GOVIND NARAIN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THERE were some posts of translators in the Secretariat of the Rajasthan State. Shri Chandrika Prasad Mathur, respondent No. 2, was allowed to hold one such post because of his earlier appointment as Translator on October 10, 1955, in the service of the former Ajmer State. Shyamsunder Lal Vyas, respondent No.3., and Moolchand Vyas respondent No. 4 were appointed as Translators on a temporary basis on April 15,1960. Prabhu Dayal Verma respondent No. 5, was similarly appointed as Translator on a temporary basis on March 13, 1961, while Laloo Lal Jain, respondent No. 6, was appointed as a temporary Translator on October 7, 1981. Udhav Chandra Chaturvedi, respondent No. 7, and Mohammed Yamin, respondent No. 8, were appointed as Translators on a temporary basis on April 18, 1963, and December 17, 1963, respectively. While these respondents were holding the posts of Translators as aforesaid, a competitive examination was held by the Rajasthan Public Service Commissioner in February 1964. Udhav Chandra Chaturvedi, respond -ion No. 7, and Mohammed Yamin, respondent No.8. competed in the examination and were declared successful. Petitioner Govind Narain and three others also came out successful, and all of them were appointed as Translators, on probation for a period of one year by order Annexure 7 dated July 24, 1964. Their seniority was determined by order Annexure 8 dated August 26, 1964 The remaining respondents did not compete in the examination A seniority list was issued in regard to the seniority of translators on February 5/9, 1966, but it did not make a mention of the names of the respondents who did not sit in the competitive examination. All the same promotions were give to them on an ad hoc basis' from time to time, as they were retained in service on the additional posts which were created in the Secretariat. An amendment was then made to Rule 7 of the Rajasthan Secretariat Ministerial Staff Rules, 1956, hereinafter referred to as 'the Rule', on May 24, 1966, by which the following proviso was added to the rule: (5 -A). That persons who have been appointed Translators on temporary basis prior to 1 -1 -62 and who have continuously been working as such in the Secretariat shall be confirmed subject to their record of work being considered satisfactory by the Selection Committee appointed under Rule 25; and the total length of service as Translator from the date they were initially appointed as such will be reckoned for seniority purpose. The additional posts of Translators were placed on a permanent footing, and respondents Chandrika Prasad Mathur, Shyamsunderlal Vyas, Moolchand Vyas, Prabhu Dayal Verma, and Laloo Lal Jain were appointed as Translators on a substantive basis by order Annexure 22 dated February 8, 1967, with retrospective effect from July 24, 1964, which was the date on which the petitioner and the other Translators were appointed as a result of the recruitment made by the Service Commission on a competitive basis. The petitioner submitted a detailed representation on March 18, 1967,but the State Government published a seniority list (Annexure 25) on May 4, 1967, by which respondents Nos. 2 to 6 were placed higher in seniority than him. He again made a representation and challenged the insertion of proviso (5 -A) to Rule 7 of the Rules Thereafter he filed the present petition for striking down the aforesaid proviso as illegal and ultra vires and for a declaration that the seniority fixed by the order dated February 5/9, 1966 continued to remain in force and that the order appointing them as Translators with retrospective effect from July 24, 1964 was illegal and void, etc.

(2.) A reply has been filed by the respondent State in which the claim of the petitioner has been traversed altogether.

(3.) IT has been argued that proviso (5 -A) to Rule 7 of the Rules which was inserted on May 24,1966, is invalid and ultra vires Article 309 of the Constitution because it has been inserted for the purpose of regularising the illegal appointments of the four respondents in question which was not permissible under the proviso to that article. The learned Counsel has placed reliance on R.N. Nanjundappa v. T. Thimmaiah and Anr. : (1972)ILLJ565SC in support of this argument. The question therefore is whether the appointments of the four respon -dents were illegal