FATEH CHAND Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is a writ petition by Fateh Chand under Article 226 of the Constitution and arises under the following circumstances: The petitioner was first appointed as a clerk on work-charge basis in motor section of the office of the Executive Engineer, Water works, Jaipur, by an order dated 9 May 1952. Thereafter, by order dated 2 February 1955, he was appointed a lower division clerk in the same office as a temporary measure for a period of six months in the first instance with effect from 1 January 1955, against a permanent vacancy. He continued to ho]d this appointment until 1 March 1965. On 2 March 1965, he was served with a notice by the Chief Engineer (Health), Rajasthan, that his services were to be terminated with effect from one month of the issue of this letter. The reason for this termination was that the petitioner had failed to pass two departmental examinations for the recruitment of lower division clerks, first in June 1964 and the second in November 1964. Thereupon the petitioner made a representation to the Chief Engineer, and the actual termination of his service remained in abeyance (for certain reasons into which it is unnecessary to go for the purpose of the present writ petition) until 25 August 1965 (Ex. 9) when by a letter dated 25 August 19s5 the petitioner was informed that his representation had been considered and rejected by the Government and, therefore, he was being served with one month's notice of termination of service and that the same shall stand terminated on the expiry of one month from the issue of his letter. Aggrieved by this order the petitioner filed the present writ application in this Court on 24 September 1965. It may also be stated before proceeding further that the petitioner is a matriculate and that he was about 35 years of age at the time his services were sought to be terminated.

(2.) THE petitioner's case put in a nutshell is that although he was a temporary employee, he held his post against a permanent vacancy that he had put in more than ten years' service as such and, therefore, the State was not entitled to terminate his service in the manner in which it was sought, just by giving a month's notice, and that his services as temporary clerk were fully protected under Rule 23a (2) of the Rajasthan Service Rules, hereinafter called the rules.

(3.) THE State has opposed this writ petition and its defence is that Rule 23a (2) is not attracted into application in this case, the chief rea on being that the petitioner had failed to pass the departmental examination even in two attempts, and, that being so, his services were liable to be terminated in accordance with Government order No. F 15 (1) OW/64, dated 5 March, 1964, Ex. A. 1, made under proviso 2 to Rule 7 of the Rajasthan Subordinate Offices Ministerial Staff Rules 1957, hereinafter called the Ministerial Staff Rules, by which it was provided inter alia that in case a candidate failed a second time in the departmental examination his service will be terminated after due notice, unless otherwise he seeks his appointment through the regular channel prescribed in the service rules concerned.