STATE OF RAJASTHAN Vs. FATEH CHAND

JUDGEMENT

(1.) The limited question which arises in these appeals, under special leave, relates to the interpretation of Rule 23A (2) of the Rajasthan Service Rules, 1951.

(2.) The respondent in C. A. 1436 of 967 was appointed in 1952 a clerk in the office of the Executive Engineer, Jaipur, on a work-charged basis. In 1955 he was appointed a Lower Division Clerk in the same office temporarily for a period of 6 months but was continued as such even after the expiry of that period. The respondent in C. A. 1437 of 1967 was also appointed on work-charged basis in 1958 and was in 1960 appointed a temporary Lower Division Clerk but was continued as such even after the said period. The services of both the respondents were terminated under Rule 23A (1) of the said Rules after giving them the requisite one month's notice on the ground that they failed to pass the examination required by Rule 7, Proviso 2, of the Rajasthan Subordinate Offices Ministerial Staff Rules, 1957 and the order dated March 5, 1964 made by the Government in exercise of the power under the said Rule 7, proviso 2 although two chances to appear at the said examination were given to them. The respondents thereupon filed writ petitions in the High Court of Rajasthan challenging the right of the Government to terminate their services on the ground that both of them had the necessary academic qualifications required under the recruitment rules, that they had put in service of more than 3 years as temporary clerks and that therefore their services could only be terminated under Rule 23A (2) in the same manner as the services of a permanent Government servant could be terminated, in other words, by following the procedure laid down in Article 311 (2) of the Constitution.

(3.) The High Court, on interpretation of Rule 23A of the Rajasthan Service Rules and Rule 7, Proviso 2, of the Ministerial Staff Rules, held (a) that the objects of the two rules were distinct, (b) that Rule 7, proviso 2, did not provide for the consequences of failure of a temporary Government servant to pass the requisite examination, (c) that it would not be proper to induct into Rule 23A the conditions in and the consequences of Rule 7, proviso 2 and (d) that the term 'qualifications' in Rule 23A (2) meant only the academic qualifications and not any other qualification flowing from Rule 7 of the Ministerial Staff Rules. In this view the High Court held that on account of the respondents having had the academic qualifications as envisaged by Rule 23A (2) and having served as temporary clerks for over 3 years, Clause 2 and not Clause 1 of Rule 23A applied, and therefore, their services could not be terminated except in the manner of a Government servant in permanent service. On this reasoning, the High Court quashed the orders of termination of their services. The result of this order meant that all temporary servants who have put in service for over 3 years would be placed in a position equivalent to that of permanent servants and their services could only be terminated in the same manner as those of the permanent servants, i.e., in accordance with the procedure laid down in Article 311 (2). 3A. The question is whether the construction of Rule 23A (2) adopted by the High Court is sustainable.