MAHESH SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS special appeal is filed by the appellant against the judgment dated 30. 4. 1997 passed by the learned Single Judge in S. B. Civil Writ Petition No. 766/1991 filed by him by which order the learned Single Judge has dismissed the writ petition. The writ petition was filed to direct the respondents to assign seniority to the petitioner, appellant herein from the date of his initial appointment and also to declare that proviso (11-a) to Rule 27 of the Rajasthan Subordinate Offices Ministerial Staff Rules, 1957 (hereinafter referred to as `the Rules of 1957') does not affect the case of the petitioner-appellant. A further prayer to amend the seniority list dated 21. 3. 1990 was also made. The case of the appellant was that he appeared in the examination conducted by the Rajasthan Public Services Commission, Ajmer for recruitment to the post of Lower Division Clerks in the year and was declared successful and was allotted to the Irrigation Department in the Rajasthan Canal Project. He was appointed in the year 1978 and was posted in the Rajasthan Canal Project. He submitted an application to the Chief Engineer, Irrigation Department for his transfer in the Ajmer District or to a place near to Ajmer. The application is Annexure-1 to the writ petition. The applications of the petitioner and one another L. D. C. were forwarded by the concerned officer to the Chief Engineer, Irrigation, Jaipur on 16. 6. 1979. Although the application was made in the 1979, yet orders for transfer was made only on 25. 2. 1982 under Annexure-3. In the said order (Annexure-3) it is stated that the seniority of the appellant will be determined from the date of his joining in the new department. The appellant was transferred to Irrigation Zone, Jaipur and Circle Jodhpur. However, at that time the seniority was to be maintained circle-wise. It is submitted that Ajmer was not in the Jodhpur Circle at that time. Earlier Pali was in Jodhpur Circle but subsequently, Jodhpur Circle was bifurcated and an independent Pali Circle was created. The provisional seniority list of the Lower Division Clerks was issued on 12. 2. 1988 under the orders of the respondent No. 2 (Annexure-4) and the seniority of the appellant had been counted from the date of his joining in the new seniority unit. According to the appellant, he has been deprived of the benefit of computation of past services. The appellant submitted a representation against provisional seniority list on 15. 3. 1988 (Annexure-5) which was followed by another representation dated 7. 4. 1988 and further reminders on 3. 3. 1989 and 28. 9. 1989. Ultimately, vide communication dated 21. 3. 1990, the seniority list which had been finalised under the orders of the Additional Chief Engineer, Irrigation Zone, Jodhpur (Annexure-7 ). In this seniority list, the appellant had not been given the benefit of the past services rendered prior to transfer from the Rajasthan Canal Project. The appellant, therefore, submitted another representation on 31. 5. 1990, which was followed by the representation dated 18. 6. 1990. In the meantime, one Suresh Kumar Tamboli, who was transferred in the same manner was given benefit of the services rendered by him prior to the transfer and his name was accordingly placed at Sl. No. 12a in the seniority list on provisional basis vide communication dated 17. 7. 1990. On coming to know about this, the appellant submitted representation on 3. 8. 1990 for giving the same benefit to him. Vide order dated 22. 11. 1990 (Annexure-13), the representation made by the appellant was rejected by the respondents. Thus, on the basis of the provisional seniority list the respondents have accorded promotion to the posts of Upper Division Clerk vide order dated 13. 12. 1990 (Annexure-14 ).

(2.) THAT in the above circumstances, the petitioner approached this Court by filing the above mentioned writ petition. A reply was filed by the respondents contending therein that the appellant has not challenged the condition imposed in the transfer order dated 25. 2. 1982 and hence, it was not open for the appellant to claim the seniority. It was further submitted that when the appellant was transferred he was posted under Jawai Canals Division, Sumerpur which division was transferred to Irrigation Circle, Jodhpur from Irrigation Circle, Ajmer on 2. 11. 1981 as per the Government Order No. F. 6 (281)/cbi/13671 dated 2. 11. 1981, also stated that the Irrigation Circle Pali was created vide order dated 25. 5. 1987 when the seniority of the Lower Division Clerks was being maintained Zone-wise as per order dated 21. 8. 1986 issued by the Chief Engineer, Irrigation Rajasthan, Jaipur which came into force with effect from 1. 1. 1986. It was submitted that the seniority of the appellant was determined according to the condition mentioned in the transfer order issued by the Chief Engineer, Irrigation on 25. 2. 1982 (Annexure-3) on which condition, the appellant accepted the order and joined the place of posting, he cannot resile from that condition hence, the question of depriving the appellant from the benefit does not arise. It is further submitted that order dated 17. 7. 1990 was issued as Shri Suresh Kumar Tamboli came to be transferred and joined the duties in Irrigation Circle, Jodhpur on 25. 9. 1980 i. e. earlier to the appellant. The clarification bearing No. F3/28/personnel/k-2/84 dated 9. 2. 1990 issued by the Government is applicable in the case of Shri Suresh Kumar Tamboli because he joined the said circle before 13. 5. 1981 and thus, the said order dated 9. 2. 1990 is not applicable in the case of the appellant as the appellant joined the said circle on 15. 3. 1982. Therefore, it was submitted that the case regarding determination of the seniority of Shri Suresh Kumar Tamboli is not similar to that of the appellant's case. It was then submitted that the appellant was also not entitled to the seniority from the date of initial appointment as he was not on the roll of Jodhpur Circle and he served the Circle in question on transfer and joining of the duty. In the instant case, the transfer was made on the application and request of the appellant and he was transferred to the place where vacancies were available. It is seen from Annexure-3 that transfer was not of the appellant only but other persons were also included in that order.

(3.) THE aforesaid proviso (xi-a) to Rule 27 of the Rules of 1957 came into force with effect from 19. 8. 1982. This proviso also does not give any indication that it is retrospective in operation. This proviso is applicable to only those persons who have been transferred on their own request after it came into force i. e. with effect from 19. 8. 1982.