Rajasthan High Court - Jaipur
Prem Behari Lal Mathur vs State Of Rajasthan And Ors. on 9 January, 2004
Equivalent citations: RLW2004(3)RAJ1372, 2004(2)WLC669
JUDGMENT Rajesh Balia, J.
1. By order dated 7.10.1996, the Division Bench of this Court has ordered that S.B. Civil Writ Petition No. 277/95 be heard alongwith this appeal, which was the second writ petition filed by the petitioner for the like reliefs.
2. This writ petition is directed against the order passed by the respondent-Municipality dated 9.1.1995 (Annex.5), by which the petitioner's service as Assessor were not extended to which he was appointed on temporary basis by order dated 13.11.1993, under Rule 27 of the Rajasthan Municipal Subordinate and Ministerial Service Rules, 1963 (hereinafter referred to as 'the Rules of 1963').
3. The background of the case is that as per Rule 8 of the Rules of 1963, the ratio of filling up of vacancies by direct recruitment and by promotion shall be 50:50 unless otherwise provided for. The post of Assessor is included in Subordinate Services in Revenue segment of services under Municipality under Rule 6 of the Rules of 1963. The respondent-Municipality was not determining the vacancies of Assessor every year, as per Rule 10 of the Rules of 1963 for direct recruitment and was not filling those vacancies. This led to filing of S.B. Civil Writ Petition No. 3154/89 by the present petitioner seeking a writ of mandamus to the respondents for determining the year-wise vacancies and consider his case for appointment as and when eligible for the post of Assessor. The said writ petition was allowed by the learned Single Judge vide order dated 7.10.1991 directing the Municipal Council to determine the year-wise vacancies in terms of Rule 10 of the Rules of 1963 and consider the case of the petitioner against the vacancies so determined and if the petitioner has become over-age because of non-determination of the vacancies, the age factor should not come in the way of considering his candidature. The exercise was directed to be completed within a period of three months from the date of judgment.
4. However, it appears that the said exercise was not carried out within the period of three months. Notwithstanding filing of appeal, in appeal no interim order was passed by the Court. This led to filing a contempt petition by the present applicant-petitioner. The said contempt petition in S.B. Civil Writ Petition No. 3154/89 was got dismissed by the alleged contemnors on 10.8.1994 by representing that since the petitioner has been given promotion on the post of Assessor, the direction was given to determine vacancies, which shall be determined, no action against the contemnors was required to be taken.
5. This order appears to have been made by the Court on the representation made to it by the respondents in contempt petition which seems to be misleading and incorrect as will be evident from the facts and circumstances to be noticed presently.
6. It is apparent that by the letter of appointment given to the petitioner, he was given appointment for a period of one year temporarily, however, the background of the case, as noticed by us above, clearly gives out that the respondents have acted clandestinly in dealing with the petitioner.
7. In writ petition No. 3154/89, the Court has found as a fact that vacancy against direct quota for 1982 was not filled by the Department and the operative part of the order dated 7.10.1991 reads as under:-
"Therefore, in the facts and circumstances of this case the writ petition is allowed and it is directed that the respondents shall determine the vacancies in terms of Rule 10 of the Rules of 1963 and fill the post of the Assessor in accordance with law. In case petitioner has by now become over-age, then the case of the petitioner should be considered as because of the failure of the respondents not to determine the vacancies and make the recruitment, petitioner should not be placed in disadvantageous position. The vacancies should be determined in accordance with law and recruitment should be made within a period of 3 months from today."
8. It is clear that direction was to determine the vacancies in terms of Rule 10 and fill the post of Assessor in accordance with law. In the context of controversy raised and decided it relates to determination of vacancy for direct recruitments and for recruitments against such vacancies, the Court has itself found that against quota of 1982 vacancy, no recruitment was made While the order passed on 1081994 speaks about giving promotion to petitioner and not of temporary appointment upto December, 1994 as if the petitioner was regularly promoted The direction was to determine the year-wise vacancy for direct recruitment on the post of Assessor or make recruitment against such post by not placing petitioner at a disadvantageous position indicates consideration for regular appointment against permanent post by direct recruitment Yet it was not stated that appointment was only for a period to expire shortly.
9. Significantly it was noticed by the Court that direction was to determine vacancy, it was not stated before the Court that vacancy had been determined way back in 1992, much before the order was passed in 1994.
10. It appears that the vacancies were in fact determined by the Municipal Council, Bikaner vide its communication dated 6.1.1992, according to which since 1982-83 first vacancy of Assessor occurred in 1989-90. Against the said vacant post, Narayan, Assistant Nakadar, who was posted under the respondent- Municipal Council by transfer was holding charge. The said vacancy continued in 1991-92 also. Against this vacancy vide Annex.2A the names of candidates were invited from Employment Exchange on 6.11.1993. This document shows that the name were invited against permanent vacancy and it is also apparent from this document that this exercise was being conducted in pursuance of the order passed by this Court dated 7.10.1991 for the purpose of answering the contempt petition. This is also apparent from Column 10 of Annex.2A that this exercise was conducted to comply with the directions of this Court to determine the vacancy and fill the same by regular recruitment. This it was clearly given out that recruitment was to be regular recruitment against permanent vacancy and it was not an exercise to give appointment on urgent temporary basis. After due selection, the petitioner was given appointment. However, inexplicable the nature of appointment given to the petitioner was named temporary for the period until 1.12.1994 vide order dated 13.11.1993.
11. The petitioner immediately made a representation that his appointment has been made by regular selection after inviting candidates from Employment Exchange and after holding interview and, therefore, his appointment cannot be treated as temporary and he may be ordered to be continued. However, vide impugned order dated 9.1.1995 (Annex.5) the services of the petitioner were terminated. The said order is being challenged before this Court. Notwithstanding that caveat was filed to contest the writ petition at the time of admission, no reply has been filed so far on behalf of the respondents.
12. This exercise was not done for a period of three months and this led to filing of contempt petition. It is during the pendency of contempt petition, the process of determination of vacancies as aforesaid was carried out for the year 1991-92. One vacancy was determined, on which a person was only given charge, who also was posted in the Municipal Council by transfer from another Municipality. The vacancy determined was one. '
13. The letter inviting candidates from the Employment Exchange clearly indicated that a permanent vacancy was to be filled in compliance of the High Court's direction and a compliance report is to be made to the Court. In pursuance of this advertisement, petitioner was interviewed and on having been found meritorious was appointed. In these circumstances, apparently referring to Rule-27 of the Rules of 1963 for giving temporary appointment was a ruse to get out of contempt petition and then to terminate said appointment on expiry of said one year.
14. There being only one vacancy, the question of it being reserved for any particular category was de hors the constitutional mandate as it amounted to 100% reservation.
15. The petitioner made a representation inviting attention of the authorities that his appointment cannot be treated as temporary and requested for the redressal of his grievance but instead he was served with a termination order wherein it was stated that since approval has not been granted by the State Government, therefore, his term could not be extended beyond one year.
16. We are of the opinion that in these circumstances this termination order cannot be sustained as it was clearly an attempt to punish the petitioner for his courage to litigate for due process of law by terminating his appointment after contempt notices were discharged. That inspite of appointment having been given against a permanent vacancy by following regular procedure to comply with the direction of the Court. It was ostensibly termed as temporary appointment only. Such a machination in the matter of dealing with the employees and directions of the Court cannot be countenanced. It leaves a bad legacy to be sustained.
17. Accordingly the writ petition is allowed. The termination order dated 9.1.1995 is quashed and set aside. The petitioner shall be treated to have been directly recruited by regular procedure against permanent vacancy on regular basis and all consequential benefits shall follow, as if the petitioner was continuous on the post having been appointed regularly. As it is a case of wrongful reversion to lower post after giving appointment by regular selection process and petitioner has approached this Court with prompt dispatch, we are of the opinion that this is not a case in which the petitioner be deprived of emoluments of the post on which he was entitled to continue as regular employee after his appointment.
18. There will be no order as to costs.