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Mohammed Ismail Khan Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 80 of 1974
Judge
Reported in1978(11)WLN286
AppellantMohammed Ismail Khan
RespondentState of Rajasthan and ors.
Cases ReferredMagor & St. Mellons v. New
Excerpt:
civil services - transfer--petitioner transferred from jail department to social welfare department--held, he did not get permanent appointment in social welfare department.;it is true that the petitioner was transferred from the jail department to the social welfare department but then, he got no permanent appointment in the latter department and never lost his lien in his parent department.;(b) rajasthan social welfare subordinate service rules 1963 rule 6--screening of suitability--eligibility for screening--rule amended after reversion to parent department--held, he is governed by new amended rule and is entitled to screening.;a person shall be eligible for being screened by a committee for adjudging his suitability on the post held by him provided:;(1)be possesses the academic..........he came to be confirmed on that post with effect from the sane date. he applied to the director, social welfare for some job in the social welfare d apartment in view of his high qualifications suited most to that department. the proposal was initiated by the director to transfer him from the fails department to his department and to appoint him on the post of welfare officer (prisons) in scale no. 19 that is 200 450. the proposal was approved by the minister and accordingly, an order was issued on 16th october, 1968 appointing him as officiating social well after officer (prisons for a period of six tenths he was then appointed as social welfare officer with effect from 15th september, 1969 in scale no. 15 of 225 525. he then came to be appointed as the superintendent, observation.....
Judgment:

M.L. Jain, J.

1.the petitioner Mohammed Ismail Khan joined service as an Assistant Jailor on list February, 1952. He came to be confirmed on that post with effect from the sane date. He applied to the Director, Social welfare for some job in the Social Welfare D apartment in view of his high qualifications suited most to that Department. The proposal was initiated by the Director to transfer him from the fails Department to his department and to appoint him on the post of Welfare Officer (Prisons) in Scale No. 19 that is 200 450. The proposal was approved by the Minister and accordingly, an order was issued on 16th October, 1968 appointing him as officiating Social Well after Officer (Prisons for a period of six tenths He was then appointed as Social Welfare Officer with effect from 15th September, 1969 in scale No. 15 of 225 525. He then came to be appointed as the Superintendent, Observation Home, Jarpur on 19th August, 1971. in the scale 250-625. On 28 6-1972, he was transferred on an ad ho; basis n the post of the Project Officer (Beggary Survey) on which post he continued to work until 4th April, 1973 when he proceeded on one month's leave on account of illness Since he could not be selected in regular manner and the Rajasthan Public Service Commission refused to concur in his continuance, the matter was referred to the Government and on 5th May, 1974 the Minister agreed to his reversion. Accordingly, he was reverted of 14th May, 1973, to his parent department. But he was not accepted by the Inspector General of Prison*. He filed the present writ petition on 3rd January, 1974, praying that the respondents be directed to all-w him to continue in the Social Welfare Department on the pay and scale he was last drawing and the order dated 14th May, 1973, be quashed. In the alternative he prayed that the respondent be directed to post him on the post of the Deputy Superintendent, Jail in the pay scale fixed for that post.

2. Meanwhile, the petitioner was without any posting and was getting no salary It was upon the directions of this Court that his posting orders were issued on 27th February, 1974, posting him as Assistant Jaior, Bhilwara. At present, the petitioner is holding the job of the Jailor since 1st September, 1976 and he is getting Rs. 690/ in the grade of 450-770.

3. The contention of the State Government is that the petitioner has was been given all the benefits which he would have had if he had remained in his parent department right from the time of his transfer to the Social Welfare Department until his revision therefore.

4. Two contentions were raised by Mr. Kasliwal the learned Counsel for the petitioner, namely, (1) that since he was transferred by the order of the State Government, it was a case of permanent transfer to the department of Social Welfare and he could not be reverted to the Jails Department; and (2) that after issuing his reversion orders, the

Government amended the Rajasthan Social Welfare Subordinate Service Rules, 1963 by its notification published in the Rajasthan Gazette of 3rd Feburary, 1976. By this amendment persons belonging to hit category were made eligible for screening by a Committee to judge their suitability on the posts last held by them. The petitioner submitted that he is entitled to be screened under that provision. The learned Government Advocate contended that his case was net covered by the amended rule and more over, the matter of screening under the aforesaid Rule has to be decided by the Rajasthan Civil Services Appellate Tribunal.

5. I have considered very carefully. It is true that the petitioner was transferred from the Jail Department to the Social Welfare Department but then, he got no permanent appointment in the latter department arrivers lost his lien in his parent department If his stand were accepted, then upon non-selection or non-concurrence by the Rajasthan Public Service Commission, he will have no post to fall back upon. Therefore, the contention that on his transfer he became a permanent employee of the Social Welfare Department has to be rejected.

6. In respect of the second contention we have to examine the effect of the new proviso (4) inserted in Rule 6 of the Service Rules of 1963 The relevant portion with which we are immediately concerned is as follows :

(4) that the persons not covered be proviso (3) to Rule 6 and having no lien on any post in the Service, who were appointed to the posts included in the Schedule in ad hoc officiating temporary basis in the relevant group on or before 30-6-1973 and were working continuously as such or on higher posts in the Social Welfare Department and would have worked but for their appointment on any other post on the date these rules come into force shall be screened by a Committee referrer to in Rule 24, for adjudging their suitability on the posts held provided that they possess the academic qualifications prescribed in these rules either for direct recruitment or promotion or the prescribed qualifications on the basis of which the persons were selected for ad hoc /officiating/temporary appointment

The contention of the State that the matter of screening falls within the jurisdiction of the Services Appellate Tribunal has to be rejected because when the, writ petition was filed the Services Tribunal had not come into existence and the pending writ petition shall have to be decided be this Court taking into account the subsequent change in the relevant service Rules to which the State has also referred in its reply. The aforesaid proviso shows that a person shall be eligible for being screened by committee for adjudging his suitability on the post held by him provided:

(1)he possesses the academic qualifications prescribed in thee Rules either for direct recruitment or promotion or the qualifications which were required at the time of his initial appointment;

(2)he had no lien on any post in the Rajasthan Social Welfare Sub* ordinate Service;

(3)he was appointed to one of the posts included in he Schedule on ad hoc, officiating or temporary basis on or before 30th June, 1973; and

(4) he was working continuously on that post or en a higher post in the Social Welfare Department and would have worked but for his appointment on any other post on the date these rules came into force.

7. Now, there is no doubt that the petitioner fulfils all the aforesaid requirements except the last one as contended be the State The last recurrent is that the person in order to be eligible for screening, should be one who would have continued to work on the post if he had not been appointed on any other post on the date these rules come into for Reading Rule 6 as a whole as it stood after its amendment, it will be noticed that the words 'these rules' occurred at several places and they re for to the principal Pulse of 1963 which cane into force on 27th December, I963 on which date many of the officers may not even be in the Department at all If that interpret ationdnesand should prevail, then, the 4th requirement simply becomes unworkable and for the lapse of the draftsman (he petitioner cannot be allowed to suffer. The lean ed Government advocate mace a bold attempt to explain that the words, 'these rules' occurring in (he newly inserted proviso ref, med to the Rajasthan Social Welfare Subordinate Services (reenactment) Rules, 1976, because such was the intention of tie law making authority. No dotbt, Denning L.J. in Seafarer Court Estates Ltd v. Asher (1949) 2 All E.R. 155 at p l64, observed that :

It would certainly save the judges trouble if the Acts of the Parlia ment were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears, Judge cannot simply fold his hands & blame the draftsman. He must set to work on the constructive task of finding the intention of the Par lament, & he must do this not only from the language of tie statute, but the from a consideration of the social conditions which gave rise to it and of the mischief which it was passed to remedy, and then he must supplement the written words so as to give 'force and life to the insertion of Legislature. Put into homely metaphor it is this: a Judge should ask the self the question how, if the makers of the Act had themselves come across this rook in the texture of it, they would have straightened it cut He must then do as they would have done A judge must not alter the material of which the Act is woven but he can and should iron cut the creases.'

Again in Magor and st Mallont v. Niu Pert Cortpn (1950) 2 Ail E.R. 226, he remarked;

We do not sit here to pull the language of the Parliament and of Ministers to pieces and make non sores of it. That is an ease doing to do, and it is a thing to which lawyers are tic often procure. We sit here to find out the intention of the Parliament & of Ministers & carry it out, and we do the better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis.

gut the House of Lords in Magor & St. Mellons v. New port Corpn. (1951) Z All E Rule 839 (EL) disapproved these propositions fid observed that such an approach was a naked usurpation of the legislative friction under the thin disguise of interpretation,'. With utility and respect, 1 surfside to the views propounded by the Bourse of I rods because the rule of law in the ultimate analysis is nothing but the rule of the words employed by the legislature and they must receive interpretation such as is conclusive to justice in consonance both the rights of ire project, fore Sinai (t persuaded to that the aforesaid newly inserted proviso in any and erect earlier the cone in which statutes are generally made and read, lie largesse of tie insertion is far from satisfactory. But even it were to accept tie condition that these rules intended by implication to mean the admitted inlets, then the word putt' cress a further complication It been not ca of scan a pest in any other deputing tint. It shall have to be constituted to civet to case of the posts included in the schedule to the rules and certainly the petitioner could have mentioned to work as on 3rd February, 1976, he was not holding any other post shown in the schedule. His appointment to the post of the Assistant Jailor. Bhilwara in 1974 can have no reference or relevance of any kind to the words 'any other post', occurring in the amendment proviso. I am, therefore, of the view that the case of the petitioner is covered by the wordings of the newly inserted proviso (4) and he is entitled to be screened by the Committee referred to in Rule 24 So, as far as the a Is Department is concerned, no relief is called for bin as far as the Social Welfare Department is concerned the petitioner is entitled to a direction in view of the amended rule inspite of the fact that he is currently working in his patent department.

9. I, therefore, accept this writ petition and direct that the State Government shall place within a period of two months here of the case of the petitioner before the Screening Committee as envisaged in the Rules for adjudging his suitability on the last post held by him in the Social Welfare Department. In case the Screening Committee finds him suitable, the consequent benefits shall necessarily follow. If he is not selected, that will be an end of the matter and the petitioner may continue to seek his future in the jails Department. No order as to costs.


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