1975 Supreme(Raj) 81

Rajasthan High Court
Tyagi, J.
State of Rajasthan - Appellant
Versus
Jagdish Chandra - Respondents
S.B. Civil Second Appeal No. 216 of 1973
Decided On : July 22, 1975

Headnote:(a) Rajasthan Service Rules, R. 23A(1) and (2)—Three years period to be counted upto date when employee actually relieved of charge and not upto date when notice issued or received— Where notice within period of three years but employee allowed to work after period of three years held that notice under cl. (1) not valid and the case would be governed by cl. (2)(b) Constitution of India, Art. 311—Two days after suspension services of employee terminated—No grounds of suspension order—What became of suspension order not shown—In the circumstances termination of service cannot be held bonafide.

       Simply because a notice under rule 23A is issued to a temporary employee bis service does not automatically come to an end. The service of an employee stands terminated only when he is directed to relinquish the charge of his office and not on the issuance or serving the notice under rule 23 A of the R.S.R. If for one reason of the other the Government allowed its employee to work in his job for a period of more than 3 years the procedure to be followed to remove the temporary employee will be one which is contained in sub-rule (2) of Rule 23A.

       Held = The termination of service is coextensive with the permanently relinquishing of the charge of the office held by the temporary employee In the present case the plaintiff was allowed to stay in service under the notice issued by an appointing authority under rule 23A(1) upto 5/05/1966 which date definitely falls beyond a period of three years continuous service in the Government and, therefore, the question that arises for my determination is whether the plaintiff who had already received a notice of termination under Rule 23A(l) could be removed from service after he was allowed to continue in service for a period exceeding 3 years under the notice issued under Rule 23A (1) or whether the procedure incorporated in sub-rule (2) of Rule 23A will be attracted.

       Held = In my opinion the object of notice under Rule 23A is not that the Government servant should know the exact date of his removal but it is kept with a purpose that the temporary employee may gain some breathing time before he gets acclimatised to the new situation of being thrown out of employment

       Held = The period of one month as prescribed by Rule 23A of the RSR is mandatory and the Government while exercising its power under this rule should strictly comply with the requirement of the rule and give one month notice. In no case however, the Government can extend the the period of notice to allow the Government servant to continue in Government service for more than 3 years. If deliberately or otherwise the Government permits a temporary Government employee to remain in continuous service for more than 3 years then in that event it would not be open to the Government to ask the temporary employee to quit his job in accordance with the provision of Rule 23A(1) In that case Rule 23A(2) would be attracted which undoubtedly confers a very valuable right on a Government employee because he is to be treated like a permanent employee so for as the matter of the temination of his service is concerned. The appointing authority deliberately permitted two months time to the plaintiff before he was asked to relinquish the charge of his office On 5th of May when the plaintiff had to leave bis job under the notice he was definitely in continuous Government service for more than 3 years and therefore he has right to claim that procedure provided in sub-rule (2) of Rule 23A was the proper procedure to be followed. (paras 15,16, 18 & 19 )

       Held = Two days prior to the date of the impugned notice he issued an order of suspension of the plaintiff. According to the statement of Mr. Gupta that order was passed on certain complaints against the plaintiff but what was that complaint which necessitated the suspension order to be issued has not been brought on the record nor did the defendant try to prove as to what action on that complaint was taken against the plaintiff. Even after the impugned notice was served on the plaintiff, the suspension order continued and was nut revoked by the appointing authority even though no regular enquiry was instituted against the plaintiff. It means that the plaintiff remained under suspension till he relinquished the charge of his post which means that both the remedies were being simultaneously pursued No light is thrown by the defendant State Govt as to how the disciplinary proceeding contemplated or initiated against the plaintiff were pursued. The continuation of the suspension order without any disciplinary proceeding for such a long time till the service of the plaintiff was finally terminated on 5/05/1966 by itself shows that the appointing authority was not proceeding against the plaintiff in a bona fide manner. In such circumstances the order cannot be said to have been issued in a bonafide manner. (paras 21 & 22 )