STATE OF RAJASTHAN Vs. SHRI PAREGSHWAR TIWARI

JUDGEMENT

(1.) THESE special appeals have been filed against the order of the learned Single Judge dated May 24, 1984 in Civil Writ Petitions No. 1963 of 1983 and 2087 of 1983. Civil Writ petition No. 1963 of 1983was filed by Shri Prage-shwar Tiwari and Civil Writ petition No. 2087 of 1983 was filed by Shri Ash Karan Agarwal. In both the writ petitions, the said petitioners (hereinafter referred to as 'the petitioners') had challenged the appointment of Shri Ganpat Rai as a member of the Rajasthan Civil Services Appellate Tribunal (hereinafter referred to as 'the Tribunal' ). The learned Single Judge, by his order aforesaid has allowed the writ petitions and has quashed the appointment of Shri Ganpat Rai as a member of the Tribunal and has declared that Shri Ganpat Rai could not have been appointed as the third member of the Tribunal and has declared his post as vacant. Feeling aggrieved by the aforesaid order of the learned Single Judge, the State has filed Special Appeals Nos. 174 of 1984 and 176 of 1984 and Shri Ganpat Rai has filed Special Appeals Nos. 175 of 1984 and 177 of 1984.

(2.) THE State Legislature of Rajasthan enacted the Rajasthan Civil Services (Service Matters Appellate Tribunals) Act, 1976 (hereinafter referred to as 'the Act') to provide for the constitution of appellate Tribunals in service matters and matters incidental thereto. Section 3 of the Act provides for constitution and composition of the Tribunals. Under sub-section (1) of section 3, the State Government has been empowered to constitute, from time to time, one or more Tribunals as it may consider necessary and each of such Tribunals is to be called the Rajasthan Civil Services Appellate Tribunal. Sub-section (2) of section 3 provides that each of the Tribunals shall consist of a Chairman who shall be an officer of super time scale of Indian Administrative Service (I. A. S.) and atleast two other members, one of whom shall be a member of the Rajasthan Higher Judicial Service (RHJS ). Sub-sec. (3) of section 3 lays down that the term of the Chairman and the members of the Tribunal shall ordinarily be three years, but the Government may, for special reasons, recall the Chairman or any member of the Tribunal before the expiry of the period of three years. Section 12 empowers the State Government to make Rules for the purpose of giving effect to the provisions of the Act. In exercise of the said power, the State Government has made the Rajasthan Civil Services (Service Matters Appellate Tribunal) Rules, 1976 {hereinafter referred to as 'the Rules' ). In Rule 5 provision has been made that the third member of the Tribunal shall be an officer serving under the State Government or a retired Government servant and his terms and conditions of employment shall be as may as decided by the Government. In exercise of the powers conferred on it under sub-section (!) of section 3 of the Act, the State Government by its notification dated 24th June, 1976 constituted the Tribunal consisting of the Chairman and two other members. THE Chairman and members of the Tribunal have been changing from time to time. Shri S. N. Tandon, the third member of the Tribunal i. e. the member other than the Chairman and the member belonging to the RHJS, retired on 31st July, 1983. By order dated 19th September, 1983 Shri Ganpat Rai who is a retired Government servant having retired from IAS on 31st August, 1983, was appointed as the third member of the Tribunal, for a period of two years. THE said appointment of Shri Ganpat Rai was made against the vacancy which occurred on account of retirement of Shri S. N. Tandon. THE petitioners have challenged the aforesaid appointment of Shri Ganpat Rai as a third member of the Tribunal.

(3.) WE may now come to the merits - In order to appreciate the contentions urged by the learned counsel for the parties, it will be necessary to take notes of the provisions of section 3 of the Act and Rule 5 of the Rules which read as under: "3. Constitution and Composition of Tribunals.- (1) The Government may, by notification in the official Gazette, constitute from time to time one or more tribunals as it may consider necessary. Each of such tribunals shall be called the Rajasthan Civil Services Appellate Tribunal. (2) Each of the Tribunals shall consist of a Chairman who shall be an officer of Super Time Scale of Indian Administrative Service and at least two other members, one of whom shall be a member of the Rajasthan Higher Judicial Service. (3) The term of the Chairman and members of the Tribunal shall ordinarily be three years. The Government may, however, for special reason, recall the Chairman or any member of the Tribunal before the expiry of the period of three years. " "rule 5. Nomination of the members other than the Chairman and the member belonging to the Rajasthan Higher Judicial Service and regulation of his Terms and Conditions of employment.- The third member shall be an officer serving under the State Government or a retired Government servant and his terms and conditions of employment shall be may be decided by the Government. "