KHUMAN LAL DEVRA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE petitioner entered the service of the State of Rajasthan initially as a Plant Protection Mukadam, Thereafter by the order of the Deputy Director of Agriculture (Cotton), Rajasthan, Udaipur dated June 13, 1956 the petitioner was temporarily appointed as a Fieloman in the Cotton Extension Scheme in the grade of R.S.60 -3 -90 -EB 5 -120. The petitioner was confirmed on the post of Fieldman by the order dated September 22, 19G7 with effect from July 1, 1959. On April 8, 19b8 the petitioner was transferred to the post of Lower Division Clerk in the office of the Distinct Soil Conservation Officer, Udaipur arid he joined the aforesaid post on April 14, 1968 and continued to hold the sand post till he was promoted as officiating Upper Division Clerk by the order dated September 29, 1970. This officiating promotion or the. post of Upper Division Clerk was given, to the petitioner in accordance with the position assigned to him in the seniority list of Lower Division Clerks, published by the Director of Agriculture vide Notification dated September 28, 1970 The grievance of the petitioner is that by a subsequent notification dated September 26, 1972 the Director of Agriculture published a fresh seniority list of the lower Division Clerks employed in the department and the seniority of the petitioner was modified to his disadvantage, inasmuch as he was not included in the category of permanent Lower Division Clerks but was shown a temporary holder of the scar post and further that he was assigned seniority at serial No 190 in the said category. On account of the fact that the petitioner was assigned a lower position in the seniority list dated September 26, 1972 he was reverted from the post of Upper Division Clerk to that of Lower Division Clerk by the order dated November 18, 1972. The petitioner has challenged in this writ petition the assignment of lower position to him in the set aorist list of temporary Lower Division Clerks as well as the order of his reversion from the post of officiating Upper Division Clerks.

(2.) NO reply has been filed by any one of the respondents to this writ petition. However, the learned Addl. Govt. Advocate pointed out that after the final seniority list of Lower Division Clerks was published on September 28, 1.970 it was felt that the seniority was wrongly assigned to the persons who had been inducted on the posts of Lower Division Clerks from the posts of Fieldmen and Laboratory Assistant, and as such the State Government required the Direr for of Agriculture to revise the seniority of Lower Division Clerks in the department. There upon those persons who were recruited as Field -men and were subsequently drafted to the pests of Lower Division Clerks were allowed by the Notification issued by the Director of Anglican re on September 19, 1972 an opportunity to indicate their epsilon withier a period of one month as to whether they desired to return to their parent cadre on the post of Field men or Laboratory Assistant, as the case may be, or they desired to remain on the post of Low r Division Clerk. It was made cleat by the aforesaid notification that those Lower Division Clerks, who did not exercise their open in favour of returning back to the puns of Fieldman would not be entitled to get any benefit of the service rendered by them earlier on the post of Fieldman in the matter of assignment of seniority, which shall be determined with regard to the date of their appointment on the post of Lower Division Clerk only. It is an admitted ease of the parties that the petitioner did not exercise his option in favour of returning back to the post of Fieldman, although it was open to him to return back to his parent cadre. As the petitioner faulted to exercise such an option, his seniority has been predetermined visa is other Lower Division Clerks on the basis of the length of service rendered be him on the post of Lower Division Clerk It was further submitted that the petitioner has been ordered to be reverted from the officiating post of Upper Division Clerk to the post, of Lower Division Clerks as there were several Lower Division Clerks senior to him, who should have been promoted in preference to the petitioner. The respondents have thus tried to justify both the demotion of the petitioner from the post of officiating Upper Division Clerk as well as the assignment of Lower position to him in the seniority list of Lower Division Clerks.

(3.) IN respect of his first submission, learned Counsel for the petitioner laid stress upon the note appended to Rule 6 of the Rules. According to Sub -rule (2) of Rule 6 of the Rules ministerial staff in the subordinate offices of the State is to comprise of two cadres, viz. a cadre of stenographers and a general cadre consisting of posts in the category of Superintendents, Assistants, Head Clerks, Upper Division Clerks and Lower Division Clerks. Sub -rule (1) of Rule 6 authorizes the State Government to determine the strength of staff from time to time. The note appended to Rule 6(2) provides that an) ministerial post in a Sub -ordinate office in a pay scale applicable to any of the categories specified in Sub -rule (2) of that rule shall be deemed to be a post in that category for the purposes of the rules. The argument of the learned Counsel for the petitioner is that on account of the aforesaid note the post of Fieldman. which is a ministerial post in a subordinate office in the same pay scale applicable to the posts of Lower Division Clerk, should be deemed to be included in the category of Lower Division Clerks. The post of Fieldman -cum store keeper was formerly included in Schedule III of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 relating to ministerial services. But by a subsequent amendment the post of Fieldman has ceased to be a ministerial service post and the entry relating thereto was deleted from Schedule III with effect from July 9, 1970, and was included in Schedule II of the aforesaid Rules, relating to subordinate services. It is no doubt true that at the time when the petitioner was transferred from the post of Fieldman that of a lower Division Clerk on April 8, 1968 the posts of Fieldman and Lower Division Clerks were ministerial service posts and were also in the same pay scale. As such by virtue of the note to Rule 6(2) of the Rules, the post of Fieldman should at that time be deemed to have been included in the category of Lower Division Clerks for the purpose of application of the Rules, and as such the provisions relating to recruitment, promotion and seniority and other matters contained in the Rules could be applicable to the posts of Fieldman in a similar manner as they were applicable to the posts of Lower Division Clerks. It is significant to note that Rule 27 which is in respect of determination of seniority does not speak of determination of seniority in a category of posts but it only provides for determination of seniority in each class of posts. There is nothing on the record to show that the posts of Field -man and that of Lower Division Clerk were inter -changeable posts and in the absence of any such material it is difficult to hold that there should have been a combined seniority list of all persons appointed to the posts of Fieldmen and Lower Division Clerks. Of course, the first proviso to Rule 7 authorizes the appointment on a post in any cadre included in the service by transfer of a person holding a post in another department, corresponding to a post in the cadre concerned. The post of Fieldman was admittedly a post corresponding to the post of Lower Division Clerk and as such the petitioner could have been appointed on the post of Lower Division Clerk by transfer from the post of Fieldman, but that cannot lead to the conclusion that their should be a unified common seniority list of all persons holding the posts of Fieldmen and Lower Division Clerks. The first contention of the learned Counsel is, therefore, without any substance and is repelled.