KISHAN CHAND MATHUR Vs. THE STATE OF RAJASTHAN

JUDGEMENT

(1.) The petitioner, who was born on November 23, 1922 was initially employed as a work charge Sub Overseer in the Public Works Departs ment of the former State of Jodhpur on September 6, 1940. He was confirmed as Sub Overseer on July 1, 1944 and was thereafter promoted its an Overseer. The petitioner continued to hold the post of Overseer until April 7, 1949 when the princely State of Jodhpur integrated into the United State of Rajasthan. The petitioner was appointed as a Senior Overseer with effect from 7 -4 -1949, as a result of the integration of the services of the covenanting States. He was subsequently promoted as an officiating Assistant Engineer in the Public Works Department, Rajasthan with effect from December 11, 1959. On July 19, 1972 the petitioner was approved by the Departmental Promotion Committee for appointment as a regular officiating Assistant Engineer in the Public Works Department, but before be could be so appointed, the petitioner was compulsorily retired from Government service by the order of the State Government dated September 2, 1972 with effect from the date of the expiry of three calendar months from the service of the aforesaid order upon him. The aforesaid order of his compulsory retirement his been challenged by the petitioner in the present writ petition.

(2.) Learned counsel for the petitioner raised four submissions before me in this writ petition. The first submission made by learned counsel was that the petitioner was initially employed in the erstwhile State of Jodhpur and Regulation No. 8 of the Jodhpur State Service Regulations provided that the age of retirement in that State was 55 years executed upto 60 years on public grounds. The contention of the learned counsel was that there was no rule or law authorising the compulsory retirement of a State employee in the former State of Jodhpur, when the aforesaid state merged with other Indian States to form the United State of Rajasthan and Article 16 of the Covenant, entered into by the Rulers of the former Indian States and the Raj Pramukh of the new State of Rajasthan, guaranteed continuance of service of the permanent members of the public services of the covenanting States, on conditions which were to be not less advantageous to such employees than those which prevailed on November 1, 1948. Learned counsel urged that in view of the aforesaid provisions of Article 16 of the Covenant, the service conditions of the petitioner could not be altered to his disadvantage in the new State of Rajasthan and as there was no provision of compulsory retirement in Jodhpur State Service Regulations, the petitioner was entitled to be retained in service in the State of Rajasthan also until he attained the age of 55 years. Learned counsel for the petitioner placed reliance upon the decision of their Lordships of the supreme Court in Bholanath J. Thaker Vs. The State of Saurashtra : AIR 1954 SC 680 in support of his aforesaid submission. In that case a similar provision contained in the Covenant entered into at the time of formation of the United State of Saurashtra was under consideration. It was observed in the aforesaid case by their Lordships of the Supreme Court that the service conditions which prevailed under the Wadhawan State Service Rules continued to hold the force of law when the Wadhawan State merged with the Saurashtra State and again the same merged with the Indian Dominion, as all the existing laws continued until repealed. Thereafter, those rights were carried over on the earning into force of the Constitution, India, and the formation of the Indian Republic, with the important difference that the employees then became an Indian citizen and the only way to defeat his rights was by legislation, if that could be done under the Constitution. Their Lordships took note of the fact that there was no such legislation there of as and in these circumstances it was held that the rights of the employees continued to be governed by the service conditions of the former State of wadhawas end his contract of service. The reply of the learned Deputy Government Advocate is that the service conditions of the petitioner are now governed by the Rajasthan Service Rules, 1951 and that as the petitioner his received promotion and benefit of revised and increased salary in accordance with the Rajasthan Service Rules and the Rajasthan Revised Pay Scale Rules, the petitioner can not submit that his service conditions should be governed even now by the Jodhpur State Service Regulations.

(3.) However, in the present case after the formation of the new State of Rajasthan and after the coming into force of the Constitution of India, the Raj Pramukh of Rajasthan promulgated the Rajasthan Service Rules, 1951, in Raj Pramukh of the powers vested in him under the provisions of the proviso to Article 309 of the Constitution, Rule 2 (ii) of the Rajasthan Service Rules made those rules applicable to all persons appointed on or after the 7th day of April, 1949 to such posts or service which were under the administrative control of the Government of Rajasthan or in connection with the affairs of the State of Rajasthan, as a result of integration of the services of the Covenanting States. It is admitted by the petitioner in the writ petition that be was appointed to the post of Senior Overseer in the service of the United State of Rajasthan. as a result of Integration of the services of the Covenanting States and was thereafter promoted as officiating Assistant Engineer in the service of the State of Rajasthan. As such, the service of the petitioner was governed by the Rajasthan Service Rules, 1951 and Rule 244 of the aforesaid Rules became applicable to the petitioner.