JASWANT SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS writ petition under Article 226 of the Constitution of India has been filed by the petitioner on 6. 8. 1991 against the respondents with the prayer that by an appropriate writ, order or direction, the order dated 17. 6. 1991 (Annex. 5) passed by the respondent No. 2 Vikas Adhikari, Panchayat Samiti, Pali by which the services of the petitioner were dispensed with and the resolution dated 14. 6. 1991 (Annex. 6) passed by the Panchayat Samiti, Pali by which a decision was taken against the petitioner as he used to remain absent from duties and the respondent No. 2 Vikas Adhikari was authorised to take steps for dispensing with the services of the petitioner, be quashed and set aside and the respondents be directed to reinstate the petitioner in service with all consequential benefits.

(2.) THE case of the petitioner as put forward by him in this writ petition is as follows :- THE petitioner had passed Higher Secondary and S. T. C. examinations conducted in Rajasthan and he was initially appointed as Primary School Teacher in the Panchayat Samiti, Pali on 5. 2. 1985 on temporary basis and his services were terminated at the end of the academic session 1985. But, later on, he was re-employed in July, 1985 and thereafter, he worked under the Panchayat Samiti and he was made regular vide order dated 19. 12. 1988 (Annex. 1 ). THE further case of the petitioner is that on 29. 11. 1990 he applied for casual leave for three days, but before he could resume his duties, he fell ill and, therefore, he submitted leave application on medical ground. THE further case of the petitioner is that on 9. 1. 1991, a notice was given to him by the Panchayat Samiti asking his explanation for remaining absent from duties and a reply to that notice was given by the petitioner stating that he was undergoing treatment. THEreafter, a notice dated 1. 2. 1991 (Annex. R/6) was given to the petitioner by the Panchayat Samiti asking him to submit his medical certificate alongwith the application for leave, otherwise under Rule 86 (1) of the Rajasthan Service Rules, 1951 (hereinafter referred to as "the RSR"), his past services would be forfeited. THEreafter, the petitioner vide his application dated 18. 2. 1991 (Annex. 2) submitted medical certificates, but later on, he again fell ill in the month of March, 1991 and, therefore, he submitted another application on 7. 3. 1991 to the Headmaster. Primary School, Badera Ka Bas Kherwa, but that application was not available in the record of the Panchayat Samiti. Another application was moved by the petitioner on 27. 3. 1991 (Annex. 3) for grant of leave, but he could not recover till vacation. However, when the petitioner reported for duty to the Head Master, Primary School, Badera Ka Bas, Kherwa, he was informed that his services had already been terminated. On enquiry, the petitioner was told that a notice Annex. 4 dated 20. 5. 1991 was given to him and the impugned order dated 17. 6. 1991 (Annex. 5) by which his services were dispensed with, was also served on him. THE further case of the petitioner is that he was also supplied with the copy of the Resolution dated 14. 6. 1991 (Annex. 6) and the letter of the Headmaster dated 24. 7. 1991 (Annex. 7 ). THE further case of the petitioner is that from perusing the impugned order Annex. 5 dated 17. 6. 1991, it is clear that the services of the petitioner were terminated simplicitor on the ground that he remained absent from duties without any notice and when his services were dispensed with he was on probation. THE above orders have been challenged by the petitioner in this writ petition on various grounds and some of them are as follows :- (i) That to say that the petitioner was on probation is absolutely wrong as under the order dated 19. 12. 1988 (Annex. 1), his services were screened and he was made regular and, therefore, termination of services of the petitioner by treating him to be a probationer is an illegal act on the part of the respondents as his services could have been terminated after giving him a charge-sheet and holding an enquiry against him as contemplated under the provisions of the Rajasthan Panchayat Samitis and Zila Parishads Act, 1959 (hereinafter referred to as "the Act of 1959"), Rajasthan Panchayat Samitis and Zila Parishads Service Rules, 1959 (hereinafter referred to as "the Rules of 1959") and the Rajasthan Panchayat Samitis and Zila Parishads Services (Punishment and Appeal) Rules, 1961 (hereinafter referred to as "the Rules of 1961") and since before passing the impugned order Annex. 5 no enquiry as contemplated under the provisions of the above Act and Rules was held against the petitioner, therefore, the impugned termination order Annex. 5 is bad in law and liable to be quashed and set aside. (ii) That under the provisions of the Act of 1959, the Appointing Authority of the petitioner is Panchayat Samiti and the Vikas Adhikari is not the Appointing Authority of the petitioner and therefore, the impugned order Annex. 5 could have not been passed by the Vikas Adhikari and thus, from this point of view also, the impugned order Annex. 5 is without jurisdiction and liable to be quashed and set aside as the Panchayat Samiti only authorised the Vikas Adhikari to take steps, but not authorised to remove the petitioner from service. (iii) That since the petitioner was a civil servant under the State within the meaning of Article 311 of the Constitution of India, therefore, his services could not have been terminated for the act of misconduct by treating him to be a probationer. Hence, this writ petition with the prayers as stated above. A reply to the writ petition was filed by the respondents and it has been submitted by them that the services of the petitioner were never regularised vide order dated 19. 12. 1988 (Annex. 1) as the proposal for regularisation of services of the petitioner was never confirmed by the State Government and the petitioner was treated as temporary employee only and continued in service of the respondents as temporary and non-selected employee as that fact is evident from the order of the Panchayat Samiti dated 21. 6. 1989 (Annex. R/1 ). Apart from this, the petitioner was habitual of remaining absent from duties and he was informed from time to time and various notices have been served on him and since his services were purely on temporary basis, therefore, his services were terminated by the Vikas Adhikari vide impugned order Annex. 5 and in such a situation, there was no need of serving charge-sheet or holding enquiry against the petitioner. It has been further submitted by the respondents that no doubt Panchayat Samiti was the Appointing Authority, but Vikas Adhikari could terminate the services of the petitioner on behalf of the Panchayat Samiti as Vikas Adhikari was authorised by the Panchayat Samiti vide Resolution Annex. 6. Hence, the writ petition filed by the petitioner be dismissed. Apart from the above, during the course of arguments, a preliminary objection was raised by the learned counsel appearing for the respondents that the impugned order Annex. 5 was appealable, but that remedy was not availed by the petitioner and he had directly approached this Court under Article 226 of the Constitution of India and since alternative remedy was available to the petitioner, therefore, this writ petition is not maintainable and liable to be rejected on the ground of availability of statutory alternative remedy.

(3.) FROM the reply of the respondents, it further appears that the order Annex. 1 dated 19. 12. 1988 was never accepted by the State Government, but there is nothing on record to suggest that the order Annex. 1 was ever cancelled by the respondents.