Case: State of Rajasthan &amp; Another Vs. Fateh Chand &amp; Another

the Commission is available.5. Rule 12 thus lays down the minimum academic qualifications required for eligibility to apply for the post of a Lower Division Clerk, while the rules as to passing the examination held under Rule 7, as to nationality, age and physical fitness etc., are other qualifications required for the purpose of recruitment.It follows, therefore, that before a person can be recruited, he has to have not only the minimum academic qualifications required under Rule 12, but other qualifications also, namely, nationality, age and the necessity of his having to pass the examination under Rule 7 held on such terms and conditions laid down by Government under that Rule. These being the different qualifications necessary for a person to be recruited under these rules, the expression qualifications in Rule 23A (2) of the Rajasthan Service Rules has to be read in the light of the Ministerial Staff Rules, for, it is the latter, and not the former, which provides for the qualifications necessary for recruitment of, among other employees the Lower Division Clerks. The High Court, therefore, was not correct in construing the word qualifications to mean academic qualifications only.Accepting the High Courts interpretation of Rule 23A (2) would mean reading Rule 12 and not the other rules in the Ministerial Staff Rules, which apart from the minimum academic qualifications provide for other necessary qualifications before a person can be recruited. It would furthermore mean that a person having the minimum academic qualifications, without the other qualifications required for recruitment, if only because he is in temporary service for more than 3 years, would be placed underRule 23A (2) in a position equivalent to that of a permanent servant for purposes of termination of his services. Rule 23A, dealing as it does with the Governments right of termination of service, must be read along with the rules of recruitment relating to the particular post on which the person whose services are sought to be terminated in exercise of the power under that rule is serving. So read, Rule 23A (2) protects only those temporary servants who have put in service of more than 3 years, who possess the qualifications for the post and have been appointed in consultation with the Public Service Commission. The expression qualifications to the post in clause 2 of the rule, therefore, means qualifications on the satisfaction of which only the person in question could have been recruited to the post. That being so, the term qualifications in that rule must relate to the qualifications laid down in the Ministerial Staff Rules. There is, therefore, no question as the High Court believed, of inducting into Rule 23A (2) any additional condition or qualification other than those envisaged by Rule 23A (2). This was the construction canvassed by counsel who appeared before the High Court on behalf of the Government.But the High Court, it would seem, felt difficulty in accepting it because it thought that if that were accepted the result would be that there would be no cases of temporary servants getting the benefit of Rule 23A (2) as all persons temporarily appointed as Lower Division Clerks would have been made permanent once they had passed the examination prescribed under Rule 7. That reasoning also is not correct.There is no obligation on the Government to make all temporary clerks permanent once they pass the examination prescribed under R. 7. Only those would be made permanent who can be filled into the available permanent vacancies. The rest would have to wait till their turn comes. This is precisely what is provided for by Rule 25. There would, therefore, be temporary servants who, due to the exigencies of the service, cannot be made permanent though they have qualified themselves for being so made. It is this class of temporary servants who, due to no fault of theirs and who otherwise would have been made permanent, are equated with permanent servants and whose services can be terminated in the same manner as those of the permanent servants. There is, therefore, no difficulty of there being no temporary servants getting the protection of Rule 23A (2) as apprehended by the High Court.6. In pursuance of the power under Rule 7, the Government issued the order dated March 5, 1964 regarding the examination for the Lower Division Clerks appointed on a temporary basis. This became necessary as otherwise there would be temporary clerks appointed before 1957 and those appointed thereafter, the former continuing to be temporary clerks without undergoing the examination necessary under the rules and the latter having to pass the examination under R. 7 for being recruited. So far as the latter class of persons are concerned, they would not be recruited if they were to fail in the examination held under Rule 7 and Rule 19. It appears that since the former were in temporary service already, the Government gave them as a matter of indulgence two chances to pass the examination and directed that their services should be terminated only if they failed to pass even after two trials. The order was competently made as Rule 7 empowers the Government to make such an order. We do not see how any objection can be validly taken against such an order when its object clearly was to require temporary servants recruited prior to 1957 to conform to the requirements of the rules as to recruitment.7. In our view the respondents did not fall under the category of temporary servants entitled to the benefit of R. 23A (2) as they did not possess the qualifications there mentioned, i.e., of having passed the examination prescribed under Rule 7. That being so, the Government was entitled to terminate their services under and in accordance with Rule 23A (1). It is true that proviso 2 of the said Rule 7 has been amended in 1969 and the passing of the said examination has been dispensed with. But this amendment, not being retrospective, cannot unfortunately be availed of by the respondents.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]6. In pursuance of the power under Rule 7, the Government issued the order dated March 5, 1964 regarding the examination for the Lower Division Clerks appointed on a temporary basis. This became necessary as otherwise there would be temporary clerks appointed before 1957 and those appointed thereafter, the former continuing to be temporary clerks without undergoing the examination necessary under the rules and the latter having to pass the examination under R. 7 for being recruited. So far as the latter class of persons are concerned, they would not be recruited if they were to fail in the examination held under Rule 7 and Rule 19. It appears that since the former were in temporary service already, the Government gave them as a matter of indulgence two chances to pass the examination and directed that their services should be terminated only if they failed to pass even after two trials. The order was competently made as Rule 7 empowers the Government to make such an order. We do not see how any objection can be validly taken against such an order when its object clearly was to require temporary servants recruited prior to 1957 to conform to the requirements of the rules as to recruitment.7. In our view the respondents did not fall under the category of temporary servants entitled to the benefit of R. 23A (2) as they did not possess the qualifications there mentioned, i.e., of having passed the examination prescribed under Rule 7. That being so, the Government was entitled to terminate their services under and in accordance with Rule 23A (1). It is true that proviso 2 of the said Rule 7 has been amended in 1969 and the passing of the said examination has been dispensed with. But this amendment, not being retrospective, cannot unfortunately be availed of by the respondents.