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Shri Lal Vs. the State of Rajasthan and anr. - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 2061 of 1970
Judge
Reported in1975WLN(UC)11
AppellantShri Lal
RespondentThe State of Rajasthan and anr.
DispositionPetition dismissed
Cases ReferredKrishana Kumar v. S.P. Saksena
Excerpt:
.....respect of the termination of the services of the petitioner in the present case was taken by the state government and was agreed to by the director, the mere issuance of the notice by the deputy director, in pursuance of the orders of the director would not invalidate the said notice. - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of..........director of the scheme informed the petitioner that his services were no longer required by the state government with effect from october 27, 1970 thus the services or the petitioner were terminated under rule 23a(1) of the rajasthan services rules thereinafter called 'the rules') with effect from the afternoon of october 27, 1970 the petitioner has challenged, by means of the present writ petition, the aforesaid order of termination of his services.2. two submissions have been put forward before me by the learned counsel for the petitioner his first submission is that the petitioner was appointed as a stockman against the clear vacancy on a substantive basis against a permanent post and, therefore, his services could no have been terminated merely by giving him one month's notice.....
Judgment:

D.P. Gupta, J.

1. The facts of this case lie in a very narrow compass the petitioner, Shrilal was temporarily appointed as a Lower Division Clerk by an order of the Deputy Director, Intensive Cattle Development Scheme, Bikaner (hereinafter called 'the Scheme'), for a period of one month in a leave vacancy with effect from May 20, 1968. He was subsequently transferred by the order of the Director, Animal Husbandry, dated June 21, 1968 (Ex. 1) on the vacant post of a Stockman and he was directed to report to the Deputy Director of the Scheme the petitioner continued to work on the post of Stockman for a period of more than two years and thereafter, by a notice dated September 28, 1970, the Deputy Director of the Scheme informed the petitioner that his services were no longer required by the State Government with effect from October 27, 1970 Thus the services or the petitioner were terminated under Rule 23A(1) of the Rajasthan Services Rules thereinafter called 'the Rules') with effect from the afternoon of October 27, 1970 the petitioner has challenged, by means of the present writ petition, the aforesaid order of termination of his services.

2. Two submissions have been put forward before me by the learned Counsel for the petitioner His first submission is that the petitioner was appointed as a Stockman against the clear vacancy on a substantive basis against a permanent post and, therefore, his services could no have been terminated merely by giving him one month's notice under Rule 23A(1) of the Rules. This submission is wholly untenable in view of the fact that the petitioner was initially appointed in a temporary capacity for a period of one month in a leave vacancy as a Lower Division Clerk and thereafter his services were transferred by the order Ex. 1 dated June 21, 1968 by the Director of Animal Husbandry on the post of Stockman there is nothing in the order Ex. 1 to show that the petitioner was appointed in a substantive capacity or that; the said appointment on the post of Stockman was against a clear vacancy the respondents have stated in their reply that the appointment of the petitioner was made in a temporary capacity and that Scheme was itself a temporary one and, therefore, the question of appointing the petitioner in a substantive capacity did not arise. A copy of the sanction accorded by the State Government, making a lumpsum provision for the Scheme, has also been placed on record and it appears that the Scheme was a temporary one and, therefore, the appointment of the petitioner on the post of Stockman could not have been made on a substantive basis. Moreover, mere transfer of a temporary employee from one post to another cannot have the effect of appointing him on a substantive basis. Even from the order Ex. 1, it does not appear that there was a clear vacancy on the post of Stockman and merely because the post of Stock man was vacant at the time when the petitioner was appointed by transfer on the said post, it cannot be inferred that there was a clear vacancy, inasmuch as the post could have been vacant on account of a leave vacancy or due to the temporary promotion of the permanent incumbent thereof to a higher post or on account of the occurrence of any other similar contingency.

3. The second contention advanced by the learned Counsel for the petitioner is that the petitioner was appointed on the post of Stockman by the order of the Director, Animal Husbandry, and as such, his services could not have been terminated by an order passed by the Deputy Director of the Scheme, because under Rule 23A(1) of the Rules the notice of termination could be given only by the appointing authority, who was the Director, Animal Husbandry in the present case the contention of the respondents in this respect is that the appointment of the petitioner on the post of Stockman by the Director, Animal Husbandry, was irregular inasmuch as a ban was imposed by the State Government on making fresh appointments at the relevant time, except in the case of Scheduled Castes and Scheduled Tribes and that no person could have been appointed unless his name was duly registered with an Employment Exchange and, therefore, the petitioner could not have been appointed as Stockman by transfer, as his initial appointment on the post of Lower Division Clerk was purely temporary for a period of one month in a leave vacancy they have further stated that the petitioner did not possess the requisite qualifications for the post of Stockman. However, learned Additional Government Advocate has not been able to substantiate his stand relating to the ineligibility of the petitioner for the post of Stockman as no rules or notification prescribing the minimum qualifications for the post of a Stockman have been brought to my notice the respondents have produced an extract copy of SD called Animal Husbandry Subordinate Service Rules' along with their reply to the writ petition but learned Additional Government Advocate was unable to produce any such service rules framed under the proviso to Article 309 of the Constitution governing the appointment of 'persons to Animal Husbandry Subordinate Service posts the post of a Stockman is a subordinate post as it is included in Schedule It annexed to the Rajasthan Civil Services (Classification. Control and Appeal) Rules, 1958 in the Livestock Section of the Agricultural Department the appointment of the petitioner on the post of Stockman therefore, would be governed by the provisions of the Rajasthan Subordinate Service (Recruitment and other Service Conditions) Rules, 1970 (hereinafter referred to as the Service Rules').the Appointing Authority, as specified in the Service Rules, is the Head of the Department or any other officer to whom the powers in that behalf may be delegated by a special or general order of the State Government therefore, the Director of Animal Husbandry, who is the Head of the Department was no doubt the Appointing Authority so far as the petitioner's appointment to the post of stockman was concerned. It appears that the Director of Animal Husbandry found that the appointments of 12 persons in his Department, including that of the petitioner were irregular and by his letter dated July 15, 1970 the Director intimated the State Government about the aforesaid 12 irregular appointments made in his department. Out of the parsons who were irregularly appointed, four were said to belong to scheduled castes and scheduled triads while the remaining 8 persons, of which the petitioner was one, were alleged to have been irregularly appointed by direct recruitment, in defiance of the directions of the State Government and the provisions of the Service Rules the Director or Animal Husbandry proposed that either the appointment of the afore said 12 persons be regularised or the Government may direct that their services may be terminated by giving them one month's notice the State Government considered the matter and sent the following reply to the Director:

Copy of letter No. 1 (68) Agri/IV/1970 from the Dy. Secretary to the Government of Agriculture IV Department Rajasthan, Jaipur.

Sub: Irregular appointments made under 1 CD Scheme, Bikaner,

Ref: Your letter No. F.V. (129) Estt./C/70/1003 dt. 15-7-70.

I am directed to say that the Deputy Director, I.C.D. Scheme, Bikaner be asked to obtain necessary requisite certificate with regard to first 4 employees belonging o schedule castes from these employees so that concurrence to regularize their cases could be obtained from General Administration C) Department. As regards the remaining eight employees, who were not recruited through the Employment Exchange, their, services may be terminated by the Appointing Authority.

The explanation of the concerned officer, who made these appointments in an irregular manner may please be called and forwarded to this department with your comments early.

19 service books and 12 personal fie a received with your letter under reference are also returned herewith the receipt of which may please be acknowledged.

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Thus, it is clear that as regards the remaining eight employees, including the petitioner, the state Government was not, prepared to regularize their appointments and directed that their services be terminated by the Appointing Authority the Director of Animal Husbandry, who was the Appointing Authority, on receiving the aforesaid letter from the State Government forwarded the same to the Deputy Director of the Scheme and directed him to comply with the ciders of the State Government at an early date. It was in pursuance of this order of the Director, that the Deputy Director of the Sent ire issued the notice Ex. R/4 to the petitioner informing him that his services were no longer required by the State Government with effect from October 27, 1970 and as such, his services were terminated under Rule 23A of the Rules with effect from the afternoon of October 27, 1970.

4. Learned Counsel for the petitioner vehemently submitted that under Rule 23A of the Rules, the notice which is required to be given for terminating the services of a temporary Government servant, must be in writing and must be given by the Appointing Authority and that it should be for a period of one month there ism doubt that the notice Ex. R/4 given to the petitioner was in writing and Was also for a period of one month. Learned Counsel, however, contends that the said nonce was not in accordance with the provisions of Rule 23A(1) and was, therefore, invalid, because it was not given by the Appointing Authority, namely the Director of Animal Husbandry. Rule 23A(1) of the Rules reads as under:

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 of the Government servant the period of such notice shall be one month unless otherwise agreed to by the Government and by the Government servant.

5. I have already mentioned above that the decision in respect of the termination of the services of the petitioner was taken by State Government as it appears from the order Ex. R/5A which I have reproduced above and the said decision was duly conveyed to the Appointing Authority, who accepted the same the Director, who was the Appointing Authority, was himself capable of giving the requisite notice under Rule 23A(1) but in the present case, instead of himself giving the said notice, the Director directed the Deputy Director of the Scheme to serve the requisite notice upon the petitioner and it is in this manner that the Deputy Director came to issue the notice Ex. R/4 In my opinion, the provisions of Rule 23A have been substantially complied with in the present case inasmuch as there is a conscious decision or determination on the part of the State Government and the Director that the services of the petitioner should be terminated and it was under his direction that the Deputy Director actually issued the notice Ex. R/4 the argument of the learned Counsel for the petitioner is that the provisions of Rule 23A(1) are mandatory and that they should be complied with strictly. I have no doubt that the mandate of the Rule has been complied with in the present case as it appears that the notice Ex. R/4 was issued in pursuant of the specific directions of the Director the giving of a notice under Rule 23A(1) is essentially an administrative act and the actual issuance thereof could be delegated by the Director or some of her authority provided the decision to issue such a notice was taken by the Director himself. In my view, the substance of the matter has to be looked into and it can safely be held, in the circumstances of the present case, that the notice was issued by the Director through the agency of the Deputy Director their Lordships of the Supreme Court made the following observations in Pradyat Kumar Bose v. Hon'ble Chief Justice of Calcutta High Court AIR 1958 SC 285:

It is true that no judicial tribunal can delegate is functions unless it is enabled to do so expressly or by necessary implication. But the exercise of the power to appoint or dismiss an officer is the exercise not of judicial power but of an administrative power. It is nonetheless so, by reason of the the fact that an opportunity to show cause and as enquiry simulating judicial standards have to precede the exercise thereof. It is well recognised that a statutory functionary exercising such a power cannot be said to have delegated his functions merely by deputing a responsible and competent official to enquire and report. That is the ordinary mode of exercise of any administrative power. What cannot be delegated except where the law specifically so provides is the ultimate responsibility for the exercise of such power.

Thus, as the decision in respect of the termination of the services of the petitioner in the present case was taken by the State Government and was agreed to by the Director, the mere issuance of the notice by the Deputy Director, in pursuance of the orders of the Director, would not invalidate the said notice. Reference in this connection may be made to the decision of their Lordships of Supreme Court in Krishana Kumar v. S.P. Saksena : AIR1973SC1065 . Moreover, in the notice Ex. R/4, it was clearly mentioned that the said notice was issued in accordance with the decision of the State Government. Thus, the petitioner Was also made well aware of the fact that the State Government had taken the decision to terminate his services. In view of these considerations, I am of the opinion that the services of the petitioner were rightly terminated by a proper notice under Rule 23A(1) of the Rules.

6. No other point was argued before me.

7. In the result, the writ petition fails and is hereby dismissed. However, the parties are left to bear their own costs.


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