Rajasthan High Court - Jaipur
Jagdish Behari Goswami vs State Of Rajasthan And Anr. on 5 December, 1989
Equivalent citations: 1990(1)WLN173
JUDGMENT
N.C. Sharma J.
1. This is a writ petition by Jagdish Behari Goswami Under Article 226 of the Constitution of India for quashing an order of the Commissioner, Devastan Department, Udaipur dated March 15, 1988 (Annexure/13), where by the petitioner was relieved from the Devasthan Department, Udaipur and directed to join his posting in the Court of Munsif-cum Judicial Magistrate, Kama in pursuance of the order of the District Judge, Bharatpur dated February 27, 1989.
2. Facts leading to the filing of this writ petition are that during the period from July 9, 1973 to August 15, 1973, there was a strike of the staff serving in subordinate Courts., Keeping in view the strike of the subordinate staff, the State Government bad issued an order dated July 7, 1973 regarding appointment of Lower Divisional. Clerks to meet with the situation created by the strike. In the back-ground of such a situation, the petitioner was appointed in 1973 as LDC in the pay scale of 110-230 by the District Judge, Bharatpur. Later on, in pursuance of subsequent Government order directing adjustment of such employees who were appointed during the strike, the petitioner's services were extended. Later on, the Government of Rajasthan also issued orders that such employees need not qualify in the examination required by the Rajasthan Subordinate Civil Courts Ministerial Establishment Rules, 1958. The District Judge confirmed the petitioner in his appointment as LDC with effect from July 23, 1974, by an order passed on October 25, 1976. The petitioner continued to work in the subordinate court upto the middle, of March 1982. On February 1, 1982, the petitioner had made an application for his transfer in the Devastban Department Rajasthan, Udaipur. The application of the petitioner was forwarded by the District Judge to the Commissioner, Devasthan Department, Udaipur, whereupon the Commissner, Devasthan Department by an order dated February 24, 1982 (Annexure/2) appointed, by transfer, the petitioner from the District Court, Bharatpur in the office of the Inspector, Devasthan Deportment, Vrindavan. It was provided in Annexure/2 that the seniority of the petitioner as LDC would be counted from the date of his confirmation. Since this appointment by transfer was made at the request of the petitioner, no travelling allowance was paid to him. The petitioner was relieved by the District Court in the after-noon of March 15, 1982 and he joined in the Devasthan Department On the very next day. It appears that after the petitioner worked in the Devasthan Department for over four years, the Devasthan Commissioner sent a letter AnnexureR/3/2dated June 20, 1986 to the District and Sessions Judge, Bharatpur, wherein the Devasthan Commissioner pointed out certain illegalities in the transfer of the petitioner to the Devasthan Department and asserted that-his lien in the District Court, Bharatpur has not terminated. Request was made to the District Judge to take back the petitioner on his post in the. subordinate District Court. The District Judge, Bharatpur sent a factual report to the Registrar, Rajasthan High Court, Jodhpur on December 9, 1986. It appears that by order dated November 3, 1988, the petitioner had been transferred from Vrindavan to the office of the Assistant Commissioner, Devasthan, Udaipur and he was relieved to join his new posting on December 19, 1988. However, the petitioner did not report in the office of the Assistant Devasthan Commissioner, Udaipur. In the meantime, the Registrar, Rajasthan High Court, Jodhpur bad issued an order to the District Judge, Bharatpur to take the petitioner back in the parent department and the District Judge in compliance with that posted the petitioner as LDC in the court of Munsif-cum-Judicial Magistrate, Kama. The Devasthan Commissioner accordingly passed an office order on March 15, 1989 (Annexure/13), directing the petitioner to join as LDC in the Court of Munsif-cum-Judicial Magistrate, Kama, The petitioner has challenged this order Annexure/13.
3. According to the petitioner, he bad been permanently transferred from the District Court to the Devasthan Department and he, had been placed at Sr. No. 2 in the seniority list Annexure/3, which has been issued, by the Commissioner, Devasthan Department, Udaipur. The petitioner states that he had lien on the post of LDC in the Devasthan Department. He claims his salary to be paid by the Devasthan Department.
4. Respondents 1 and 2 are the State of Rajasthan and the Commr, Devasthan, Udaipur. Both of them have supported the order Annexure/13. Respondents No. 3 and 4 are the Rajasthan High Court and District and Sessions Judge, Bharatpur. Reply has been filed on their behalf. It is stated by respondents No. 3 and 4 that the petitioner cannot claim that he was transferred Under Rule 7(1) of the Rajasthan Subordinate Offices Ministerial Staff Rules, 1957 (for short, hereinafter" 1957 Rules). He was not recruited under the 1957 Rules. So far as the Rajasthan Subordinate Civil Courts Ministerial Establishment Rules, 1958 (hereinafter, for short, the "1958 Rules") are concerned, they do not contemplate a transfer of an employee from any judgeship to any department of the Government the only transfer envisaged under 1958 Rules is from one judgeship to another judgeship with the prior approval of the High Court. It is further stated that even if the transfer of the petitioner to the Devasthan Department is held to be permissible, be would retain his lien in the District judgeship of Bharatpur as be did not acquire ans fly lien in the Devasthan Department. Accordingly, it is pleaded that the petitioner was rightly posted back under Bharatpur judgeship.
5. I have heard the learned Counsels for the parties at length. It is not disputed that the petitioner was appointed as an LDC by the. District Judge, Bbaratpur by his order dated July 21, 1973. In the back-ground of the circumstances mentioned, he joined his post on July 23, 1973. It is also not in dispute that at his own request and on his own application, which was forwarded by the District Judge to the Commissioner, Devasthan Department, Udaipur, the petioner was taken on transfer to the Devasthan Department by the Commissioner, Devasthan Department by his order Annexure/2,dated February 24, 1982. That order mentioned that the seniority of the petitioner would be counted from the date of his confirmation of the post of LDC. Reference may be made to some of the provisions contained in the 1957 Rules. These Rules were framed by the Governor under proviso to Article 309 of the Constitution of India for regulating recruitment to and conditions of service of persons appointed to ministerial staff in subordinate offices. The expression, "subordinate office" as defined in Rule 4(h), means, "any office under the control of Government other than the Secretariat or office of the State Legislature or the High Court and the Courts subordinate thereto or Public Service Commission. "It is, thus, clear that the 1957 Rules had no application whatsoever to the courts subordinate to the High Court. The expression, "Head of Department" has been defined by Rule 4(e) as meaning (he highest administrative authority other than Government as respect a subordinate office. Recruitment to the staff under the 1957 Rules to the general cadre of LDC is made from amongst those who pass or have passed the Junior Diploma Course. The remaining vacancies, if any, are to be filled up by a competitive examination to be conducted by the Commission. However, there is a proviso to Rule 7(1) (d) which states that a post in any cadre may also be filled by transfer of a person holding a post in another Department corresponding to a post in the cadre concerned, with the concurrence of the Head of the Department. The existence of the word "Head of Department" in this proviso makes it clear that it contemplates transfer of a person holding a post in subordinate office to a post in another subordinate office with the concurrence of the highest administrative authority in relation to the concerned subordinate office. This provision did neither give power to the District Judge to concur to the transfer of the petitioner to the Devasthan Department nor empower the Commissioner, Devasthan Department to take the petitioner on transfer in his department. The transfer of the petitioner from Bharatpur judgeship to Devasthan Department was clearly in violation of the rules and is illegal. However, the petitioner continued to work on the post of LDC in Devasthan Department from March 16, 1982. He was relieved from the office of the Inspector, Devasthan Department, Vrindavan in the after-noon of December 19, 1988 to join at Udaipur, but he did not join at Udaipur. Thereafter as a result of the correspondence entered into between the Devasthan Commissioner and the District Judge, Bharatpur and the Rajasthan High Court, the petitioner was ordered to be taken back in the Bharatpur judge-ship and was, by order dated February 27, 1989, issued by the District Judge Bharatpur directed to report himself as LDC in the office of the Munsif-cum-Judicial Magistrate, Kama. By his illegal transfer to the Devasthan Department, the petitioner had acquired no lion in Bharatpur judgeship did not terminate. He had a right to hold the post only in the Bharatpur judgeship. The learned Counsel for the petitioner referred to a decision in Ranjit Basu v. State of West Bengal (Cal)(1982 (3) SLR 447). I have gone through the facts of this case and in Ranjit Basu's case, there is a clear finding that the original appointment of the petitioner in that case as a Typist in the Public Health Engineering Department of the West Bengal Government and his subsequent selection and posting after giving up his post as a typist was not a continuous appointment and therefore, Ranjit Basu's case (Supra) is not applicable whatsoever to the facts of the present case.
6. As the petitioner has only right to hold the post in the Bharatpur judgeship, he is not entitled to any relief as prayed for by him. The, writ petition is hereby dismissed with costs to respondents No. 3 and 4. "Costs are. assessed at Rs. 500/-