AMITAVA ROY,CJ - (1.) BY the instant petition, the petitioner seeks to annul the order dated 25.9.1999 whereby he was discharged from service in terms of Rule 22(4) of the Rajasthan Civil Services (Departmental Examinations) Rules, 1959 (for short, hereafter referred to as "the 1959 Rules) read with the Rajasthan Civil Services (Subordinate Accounts Service) Rules, 1963 (for short, hereinafter referred to as "the 1963 Rules"). The petitioner has impeached as well the vires of the provisions contained in these Rules prescribing passing of the departmental examination to be a pre -requisite for confirmation of a member of the Rajasthan Subordinate Accounts Service as envisaged in the 1963 Rules.
(2.) WE have heard Mr.M.S.Singhvi, learned Senior Advocate for the petitioner and Mr.R.LJangid, learned Additional Advocate General for the respondents. The abridged version of the petitioner's pleaded case is that on being duly selected by the Rajasthan Public Service Commission (fort short, hereinafter referred to as "the Commission") in a process initiated for the purpose, he was appointed on probation for two years to the post of Junior Accountant vide order dated 7.12.1993. In terms of Rules 32 and 34 of the 1963 Rules, a probationer is required to pass the departmental examination as contemplated therein to be eligible for confirmation in service. According to the petitioner, the departmental examinations so contemplated were held successively in the months of March -April, 1994; February, 1996 and in July -August, 1997. In the first examination, he cleared 2 out of 5 papers prescribed and the other two papers were cleared in the second examination. Though he appeared in the third examination, he could not pass the remaining paper. He has averred that the fourth examination was held in the month of August, 1998. By then, he had been transferred to Panchayat Samiti Balesar from the Panchayat Samiti Osian vide order dated 5.11.1996, whereupon he joined his new place of posting on 2.12.1996. He alleged that inspite of this information, though the respondents authorities called him to take the fourth examination as aforementioned, communications to that effect were addressed at Panchayat Samiti, Osian from where he had already been transferred so much so that on being re -directed, the same were received by him only on 10.8.1999, the date on which fourth examination was scheduled to be held. His representations before the concerned authorities to accord him an opportunity to take another examination in the above circumstances did not evoke any response and instead by the impugned order dated 25.9.1999, he was discharged from service. The challenge has been laid in this factual background. The respondents in their reply while referring to Rules 32 and 34 of the 1963 Rules and Rule 22(4) of the 1959 Rules in essence have not only endorsed the validity of the action taken but also have asserted that as the petitioner inspite of being granted full opportunities to pass the departmental examination, having failed to do so, he was rightly discharged from service as mandated by the Rules. The answering respondents have added that his inability to appear in the fourth examination is wholly insignificant as in terms of Rule 22 of the 1959 Rules, he was only entitled to three chances which he had already availed by 1997, but was unsuccessful to pass the same. That he was inadvertently called to appear in the fourth examination, has been stated. Due emphasis has been laid on the essentiality of the departmental examination for the purpose as a condition precedent for confirmation of members of the Service as predicated by the Rules.
(3.) MR .Singhvi has emphatically argued that as the petitioner had been appointed on probation on being duly selected by the Commission, he by no means could be subjected to the prescription of Rule 22(4) of the 1959 Rules as it applies only to the persons appointed on temporary/officiating basis. As the appointment of the petitioner was neither on temporary nor on officiating basis, this provision of Rule 22(4) of the 1959 Rules is not applicable to him and thus, the impugned order of his discharge is patently illegal and void, he urged. Moreover, reckoned from the date of his appointment i.e. 7.12.1993, as the last departmental examination in 1997 had not been conducted within three years therefrom, even otherwise Rule 22(4) of these Rules could not have been invoked vis -a -vis the petitioner, he insisted.;