MOHAMMED ISMAIL KHAN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE petitioner Mohammed Ismail Khan joined service as an Assistant Jailor on 1st February, 1952. He came to he confirmed on that post with effect from the same date. He applied to the Director, Social Welfare for some job in the Social Welfare Department in view of his high qualifications suited most to that Department. Proposale was initiated by the Director to transfer him from the Jails Department to his department and to appoint him on the post of Welfare Officer (Prisons) in Scale No. 19 that is 200-450. THE proposal was approved by the Minister and accordingly, an order was issued on 16th October, 1968. appointing him as officiating Social Welfare Officer (Prisons) for a period of a six months. He was then appointed as Social Welfare Officer with effect from 1st September, 1969 in scale No. 15 of 225-525. He then came to be appointed as Superintendent, Observation Home, Jaipur on 19th August, 1971, in the scale 250-625. On 28th June, 1972, he was transferred on an ad hoc basis to the post of Project Officer (Beggery Survey) on which post he continued to work until 4th Aprial, 1973 when he proceeded on one month's leave on account of illness. Since he could not be selected in a regular manner and the Rajasthan Public Service Commission refused to concur in his continuance, the matter was referred to the Government and on 5th May, 1973 the Minister agreed to his reversion. Accordingly, he was reverted on 14th May, 1973, to his parent department. But he was not accepted by the Inspector General of Prisons. He filed the present writ petition on 3rd January, 1974, praying that the respondents be directed to allow him to continue in the Social Welfare Department on the pay and scale he was last drawing and the order dated !4th May, 1973, be quashed. In the alternative he prayed that the respondent be directed to post him on the post of Deputy Superintendant Jail in the pay scale fixed for that post.

(2.) MEANWHILE, the petitioner was without any posting and was getting no salary. It was upon the directions of this court that his posting orders were issued on 27th February, 1974, posting him as Assistant Jailor, Bhilwara. At present, the petitioner is holding the job of the Jailor since 1st September, 1976, and he is getting Rs 690/- in the grade of 450-770

(3.) NOW, There is no doubt that the petitioner fulfils all the aforesaid requirements except the last one as contended by the State The last requirement is that the person in order to be eligible for screening, should be one who would have continued to work on the post if he had not been appointed on any other post on the date these rules came into force. Reading Rule 6 as a whole as it stood after its amendment, it will be noticed that the words 'these rules' occurred at several places and they refer to the principal Rules of 1963 which came made into force on 27?h December, 1963, on which date many of the officers may not even be in the Department at all. If the interpretation does and should prevail, then, the 4th requirement simply becomes unworkable and for the lapse of the draftman the petitioner cannot be allowed to suffer. The learned Government advocate made a bold attempt to explain that the words, "these rules" occurring in the newly inserted proviso referred to the Rajasthan Social Welfare Subordinate Services (Amendment) Rules, 1976, because such was the intention of the law making authority. No doubt, Denning L. J. in Seafard Court Estates Ltd-, vs. Asher observed that - "it would certainly same the judges trouble if Acts of Parliament were drafted with dirune prescidence and perfect clamity. In the absence it, when a defect appears, a Judge cannot, simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of parliament, and he must do this not only from the language of the statute, but also from a consideration to of the social condition which grave rise it and of the mischief which it was passed to remedy, and then he must supplement the written words so as to given 'force and life' to the intention of legislature. Pet into homely metaphor it is this: a Judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out. He must then do as they would have done. A judge must not alter the material of which the Act is woven but he can and should iron out the creases. "