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Govind NaraIn Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 134 of 1968
Judge
Reported in1973(6)WLN342
AppellantGovind Narain
RespondentState of Rajasthan and ors.
DispositionPetition dismissed
Cases ReferredR.N. Nanjundappa v. T. Thimmaiah and Anr.
Excerpt:
.....there is therefore no reason why full effect should not have been given to the special rule of seniority contained in that proviso, to the exclusion of the general rule 28.;(c) rajasthan secretariat ministerial staff rules, 1956 - proviso (5 a) to rule 7--temporary service to be reckoned for purpose of seniority.;the proviso clearly states that their total length of service shall be reckoned for purposes of seniority from the date when they were initially appointed as translators.;(d) rajasthan secretariat ministerial staff rules, 1956 - proviso (5-a) to rule 7--retrospective operation.;it cannot be doubted that even though it was not stated in the amendment dated may 24, 1966 that it would be retrospective in operation, the intention clearly was that an ex post facto law..........there is therefore no reason why full effect should not have been given to the special rule of seniority contained in that proviso to the exclusion of the genetral rule 28.8. an ancillary argument has been made that the temporary service of the four respondent should, at any rate, have been excluded while determining their seniority under proviso (5a) to rule 7. this argument is also untenable because the proviso clearly states that their total length of service shall be reckoned for purposes of seniority from the date when they were initially appointed as translators.9. it has next been argued that as the seniority of the petitioner and the other respondents who were selected as a result of the competitive examination which was held in 1964 was determined on february.....
Judgment:

P.N. Shinghal, J.

1. There were some posts of translators in the Secretariat of the Rajasthan State. Shri Chandrika Prasad Mathur, respondent No. 2, was allowed to hold one such post because of his earlier appointment as Translator on October 10, 1955, in the service of the former Ajmer State. Shyamsunder Lal Vyas, respondent No.3., and Moolchand Vyas respondent No. 4 were appointed as Translators on a temporary basis on April 15,1960. Prabhu Dayal Verma respondent No. 5, was similarly appointed as Translator on a temporary basis on March 13, 1961, while Laloo Lal Jain, respondent No. 6, was appointed as a temporary Translator on October 7, 1981. Udhav Chandra Chaturvedi, respondent No. 7, and Mohammed Yamin, respondent No. 8, were appointed as Translators on a temporary basis on April 18, 1963, and December 17, 1963, respectively. While these respondents were holding the posts of Translators as aforesaid, a competitive examination was held by the Rajasthan Public Service Commissioner in February 1964. Udhav Chandra Chaturvedi, respond-ion No. 7, and Mohammed Yamin, respondent No.8. competed in the examination and were declared successful. Petitioner Govind Narain and three others also came out successful, and all of them were appointed as Translators, on probation for a period of one year by order Annexure 7 dated July 24, 1964. Their seniority was determined by order Annexure 8 dated August 26, 1964 The remaining respondents did not compete in the examination A seniority list was issued in regard to the seniority of translators on February 5/9, 1966, but it did not make a mention of the names of the respondents who did not sit in the competitive examination. All the same promotions were give to them on an ad hoc basis' from time to time, as they were retained in service on the additional posts which were created in the Secretariat. An amendment was then made to Rule 7 of the Rajasthan Secretariat Ministerial Staff Rules, 1956, hereinafter referred to as 'the Rule', on May 24, 1966, by which the following proviso was added to the rule:

(5-A). That persons who have been appointed Translators on temporary basis prior to 1-1-62 and who have continuously been working as such in the Secretariat shall be confirmed subject to their record of work being considered satisfactory by the Selection Committee appointed under Rule 25; and the total length of service as Translator from the date they were initially appointed as such will be reckoned for seniority purpose.

The additional posts of Translators were placed on a permanent footing, and respondents Chandrika Prasad Mathur, Shyamsunderlal Vyas, Moolchand Vyas, Prabhu Dayal Verma, and Laloo Lal Jain were appointed as Translators on a substantive basis by order Annexure 22 dated February 8, 1967, with retrospective effect from July 24, 1964, which was the date on which the petitioner and the other Translators were appointed as a result of the recruitment made by the Service Commission on a competitive basis. The petitioner submitted a detailed representation on March 18, 1967,but the State Government published a seniority list (Annexure 25) on May 4, 1967, by which respondents Nos. 2 to 6 were placed higher in seniority than him. He again made a representation and challenged the insertion of proviso (5-A) to Rule 7 of the Rules Thereafter he filed the present petition for striking down the aforesaid proviso as illegal and ultra vires and for a declaration that the seniority fixed by the order dated February 5/9, 1966 continued to remain in force and that the order appointing them as Translators with retrospective effect from July 24, 1964 was illegal and void, etc.

2. A reply has been filed by the respondent State in which the claim of the petitioner has been traversed altogether.

3 It may be mentioned that the learned Counsel for the petitioner has stated at the Bar that he has nothing to urge against the appointment and and seniority of Chandrika Prasad Mathur, respondent No. 2, Udhav Chandra Chaturvedi, respondent No. 7, and Mohammed Yamin, respondent No. 8, be- cause while Chandrika Prasad Mathur has retired. Udhavchandra Chaturvedi & Mohammad Yamin have been given the same treatment as the petitioner on the basis of the aforesaid competitive examination of 1964. The dispute therefore remains in respect of the remaining four respondents, and I shall proceed to examine the arguments which have been advanced in respect of them.

4. It has been argued that proviso (5-A) to Rule 7 of the Rules which was inserted on May 24,1966, is invalid and ultra vires Article 309 of the Constitution because it has been inserted for the purpose of regularising the illegal appointments of the four respondents in question which was not permissible under the proviso to that article. The learned Counsel has placed reliance on R.N. Nanjundappa v. T. Thimmaiah and Anr. : (1972)ILLJ565SC in support of this argument. The question therefore is whether the appointments of the four respon-dents were illegal

5. All that the petitioner has stated in this connection is that the appointments were invalid and could not be supported by any rule at all. It will be recalled that Shyamsunder Lal Vyas, respondent No, 3. and Moolchand Vyas, respondent No. 4, were appointed on April 15. 1960, Prabhu Dayal Verma, respondent No. 5, was appointed on March 18, 1961, and Laloo Lal Jain, respondent No. 6, was appointed on October 7, 1961. At that time the Rules were in force and, as the appointments were made on a temporary basis, their validity has to be adjudged with reference to Rule 27 (2). According to that rule, a vacancy of a Translator could be filled by the Deputy Secretary, temporarily, by appointing thereto, in an officiating or temporary capacity, the most suitable candidate available, if no nominee of the Commission was available. It is not in dispute that the four respondents possessed the necessary qualifications prescribed under Rule 27 (2) of the Rules, and it is futile to contend that proviso (5-A) to Rule 7 was inserted to regularise their illegal or irregular appointments. R.N. Nanjundappa v. T. Thimmaiah and Anr. (1) cannot therefore be of any avail to the petitioner.

6. I have examined proviso (5-A) to Rule 7 of the Rules with due regard to the admitted facts. By the time that proviso was insetted on May 24, 1966, the four respondents had already held appointments prior to January 1, 1962, on the dates mentioned above, so that more than four years' record of their service was available for the purpose of acertaining how they had discharged their duties as Translators, As such a long period had elapsed since their initial appointments, there was nothing wrong if the Governor considered it proper that the question of their further retention as Translators, or confirmation in that, capacity, should be decided once for all on the basis of their record of service and that the scrutiny of their suitability should be entrusted to the Selection Committee referred to in Rule 25 of the Rules. It is not the case of the petitioner that the respondents did not possess the necessary qualifications. On the other hand, the respondent State has stated that they were all law graduates. In these facts and circumstances, I am unable to think that by inserting proviso (5 A) to Rule 7 of the Rules, the Governor contravened the provisions of the proviso to Article 309 of the Constitution, An argument has also been made that proviso (5 A) was violative of Articles 14 and 16 of the Constitution, but the learned Counsel for the petitioner has not been able to show how this could be said to be so. The four respondents formed a class of employees whose case required consideration in view of the special circumstances mentioned above; and the Governor cannot be blamed if he inserted proviso (5-A) to Rule 7 for the purpose of deciding whether or not they should be retained in service on a permanent basis, with due regard to their qualifications and experience and the result of the scrutiny undertaken by the Selection Committee appointed under Rule 25. There is thus no force in the first argument of the learned Counsel for the petitioner.

7. It has next been argued that proviso (5A) to Rule 7 was subject to Rule 28 of the Rules, and that it was meant to govern only the inter se seniority of 'he four respondents mentioned above so that an illegality was committed in allowing it to affect the seniority of those who had been recruited on the basis of the competitive examination which was held in 1964 as aforesaid. It will be sufficient to say in this respect that no such restriction had been placed on, or can be inferred from, the proviso, which is quite clear and provides a special rule regarding the seniority of the Translators who had been appointed prior to Junary J, 1962 and who were found suitable by the Selection Committee for permanent appointment. There is therefore no reason why full effect should not have been given to the special rule of seniority contained in that proviso to the exclusion of the genetral Rule 28.

8. An ancillary argument has been made that the temporary service of the four respondent should, at any rate, have been excluded while determining their seniority under proviso (5A) to Rule 7. This argument is also untenable because the proviso clearly states that their total length of service shall be reckoned for purposes of seniority from the date when they were initially appointed as Translators.

9. It has next been argued that as the seniority of the petitioner and the other respondents who were selected as a result of the competitive examination which was held in 1964 was determined on February 5/9/1966, it could not have been altered thereafter, without amending Rule 21 of the Rules, and that proviso (5A) to Rule 7 should not have been allowed to interfere with that seniority so as to put the petitioner to a disadvantage. It has been urged in this connection that as the proviso has not been inserted with retrospective effect, it cannot undo or prejudice the seniority of the petitioner and the other Translators who were selected by the Service Commisison in 1964. This argument is however also untenable. It is true that when proviso (5A) was inserted in Rule 7 of the Rules on May 24, 1966, it was not expressly stoted that the amendment would be retrospective in operation But as has been stated in Craies on Statute Law, seventh edition, at page 388, such a question has to be answered on the basis whether there is a 'clear indication either from the subject-matter or from the wording of a statute' that it should receive retrospective construction. Moreover' as has further been stated in the same text book, it is necessary to look at the 'general scope and purview of the statute, and at the remedy sought to be applied, and consider what was the former state of the law, and what it was the legislature contemplated'. On the basis of the aforesaid test, it cannot be doubted that even though it was not stated in the amendment dated May 24, 1966 that it would be retrospective in operation, the intention clearly was that an ex post facto law should be made for the purpose of de ling adequately with the class of Translators to which the four respondents belonged. There is thus no force in this last argument also

10. As no other point has been argued, and I find no force in this writ petition, it is dismissed with one set of costs to the contesting respondents.


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