S.C. Agrawal, J.
1. In this writ petition filed under Articles 226 and 227 of the Constitution, the petitioner, Shri Poonam Chand has prayed for the issue of an appropriate writ quashing the order dated 19th April, 1978 passed by Hon'ble Shri Justice K.D. Sharma as the Administrative Judge, and the order dated 22nd April, 1978 passed by the District Judge Jodhpur (hereinafter referred to as the District Judge).
2. The facts, briefly stated, are as under: The petitioner Poonam Chand and Shri Sheo Dutt Harsh, respondent No. 3 here in are employees in the Ministerial Establishment of the Court of District Judge at jodhpur and the terms and conditions of their service are governed by the Rajasthan Subordinate Civil Courts Ministerial Establishment Rules, 1958 (hereinafter referred to as 'the Rules'). The petitioner joined service as Lower Division Clerk on 1st October, 1947 in the then Chief Court of the former State of Jodhpur He was promoted as Upper Division Clerk on 14th April, 1954 and he was promoted as Assistant with effect from 1st November, 1969
3. Respondent No. 3, Shri Sheo Datt Harsh, was appointed as Lower Division Clerk in the then Chief Court of the former State of Jodhpur on 7th March, 1946 and he was promoted as Upper Division Clerk on 4th July 1951 and on 23rd Ageist, 1969 he was selected as Assistant and thereafter he was promoted to the post of Reader permanently on 25th July, 1970. He was confirmed in the grade of Reader with effect from 25th July 1970. The petitioner has not been confirmed in the grade of Reader as yet. The post of Munsarim in the Court of District Judge at Jodhpur fell vacant on 31st December 1975 on the retirement of Shri Subhraj Dhariwal. Till any order for promotion to the post of Munsarim could be passed, the District Judge, by his order dated 16th December, 1975, directed that Shri Narain Singh, Senior Clerk, will look-after the work of Munsarim in additions to his own duties till further orders. By order dated 29th March, 1976, the District Judge appointed the petitioner to officiate as Munsarim in the District Court of Jodhpur with effect from the date he takes over the charge of the said post, By another order dated 24th April, 1976, the District Judge fixed the pay of the petitioner on the post of Munsarim at Rs. 410/- in the pay seals 200-15 350 20-450 and directed that the date for the next increment will be 1st April, 1976, Respondent No. 3, feeling aggrieved by the said order of the District Judge appointing the petitioner as Munsarim, submitted a representation dated 1Ith May, 1976 before the District Judge. It appears that no action was taken on the said representation of respondent No. 3 and, therefore, Respondent No. 3 submitted another representation dated 3rd April, 1978 The said representation was addressed to the Registrar of this Court. The original representation was submitted through the District Judge but a copy or the same was sent directly to the Registrar of this Court. After the said representation had been received by the Registrar of this Court, the comments of the District Judge along with the service record and confidential rolls of Respondent No 3 were called for. In response to the same, the District Judge sent his comments along with the service record and confidential rolls of Respondent No. 3 to the Registrar. In his comments, the District Judge, while admitting that respondent No. 3 is senior to the petitioner, has stated that respondent No. 3 was passed over and not promoted to the post of Munsarim in the interest of office administration in as much as there were series of complaints against respondent No. 3 and his general behavior was not good and he lacked sobriety and that he talked too much and irrelevant. In his comments aforesaid, the District Judge also stated that on perusal of the service record of respondent No. 3, it was found that he was once suspended and a penalty was imposed on him In the meanwhile, the petitioner proceeded on leave from 10th April, to 9th May, 1978 and the District Judge passed an order dated 10th April, 1978, appointing respondent No. 3, as Munsarim on an officiating basis for a period of one month from 10th April, 1973. On 15th April, 1978, the District Judge passed another order, wherein he has considered the submissions made by respondent No. 3 in the representation submitted by him against the order promoting the petitioner on the post of Munsarim and has given reasons why respondent No. 3 was passed over and was not promoted and the petitioner was promoted on the said post. In the said order dated 15th April, 1978, the District Judge has observed that there has been change in the conduct and behavior of respondent No. 3 and that the petitioner had expressed a desire to seek retirement after availing the leave due to him and in these circumstances the charge of the office of Munsarim had been entrusted to respondent No. 3 on an officiating basis till the petitioner was on leave and that in the circumstances, it was not necessary to revert the petitioner. It appears that the petitioner also came to know that respondent No. 3 had submitted a representation to the Registrar of this Court and he also submitted a representation dated 7th April, 1978 in the form of a reply to the representation of respondent No. 3 dated 11th May, 1976. The said representation of the petitioner was addressed to the District Judge. The representation of respondent No. 3 dated 3rd April, 1978 was well as the representation of the petitioner dated 7th April, 1978 were considered by Hon'ble Shri K.D. Sharma, who was the Administrative Judge at that time & by his order dated 19-4-1978, the Hon'ble Administrative Judge, while accepting the representation of respondent No. 3 & rejecting the representation of the petitioner arrived at the conclusion that respondent No. 3 deserves promotion to the post of Munsarim & that there is no justification for passing him over specially when he is ser for most & has good knowledge of law, rules and procedure. The Hon'ble Administrative Judge, by his order dated 19-4 78, directed the District Judge to pass necessary orders regarding the promotion of respondent No. 3 to the post of Munsarim in the light of observations contained in the aforesaid order. In pursuance of the aforesaid order passed by the Hon'ble Administrative Judge, the District Judge, by his order dated 22nd April, 1978, promoted respondent No. 3 to the post of Munsarim and by the same order the petitioner was reverted to the post of Head Copyist. Being aggrieved by the aforesaid order dated 19th April, 1978 passed by the Hon'ble Administrative Judge and the order dated 22nd April, 1978 passed by the District Judge, Jodhpur, the petitioner has filed this writ petition.
4. In the writ petition the petitioner has submitted that he had been duly appointed on the post of Munsarim and that the only remedy available to respondent No. 3 was to file an appeal under Rule 20(2) of the Rules against the order dated 29th March 1976 whereby the petitioner was appointed as Munsarim and that Respondent No. 3 having failed to file any appeal against the aforesaid order under Rule 20(2) of the Rules, the representation submitted by him against the aforesaid order before the Registrar of this Court was not competent and could not be accepted. In the writ petition, the petitioner has further submitted that the Hon'ble Administrative Judge had no jurisdiction to consider the said representation of respondent No. 3 and pass orders thereon and that all the Judges of this Court alone are competent to drat with an appeal or representation filed against an order of a District Judge. The petitioner, in his writ petition, has further submitted that the order dated 19th April, 1978 was passed by the Hon'ble Administrative Judge without affording any opportunity to the petitioner to make his submission with regard to the representation submitted by respondent No. 3 and the said representation was allowed without giving any notice to the petitioner and the order dated 19th April, 1978 was thus passed in violation of the principles of natural justice. In the writ petition, the petitioner has also submitted that by order dated 29th March, 1976, the petitioner had been promoted on a substantive vacancy and that in view of the provisions contained under Rule 24 of the Rules, the petitioner shall be deemed to have been confirmed on the post of Munsarim at the end of the pet and of one and half years and that as a result of the reversion from the post of Munsarim to the post of Head Copyist under the impugned order, the petitioner has been reduced in rank in contravention of the provisions ofArticle 311(2) of the Constitution. The petitioner has also challenged the impugned orders on the ground that they are volatile of the fundamental rights of the petitions guaranteed under Article 14 & 16 of the Constitution in as much as the Hon'ble Administrative Judge, while considering the representation of respondent No. 3 did not give an opportunity of hearing, to the petitioner and thus did not consider the case of the petitioner on merits.
5. In the reply to the writ petition filed on behalf of the District Judge, respondent No. 1, it is stated that the petitioner could not claim that he should be deemed to hive been on firmed on the post of Munsarim in the absence of a formal order of confirmation being passed by District Judge in as much as Rule 24, on which reliance has been placed by the petitioner, is applicable only to persons appointed after recruitment test and the said Rule does not apply in the cases of promotion which are governed by Rule 13 of the Rules In the said reply, it is also stated that the appointment of the petitioner by order dated 29th March, 197o was not an appointment made under Rule 20 of the Rules and that the petitioner had temporarily been permitted to officiate as Munsarim under Rule 35 of the Rajasthan Service Rules and that no appeal lay to this Curt against the aforesaid Older dated 29th March, 1978 and that the representation submitted by respondent No. 3 to the Registrar of this Court was representation made under Rule 35(B) of the Rajasthan Service Rules. In the said reply, it has also been stated that the petitioner having been appointed to officiate under a local arrangement only, could not claim any right what so ever on the basis of the said order.
6. A reply to the writ petition has also been filed on behalf of the Hon'ble Administrative Judge. In the said reply, it has been pointed out that under standing order No. 10, dated November 29, 1977, issued by the Hon'ble the Chief Justice, it has been directed that the administrative work relating to the subordinate courts will be dealt the by the Hon'ble Administrative Judge except the matters mentioned in the Standing Order which shall be referred to the Chief Justice for disposal In the said reply, it has been pointed out that the representations received by the High Court from persons employed in the Ministerial Establishment of the Civil Courts subordinate to the High Court are not included amongst the matters which are required to be referred to the Chief Justice for disposal and, therefore, the Hon'ble Administrative Judge was competent to deal with the representation submitted by respondent No. 3 In the said reply it is also stated that the representation of respondent No. 3 cannot be regarded as an appeal and it was not obligatory for the Hon'ble Administrative Judge to give an opportunity of personal hearing to any one and that the representation submitted by respondent No. 3 as well as the petitioner were considered by the Hon'ble Administrative Judge and the matter was disposed of on merits after looking into the service records of respondent No. 3 and the petitioner.
7. Respondent No. 3 has also filed a reply in the form: of preliminary objections to the maintainability of the writ petition.
8 Before dealing with the submissions urged by the learned Counsel for the petitioner on merits of the case, it will be necessary to deal with the contentions urged by the learned Counsel for the respondents with regard to the maintainability of the writ petition.
9. The first contention which has been urged by the learned Counsel for the respondent No. 3 is that the petitioner has submitted a representation dated 8th May, 1978 before this Court against the order dated 2nd April, 4978 passed by the District Judge, whereby the petitioner has been reverted from the post, of Munsarim to the post of Head Copyist, and that the petitioner, having availed the alternative remedy of approaching this Court on the administrative side for the redress of his grievances, can not, at the same time, peruse his writ petition for the same relief, i.e. quashing of the order dated 22nd April, 1978 passed by the District Judge. In reply to the aforesaid submission, the Iterant counsel fur the petitioner has submitted* that the order dated 22nd April, 1978 pawed by the District Judge was only in the nature of a consequential order passed in a cord race with the Direction given by the Hon'ble Administrative Judge, in his order dated 19th April, 1978 and that in his representation against the order dated 22nd April 1978, it will not be open to the petitioner to challenge the correctness of the order dated 19th April, 1978 passed by the Hon'ble Administrative Judge and, therefore, the aforesaid representation against the order dated 22nd April, 1978 will rot afford any relief to the petitioner. We are in agreement with the aforesaid submission of the learned Counsel for the petitioner that the representation which has been submitted by the directed against the order dated 22nd April 1978 will not afford an effective relief to 'he petitioner in as much as the said representation is directed against the order dated 22nd April 1978. passed by the District Judge which order is of a consequential nature only having been passed by the District Judge in accordance with the directions given by the Hon'ble Administrative Judge and unless the petitioner is liable to canvass that the order dated 19th April, 1978 passed by the Hon'ble Administrative Judge is not correct, it will that be possible for him to obtain any relief on the said representation In accordance with the Rules of this Court & the Standing Order No. 10 dated 29th November, 1977 on which reliance has been placed in the reply filed on behalf of the Hon'ble Administrative Judge. The aforesaid representation of the petitioner-will come tip for consideration before the Hon'ble Administrative Judge. It will thus not be possible for the petitioner to challenge the coreless of the earlier order passed by the Hon'ble Administrative Judge on the said representation. We are, therefore, of the view that the aforesaid preliminary objection raised by the learned Counsel for respondent No. 3 as to the maintainability of she writ petition cans of be accepted.
10. The learned Counsel for respondent No. 3 has next contended that the reversion of the petitioner under the order dated 22nd April, 1978 falls within the definition of service matters' contained in Section 2(f) of the Rajasthan Civil Services (Service Matters Appellate Tribunals) Act 1976 and an appeal lay before the Rajasthan Civil Services Appellate Tribunal against the aforesaid order dated 22nd April 1978 and that the petitioner, having failed to avail the aforesaid alternative remedy of appeal to the Rajasthan Civil Services Appellate Tribunal available to him, could not invoke the jurisdiction of this Court under April 226 of the Constitution in view of the provisions contained in Clause (3) of Article 226 of the: Constitution, as amended by the Constitution (Forty Second Amendment Act, 1976 In reply to the aforesaid contention the learned Counsel for the petitioner has submitted that under Article 226 of the Constitution, the control over District Courts and Courts subordinate thereto is vested in the High Court and, therefore, the High Court alone is competent to deal with the appeals or representations which are submitted by persons in the Ministerial Establishment of the Civil Courts Subordinate to the High Court and the provisions of Rajasthan Civil Services (Service Matters Appellate Tribunal) Act, 1976 can have no application to the employees who*are in the ministerial establishment of the Civil Courts subordinate to the High Court and, therefore, no appeal lay before the Rajasthan Civil Services Appellate Tribunal, which has been constituted under the aforesaid Act, against the order dated 22nd April, 1978 passed by the District Judge. In support of his aforesaid submission the learned Counsel for the petitioner has placed reliance on a decision of the Full Bench of Gujarat High court in R.M. Gajjar v. State of Gujarat and Ors A.I.R. 1978 Guj 102.
11. In our opinion the aforesaid submission of the learned Counsel for the petitioner merits acceptance. Article 235 of the Constitution expressly lave dawn that the control over District Courts and Courts subordinate there to including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of the State and holding any post inferior to the post of District Judge shall be vested in the High Court While construing the aforesaid provisions, the Supreme Court, in State of West Bengal and Anr. v. nripendra Nath Bagchi A.I.R. 1966 S.C. 447, has laid down that by virtue of the aforesaid provisions, 'the High Court is made the sole custodian of the control over the judiciary.' According to the Supreme Court, the control has been vested in the High Court for the purpose of securing the independence of the subordinate judiciary. In our view the control which is vested in the High Court under Article 235 of the Constitution cannot be confined to the judicial service only and it also extends to the subordinate staff which is employed in the ministerial establishment of the Civil Courts which are subordinate to the High Court. The subordinate staff attached to a Court is necessary for the effective functioning of the sea court an. the vesting of the control over the 'district courts and courts subordinate thereto' in the High Court postulates that the Presiding Officers of the courts and the functionaries attached to the court are put under the control of the High Court. The object of securing the independence of the judiciary would be completely frustrated if the Presiding Officers of the District Courts & Courts subordinate thereto alone are placed under the control of the High Court & the subordinate staff attached to their Courts are wholly controlled & governed by the State Govt. because in that event the Presiding Officers of the District Courts & Courts subordinate the i.e. to would have to go the Govt. in every case of indiscipline, however small. In our opinion the expression 'district courts and courts subordinate thereto' in Article 235 must be construed to include the Presiding Officers of the said Courts as well as the subordinate staff attached to those courts and the High Court is the sole custodian of the control over the subordinate judiciary including the staff employed in the Civil Courts subordinate to the High Court.
12. In taking the aforesaid view, we find ourselves fortified by the decisions of the High Court of Punjab and Haryana and the High Court of Gujarat. In Amar Singh v. The Chief Justice of Punjab and Haryana High Court (sic) the question whether the control of the High Court over District Courts and the Courts subordinate thereto; as envisaged by Article 235 of the Constitution, extends to all the functionaries attached to the said Courts, came up for consideration before a Full Bench of the High Court of Punjab & Haryana and answering the said question in the affirmative the High Court has observed:
On a plain grammatical construction of the words 'District Courts and the Courts subordinate thereto' it seems to follow that this must compendiously include all persons attached thereto without any finical extinction between the Presiding Officer and the functionaries attached to him.
One cannot imagine a subordinate Court functioning effectively in which the presiding officer alone is under the control of the High Court while all other functionaries and the administrative staff attached thereto are neither under the control of the High Court nor that of the Presiding Officer himself but are wholly controlled and governed by the State Government. Such a situation appears to me in practice to be wholly destructive of the harmonious and effective working of the subordinate Courts.
The analogy of Article 229 of the Constitution also necessarily comes to mind. In the context of the High Court itself the administrative staff thereof has been put entirely within the power and control of the Chief Justice including even the power of appointment and dismissal etc, and the prescription of their conditions of service. As regards the functionaries and the staff of the District Courts, and the Courts subordinate thereto, the Constitution did not go that far and instead vested the control over the same in the High Court by virtue of Article 235. It does not seem to stand to reason that the High Courts and through them the Presiding Officers of the subordinate courts would be denuded of powers and control over their ministerial staff for the purpose of discharging their functions.
13. Similarly in R.M. Gajjar v. State of Gujarat AIR 1978 Guj. 102, the question whether the control vested in the High Courts under Article 235 of the Constitution is exercisable only over members of the judicial service of the State as defined in Article 236(b) or whether the ministerial officers and servants over the establishment of the subordinate courts are also ultimately subject to such control, was answered in the affirmative by a Pull Bench of the Gujarat High Court. In that case two class III e, employees on the establishment of the Civil Courts at Rajpipla and Jumbusar in the district of Broach had been charged-sheeted by the District Judge and after holding an enquiry, the District Judge had passed an order with holing future promotions with permanent effect. The High Court, on its administrative side, consider ed the afore said punishment grossly in-adequate and, in exercise of its powers under Rule 23 of the Gujarat Civil Service (Discipline aid Appeal) Rules, 1971, it issued a show cause notice on the said employees for enhancement of the punishment to one of removal from service and after hearing the said employees, the High Court directed the District Judge to pass an order, removing the said employees from service. In pursuance of the aforesaid directions of the High court, the District Judge passed an order, removing the said employees from service The aforesaid order of the District Judge as well as the order of the High Court were challenged by the two employees in writ petition before the Gujarat High Court wherein it was submitted that under the Gujarat Civil Service (Discipline and Appeal) Rules, 1971, the power to review a penalty, under Rule 23 had been conferred on the Government and such a power had not been conferred on the High Court and, therefore, the High Court was not competent to review the punishment imposed by the District Judge. The Gujarat High Court rejected the aforesaid contention and held that the terms 'Government' when ever used any where in the Rules would have to be modified in the disciplinary control context so as to conform to the constitutional mandate as only High Court would have jurisdiction and no other authority like the Public Service Commission or the Government would have any say in the matter of disciplinary control over the Courts. In that context the Full Bench of the Gujarat High Court, after examining the relevant law on the subject, has observed:
Such jurisdiction over the clerks and ministerial staff was always from the beginning vesting in the High Court and Article 225 and 227 were held to have preserved that jurisdiction and to some extent extended the same. Article 235 was held to take this control over the conduct and discipline of the Judges as well. Therefore, if the power superintendence over ah courts by way of administrative control in this compelling context is so wide as to take in both the courts and other administrative functionaries or ministerial staff, who are all various limbs to complete the whole organism called Courts', equally this control in Article 235 must extend both to the Judges as well as the whole Courts, when the same language is advisedly used at the time of the final draft by the opening words in Article 235.
Therefore, all these statutory resources lead to an inevitable conclusion as to the legislative intention being clearly to use the term 'Court compendiously in Article 235 to cover not only those judicial officers specially included in the later part i.e. members of the judicial service, but even other administrative functionaries or ministerial staff of the Court as well.
'Both principle and authority, we roust, therefore, answer the second question by holding that the, control vested in the High Courts under Art 225 of the Constitution is exercisable not only over members of the judicial service of the State as defined under Article 236(b) but even the ministerial officers and servants on the establishment of the subordinate Courts are also ultimately subject to such control.
In our opinion the extent of the control which is vested in the High Court over the sub-ordinate staff employed in the ministerial establishment of Civil Courts subordinate to the High Court is greater than the control that is vested in the High Court over the members of the Judicial Service. In so far a the members of the Judicial Service are concerned, the control, that is vested in the High Court under Article 235 of the Constitution is subject to the limitation that the High Court can only make its recommendation to the Governor and that the ultimate order of dismissal, removal or reduction in rank of a member of the Judicial Service can only be passed by the Governor, who is the appointing authority for the members of the Judicial service. But as regards the subordinate staff employed in the ministerial establishment of Civil Courts subordinate to the High Court, the appointing authority is the District Judge and, therefore, he is competent to pass the order of dismissal, removal or reduction in rank without making any reference to the Government. The District Judge, in the exercise of his powers in relation to the staff employed in the ministerial establishment of his Court, is subject to the control of the High Court and thus the High Court has complete control over the subordinate staff employed in the ministerial establishment of Civil Courts subordinate to the High Court.
14. The conferment of a right of appeal against an order passed by the District Judge with regard to an employee in the ministerial establishment of the District Court, to a person or authority, other than the High Court is bound to impinge on the control over the aforesaid employee which is vested in the High Court by Article 235 of the Constitution. The Rajasthan Civil Services (Service Matters Appellate Tribunals) Act, 1976, has been enacted by the Rajasthan State Legislature to provide for the constitution of Appellate Tribunals to hear appeals against an order passed by any officer or authority on any service matter or matters affecting a Government Servant in his personal capacity, 'Government Servant has been defined in Section 2(a) to mean a person who is or has been a member of Civil Service or who bold or has the a civil pest under the Government of Rajasthan. 'Civil Services'' have been defined in Section 2(a) to mean the Civil Services of the State of Rajasthan and such other services as the State Government may notify in the official Gazette from time to time. The members of the Rajasthan Higher Judicial Service and Rajasthan Judicial Service, the employees of the High Court of Judicature for Rajasthan, the employees of the Rajasthan Legislature Assembly Secretariat Staff and the employees of the Rajasthan Public Service Commission, have been excluded from the ambit of the expression 'Civil Services'. There is no express provision excluding the staff employed in the ministerial establishment of the Civil Court subordinate to the High Court, which may lead to the inference that the provisions of the aforesaid Act are applicable to them. In view of our finding that the conferment of a right of appeal against an order passed by the District Judge with rigid to an employee in the ministerial establishment of the District Court, to a person or authority other than the High Court impinges on the control vested in the High Court, it must be held that the provisions of the Rajasthan Civil Services (Service Matters Appellate Tribunals) Act, 1976 in so far as they provide for an appeal being filed before the Rajasthan Civil Services Appellate Tribunal by the staff employed in the ministerial establishment of the Civil Courts subordinate to the High Court in a service matter, are unconstitutional and void being inconsistent with the provisions contained in Article 235 of the Constitution whereby control over the said staff has been vested exclusively in the High Court. The Contention of the learned Counsel for respondent No. 3, that an alternative remedy of an appeal to the, Rajasthan Civil Services Appellate Tribunal against the order dated April 22, 1978 passed by the District Judge, was available to the petitioner cannot, therefore, be accepted.
15. The learned Counsel for respondent No. 3 has also raised a preliminary objection with regard to the maintainability of the writ petition on the ground that State of Rajasthan was a necessary party to this writ petition and in the absence of State having been imploded as a respondent, the writ petition is not maintainable. In support of the aforesaid submission, the learned Counsel for the respondent No. 3 has placed reliance on the decision of the Supreme Court in Shri Ranjeet Mal v. General Manager, Northern Railway, Baroda House New Delhi and Anr. A.I.R. 1977 S.C. 1701. In our view, there is no merit in the aforesaid contention and the decision of the Supreme Court in Ranjeet Mal's case A.I.R. 1977 S.C. 1701, has no application to the present case. In Ranjeet Mal's case A.I.R. 1977 S.C. 1701, an employee of Northern Railway had challenged an order removing him from service and in the writ petition, the General Manager of the Northern Railway had been impleaded as a party but the Union of India had not been impleaded as a party. The Supreme Court held that Union of Much was a necessary party to the writ petition in as much as any order which would be passed in the writ petition would have the effect of setting aside the order of removal and would fasten liability on the Union of India and not on any servant of the Union. In the present case we are concerned with a writ petition challenging an order reverting the petitioner from the post of Munsarim to the post of Head Copyist and appointing respondent No. 3 a Munsarim. Any order in the present writ petition will not fasten any additional liability on the State of Rajasthan and, therefore, the principle laid down by the Supreme Court in Rajasthan case does not apply to the present case. It cannot, therefore, be said that the State of Rajasthan was a necessary party in the present writ petition and in the absence of the State of Rajasthan having been impleaded as a respondent, this writ petition is not maintainable.
16. Lastly, it has been urged by the learned Counsel for the respondents that the petitioner has no locus stand to maintain this writ petition 8n as much as he was appointed as Munsarim on officiating basis only and he had not acquired a right to hold the post of Munsarim and, therefore, revision of the petitioner under the impugned order does not effect any right of the petitioner which could be enforced by the issue of a writ under Article 226 of the Constitution. The learned Counsel for the petitioner on the other hand, has submitted that a person holding post on officiating basis can also complain of violation of his right under Articles 14 and 16 of the Constitution if he has been arbitrarily or unfairly treated and that in the present case the petitioner has submitted that the impugned orders have been passed in contravention of the rights of the petitioner guaranteed under Articles 14 and 16 of the Constitution In support of his aforesaid submission, the learned Counsel for the petitioner has placed reliance on the decisions of the Supreme Court in E.P. Royyappa v. State of Tamil Nadu and Ors. A.I.R. 1974 S.C. 555 and The Manager, Government, Branch Press and Anr. v. D.R. Belliappa A.I.R. 1979 S.C. 429. There can be no doubt that the protection of Articles 14 and 16 is available also to a temporary employee or an employee holding a post on an officiating basis if he has been arbitrarily discriminated against and singled out for harsh treatment As to whether the petitioner succeeds in establishing the contravention of Articles 14 and 16 in the present case will be considered when we deal with the merits of the case but at this stage it cannot be said that the writ petition is not maintainable merely because the petitioner had been appointed on the post of Munsarim on a temporary basis only and under the impugned orders he has been reverted from the officiating post of Munsarim to the post of Head Copyist. The preliminary objection raised by the learned Counsel for the respondents with regard to the maintainability of the writ petition, therefore, cannot be accepted.
17. Now we proceed to deal with the submission urged by the learned Counsel for the petitioner on the merits.
18 The first submission urged by the learned Counsel for the petitioner is that the impugned order dated 22nd April, 1978, whereby the petitioner has been reverted from the post of Munsarim to the post of Head Copyist, is an order reducing the petitioner in lank and as the said order was passed without affording the petitioner a reasonable opportunity of being heard, it is vocative of the provisions of Article 311(2) of the Constitution. In support of his aforesaid submission, the learned Counsel for the petitioner has submitted that under the Rules, the petitioner should be deemed to have been confirmed on the post Munsarim after the expiry of the period of one and half years from 29th March, 1976 when he was appointed as Munsarim on officiating basis The learned Counsel for the petitioner in this regard has period reliance on the decision of the Supreme Court in the State of Rajasthan v. Dharam Singh A.I.R. 1968 S.C. 1210 & the decision of this Court in Motilal v. Union of India 1973 (1) S.L.R. 174
19. The submission of the learned Counsel for the respondent, on the other hand, is that the appointment of the petitioner on the pose of Munsarim under the order dated 29th March, 197fc was not by way of promotion Hinder Rule 13 of the Rules but was only by way of a temporary arrangement made tinder Rule 35 of the Rajas than Service Rules and that the petitioner had not acquired any right on the post of Munsarim under the order dated 29th, March, 1976 and, therefore, his reversion from the post of Munsarim to the post of Head Copyist under the impugned order dated 22nd April, 1978 did not attract the provisions of Article 341(2) of the Constitution.
20. Before dealing with the submission aforesaid, it would be convenient to take note on the relevant provisions of the Rules.
21. Rule 5 which deals with the cadre of the staffs of a Judge-ship provides for a separate cadre of Stenographers and a general cadre consisting of posts falling m the following categories:
1. Munsarina
2. Upper Division Clerks
3. Lower Division Clerks
22. Rule 6 lays down the methods of recruitment and provides that the recruitment to the cadre of Stenographers as Stenographers Grade the would be by Selection and recruitment to the general cadre as Lower Division Clerks would be by competitive examination & that appointment on the other posts in each cadre would be by promotion within the same judgeship. But, provision is made for a post being filled by transfer of a person holding the post in another Judgeship corresponding to post in the cadre concerned, with the concurrence of the District and Sessions Judge concerned and the approval of the High Court.
23. Rule 13 which deals with promotion provides as under;
13. Promotion: (1) The posts in a Judgeship are ordinarily reserved for clerks in that Judgeship and promotion to higher posts shall ordinarily be made from amongst them If no suitable clerk is available to the Judgeship for promotion to a particular post, promotion may be from another Judgeship with the sanction of the High Court.
(2). Promotion to post in the Upper Division grade shall be made according to seniority subject to efficiency:
Provided that no persons shall be appointed substantively as Accounts clerk unless he has passed such test and fulfils such other conditions as may be prescribed for the purpose from time to time.
(3). No person shall be appointed substantively as Munsarim unless he has been in service for at least ten years including at least five 5 cars as an Upper Division Clerk or Stenographer.
(4). Persons holding posts in the lower division grade shall not be eligible for promotion to selection posts provided that such) persons shall not be debarred from being appointed as Stenographer, if he is otherwise eligible for such appointment.
Note: In passing over a person for inefficiency due weight shall be given to his previous record of service and seniority should be disregarded only when the official or officials passed over are unfit to hold the post to which promotion is to be made.
24. Rules 22, 23 and 24 which deal with probation and confirmation read as under:
22. Probation: All persons appointed to any cadre by direct recruitment shall be placed on probation for one year.
23. Unsatisfactory progress during probation: (1) If it appears to the appointing authority at any time during or at the end of the period of probation that a probationer has failed to give satisfaction, the appointing authority may revert him to the post held substantively by him immediately preceding his appointment on probation, provided he holds lien thereon, or in other case may remove him from service:
Provided that the appointing authority may extend the period of probation of any probationer by a specified period not exceeding six months.
(2) A probationer reverted from service during or at the end of the period of probation Under Sub-rule (1) shall no be entitled to any compensation.
24. Confirmation: A probationer shall be confirmed in his appointment at the end of the period of his probation if the appointing authority is satisfied that his integrity is unquestionable and that he is other woe fit for confirmation.
25. From a perusal of the aforesaid Rules, it will be clear that appointment to the post of Munsarim can only be made by promotion on the basis of seniority subject to efficiency and that in passing over a person for inefficiency, due weight shall be given to his previous record of service and that seniority should be disregarded only when the official passed over is unfit to hold the post to which probation is to be made In the order dated 29th March, 1976 there by the petitioner was appointed to officiate as Munsarim, no reasons have been given The reasons for the passing of the said order are, however, found in the order dated 15th April, 1978, passed by the District Judge where in District Judge has dealt with the representation dated 11-5-76. The said order show that before passing the order dated 29-3-1976, the District Judge, had considered the record of service of respondent No.3, as well as the record of the service of petitioner & he had come to the conclusion that on account of his conduct and behavior, respondent No.3, was not fit for promotion to the post of Munsarim and that keeping in consideration the interest of administration, the petitioner has been appointed to officiate as Munsarim. In our view, the order dated 29th March, 1976 was an order passed by the District Judge in exercise of the powers conferred on him under Rule 13 of the Rules and it cannot be regarded as a purely temporary arrangement made de horts the Rules.
26. The question that next arises is whether the petitioner can claim that he should be deemed to have been confirmed on the post of Munsarim after the expiry of the period of one and half years from the date of the order dated 29th March, 1976. The contention urged by the learned Counsel for the petitioner is that under Rule 22, a person has to be placed on probation for one year and the period of probation can be further extended by a period not exceeding six months under Rule 23 and that, there being no power to extend the period of probation beyond six months, a person who has been appointed on pre bat ton should be deemed to have been confirmed after the expiry of the period of one and half) ears. In our view, the aforesaid contention cannot be accepted inasmuch as the petitioner was not appointed on probation under Rule 22 but was appointed on officiating basis. The appointments contemplated by Rules 22 and 24 are appointments to a cadre by direct recruitment and the said Rules he no application to appointments by promotion. In so far as promotions under Rule 13 are concerned, there is no provision in the Rules for appointment on officiating basis but the use of the expression 'appointed substantively'' in the proviso to Sub-rule (2) and in Sub-rule (3) of Rule 13 shows that promotion on the post of Munsarim on officiating basis is postulated by Rule 13 In our view the appointment of the petitioner on the post of Munsarim on officiating basis under the order dated 29th March, 1976 could not be regarded as an appointment by the probation governed by the provisions of Rules 22 to 24 of the Rules and there wa', therefore, no question of the petitioner acquiring any rights on the post of Munsarim by virtue of the fact that no order confirming him on the said post was passed within the period of one and hath years from the date of the passing of the order dated 29th March, 1976 As we are of the view that Rules 22 to 24 do not apply to appointments by promotion, the principles laid down by the Supreme Court in the State of Punjab v. Dharum Singh A.I.R. 1968 S.C. 1210, and by this Court in Motilal v. Union of India 1973 (1) S.L.R. 174, cannot be invoked in the present case. If the petitioner fails in his contention that he should be deemed to have been confirmed on the post of Munsarim and it is held that on the date of passing of the impugned order dated 22nd April, 1978, the status of the petitioner was only that of an officiating Munsarim, it cannot be said that the order dated 22nd April, 1978, whereby the petitioner was reverted from the post of Munsarim to the post of Head Copyist, was an order reducing the petitioner in rank. It is settled law that reversion of a person from a past held by him on an officiating basis to the post of substantively held by him, does not, by itself, attract the previsions of Article 311(2) of the Constitution and such a reversion is open to challenge under Article 311(2) only if it can be shown that the order of reversion was passed by way of punishment. In the present case, there is nothing on the record to show that the order dated 22nd April, 1978 reverting the petitioner from the post of Munsarim to the post of Head Copyist was passed by way of punishment The contention urged by the learned Counsel for the petitioner that the impugned order dated 22nd April, 1978 was passed in contravention of the provisions of Article 311(2) of the Constitution cannot, therefore be accepted.
27. The second contention urged by the learned Counsel for the petitioner is that an appeal lay to the High Court against the order dated 29th March, 1976 under the proviso to Sub-rule (2) of Rule 20 of the Rules, that by virtue of Rule 28 of the Rules, the provisions contained in the Rajasthan Civil Service (Classification, Control and Appeal) Rules, 1958 have been made applicable to the staff employed in the ministerial establishment of the Civil Courts subordinate to the High Court and that Rule 25 of the Rajasthan Civil Services (Classification. Control and Appeal) Rules 1958 prescribes the period of three months for filing an appeal and that respondent No. 3, having not filed an appeal within the aforesaid period of limitation prescribed for filing the appeal, could cot challenge the validity of the order dated 29th March, 1976 whereby the petitioner had been appointed as officiating Munsarim.
28. The provisions of Rule 20 of the Rules are as under:
20. Appointment: (1) All appointments to the ministerial establishment shall be made by the District Judge, except in the case of Stenographers, first appointment shall be made to the lowest pests.
(2) In tilling the posts of Stenographers preference shall be given to the officials possessing the prescribed qualifications who are already working in the Judgeship in which the vacancy has occurred.
Provided that any person aggrieved by any order of appointment made otherwise than in accordance with these rules shall have a right of appeal to the High Court.
29. On behalf of the respondents, it has been urged that on appeal lay to the High Court against that order dated 29th March, 1976 and that the provisions contained in the proviso to Sub-rule (2) of Rule 20 of the Rules are not applicable to the said order. In this regard the submissions of the learned Counsel for the respondent are as under:
(i) The proviso to Sub-rule (2) of Rule 20 must be read in the context of the main provision contained in Sub-rule (2) of Rule 20 to what it is appended as the proviso and, therefore, the right of appeal which has been conferred under the proviso is only in relation to appointment on the posts of Stenographers.
(ii) Even if it be assumed that the right of appeal conferred by the proviso is applicable to the other appointments also, the scope of the said right of appeal is confined only to appointments made by direct recruitment and does not cover an order of promotion.
(iii) The appointments contemplated by the proviso to Sub-rule (2) of Rule 20 in respect of which the right of appeal has been conferred are only substantive appointments and do not cover an order promoting a person on officiating basis.
30. It is tern that the proviso whereby, the right has been conferred on any person aggrieved by an order of appointment made otherwise than in accordance with the Rules to file an appeal to the High Court is appended to Sub-rule (2) of Rule 20 and the main part of Sub-rule (2) relates to the filling of posts of Stenographers It is a settled rule of statutory construction that the function of a proviso is to limit the main part of the section and to carve out something which but for the proviso would have been within the operative part. But this is not an inflexible rule. There have been cases where the language of the proviso was such as to make it plain that it was intended to have an operation more, extensive than that of the provision which it immediately follows and the proviso has been given such wider effect. (See Maxwell on the Interpretation of Statutes, 12th Edn. P. 190 In number of cases the Supreme Court has also construed a proviso not as a proviso in the accepted sense but as a substantive provision itself See Commissioner of Income Tax V.P. Krishna Warriar (9), State of Rajasthan v. Mrs. Leelo Jain A.I.R. 1955 S.C. 1269, and Board of Revenue v. R.S Jhaver A.I.R. 1968 S.C. 59
31. In the present case, we find that Sub-rule (1) of Rule 20 is in the nature of a general provision which provides that all appointments to the ministerial establishment shall be made by the District Judge. The maim par of Sub-rule (2) is in the nature of a special provision with regard to the filling up of pasts of Stenographers The proviso to Sub-rule (2) confers-a right of appeal against an order of appointment made otherwise than in accordance with the Rules. It is difficult to comprehend the reason why the right of appeal which has been conferred under the proviso should have been confined by the rule making authority to orders of appointment of Stenographers referred to in main part of Sub-rule (2). All orders of appointment which have been made otherwise than in accordance with the Rules fall in the same category in so far as conferment of a right of appeal it concerned. 1 here is nothing peculiar in orders for appointment of stenographers pawed under sub Rule (2) of Rile 20, so a to treat them a foiling in a special class and to confer a right of appeal against these orders on, while denying -such a right of appeal against orders for appointment to other posts which are passed under Sub-rule (1) of Rule 20 even though the said orders have also been passed otherwise thin in accordance with the Riles. The construction placed by the learned Counsel on the provision to Sub-rule (2) of Rule 20 would result in such an individuals discrimination which is not permissible under the Constitution. Such a consequence would be avoided if the proviso is construed to confer a right of appeal in respect of all orders of appointment irrespective of the fact whether they have be is passed under Sub-rule (2) or Sub-rule (1). The use of the expression 'any order of appointment' which is an expressions of very wide import, in the proviso, lends support to the afore-said construction, We are, therefore, of the view that the proviso to Sub-rule (2) of Rule 20 confers a right of appeal to this Court against all orders of appointment to ministerial entailment which are made by District Judge in exercise of the powers conferred on him under Sub-rule (1) and (2) of Rule 20. The contention urged by the learned Counsel for the respondents that no appeal lies to the High Court against an order of appointment passed under Sub-rule (1) of Rule 20 cannot therefore be accepted.
32. We are also not inclined to accept the contention urged by the learned Counsel for the respondents that the word 'appointment' in Rule 20 means appointment by way of direct recruitment only and does not include promotion. In our view, the appointment in Rule 20 is used in a wide and comprehensive sense to include an appointment by way of direct recruitment as well as appointment by way of promotion. From perusal of Rule 1.3 of the Rules which provides for promotion, we find that in the proviso to Sub-rule (2) as well as in Sub-rule (3) of Rule 13, the expression 'appointed' has been used in the context of promotions. This indicates that the rule making authority had used the word 'appointment' in the Rules to me the appointment by promotion as well as appointment by direct recruitment In this context, it may also be observed that under the Rule appointment by direct recruitment is to be made on the post of Stenographer Grade III and Lower Division Clerks only and appointment to the other posts in both the cadres is by promotion. In Sub-rule (1) of Rule 20, it is laid down that except in the case of Stenographers, first appointment shall be made, to the lowest posts. If the intention of the Rule making Authority was to use the wore appointment' in the sense of direct recruitment only, it would not have been necessary to use the word 'first'' before the word 'appointment'. In our opinion the use of the expression 'first appointment,' in Sub-rule (1) of Rule 20 also indicates that the word 'appointment' is intended to be wide enough to cover subsequent appointments which are to be made only by way of promotion.
33. Nor it is possible to accept the contention urged by the learned Counsel for the: respondents that the 'appointment' referred to in Rule 20 means substantive appointment only and does not include an officiating appointment A perusal of the proviso to Sub-rule (2) and Sub-rule (3) of Rule 13, wherein the expression 'appointed substantively' has been used, indicates that wherever the rule making authority intended the appointment to be a substantive appointment, it has qualified the word ''appointment' by using the word 'substantively' & that it the absence of such a qualifying expression, the word 'appointment must be construed to include appointment on substantive as well as officiating basis, In Rule 20 the word 'appointment' has been used without being qualified by the word substantive we are unable to read the word substantive in the said rule so as to curtail the right of appeal conferred by the said Rule to orders making a substantive appointment only More over it would be anomalous that in a case where an order promoting a junior person and superseding a senior person has peen passed after taking into consideration the record of service, aright of appeal would be available to the senior person if the order of promotion is in the nature of substantive appointment but such a right of appeal would not be available to the senior person merely because the District Judge instead of passing the order of promotion on a substantive basis straight aw*y chooses to appoint the incumbent on officiating basis only. A senior person who has been passed over by an order of officiating promotion will be equally aggrieved by such an order & in our view, it would not be reasonable to so construe the right of appeal conferred by the proviso to Sub-rules (2) of Rule 20 as to deny the said right of appeal to such an aggrieved person. We are, therefore, of the view that an appeal lay to this Court against the order dated 29th March, 1976, passed by the District Judge, whereby respondent No. 3 was denied promotion to the post of Munsarim and the petitioner was appointed as Munsarim on officiating basis.
34. We are, however, unable to agree with the submission of the learned Counsel for the petitioner that a period of limitation has been prescribed under the Rules for the filing of MI appeal provided under Rule 20 of the Rules A perusal of the Rules shows that no period of limitation has been prescribed for filing an appeal under Rule 20. The provisions of Rajasthan Civil Service (Classification, Control and Appeal) Rules, 1958, to which reference has been made by the learned Counsel for the petitioner, can be of no assistance in as much as the period of limitation i.e. prescribed in Rule 25 of the said Rules is with regard to the appeals provided under Rule 28 of the said Rules and the period of limitation prescribed in Rule 25 of the said Rule cannot be invoked as the period limitation for filing an appeal under Rule 20 of the Rules In the subspace of any period of limitation having prescribed for filing an appeal under Rule 20 of the Rules, it is open to a person aggrieved by an order of appointment to file an appeal at any time & while dealing with the said appeal the High Court may in the fact and circumstances of a particular cane refuse to interfere with the order sought to be challenged in appeal on the ground of undue delay in filing the appeal. In our view, the representation dated 3rd April, 1978 addressed by respondent No. 3 to the Registrar of the High Court should be regarded as an appeal filed by respondent No. 3 under Rule 20 of the Rules against the order dated 29th March, 1976 and it was open to the High Court to give relief to respondent No. 3 by treating the said representation as an appeal. The contention of the learned Counsel for the petitioner that no appeal has been filed by respondent No. 3 against the order dated 29th March, 1976 and this Court had no jurisdiction to set aside the said order cannot, therefore, be accepted.
The third contention which had been urged by the learned Counsel for the petitioner is that the Hon'ble Administrative Judge had no jurisdiction to consider and dispose of the appeal or the representations submitted by the respondent No 3 on 3rd April, 1978 and the said appeal or representation should have been considered by all the judges of the Court.
35. Chapter III of the Rajasthan High Court Rules, 1952, contain the relevant provisions regarding the disposal of the administrative business' of the High Court relating to the control over subordinate Courts vested in the High Court under Article 235 of the Constitution and the superintendence over the Courts and Tribunals vested in the High Court under Articles 227 of the Constitution, Rules 15 of the Rules, enumerates the matters in which all the Judges of the Court shall be consulted. Rules 16 provides for the formation of the administrative Committee and Rule 17 prescribes the matters' on which the Administrative Committee shall be consulted, Rules 18 and 19 lay down the procedure, with regard to the consultation with the Judges-under Rule 15 and with the Administer 'Committee under Rule 17. Rule 20 lays down that subject to Rule 15 and 17, i.e. subject to the matters which are required to be disposed of in consultation with all the Judges or in consultation with the Administrative Committee, the administrative business of the Court shall be disposed of by the Chief Justice such Rules 21 and 22, which are relevant for our purpose read as under.
21. Appointment of Administrative Judge and allocation of work.
(1)The Chief Justice shall appoint a judge to carry on the general administrative business of the Court Such Judge shall be called the Administrative judge and shall dispose of the administrative business in accordance with the Rule 22.
(2) The Chief justice may also, by a general or special order, allocate specified business for disposal to any other Judge or a Committee of judge, and such Judge or Committee of Judges shall dispose of the same, subject to any special directions of the Chief justice.
22. Work to be submitted to the Administrative Judge: All administrative business except such business as has been specially allotted by the Chief Judge to any other Judge or a Committee of Judges, all materials correspondence, all returns and statements, except return to a precept or judicial order or explanation called for by a Judge or judges or copies of Judgments in Sessions trials received monthly from Sessions Judges or references to the Court shall be submitted by the Registrar to the Administrative judge, together with the observations thereon, if any, and may, subject to these Rules, and to any special directions of the Chief Justice be disposed of by that Judge
36. In exercise of the powers conferred on him under Sub-rule (2) of Rule 21, the Hon'ble Chief justice has issued a Standing Order No. 3 dated February 11, 1976, whereby it has been ordered that the appeals against the orders of District and Sessions Judge in cases of dismissal, removal and demotion of ministerial staff shall be decided by a Committee of two Hon'ble Judges of the Court and that appeals in other cases will be dealt with by the Hon'ble Administrative Judge as heretofore. By Standing Order No. 10 dated November 29, 1977, the Hon'ble Chief Justice has directed that the Administrative work relating to the subordinate courts will be dealt with by the Hon'ble Administrative Judge and that the matters enumerated in the said Standing Order should be referred to the Chief Justice for disposal and that all administrative work relating to the High Court shall be dealt with by the Chief Justice.
37. The aforesaid Standing Orders show that in so far as the administrative work relating to the subordinate courts is concerned, the Hon'ble Administrative Judge has been empowered to deal with the same except with regard to the matters enumerated in Standing Order No. 10 dated November 29, 1977. A representation which is submitted by a person employed in the subordinate courts against an order of promotion by which he is prejudiced, is not one of the matters which have been enumerated in Standing Order No. 10 and which are required to be referred to the Hon'ble Chief Justice for disposal Similarly, in so far as appeals are concerned, Standing Order No. 3 dated February 11, 1976 shows that only appeals against orders of dismissal, removal and demotion of ministerial staff are required to be decided by a Committee of two Judges constituted under the said Standing Order and all other appeals by employees in the ministerial staff of subordinate courts have to be dealt with by the Hon'ble Administrative Judge. The representation dated 3rd April, 1978 submitted by respondent No. 3 which is to be treated as an appeal, did not fall within the categories of appeals which were required to be decided by the Committee of two Hon'ble Judges which was constituted under the Standing Order No. 10 dated February 11, 1976. Thus the representation dated 3rd April, 1978 submitted by respondent No. 3, whether it is treated as an appeal or a mere representation, could be dealt with by the Hon'ble Administrative Judge only. The learned Counsel for the petitioner has submitted that Rule 22 of the High Court Rules contemplates that the Registrar shall submit before the Hon'ble Administrative Judge only those matters which pertain to correspondence, returns and statements or copies and judgments in Sessions trials received monthly from Sessions Judges or references to the Court and that other administrative work, including representation or appeals, submitted by a person employed in the ministerial establishment of the courts subordinate to the High Court, must Gist be placed before Hon'ble the Chief Justice and only after obtaining his direction, it could be placed before the Hon'ble Administrative Judge. We are unable to accept the aforesaid contention urged by the learned Counsel for the petitioner. In Rule 22, it is very clearly laid down that 'all administrative business, except such business as has been specially allocated by the Chief Justice to any other Judge or a Committee of Judges' shall be submitted by the Registrar, together with his observations thereon, if any, to the Administrative Judge and the said business shall be disposed of by the Administrative Judge subject to the Rule and to any special directions of the Chief Justice. The particular reference to certain matters, any all material correspondence, all returns and statements except return to a precept or juiced order or explanation called for by a Judge or Judges or copies of judgments in Sessions trials received monthly from Sessions Judges or references to the Court. In the latter part Rule 22 does not, in our view, restrict the scope of the administrative business referred to in the opening part of Rule 22 of the aforesaid matters only. The opening part of Rule 22 is intended to cover all administrative business except such business as has been specially allocated by the Chief Justice to any other Judge or a Committee of Judges and there appears to be no reason why the scope and that of the opening part should be curtailed by reference to the matter to which particular reference is made in the latter part of Rule 22. The matters which have been particularly referred in the latter part of Rule 22, even otherwise would have been covered by the opening part of Rule 22, and a specific reference to these matters has been made only by way of abundant caution. But this specific reference to certain trailers cannot have the effect of restriction the amplitude of the administrative business referred to in the latter part Rule 22 only to the natters that have teen specified in the latter part of Rule 22 The position is further clarified by Standing Order No. 3 dated February 11, 1976 and Starting Order No. 10 dated November 29, 1977 which are directions issued by the Chief Justice under Sub-rule (2) of Rule 21. From the aforesaid Starting Orders, it is clear that the Hon'ble Administrate Judge rule have dealt with the appeal representation of respondent No. 3 against the order dated 29th March, 1976 and it was ,not necessary to piece the matter before the Hon'ble Chief Justice for obtaining bas directions in the matter.
38. The last contention that has been urged by the learned Counsel for the petitioner is that the order dated 19th April, 1978 was passed by the Hon'ble Administrative Judge without giving any notice to the petitioner and without affording to him an opportunity of making his submission in reply to the submissions contained in the representation of respondent No. 3 dated 3rd April, 1978. The learned Counsel for the petitioner has urged that in deciding the appeal or representation of respondent No. 3 against the order dated 29th Mirth, 1976, the Hon'ble, Administrative Judge by not affording an opportunity to the petitioner to make his submission, has failed to consider the case of the petitioner and as a result thereof the petitioner has beers dented he right to equality guaranteed under Articles 14 and 16 of the Constitution.
39. The learned Counsel for the respondents, on the other I hand, have submitted that the petitioner had been appointed only on an office ting basis and, as he had acquired no right on the post of Munsarim on the is of the order dated 29th March, 1976, the petitioner could not claim a right to be heard before the representation submitted by respondent No. 3 against the order dated 29th March, 1976 could be accepted The learned Counsel for the respondent have further submitted that in any event adequate opportunity had been afforded to the petitioner in as much as the petitioner had submitted his representation dated 7th April, 1978 in reply to the representation of respondent No. 3 and the Hon'ble Administrative Judge has passed his order dated 19th April, 1972 after duly considering the representations submitted by respondent No. 3 as well as the petitioner.
40. In our view, a distinction has to be made between the right that has been conferred on an employee under Article 311(2) of the Constitution and the right that has been conferred on him under Articles 14 and 16 of the Constitution. In so far as Article 311(2) is concerned, as already observed earlier a person holding a post on an officiating basis does not have a right to hold the said post and the mere fact of his being reverted from the officiating post to his substantive post, does not entitle him to challenge the order of reversion on the ground that it is vocative of Article 311(2) of the Consecution and such a person can challenge the order of reversion on the ground of violation of Article 311(2) of the Constitution only if he can show that the said order was passed by way of punishment. The mere fact that the order of reversion has resulted in loss of emoluments in the sense that as a result of the reversion the employee will not get the higher pay which he was receiving when he was holding the officiating pest, will not entitle him to challenge the said order of reversion as an order passed by way of punishment. But this dots not mean that a person holding a post on an officiating basis has no rights at all. In E.P. Royappa v. State of Tamil Nadu and Ors. A.I.R. 1974 S.C. 555, Bhagwati, J. (speaking for the majority) has observed:
It is also necessary to point out that the ambit and reach of Article 14 and 16 ate not limited to cases where the public servant officiating has a right to a post. Even if a public servant is in an officiating position, he can complain of violation of Articles 14 and 16 if he has been arbitrarily or unfairly treated or subjected to male fide exercise of power by the State machine. It is, therefore no answer to the charge of infringement of Arts 14 and 16 to say that the petitioner had no right to the post of Chief Secretary but was merely officiating in the post. That might have some relevance to Article 311 but not to Articles 14 and 16.
Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore vocative of Article 14 and if it affects any matter relating to public employment it is also vocative of Article 16. Articles 14 and 16 strike at arbitrariness in the State action & ensure fairness and equality of treatment. They require that the State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of quality.
41. It is, therefore, open to the petitioner to complain that the order dated 9th April, 1978 was passed in violation of his rights guaranteed under Article 14 and 16 of the Constitution and the mere from that the petitioner was holding the post of Munsarim on officiating basis only is of no consequence if the petitioner is able to establish the violation of Articles 14 and 16 takes settled law that violation of Articles 14 and 16 takes place if an order of promotion is passed wife out considering the case of the Government servant who is entitled to be considered for promotion to the said post. In the present case, the District Judge had considered the cases of the petitioner and respondent No. 3 for the purpose of promotion to the next higher post of Munsarim and after due consideration he had decided to promote the petitioner in preference to respondent No. 3. The aforesaid order of the District Judge was challenged by respondent No. 3 in his representation addressed to the Registrar of this Court and while disposing of the said representation of respondent No. 3 the Hon'ble Administrative Judge was required to consider again the claims of respondent No. 3 and the petitioner for being promoted to the post of Munsarim. The Hon'ble Administrative Judge could not decide the said representation which in our view, was an appeal by considering the case of respondent No. 3 only and the petitioner can legitimately make a grievance if his case has not received due consideration by the Hon'ble Administrative Judge and. if the order dated 19th April, 1978, allowing the appeal representation of respondent No. 3 can be shown to have been passed without affording an opportunity to the petitioner to make his submissions as against the appeal/representation of respondent No. 3.
42. In the present case, we find that respondent No. 3 had first submitted a representation dated 11th May, 1976 to the District Judge against the order dated 19th March, 1976. It appeals that the petitioner was able 11 obtain the copy of the said representation dated 11th May 1976 and he submitted his reply dated 7th April, 1978 to the aforesaid representation of respondent No. 3 dated 11th May, 1976. Respondent No. 3 submitted another representation dated 3rd April, 1978 which was addressed to the Registrar of this Court. The copy of the said representation dated 3rd April, 1978 was never supplied to the petitioner and the petitioner had no knowledge about the contents of the said representation and, therefore, he had no opportunity of counterfeiting the submissions contained in the aforesaid representation of respondent No. 3 dated 3rd April, 1978. From the order of the Hon'ble Administrative Judge dated 19th April, 1978 we find that the representation of the respondent No. 3 dated 3rd April, 1978 and the re presentation of the petitioner dated 7th April, 1978 which had been submitted by the petitioner in reply to the earlier representation of respondent No. 3 dated 11th May, 1976 were considered by the Hon'ble Administrative Judge and he accepted the representation of the respondent No. 3 dated 3rd April, 1978 & rejected the representation of the petitioner dated 7th April, 1978 We are of the opinion that the Hon'ble Administrative Judge ought to have given notice to the petitioner with regard to the representation dated 3rd April, 1978 submitted by respondent No. 3 and should have afforded to the petitioner an opportunity of making his submissions in reply to the aforesaid representation of respondent No. 3 dated 3rd April, 1978 It is settled law that a party to whose prejudice an order is intended to be passed is entitled to a hearing and that it the essentials of justice have been ignored while making an order to the prejudice of a person then that order would be a nullity. See State of Orissa v. Smt. Binopuni Dei A.I.R. 1967 S.C. 1269. In the present case, it cannot be disputed that in his representation dated 3rd April, 1976, respondent No. 3 was seeking the reversal of the order of the District Judge dated 29th March 1976 passed in favour of the petitioner. The Hon'ble Administrative Judge was thus being after to pass an order to the prejudice of the petitioner and the petitioner was therefore, entitled to be afforded an opportunity of making his submissions in reply to the submission contained in the representation of respondent No. 3 dated 3rd April, 1978 before the Hon'ble Administrative Judge took a decision on the said representation. The nerd for affording such an opportunity was all the more grater in view of our finding that the representation of respondent No. 3 dated 3rd April, 1971 was an appeal under Rule 20 of the Rule The learned Counsel for respondent No. 3 has submitted that the principle laid down by the Supreme Court in State of Orissa v. Smt Binopani Dei A.I.R. 1967 S.C. 1269, is applicable only in cases where Civil consequences are involved and that in the present case no civil consequences were involved in the consideration of the representation of the respondent No. 3 in as much as the petitioner had acquired no right by virtue of the order of the District Judge dated 29th March, 1976 We are unable to agree with the aforesaid contention We hive already pointed out that the order dated 29th March, 1976 was passed by the District Judge after considering the claim of respondent No. 3 and the petitioner for promotion to the post of Munsarim. The reversal of the said order of the District Judge required a reconsideration of the merits and demerits of respondent No. 3 and the petitioner by the Hon'ble Administrative Judge. The issues' which arose for determination on the basis of the representation of respondent No. 3 dated 3id April, 1978 could not be decided on the basis of one sided' submission contained in the representation and for a proper consideration of the said issues it was necessary that the petitioner should have been afforded ant opportunity of submitting bas reply to the submissions contained in the aforesaid representation of respondent No. 3. In the absence of such an opportunity being afforded to the petitioner by the Hon'ble Administrative Judge the order dated 19th April, 1978 passed by the Hon'ble Administrative Judge would be open to challenge on the ground that it was passed in violation of the principles of natural justice and is vocative of the fundamental right of the petitioner guaranteed under Articles 14 and 16 of the Constitution in as much as he has not been fairly treated.
43. The learned Counsel for the respondents have, however, urged that the petitioner has not suffered any substantial prejudice on account of his not being furnished an opportunity to make his submissions in reply to the represent at on dated 3rd April, 1978 submitted by respondent No. 3 in as much as the representation of the respondent No. 3 dated 3rd April, 1978 is substantially the same as the earlier reorientation dated 11th May, 1976 which had been submitted by respondent No. 3 and the reply to which had teen submitted by the petitioner in his representation dated 7th April, 1978. We have examined both the representations dated 11th May, 1978 and 3rd April, 1978 submitted by respondent No. 3 and we find that they can not be regarded as substantially identical. We find that in the subsequent representation dated 3rd April, 978, respondent No. 3 has referred to number of matters which are not mentioned in his previous representation dated 11th May, 1976 and, therefore, it cannot be said that the reply submitted by the petitioner to the earlier representation dated 11th May, 1976 was a sufficient reply to the submissions contained in the representation dated 3rd April, 1978. In Purtabpur Co. Ltd v. Cane Commissioner of Bihar and Ors. A.I.R. 1970 S.C. 1000, the Supreme Court has observed:
In this case what has happened is that both appellant as well as the 5th respondent were making repeated representations to the Chief Minister as well as to the Cane Commissioner. The representations made by the 5th respondent or even the substance thereof were not made available to the appellant. The proposal to split the reserved area into two or the manner in which it was proposed to be split was not made known to the appellant and his objections invited in that regard. The appellant complains that the manner in which the area had been divided had caused great prejudiced to it. Its grievance may or may not be true but the fact remains that it had no opportunity to represent against the same. Hence the appellant is justified in complaining that the principles of natural justice had been contravened.
44. In our view, the aforesaid observations of the Supreme Court arc fully applicable to the present case and the order dated 19th April, 1978 which was passed by the Hon'ble Administrative Judge without affording an opportunity to the petitioner to make his submissions against the representation of respondent No. 3, cannot be upheld. The order dated 22nd April, 1978 passed by the District Judge, Jodhpur is a consequential order passed in pursuance of the direction contained in order of the Hon'ble Administrative Judge dated 19th April, 1978 and if the order of the Hon'ble Administrative Judge dated 19th April, 1978 cannot be upheld, the order dated 22nd; April, 1978 passed by the D strict Judge also cannot be upheld.
45. In the result, this writ petition is allowed & the order dated 19th April, 1978 passed by and the order dated 22nd April, 1978 passed by the District Judge, Jodhpur are set aside. The representation dated 3rd April, 1978 submitted by the respondent No. 3 against the order dated 29th March, 1976 should be treated as an appeal under Rule 20 of the Rules and it should be considered and disposed of on that basis. The parties are left to bear their own costs in thin writ petition.