DWARKA PRASAD, J. - (1.) THE petitioner, Manumal, was employed as a temporary Patwari in Tehsil Chohtan of District Barmer in the State of Raj. by the order dated April 10,1970 passed by the Collector, Barmer. He joined his duties as a Patwari on April 16, 1970 and continued to serve in that capacity until November 21, 1973. THE service of the petitioner was terminated by the order of the Collector, Barmer dated November 14, 1973 on the ground that due to reversion of persons from the posts of Land Record Inspectors no vacant post of Patwari remained and as such the service of the junior most temporary Patwari including the petitioner was terminated. THE order was communicated to the petitioner on November 20, 1973 and he was relieved in the fore-noon of November 21,1973.
(2.) THE case of the petitioner is that termination of his service by the order of the Collector, Barmer dated November 14, 1973 was void and ineffective as the provisions of rule 23-A of the Rajasthan Service Rules, (hereinafter referred to as 'the Rules') were not complied with, inasmuch as neither one month's notice was given to the petitioner before terminating his service nor one month's pay in lieu of notice was given to him along with the intimation regarding the termination of his service. No reply has been filed in this writ petition on behalf of the State but it was asserted by the learned Additional Government Advocate that the service of the petitioner was terminated in accordance with the terms and conditions of the order of his appointment as a temporary Patwari and no notice was required to be given to him under sub-rule (1) of rule 23-A. Rule 23-A, on which the reliance has been placed by the learned counsel for the petitioner, runs as under:- "23-A. (1) Except as otherwise provided in sub-rule (2), the service of a temporary Government servant shall be liable to termination at any time by a notice in writing given either by the Government servant to the appointing authority or by the appointing authority to the Government servant. The period of such notice shall be one month unless otherwise agreed to by the Government and by the Government servant: Provided that service of any such Government servant may be terminated forth with by payment to him of a sum equivalent to the amount of his pay for the period of notice or as the case may be, for the period by which such notice falls short of the month or any agreed longer period. The payment of allowances shall be subject to the condition under which such allowances are admissible. (2) The service of a temporary Government servant, (a) who has been in continuous Government service for more than three years; and (b) who satisfies the suitability in respect of age and qualifications prescribed for the post and has been appointed in consultation with the Rajasthan Public Service Commission, where such consultation is necessary shall be liable to termination- (i) in the same circumstances and in the same manner as a Government servant in permanent service; or (ii) when reduction has occurred in the number of posts available for Government servants not in permanent service: Provided that termination of service consequent on reduction of posts in a cadre under the appointing authority shall take place in order of juniority. " Although the petitioner served the State of Rajasthan in the capacity of a Patwari for a period of more than 3 years yet the petitioner has not claimed any relief under sub-rule (2) of Rule 23-A because it is not disputed that the petitioner did not pass the Patwar School Certificate Examination, which was one of the essential qualifications for substantive appointment on the post of Patwari. The order of appointment of the petitioner dated April 10, 1970 contained a condition that the temporary employment of the petitioner shall cause to exist if the surplus employees of the State were available through the agency of the Absorption Committee or the surplus Amins of Settlement Department or trained persons would be available and in that event service of the petitioner could be terminated without any notice. According to the respondents, as some Inspectors of Land Records who became surplus were appointed as Patwaris, no substantive post of Patwari remained vacant and as such the service of junior-most temporary Patwaris was dispensed with, with immediate effect by the order dated November 14, 1973. In the first instance, learned counsel for the petitioner contended that clause (1) of rule 23-A was attracted in the present case, as the petitioner was a temporary Government servant and his service could be terminated at any time by a notice in writing for a period of one month. However, clause (1) of Rule 23-A contains a stipulation that the period of notice can be reduced or enlarged to more than one month if it was otherwise "agreed to by the Government and by the Government servant. " It has been held by this Court that if a condition is imposed at the time of appointment of a Government servant and if he joins service in persuance thereof his service would be liable to be terminated on the fulfilment of the specified contingency and then the condition of one month's notice, as contained in clause (1) or Rule 23-A of the Rules, would no longer remain applicable.
(3.) IN Manoharlal Dave vs. State of Rajasthan (1) a learned Judge of this Court held that where there was a prior agreement between the parties that the service of the employee shall be terminated without notice there was no noncompliance of the provisions of Rule 23-A (1) if the employment of the emyloyee is terminated with immediate effect without prior notice on the fulfilment of the specified condition. When the condition is contained in the letter of appointment of the Government servant and the person joins the employment offered to him, then the conduct of such person amounts to acceptance of the condition imposed upon him in the letter of appointment. A similar view was taken by me in Arun Kumar Modi vs. State of Rajasthan (2 ). In that case, it was held as under:- "there is no doubt that once a person is appointed to a post in Government service then he acquires a status and his rights and duties are to be regulated by the statute or statutory rules. However, the provisions of rule 23-A, which provide for termination of services of a temporary Government servant by a notice in writing given by either side and also provide that the duration of such notice shall be one month, further lays down, "unless otherwise agreed to by the Government and by the Government servant. " Thus, no doubt, ordinarily if a person is temporarily appointed to a post in Government service, then his temporary services could be put an end to by giving him one month's notice. But here statutory rule itself envisages that the period of such notice can be altered by agreement between the parties. The argument of the learned counsel for the petitioners is that one month's notice is absolutely necessary but the parties could agree to a longer period of notice. I am unable to accept the aforesaid contention of the learned counsel. If the parties could agree to a longer period of notice there could be no impediment by the provisions of rule 23-A (1) of the rules if the parties agreed to a shorter period of notice. The Government and the employee could by their agreement, in my view, either enlarge of reduce the period of notice envisaged under rule 23-A and could also agree that the temporary employment of the employee concerned, would automatically come to an end on the happening of a specified contingency. The period of one month mentioned in rule 23-A (1) is only applicable to the case of those temporary employees in whose case no period of notice is agreed to between the Government and the employees concerned. I fail to appreciate the argument of the learned counsel that if it is open to the parties to agree to a larger period of notice and the same may be binding on the parties, where is the prohibition contained in rule 23 (1) or for that matter in any other rule that the period cannot be reduced by the consent of the parties. On the other hand, in my opinion, rule 23-A specifically provides that the period of notice could be fixed or altered by agreement of the Government and the employee concerned. In the orders of appointment of the petitioners it has specifically been stated that their temporary employment would continue only till the persons selected by the Commission were not available and the petitioners joined the posts of Civil Assistant Surgeons in pursuance of such orders of appointments obviously agreeing to the terms and conditions mentioned therein As the specified event, on the happening of which the temporary employment of the petitioners was to come to an end, according to their agreement, has taken place and persons selected by the Commission were available, the temporary employment of the petitioners, no doubt, come to an end in accordance with the specific term contained in their orders of appointment read with rule 23a of the rules. The condition on which the petitioners were temporarily employed, namely, that their temporary services would continue only till persons selected by the Commission were available, was not at all inconsistant with the provisions of rule 23a (1) of the Service Rules, as the said rule itself envisazed that the period of notice for the termination of the temporary services of the employees could be governed by the agreement between the parties and absence thereof, such period would be of one month's duration. Thus, in the cases before me, there was clear agreement to the contrary between the employer and the employee and one month's notice was not necessary. " The reasons given in the aforesaid passage are fully applicable to the present case as the order of appointment of the petitioner contained a specific condition that his temporary employment shall be terminated without any prior notice on the happening of the specified event or on the fulfilment of the specified continuancy and the petitioner accepted the condition by joining the service as a Patwari in a temporary capacity in pursuance of the aforesaid appointment order dated April 10, 1970. Thus, in the present case, there was an agreement to the contrary between the employer and the employee and giving of one months's notice was not necessary. ;