RATAN LAL JAIN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE instant writ petition under Art. 226 of the Constitution has been filed by the petitioner challenging the impugned order dated 19. 5. 90 (Annex. 17) by which the representation made by the petitioner on 6. 12. 89 (Annex. 16) has been rejected holding that the petitioner is not entitled to get the benefit of condonation of interruption between temporary service and permanent service or two spells of temporary service under Rule 212 Note 4 of the Rajasthan Service Rules, 1951 (hereinafter referred to as 'the Rules of 1951' ). Respondent No. 2 has given two reasons for rejecting the representation of the petitioner; firstly, that the petitioner was not in the State Services and there was no such Rule to condone the break in service and secondly, that since the term of the office of the petitioner was less than 5 years, therefore, such condonation by the State government is not possible. According to respondent No. 2, if there would have been 5 years term or more than 5 years then of-course the State Government can condone the interruption in service of the Government Servants. .

(2.) THE factual matrix of the case lies in short compass. According to the petitioner, he was selected and appointed as Lower Division Clerk along with some other candidates for Census Work by respondent No. 2 vide order dated 21. 11. 70 (Annex. 1 ). In pursuance of the appointment letter dated 21. 11. 70 (Annex. 1), the petitioner joined his duty on the same day at Tehsii Rashmi. It is further alleged that provisional seniority list of the Lower Division Clerks working in Chittorgrah District was issued by respondent No. 2 on 14. 3. 73 (Annex. 2 ). From the assertions made in the writ petition and other material available on record, it is borne out that the Census Department was abolished. After abolition of the Census Department, the services of every employees working in the said department came to an end with assurance by the State Government that all the incumbents who had been retrenched due to abolition of the Census Department, they will be re-employed and absorbed in other department. It is alleged by the petitioner that juniors to the petitioner were absorbed in the department but the petitioner was denied absorption upto 28. 8. 74. Before the aforesaid date, similarly circumstanced juniors to the petitioner were appointed in other departments but the same benefit was denied to the petitioner.

(3.) A close scrutiny of Sub-rule (4) of Rule 212 of the Rules of 1951 reveals that the State Government has been empowered to condone the interruption in service of the Government Servants. Sub-rule (4) of Rulr 212 of the Rules of 1951, which are statutory Rules framed by the Governor in exercise of the powers conferred by the proviso to Art. 309 of the Constitution of India, has been amended from time to time. The latest amendment which is brought to my notice, was introduced by the Governor in exercise of the powers conferred by the proviso to Art. 309 of the Constitution of India in the year 1979. This new amended Rule has been enforced w. e. f. 21. 1. 1979. The aforesaid Rule 212 is quoted in extenso- "10. (i) For the existing Note 4 below Rule 212, the following should be substituted, namely: - 4. Condonation of interruption between temporary service and permanent service or two spells of temporary service is permissible under this Rule. (ii) The following new Note shall be inserted, namely; - 5. In case of a Government Servant in teaching side in a School/college who on this subsequent re-appointment to the same post is entitled to; draw vacation salary in accordance with provisions contained in para 1 of Government of Rajasthan decision No. l below Rule 97 the interruption between his temporary service and permanent/temporary service may be condoned for the purpose of pension provided that the break is caused due to delay in issue of appointment orders and provided further that the break does not exceed one month. 11. The existing Audit Instruction below Rule 212 shall be deleted. 12. The following new Note shall be inserted below Rule 212 : - 6. The authority competent to condone interruption can also condone under this Rule an interruption between his non-qualifying service and his subsequent qualifying service in order to make the former service qualifying for pension under Rules 187, 188, 188 (A) and 188 (B ). "