- (1.) THE petitioner Mohammed Ismail Khan joined service as an Assistant Jailor on 1st February, 1952. He came to he confirmed on that post with effect from the same date. He applied to the Director, Social Welfare for some job in the Social Welfare Department in view of his high qualifications suited most to that Department. Proposale was initiated by the Director to transfer him from the Jails Department to his department and to appoint him on the post of Welfare Officer (Prisons) in Scale No. 19 that is 200-450. THE proposal was approved by the Minister and accordingly, an order was issued on 16th October, 1968. appointing him as officiating Social Welfare Officer (Prisons) for a period of a six months. He was then appointed as Social Welfare Officer with effect from 1st September, 1969 in scale No. 15 of 225-525. He then came to be appointed as Superintendent, Observation Home, Jaipur on 19th August, 1971, in the scale 250-625. On 28th June, 1972, he was transferred on an ad hoc basis to the post of Project Officer (Beggery Survey) on which post he continued to work until 4th Aprial, 1973 when he proceeded on one month's leave on account of illness. Since he could not be selected in a regular manner and the Rajasthan Public Service Commission refused to concur in his continuance, the matter was referred to the Government and on 5th May, 1973 the Minister agreed to his reversion. Accordingly, he was reverted on 14th May, 1973, to his parent department. But he was not accepted by the Inspector General of Prisons. He filed the present writ petition on 3rd January, 1974, praying that the respondents be directed to allow him to continue in the Social Welfare Department on the pay and scale he was last drawing and the order dated !4th May, 1973, be quashed. In the alternative he prayed that the respondent be directed to post him on the post of Deputy Superintendant Jail in the pay scale fixed for that post.
(2.) MEANWHILE, the petitioner was without any posting and was getting no salary. It was upon the directions of this court that his posting orders were issued on 27th February, 1974, posting him as Assistant Jailor, Bhilwara. At present, the petitioner is holding the job of the Jailor since 1st September, 1976, and he is getting Rs 690/- in the grade of 450-770 The contention of the State Government is that the petitioner has been given all the benefits which he would have had if he had remained in his parent department right from the time of his transfer to the Social Welfare Department until his reversion thereform. Two contentions were raised by Mr, Kasliwal the learned council for the petitioner, namely, (!) that since he was transferred by the order of the State Government, it was a case of permanent transfer to the Department of Social Welfare and he could not be reverted to the Jails Department; and (2) that after issuing his reversion orders, the Government amended the Rajasthan Social Welfare Subordinate Service Rules, 1963 by its notification published in the Rajasthan Gazette of 3rd February, 1976. By this amendment persons belonging to his category were made eligible for screening by a committee to judge their suitability on the posts last held by them. The petitioner snbmitted that he is entitled to be screened under that provision. The learned Government Advocate contended that his case was not covered by the amendend rule and moreover, the matter of screening under the aforesaid Rule has to be decided by the Rajasthan Civil Services Appellate Tribunal. I have considered very carefully. It is true that the petitioner was transferred from the Jail Department to the Social Welfare Department but then, he got no permanent appointment in the latter department and never lost his lien in his parent department. If his stand were accepted, then upon non-selection, or non-concurrence by the Rajasthan Public Service Commission, he will have no post to fall back upon. Therefore, the contention that on his transfer, he became a permanent employee of the Social Welfare Department has to be rejected. In respect of the second contention we have to examine the effect of the new proviso (4) inserted in Rule 6 of the Service Rules of 1963. The relevant portion with which we are immediately concerned is as follows: " (4) - that the persons not covered by proviso (3) to rule 6 and having no lien on any post in the Service, who were appointed to the posts included in the Schedule in adhoc/officiating/temporary basis in the relevant group on or before 30. 6. 1973 and were working continuously as such or on higher posts in the Social welfare Department and would have worked but for their appointment on any other post on the date these rules come into force shall be screened by a committee referred to in rule 24 for adjudging their suitability on the posts held provided that they possess the academic qualificaions prescribed in these rules either for direct recruitment or promption or the prescribed qualifications on the basis of which the persons were selected for adhoc/officiating/temporary appointment. " The contention of the State that the matter of screening falls within the jurisdiction of the Services Appellate Tribunal has to be rejected because when the writ petition was filed the Services Tribunal had not come into existence and the pending writ petition shall have to be decided by this court taking into account the subsequent change in the relevent service Rules to which the State has also referred in its reply. The aforesaid proviso shows that a person shall be eligible for being screened by a committee for adjudging his suitability on the post held by him provided: (1) he possesses the academic qualifications prescribed in these Rules either for direct recruitment or promotion or the qualification which were required at the time of his initial appointment; (2) he had no lien on any post in the Rajasthan Social Welfare Subordinate Service; (3) he was appointed to one of the posts included in the schedule on adhoc, officiating or temporary basis on or before 30th June,1973; and (4) he was working continuously on that post on a higher post in the Social Welfare Department and would have worked but for his appointment on any other post on the date these rules came into force.
(3.) NOW, There is no doubt that the petitioner fulfils all the aforesaid requirements except the last one as contended by the State The last requirement is that the person in order to be eligible for screening, should be one who would have continued to work on the post if he had not been appointed on any other post on the date these rules came into force. Reading Rule 6 as a whole as it stood after its amendment, it will be noticed that the words 'these rules' occurred at several places and they refer to the principal Rules of 1963 which came made into force on 27?h December, 1963, on which date many of the officers may not even be in the Department at all. If the interpretation does and should prevail, then, the 4th requirement simply becomes unworkable and for the lapse of the draftman the petitioner cannot be allowed to suffer. The learned Government advocate made a bold attempt to explain that the words, "these rules" occurring in the newly inserted proviso referred to the Rajasthan Social Welfare Subordinate Services (Amendment) Rules, 1976, because such was the intention of the law making authority. No doubt, Denning L. J. in Seafard Court Estates Ltd-, vs. Asher observed that - "it would certainly same the judges trouble if Acts of Parliament were drafted with dirune prescidence and perfect clamity. In the absence it, when a defect appears, a Judge cannot, simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of parliament, and he must do this not only from the language of the statute, but also from a consideration to of the social condition which grave rise it and of the mischief which it was passed to remedy, and then he must supplement the written words so as to given 'force and life' to the intention of legislature. Pet into homely metaphor it is this: a Judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out. He must then do as they would have done. A judge must not alter the material of which the Act is woven but he can and should iron out the creases. " Again in Magor and St. Mellons v. Newport Corpn he remarked: "we do not sit here to pull the language of Parliament and of Ministers to pieces and make non-sense of it. That is an easy thing to do and it is a thing to which lawyers are too often prove. We sit here to find out the intention of parliament and of Minsiters and carry it out, and we do the better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis. " But the House of Lords in Megor & St. Mellons vs. Newports Corpn. disapproved these propositions and observed that such an approach was a naked resurpa-tionofthe legislative function under the thin disguise of interpretation. With utmost humility and respect, I subscribe to the views propounded by the House of Lords because the rule of law in the ultimate analysis is nothing but the rule of the words employed by the legislature and they must receive interpretation such as is conducive to justice in consonance with the rights of the people, and I am not persuaded to read the aforesaid newly inserted proviso in any manner other than the one in which statutes are generally made and read. The language of the insertion is far from satisfactory. But even if I were to accept the contention that "these rules" intead by implication to mean the amendment rules, then the word 'post' creates a further complication. It does not and cannot mean a post in any other department. It shall have to be construed to refer to one of the posts included in the schedule to the rules and certainly the petitioner could have continued to work as on 3rd February, 1976, he was not holding any other post shown in the schedule. His appoitment to the post of the Assistant Jailor, Bhil-wara in 1974 can have no reference or relevance of any kind to the words 'any other post', occuring in the amendment priviso. I am, therefore, of the view that the case of the petitioner is covered by the wordings of the newly inserted provi-so (4) and he is entitled to be screened by the committee referred to in Rule 24. So, as far as the Jails Department is concerned no relief is called for but as far as the Social Welfare Department is concerned, the petitioner is entitled to a direction in view of the amended rule in spite of the fact that he is currently working in his parent department. I, therefore, accept this writ petition and direct that the State Government shall place within a period of two months hereof, the case of the petitioner before the Screening Committee as envisaged in the Rules for adjudging his suitability on the last post held by him in the Social Welfare Department. In case the Screening Committee finds him suitable, the consequent benifits shall necessarily follow. If he is not selected, that will be an end of the matter and the petitioner may continue to seek his future in the Jails Department. No order as to costs. . ;