SINGH, CJ. - (1.) THIS appeal is directed against the order of the learned Singh Judge dated September 17, 2002 in S. B. Civil Writ Petition No. 2920/99 whereby the writ petition was allowed and the State Government was, inter alia, directed to pass appropriate order to facilitate the re-employment of the first respondent from November 4, 1992. The facts giving rise to the appeal are as follows.
(2.) THE first respondent was posted as Reader in the Court of Judicial Magistrate, Merta, District Nagaur. On January 27, 1990 he tendered his resignation from the post of Reader on the ground that he was to contest Assembly Elections. the resignation was accepted by the District & Sessions Judge, Merta on January 29, 1990. Consequent to the acceptance of his resignation he was immediately relieved of the charge of his office. Subsequently, due to certain reasons the first respondent, who had filed his nomination paper, withdraw the same. On February 12, 1990, the first respondent submitted an application to the District Judge, Merta with the request that he may be reinstated in service as he had withdrawn his nomination papers and was not able to fight the election. In the application it was prayed that the order accepting his resignation be cancelled. By another application dated February 13, 1990 the first respondent requested the District Judge, Merta to take him back in service. He also prayed that he be treated to have continued in service without a break. By yet another letter dated March 29, 1990, the first respondent repeated his aforesaid request to the District Judge. The District Judge, Merta by his order dated May 25, 1990 rejected the request of the first respondent for being taken back in service and for cancellation of the order accepting his resignation. Not satisfied with the order of the District Judge, the first respondent filed an appeal on the administrative side of the High Court. The Appellate Authority, a learned Single Judge of this Court allowed the appeal in part and remanded the matter to the District Judge, Merta with the direction to decide whether or not the first respondent was fit to be reemployed in view of his service record of past 14 years. It was also observed that in case the District Judge was convinced that the first respondent deserved to be re-employed, then alone his case was to be recommended to the High Court for taking concurrence of the Finance Department of the State. It needs to be noticed that in the appeal filed by the first respondent it was stated that he tendered his resignation from service on January 27, 1990 with the condition that his lien should be kept with the Department for a period of two years. The plea was taken by the first respondent in consonance with his claim that his lien remained intact in the department inspite of the acceptance of the resignation. The appellate authority did not accept the contention of the first respondent and held that the District Judge was perfectly justified in not retaining his lien on the post in question. The appellate authority observed that it was not possible to retain lien of an employee who tenders his resignation from service once his resignation is accepted. Besides, it was pointed out that in case an employee tenders his resignation from service to contest an election and in case his lien is retained, he will be disqualified to contest the same under Article 19 (1) (a) of the Constitution on the ground that he will still be considered to be holding the offence of profit. On remand the District Judge, Merta by his order dated November 5, 1992 recommended the case of the first respondent for re-employment. The case of the first respondent with the recommendation of the District Judge was sent to the State Government for further necessary action. On February 1, 1993, the Finance Department informed the Registrar of this Court that the Finance Department does not concur with the proposal to take the respondent back in service. The department, however, asked the High Court to do the needful as its own level. Thereafter, the District Judge vide letter dated March 22, 1993 informed the first respondent that the Finance Department has not given its concurrence to the proposal to take him back in service. At the same time the District Judge inquired from the first respondent as to whether he will be willing to waive the benefits of service for the period he remained absent. In response to the letter of the District Judge, the first respondent vide his letter dated March 22, 1993 agreed to forego the benefit for the period he remained absent from duty, provided he is taken back in service.
(3.) ON July 3, 1993 the Registrar of this Court sought a clarification from the Law Department of the State of Rajasthan as to whether or not the High Court was competent to re-employ the first respondent without the concurrence of the Finance Department. In reply, the Law Department by its letter dated September 19, 1994, inter alia, opined that the High Court itself was empowered to take a decision in regard to the question of re- employment of the first respondent, if it was permissible under rules. Thereafter the High Court considered the matter and by its letter dated June 5, 1999 to the Secretary, Law Department, Government of Rajasthan, pointed out that since the rules relating to re-employment have been framed under Article 309 of the Constitution, it is only the State Government which is competent to relax the rules for the re-employment of the respondent. Accordingly, the State Government was requested to accord concurrence so that the first respondent could be re- employed. In reply, the State Government informed the High Court that it was not feasible to re-employ the first respondent. Consequently, the Registrar General by letter dated July 5, 1999 informed the first respondent accordingly. The respondent being aggrieved by the failure of the State Government and the High Court to re-employ him in service preferred a writ petition. The writ petition was allowed by the learned Single Judge by its judgment and order dated September 17, 2002 with the following directions: " The State Government is directed to pass appropriate order, within period of one month from today, to facilitate the reemployment of the petitioner from 4. 11. 1992 and the petitioner shall not be entitled to the benefits which he agreed to forego by submitting undertaking dated 22. 3. 1993 (Annexure 13 ). The petitioner is also entitled for the costs. " The State Government not being satisfied with the order passed by the learned Single Judge, filed the instant special appeal. We have heard learned counsel for the parties. Learned counsel appearing for the appellant submitted that the learned Single Judge was not right in allowing the writ petition and holding that the State Government or its Department was not justified in refusing to accept the recommendation of the High Court for according sanction for the re-employment of the first respondent. The learned counsel pointed out that the State Government refused to grant sanction for reemployment of the first respondent in the year 1993 and 1994. The learned counsel contended that the writ petition is barred by laches as the same was filed in the year 1999. On the other hand, the learned counsel for the first respondent submitted that the matter remained pending till the year 1999 when the District Judge finally, on July 20, 1999, communicated the decision of the appellant that the first respondent cannot be reemployed. The first respondent without any loss of time filed the writ petition challenging the action of the appellant. It was also submitted by the learned counsel for the respondent that the recommendation made by the District Judge and concurred by the High Court was binding on the State and, therefore, the learned Single Judge was right in allowing the writ petition. ;