Decided on August 21,1984

S O Kohali Respondents


M.C.JAIN,J. - (1.)THIS Special Appeal arises from the order of the learned Single Judge dated March 28, 1984 whereby the respondent's writ petition was allowed and the order of termination of his service was set aside. It was further directed that he will be entitled to all the benefits etc. as if his service has never been terminated.
(2.)WE may notice the brief facts relevant for the purpose of this appeal. The respondent was appointed as Excise Inrpector Gr. II on April 28, 1960 on temporary basis in accordance with the Rajasthan Excise Sub -ordinate Service Rules, 1960. He was confirmed on the said post in the year 1969 but subsequently, the confirmation order was withdrawn on November 13, 1973. Thereafter, the Rajasthan Subordinate Service (General Branch) Rules, 1974 came into force with, effect from May 30, 1974 and in accordance with the Rule 5(iii) a, Screening Committee was constituted for adjudging the suitability of the persons appointed on Ad hoc/temporary basis before January 1, 1972. Some departmental enquiry was pending against the respondent which was finalised and thereafter the respondent's services were terminated with effect from March 31, 1976. Aggrieved against the order of the termination, the petitioner filed the writ petition on number of grounds. The learned Single Judge set aside the order of his termination on the ground that the respondent was not afforded any opportunity of hearing before adjudging his suitability. Reliance was placed by the learned Single Julge on a decision of this Court in Yaswant Kumar v. State of Rajasthan 1980 WLN (UC) 114.
It may be stated that the State went in appeal against the decision of the learned Single Judge in Yaswant Kumar's case (supra). The State appeal was dismissed in limine on September 8. 1980 vide D.B. Civil Special Appeal No. 211 of 1980 State v. Yaswant Kumar Somani. There was another case of Narain Swroop Mathur v. State of Rajasthan S.B. Civil Writ Petition. No. 3085 of 1974 dismissed on October 28, 1974. However, the petitioner preferred an appeal and the Division Bench of this Court allowed the appeal on March 21, 1983 in D.B. Civil Special Anneal No. 750 of 1974 Narain Swiroop Maihur v. State and Anr. Jaipur Bench. The Division Bench hearing the appeal of Narain Swsoop Mathur, placed reliance on the decision of Yaswant Kumar's case (supra) and it was noticed by the Division Bench that Yaswant Kumar's decision has been upheld by the Division Bench of this Court. It is also pertinent to observe that in Yatswant Kumar's case (supra), reliance has been placed by the learned Single Judge on the decision of the Supreme Court in Mohammad Rashid Ahmed v. State of U.P. : (1979)ILLJ146SC . After extracting the relevant portion from the judgment of the Supreme Court, the learned Single Judge observed that from the decision of the Supreme Court in Mohd. Rashid Ahmed v. State of U.P. (supra) it follows that the determination of suitability of a Government Servant for the purpose of absorption in service implies a duty to act in a judicial manner and for a proper and effective discharge of the said duty, it is necessary that the authority which has been entrusted with the said duty must afford to the employee concerned PI, opportunity to appear before it, so that it may clear off the regard to any adverse material existing against him in the service record.

(3.)ABOVE observations have been made after taking into consideration from the law laid down in Mohd. Rashid Ahmed's case (supra) Thus, the principal controversy, which arises for determination is as to whether the respondent should have been given an opportunity of hearing by the Screening Committee before being adjudged unsuitable So far as this Court is concerned, the point in our opinion ceases to be res integra, as the two Division Benches of this Court has consistently taken the view that an opportunity of hearing should be afforded by the Screening Committee before a Government Servant is adjudged and found unsuitable Both the cases were the cases arising under the aforesaid rules relating to the Excise Inspector Gr. II. The case in hand is also a case of obsorption in service under 1974 Rules p be screened by the same Screening Committee under Rule 6(111).

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