JUDGMENT [ENTITY], J.
1. Question which arises for determination in this Writ Petition is as to whether a person appointed to Rajasthan Administrative Service can be kept on probation for over a decade and as to whether he can be deprived of seniority, promotion, pay fixation ect. because the order of confirmation has not been passed by the competent authority.
2. Petitioner, who is physically (orthopaedically) handicapped, joined government service as a senior teacher. In the year 1976, the RPSC advertised vacancies in Rajasthan Administrative Service which were to be filed in accordance with the provisions of the [ACT] (leteron changed to 1977). The petitioner appeared in the competitive examination held by the RPSC in July-August, 1977. The petitioner claimed that he is entitled to be considered for selection/appointment in terms of the Rajasthan Employment of the [ACT] Neither the State Government nor the RPSC acceded to his request. He, therefore, filed [CASE NUMBER]. The Writ Petition was allowed by a learned Single Judge of the High Court vide his judgment dated 6.10.79. The respondent, [ENTITY] filed an appeal before the Division Bench. The Division Bench Special Appeal No. 149/81 [ENTITY] v. Suraj Prasad Chaturvedi and another was dismissed on 8.11.85. According to the petitioner, although before the Division Bench the appellant's attempted to raise new controversy regarding question of reservation having not been allowed in the Rajasthan Administrative Service and that the petitioner had failed to secure minimum marks in the interview, the Division Bench however refused to entertain these controversies.
3. During the pendency of the Special Appeal, an order dated 8.1.81 came to be issued under the signatures of the Special Secretary of the Department of Personnel & Administrative Reforms (Personnel A-IV) whereby the petitioner was appointed to Rajasthan Administrative Service. He was placed on probation for a period of two years in the Ordinary Scale of the Rajasthan Administrative Service 750-30-1020-40-1300-50-1[SECTION]0 plus usual allowances as admissible from time to time against the quota for physically handicapped persons/for the year 1977. In the order it was stated that the appointment of the petitioner will be effective from the date he reports to the Department of Personnel & Administrative Reforms (Personnel A-IV), Govt. Secretariat, Raj. Jaipur. In pursuance thereof, the petitioner reported for duty in the Department of Personnel. By an order dated 5.2.81 passed by the Secretary, Department of Personnel, the petitioner was directed to join the Foundational Training Course at HCM State Institute of Public Administration, Jaipur. The petitioner undertook this training and was relieved form the HCM State Institute of Public Administration on 4.4.1981 after completion of the training. The petitioner was thereafter directed to undergo training as Assistant Collector cum Executive Magistrate & the Collector [ENTITY] passed an order dated 8.4.81 for his training from 7.4.81 to 18.7.81. He was relieved by the Collector [ENTITY] on 18.7.81 after completion of the training. The petitioner reported back to the Department of Personnel. In the meantime, examination was held by the HCM State Institute of Public Administration in respect of Foundational Training Course and the petitioner passed the same. Result of this examination was declared by the Director of the Institute on 15.12.81.
4. After the petitioner hand reported for duty before the Department of Personnel on 22.7.81, he was asked to await posting orders. Thereafter for over six years and eight months the petitioner was kept awaiting posting orders. Orders were issued on 20.10.81, 11.10.82, 2.9.83, 28.4.84, 8.7.85, 2.5.88 and 23.2.88 for regularising the period spent by the petitioner under awaiting posting orders by treating the said period as on duty under [SECTION] of the [ACT]. On 1.3.81 the Special Secretary, Department of Personnel and Administrative Reforms issued an order and posted the petitioner as Registrar, State Commission Office, Food & Civil Supplies Department (Headquarters), Jaipur against the newly created post.
5. The petitioner has stated in para Nos. 11 and 12 of the writ petition that other persons recruited alongwith him have been confirmed and have been assigned seniority in the Rajasthan Administrative Service and have further been promoted to the senior scale and selection scale of Rajasthan Administrative Service. However, order of confirmation of the petitioner in service has not been issued. His name has not been included in the seniority list and consequently he has not been considered for promotion. So much so, that h is in the lowest stage of pay scale of Rajasthan Administrative Service. Not a single increment has been given to him. If he had remained as senior teacher he would have drawn more salary as compared to the emoluments being paid to him in Rajasthan Administrative Service. He made several representations in this regard on 10.7.81, 17.3.82, 29-6.83, 9.9.83, 10.10.84, 9.6.85, 20.2.86, 12.6.87, 9.2.88, 22.4.89, 8.2.90 & 9.5.90. However, no positive action was taken. By communication dated 29.5.85 he was asked to meet the Deputy Secretary Personnel on 3.6.85 but nothing came out of it. On one of his representations, Office of Hon'ble Chief Minister wrote to the Special Secretary, Department of Personnel to dispose of the case of the petitioner expeditiously and to in from his Office, but no action has been taken even in pursuance of the DO letter of 27.8.90 issued by the Secretariat of the Hon'ble Chief Minister.
6. The petitioner has claimed that for almost seven years he was kept awaiting posting orders. Order of confirmation has not been issued despite his having completed the maximum period of probation prescribed under the [ACT]. His name was not included in the seniority list. His pay has not been fixed. He has not been given his annual grade increments and candidature has not been considered for promotion to the senior scale and selection scale of Rajasthan Administrative Service. All these are in total disregard of the conception of equality, fairness and reasonableness which must inform every state action.
7. Having regard to the nature of the case and the nature of prayer made by the petitioner, notice was given to the learned Additional Government Advocate, calling upon the respondent to show cause as to why the writ petition be not admitted and disposed of. Argument were heard in part on 4.7.91 and thereafter on 10.7.91 reply has been filed on behalf of the respondent. In its reply the respondent has in the first instance stated that the petitioner filled in the form and in response to the advertisement with respect to emergency recruitment for R.A.S. and he could not get through in the examination. He consequently filed a writ petition to get the benefit of physically handicapped quota. The petitioner could get success in the writ petition only to the extent which is covered by the observations of learned Single Judge in his judgment dated 6.10.79. According to the respondent, the learned Single Judge did not give any direction with regard to the petitioner's prayer in the [CASE NUMBER]. In compliance of the order/judgment of the learned Single Judge dated 6.10.79, the respondent gave appointment to the petitioner on 8.10.81. It has been admitted that the Special Appeal has been dismissed by the Division Bench on 8.11.85. Facts regarding the petitioner having passed the Foundational Course & training have also not been disputed. However, in para 9 of the reply it has been stated that the petitioner was given appointment but in fact he did not qualify to get through the R.A.S. and therefore he was not confirmed. More or less, the same them has been repeated in the subsequent paras of the reply. It would be appropriate to quote the paragraphs No. 9 & 12 of the reply because the contents of these paragraphs show the direction by which the respondent State Government and its functionaries have been applying their mind to deal with the case of the petitioner:
That the contents of para No. 9 of the Writ Petition are with regard to Annexures 12 to 18. The petitioner after completion of the training programme was kept awaiting posting orders and because the compliance of the order of the learned Single Judge was to be made in its true spirit and sense, the petitioner was given appointment vide order 8.1.1981 but in fact the petitioner did not qualify to get through the [ACT] and for this reason he was not confirmed on the post. The petitioner cannot get any benefit for the appointment given to him vide order dated 8.1.1981 as the order passed by the learned single Judge did not specifically direct the respondents to give any appointment to the petitioner in R.A.S. but the observation was with regard to that benefit that immediate and prompt steps should be taken to enforce the provisions of Rules of 1976 and 2% of vacancies arising in the various services should be earmarked for the handicapped persons. The petitioner does not qualify to be in RAS and until and unless he qualifies or files any proof that he is to be qualified in R.A.S. no benefits can be given to him, which accrue to a R.A.S. The writ petition of the petitioner is with regard to that the respondents be directed to include the petitioner's name in the seniority list in accordance with the petitioner's placement in the selections held in the year 1977 for recruitment to the Rajasthan Administrative Service. In this regard, it is necessary to mention he is the petitioner's placement in the selection held in the year 1977 was never done and it was only because of the order passed by this Hon'ble dated 6.10.1979 in [CASE NUMBER] the petitioner was given appointment. The placement in the selection is done only for the qualified persons who have stood in the merit and who have secured minimum marks in the interview to get qualified in the examination held by R.P.S.C. The merit list of the examination taken by the R.P.S.C. is prepared by R.P.S.C. itself and not by any other authority. After preparation of merit list, the placement and allotment of services is done according to merit and the choice preference given by the candidate. In the case of the petitioner, there was no such fact which could go to show that the petitioner stood in the merit or could be given benefit of choice or preference as given to other successful candidates who stood in the merit. As already mentioned above, the petitioner did not qualify to be RAS but only in compliance of the order of this Hon'ble Court, the petitioner was given appointment.
12. That the contents of para No. 12 of the writ petition are with regard to that the petitioner has not been given the benefit of his posting done under Rajasthan Administrative Services. As already mentioned above, the petitioner is not eligible and does not qualify to be in Rajasthan Administrative Services and there is no reason that he should be given benefit of increment or other consequential benefits.
8. From the facts which have come on record it is evident that the petitioner had faced selection made by the Commission in the year 1977 for emergency recruitment to Rajasthan Administrative Service. He claimed the benefit of the [ACT]. The respondent did not accept the claim of the petitioner. In Writ Petition filed by the petitioner the Court considered the claim of the petitioner and accepted the Writ Petition A learned Single Judge of this Court who decided the Writ Petition Suraj Prasad Chaturvedi v. [ENTITY] and Ors. 1979 W.L.N. 582 gave the direction for enforcement of 1976 Rules. It would be absolutely appropriate to quote paragraphs [SECTION] to 39 of that decision which are as under:
The writ application is, therefore, accepted. The respondents are direced to earmark vacancies of 2% of the posts in the State Government departments by directing each head of the department or where there is no head of department the Government itself, on which post the blind-deaf/orthopaedically handicapped and speech defective persons may suitable be employed and then to treat the post so earmarked as reserve for the employment of the physically handicapped. The respondents are further directed to take active immediate and prompt steps to enforce these Rules, both in letter and spirit. The earmarking of 2% as contemplated by [SECTION] should be completed with a period of four months from today. The respondents should further provide employment on these reserved posts for the physically handicapped persons by creating these posts from the year 1977 and carrying them forward as per rules for a further period of three years. It further directed that the petitioner on the creation of such reserved posts would be considered and provided suitable employment which would include promotion with effect from the date of his application to the Government i.e. 28.1.1978.
Before parting with this judgment, I may again observe that in matters of providing relief to those who have been cursed by the nature or God and are physically handicapped the respondent State and its functionaries should take a very liberal and beneficial attitude of the entire matter. This case should not be treated as a legal battle between a citizen & the State, because one who is already handicapped and has mustard up courage to come to this Court, should be respected by the State which represents all the fortunate privileged & unprivileged rich and poor, highly placed persons and the down trodden,. Such physically handicapped persons who are lowest in the ladder, require best of the attention of the State which is a social welfare State & which, according to the [ACT] given by the founding father is committed to do justice social, economic and political to all citizens of this State.
Let it not be said that the enactment of these rules in 1976 for the handicapped, was only a lip sympathy to [SECTION] of the [ACT]. Let it not be said that the enactment of this law was made only for the purpose of public consumption for preaching and propagonda and not for enforcing it, implementing it and giving relief to those who really deserve.
This is one of those cases far and few between which has come to light to this Court and has been commented upon but there are thousands and thousands of citizens, poor down trodden, less privileged, unresourceful who can never approach the court for getting relief. If the State takes his judgment in the right perspective indicated above, fordoing social justice and acts with speed and promptness, this physically handicapped petition would be successful in removing the administrative handicap of the State functionaries exhibited so far by non-enforcement of these Rules. The writ petition, therefore, succeeds as indicated above. The petitioner would get costs from the respondents.
9. The State Government filed Special Appeal before the Division Bench which was ultimately dismissed on 8.11.85. In the mean while by Annexure-1 dated 8.1.81 the petitioner was appointed to RAS by extension of the benefit of 1976 Rules. In the order dated 8.1.81 it has been specifically stated that the petitioner qualified in the written examination for appointment to Rajasthan Administrative Service by Emergency Recruitment, 1977 conducted by the Rajasthan Public Service Commission. The only condition to which appointment to the petitioner to Rajasthan Administrative Service was subjected to was in relation to the claim of the State Government in the Special Appeal file by it against the judgment of the Single Bench. In Annexures-2 to 19 the petitioner has been described as a member of the Raj. Administrative Service. The period of probation was initially stipulated to be of two years. That period of two years came to an end in January, 1983. Now a period of more than ten years and almost six months have passed but even till this date order of confirmation of the petitioner has not been issued. The justification given by the respondent for not confirming the petitioner in Rajasthan Administrative Service is the althought the petitioner has not appointed to RAS this appointment has been given to him only for compliance of the decision of the High Court but in fact he did not qualify to get through the R.A.S. Therefore he is not entitled to be confirmed and be given any benefit for he appointment given to him vide order dated 8.1.81.
10. [ACT] were enacted in 1954. These are the rules framed by the Governor in exercise of powers conferred on him by proviso to [SECTION] of the [ACT]. These rules regulate the recruitment to posts in, and conditions of service of persons appointed to the Rajasthan Administrative Service. The Rules have been divided into different parts. [SECTION] deals with direct recruitment by and Part v. with promotion. [SECTION] lays down for procedure for recruitment by Special Selection. [SECTION] contains provision relating to appointment, probation and confirmation. [SECTION] regulates pay and [SECTION] refers to other provisions In order to meet with the emergent need for recruitment to Rajasthan Administrative Service, the Governor made the [ACT]. These rules were promulgated on 26.9.76. [SECTION] of these rules makes provision for emergency recruitment. [SECTION] contains conditions of eligibility. [SECTION] contains procedure for recruitment. [SECTION] contains provision regarding appointment, seniority and initial pay. [SECTION] of 1976 rules provides for applicability of provisions of [ACT]' as well as [SECTION], [SECTION], [SECTION], [SECTION] and [SECTION] of '1954 Rules' can appropriately be quoted here under:
1976 Rules-
27. [ACT] etc. - Except as provided in these rules, probation, pay allowances, pension, leave and any other conditions of Service of a person appointed to the Service by Emergency Recruitment under these Rules shall be regulated by the provisions of the [ACT], as amended from time to time.
1954 Rules-
34. Period of Probation - Every person appointed against a substantive vacancy in the Service by direct recruitment shall be placed on probation for period of two years and those appointed by promotion (special selection) to any post against such a vacancy shall be on probation for a period of one year:
Provided that (i) such of them as have, previous to their appointment by promotion (special selection) or by direct recruitment against a substantive vacancy, officiated temporarily on the post which is followed by regular selection may be permitted by the appointing authority to count such officiating or temporary Service towards the period of probation. This shall, however, not amount to involve super session of any senior person or disturb the order of their preference in respective quota or reservation in recruitment;
(ii) any period after such appointment during which a person has been on deputation on a corresponding or higher post shall count towards the period of probation.
(2) During the period of probation specified is [SECTION] each probationer may be required to pass such Departmental Examination and to under no such training as the Government may, for time to time, specify.
[SECTION]-(a) Notwithstanding anything contained in the rule, it no order of confirmation is issued by the appointing authority within a period of six months, an employee appointed on temporary or officiating basis who has, after the date of his regular recruitment by either method of recruitment completed a period of two years' service, or less in the case of those appointed by promotion where the period of probation prescribed is less, on the post or a higher post under the same appointing authority or would have so worked but for his deputation or training, shall on the occurrence of permanent vacancies be entitled to be treated as confirmed if the same conditions as are prescribed under the Rules for the confirmation of a probationer are fulfilled subject to the quota prescribed under the Rules and in accordance with his seniority:
Provided that if the employee has failed to give satisfaction or has not fulfilled any of the conditions prescribed for confirmation, such as passing of Departmental Examination, training or promotion cadre course etc. the aforesaid period may be extended as prescribed for probation or under the [ACT] and any other Rules, or by one year, whichever is longer. If the employee still fails to fulfil the prescribed from such post in the same manner as a probationer or reverted to his substantive or lower post, if any, to which he may be entitled:
Provided further that no person shall be debarred from confirmation after the said period of Service if no reasons to the contrary about the satisfactory performance of his work are communicated to him within the said period.
(b) The reasons for not confirming an employee referred to in the second proviso to Clause (a) shall in the case of a non-gazetted employee, be also immediately recorded by the appointing authority in his Service Book and C.R. File and in the case of Gazetted Officer communicated to the Accountant General, Rajasthan and in his Confidential Report File. A written acknowledgment shall be kept on record in all these cases.
[SECTION]. Unsatisfactory progress during probation - 7(1) If it appears to the appointing authority, at any time, during or at the end of the period of probation, that a member of the Service has not made sufficient use of his opportunities or that he has failed to give satisfaction the appointing authority may revert him to the post held substantively by him immediately preceding his appointment provided he holds a lien thereon or in other cases may discharge or terminate him service:
Provided that the appointing authority may, if it so thinks fit in any case or class of cases, extend the period of probation of any member of Service by a specified period not exceeding two years in case of person appointed to a post in the Service by direct recruitment and one year in the case of person appointed by promotion special to such post:
Provided further that the appointing authority may, if it so thinks fit in case of the persons belong to Schedule Castes or Scheduled Tribes, as the case may be, extend the period of probation by a period not exceeding one year at a time and a total extension not exceeding three years.
(2) Notwithstanding anything contained in the above proviso, during the period of probation, if a probationer is placed under suspension, or disciplinary proceedings are contemplated or started against him, the period of his probation may be extended till such period the appointing authority thinks fit in the circumstances.
(3) A probationer reverted or discharged form service during or at the end of the probation under [SECTION] shall not be entitled to any compensation.
[SECTION]. Confirmation - A probationer shall be confirmed in his appointment at the end of his period of probation, if-
(a) he has passed the prescribed Departmental Examinations, if any, completely,
(b) he has passed a Departmental Test of proficiency in Hindi and Provided that the R.A.S. (Probationers), who have already passed Matriculation, Intermediate or B.A. Examination with Hindi may be exempted from appearing in the proficiency test in Hindi, as prescribed under [SECTION], by the Principal, Officers Training School, Jaipur.
(c) Govt. are satisfied that his integrity is unquestionable and that he is otherwise fit for confirmation.
[SECTION] Notwithstanding anything contained in [SECTION], a probationer shall be confirmed in his appointment at the end of his period of probation even if the prescribed Departmental Examination/Examination/Training/Proficiency Text in Hindi, if any, are not held during the period of probation laid down in the rules provide-
(i) he is otherwise fit for confirmation, and the
(ii) period of probation expires on or before the date of publication of this Amendment in the Rajasthan Rajpatra.
11. A perusal of the above quoted rules make it clear that probation pay, allowances, pension, leave & other conditions of Service of a person appointed to a service by Emergency Recruitment under 1976 Rules are regulated by the provisions of 1954 Rules as amended from time to time. [SECTION] read with [SECTION] and [SECTION] provide for initial period of probation deal with the situation where the probationer has not given satisfaction during the period of probation, extention of the period of probation and confirmation. It is clear from a perusal of the rules that the maximum period upto which probation of a person appointed by direct recruitment can be extended is four years. Thus, there is an our limit upto which the period of probation of a direct recruit can be extended. Law does not authorises extention for the period of probation beyond a period of four years. The only exception is the one contained in [SECTION]. That deals with the cases where probationer is placed under suspension, or disciplinary proceedings are contemplated or started against him. Only in that eventuality the period of probation can be extended to such period as the appointing authority thinks fit in the circumstances of the case, When the maximum period of probation has been prescribed by the Rules, it is permissible to treat a person as continuing on probation after the expiry of the maximum period of probation? The answer of this question has to be in negative. Where ever maximum period of probation is prescribed either by the statutory rules governing the conditions of Service or by administrative orders or where the conditions of the contract of employment between a public authority and its employee contain a clause prescribing maximum period of probation, after expiry of that period, the employee has to be treated as confirmed automatically by efflux of time. The employer cannot rely on any implied power of continuing a person on implied power is negatived by the specific provisions of law or the term contract of service. The power is negatived by the specific provisions of law or the term contract of service. The powers of the employer are regulated by the statutory provisions of the contract of the employees. Therefore, the logical consequence of expiry of maximum period of probation is that the employee stands automatically confirmed or is deemed to have been confirmed. A person who is appointed on probation is so appointed against the substantive vacancy. The very idea of placing him on probation is to test his suitability for sometime to find out as to whether he will ultimately prove an efficent and worthy employee and whether he will be able to discharge the duties of the post against which is appointed. He is, thus, subjected to a sort of test or trial for sometime. This test or trial cannot be for an indefinite period. Precisely with this object the maximum period of probation has been prescribed. Rule making authority was very much alive to the situation wherein a large number of cases the competent authoruties were not taking action for passing order of confirmation of the employee even after the expiry of a particular time limit after regular appointment. In order to eliminate harassment to the employee on the one hand and avoid complications in the matter of seniority and promotions in future, [SECTION] was inserted. Similar rule has been inserted in almost all the service rules. By this rule clause relating to deemed confirmation has been added in cases of the employees who are appointed after regular selection. The competent authority is required to issue necessary order with a specified time limit. According to second proviso to [SECTION], the reasons for non confirmation have also to be communicated within six months of the expiry of the period referred to in [SECTION]. [SECTION] also makes a provision for confirmation even if the prescribed Departmental Examination/Training/Proficiency Test in Hindi are not held during the period of probation. In fact, it is the statutory obligation to the employer to arrange the various tests/training within the maximum period of probation. If during the maximum period of probation the employer fails to hold training or the test or hold departmental examination, the employee who is appointed on probation cannot suffer. He acquires a local right to be treated as confirmed.
12. In the present case it is apparent that the petitioner has completed not only four years but more than ten years and six months by now. It is not the case of the respondent that he has failed to clear any test or training held during the period of probation. Thus, in my opinion there is absolutely no justification for withholding order of his confirmation and the respondent has acted in a most arbitrary manner in not passing the order of confirmation of the petitioner in Rajasthan Administrative Service.
13. The theory of automatic confirmation was propounded by their Lordships of the Supreme Court in [PRECEDENT] . The same was reiterated in [PRECEDENT] and [PRECEDENT] . In [PRECEDENT]. a learned Single Judge has also expressed similar view on the provisions contained in the [ACT]. In the decisions referred hereinabove, it has been held that in cases where no maximum period of probation is prescribed in the relevant service rules an inference of confirmation by implication cannot be drawn but in cases where is an express provision in the relevant rules providing therein a maximum period of prodbation and also fixing the maximum period upto which the period of probatio may be extended and the employee is allowed to continue in service after the expiry of the maximum period, for which the probation can be extended, it is implied that the employee is confirmed on the post on which he was on probation on the expiry of the maximum period of probation. So far as the present case is concerned, the scheme of the rules which has been referred to hereinabove clearly show that a maximum period of probation has been prescribed and no legal authority vests in the respondent to extend the period of probation beyound a period of four years except in the cases where disciplinary proceedings are contemplated by [SECTION] of 1954 Rules. The reason which has been assigned by the respondent for not confirming the petitioner now requires some close scouting. The respondent has come out with the case that the petitioner was appointed to Rajasthan Administrative Service. This appointment has been given to him under the orders of the Court but so far as the government is concerned according to it he has not qualified to be appointed to the Rajasthan Administrative Service and he is, therefore not entitiled to any benefit as a member of the R.A.S. The assertions made is the reply are clearly to the various orders passed by the respondent itself. I am constrained to observe that the reply filed on behalf of the respondent is a clear illustration of casual and callous attitude adopted by the Department of Personnel in the case of the petitioner. It is amazing that in the face of the order of appointment, the order by which the petitioner was sent for training, the orders by which sanction for payment of salary to him had been issued and the order by which he has been posted as a member of Rajasthan Administrative Service, the respondent has the audacity to state in its reply that he is not eligible or was not qualified to be appointed to the R.A.S. It is too late in the day for the respondent to make an attempt to assert that the petitioner was not qualified to be appointed to Rajasthan Administrative Service.
14. I am of the considered opinion that the reason given by the respondent for withholding confirmation of the petitioner is in fact no reason in the eye of law. The petitioner has been deprived of his confirmation for last number of years on absolutely flimsy and untenable ground. Therefore since the petitioner has completed maximum period of probation, he stands automatically confirmed in the Rajasthan Administrative Service. Logical consequence of the deemed confirmation of the petitioner is that he is entitled to be placed in the seniority list of the officers of R.A.S. ordinary scale. He is entitled to be considered for pormotion to senior scale and selection scale with retrospective effect, i.e. a date when persons junior to him were promoted and he is also entitled to be given actual promotion with effect from the date of promotion of his juniors, once he is found suitable by the Departmental Promotion Committee. On the basis of his retrospective promotion, the petitioner is also entitled to be given the benefit of pay fixation as well as increments and other allowances in the senior scale as well as the selection scale.
The petitioner has been deprived of fixation in the revised pay scales which have been introduced w.e.f. 1.9.86 and thereafter. Once it has been found that the reasons of then by the respondent for not creating the petitioner as a member of R.A.S. is untenalbe, the petitioner has to be given all the benefits of pay fixation, annual grade increments etc. The petitioner who is very much a member of Rajasthan Administrative Service has been subjected to hostile discrimination by the respondent. He has been deprived of the benefits of seniority, promotion, pay fixation, increments etc, although similarly situated persons who were recruited to R.A.S. in the year 1977 have been given the benefits of confirmation, seniority, promotion, pay fixation.
15. The Writ Petition is, therefore allowed with costs. It is declared that the petitioner stands confirmed in Rajasthan Administrative Service (Ordinary Scale) after the exprity of the period of probation. It is futher declared that he is entitled to be placed is the seniority list on the basis of his recruitment to R.A.S. in accordance with the provisions of [ACT] He is also entitled to be considered for promotion to the senior scale as well as to the selection scale of R.A.S. with effect form a date his juniors have been considered. In the event of his being found suitable for promotion he is entitled to be given retrospective promotion. The petitioner is entitled to be given all consequential benefits of fixation, grade increments and revision of pay-scales along with arrears to which he is found entitled as a result of revised pay fixation. The petitioner being a handicapped person has been harassed for over a decade and the has been denied various service benefits without any reason whats ever. Moreover, the respondent has taken the pleas which are contrary to the record of the government. The unjust and unreasonable attitude of the Department of Personnel is evident from the fact that despite several representations made by the petitioner between 1981 to 1990 and even after the direction of the Office of Hon'ble Chief Minister to decide his case the authorities of the Department of Personnel sat tight over the matter for almost a decade. The petitioner was denied posting for a period of over six years without any reason or rhyme. He has been denied confirmation, seniority, provision, pay fixation etc., for all these years. It is, therefore a fit case in which costs should be imposed on the respondent. Accordingly, the respondent is directed to pay a cost of Rs. 5,000/- to the petitioner. The respondent is directed to pass necessary order and give consequential benefits to the petitioner with a period of four months from the date of presentation of copy to this order.
16. Before parting with the case, I would like to observe that the total apathy shown to the case of the petitioner, poorly reflects on the functioning of the Department of Personnel. Under the Rules of business, the Department of Personnel has been given predominent role in the matters relating to services is the State and if that very Department fails to act in accordance with the Rules for more than a decade it can only be a matter of imagination as to how it would able to guide other departmental authorities in a proper prospective. It is not possible to comprehend that in the face of Annexures 1 to 19, the respondent can raise a plea that the petitioner is not qualified to be appointed to R.A.S. Can a government ask proof of eligibility of an employee for appointment in the service after more than a decade of the issuance of the appointment order by the government itself? The answer has to be in negative. The respondent had raised the plea of ineligibility of the petitioner before the Division Bench in [CASE NUMBER], but the Division Bench refused to even consider this plea of the respondent. No. appeal was preferred before the Hon'ble Supreme Court against the order of the Division Bench. That order has therefore, become final. It is highly in appropriate and undesirable that the respondent should have at all raised the plea of ineligibility of the petitioner in this Writ Petition after it was unsuccessful in raising this plea before the Division Bench. Apparently, the departmental authorities could not possibly digest the fact that a physically handicapped person had approached the Court of Law for indication of his rights and the Court had made certain observations reminding the government and its functionaries of their obligation to act in accordance with the provisions of the [ACT]. Else there could be no explanation for keeping the petitioner under awaiting posting orders for over six years and denial of benefits to him of confirmation, seniority, pay fixation and promotion. So much so that a direction given by the Office of Hon'ble Chief Minister was also ignored. Whether the Department of Personnel can ignore the directives issued by the Office of the Chief Minister himself, is a matter to be considered by the government. People's faith in the administration will be seriously shaken if the departmental authourities in different departments start ignoring the directions of no less than the Office of the Chief Minister of the State. It appears that while on the one hand the government formulates the policies to achieve the constitutional goals set out in [SECTION] in the form of Directive Principles of State Policies and an attempt is made to bridge the gaps between the haves and have nots, those who are charged with the duty of giving effect to the policies of the government act in such a manner which results in nothing but frustration of such policies of the government. The insensitiveness with which the petitioner's case has been dealt with for last more than a decade is writ large on the face of the actions of the respondent. After issuing the order of appointment on 8.1.81, asking the petitioner to clear the foundational course and the training, there was a total silence for more than six years regarding the posting of the petitioner. Year after year, ceremony of passing the order for payment of salary to the petitioner in R.A.S. (ordinary scale)was performed. This was done as if in reality the petitioner did not exist in service. The unwillingness on the part of the department to give posting to the petitioner for over six years has not only caused immence injury to the petitioner but has caused serious loss to the public exchequer. The petitioner suffered because he did not get an opportunity to work, did not get service benefits in the form of confirmation, seniourity, pay fixation and promotion. The public has to pay tax in argument the revenue of the State, a large portion of which is utilized for payment of salary to the public servants belonging to different cadres. The salaries are paid to the public servants in consideration of the service which they rendered or are atleast expected to render to the public. If public servants are paid salaries without work, certainly it is the public who suffers and in this case the public interest has suffered immencely solely on account of unjust and unreasonable attitude of the authorities of Department of Personnel in not issuing the order of posting of the petitioner for more than six years. The petitioner's case has seen the light of day because he has mustered the courage to again knock the doors of the Courts. There might be hundreds of such cases in different departments of the government where on account of the carelessness, negligence or callous attitude of one or the other departmental authority, the employees on the one hand and the public on the other hand must have suffered or may suffer in future. Efficiency of public service is indeed the call of the day and it is seriously impaired and is affected if the public servants do not have the sense of security and satisfaction in respect of their service conditions. Multifold increase in the volume of litigation in service matters before the High Court and various Tribunals is certainly an indicator of the fact that all is not will in the administration of services. May be that some cases filed by the civil servants in the Courts and Tribunals are without basis but there can be no escape from the conclusion that but for the injustices perpetuated in large number of higher authorities so many cases would not have come to the Courts of Law. Instead of rendering service to the public, the public servants remain entangled in solving their service disputes only. Therefore the government must examine this aspect and take remedial steps so that public servants can have sufficient time to render service to public. So far as this case is concerned the respondent is directed to hold an enquiry against the defaulting officers and fix their responsibility so that in further such cases are not repeated.
17. A word more, As already noted hereinabove, the respondent has taken a stain in its reply which is not only unfair but is wholly uncalled for in the face of the orders Annexures 1 to 19. The learned Deputy Government Advocate, who has drafted the reply or has finalised it, has apparently not even cared to go through the Writ Petition and the documents annexed with it before drafting or finalising the reply. If he been a bit careful, it could not have been possible for the respondent to rack up the plea that the petitioner is not eligible to be appointed to R.A.S. A government counsel, as any other counsel, owe a duty not only to his client but also to the government. The government counsel is expected to act with greater responsibility. He is under obligation to present the facts of a case in a correct perspective and in an up-right manner. Raising of wholly untenable pleas, as has been done in the present case, could have been avoided with a bit care on the part of the learned Deputy Government Advocate.