Judgment:
B.J. Shethna, J.
1. This matter has a checkered history. This special appeal is arising out of the judgment dated 7.12.1993 passed by the learned Single Judge in writ petition No. 5842/1991 filed by the appellant petitioner, whereby, the learned Single Judge dismissed the writ petition. Earlier, this special appeal was heard and finally decided by the Division Bench of this Court consisting of Hon'ble Justice B.R. Arora (as he then was) and Hon'ble Justice V.G. Palshikar on 17.1.1997. The same was dismissed on the ground that the appellant wanted to raise several grounds other than the grounds which were raised before the learned Single Judge, which was not permissible under the law. They wanted to rely upon the subsequent judgment of the Hon'ble Supreme Court delivered on 18.3.1996 in Civil Appeal No. 4804/1996 filed by Ratan Lal Bohra against State of Rajasthan, but the Division Bench of this Court refused to look into the same because the judgment was rendered by the Hon'ble Supreme Court after the writ petition was dismissed by the learned Single Judge in 1993.
2. The appellant challenged the judgment and order dated 17.1.1997 dismissing the special appeal before the Hon'ble Supreme Court in Civil Appeal No. 739/1999 which was allowed by the Hon'ble Supreme Court on 5.2.1999 and this special appeal was restored to the file of this Court with a direction to hear and decide the same on merits without reference to the order passed by the Division Bench of this Court on 17.1.1997. While remanding this matter back to the High Court, the Hon'ble Supreme Court had not expressed its opinion on the merits of the case as it was likely to cause prejudice to either side. Accordingly, we have heard this special appeal and decided without being swayed away by the earlier order dated 17.1.1997 passed by another Division Bench of this Court.
3. Learned counsel Shri S.N. Trivedi for the appellant, on the basis of judgment of Hon'ble Supreme Court in case of Ratan Lal Bohra v. State of Rajasthan and another delivered in Civil Appeal No. 4804/96 and allied matters decided on 18.3.1996 submitted that the learned Single Judge was wrong in dismissing the writ petition as Rule 244(2) of the Rules will have no application whatsoever in the case of the appellant petitioner because the appellant petitioner was working as Patwari, which was a non-gazetted post. He also submitted that in view of the aforesaid judgment of Hon'ble Supreme Court in Ratan Lal Bohra's case (supra) the Division Bench of this Court has allowed special appeals and set aside the orders passed by the learned Single Judge of this Court. He, therefore, submitted that this special appeal be also allowed and judgment and order passed by the learned Single Judge dismissing the writ petition of the petitioner on 7.12.1993 be also quashed and set aside.
4. However, Shri R.P. Vyas, learned Addl. Advocate General for the respondents vehemently submitted that the judgment in Ratan Lal Bohra's case (supra) will have no application to the facts of the present case now because the Hon'ble Supreme Court allowed the appeal in view of the Govt. circular dated 22.8.1990 in which it was specifically stated that,' It is further clarified that at present action under Rule 244 (2)RSR is to be initiated in respect of Gazetted Government Servants only...' (emphasis supplied)
5. He submitted that Rule 244(2) applies to all Government servants and any circular issued by the Government not in consonance with the Rules would be bad and it should not have been given much importance. He submitted that this aspect of the matter was not at all considered by the Hon'ble Supreme Court. With utmost respect to Mr. Vyas, it is not open for this Court to go beyond the judgment of Hon'ble Supreme Court as held by the Hon'ble Supreme Court in number of cases. Once the Hon'ble Supreme Court decided the point then it must be presumed that all the relevants facts were present in the mind of Hon'ble Judges, who decided the matter.
6. However, we find lot of substance in the submission made by Mr. Vyas that Govt. after issuing the aforesaid circular realises its mistake and corrected the same by issuing fresh circular and making it clear, that Rule 244(2) will have application to Gazetted as well as non-Gazetted Officers. He, therefore, submits that aforesaid judgment of Hon'ble Supreme Court in Ratan Lal Bohra's case (supra) will not be applicable now. This aspect of the case is not disputed by Mr. Trivedi for the appellant.
7. Under the circumstances, it cannot be said that the learned Single Judge was wrong in dismissing the writ petition filed by the petitioner.
8. Having carefully gone through the order passed by the learned Single Judge dismissing the writ petition filed by the appellant petitioner, we are fully convinced that the learned Single Judge has not committed any error on facts or law which calls for interference by this Court in special appeal.
9. Before parting, we must state that there was a serious allegation against the appellant petitioner of assaulting his superior officer namely Naib Tehsildar in his office and that too in a drunken position. Infact, the appellant petitioner was on probation and while probation if he is found guilty and convicted by the competent criminal court then such a person cannot be continued in service. Merely because he was given benefit of probation that does not mean that such a serious misconduct committed by the appellant petitioner can be ignored by the authority.
10. In view of the above discussion, we do not find any substance or merit in this special appeal and accordingly it fails and is hereby dismissed.