STATE OF RAJASTHAN Vs. NARAYAN LAL

JUDGEMENT

(1.) THIS D. B. Special Appeal is directed against the judgment of a learned single Judge of this Court whereby the writ petition filed by the respondent was partly allowed and he was held qualified and eligible to be promoted to the post of L. D. C. according to r, 7 (3) of the Rajasthan Subordinate Officers Ministerial Staff Rules, 1957 and the appellants were directed to consider his case for promotion to the post of L. D. C. In his writ petition, the respondent had also claimed that work of L. D. C. was being taken from him and hence he should be paid the salary of L. D. C. On this aspect of the case, the learned single Judge ruled that it was a disputed question of fact and hence he refused to go into this question. Aggrieved, the appellants have challenged the claim of the respondent to be considered for promotion to the post of L. D. C. Respondent, who Was petitioner before the learned single Judge, did not file any appeal against part disallowance of his claim but has urged that relief should be granted to him under 0. 41 Rule 33, C. P. C.

(2.) WE have heard Servashri S. M. Singhvi and S. K. Vyas for the appellants and Shri K. C. Samdaria for the respondent. The facts of the case lie in a narrow compass and may be redapitulated here briefly. Respondent Narayanlal, the writ petitioner, passed his Secondary School Examination in the year 1976. He was appointed as a Field Worker in the pay scale of Class IV servants on 26. 7. 78 by the Deputy Chief Medical and Health Officer (Maleria) Dungarpur. It was averred by the respondent that since his appointment, work of an L. D. C. was being taken from him, but the department continued to pay him the salary of a Class. IV Servant. There was a provision for promotion of class IV Servants to the post of L. D. C. Accordingly, the writ petitioner applied for promotion to the post of L. D. C. on 19. 8. 86 and again on 13. 4. 88 but the department refused to promote him as L. D. C. on the specious ground that a Field Worker was not eligible to be so promoted, even though he was entitled to be so promoted. He, therefore, prayed for a direction that he may be considered for promotion to the post of L. D. C. He also prayed that the department may be directed to pay him the salary of the post of L. D. C. since work of L. D. C. was being taken from him.

(3.) RAJASTHAN Class IV Services (Recruitment & Other Service Conditions) Rules, 1963, (hereinafter called the Class IV Recruitment Rules), are statutory rules framed by the Governor of RAJASTHAN under Article 309 of the Constitution of India. Rule 1 (d) of these rules defines 'members of service' to mean a person appointed in substantive capacity to a post in the service under the provisions of these rules or the rules or orders superseded by these rules and includes a person placed on probation. Rule 5 of these rules lays down the constitution of service. It reads : - "constitution of Service. The Service shall consist of : - (a) persons holding substantively the posts specified in Schedule I;. (b) persons recruited to the service before the commencement of these rules; and (c) persons recruited to the service in accordance with the provision of these rules. " Admittedly, the respondent writ-petitioner does not hold a post specified in Schedule I of these rules, hence clause (a) of Rule 5 does not apply to him. This Schedule contains the following entries : SCHEDULE I S. No. Name of Post 1 2. 1. Daftari 2. Jamadar 3. Record or Book Lifter/ Binder 4. (1) Peon (2) Cycle-Peon (3) Orderly (4) Waterman (5) Chowkidar (6) Farrash (7) Equivalent posts sanctioned for office work in lowest scale. " 7a. Learned counsel for the respondent-writ petitioners submitted that the case of the respondent would be squarely covered by Entry 4 (7) but it is doubtful if a Field Worker can be said to hold a post sanctioned for office work. Explanation (1) appended to this Schedule clinches the issue at any rate. This explanation reads as follows : - "explanation : - (i) "equivalent posts sanctioned for office work in the lowest scale" will include posts sanctioned in the scale of pay identical to the scale of pay sanctioned for the post of Peon and will not include posts sanctioned for field job, or factories or workshop or for which a separate line of promotion is provided e. g. Helpers, Mates, Insect Collectors, Lab. Boy etc. " The underlined portion makes the position explicit and beyond the pale of doubt. In light of this explanation, it would be idle to contend that post of Field Worker to which the writ petitioner was appointed should be treated as a post of Class IV employee within the meaning of Rule 7 (3) of the RAJASTHAN Subordinate Officers Ministerial Staff Rules, 1957 which explicity applies the rule to only such Class IV employees governed by the RAJASTHAN Class IV Recruitment and other Service Conditions Rules, 1963 and who have put in five years service. Faced with this situation learned counsel for the respondent-writ petitioners urged that case of the respondent would fall under clauses (b) or (c) of this rule. We fail to see how a person appointed as a Field Worker in 1978 could be covered by clause (b) of the rules, which had already come into force in 1963. Clause (c) also could not apply to the case of the petitioner because he cannot be said to have been appointed under the provisions of Class IV Recruitment Rules, which by virtue of Rule 4 (1) of the said Rules would apply only to the nature of posts included in the service, as specified in col\umn 2 of the Schedule, relevant portion of which has been reproduced above. When it is so, the respondent writ petitioner cannot legitimately claim that he is a Class IV employee, regularly appointed under the said recruitment Rules. When it is so, Rule 7 (3) under which the Respondent -writ petitioner claims a right of promotion, would not be attracted to his case.