1990 Supreme(Raj) 555
RAJASTHAN HIGH COURT
Milap Chandra Jain, J.
Rameshwar Lal - Appellant
Versus
Zila Parishad, Jodhpur and Another - Respondent
S.B.C.W.P. 2549 of 1987.
Decided On : 19-07-1990
Advocates:
For the Petitioner:Mr. P.P. Chowdhari, Advocate.
For the Respondent:Mr. L.S. Udawat, Advocate.
For the Applicant:Mr. L.R. Calla, Advocate.
The seniority of an employee transferred prior to the amendment of Rule 29(4) of the Rajasthan Samiti and Zila Parishads Service Rules, 1959, on April 22, 1980, should be determined based on the continuous length of his substantive appointment, and not from the date of his transfer.
Headnote:
SENIORITIY LIST - RAJASTHAN PANCHAYAT SAMITIS AND ZILA PARISHAD ACT, 1959 - SECTION 86(9-A) - RULE 29(4) - SUBSTANTIVE APPOINTMENT - TRANSFER - INTERPRETATION OF RULE 29(4) - EFFECT OF AMENDMENT - DATE OF SUBSTANTIVE APPOINTMENT.
Fact of the Case:
Petitioner, an Assistant Master, was substantively appointed on September 9, 1952, and confirmed from this date. In 1968, he was transferred from Panchayat Samiti, Jaitran to Panchayat Samiti, Bilara, and joined duty on August 4, 1968. In 1986, the seniority list showed his substantive appointment date as August 4, 1968, instead of September 9, 1952. He challenged this, arguing that his seniority should be determined based on the continuous length of his substantive appointment.
Finding of the Court:
The court held that the petitioner's seniority should be determined based on the continuous length of his substantive appointment, and that the amended Rule 29(4) of the Rajasthan Samiti and Zila Parishads Service Rules, 1959, which came into force on April 22, 1980, did not apply to him as he was transferred prior to that date. The court directed the respondents to treat the petitioner's substantive appointment as September 9, 1952, and to fix his seniority accordingly.
Issues: 1. Whether the petitioner's seniority should be determined based on the continuous length of his substantive appointment or from the date of his transfer? 2. Whether the amended Rule 29(4) of the Rajasthan Samiti and Zila Parishads Service Rules, 1959, applied to the petitioner's case?
Ratio Decidendi: 1. Rule 29(4) of the Rajasthan Samiti and Zila Parishads Service Rules, 1959, as it existed prior to the amendment in 1980, provided that the seniority of an employee transferred would be determined based on the continuous length of the substantive service on an analogous post. 2. The amended Rule 29(4) applied only to employees transferred on or after April 22, 1980, and did not have retrospective effect.
Final Decision: The court allowed the writ petition and directed the respondents to treat the petitioner's substantive appointment as September 9, 1952, and to fix his seniority accordingly.
JUDGMENT
1. - This writ petition has been filed for issuing direction to the respondents to show the date of appointment of the petitioners to be September 9, 1952 in the seniority list, 1986 (Annex. P/2).
2. The case of the petitioner is that he was substantively appointed as an Assistant Master by the Inspector of Schools, Jodhpur by his order dated 8.9.1952 (Annex.-1). He joined the duty on 9.9.52 and was confirmed from this date. On coming into force of the Rajasthan Panchayat Samitis and Zila Parishad Act, 1959 (hereinafter to be called as 'the Act'), the primary schools which were under the control of the Inspectors of Schools came under the purview of this Act. The post of Assistant Master was redesignated as Teacher Grade III. By order dated July 29, 1968, the petitioner was transferred from Panchayat Samiti, Jaitran (Pali) to Panchayat Samiti, Bilara (Jodhpur) and in pursuance thereof, he joined duty in the Panchayat Samiti, Bilara on August 4, 1968. In year 1986, the Secretary, Zila Parishad, Jodhpur issued a seniority list showing his name at Serial No. 25 and his date of substantive appointment to be 4.8.1968 instead of 9.9.1952 and also putting a cross-mark (x) against his name. He submitted his representation (Annex. 3) against it but with no avail. However, he was told that his substantive appointment would be treated with effect from the day he joined Panchayat Samiti, Bilara (Jodhpur) and not 9.9.1952.
3. In reply, it has been stated by the respondents that petitioner himself sought his transfer from Panchayat Samiti, Jeaitaran (Pali) to Panchayat Samiti, Bilara (Jodhpur) in the year 1968, according to the provisions of Rule 29(4), Rajasthan Samiti and Zila Parishads Service Rules, 1959 (hereinafter to be called 'the Rules') his substantive appointment has rightly been shown with effect from 4.8.1968 in the seniority list and this position has further been clarified by the State Government by issuing Circular No. F37(5) VDP/Adm-3/80/2521 dated 20.6.1984 (Annex-R/4).
4. It was contended by the learned counsel for the petitioner that according to Rule 29(4) of the Rules, as existed in the year 1968, the petitioner's seniority was to be determined on the basis of the continuous length of his substantive appointment should have been shown as 9.9.1952 and not 4.8.1968 (the date on which he took over charge in the Panchayat Samiti, Bilara). He further contended that this sub-rule was amended appointment should have been shown as 9.9.1952 and not 4.8.1968 (the date on which he took over charge in the Panchayat Samiti, Bilara). He further contended that this sub-rule was amended in the year 1980 and the amendment had not affected either his seniority or the date of substantive appointment as this amendment was not with retrospective effect.
5. The learned counsel for the respondents and the learned counsel for the Rajasthan Shikshak Sangh, Panchayat Samiti, Bilara (intervener) contended that the writ petition deserves to be dismissed on two grounds. Firstly, the petitioner concealed the fact of his request made for his transfer from Panchayat Samiti, Jairan to Panchayat Samiti, Bilara in the year 1968. Secondly, the list Annex. 2 is not a final seniority list and the writ petition is pre-mature. They also contended that the provisions of amended rule 29(4) and the said Circular Annex. R/1 would apply to the case of the petitioner also and his date of substantive appointment has rightly been shown to be August 4, 1968 in the seniority list Annex. 2.
6. It is the admitted case of the parties that the petitioner was appointed on the substantive post of Assistant Master on September 9, 1952, he was confirmed w.e.f. this date, the post of Assistant Master was redesignated as Teacher Grade III on coming into force of the Act, he was transferred from Panchayat Samiti, Jairan to Panchayat Samiti, Bilara by order of July 29, 1968 and he joined duty on August 4, 1968 in the Panchayat Samiti, Bilara. Prior to the amendment, Sub-rule
Click Here to Read the rest of this document
Back
