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

2. The respondent in C. A. 1436 of 967 was appointed in 1952 a clerk in the office of the Executive Engineer, Jaipur, on abasis. In 1955 he was appointed a Lower Division Clerk in the same office temporarily for a period of 6 months but was continued as such even after the expiry of that period. The respondent in C. A. 1437 of 1967 was also appointed onbasis in 1958 and was in 1960 appointed a temporary Lower Division Clerk but was continued as such even after the said period. The services of both the respondents were terminated under Rule 23A (1) of the said Rules after giving them the requisite one months notice on the ground that they failed to pass the examination required by Rule 7, Proviso 2, of the Rajasthan Subordinate Offices Ministerial Staff Rules, 1957 and the order dated March 5, 1964 made by the Government in exercise of the power under the said Rule 7, proviso 2 although two chances to appear at the said examination were given to them. The respondents thereupon filed writ petitions in the High Court of Rajasthan challenging the right of the Government to terminate their services on the ground that both of them had the necessary academic qualifications required under the recruitment rules, that they had put in service of more than 3 years as temporary clerks and that therefore their services could only be terminated under Rule 23A (2) in the same manner as the services of a permanent Government servant could be terminated, in other words, by following the procedure laid down in Article 311 (2) of the Constitution.3. The High Court, on interpretation of Rule 23A of the Rajasthan Service Rules and Rule 7, Proviso 2, of the Ministerial Staff Rules, held (a) that the objects of the two rules were distinct, (b) that Rule 7, proviso 2, did not provide for the consequences of failure of a temporary Government servant to pass the requisite examination, (c) that it would not be proper to induct into Rule 23A the conditions in and the consequences of Rule 7, proviso 2 and (d) that the term qualifications in Rule 23A (2) meant only the academic qualifications and not any other qualification flowing from Rule 7 of the Ministerial Staff Rules. In this view the High Court held that on account of the respondents having had the academic qualifications as envisaged by Rule 23A (2) and having served as temporary clerks for over 3 years, Clause 2 and not Clause 1 of Rule 23A applied, and therefore, their services could not be terminated except in the manner of a Government servant in permanent service. On this reasoning, the High Court quashed the orders of termination of their services. The result of this order meant that all temporary servants who have put in service for over 3 years would be placed in a position equivalent to that of permanent servants and their services could only be terminated in the same manner as those of the permanent servants, i.e., in accordance with the procedure laid down in Article 311 (2).

Court's reasoning:
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.