the Central Board of Selections. Since the petitioner appeared in those tests or examinations three times, but failed to qualify, it must be held that he did not possess the necessary qualification for recruitment to the post in question.

10. As a matter of fact their Lordships of the Supreme Court have clearly denned the scope of Rule 23A(2) of the Rajasthan Service Rules in their aforesaid judgment as follows:

There would, therefore, be temporary servants who, due to the exigencies of the service, cannot be be made permanent though they have qualified themselves for being so made. It is this class of temporary servants who, due to no fault of theirs and who otherwise would have been made permanent, are equated with permanent servant and whose services can be terminated in the same manner as those of the permanent servants.

It is therefore quite clear that the protection of Rule 255A(2) can be available to those temporary servants who are not at fault in securing a permanent status and to whom that status has to be denied because of the exigencies of the service. Applying this test also, the petitioner has no case, because he was himself to blame for failing to qualify at the examination or test held by the Directorate of Technical Education even though three chances were given to him for that purpose. Such a person cannot therefore claim the benefit of Rule 23A(2) of the Rajasthan Service Rules.

11. No, other point has been argued, and as I find no force in this writ petition, it is dismissed with costs. The stay order dated September 19, 1967 is vacated.


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