PETITIONER:
STATE OF RAJASTHAN
Vs.
RESPONDENT:
DINESH KUMAR BHARTI
DATE OF JUDGMENT: 20/01/1997
BENCH:
K. RAMASWAMY, G.T. NANAVATI
ACT
HEADNOTE
JUDGMENT
ORDER
Leave granted.
We have heard Learned counsel for both the parties.
This appeal by special leave arises from the judgment of the single Judge of the Rajasthan High Court made on November 4, 1992 in S.A No 175 of 1992. The Learned Judge dismissed the second appeal on the ground of limitation . After hearing the learned counsel for both the parties, instead of remanding the matter, we think that it can be disposed of on merits. The respondent was appointed on ad hoc basis as a teacher on September 30,1970. The Screening Committee constituted to regularise the services of the ad hoc teachers found that the respondent was not fit to be confirmed. On the basis thereof, the order of termination came to be made on May 8 1974. It was challenged in the suit. Ultimately, when it was decreed by the trial Court and affirmed by the appellate Court, the High Court dismissed the second appeal on the ground of limitation. The District Judge relied upon Rule 23A of the Rajasthan Service Rules, 1951 to hold that prior notice required by Rule 23A was not given to terminate the service. So the order is bad in law. Rule 6(b)(3) of the Rules provides thus;
" Rule 6(b)(3) - that a person
holding any of the following grade
I post in sections B,C,D,E and F or
any of the posts in section "A" of
the scheduled on 31.12.72 in an ad
hoc /officiating/temporary capacity
and who had continuously hold the
said post or would have held any of
these posts put fFp his deputation
elsewhere, for a period not less
than six months on 15-12-1971 and
was working as such on the date of
publication of these (amendment)
Rules shall be screened by a
committee referred to in Rule 25,
for adjudging his suitability for
such post, provided he possesses
the qualifications prescribed in
the rules either for direct
recruitment or for promotion or the
prescribed qualification of the
posts on the basis of which he was
appointed in the ad hoc or
officiating or temporary capacity
on such post."
Under Rule 25, Screening Committee was appointed to adjudge the suitability of ad hoc teachers for regularisation. As a consequence of the above rule, the Screening Committee considered the persons holding posts on temporary or officiating basis or in ad hoc capacity who had continuously held the post for a period of not less than six months as on December 15, 1971 and were working as such on the date of the publication of the Amendment of the rules. They were required to be screened by a Committee constituted under Rule 25 to adjudge their suitability to the posts provided they possess the qualification prescribed under the Rule either for the direct recruitment or for promotion or the prescribed qualification of the posts on the basis of which they were appointed in ad hoc or officiating or temporary capacity. Admittedly, the Committee was constituted in 1974 under Rule 25 and the Committee came to the conclusion that the respondent was not fit to be confirmed. Rule 23A was inserted w.e.f. July 10,1981. Rule 23A (2)(a) reads as under:
"The service of a temporary
Government servant who has been in
continuous Government services for
more than three years and who
satisfied the suitability in
respect of age and qualifications
prescribed for the post and has
been appointed in consultation with
the Rajasthan Public Service
Commission where such liable to
termination at any time by a notice
of three moths given in writing
either by the Government servant to
the appointing authority or by the
appointing authority to the
Government servant:
Provided that the service of any
such Government servant may be
terminated forthwith, and on such
terminated forthwith, and on such
termination the Government servant
shall be entitled to claim a sum
equivalent to the amount of his pay
plus allowances for the period of
notice at the same rate at which he
was drawing immediately before the
termination of his service for the
period by which such notice falls
short of three months, as the case
may be".
Therefore, Rule 23(2) per se was inapplicable. Even otherwise, assuming that it was applicable, it would apply to a case where consultation with the public service commission is necessary and the public service commission finds the Government servant not eligible to be confirmed.; In such a case, termination of the services could be made only after giving three months notice in writing. In such a case, termination of the services could be made only after giving three months notice in writing. In this case, the Screening committee was constituted. it is obviously not a case covered under Section 23A for obtaining the concurrence of the Public Service Commission. Under those circumstances, the view of the courts below was obviously incorrect. The High Court was incorrect in dismissing the appeal on the ground of delay.
The appeal is accordingly allowed. The order of the courts below stands set aside. No costs.