GUMAN SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE petitioner was initially appointed as a Havaldar in the Courts of Wards Department of the erstwhile State of Jodhpur w.e.f. September 15, 1945 and he continued as an employee of the Court of Wards Department even after the formation of the State of Rajasthan, until he came to be appointed as a Patwari by the order of the Collector, Jalore dated August 21, 1957 The absorption of the petitioner on the post of Patwari in the Revenue Department of the State was in the first instance a temporary one for a period of three months, but even thereafter he was allowed to continue to work against a permanent existing vacancy of Patwari. The petitioner continued to hold the said post of a Patwari until he was compulsorily retired under Rule 244(2) of the Rajasthan Service Rules (hereinafter referred to as 'the Rules') by the order of the Collector, (Land Records), Jalore dated October 18, 1972 The petitioner was required to retire from the service of the State on the expiry of three calendar months from the service of the afore -said notice dated October 18, 1972 upon him. According; to the petitioner, the order under Rule 244(2) was received by him on October 25, 1972,

(2.) THE petitioner seeks to challenge the aforesaid order of his compulsory retirement and the main submission advanced by his learned Counsel is that the retirement of the petitioner under Rule 244(2) of the Rules was bad in law because the petitioner had not completed' 25 years 'qualifying service' on the date when he was compulsorily retired from Government Service. The contention of the learned Counsel is that the 'qualifying service' of the petitioner should have been counted w.e.f. August 21, 1957 when he was absorbed as a Patwari, in the service of the State Government and the earlier service rendered by him should not have been counted as 'qualifying service' for the purposes of Rule 244(2) of the Rules; on the ground that the service rendered by the petitioner under the Court of Wards was not pension able, The contention of the learned Government Advocate, on the other hand, is that the petitioner's 'qualifying service', for purposes of Rule 244(2), was rightly counted from September 16, 1945 and that the petitioner had completer more than 25 years' qualifying service.

(3.) THE first question that arises for determination in this case is as to whether the petitioner was a 'Jagir employee' as defined in 195 4 Rules or he was an employee of the Government of the former State of Jodhpur from the very beginning of his service, w.e.f. September 16, 1954. Clause (1) of Rule 1A of the 1954 Rules defines a Jigir employee' as a person in the permanent whole time service of the Jagir, on a p Ht pertaining to the administration of the Jagir and public services connected with it, whether employed by a jagirdar or by the Court of Wuds. 'It did not include a person employed for the Jagirdar's private or personal affairs. Now to corns within the definition of a 'Jagir employee', as specified in the 1954 Rules, the petitioner should have shown that he was in the permanent whole time service of a Jagir on a post pertaining to the administration of such Jagir or the public services connected with it. It must be observed that the pleadings of the petitioner in this respect are laconic, in as much as he has not stated in the writ petition as to whether he was a permanent whole time employee of a Jagir or Jagirs. The order of initial appointment of the petitioner dated August 31, 1945 was passed by the Assistant Superintendent in the Hesiat Department' of the then Government of Jodhpur. This order is in consonance with the order Ex. R.1 on which reliance has been placed by the respondents and which shows that the petitioner was appointed as a Havaldar on the monthly salary of Rs. 15/ - from September 16, 1945 and posted at Khari. The last mentioned order was passed by the Hesitant Superintendent, Hesiat Court' of the former State of jodhpur. From the aforesaid orders, relied upon by the respective parties, relating to the initial appointment of the petitioner or from the averments made by the parties in their pleadings, it does not appear that the petitioner was in the permanent whole time service of a jagir or jagirs. The respondents have relied upon the representations submitted by the petitioner himself, dated August 8, 1957, March 5, 1965 and December 30, 1966 which have been respectively marked as Annexures Rule 3, Rule 5 and Rule 6. The petitioner had stated in the aforesaid representations that he was in the employment of the State Government from the very beginning since 1945. In his representation dated August 8, 1957 the petitioner has stated that lie has been in the service of the State Government for the last 13 years. Similarly in the representation dated December 30, 1966 the petitioner stated that he has worked an a Government employee for almost 20 years from 1945 to 1945 On the basis of the admissions made by the petitioner in these representations, it has been urged by the learned Additional Government Advocate that the petitioner was in the employment of the former State of Jodhptir since September H, 1945 and on the formation of the State of Rajasthan, he became an employee of the newly formed State of Rajasthan and as such service remedied by the petitioner was. September 16, 1945 should be considered as 'qualifying service' for the purpose of pension and also for the purples of compulsory retirement under Rule 241(2) of the Rules, in the absence of clear averment on the part of the petitioner, it is not possible to accept the contention of his learned Counsel that the petitioner was in permanent whole time service of a Jagir or Jagirs and was, thus, a jagir employee' within the meaning of the 1954 Rules. The petitioner has not tried to explain the statements made by him in his various representations referred to above that he was an employee, of the State Government since 1945. It appears that for the purposes of absorption as a Patwati in the year 1957 and subsequently for seeking exemption from the Patwati examination, in the years 1965 and 1966, the petitioner hid taken up the stand that he was an employee of the State Government from the very beginning since 1945 and that while he was working under the Court of Wards, initially in the former State of Jodhpur and thereafter under the Government of Rajasthan, he was a permanent Government servant. In these circumstances, it is not possible to allow the petitioner now to resale from the earlier stand taken by him and to take up an in consistent position to the effect that he was a 'Jagir employee' and that he became an employee of the State Government only upon his appointment as a Patwari by the order dated August 21, 1957 The petitioner cannot be permitted to adopt vacillating postures on different occasions, as might suit his convenience on that occasion. It was the duty of the petitioner to plead clear as to whether he was in the permanent whole time service of a Jagir or Jagirs so that he could squarely come within the definition of a Jagir employee' as specified in the 1954 Rules. In case the service rendered by the petitions since September 16, 1945 is considered as one under the State Government or the Government of a covenanting State, then it cannot be argued that the petitioner did not complete 25 years' qualifying service an required by Rule 244(2) of the Rules. In view of the vacillating postures adopted by the petitioner and in the absence of requite pleadings on his part, I am unable to hold that the petitioner was a Jagir employee' to defined in the 1954 Rules Merely saying that the petitioner was a Jagir employee is wholly insufficient because the necessary facts as to whether the petitioner was in the permanent whole time service of ajagir or Jagirs or not have nm been disclosed by him.