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Kana Ram Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 834 of 1973
Judge
Reported in1977WLN(UC)499
AppellantKana Ram
RespondentState of Rajasthan and ors.
DispositionPetition dismissed
Excerpt:
.....'qualifying service' must conform to three tests, namely, that the service must be under the state government, the employment must be substantive and lastly the service must be paid for by the state government.;(b) rajasthan service rules - rules 212 & 244(2)--break in service condoned--held, service can be counted from initial appointment.;the effect of the order passed by the state government under rule 212, condoning the interruption in the service if the petitioner, was that there was no break in the service of the petitioner and his entire service beginning from january 22, 1948 became one and continuous, until he was compulsorily retired from government service under rule 244(2).;the effect of condonation of interruption in the service of the petitioner is that the entire..........parties are the petitioner was appointed as a nakedar in the excise and customs department of the state government on january 22, 1948. his services were subsequently transferred to the irrigation department where he continued to serve for some time but on march 3, 1958 he resigned from his post. subsequently, he applied again for an appointment and on december 26, 1958, he was appointed as a patwari in the revenue department of the state. thereafter, on the request of the petitioner himself, the state government condoned the interruption in his service from march 4, 1958 to december 25, 1958 under rule 212 of the rules by an order dated july 3, 1967 and an entry in respect of the condonation of break in the service of the petitioner was made in his service book.2. according to the.....
Judgment:

D.P. Gupta, J.

1. The short question which arises for consideration in this writ petition is as to whether the petitioner had completed 25 years of qualifying service', within the meaning of Sub-rule (2) of Rule 244 of the Rajasthan Service Rules (hereinafter referred to as 'the Rules'), on the date when he was compulsorily retired from Government Service. The brief facts which have given rise to this question and which are not in dispute between the parties are the petitioner was appointed as a Nakedar in the Excise and Customs Department of the State Government on January 22, 1948. His services were subsequently transferred to the Irrigation Department where he continued to serve for some time but on March 3, 1958 he resigned from his post. Subsequently, he applied again for an appointment and on December 26, 1958, he was appointed as a Patwari in the Revenue Department of the State. Thereafter, on the request of the petitioner himself, the State Government condoned the interruption in his service from March 4, 1958 to December 25, 1958 under Rule 212 of the Rules by an order dated July 3, 1967 and an entry in respect of the condonation of break in the service of the petitioner was made in his service book.

2. According to the petitioner, the period of his 'qualifying service for the purposes of Rule 244(2) of the Rules, should be counted from December 26, 1958 when he was employed 'afresh' as a Patwari in the Revenue Department of the State. But the case of the respondents is that the 'qualifying service' of the petitioner should be counted from January 22, 1948 when he was initially employed in the service of the State and the subsequent appointment of the petitioner as a Patwari did not give rise to a new set vice, because the interruption in the service of the petitioner was condoned by the State Government under Rule 212, at the request of the petitioner himself. If the petitioner's 'qualifying service' is counted with effect' from December 26, 1958 there can be no doubt that he did not complete 25 years,' qualifying service' on the date when the notice of compulsory retirement' under Rule 244(2) was served upon him and in that event, the compulsory retirement of the petitioner cannot be upheld But in case the 'qualifying service' of the petitioner is to be counted with effect from the date, of his initial employment under the State Government, namely, from January 22, 1948 and his service is considered as a continuous one during the entire period, hen the contention of the learned Counsel for the petitioner would be untenable.

3. Rule 244(2) of the Rules authorities the State Government or the authority on whom the power has been delegated, to retire a Government servant from service on the date on which he completes 25 years of 'qualifying service' or attains the age of 50 years or on any date thereafter; which may be specified in the notice for a duration of at least three months given to such Government servant. In the present case, the notice under Rule 244(2) was given to the petitioner on May 16. 1973. According to Rule 177(b) of the Rules, unless it is otherwise provided by special rules or contract, 'qualifying service' of every Government servant begins when he takes charge of the office to which he is first appointed. The 'qualifying service' must conform to three tests, namely, that the service must be' under the State Government, the employment must be substantive and permanent and lastly the service must be paid for by the State Government. The-service rendered by the petitioner as Nakedar in the Excise and Customs Department and later on in the Irrigation Department was no doubt service under the Government of Rajasthan and was also paid for by the State Government. It is also not in dispute that the service of the petitioner since his appointment on January 22, 1948 was in a substantive capacity and was thus permanent. Ordinarily, the service of the petitioner should have come to an end as soon as his resignation was accepted and without anything more his appointment as a Patwari in the Revenue Department on December 26, 1958 would have been considered as a fresh appointment, leading to a fresh service. But. Rule 212 of the Rules provides that upon such conditions as it may think fit, the State Government may condone interruption in the service of a Government servant. The State Government may, in its discretion, condone the interruption in the service of a Government servant, where he has resigned, his appointment, in the must instance for good reasons or if he was compelled to resign for reasons beyond his control' and it is considered proper to permit him, to count his past qualifying service for pension. Resignation from public service normally entails; forfeiture of past services rendered by the Government servant concerned, as provided in Rule 208 of the Rules, But the power of condonation of interruption in service conferred upon the State Government under Rule 212, carries with it also the power of reviving the service, rendered by such Government servant prior to the interruption, but ,which otherwise would have stood forfeited under Rule 208(a). Thus, the effect of the order passed, by the State Government under Rule 212, condoning the interruption in the service of the petitioner, was that there was no break in the service of the petitioner and, his entire service beginning from January 22, 1948 became on and continuous, until he was compulsorily retired from Government server under Rule 244(2).

4. The argument of the learned Counsel for the petitioner is that on account of the order passed under passed under Rule 212, only the past service rendered by the petitioner could be revived and his past service could be counted as 'qualifying service' but the period from March 4, 1958 to December 25, 1958 'when the petitioner' was not in'service' at all should not' be counted towards qualifying service. It is not possible to accept this contention of the learned Counsel because of the simple reason that once the interruption in the service of the petitioner was condoned under Rule 212, there was only ore continuous service as if there was no break in his service. Consequently, it could not thereafter be said that the petitioner was not in set vice of the State Government during the intervening period. As a matter of fact, the effect of condonation of interruption in the service of the petitioner is that the entire period, beginning from the date of first appointment of the petitioner, should be counted towards 'qualifying service' for purpose of pension as well as for purposes of Rule 244(2). 'The fact that the petitioner was not paid salary or emoluments for the period during which he was not actually in service is not material so far as the question of counting the 'qualifying service' of the petitioner is concerned. I am firm of the view that after the break in service was condoned by the State Government, under Rule 212, the service rendered by the petitioner cannot be compartmentalised The period-of service rendered by him upto the date of his resignation and the period of his Service after his reappointment cannot Be kept as separate & distinct services. But on account of the order of condonation of break in his 'Beryice', both these periods were linked together to 'one' and continuous service, which is only' possible when the period of break from March 4, 1958 to December 25/1958 was considered as part of his 'qualifying service'. It was this period, the break in respect of which was actually condoned. Thereafter by a fiction of law the petitioner should be considered to have, been in Government service during the aforesaid period, in which he did not actually render any service. The condonation of interruption cannot have any other effect. Counting the petitioner's qualifying' service with effect from January 22, 1948, there, is no doubt that he completed more than 25 years' qualifying service on May 16, 1973 where three month's' notice under Rule 244(2) of the Rules was served upon the petitioner. The contention of the learned Counsel, therefore, cannot be accepted.

5. Lastly, it was urged by the learned Counsel, for, the petitioner the petitioner was compulsorily retired on account of the malafides of the Tehsildar under whom he served and although the confidential reports of the petitioner for the earlier years, did not contain any adverse entries, yet the Tehsildar made an adverse entry in the confidential report for the. year 1971-72, with the result that the petitioner was, compulsory retired. This contention is obviously misconceived. In the first instance, it is the Collector, Land Records, Bikaner, who passed the order of, compulsory retirement of the petitioner and the Tehsildar has nothing to do with the same. In the second place, it appears from a, perusal of, the service record of the petitioner that there are adverse entries contained in, his earlier confidential reports as well and that all the adverse; entries have been considered by the Collector while passing the order of compulsory retirement of the petitioner. It is well settled that the entire record of the service of a Government servant should be considered, while passing an order of his compulsory, retirement and if the competent authority takes into consideration adverse entries made in his earlier confidential reports also, then the order of compulsory retirement cannot be said to be unjustified. The case of the petitioner is not one that his service was without any blemish at all and in these circumstances, the discretion exercised by the competent authority cannot be interfered with by this Court.

6. No other point was argued before me.

7. The writ petition has no merit and is hereby dismissed. The parties are left to bear their won costs.


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