RAJVI AMAR SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is a petition under Article 226 of the Constitution of India.

(2.) THE petitioner was a District and Sessions Judge in the former Bikaner State for some years prior to the formation of the United State of Rajas-than by the covenant dated 30-3-1949, entered into by the various rulers including the Maharaja of Bikaner. Some time after the formation of Rajasthan provisional postings were made on an 'ad hoc' basis by Government Order No. F-l (12) Int. B/50, dated 25-5-1950, and the petitioner was provisionally posted as Civil and Additional Sessions Judge of Jhunjhunu. THE Government notification of the said postings mentioned in para. 6 that all the appointments were provisional, and that the emoluments of none of the officers appointed were being affected, and they would continue to draw their existing salaries until further orders. It was declared that all the appointments were without prejudice to the creation of Judicial Service in Rajasthan to be formed in accordance with the rules which may be made therefor.

(3.) IT was contended by the learned Advocate General that the rules having been authenticated by the secretary to the Government according to Business Rules framed under Article 166 by the Rajpramukh, their validity could not be questioned. The authentication by a Secretary to the Government, however, docs not do away with the necessity of promulgating the rules in the name of the Government or in the name of the Rajpramukh, as the case may be. The rules as published in the Rajasthan Gazette of 23-8-1950, do not show that they had been framed by the Government. All that appears on the face is that Mr. Narayanan, Additional Chief secretary to the Government of Rajasthan, had framed and promulgated the rules. Me was certainly not authorised to frame the rules himself. He could certainly authenticate the rules purporting to have been framed by the Rajpramukh or the Government, as the case may be. The learned Advocate General made a statement that an error had crept in the mode of publication, but that the rules had, as a matter of fact, been framed by the Rajpramukh. In the course of arguments he produced a copy of the proceedings of the Secretariat originating in a general note by Mr. B. N. Jha, dated 19-7-50, relating to the recruitment to various services in Rajasthan, with a statement that the subsequent proceedings relating to the Rules notified on 23-8-1950, in respect of Judicial Service, were not traceable in the Government records. The document produced is a copy of a note by Mr. B. N. Jha, Adviser to the Govt. of Rajasthan, for the approval of the Hon'ble Chief Minister. IT was approved by the Chief Minister, and the Chief Secretary thereafter noted thereon that "h. H. the Rajpramukh has to see (this document) as this relates to an important matter regarding the services", The Secretary to the Rajpramukh submitted it to His Highness the Rajpramukh "for gracious perusal" and the Rajpramukh noted having "seen" the document. This document does not directly relate to the rules as notified on 23-8-1950, and in the affidavit of Mr. Mohan Mukerjee, Additional Secretary to the Govt. , it is stated that the original papers relating to the rules for selection and fixation of seniority of Government Servants to the Rajasthan Judicial Service indicating the sanction of the Government and the competent authority, meaning thereby the Rajpramukh, were not traceable in spite of all efforts for the last 12 months. Curiously enough the present document said to be the forerunner of the document containing the rules for selection and fixation of seniority of Government Servants in the Rajasthan Judicial Service also does not have the authority and sanction of the Rajpramukh behind it. The learned and experienced officers through whose hands this document passed could be presumed to know the differrence between 'approval' and 'perusal. While the scheme was submitted to the chief Minister 'for approval', it was only submitted to She Rajpramukh for 'perusal'. Even this forerunner of the scheme did not thus comply with the provisions of Article 309 of the Constitution, which were relied on in the present case by the learned Advocate General. As stated earlier, the rules on their face do not show that they had been made by the Rajpramukh, and the burden of proof, therefore, lay on the state to prove that fact. In this they have failed, not only because the original rules which were the sheet-anchor for the recruitment for Rajas-than Judicial service have been stated to be untraceable, but also because even the preliminary rules affecting all services, including the judicial, have been found not to have been framed or approved by the Rajpramukh. The Rajpramukh was only asked to see them and he did so without expressing his own approval or disapproval of the same. IT has also not been proved that the State Public Service Commission was consulted on this method of recruitment and on the principles to be followed in making appointments as required by Article 320 of the Constitution. But what is more important in the present case, which relates to the recruitment of Judicial Service, is that there is no averment, much less proof, that the Rules notified on 23-8-1950, were framed by the Rajpramukh in consultation with the State Public Service Commission & the High. Court, which was a pre-requisite to the appointment of persons to the Judicial Service, which included the junior as well as the senior posts as discussed above.