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Panchayat Samiti, Through the Vikas Adhikari, Panchayat Samiti Vs. Smt. Bhanwari Devi W/O Shri Narayan Lal and anr. - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberD.B. Civil Special Appeal No. 354 of 1980
Judge
Reported in1981WLN(UC)251
AppellantPanchayat Samiti, Through the Vikas Adhikari, Panchayat Samiti
RespondentSmt. Bhanwari Devi W/O Shri Narayan Lal and anr.
DispositionAppeal dismissed
Excerpt:
panchayat samitis and zila parishads rules, 1969 - rules 11, 18 & 29--reversion of teacher--probationary period completed--regularization by district committee not necessary--held, reversion after 3 1/2 years was not justified.;the respondent was appointed on permanent basis vide ex./5 dated 22.12 1974 and even if for arguments sake it may be taken that she was appointed on probation, still the period of probation expired on 22.12.1975 or the latest on 22.12 76 and there was no justification for reverting the respondent as late as 12.4 1979. in our view it is not at all necessary to get the case of respondent regularised from the district establishment committee or the service commission.;practice - appellant cannot be permitted to raise another ground in reply to writ.;the appellant..........the respondent in pursuance to the aforesaid direction of the state government was promoted on the post of teacher vide ex./5, dated 22 12-1974 passed by the vikash adhikari, panchayat samiti, sayala. it was mentioned in the aforesaid order that the respondent had passed 'kovid' which was equivalent to inter and she was appointed as assistant teacher in grade iii at primary school, alasin with immediate effect. the respondent thereafter continued to work on the post of assistant teacher and her work was also appreciated by the senior deputy inspector schools, jalore vide ex./io. that all of a sudden without prior notice an order was passed by the vikash adhikari vide ex./7 dated 12-4-1979 reverting the respondent to the post of class iv: the only reason for reverting the respondent as.....
Judgment:

N.M. Kasliwal, J.

1. This Special Appeal under Section 18 of the Rajasthan High Court Ordinance, 1949 is directed against the order of the learned Single Judge, dated 25-9-1980, whereby the writ petition filed by Smt. Bhanwari Devi was allowed.

2. Facts in brief necessary for the determination of this appeal are that Smt. Bhanwari Devi (hereinafter called as the respondent) was appointed as Class IV servant in the Government Primary School, Umedabad. Thereafter she was transferred in Panchayat Samiti at Sayala as 'Sevika' somewhere in 1959-60. The respondent while working as Sewika passed the 'Kovid' examination in 1966, conducted by Rastra Bhasha Prachar Samiti, Vardha. The Rajasthan Government vide its notification dated 31-10-1960 had recognised 'Kovid' examination as equivalent to inter examination for the purposes of employment. The respondent then moved an application for being promoted as a teacher. The Rajasthan Government vide Ex./4, dated 3-1-1970 issued a notification informing all the Panchayat Samitis that in persuance to an amendment made in Rule 29(1) in Rajasthan Panchayat Samiti and Zila Parishad Rules, (hereinafter referred to as the Rules of 1969), all the Class IV servants may be selected for promotion who fulfill the qualifications under Rule 11. It was further mentioned in the Notification, Ex./4 that in case such employees have been promoted on a temporary basis, then action maybe taken to confirm them. The respondent in pursuance to the aforesaid direction of the State Government was promoted on the post of teacher vide Ex./5, dated 22 12-1974 passed by the Vikash Adhikari, Panchayat Samiti, Sayala. It was mentioned in the aforesaid order that the respondent had passed 'Kovid' which was equivalent to inter and she was appointed as Assistant teacher in Grade III at Primary School, Alasin with immediate effect. The respondent thereafter continued to work on the post of assistant teacher and her work was also appreciated by the Senior Deputy Inspector Schools, Jalore vide Ex./IO. That all of a sudden without prior notice an order was passed by the Vikash Adhikari vide Ex./7 dated 12-4-1979 reverting the respondent to the post of Class IV: The only reason for reverting the respondent as mentioned in Ex/7 was that the respondent did not fulfill the requisite qualifications.

3. The respondent as such filed a writ petition challenging the order Ex./7. According to the respondent she was fully qualified to hold the post of a teacher in the Primary School and she was rightly promoted in accordance with the Rules and the order of reversion was passed in a wrong and illegal manner and it also violated the principles of natural justice. The Panchayat Sayala filed a return to the writ petition and supported the order Ex./7. According to the Panchayat Saraiti the resolution promoting the respondent on the post of teacher was passed by the Standing Committee for administrative, finance and taxation of Panchayat Samiti, Sayala and not by the District Establishment Committee. According to the Panchayat Samiti, the Committee constituted under Section 86 of the Panchayat Samiti and Zila Parishads Act was the Appointing Authority in all the Panchayat Samitis and no other authority had been entrusted with this power of appointment. The standing Committee of the Panchayat Samiti had power to make temporary appointments only and when the case of the respondent was put before the Service Selection Commission, the Commission found that the respondent was not eligible for permanent appointment and as result of which the respondent was reverted to her original post.

4. The learned Single Judge held that according to the Rules as applicable at the time of the promotion of the respondent, the minimum qualification required for direct recruitment in respect of women candidate was Matric or any other qualification equivalent to Matric as declared by the Education Department. As the respondent was having an educational qualification as 'Kovid' which was equivalent to inter, she was qualified for appointment to the post of Primary School Teacher. Learned Single Judge also held that the tenure of appointment vide Ex/5 lad to only one conclusion that the respondent was appointed as teacher on permanent basis. Learned Single Judge further found that according to Rules 20 and 21, it was the function of the District Establishment Committee to recommend the names for promotion and thereafter the Panchayat Samiti was to make the appointment in accordance with such recommendations. The Service Commission was no where in the picture. According to the learned Single Judge the respondent had alleged in the writ petition that she was promoted on the recommendation of the District Establishment Committee. However, vide Ex./3 she was probably promoted on the recommondation of the Samiti Prashasan Karopan Samiti, Jalore. The learned Single Judge, however observed that he has his own doubts whether the recommendations were not made by the District Establishment Committee. The learned Single Judge was thus of the opinion that the respondent was duly qualified to hold the post and the reason mentioned in Ex./7 for her reversion was wrong. Of course, if there was no recommendation for appointment of the respondent by the District Establishment Committee, the appointment has to be regularised by considering her case afresh for permanent appointment as she was duly qualified to hold the post, in view of the matter her permanent appointment may be irregular. In the result the learned Single Judge quashed the impugned order Ex./7. The respondent was ordered to be reposted on the post which she was holding and was held entitled to the salary of a teacher of Primary School, even for the period during which she was not holding the post, as a result of the impugned order Ex/7.

5. Aggrieved against the order of the learned Single Judge, dated 25.9.1980 the Panchayat Samiti has filed this Special Appeal. The only point urged by Mr. Mathur, learned Counsel for the appellant is that the learned Single Judge committed an error in holding that the Service Selection Commission did not come in the picture at all. According to the scheme of Rules 20 and 21 the District Establishment Committee constituted under Section 83 of the Act becomes the Commission, under Rule 13 which considers the incumbents and thereafter recommends them to concerned Panchayat Samitis for appointment. On such recommendations the appointments are made by the Panchayat Samitis. In the present case the appointment was made by the Sthai Samiti Prashosan Vit Karopan Panchayat Samiti and not by the District Establishment Committee. It is also contended that the qualifications prescribed initially for women candidates was amended in 1979 and according to which the respondent was not eligible for the post of teacher and her order of reversion has been rightly passed. We find no force in the above contention of the learned Counsel for the appellant. We have gone through the relevant rules which existed at the time of granting promotion to the respondent on 22.12.1974 vide Ex./5. The respondent had passed Kovid examination which was equivalent to inter and this qualification was sufficient for the appointment on the post of a teacher in a Primary School on 22.12. 1974. when the respondent was promoted. According to the Notification, Ex. /4, dated 3.1.1970 it was incumbent upon the Panchayat Samiti to give promotion to Class IV employees on a permanent basis. It was not the concern of the respondent to see whether her appointment was processed through the District Establishment Committee or some other samiti. It cannot be disputed that on 22.12.1974 the respondent was eligible and fulfilled all the educational qualifications for being promoted as Assistant. Teacher Grade III in a Primary School. Such promotion was granted by the Vikash Adhikari vide Ex. 5 with immediate effect and it was also mentioned in this order that Kovid was equivalent to inter. This order clearly shows that the respondent was given a promotion on permanent basis and not on temporary basis. According to sub-Rule (5) of Rule 23 a temporary appointment could not have been continued for a period exceeding 12 months without prior concurrence of the Commission. In the present case, the respondent had joined service on the post of teacher w.e.f. 1.1.1975 and she was allowed to continue on the post for more than 4 years till the impugned order of reversion was passed on 12.4.1979. This conduct of the Panchayat Samiti also shows that the respondent was always treated on permanent basis and not on temporary basis. Order Ex./5 even do not make a mention that the respondent was taken on probation nor does mention that she was appointed on a temporary basis. Even according to the Rules, the period of probation could not have exceeded more than two years in all. Even a Probationer was entitled to be confirmed at the end of a period of one year or after the extended period of one year or more. In our opinion the respondent was appointed on permanent basis vide Ex/5 dated 22.12.1974 and even if for arguments sake it may be taken that she was appointed on probation, still the period of probation expired on 22.12.1975 or the latest on 22.12.76 and there was no justification for reverting the respondent as late as 12.4.1979. In our view it is not at all necessary to get the case of respondent regularised from the District Establishment Committee or the Service Commission.

6. There is another aspect of the case that in Ex./7 the only ground mentioned for the reversion of the respondent is that she did not fulfill the requisite qualifications. Obviously the appellant could not have taken such ground for reversion of the respondent as much as she was eligible on 22.12.1974 when she was promoted as Assistant Teacher. The amendment in the rule was made in 1979. It is well settled that the appellant cannot be permitted to take another ground for her reversion in the reply to the writ petition i.e. the appointment of the respondent was hot made on the recommendations of the District Establishment Committee or the Service Commission.

7. We agree with the view taken by the learned Single Judge that the appointment of the respondent was made on permanent basis and order of reversion Ex/7 is also violative of principles of natural justice as no notice or opportunity to show cause was given to the respondent, before passing such order.

8. In the result, we find no force in this appeal and the same is dismissed with costs assessed at. Rs. 100/.-


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