M.C.JAIN, J. - (1.) THIS writ petition has been filed by the State of Rajasthan and the three officers of the State challenging the validity of the Rajasthan Civil Services Appellate Tribunal, Jaipur, dated January 9, 1979, whereby the Tribunal set aside the order of compulsory retirement dated March 30, 1977, of respondent No. 1 and further directed the petitioners to take over the charge of the valuable jewellery itemwise in the presence of the Special Committee formed for that purpose without avoidable delay.
(2.) RESPONDENT No. 1 Bhanwarlal Shreemali was an employee of the erstwhile Bikaner State and on formation of Rajasthan his services were taken over by the Rajasthan Government. He was selected by the Rajasthan Public Service Commission as an Assistant Inspector, Devasthan in 1956 and was promoted in 1957 as Inspector Grade I. In 1972 he was promoted as Assistant Commissioner, Devasthan, Jodhpur and Bikaner Division and was thereafter selected in the cadre of the R. A.S. and continued to serve in that capacity and was granted regular grade increments. According to him he served the State to the best of his ability, honesty and in his service career, no adverse entry has been ever communicated. His service record has been excellent and during his tenure the revenue was also increased considerably. There were fifteen big residential houses and eighty four middle class houses belonging to the Devasthan Department in the city of Jodhpur. These houses were in occupation of certain very important persons and they were paying much less rents. He mentioned their names and designations in para 4 of his appeal filed by him against the order of his compulsory retirement. His case is that he made several efforts for their eviction and for increase of rents, but he could not succeed due to interventions from the high officials. Notices of eviction, were served on them. However, he could not achieve succees either in eviction of the houses or in increase of rent. Being prejudiced they some how succeeded and he was made to compulsorly retired during the period of emergency on August 22, 1975. He submitted his representation explaining the entire circumstances and ultimately after consideration of his representation the Government was pleased to withdraw the order of compulsory retirement on October 30, 1975, but again all of a sudden he received an order retiring him compulsorily dt. March 30, 1977. This order was served on him on March 31, 1977, accompanied with a Bank Draft of Rs 3,090/ - in respect of three months' pay and allowances. The respondent No. 1 then filed an appeal before the said Tribunal. His case before the Rajasthan Civil Services Appellate Tribunal Jaipur (hereinafter referred to as 'the Tribunal') was that he had the charge of the valuable ornaments, diamonds, Rupees etc. the total cost of which was several crores of rupees. He was asked to hand over the charge of these valuables to the Assistant Commissioner, Devasthan, Headquarters Udaipur, in the presence of the Special Committee and some charge was taken from him in piecemeal. He was writing persistently for making necessary arrangements to take over the entire charge of each individual item so that no liability can be fastened on him subsequently, but it was not done. According to him once physical verification was done by one Shri Balender Sharma, a rented officer of the State, but he left the charge and keys with the respondent No. 1 in 1972 The valuable property remained in his custody and change since 1956. He stated that he still holds the keys of the valuables as d charge of properties amounting to rupees five crores. He stated that on 5 -1 -1977 an order was issued by the Commissioner Devasthan authorising the Assistant Commissioner Devasthan for bringing out the boxes and verity the same. The Assistant Commissioner Devasthan (Head -quarters) directed him to hand over the keys on January 15, 1977. The respondent No. 1, however, resisted it and submitted that he is prepared to hand over the charge, but not the keys. The Commissioner Devasthan thereafter withdrew his earlier order and thus itemwise charge was not taken of the remaining valuables costing about rupees five crores. He challenged his order of compulsory retirement on the grounds stated in paras 11 to 20 of his memo of appeal. According to him the order of compulsory retirement was arbitrary, malafide and was actuated by ill will and malice and was not in public interest It was a clear abuse of authority, having regard to his unblemished record of thirty one years' of service. The present petitioners submitted parawise replies to the grounds of appeal. It was stated in the reply that the respondent No. 1 has been a mediocre and average worker with a very little educational background. Tie did not take appropriate steps to revise and increase the rents of the residential and commercial occupancies in accordance with the Government's instructions. It was stated that respondent No. 1 had charge of some valuables and ornaments of some temples of his jurisdiction at Bikaner ever since he was the Inspector at Bikaner and had not passed it on to his successor. He did not hold charge of the contents of nine boxes, which were deposited in. Treasury by Mr. Balendra Sharma in 1972 only the keys of the se boxes were kept with him, as they were to keep with some one or the other. After the with -drawal of order of compulsory retirement on October 30, 1975, he was required to make over the charge of all valuables and ornaments with, him to the Assistant Commissioner (Head quarters), who tried his best to relieve him of the charge as early as possible, but he employed delaying tactics to gain time. According to the petitioners, the order of with drwal was only for the purpose of facilitating the proper charge of the valuables of which the respondent No. 1 was having the charge of the ornaments and valubles kept in safe custody in the double lock room in the temple of Shri Laxmi Nathji at Bikaner could only be passed on December 29, 1975. He fun stalled further action regarding handing over the change of the ornaments aid valuables kept in seated boxes in the strong room of the Treasury at Bikaner for safe custody by pressing for the formation of the Special Committee to supervise the process of handing taking over. Even after the formation of the Special Committee, process of delaying tactics were employed whereby the charge of eight boxes containing 867 items could be completed only by September 30, 1976, As regards the nine boxes deposited in Bikaner Tresuary in January 1972 it was stated that the Treasury Officer, Bikaner, did not accept the requisition dated September 14, 1976, of respondent No. 1 to take one of these bases on the ground that they were not deposited by him or his predecessor in office. The property was not in his custody to 1972 hence his requisition was not accepted by the Treausury Officer. It was, however, admitted by the present petitioners that the Commissioner Devasthan issued a letter on January 5, 1977, authorizing the Assistant Commissioner (Head -quarters) to conduct physical verification of the contents of sealed boxes lying in safe custody in Bikaner Treasury and deposited by the Officer on Special Duty in 1972 in accordance with the provisions of rule 77 of the Treasury Macula, but the operation of that order was stayed for administrative reasons on January 24, 1977. The Assistant Commissioner (Head quarters) had in compliance with the order of the Commissioner dated January 5, 1977 issued a letter to respondent No. 1 on January 15, 1977, requesting him to make necessary arrangements and also to make available the keys which were said to have been passed on to him by the Officer on Special Duty as a representative ot the Assistani Commissioner, Bikaner, while he was working as Inspector. The State Government denied that respondent Nil was holding charge of the property lying in the nine boxes deposited in the Treasury, Bikaner. The present petitioners, however, denied the ground on which the order of compulsory retirement was challenged, and it was stated that the respondent No. 1's service record and his inefficiency warranted such an action and the order was issued in public interest and without malic. It was stated that the subjective assessment of the Government that a Government servant is not fit to be retain in Government service any mire in exercise of the power vested with the Government under Rule 244 (2) of the Rajasthan Service rules, cannot be assailed.
(3.) THE Tribunal heard the respondent No. 1 in person and the standing counsel respresenting the State and set aside the order of compulsory retirement. From the impugned order it appears that during the pendency of the proceedings before the Tribunal an offer was made that the respondent No. 1 may either be required to hand -over the charge itemwise or a certificate may be issued to him that he will not be held responsible for any shortage of valuables. At one stage, it appears that the Government was prepared to issue the required certificate, but ultimately the Government was not prepared to issue any such certificate. Respondent No. 1 continued to insist for taking item wise charge. On certificate being issued, the necessity of taking itemwise charge would not have arisen. The respondent No. 1 attained the age of superannuation during the pendency of the appeal. Thus, despite attaining the age of superannuation, the respondent No. 1 continued to hold the charge of keys containing the valuables held by him. As per observations of the Tribunal, the Government did not choose to take over the charge in manner in which it was handed over to respondent No. 1 and it insisted upon the keys being handed over to its respresentative. From the order of the Tribunal it appears that the appeal was not resisted by justifying the action of the Government and the Tribunal proceeded to set aside the order of the compulsory retirement on the ground that when the earlier order of compulsory retirment was withdrawn on October 30,1975, for the purpose of taking over charge of the valuables and jewellery from respondent No. 1 and that position remained unchanged till the fresh order of the compulsory retirement dated March 30, 1977. The submission of respondent No. 1 found favour with the Tribunal that the circumstances attending the earlier order of withdrawal have not changed and when the earlier compulsory retirement order was not in public interest, the subsequent order of compulsory retirement is not in public interest. This position emerges from the penultimate para of the Tribunal In these circumstances aggrieved by the order of the Tribunal the present writ petition has been filed.;