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Mohan Singh Gehlot Vs. the Municipal Council - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberD.B. Civil Special Appeal No. 19 of 1976
Judge
Reported in1984WLN(UC)390
AppellantMohan Singh Gehlot
RespondentThe Municipal Council
DispositionAppeal dismissed
Excerpt:
.....disputes act, 19477--section 25f--termination--point not raised in writ or argued before single judge--no foundation laid down--held, it cannot be allowed to be raised in db.;admittedly, this point was not raised before the learned single judge and in our opinion, after a it lapse of ,also it more than 8 years, it will not be a exercise of discretion to permit the learned counsel to challenge the order (ex. 17,) being in disregard of section 25f of the industrial disputes act, for, no foundation regarding the applicability of section 25f of the act has been laid down.; appeal dismissed - - 17) is bad in law, for, it is in disregard of the provisions of section 25f of the industrial disputes act, 1947. it was put to the learned counsel whether this point was raised before the..........high court ordinance, 1994 is directed against the order dated january 30, 1976 of the learned single judge of this court, by which, the writ petition of the petitioner appellant was dismissed summarily.2. the petitioner-appellant was temporarily appointed as lower division clerk in the office of the municipal council, sriganganagar with effect from february 14, 1969. his service period was extended from time to time. his case was referred to the rajasthan paachayat and local self subordinate service commission (which will here in after be referred as 'the commission'). it appears that the commission did not grant concurrence and, therefore, by means of the order (ex. 17 dated january 12, 1976, his services were terminated. ha filed the writ petition on january 29, 1976 prayine that.....
Judgment:

S.K. Mal Lodha, J.

1. This appeal under Section 18 of the Rajasthan High Court Ordinance, 1994 is directed against the order dated January 30, 1976 of the learned Single Judge of this Court, by which, the writ petition of the petitioner appellant was dismissed summarily.

2. The petitioner-appellant was temporarily appointed as Lower Division Clerk in the office of the Municipal Council, Sriganganagar with effect from February 14, 1969. His service period was extended from time to time. His case was referred to the Rajasthan Paachayat and Local Self Subordinate Service Commission (which will here in after be referred as 'the Commission'). It appears that the Commission did not grant concurrence and, therefore, by means of the order (Ex. 17 dated January 12, 1976, his services were terminated. Ha filed the writ petition on January 29, 1976 prayine that the order (Ex. 17) dated January 12, 1976 may be quashed and the respondents any be directed to reinstate him in service and to allow him all consequential benefits pertaining to pay, seniority etc. By his order dated January 30, 1976, the learned Single Judge rejected the writ petition summarily. Hence this appeal as aforesaid.

3. During the pendency of the appeal, an application was filed on behalf of the appellant praying that the Commission may be ordered to be impleaded as respondent No. 2 in the appeal. On March 11, 1976, leave to implead the Commission was granted subject to objections, if any raised by the respondents. A show cause notice was issued to the Commission. No appearance was put in on behalf of the respondents. Hence the appeal was admitted. After service of notice on the respondents, it was listed for hearing.

4 We have heard Mr. M.R. Singhvi, learned Counsel for the appellant and Mr. B.R Arora, learned Counsel for respondent No. 1. Nobody appeared on behalf of respondent No, 2 despite service of notice.

5. Before the learned Single Judge, the following contentions were raised

(1) that the Commission could not have rejected the candidature of the petitioner without considering his case;

(2) that there was no positive refusal on the part of the Commission to give its concurrence and in the absence of such refusal, the services of the petitioner could not have been terminated; and

(3) that the Rajasthan Service Rules (hereinafter referred to as 'the Rules') were applicable to the case of the petitioner by virtue of Rule 36 of the Rajasthan Municipal Subordinate and Ministerial Service Rules, 1963 (for short 'the Rules of 1963') and as the netitioner had worked for more than three years, on account of the provisions of Rule 23 A of the Rules the services of the petitioner could not have been terminated without complying with the aforesaid rule.

The learned single Judge on the aforesaid contentions recorded the following findings:

(1) that in the absence of the Commission, the question that the petitioner appellant's candidature was rejected without consideration cannot be examined;

(2) that even on merits, the Commission was justified in rejecting the petitioner appellant's candidature in respect of the pos of Lower Division Clerk in Municipal Council, Sri Ganganagar; and

(3) that the services of the petitioner appellant were rightly terminated in accordance with the provisions of Rule 27 of the Rules of 1963 and that the provisions of the Rules could not be attracted.

Learned Counsel appearing for the appellant pressed that the candidature of the petitioner appellant was not at all considered by the Commission and' therefore, the matter may be sent back for consideration of his candidature by the Commission. It may be stated here that the Commission was not impleaded as a party to the writ petition and, therefore, the learned single Judge was justified when he held that in the absence of the Commission, this question cannot be examined.

6. Be that as it may, a perusal of the order (Ex. 17) dated January 12, 1976 shows that the Commission vide its letter No 356-70 dated 5, 1976 sent the list on the Lower Division Clerks for whom it had given its concurrence, the names of the petitioner and other four persons were not included in that list. This shows that the Commission only granted its concurrence to the persons mentioned in the list sent by Municipal Council, Sri Ginganagar other that the five persons whose names are mentioned in Es. 17 inclusive of the petitioner appellant. In these circumstances, the learned single Judge, in our opinion, was right in holding that when the concurrence was not given regarding the petitioner, it meant that there was refusal on the part of the Commission.

7. Part IV of the Rules of 1963 deals with Temporary Appointments. Rule 27 occurs in Part IV of the Rules of 1963, which deals with 'Emergent Temporary appointments'. The material portion of Rule 21 of the Rules of 1963 reads as under:

27. Emergent Temporary appointments (1) A vacancy in the service may be filled temporarily by the appointing authority by appointing thereto a person eligible for direct recruitment under the rules or by temporarily promoting thereto a person holding the next lower post and possessing the requisite qualifications:

Provided that no such temporary appointment eisher by promotion or by direct recruitment shall be continued beyond a period of ore year without referring it to the Promotion Board, in case of promotion and to the Commission in the case of direct recruitment for their concurrence and on their refusal to concur, such appointment be terminated immediately.

Provided further that until selected candidates are made available by the Commission, the term may be extended by the Director from

time to time.

According to Rule 27 of the Rules of 1963, temporary appointment by direct recruitment cannot be continued beyond one year if the concurrence to that appointment ii not given by the Commission. The consequence of not giving concurrence is also provided in the proviso and that is, in case of refusal, the appointment has to be terminated immediately. It is clear from Ex. 17 that with respect to the petitioner and four other persons, concurrence to the appointment was not given by the Commission and as this was no done, the consequence was that the Municipal Council, Sri Ganganagar had no option but to terminate the services of the petitioner immediately. In these circumstances, we are unable to agree with the learned Counsel for the petitioner appellant that the services of the petitioner appellant were terminated illegally or without consideration. The termination of the services of the petitioner appellant was in accordance with Rule 27 of the Rules of 1963.

8. It was further submitted by the learned Counsel for the appellant that the order (Ex. 17) is bad in law, for, it is in disregard of the provisions of Section 25F of the Industrial Disputes Act, 1947. It was put to the learned Counsel whether this point was raised before the learned Single Judge. Learned Counsel frankly stated that this was not taken before the learned single Judge but as it is a question of law which does not require investigation into facts, he may be permitted to challenge the order (Ex 17) on the basis of the provisions of Section 25F of the Industrial Disputes Act. We have gone through the writ petition. Foundation to challenging the order (Ex. 17) being bad and illegal on the basis of Section 25F of the Industrial Disputes/Act has not been laid in the writ petition. Even during the pendency of the writ petition, no steps were taken by the petitioner to raise this contention by amendment of the writ petition. Admittedly, this point was not raised before the learned Single Judge and in our opinion, after a loose of about more than 8 years, it will not be a sound exercise of discretion to permit the learned Counsel to challenge the order (Ex. 17) being in disregard of Section 25F of the Industrial Disputes Act, for no foundation regarding the applicability of Section 25F of the Act has been laid down. We, therefore, do not grant leave to the learned Counsel for the appellant to raise the question of s 25F of the Industrial Disputes Act.

9. No other point survives for our consideration in this appeal.

10. The result is that this appeal is dismissed without any order as to costs.


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