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PETITIONER: STATE OF RAJASTHAN

       Vs.

RESPONDENT: DINESH KUMAR BHARTI

DATE OF JUDGMENT:       20/01/1997

BENCH: K. RAMASWAMY, G.T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      We have heard Learned counsel for both the parties.      This appeal  by special  leave arises from the judgment of the  single Judge  of the  Rajasthan High  Court made  on November 4,  1992 in  S.A No  175 of 1992. The Learned Judge dismissed the  second appeal  on the  ground of limitation . After hearing  the learned  counsel for  both  the  parties, instead of  remanding the  matter, we  think that  it can be disposed of  on merits.   The respondent was appointed on ad hoc basis  as a  teacher on September 30,1970. The Screening Committee constituted  to regularise  the services of the ad hoc teachers  found that  the respondent  was not  fit to be confirmed. On  the basis  thereof, the  order of termination came to  be made  on May  8 1974.  It was  challenged in the suit. Ultimately, when it was decreed by the trial Court and affirmed by  the appellate  Court, the  High Court dismissed the second  appeal on the ground of limitation. The District Judge relied  upon Rule  23A of the Rajasthan Service Rules, 1951 to  hold that prior notice required by Rule 23A was not given to  terminate the service. So the order is bad in law. Rule 6(b)(3) of the Rules provides thus;      " Rule  6(b)(3)  -  that  a  person      holding any  of the following grade      I post in sections B,C,D,E and F or      any of  the posts in section "A" of      the scheduled  on 31.12.72 in an ad      hoc /officiating/temporary capacity      and who  had continuously  hold the      said post or would have held any of      these posts  put fFp his deputation      elsewhere, for  a period  not  less      than six  months on  15-12-1971 and      was working  as such on the date of      publication  of  these  (amendment)      Rules  shall   be  screened   by  a      committee referred  to in  Rule 25,      for adjudging  his suitability  for      such post,  provided  he  possesses      the  qualifications  prescribed  in

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    the   rules   either   for   direct      recruitment or for promotion or the      prescribed  qualification   of  the      posts on  the basis of which he was      appointed  in   the   ad   hoc   or      officiating or  temporary  capacity      on such post."      Under Rule  25, Screening  Committee was  appointed  to adjudge   the   suitability   of   ad   hoc   teachers   for regularisation. As  a consequence  of the  above  rule,  the Screening Committee  considered the persons holding posts on temporary or officiating basis or in ad hoc capacity who had continuously held the post for a period of not less than six months as  on December  15, 1971 and were working as such on the date  of the  publication of the Amendment of the rules. They were required to be screened by a Committee constituted under Rule  25 to  adjudge their  suitability to  the  posts provided they possess the qualification prescribed under the Rule either  for the  direct recruitment or for promotion or the prescribed  qualification of  the posts  on the basis of which they  were appointed  in  ad  hoc  or  officiating  or temporary   capacity.    Admittedly,   the   Committee   was constituted in  1974 under Rule 25 and the Committee came to the conclusion  that  the  respondent  was  not  fit  to  be confirmed. Rule  23A was  inserted w.e.f. July 10,1981. Rule 23A (2)(a) reads as under:      "The   service   of   a   temporary      Government servant  who has been in      continuous Government  services for      more  than   three  years  and  who      satisfied   the    suitability   in      respect of  age and  qualifications      prescribed for  the  post  and  has      been appointed in consultation with      the   Rajasthan    Public   Service      Commission  where  such  liable  to      termination at any time by a notice      of three  moths  given  in  writing      either by the Government servant to      the appointing  authority or by the      appointing   authority    to    the      Government servant:      Provided that  the service  of  any      such  Government   servant  may  be      terminated forthwith,  and on  such      terminated forthwith,  and on  such      termination the  Government servant      shall be  entitled to  claim a  sum      equivalent to the amount of his pay      plus   allowances for the period of      notice at the same rate at which he      was drawing  immediately before the      termination of  his service for the      period by  which such  notice falls      short of  three months, as the case      may be".      Therefore, Rule  23(2) per  se was  inapplicable.  Even otherwise, assuming  that it  was applicable, it would apply to  a  case  where  consultation  with  the  public  service commission is  necessary and  the public  service commission finds the  Government servant not eligible to be confirmed.; In such  a case,  termination of  the services could be made only after  giving three months notice in writing. In such a case, termination  of the  services could be made only after giving three  months notice  in writing.  In this  case, the

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Screening committee  was constituted.  it is obviously not a case covered under Section 23A for obtaining the concurrence of the Public Service Commission. Under those circumstances, the view  of the  courts below  was obviously incorrect. The High Court  was incorrect  in dismissing  the appeal  on the ground of delay.      The appeal  is accordingly  allowed. The  order of  the courts below stands set aside. No costs.