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Khuman Lal Devra Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 1828 of 1972
Judge
Reported in1977WLN(UC)251
AppellantKhuman Lal Devra
RespondentState of Rajasthan and ors.
Excerpt:
.....post of l.d.c.--held, there cannot be unified common seniority for all fieldsmen and l.d.c.s.;the post of fieldman was admittedly a post corresponding to the post of lower division clerk and as such the petitioner could have been appointed on the post of lower division clerk by transfer from the post of fieldman, but that cannot lead to the conclusion that there should be a unified common seniority list of all persons holdings the posts of fieldman and lower division clerks.;(b) rajasthan subordinate offices ministerial staff rules, 1957 - rules 7 and 27 fieldsman transferred to post of ldc option given to l.d.c.s to return to post of l.d.c l.d.c.s specifically told that seniority would be considered from date of substantive appointment as l.d.c.s --option not exercised by..........to the petitioner that in case he did no: exercise his option for going back to his parent cadre post fieldman he would be assigned seniority on the basis of his substantive appointment on the post of lower division clerk. the petitioner admittedly did not exercise an option in favour of returning back to the post of fieldman. it is thus apparent that the petitioner was prepared to continue to hold the post of lower division clerk on the clear understanding that his earlier service rendered on the post of fieldman shall not be counted for the purpose of determination of his seniority on the post of lower division clerk. the petitioner having accepted this condition, he cannot now complain in this writ petition that the service rendered by him on the post of fieldmen should also be.....
Judgment:

D.P. Gupta, J.

1. The petitioner entered the service of the State of Rajasthan initially as a Plant Protection Mukadam, Thereafter by the order of the Deputy Director of Agriculture (Cotton), Rajasthan, Udaipur dated June 13, 1956 the petitioner was temporarily appointed as a Fieloman in the Cotton Extension Scheme in the grade of R.S.60-3-90-EB 5-120. The petitioner was confirmed on the post of Fieldman by the order dated September 22, 19G7 with effect from July 1, 1959. On April 8, 19b8 the petitioner was transferred to the post of Lower Division Clerk in the office of the Distinct Soil Conservation Officer, Udaipur arid he joined the aforesaid post on April 14, 1968 and continued to hold the sand post till he was promoted as officiating Upper Division Clerk by the order dated September 29, 1970. This officiating promotion or the. post of Upper Division Clerk was given, to the petitioner in accordance with the position assigned to him in the seniority list of Lower Division Clerks, published by the Director of Agriculture vide Notification dated September 28, 1970 The grievance of the petitioner is that by a subsequent notification dated September 26, 1972 the Director of Agriculture published a fresh seniority list of the lower Division Clerks employed in the department and the seniority of the petitioner was modified to his disadvantage, inasmuch as he was not included in the category of permanent Lower Division Clerks but was shown a temporary holder of the scar post and further that he was assigned seniority at serial No 190 in the said category. On account of the fact that the petitioner was assigned a lower position in the seniority list dated September 26, 1972 he was reverted from the post of Upper Division Clerk to that of Lower Division Clerk by the order dated November 18, 1972. The petitioner has challenged in this writ petition the assignment of lower position to him in the set aorist list of temporary Lower Division Clerks as well as the order of his reversion from the post of officiating Upper Division Clerks.

2. No reply has been filed by any one of the respondents to this writ petition. However, the learned Addl. Govt. Advocate pointed out that after the final seniority list of Lower Division Clerks was published on September 28, 1.970 it was felt that the seniority was wrongly assigned to the persons who had been inducted on the posts of Lower Division Clerks from the posts of Fieldmen and Laboratory Assistant, and as such the State Government required the Direr for of Agriculture to revise the seniority of Lower Division Clerks in the department. There upon those persons who were recruited as Field-men and were subsequently drafted to the pests of Lower Division Clerks were allowed by the Notification issued by the Director of Anglican re on September 19, 1972 an opportunity to indicate their epsilon withier a period of one month as to whether they desired to return to their parent cadre on the post of Field men or Laboratory Assistant, as the case may be, or they desired to remain on the post of Low r Division Clerk. It was made cleat by the aforesaid notification that those Lower Division Clerks, who did not exercise their open in favour of returning back to the puns of Fieldman would not be entitled to get any benefit of the service rendered by them earlier on the post of Fieldman in the matter of assignment of seniority, which shall be determined with regard to the date of their appointment on the post of Lower Division Clerk only. It is an admitted ease of the parties that the petitioner did not exercise his option in favour of returning back to the post of Fieldman, although it was open to him to return back to his parent cadre. As the petitioner faulted to exercise such an option, his seniority has been predetermined visa is other Lower Division Clerks on the basis of the length of service rendered be him on the post of Lower Division Clerk It was further submitted that the petitioner has been ordered to be reverted from the officiating post of Upper Division Clerk to the post, of Lower Division Clerks as there were several Lower Division Clerks senior to him, who should have been promoted in preference to the petitioner. The respondents have thus tried to justify both the demotion of the petitioner from the post of officiating Upper Division Clerk as well as the assignment of Lower position to him in the seniority list of Lower Division Clerks.

3. The contentions of the learned Counsel for the petitioner have been confined to three issues only. In the first place it was urged by him that the posts of Field men and Lower Division Clerks were in one and the same category and were inter-changeable and under Rule 27 of the Rajasthan Subordinate Offices Ministerial Staff Rules, 1957- (hereinafter called the Rules; a combined seniority list should have been prepared of all persons employed as Fieldmen and Lower Division Clerks in the department In the second place it was argued that the petitioner was given a discriminatory treatment inasmuch as other Fieldmen working as Lower Division Clerks were assigned higher seniority on the basis of their service rendered on the post of Fieldman while the petitioner was denied higher position in the seniority list on that basis, but he was assigned much lover position in the seniority list only on the basis of the service rendered by him on the post of Lower Division Clerk. The third submission of the learned Counsel is that the criteria employed for assignment of seniority is not in accordance with the provisions of Rule 27 whereby seniority should be assigned on the basis of the date of the order of substantive appointment of the person to the class of posts concerned. I shall deal with these submissions in seriatim.

4. In respect of his first submission, learned Counsel for the petitioner laid stress upon the note appended to Rule 6 of the Rules. According to Sub-rule (2) of Rule 6 of the Rules ministerial staff in the subordinate offices of the State is to comprise of two cadres, viz. a cadre of stenographers and a general cadre consisting of posts in the category of Superintendents, Assistants, Head Clerks, Upper Division Clerks and Lower Division Clerks. Sub-rule (1) of Rule 6 authorizes the State Government to determine the strength of staff from time to time. The note appended to Rule 6(2) provides that an) ministerial post in a Sub-ordinate office in a pay scale applicable to any of the categories specified in Sub-rule (2) of that rule shall be deemed to be a post in that category for the purposes of the rules. The argument of the learned Counsel for the petitioner is that on account of the aforesaid note the post of Fieldman. which is a ministerial post in a subordinate office in the same pay scale applicable to the posts of Lower Division Clerk, should be deemed to be included in the category of Lower Division Clerks. The post of Fieldman-cum store keeper was formerly included in Schedule III of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 relating to ministerial services. But by a subsequent amendment the post of Fieldman has ceased to be a ministerial service post and the entry relating thereto was deleted from Schedule III with effect from July 9, 1970, and was included in Schedule II of the aforesaid Rules, relating to subordinate services. It is no doubt true that at the time when the petitioner was transferred from the post of Fieldman that of a lower Division Clerk on April 8, 1968 the posts of Fieldman and Lower Division Clerks were ministerial service posts and were also in the same pay scale. As such by virtue of the note to Rule 6(2) of the Rules, the post of Fieldman should at that time be deemed to have been included in the category of Lower Division Clerks for the purpose of application of the Rules, and as such the provisions relating to recruitment, promotion and seniority and other matters contained in the Rules could be applicable to the posts of Fieldman in a similar manner as they were applicable to the posts of Lower Division Clerks. It is significant to note that Rule 27 which is in respect of determination of seniority does not speak of determination of seniority in a category of posts but it only provides for determination of seniority in each class of posts. There is nothing on the record to show that the posts of Field-man and that of Lower Division Clerk were inter-changeable posts and in the absence of any such material it is difficult to hold that there should have been a combined seniority list of all persons appointed to the posts of Fieldmen and Lower Division Clerks. Of course, the first proviso to Rule 7 authorizes the appointment on a post in any cadre included in the service by transfer of a person holding a post in another department, corresponding to a post in the cadre concerned. The post of Fieldman was admittedly a post corresponding to the post of Lower Division Clerk and as such the petitioner could have been appointed on the post of Lower Division Clerk by transfer from the post of Fieldman, but that cannot lead to the conclusion that their should be a unified common seniority list of all persons holding the posts of Fieldmen and Lower Division Clerks. The first contention of the learned Counsel is, therefore, without any substance and is repelled.

5. As regards the second contention, the petitioner has given instances of four persons who were allegedly given higher seniority on the basis of their service rendered on the post of Fieldman. So far as Beulah is concerned he was initially appointed as a lower Division Clerk in the year 1955 and although for some time he was transferred to the post of Fieldman but later on he was transferred back to the post of Lower Division Clerk again and in these circumstances it was proper to assign to Bherulal his seniority on the basis of his initial appointment on the post of Lower Division Clerk. Similar is the case of Bhagwatilal Joshi, who was also initially appointed as a Lower Division Citrk and was subsequently transferred to the post of Fieldman. The cases of these persons are distinguishable. So far as Bansilal chary is concerned it appears from the seniority list that he has not been assigned a higher seniority on the basis of his services rendered on the post of fieldman. However, great stress has been laid by the learned Counsel on the case of Ramgopal. It was brought to the notice of the Court that Ramgopal has filed a writ petition in this Court being S.B. Civil writ petition No. 22 of 1973 as he was also subsequently reverted from the post of Upper Division Clerk in the same manner as the petitioner, on the ground that he was not sufficiently senior. In this view of the matter, it does not appear that any discriminatory treatment has been meted out to the petitioner. This ground also, therefore, fails.

6. As regards the third contention, it appears that the earlier seniority list, published vide Notification on 28-9-1970 assigned higher seniority to the petitioner on the ground that the service rendered by the petitioner on the post of Fieldman was also taken into consideration. The petitioner was then assigned seniority on the basis of the date of first appointment on the post of the Fieldman. But thereafter when the matter was brought to the notice of the State Govt. and it gave a direction vide their letter on May 15, 1972 to revise the aforesaid final seniority list on the basis that in the case of those persons who earlier held the post of Fieldman or Laboratory Assistant and were sub queenly appointed as Lower Division Clerks, their services as Fieldman or Laboratory Assistant should not be counted for the purpose of determination of their seniority on the post of Lower Division Clerk. In the mean time, as I have already noticed above, the post of Fieldman was taken out from the category of ministerial service posts and was place in the category of subordinate service posts In these circumstances, the Director of Agriculture gave an option to the petitioner and other persons whit had been transferred from the posts of Fieldmen or Laboratory Assistant to those of Lower Division Clerks either to return to their parent cadre or in case they desired to continue on the post of Lower Division Clerk then it was clarified that they would not be given any benefit, for the purpose, of fixation of seniority, of the service rendered by them earlier on the post of Fieldman or Laboratory Assistant. Thus it was then made clear to the petitioner that in case he did no: exercise his option for going back to his parent cadre post Fieldman he would be assigned seniority on the basis of his substantive appointment on the post of Lower Division Clerk. The petitioner admittedly did not exercise an option in favour of returning back to the post of Fieldman. It is thus apparent that the petitioner was prepared to continue to hold the post of Lower Division Clerk on the clear understanding that his earlier service rendered on the post of Fieldman shall not be counted for the purpose of determination of his seniority on the post of Lower Division Clerk. The petitioner having accepted this condition, he cannot now complain in this writ petition that the service rendered by him on the post of Fieldmen should also be considered for the purpose of assignment of higher seniority to him in the category of Lower Division Clerks and he is stopped now from raising any such plea.

7. Learned Counsel for the petitioner raised a further submission that as the petitioner was holding the post of Fieldman in his substantive capacity he should have been considered to have been appointed as a Lower Division Clerk by transfer also in a substantive capacity and that the Director of Vasculature has incorrectly assigned seniority of the petitioner in category of temporary Lower Division Clerks in the Seniority List-Annexure 8. A perusal of the order of transfer of the petitioner from the post of Fieldman to that of Lower Division Clerk dated April 8, 1968 does not mention that petitioner was appointed as a Lower Division Clerk in a temporary or officiating capacity. The said order only states that the petitioner has been appointed as a Lower Division Clerk on a vacant post, by transfer. As the petitioner was holding the post of Fieldman in a substantive capacity, there is no basis for holding that the petitioner was merely a temporary Lower Division Clerk. As I have already mentioned above, a person holding a corresponding post could be appointed as a Lower Division Clerk by transfer under the first proviso to Rule 7 of the Rules. The petitioner, who was holding the post of Fieldmen in the same pay scale as that of the Lower Division Clerk, was appointed to the said post by transfer. It must, therefore, be held that the petitioner was holding the post of Lower Division Clerk in the substantive capacity with effect from April, 14, 1968 when he was transferred to that post vide order Annexure 3. Rule 27 nativities that the seniority in respect of a is lass of posts is to be determined by the date of order of substantive appointment. As the petitioner was substantively appointed as a Lower Division Clerk by the order dated April 8, 1968 he should be assigned a position in the seniority List of Lower Division Clerk in accordance with the date of his substantive appointment as Lower Division Clerk. The notification dated September 26, 1972 appended to the final seniority List Annexure 8 shows that the seniority of the Lower Division Clerks in the department has been determined on the basis of the date of substantive appointment on the post But the petitioner has not been assigned his proper place in the seniority list of permanent Lower Division Clerks, who have been included in part A of the seniority list Exhibit 8. It would, therefore, boneless now to revise the seniority list of Lower Division Clerks and to assign proper seniority to the petitioner awnings the substantive Lower Division Clerks & to assign proper seniority to the petitioner amongst the substantive Lower Division Clerks, in accordance with date of his substantive appointment on the post of Lower Division Clerk.

8. In the result, the writ petition is partly allowed, the respondents Nos. 1 and 2 are directed to revise the final seniority list of Lower Division Clerks, employed in the Agriculture Department (Annex. 8), in accordance with the date of their substantive appointment on the said post and to assign a proper place to the petitioner in the aforesaid final seniority list of Lower Division Clerks, considering the fact that the petitioner was appointed as a Lower Division Clerk in a substantive capacity with effect from April 14, 1968. If on the assignment of a proper place in the seniority list, the petitioner has still to be reverted from his officiating post of Upper Division Clerk on ground that persons senior to him are found to hold the post of Lower Division Clerks, then the petitioner may be Ieverted to his substantive post of Lower Division Clerk. But in case on assignment of a proper seniority to the petitioner on the aforesaid basis, it found that all persons senior to him have already been promoted as Upper Div. Clerks, then the order of reversion of the petitioner from the post of Upper Division Clerk in an officiating capacity should be cancelled or withdrawn. The parties are left to bear their own costs.


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