KAN SINGH, J. - (1.) THIS is a writ petition under Art. 226 of the Constitution by one Shri Vijay Shanker for an appropriate writ, direction or order.
(2.) THE writ petition raises questions about proper fixation of pay grade of the petitioner consequent to reorganisation of the State of Rajasthan with the integration of the Ajmer State and other arears. THE petitioner has also questioned the validity of the order of the Public Service Commission rejecting his candidature for the post of Physical Training Instructor and the appointments of some of the respondents as Physical Training Instructors. In consequence he has challenged the promotions of respondents Jitendra Pal and S. M. Das as Deputy Inspectors of Schools, Physical Education claiming seniority over them. The petitioner was first appointed as a Physical Training Instructor in Govt. High School, Ajmer on temporary basis on a salary of Rs. 100/- in the time scale of Rs. 100/250 He remained temporary till the reorganisation of the State of Rajasthan with the integration of the Ajmer State with effect from 1-11-56. After the reorganisation of the State of Rajasthan he was confirmed as an Assistant Teacher in Grade III (Rs. 75-160) with effect from 2-7 62 vide Ex. 7. As this is the order that the petitioner is challenging I may read it: OFFICE OF THE INSPECTOR OF SCHOOLS, AJMER Office Order The following temporary teachers who are working in Trained and untrained Inter Grade from a date prior to 2-7-1961 are hereby confirmed as Assistant Teachers in Grade III (75-160) with effect from 2-7-1962. The whole temporary services rendered by them will count for pension under R. 188 of Rajasthan Service Rules - S. No. Name of the Teacher Qual. Place of posting Date of Birth Date of Apptt. 1. Sh. V. S. Singhal B. A. D. P. Ed. G. P. M. H. S. S. Pisangan 1-7-28 27-3-54 (Age relaxed by Government) Sd/- Kishanchand Inspector of Schools, Ajmer. " The Rajasthan Public Service Commission had advertised the post of Physical Training Instructor vide order Ex. 2 dated 20-9-57 and the petitioner applied for the post. The petitioner was informed that his candidature was rejected after consideration. Against this order of rejection of his candidature the petitioner made a representation, but vide their letter dated 3-10 6 (Ex. 3) the Commission wrote to say that as the petitioner was over age at the time of his first entry into service in the former Ajmer State being over 25 years, his application had been rejected by the Commission. The respondents Nos. 4 to 10 came to be selected as Physical Training Instructors by the Rajasthan Public Service Commission and they were eventually appointed as such. The petitioner is challenging their appointments on the ground that he had been denied consideration in the selection. Respondents Balbir Singh, Jitendrapal and S. M. Das subsequently came to be promoted as Deputy Inspectors of Schools and the petitioner is challenging their promotion on the ground that he would be senior to them if he were properly fixed up. The petitioner claims that he was entitled to be fixed up in the pay scale of Rs. 110-225 as on 31-10-56 by virtue of the several orders passed by the Government from time to time he was to be treated as substantively appointed in the service of the former Ajmer State and consequently his pay in the reorganised State of Rajasthan should have been fixed on that basis and likewise his seniority should have been fixed accordingly. The writ petition has been opposed by the State of Rajasthan. It is denied that the order Ex 6 was bad on any ground or that the petitioner had not been properly fixed up in the reorganised State of Rajasthan. It was also submitted that the Rajasthan Public Service Commission was right in rejecting the petitioner's candidature on the ground that he was over age when he first entered service of the former Ajmer State being over 25 years. Then at the fore front the plea of delay in the filing of the writ petition was raised. It was pointed out that the petitioner's candidature was rejected in the year 1957 and the writ petition was filed in 1969. In the meantime the respondents Nos. 4 to 10 had all been confirmed as Physical Training Instructors & therefore, the petitioner cannot now claim seniority over them Then as regards respondent Balbir Singh it was pointed out that he had already retired from service and the name of respondent Shivdutt Bhatnagar was struck off by the Court's order dated 24-3-72, as he had expired. As regards the petitioner's fixation it is mentioned that the petitioner was a temporary employee of the former Ajmer State and, therefore, he could not be fixed up at par with the permanent employees. Then it was submitted that the petitioner was not regularly appointed in that the appointment in the former Ajmer State on such post could be made only through the agency of a Selection Committee and the petitioner had not shown that before his appointment his candidature was processed by a Selection Committee. I will be referring to the various relevant orders which either side had referred to. I have heard learned counsel for the petitioner and the learned Additional Government Advocate at sufficient length. The following questions arise for consi-deration: (1) Whether the writ petition should be thrown off on the ground of delay? (2) What was the position of the petitioner on 31-10-56 i. e. immediately before the reorganisation of the Rajasthan State with the integration of the former State of Ajmer and other areas? (3) Whether the order Ex. 7 is bad? (4) How the petitioner should be dealt with if the answers to questions Nos. 2 and 3 are in favour of the petitioner? The applications were invited by the Rajasthan Public Service Commission for the posts of Physical Training Instructors in the year of grace 1956. The petitioner's application for the post was rejected on 20-9 57 on the ground that he was over age. The respondents were appointed as a result of the selection by the Public Service Commission. Not only so, some of them were promoted to still higher posts and two of them were no longer in service; one of them having retired long back, and the other one having expired. In that situation I am not inclined to entertain the writ petition qua respondents Nos. 4 to 10. However, the question of delay, in my view, should not stand in the way of the petitioner in so far as the question of his fixation is concerned. The employees of the pre reorganised state of Rajasthan and the employees of the former Ajmer State like others were afforded protection regarding their preexisting conditions of service. Sec. 115 of the States Reorganisation Act, 1956 made provisions relating to the services other than the All India Services. Sub sec. (7) of this section, inter alia, provides that nothing in this section shall be deemed to affect the operation of the provisions of Chapter I of Part XIV of the Constitution in relation to the determination of the conditions of service of persons serving in connection with the affairs of the Union or any State. Chapter I of Part XIV of the Constitution relates to the services and in it occurs Art. 309 of the Constitution. Therefore, it is open to the President or the Governor of a State, as the case may be, to make rules for determination of conditions of service of persons serving in connection with the affairs of the Union or the State, but this sub-sec. (7) of sec. 115 is subject to the proviso that the conditions of service applicable immediately before the appointed day to the case of any person referred to in sub-sec. (1) or sub-sec. (2) shall not be varied to his disadvantage except with the previous approval of the Central Government. To effectuate this proviso the Governor of Rajasthan had made the Rajasthan Services (Protection of Service Conditions) Rules, 1957 with the concurrence of the Central Govt. These rules have been given an overriding effect. R. 6 is for the substantive pay of an employee and I may read it: - R. 6. Substantive Pay - The substantive pay as well as the scale in which the substantive pay was drawn by a permanent employee on the day immediately preceding the appointed day shall be protected. Pay drawn by provisionally substantive holders of posts and those appointed on probation against a clear substantive vacancy is given the same protection as substantive pay. " R. 8 is for temporary employees and I may read this rule as well (omitting portions which are not material): "r. 8 Temporary Employees - In the case of a temporary employee - (i) where he drew pay in a scale including fixed pay equivalent to the Pay-drawn in the scale for a period of not less than 3 years immediately preceding the appointed day, the pay (not the scale) drawn by him on the day immediately preceding the appointed day is protected subject to his continued employment on and after such day on a post not lower than the one held immediately before the said day, provided the personal pay granted, if any, to such an employee as a result of fixation of pay in the Rajasthan Scales of Pay shall not be merged in the Special Pay admissible under R. 10 (ii ). . . . . . . . . " The stand of the learned Additional Government Advocate is that as the petitioner was only a temporary employee of the ex-Ajmer State, his pay grade is not protected, but the salary that he was drawing would be protected under rule 8 and the salary that the petitioner was having on 31-10-56 has been allowed to him while fixing him in terms of order Ex. 7. The parties have joined issue on this. Learned counsel for the petitioner relies on certain orders for showing that although the petitioner was holding a temporary post, the post had been made permanent as also his appointment vide Government order dated 28 2-63. (Ex. 30) which I may read: " (Apptts (A-II) Deptt. Circular No. F. 1 (9)Apptts. (A-II) 163, dated 28-2-63) Some departments or the other now and then refer cases for relaxation of age limit. In respect of persons appointed by the erstwhile covenanting States merged into the Rajasthan State. In some of the States there were no Service Rules relating to recruitment, and appointments used to be made without consideration of the age of the person concerned, and even persons advanced in age used to be taken into service. Issuing sanctions to age relaxation in individual cases at this distance of time will only be a routine and an inevitable matter, because of the following reasons - (1) The Covenants entered into between the Rajasthan Government and the Government of India on the one hand and the covenanting States on the other state that "the United State hereby guarantees either continuance in service of the permanent members of the public services of the former Rajasthan State and of each of the new covenanting States on conditions which will not be less advantageous than those on which they were serving on the 1st November, 1948, or the payment of reasonable compensation or retirement on proportionate pension. " (2) In all the Service Rules so far framed, the following Provision has been made - "supersession of existing rules & orders - All existing rules and orders in relation to matters covered by these rules are hereby superseded, but any action taken by or in pursuance of such existing rules and orders shall be deemed to have been taken under these rules. " Government are, therefore, pleased to direct that if any person had entered service in a covenanting State or pre reorganisation States of Ajmer, Bombay and Madhya Bharat and is considered to be over-age at the time of entry into service viewed from the provisions in the Rajas-than Service Rules, he/she shall be considered to have entered service within the age limit prescribed in the Rajasthan Service Rules, 1951 and that no individual sanction of the Government for relaxation of the upper-age limit in such a case is required. This issue with the concurrence of Finance Department vide their Note No. 260/pa/fs (E), dated 25-1-63. " Further he draws attention to a list prepared by the authorities of persons regarding their pay grade as on 31-10-56, it is Ex. 24. The petitioner has averred in para 3 (vi) (at page 32 of the writ petition) that all the subordinate posts in the teaching side of the Education Department of the former States of Rajasthan as well as Ajmer were made permanent from 31-10-56 and further all persons who were appointed to such posts were to be taken as permanently appointed provided they were recruited or promoted in the regular manner in accordance with the former State of Rajasthan or Ajmer, as the case may be. I may read the relevant portion of this order as well (omitting portions which are not material) - "iii (vi) That the respondent State Government proceeded to make an order dated 12-9-1967 which is No. F. 6fc) (4l) Edu/g/-II/66 dated 20-8-67 reads as follows - I am directed to refer to your letter No. EDB/estt/b/b-5/11908/spl/66-67 dated 15-9-1967 on the aforesaid subject and to note that after careful consideration, Government have decided as follows - 1. All the subordinate posts in the teaching side of the Education Department of the former States of Rajasthan as well as Ajmer are made permanent on 31-10-1956. 2. All the persons who were appointed to the said posts after being recruited/promoted in the regular manner in accordance with the former States of Rajasthan or Ajmer as the case may be, be treated as substantive. 3. The Additional Director, Primary & Secondary will issue a list showing the names of the persons who shall be treated as substantive. On the basis of these two orders learned counsel submits that there could now be no irregularity on the ground that petitioner's appointment as a Physical Training Instructor in the former Ajmer State he was overage or that the post was temporary when the petitioner was appointed or that the petitioner was never appointed substantively as such. Learned Additional Government Advocate, in the circumstances, trimmed down his argument only to one aspect and it is that the petitioner was never appointed in a regular manner in accordance with the former Ajmer State and, therefore, in terms of the order dated 12-9 67 he could not be treated as substantive holder of the post of a Physical Training Instructor on 31-10-56. Therefore, the controversy now centres round the point whether the petitioner cannot be said to have been appointed in a regular manner. It is admitred by learned Additional Government Advocate that there were no statutory rules laying down the procedure for appointment or selection with regard to one's appointment as a Physical Training Instructor. Learned Additional Government Advocate, however, maintained that there were executive orders which provided that before making appointment a Selection Committee was to select a candidate and this has not been done in the case of the petitioner. Learned Additional Government Advocate invited my attention to letter Ex. 28 dated 9-12-66, whereby the Additional Director, Primary and Secondary Education, Rajasthan, Bikaner wanted the petitioner to establish that the petitioner was selected by a Departmental Promotion Committee inasmuch as the appointment for the post of Physical Training Instructor in the grade of Rs. 100-250, made on 22-2-54 was in the purview of such a Committee. I am afraid, this letter would not advance the position. It does refer to some procedure, but which was the order or orders by which the procedure was so established have not been placed on record. Learned counsel for the petitioner invited attention to Ex. 26 the Office Memorandum from the Director of Education, Ajmer to the petitioner enquiring from the petitioner as to what his academic qualifications were. It refers to a post card dated 24-11-53 written by the petitioner for appointment to the post of Physical Training Instructor. Then he referred me to Ex 27 dated 29-12-53 by which the Director of Education referred to the petitioner's application dated 24-11-53 for the post of Physical Training Instructor and called upon him to appear before the Director for an interview on 5-1-54 at 11 a. m. bringing with him the original certificate of all the examinations passed by the candidate and also the certificate of residence in the Ajmer State signed by a Magistrate, if the petitioner was a resident of Ajmer. Then finally the petitioner relied on the appointment order Ex. 1 which I may read: "copy of order No. Estt (2)/1051/54, dated the 1st February. 1954, of the Director of Education, State of Ajmer, Ajmer. With effect from the date he takes over charge, Shri V. S. Singhal is appointed to the temporary post of Physical Training Instructor, Government High School, Deoli in the scale of Rs. 100-250 with usual allowances. No travelling allowance will be admissible to him for joining first appointment. " Learned counsel for the petitioner submits on the basis of these documents that the petitioner was regularly appointed within the meaning of the order dated 12 9-67, already extracted, with the result that he was to be treated as substantive on the post of Physical Training Instructor and was, therefore, entitled to the protection afforded to him by sec. 115 of the States Reorganisation Act and r. 6 of the Rajasthan Services (Protection of Service Conditions) Rules, 1957. The question whether a particular employee was or was not appointed in a regular manner implies two subordinate questions (1) as to what was the manner of appointment, and (2) whether the petitioner was appointed in accordance therewith. It is unfortunate that the respondent State who is supposed to be in possession of the records of the former Ajmer State has not thrown sufficient light on the question. There is no manner of doubt that the petitioner was appointed by the Director of Education of the former Ajmer State. He continued there for a number of years before the former Ajmer State was integrated with the State of Rajasthan. Therefore, in such a case I should think the Court should draw the presumption that the official act of the Director of Education appointing the petitioner as Physical Training Instructor was regularly performed. An act can be said to be irregular, if it is shown to be contrary to some established procedure and this is a question of fact. Learned Additional Government Advocate referred me to the Service Book of the petitioner and submitted that there is no entry in the Service Book to the effect that the petitioner was appointed as a result of a selection made by the Departmental Promotion Committee. The question at once arises whether it is usual to make such an entry. I asked the learned Additional Government Advocate to point out such an entry in any other Service Book, but he was unable to do so. Therefore, I consider it safe, in the facts and circumstances of the present case, to presume that the Director appointed the petitioner in a regular manner. If this is so, then the effect of the Government order dated 12-9-67 is that the petitioner was the holder of a substantive post of a Physical Training Instructor on 31-10-56 and, therefore, his pay grade besides his pay as on 31-10-56 would be protected. The Service Book of the petitioner reveals that on 22-11-57 option was demanded of him in accordance with rule 12 of the Rajasthan Services (Protection of Service Conditions) Rules, 1957. He gave his option for the grade Rs. 100-250 with effect from 1-11-56. I may read the option: "under R. 12 of the Rajasthan Services (Protection of Service Conditions) Rules, 1957, I V. S. Singhal designation P. T. I. hereby exercise my option of electing the old scale of pay namely 100-5-250 with effect from 1-11-56. D/- 22-11-57 Signature attested. 5-12-57. Sd/- V. S. Singh Signature of the Govt. Servant. Sd/- Head Master, Govt. High School, Deoli, Raj. " I have not been able to understand that if the petitioner were treated a temporary employee, then how the question of taking his option arises because in the case of a temporary employee in terms of rule 8 what is protected is only his salary and not the pay grade. Be that as it may, as I have already observed, acting on the presumption that an official act is taken to be regularly performed I hold that the petitioner was regularly appointed as Physical Training Instructor in the former Ajmer State on 22-2-54. Learned Additional Government Advocate sought to make a point that the infirmity regarding the petitioner being over age did persist on 31-10-56 and, therefore, so far as the petitioner is concerned, he cannot be deemed to have been regularly appointed which should mean that he is not within the age limits and consequently he was not appointed according to the procedure. The order Ex. 30 has already been extracted by me. The clear effect of this is that the relaxation of age will be deemed to be effective from the date of the first entry into service and not from any intermediate stage. It follows from this that the petitioner shall be entitled to have his grade of Rs. 100-250. His salary and grade has thereafter to be fixed upon that footing, that is, whenever there was revision of pay grades in Rajasthan the benefit of such revision of pay grade has to be allowed to the petitioner. The next question is about his seniority. Seniority depends upon length of service on equated posts. The parties were at issue even on this. While learned Additional Government Advocate maintained that since the petitioner was an intermediate with the certificate of Physical Training, his post could be equated with that of a Trained Inter grade i. e. Rs. 70-140. Learned counsel for the petitioner is not able to say as to how the posts were equated for the purposes of fixation of seniority. Since the fixation of the pay grade of the petitioner has to be done on the footing that he was having a substantive pay scale of Rs. 100-250 on 31-10-56, the question regarding the equation of posts of the former Ajmer State with those of the reorganised State is left open. It will be for the respondents to fix the petitioner's seniority on the basis of such equation of posts which the State may have already adopted or may now like to adopt.
(3.) FOR the above reasons I allow the writ petition in part. It is dismissed against respondents Nos. 1 and 2 and they are directed to fix the pay grade of the petitioner on the footing that he was having the pay grade of Rs. 100-250 on 31-10-56 substantively. They shall give him the benefits of all subsequent re visions of pay grades and further fix his seniority in the equated grade as observed above. The parties are left to bear their own costs. .;