GOPAL KRISHNA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is a writ petition under Article 226 of the Constitution by one Dr. Gopal Krishna who has prayed for a writ, direction or order against the State of Rajasthan directing the State Government to appoint the petitioner as a Joint Director of Education and to restrain the present incumbents of the post of Joint Director form functioning as such and also for issuing a direction to the state Government to constitute a Departmental Promotion Committee for consideration of the case of the petitioner for the post of a Joint Director of Education. In the alternative, the petitioner prays for declaring the Rajasthan Educational Service Rules, 1960 invalid on the ground that the post which the petitioner was holding prior to this being declared as surplus was not included in the Educational Service. The relevant facts may be recounted as follows.

(2.) THE petitioner passed his Master's degree in Political Science in 1940. He obtained his Bachelor's Degree in Education in 1945 and Master's Degree in Education in 1950 and he obtained the Doctrate in Education in 1955. He entered the service of the U.P. Government in 1955 as a trained graduate teacher and in 1958 he entered the Provincial Educational Service Class II of that State. On 6 -11 -1957 the Rajasthan Public Service Commission issued an advertisement No. 35 inviting applications for the post of Director Vocational and Guidance Bureau for the Education Department of the State of Rajasthan The post was advertised to be a permanent and pensionable post in the grade of Rs. 500 -30 -740 - EB 30 -800 -50 -990. The petitioner applied for the post and was selected. He was then appointed temporarily as the Director, Vocational and Guidance Bureau in the Education Department. While he was temporary, he was treated on deputation. His services were later transferred to the State of Rajasthan. The Government of Rajasthan by its order dated 17 -5 -1962, (Ex. 3) on record, confirmed the petitioner on the post of Director Vocation and Guidance Bureau with the effect from 28 -8 -1959. This post was not included in the Rajasthan Educational Service and was thus an ex -cadre post. In the year 1962, Vocational and Guidance Buroau was a abolished and the pettitioner was rendered surplus. The petitioner was informed by the Director of Primary and Secondary Education, Bikanpr, vide his letter dated 28 -8 -1962 that the petitioner's case for absorption had been referred to the Government and in the meantime, he was to attend his office from 1 -9 1962 and on wards till further orders for his absorption were received The petitioner states that eventually he was absorbed by transfer to the Education Department as Deputy Director of Education vide letter dated 31 -8 -1962 (Ex. 9) from the Member Secretary, Absorption Committee. This was followed by a posting order from the Government (Ex. 7) which mentions that the petitioner was transferred as Deputy Director of Education Headquarters. It was also mentioned in this order that the junior most Deputy Director was to be reverted to his substantive post as Inspector of Schools to make way for the petitioner. In pursuance of the order (Ex. 7) the petitioner took charge on 8 -11 -1962 as Deputy Director of Education (Headquarters) Bikaner. The petitioner claims that on account of abolition of the post of Director, Vocational and Guidance Bureau his lien on that post stood terminated and thereafter he acquired his lien on the post of Deputy Director of Education. The petitioner further claims that as a necessary consequence of this posting, he became a member of the Rajasthan Educational Service which was created by the Rajasthan Educational Service Rules, 1960. On 14 -3 -1963 the petitioner again came to be posted as Dieector, Vocational and Guidance Bureau for Education Department with Headquarters at Bikaner. By virtue of his claim to be a mem. per of the Rajastan Educational Service, the petitioner contends that respondent No. 3 Shri. S.C. Mathur and respondent No 4. Shri. S. Kumar were junior to him in service as prior to the petitioner's posting as Deputy Director of Equ -cation, these officers were only inspectors in the Education Department in their substantive capacity. These two officers thereafter came to be promoted as joint Directors and the petitioner a case in short is that in ignoring the petitioners claim and in posting respondents No. 3 and 4 to higher post in the Rajasthan Equcational service, the petitioner has been discriminated against and thus the Government order appointing respondents No. 3 and 4 as Joint Directore respectively was viola, tive of Article 16 of the Constitution, The petitioner's case in the alternative is that if it is found that he had not become a member of the Rajasthan Educa. tional Service, then the Rules themselves were bad as in the year 1960 when the Rules were made, the post of the Director, Vocational and Guidance Bureau was existing and this post also should have been included in the Rajasthan Educational Service as without it the future chances for promotion of the petitioner would be completely barred. The petitioner states that he made representations to the State Government but they did not bring any result.

(3.) RESPONDENT No. 4 Shri S. Kumar has filed a written reply denying the petitioner's claim for either being a member of the Rajasthan Educational Service or being senior to respondent No. 4 in that service. Shri S.C., Mathur has retired in the meantime and has not submitted any reply. The case was heard by me on 13 -1 -1970 at sufficient length. One remarkable thing that was then noticed was that the Governor had made in the mean time what were known as Rajasthan Civil Services (Absorption of Surplus Personnel) Rules, 1969 which appeared in the Rajasthan Gazette of 11 -12 -1969 and these Rules were given retrospective effect from 1 -1 -1954. In the light of these Rules, a three fold contention was made by learned Counsel for the petitioner. One was that as a result of the order (Ex. 7) the petitioner came to be substantively appointed as Deputy Director. The second one was that the petitioner could not have been appointed as Deputy Director temporarily or against any socalled leave vacancy and the third contention was that the schedule attached to the Rajasthan Educational Service Rules, 196o was villative of Article 16 of the Constitution in as much as the post on which the petitioner was first substantively appointed was not included in the cadre. The Rules which I have just now adverted to were relied on for these contentions. Learned Advocate General submitted on that day that as these Rules - had not been referred to in the writ petition and he had also not gone through them, the case be adjourned. Accordingly, the case was adjourned to enable the learned Advocate General to meet the contentions based on these Rules. Since the stand of the State was found to be that the petitioner was only temporarily holding the post of Deputy Director of Lducation subsequent to the abolition of the Vocational and Guidance Bureau, the learned Advocate General was asked to let the Court know (1) the number of posts of Deputy Directors, that were existing at the time order Ex. 7 was passed. (2) He was also to indicate who were the permanent incumbents of the posts and whether there were any substantive vacancies available at the time order Ex 7 was passed. Then he was to let the Court know as to who were the incumbents of the posts of Deputy Director in substantive or temporary or officiating capacity at the relevant time. Learned Advocate General placed the necessary information on record and the case was heard on 10 -2 -1970. The case was argued for some time and the learned Advocate General wanted to put in an affidavit for clarifying the position for the existing vacancies in the cadre of Deputy Directors on 3rd October, 1962 when the order (Ex 7) was passed. The case was then heard on 19 -2 -1970. For today the case was kept at the request of the learned Advocate General as on the last date the impact of the Rule was not throughly explained. Learned Advocate General was not able to come today. Shri Chatterjee sought an adjournment, but I was not inclined in adjourn the case any further as the case already has been heard and I have myself seen the Rules since then.