YADAV, J. - (1.) THE instant writ petition under Art. 226 of the Constitution has been filed by the petitioner challenging the impugned order dated 19. 5. 90 (Annex. 17) by which the representation made by the petitioner on 6. 12. 89 (Annex. 16) has been rejected holding that the petitioner is not entitled to get the benefit of condonation of interruption between temporary service and permanent service or two spells of temporary service under Rule 212 Note 4 of the Rajasthan Service Rules, 1951 (hereinafter referred to as 'the Rules of 1951' ). Respondent No. 2 has given two reasons for rejecting the representation of the petitioner; firstly, that the petitioner was not in the State Services and there was no such Rule to condone the break in service and secondly, that since the term of the office of the petitioner was less than 5 years, therefore, such condonation by the State government is not possible. According to respondent No. 2, if there would have been 5 years term or more than 5 years then of-course the State Government can condone the interruption in service of the Government Servants. .
(2.) THE factual matrix of the case lies in short compass. According to the petitioner, he was selected and appointed as Lower Division Clerk along with some other candidates for Census Work by respondent No. 2 vide order dated 21. 11. 70 (Annex. 1 ). In pursuance of the appointment letter dated 21. 11. 70 (Annex. 1), the petitioner joined his duty on the same day at Tehsii Rashmi. It is further alleged that provisional seniority list of the Lower Division Clerks working in Chittorgrah District was issued by respondent No. 2 on 14. 3. 73 (Annex. 2 ). From the assertions made in the writ petition and other material available on record, it is borne out that the Census Department was abolished. After abolition of the Census Department, the services of every employees working in the said department came to an end with assurance by the State Government that all the incumbents who had been retrenched due to abolition of the Census Department, they will be re-employed and absorbed in other department. It is alleged by the petitioner that juniors to the petitioner were absorbed in the department but the petitioner was denied absorption upto 28. 8. 74. Before the aforesaid date, similarly circumstanced juniors to the petitioner were appointed in other departments but the same benefit was denied to the petitioner. It is averred in paragraph 14 of the writ petition that the petitioner was appointed as Lower Division Clerk vide order dated 28. 8. 74 and posted at Tehsil Dungla. In the aforesaid appointment letter, the name of the petitioner finds place at S. No. 5, copy whereof has been filed and annexed with the writ petition as Annex. 15. It is also alleged in paragraph 15 of the writ petition that in compliance with the order dated 28. 8. 74 (Annex. 15), the petitioner joined as Lower Division Clerk at Tehsil Dungla on the same day and since then, the petitioner has been working continuously as Lower Division Clerk under respondent No. 2 and at present, he has been working in the office of Sub-Divisional Officer, Nimbahera. After service of notices upon the respondents, they have filed counter affidavit. It is pertinent to mention here that the averments made in paragraphs 14 and 15 of the writ petition are not denied by the answering-respondents No. l and 2. In reply to paragraph 14 of the writ petition, it is stated in paragraph 14 of the reply that the contents of para 14 are not disputed as they are in conformity with the order dated 28. 8. 74. Similarly, the allegations made in paragraph 15 of the writ petition are also not disputed. From the aforesaid discussion, it is apparent on the face of record that initially, the petitioner was appointed as L. D. C. along with other candidates in the Census Department on 21. 11. 70 (Annex. l) and after sometime, the said department was abolished and juniors to the petitioner were absorbed in other Government Departments but the same benefit was denied to the petitioner upto 28. 8. 74. Aggrieved against the aforesaid in-action of the respondents, the petitioner made a representation on 6. 12. 89 (Annx. 16), which was rejected by respondent No. 2 vide his order dated 19. 5. 90 (Annex. 17) on the grounds mentioned in the preceding paragraphs.
(3.) A close scrutiny of Sub-rule (4) of Rule 212 of the Rules of 1951 reveals that the State Government has been empowered to condone the interruption in service of the Government Servants. Sub-rule (4) of Rulr 212 of the Rules of 1951, which are statutory Rules framed by the Governor in exercise of the powers conferred by the proviso to Art. 309 of the Constitution of India, has been amended from time to time. The latest amendment which is brought to my notice, was introduced by the Governor in exercise of the powers conferred by the proviso to Art. 309 of the Constitution of India in the year 1979. This new amended Rule has been enforced w. e. f. 21. 1. 1979. The aforesaid Rule 212 is quoted in extenso- "10. (i) For the existing Note 4 below Rule 212, the following should be substituted, namely: - 4. Condonation of interruption between temporary service and permanent service or two spells of temporary service is permissible under this Rule. (ii) The following new Note shall be inserted, namely; - 5. In case of a Government Servant in teaching side in a School/college who on this subsequent re-appointment to the same post is entitled to; draw vacation salary in accordance with provisions contained in para 1 of Government of Rajasthan decision No. l below Rule 97 the interruption between his temporary service and permanent/temporary service may be condoned for the purpose of pension provided that the break is caused due to delay in issue of appointment orders and provided further that the break does not exceed one month. 11. The existing Audit Instruction below Rule 212 shall be deleted. 12. The following new Note shall be inserted below Rule 212 : - 6. The authority competent to condone interruption can also condone under this Rule an interruption between his non-qualifying service and his subsequent qualifying service in order to make the former service qualifying for pension under Rules 187, 188, 188 (A) and 188 (B ). " The main thrust of the argument of Mr. K. C. Samdaria, learned counsel for the petitioner is that the impugned order dated 19. 5. 90 (Annex. 17) passed by respondent No. 2-Collector, Chittorgarh is per-se illegal and without jurisdiction. Learned counsel for the petitioner urged before me that after receiving the representation (Annex. 16) of the petitioner, the Collector instead of rejecting his representation, he ought to have remitted the same to the State Government for disposal in accordance with law. Mr. M. R. Singhvi, learned counsel for respondents No. 1 and 2 made an attempt to justify the order passed by the Collector, Chittorgarh. ;