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Rajasthan High Court · body

1998 DIGILAW 1008 (RAJ)

Charan Das Kalla v. State of Rajasthan

1998-09-14

R.R.YADAV

body1998
Honble YADAV, J.–The present writ petition has been filed questioning the legality and validity of the order dated 20.7.1998, Annex.14 to the writ petition, passed by the Commissioner, Municipal Council, Jodhpur, in pursuance of the order passed by learned Single Judge in S.B. Civil Writ Petition No.6331/91. (2). The learned Single Judge while deciding the aforesaid writ petition on 22.4.1998, directed the petitioner to make suitable application to the competent authority within one month from the date of the order and on receiving such application from the petitioner, the competent authority was directed to decide the same within three months from the date of receipt of the order thereof. It was made clear in the order passed by the learned Single Judge on 22.4.1998 that the authority shall decide the same in accordance with law by keeping in mind the fact that the Court has passed the interim order in favour of the petitioner and he was allowed to work on the post of Assistant Sanitary Inspector GR.II who also retired on the said post. With the aforesaid observation, the writ petition was finally disposed off. (3). Within the stipulated period, respondent No.3-Commissioner, Municipal Council, Jodhpur, passed the impugned order dated 20.7.1998, Annex.14 to the writ petition,holding that the petitioner is not entitled to get benefit of his promotion on the post of Assistant Sanitary Inspector/Sanitary Inspector GR.II, for the simple reason that his name found place at Serial No.18 in the seniority list and as such he was not even eligible to be considered for promotion as he was not within the zone of consideration for promotion on the said post. It is further found by respondent No.3 that the Promotion Committee of the Municipal Council has not recommended the name of the petitioner for his promotion on the aforesaid post. (4). It is borne out from perusal of the order impugned dated 20.7.1998, Annex.14 to the writ petition, that although the petitioner continued to work on the post of Assistant Sanitary Inspector, from 1984 till January 1992, on the basis of interim order passed by this Court but respondent No.3 arrived at a conclusion that the interim order merged in the final order passed by this Court. (5). (5). Apart from the aforesaid facts, found by respondent No.3, it is revealed from perusal of Annex.3 to the writ petition that the petitioner did not possess requi- site educational and technical qualification for promotion on the post of Assistant Sanitary Inspector, therefore, a recommendation was made by the Chairman, Nagar Parishad, Jodhpur vide order dated 6.8.1984 to relax the educational and technical qualification of the petitioner to the State Government but it is not borne out from the record that such relaxation was granted to the petitioner by the State Government. In absence of requisite educational and technical qualification, as borne out from the documents filed by the petitioner himself, the petitioner is not entitled for his promotion on the post of Assistant Sanitary Inspector, Grade II. Petitioners ad hoc promotion on the post of Assistant Sanitary Inspector for a period of one year only does not make him entitled for his regular promotion on the said post. (6). Learned counsel for the petitioner invited my attention towards the fact that respondent Council has retired the petitioner treating him as Assistant Sanitary Inspector Grade II, at the age of 58 years whereas the petitioner was entitled to continue in service as Jamadar upto the age of 60 years. (7). Suffice it to say in this regard that the aforesaid question was directly and substantially at issue in the earlier writ petition and if that question was not raised in the earlier writ petition and was not taken upto logical, conclusion then this plea of retirement at the age of 60 years shall be deemed to be barred by principle of constructive res judicata and cannot be allowed to be raised in the present writ petition. (8). It is next contended by learned counsel for the petitioner that Rule 8 of the Rajasthan Municipal (Subordinate and Ministerial Service Rules of 1963 provides that the cases of such persons who were temporarily appointed during the period from 24.11.1963 to 31.12.1984, both inclusive, and who have not so far been confirmed on their respective posts, although working continuously shall be referred to the Commission by the Board concerned along with recommendations for adjudging their suitability. The service record of the persons shall be sent to the Commission while referring cases to it. The Commission, after considering the recommendation of the Board, the service record of the individuals, their qualifications, age, etc. The service record of the persons shall be sent to the Commission while referring cases to it. The Commission, after considering the recommendation of the Board, the service record of the individuals, their qualifications, age, etc. adJudge their suitability and shall communicate its decision to the Board concerned. The persons found suitable shall be treated as substantively appointed from the date of their temporary appointment. (9). I have given my thoughtful consideration, to the aforesaid submissions made by learned counsel for the petitioner Mr. M. Mridul. In my considered opinion, no such averments have been made in the body of the writ petition that the case of the petitioner was recommended by the Board to the Commission along with service record of the petitioner, his qualification, age, etc. to adJudge his suitability and after receipt of the recommendation of the Board, along with service record, his qualification and age etc. the Commission has communicated its decision to the Board regarding his suitability on his promoted post of Assistant Sanitary Inspector Grade-II, therefore, he should be treated as substantively promoted/appointed from the date of his temporary/ad hoc promotion/appointment on the said post. I am of the view that the provisions of Rule 8 of the Rules of 1964 are not attracted in the present case. (10). It is not conscionable to my judicial conscience to give benefit of backdoor promotion obtained by the petitioner on the post of Assistant Sanitary Inspector Grade-II whose name was at serial No.18 and who was not even within the zone of consideration for promotion on the said post. It is borne out from the record that petitioner did not possess requisite educational and technical qualifications for promotion on the post of Assistant Sanitary Inspector Grade-II. It is true that Chairman, Nagar Parishad, Jodhpur vide his order dated 6.8.84 Annex.3 to the writ petition made recommendation to relax the educational and technical quali- fication of the petitioner to the State Government but there is no material on record that State Government has granted such relaxation to him. Thus it is not a fit case to interfere with the order impugned Annex.14 to the writ petition passed by respondent No.3 under Article 226 of the Constitution of India. (11). Resultantly, for the reasons Stated hereinabove, the writ petition lacks merit, so it is hereby dismissed summarily at admission stage.