Ganpat vs Raj. High Court And Ors
2022 Latest Caselaw 6185 Raj

     HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                      JODHPUR


              D.B. Civil Writ Petition No. 12564/2013

Ganpat S/o Shri Jagdish, Aged about 26 years, R/o Shaheed
Raja Ram Park, Raj Bagh, Soorsagar, Meghwalo Ka Mohalla,
Jodhpur, Rajasthan.
                                                                    ----Petitioner
                                    Versus
1.    Rajasthan     High       Court    through        its   Registrar   General,
      Rajasthan High Court Jodhpur, Rajasthan.
2.    Registrar     General,       Rajasthan          High       Court   Jodhpur,
      Rajasthan.
3.    Registrar     (Admn.),        Rajasthan          High      Court   Jodhpur,
      Rajasthan.
                                                                  ----Respondent




For Petitioner(s)          :     Dr. Nupur Bhati
For Respondent(s)          :     Mr. G.R. Punia, Senior Advocate
                                 assisted by Mr. Jai Naveen



           HON'BLE MR. JUSTICE SANDEEP MEHTA
             HON'BLE MR. JUSTICE FARJAND ALI

                               JUDGMENT

Date of pronouncement                   :::             27/04/2022
Order reserved on                       :::             08/04/2022


BY THE COURT : PER HON'BLE MEHTA, J.

1. Brief facts relevant and essential for disposal of the writ

petition are noted hereinbelow:

The petitioner herein was appointed as a Class-IV employee

under Rule 16 of the Rajasthan High Court Staff Service Rules,

2002 (hereinafter referred to as in short 'the Rules of 2002') vide

(2 of 8) [CW-12564/2013]

order dated 18.11.2009 on purely adhoc basis for a period of six

months which was further extended upto 31.12.2010.

2. A notice dated 16.12.2011 was served to the petitioner

attributing allegations of undisciplined behaviour. The petitioner

claims to have offered reply/ explanation to the notice. A

memorandum proposing initiation of departmental enquiry under

Rule 17 of the The Rajasthan Civil Services (Classification, Control

and Appeal) Rules, 1958, was served to the petitioner on

16.03.2012 for alleged misconduct while discharging duty and of

remaining absent from duty without intimation. Repeated notices

were served to the petitioner for furnishing the explanation and

for personal hearing. The petitioner replied to the notices denying

the allegations set out therein and claimed that he was ailing and

that is why, he could not report for duty on some occasions. An

order dated 22.06.2013 was issued whereby, adhoc services of the

petitioner were not continued.

3. The petitioner claims to have submitted a representation to

the respondents on 04.07.2013 being aggrieved of the non-

extension of his services to which, a communication dated

11.09.2013 was received that the representation had been filed.

The petitioner made another representation to the respondents on

30.07.2013 claiming that his termination was illegal and that

persons similarly situated to him had been afforded extension of

service and as a consequence, he too was entitled to be reinstated

on the post with consequential regularization in service. However,

no response whatsoever was given to the said representation of

(3 of 8) [CW-12564/2013]

the petitioner on which, he has preferred the instant writ petition

for assailing the impugned action and with a prayer to direct the

respondents to regularize his services.

4. Dr. Nupur Bhati, learned counsel representing the petitioner,

vehemently and fervently urged that the petitioner was

discharging its duties sincerely and satisfactorily. He was taken ill

and thus, on few dates he could not report for duty. The

respondents acted in an absolutely arbitrary and high handed

fashion while initiating an enquiry against the petitioner on

unfounded allegations and vague charges. Proper opportunity to

explain the alleged misconduct was not given to the petitioner.

Without even concluding the enquiry, the respondents issued the

impugned order whereby, services of the petitioner was

terminated. Dr. Bhati further urged that being aggrieved by the

termination of service, the petitioner submitted a representation

to Hon'ble the Chief Justice which should have been treated to be

an appeal but no action whatsoever was taken on such

representation and hence, the petitioner has been severely

prejudiced. The impugned action is on the face of record arbitrary,

illegal and contrary to the principles of natural justice. The

respondents have regularized and confirmed services of

employees situated at par with the petitioner and hence, he too

deserves the same treatment on parity. On these grounds, Dr.

Bhati implored the Court to accept the writ petition and direct the

respondents to reinstate and regularize the services of the

petitioner from the date of his initial appointment i.e. 18.11.2009.

(4 of 8) [CW-12564/2013]

5. Per contra, Shri G.R. Punia, learned Senior Counsel assisted

by Shri Jai Naveen, Advocate representing the respondents

vehemently and fervently opposed the submissions advanced by

Dr. Bhati. He urged that the appointment of the petitioner as a

class-IV employee was made purely on temporary basis under

Rule 16 of the Rules of 2002. Such appointment was adhoc and

did not give any right to the petitioner to claim regularization in

service. Even during his adhoc service tenure, numerous

complaints were received against the petitioner of being found

inebriated on duty and of frequent unauthorized absence from

duty and as such, a conscious decision was taken to not to

continue the adhoc service of the petitioner. He thus urged that

the impugned action cannot be called into question by exercising

the extraordinary writ jurisdiction conferred upon this Court by

Article 226 of the Constitution of India.

6. We have given our thoughtful consideration to the

submissions advanced at bar and have gone through the material

placed on record.

7. First of all, it would be relevant to consider import of Rule 16

of the Rules of 2002 under which, the petitioner was given

temporary appointment. The rule reads as below:-

"16. URGENT TEMPORARY APPOINTMENTS.-- (1) A vacant post in the service which cannot be filled in immediately either by direct recruitment or by promotion or by transfer from subordinate courts or from offices of Government under the Rules may be filled in by the Appointing Authority by appointing in an

(5 of 8) [CW-12564/2013]

officiating capacity thereto a member of service eligible for appointment to the post by promotion or by appointing temporarily thereto a person eligible for direct recruitment to the post, where such direct recruitment has been provided under the provisions of these Rules, until a regular appointment is made in accordance with these Rules. (2) The post in service on which a person is appointed under Sub-rule (1) shall be filled in by a regular appointment as soon as possible. (3) A person appointed under Sub-rule (1) shall not be regarded as a probationer holding the post nor such appointment shall confer upon him any right to claim appointment to such post on regular basis unless he is selected for the regular appointment under these Rules."

A bare perusal of the above rule makes it clear that status of

urgent temporary appointment which was conferred upon the

petitioner, does not give him a right to claim regular appointment

on the post without facing the process of regular selection. Thus,

merely because the petitioner was given adhoc appointment under

Rule 16 of the Rules of 2002, that did not give him any right to

claim regular appointment. Sub-clause (3) of the Rule makes it

clear that the appointment under sub Rule (1) would not even

confer the status of probationer to the person holding such post.

8. Law is well settled by a catena of Supreme Court judgments

that even the services of an employee on probation after regular

selection can be dispensed with without assigning reasons.

Jurisdiction of confirming the services of a regularly selected

candidate who is undergoing the probation period is with the

employer. If the conduct of such employee during the probation

(6 of 8) [CW-12564/2013]

period is not satisfactory, the appointing authority can take a

decision not to confirm his/her services and no elaborate reasons

are required for such a decision. In the case in hand, the

petitioner was appointed on purely adhoc basis and thus, he could

not claim any right to be regularly appointed or to be continued on

the post on adhoc basis. In addition thereto, the respondents have

presented sufficient material on record to indicate that even

during the tenure of his purely adhoc services, the petitioner was

found intoxicated on duty and also remained absent from duty on

number of dates without any intimation/permission. Thus, the

respondents were absolutely justified in taking the decision of not

continuing the adhoc services of the petitioner.

9. The plea of Dr. Bhati that the representation (Annexure-13)

dated 04.07.2013 filed by the petitioner should have been treated

to be a departmental appeal, is also of no avail whatsoever for the

simple reason that the decision not to continue the adhoc services

of the petitioner is exclusively within the domain of the employer.

The petitioner has no vested right of being continued in services

on adhoc basis. The decision so taken vide order (Annexure-12)

dated 22.6.2013, reads as below:-

"In continuation to this office order no.

Esst/HC/2010/220 dated 12.07.2010, the term of appointment of Shri Ganpat S/o Shri Jagdish, adhoc Class-IV servant, Rajasthan High Court, Jodhpur is not further extended. His services are discontinued forth with."

(7 of 8) [CW-12564/2013]

10. Rule 28 of the Rules of 2002, deals with the procedure of

representation which reads as below:-

"28. REPRESENTATIONS:--Any person aggrieved by an order of the Registrar General, relating to promotion, seniority or compulsory retirement under sub-rule (2) of Rule 244 of the Rajasthan Service Rules, or any other matter not covered under Rule 29 of these Rules, may within a period of three months make a representation to the Chief Justice who may either dispose it of himself or refer it for disposal to a Committee of three Judges nominated by him for the purpose."

11. Apparently, thus, a person covered by the Rules of 2016 can

file representation in relation to issues of promotion, seniority or

compulsory retirement. The Right to file an appeal is provided

under clause 29(c) of the Rules which makes it clear that appeal

can only be entertained against an order of penalty imposed by

following the procedure provided under Rule 29 of the Rules.

Manifestly, as the order of which the petitioner is aggrieved, was

not of imposition of penalty, no appeal lies thereagainst.

12. The argument advanced by Dr. Bhati that the petitioner's

services deserve to be regularized at par with the other similarly

situated candidates is also devoid of merit. The respondents after

due consideration of the material indicating gross undisciplined

behaviour of the petitioner did not find it appropriate to continue

the adhoc services of the petitioner. As the petitioner was not even

found suitable to be continued on the post on adhoc basis, he

cannot claim regularization.

(8 of 8) [CW-12564/2013]

13. Thus, there is no merit in the instant writ petition which is

dismissed as such.

                                   (FARJAND ALI),J                                         (SANDEEP MEHTA),J


                                   Devesh/-









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