VERMA, J. - (1.) THIS D. B. Special Appeal is directed against the judgment of a learned single Judge of this Court whereby the writ petition filed by the respondent was partly allowed and he was held qualified and eligible to be promoted to the post of L. D. C. according to r, 7 (3) of the Rajasthan Subordinate Officers Ministerial Staff Rules, 1957 and the appellants were directed to consider his case for promotion to the post of L. D. C. In his writ petition, the respondent had also claimed that work of L. D. C. was being taken from him and hence he should be paid the salary of L. D. C. On this aspect of the case, the learned single Judge ruled that it was a disputed question of fact and hence he refused to go into this question. Aggrieved, the appellants have challenged the claim of the respondent to be considered for promotion to the post of L. D. C. Respondent, who Was petitioner before the learned single Judge, did not file any appeal against part disallowance of his claim but has urged that relief should be granted to him under 0. 41 Rule 33, C. P. C.
(2.) WE have heard Servashri S. M. Singhvi and S. K. Vyas for the appellants and Shri K. C. Samdaria for the respondent. The facts of the case lie in a narrow compass and may be redapitulated here briefly. Respondent Narayanlal, the writ petitioner, passed his Secondary School Examination in the year 1976. He was appointed as a Field Worker in the pay scale of Class IV servants on 26. 7. 78 by the Deputy Chief Medical and Health Officer (Maleria) Dungarpur. It was averred by the respondent that since his appointment, work of an L. D. C. was being taken from him, but the department continued to pay him the salary of a Class. IV Servant. There was a provision for promotion of class IV Servants to the post of L. D. C. Accordingly, the writ petitioner applied for promotion to the post of L. D. C. on 19. 8. 86 and again on 13. 4. 88 but the department refused to promote him as L. D. C. on the specious ground that a Field Worker was not eligible to be so promoted, even though he was entitled to be so promoted. He, therefore, prayed for a direction that he may be considered for promotion to the post of L. D. C. He also prayed that the department may be directed to pay him the salary of the post of L. D. C. since work of L. D. C. was being taken from him. A return was filed by the appellants before the learned Single Judge wherein they averred that the writ petitioner had been appointed on the post of a Field Worker. A Field Worker was not a Class IV Servant. His channel of promotion was to the post of Senior Field Worker. It was denied that work of L. D. C. was being taken from him at all. Upon such premises, it was urged that the writ petition deserved to be dismissed. Learned single Judge hearing the writ petition was of the view that even a Field Worker was a class IV servant as per classification of posts given in Rajasthan Civil Services (Classification-Control and Appeal) Rules, 1958, notwithstanding the fact that the post of a Field Worker was not specifically mentioned in the schedule enumerating class IV posts. It was, therefore, held that when the writ petitioner possessed requisite qualification for promotion to the post of L. D. C. , he ought to have been considered for such promotion. On the second aspect viz work of L. D. C. was being taken from the writ petitioner and hence he was entitled to be paid salary of L. D. C. , the learned Judge was of the view that it was a disputed question of fact and hence the writ petitioner should raise an industrial dispute. Upon such view of the matter, the writ petition was partly allowed and partly rejected as indicated above. In the present appeal, learned advocates for the State contended that for purposes of promotion, a Field Worker has a specific channel and the channel of promotion to the post of L. D. C. is not available to him, because he is not a Class IV employee governed by the Rajasthan Class IV Service (Recruitment and Other Conditions) Rules, 1963. It is submitted that only such Class IV employees are entitled to be promoted as LD. Cs. who are governed by the said Rules. It is urged that even according to Rajasthan Civil Services (Classification, Control and Appeal) Rules, a Field Worker is not a Class IV employee and as such the writ petitioner is not eligible to be treated as a Class IV employee. On the other hand, learned counsel for the respondent submits that the respondent was rightly held to be a Class IV employee. We have bestowed our careful consideration to the rival contentions. Right of promotion to the post of L. D. C. in favour of a class IV employee is conferred by Rule 7 (3), of the Raj. Subordinate Offices Ministerial Staff Rules, 1957 relevant portion of which reads as follows :- " (3) that 12 1/2 % of the total number of vacancies of the Lower Division Clerks determined under Rule 9 of these Rules by the Appointing Authority concerned shall be reserved for being filled in by promotion from amongst the regularly appointed Class IV employees governed by the Rajasthan Class IV Services (Recruitment and Other Service Conditions) Rules, 1963 who have put in five years service," A bare reading of this provision goes to show that right of promotion to the post of L. D. C. has not been conferred on all Class IV employees of the government but has been restricted to regularly appointed Class IV employees governed by the Rajasthan Class IV Services (Recruitment and Other Service Conditions) Rules, 1963. Learned counsel for the respondent-writ petitioner has been unable to refute this contention but his submission is that the writ petitioner fulfills the character of a regularly appointed Class IV employee governed by the said Rules. Let us examine if this contention is correct. There is no dispute that the respondent writ petitioner is a regularly appointed Class IV employee governed by the said Rules. Let us examine if this contention is correct. There is no dispute that the respondent writ-petitioner is a regularly appointed employee. However, the question is if he can be said to be a Class IV employee within the meaning of the aforesaid Rules.
(3.) RAJASTHAN Class IV Services (Recruitment & Other Service Conditions) Rules, 1963, (hereinafter called the Class IV Recruitment Rules), are statutory rules framed by the Governor of RAJASTHAN under Article 309 of the Constitution of India. Rule 1 (d) of these rules defines 'members of service' to mean a person appointed in substantive capacity to a post in the service under the provisions of these rules or the rules or orders superseded by these rules and includes a person placed on probation. Rule 5 of these rules lays down the constitution of service. It reads : - "constitution of Service. The Service shall consist of : - (a) persons holding substantively the posts specified in Schedule I;. (b) persons recruited to the service before the commencement of these rules; and (c) persons recruited to the service in accordance with the provision of these rules. " Admittedly, the respondent writ-petitioner does not hold a post specified in Schedule I of these rules, hence clause (a) of Rule 5 does not apply to him. This Schedule contains the following entries : SCHEDULE I S. No. Name of Post 1 2. 1. Daftari 2. Jamadar 3. Record or Book Lifter/ Binder 4. (1) Peon (2) Cycle-Peon (3) Orderly (4) Waterman (5) Chowkidar (6) Farrash (7) Equivalent posts sanctioned for office work in lowest scale. " 7a. Learned counsel for the respondent-writ petitioners submitted that the case of the respondent would be squarely covered by Entry 4 (7) but it is doubtful if a Field Worker can be said to hold a post sanctioned for office work. Explanation (1) appended to this Schedule clinches the issue at any rate. This explanation reads as follows : - "explanation : - (i) "equivalent posts sanctioned for office work in the lowest scale" will include posts sanctioned in the scale of pay identical to the scale of pay sanctioned for the post of Peon and will not include posts sanctioned for field job, or factories or workshop or for which a separate line of promotion is provided e. g. Helpers, Mates, Insect Collectors, Lab. Boy etc. " The underlined portion makes the position explicit and beyond the pale of doubt. In light of this explanation, it would be idle to contend that post of Field Worker to which the writ petitioner was appointed should be treated as a post of Class IV employee within the meaning of Rule 7 (3) of the RAJASTHAN Subordinate Officers Ministerial Staff Rules, 1957 which explicity applies the rule to only such Class IV employees governed by the RAJASTHAN Class IV Recruitment and other Service Conditions Rules, 1963 and who have put in five years service. Faced with this situation learned counsel for the respondent-writ petitioners urged that case of the respondent would fall under clauses (b) or (c) of this rule. We fail to see how a person appointed as a Field Worker in 1978 could be covered by clause (b) of the rules, which had already come into force in 1963. Clause (c) also could not apply to the case of the petitioner because he cannot be said to have been appointed under the provisions of Class IV Recruitment Rules, which by virtue of Rule 4 (1) of the said Rules would apply only to the nature of posts included in the service, as specified in col\umn 2 of the Schedule, relevant portion of which has been reproduced above. When it is so, the respondent writ petitioner cannot legitimately claim that he is a Class IV employee, regularly appointed under the said recruitment Rules. When it is so, Rule 7 (3) under which the Respondent -writ petitioner claims a right of promotion, would not be attracted to his case. Now, we may examine the validity of the opinion expressed by the learned single Judge. Learned single Judge has relied upon Rule 10 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 for arriving at the conclusion that the respondent-writ petitioner was a Class IV employee. This Rule reads as follows : - "10. The Class IV Service shall consist of :- (a) Members of the Service included in Schedule IV. (b) Persons who hold in a substantive capacity, posts included in Schedule IV and not borne on the cadre of any other Service. (c) Persons appointed on an ad-hoc basis pending final select in according to the rules of Interation Department, on posts borne on the cadres of the Services referred to in clause (a) or on posts referred to in clause (b ). " Now, this definition would hold good only for the purposes of these rules and not for each and every Service Rules. With utmost respect, we would like to point out that attention of the learned single Judge was not drawn to the provisions of Rule 7 (3) of the Rajasthan Subordinate Offices Ministerial Staff Rules, 1963 which restricted the right of promotion to the post of L. D. C. to the regularly appointed Class IV employees governed by the Rajasthan Class IV Services (Recruitment & other Service Conditions) Rules, 1963. This rule came to exist in its present form with effect from 1. 4. 84 i. e. much before the writ petitioner applied for the post of L. D. C. The first time he claimed such a right was on 18. 9. 86, as would be evident by averment contained in para (6) of the writ petition. We are, therefore, of the categorical view that rule 10 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules does not apply to the present case. Moreover, Rule 24 of the Rajasthan Class IV Services (Recruitment and Other Service Conditions) Rules, 1963 specifically lays down as follows : - "24. Regulations of Pay, Leave, Allowances, pension etc. : - Except as provided in these rules, the pay, Allowances, pension, leave and other conditions of service of the members of the service, shall be regulated by: - (1) The Rajasthan Travelling Allowance Rules 1949, as amended upto date; (2) The Rajasthan Civil Services (Unification of Pay Scales) Rules, 1950, as amended upto date; (3) The Rajasthan Civil Services, (Rationalisation of Pay Scale) Rules, 1956, as amended up to date; (4) The Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958, as amended up to date; (5) The Rajasthan Civil Services Rules, 1951, as amended up to date; (6) The Rajasthan Civil Services (Revised Pay) Rules, 1961; and (7) Any other rules prescribing general conditions of Service made by the Appointing Authority under the proviso to Article 309 of the Constitution of India and for the time being in force. " Underline portion of this rule makes it clear that except as provided in these rules, the pay, allowances, pension, leave and other conditions of service of the members of the Service shall be regulated by the aforesaid enumerated rules. It would mean that wherever Rules in the Rajasthan Class IV Services (Recruitment & Other Service Conditions) Rules, 1963 make a specific provision, to the extent provisions of Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 and Rajasthan Service Rules, 1951 would not apply. This discussion would also dispose of the contention that definition of Class IV service, as contained in Rajasthan Service Rules, 1951 would govern the case. It is a settled principle of interpretation that when a particular statutory Rule governs a situation, then an inconsistent general rule will give way to the specific provision and the general provision would not apply. ;