1982 Supreme(Raj) 392
RAJASTHAN HIGH COURT
M.C.Jain, J.
Radha Kant Saxena - Appellant
Versus
State of Rajasthan and others - Respondent
S.B.C.W.P. No. 638 of 1975.
Decided On : 26-07-1982
The power to make rules regulating the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the State includes the power to amend existing rules. An amendment is not mala fide merely because it benefits a particular individual. An amendment is retrospective if it begins with a non-obstante clause and if it provides that it applies to persons who were in service on a particular date. A person who is holding a post on a particular date as a result of ad hoc transfer from another department is entitled to be appointed to the service in substantive capacity from that date if he possesses the requisite qualifications and is adjudged suitable for such appointment by the Commission.
Headnote:
SERVICE LAW - SENIORITY - RAJASTHAN JAILS SERVICE RULES, 1959 (THE RULES) - RULE 7 - AMENDMENT - VALIDITY - MALA FIDE EXERCISE OF POWER - RETROSPECTIVITY - CONSTRUCTION - APPOINTMENT OF RESPONDENT NO. 4 IN SUBSTANTIVE CAPACITY FROM 1.1.1961 - VALIDITY - SENIORITY ASSIGNED TO RESPONDENT NO. 4 - LEGALITY.
Fact of the Case:
Petitioner, a direct recruit, challenged the seniority assigned to respondent No. 4, who was appointed by transfer from another department, on the ground that the amendment to Rule 7 of the Rules, which allowed for appointment by transfer, was mala fide and beyond the scope of Article 309 of the Constitution. Respondent No. 4 contended that the amendment was valid and that he was entitled to seniority from the date of his initial appointment.
Finding of the Court:
1. The amendment to Rule 7 was not mala fide or beyond the scope of Article 309 of the Constitution. The Governor, in his executive capacity, has the power to make rules regulating the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the State. This power includes the power to amend existing rules. The amendment in question was made in order to provide a new source of recruitment for persons who were already serving in the Jail Department on an ad hoc basis. This was a legitimate objective and there was no evidence that the amendment was motivated by mala fides. 2. The amendment to Rule 7 was retrospective in operation. The amendment begins with a non-obstante clause, which means that it overrides any other provisions of the Rules or any other rules or orders in force at the time. The amendment also provides that it applies to persons who were holding the post of Deputy Superintendent of Jails on 1.1.1961 as a result of ad hoc transfer from another department. This clearly indicates that the amendment was intended to apply to persons who were already in service on that date. 3. Respondent No. 4 was entitled to be appointed in substantive capacity from 1.1.1961. He was holding the post of Deputy Superintendent of Jails on that date as a result of ad hoc transfer from another department. He possessed the requisite qualifications for direct recruitment to the post and was adjudged suitable for such appointment by the Commission. The Government was therefore competent to appoint him to the service with effect from 1.1.1961.
Issues: 1. Whether the amendment to Rule 7 of the Rules was mala fide or beyond the scope of Article 309 of the Constitution? 2. Whether the amendment to Rule 7 was retrospective in operation? 3. Whether respondent No. 4 was entitled to be appointed in substantive capacity from 1.1.1961?
Ratio Decidendi: 1. The power to make rules regulating the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the State includes the power to amend existing rules. An amendment is not mala fide merely because it benefits a particular individual. An amendment is retrospective if it begins with a non-obstante clause and if it provides that it applies to persons who were in service on a particular date. A person who is holding a post on a particular date as a result of ad hoc transfer from another department is entitled to be appointed to the service in substantive capacity from that date if he possesses the requisite qualifications and is adjudged suitable for such appointment by the Commission.
Final Decision: The writ petition was dismissed.
JUDGMENT
1. This writ petition raises a question of seniority between the petitioner and respondent No. 4.
2. A few material facts respecting the petitioner and respondent No. 4 may, briefly, be noted for appreciation and adjudication of the controversies, which call for decision in the present writ petition.
3. The respondent No. 4 was a Small Savings Extension Officer, Bharatpur, from where he was transferred as Deputy Superintendent, District Jail, Bharatpur, temporarily by order dated 25/28-11-1960 (Annexute I) and he took over the rhargc in pursuance of that order on 10-12-1960. The Government sought concurrence of the Rajasthan Public Service Commission (hereinafter referred to as "the Commission") by its letter dated 5-1-1962 (Annexure II) for extension of the term of temporary appointment of respondent No. 4 as Deputy Superintendent jail till a direct recruit is made available by the Commission. The post against which respondent No. 4 was temporarily appointed by transfer was to be filled up by direct recruitment. The Government had already sent he requisition for the recruitment of two posts of Deputy Superintendent jail under the Rajasthan Jails Service Rules, 1959 (hereinafter referred to as "the Rules"), which had come into force on 6-1-1959. The Commission by its letter dated 2-12-1963 (Annexure III) intimated to the Government that under Rule 7 of the Rules, only two sources of recruitment have been provided, one by direct recruitment through the agency of the Commission, and other by promotion of permanent Jailors, under rule 26, which deals with emergent temporary appointments, is also not applicable, as under that rule, a temporary vacancy can be filled up by an officer eligible for appointment to the post by promotion and in no other way. The Commission stated that the appointment of respondent was against the Rules so the question of adjudging his suitability would not arise. Thereupon rule 7 of the Rules was amended and sub-rule (3) was added or inserted in that rule, which laid down a third source of recruitment, whereby the Government was conferred with a power to make appointment by transfer subject to the conditions laid down in sub-Rule (3). I shall be giving the text of rule 7 a little later, as the principal controversy centres round the construction of that rule. After introduction of sub-rule (3) of rule 7, the Government referred the case of respondent No. 4 for adjudging his suitability and forwarded personal file, history of service and confidential rolls of respondent No. 4 to the Commission. The Government deputed Shri v. Mudgal, Deputy Secretary , Home Department to attend the meeting of the Commission as departmental representative in order to assist the Commission in deliberations at the time of interview of respondent No. 4 on 15-7-1966. The Commission adjudged the respondent No. 4 as suitable for the post and conveyed the same vide letter dated 16-7-1966 (Annexure R/3 at page 72). On the recommendation of the Commission the Governor on 23-9-1966 (Annexure IV) appointed respondent No. 4 as Deputy Superintendent, District Jail, Alwar, from the date of his selection by the Commission, viz., 15-7-1966. His appointment was made on probation for a period of two years. He was confirmed on that post with effect from 23-9-1968 vide order dated 12-6-1969 (Annexure 5).
4. The petitioner on the other hand, came to be selected as a direct recruit in pursuance of the advertisement dated 24-9-1962. He was thereafter appointed as Deputy Superintendent, jail vide order dated 27-8-1963 (Annexure) 10) on probation for two years and in pursuance of that order. he joined the service on 1-9-1963. The petitioner, thereafter, was confirmed as Deputy Superintendent Jail with effect from 12-5-1966 (Annexure 11). According to the petitioner he became a member of the service on 27-8-1963, whereas respondent No.4 became a member, of the service on 15-7-1966, and the petitioner was confirmed on the post on 12-5-1966. wh
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