D. L. MEHTA, J. - (1.) THIS revision petition is directed against the order passed by the learned Additional District Judge No. 1, Jaipur City, Jaipur dated 25th February, 1987, passed in Civil Misc. Appeal No. 86/1986.
(2.) IN this revision petition, the petitioner has come with a case-that there was no budget provision for the post on which the present non-petitioner and some other persons were appointed. He has also submitted that there is no sanctioned strength against which the present non-petitioner can be appointed. It was submitted by Mr. Singhvi, learned counsel for the petitioner that the Registrar, who is an employee of the Government was working as Registrar of the Board. He had appointed non-petitioner and some other persons who are in near relation of the Registrar himself or the office Superintendent, without budget and ignoring the sanctioned strength Mr. Singhvi, learned counsel for the petitioner has invited my attention to some of the provisions of the Rajasthan Homeopathy Medicine Act, 1960 (hereinafter referred to as 'the Act' ). Board was constituted under the provisions of the Act, and the Registrar was appointed by the State Government. Section 27 clause (5) of the Act, provides that the Board may point such other officers and servants as may be necessary for carrying out the purpose of the Act. Sub-section (6) of S. 27 of the Act, further provides that all questions relating to the number, designations, pay and allowances, recruitment, promotions, leave, provident fund and other conditions of service of the officers and servants appointed under sub-sec. (5) shall be governed by rules made by the State Government. Mr. Singhvi, learned counsel for the petitioner further submits that the Homeopathic Medicine Rules, 1971 have been framed by the State Government in exercise of the powers conferred u/s. 57 (1) read with s. 27 (6) of the Act. Rule 13 of the Rules provides that the Board shall appoint officials other than the first Registrar, with the approval of the State Government. The remuneration of such staff and their service conditions shall be fixed by the Board with the approval of the State Government. The salary and other allowances of the Registrar shall be determined by the Government from time to time. As far as the approval of the State Government, under Rule 13 of the Rules is concerned, it is doubtful whether such powers can be usurped by the State Government specially when there is a provision under sub-clause (5) of Sec. 27 of the Act, that the Board may appoint such other officers and servants as may be necessary for carrying out the purposes of the Act. Thus, the appointing authority under sub-clause (5) of S. 27 of the Act is the Board. Whether the condition of approval is legal or not, is not necessary for the determination in this case. Clause (6) of Sec. 27 of the Act, provides that all questions relating to the number, designations, pay and allowances, recruitment, promotions, leave, provident fund and other conditions of service of the officers and servants appointed under sub-section (5) shall be governed by rules made by the State Government. Thus, there is no inconsistency as far as sub-clause (5) of S. 27 of the Act and sub-clause (6) of S. 27 is concerned, the State Government has powers to determine the strength of service, designation of each cadre and has also the powers to lay down the conditions of service. S. 40 of the Act, deals with the powers of the Board in the matter of finance sec. 41 of the Act deals with the budget. Clause (2) of S. 41 of the Act, provides that the Board shall at such meeting decide upon the appropriations and the ways and means contained in the budget estimate and pass the budget which shall be submitted to the State Government or to such other authority as the State Government by order direct within 15 days from the date of the meeting in which the budget is passed The State Government, has a power to suggest the modification under S. 41 of the Act. Mr. J. P. Sharma, learned counsel for the respondents submitted that S. 57 (2), there is no provision by which the State Govt, has a power to frame the rules relating to the conditions of the services of the employees other than the Registrar. It was also submitted by Mr. Sharma, that Rule 13 of the Rules of 1971 provides that the Board shall appoint officials other than the first Registrar, with the approval of the State Government. The remuneration of such staff and their service conditions shall be fixed by the Board with the approval of the State Government. The salary and other allowances of the Registrar shall be determined by the Government from time to time. Prima facie, the argument of Mr. Sharma is having force, if we take into consideration sub-clause (5) of S. 27. Mr. Sharma, learned counsel for the respondents further submitted that the non-petitioner's services have been terminated after the passing of the order of the court below, and one month's notice has been given to them. I have given my thoughtful consideration to the submissions made by the learned counsel for both the parties. The State Government has a power u/s. 57 (1) of the Act, to frame the rules. This power is not controlled in any way, by the powers given under clause (2) of S. 57. The powers given under S. 57 (l)'are wide enough and can be exercised by the State Govt, to give effect to the provisions of the Act, Harmonious reading of S. 57 (1) and clause (6) of S. 27 of the Act, further clarify the position that the State Govt, has power to make rules relating to the conditions of the service of the employees. They can fix the strength also and no appointment can be given beyond the sanctioned strength. It is not in dispute before me that the Registrar, gave the appointment beyond the sanctioned strength. It is also not in dispute before me that there is no provision in the budget for the posts on which the Registrar had given appointments. In such circumstances, I am of the view that the Registrar was not competent to appoint more persons than the sanctioned strength and without budget provisions also.
(3.) IN the result, this revision petition is accepted. The order passed by the learned Additional Distt. Judge No. 1, Jaipur City, Jaipur dated 25. 2. 1987, is set aside and the order passed by the learned Addl. Munsif and Judicial Magistrate (Est.), Jaipur is restored. I would like to make it very clear that all persons should be treated equally and there should not be any discrimination. More than one persons have been given appointment beyond the sanctioned strength and without the budget provisions. All persons should be equated in such matters and if the Board fails to equate them respondents in the present petition will have a right to re-agitate the matter on the ground of discrimination. It is further directed that the Board, shall determine the position within a period of six weeks. It is further directed that in case 4 persons have been appointed without sanctioned strength then all must go. If the Board allows some persons appointed beyond the sanctioned strength, then the principle of law that last come first go should be applied. It is further directed that the State Government should take note of the submissions made by Mr. Singhvi, learned counsel for the petitioner that the officer on deputation has acted beyond his power and has appointed persons beyond sanctioned strength and budget, if it is so the State Government should take action against the said officer, who has violated the provisions of the Act and law by appointing the persons beyond sanctioned strength and budget. The revision petition is disposed of accordingly. .;