Order

31/05/2023 There is an application for condonation of delay of 167 days in filing the appeal. The reason, which has been assigned for condonation of delay and the explanation, as has been putforth, only indicate that the file has been shuffling from one department to the other or from one committee to the other. The huge delay in between the shuffling of the file is also not forthcoming. The matters, after such inordinate delay and that too unexplained, cannot be brushed under the carpet. The requirement of the statue and equity also is that the right, which has been accrued upon the other party because of the period having lapsed, cannot be put to naught without there being any satisfactory reason with regard to the time consumed and utilized, which led to the delay in filing the appeal. In the absence of the explanation which is bound to be there and required under the statute, the present application cannot be accepted. The application, therefore, deserves to be dismissed.

However, we have taken up the matter on merits as well and heard Mr. Pankaj Sharma, learned Additional Advocate General.

The challenge has been made to the order passed by the learned Single Judge dated 25.04.2022, whereby the order, as has been passed by the appellants dated 08.07.2021 (Annx. 9) has been found to be not in consonance with the statutory provisions, as the benefit of regularization of service as per the prevalent Rule 11 of the Rajasthan Educational Subordinate Service Rules, 1971 (for short ‘the Rules of 1971’) which was amended in the year 2011 and a proviso was substituted w.e.f. 30.05.2011, has been found to be not applicable to the case of the respondent- petitioner. The learned Additional Advocate General has made an attempt to refer to the substituted proviso to Rule 11 to contend that the said proviso would be retrospective in effect, which we are unable to accept as the language used therein is clear and explicit without giving any indication of its operational retrospectivity. The initial proviso, as was available to Rule 11 of the Rules of 1971 reads as follows:

“Provided that the Widows and Divorced Women will be given relaxation in qualification of STC or B.Ed. as the case may be for appointment to the post of Teacher or Senior Teacher they are otherwise eligible and furnish an undertaking to the effect that the qualification of STC or B.Ed. as may be relevant shall be obtained within a period of three years. They shall also be eligible for grant of Study Leave soon after their appointment for acquiring the qualification of STC or B.Ed.”

According to the said proviso, the respondent-petitioner was granted the benefit. The order of regularization was also passed on 03.02.2010 (Annx.3) w.e.f. 05.07.2009 and the date of confirmation as 05.07.2011. These orders are being sought to be now modified by challenging the date of regularization to 05.07.2009 and the date of confirmation as 05.07.2011 vide order dated 08.07.2021 (Annx.9). The substituted proviso w.e.f.

30.05.2011 reads as follows:

“Provided that the widows/divorced women who have been given appointment on the post of Teacher or Senior Teacher after relaxing the required qualification of B.S.TC. Or B.Ed. shall be regularized from the date they acquire the required qualification of B.S.T.C. or B.Ed. as the case may be. They shall also be eligible for grant of study leave for acquiring the qualification of B.S.T.C. or B.Ed.”

A perusal of the substituted proviso at the most can be said to be applicable to cases where the order of regularization has not yet been passed. The learned Single Judge, therefore, was right in coming to the conclusion that the substituted proviso would not be applicable to the case of the respondent-petitioner.

Another aspect which has persuaded the learned Single Judge to interfere is the violation of the principles of natural justice as prior to passing the impugned order, no show cause notice or hearing was given to the respondent-petitioner. That i