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2002 DIGILAW 1708 (RAJ)

Trilok Chand v. Mayor, Municipal Corporation

2002-10-17

SUNIL KUMAR GARG

body2002
JUDGMENT 1. - This writ petition under Article 226 of the Constitution of India has been filed by the petitioner against the respondents on 12.3.99 with a prayer that by an appropriate writ, order or direction the respondents may be directed to give appointment to the petitioner on the post of Safai Karamchari (Sweeper) from the date when the other persons whose names appeared in the select list were given appointment with all consequential benefits. 2. The facts as put forward by the petitioner are as under: (i) That the respondent No. 2 (Chief Executive Officer, Municipal Council, Jodhpur) published an advertisement (Annex. 1) on 9th January, 1996 about the vacancies of 774 posts of Safai Karamchari (Sweeper). (ii) That in pursuance of the said advertisement (Annex. 1) dated 9.1.1996, the petitioner applied for the said post and he was found eligible and hence interview call letter No. 4013 (Annex. P/2) was sent by the respondent No. 2 (Commissioner, Municipal Council, Jodhpur). The interview was held on 12.7.96 at Fire Brigade Office, Nagori Gate, Jodhpur. (iii) That before issuing advertisement (Annex. 1), the Government of Rajasthan issued a letter dated 16.11.95 (Annex P/3), in which the mode of recruitment was declared as per the direction of this Court and 774 posts of Safai Karamchari (Sweeper) were sanctioned. The method of recruitment was proposed by this Court in the judgment dated 21.12.92 delivered in S.B. Civil Writ Petition No. 1713/92 (Shri Prabhu and Ors. v. State) . As per the judgment dated 21.12.92, the recruitment was to be made through lottery system amongst the eligible persons. The lottery was held by the respondents amongst the eligible candidates and the result of the lottery was declared on 19.7.1996. The petitioner's name appeared in the list of selected candidates (Annex. P/4). The petitioner's roll number stood at serial No. 4 in the 7th line of first page. (iv) The further case of the petitioner is that after publishing the list (Annex. P/4) of selected candidates, the respondents sent the appointment litter to other candidates, but unfortunately no appointment letter was sent to the petitioner. The petitioner contacted the respondents several times, but no satisfactory explanation or reply was given to him by the respondents. (iv) The further case of the petitioner is that after publishing the list (Annex. P/4) of selected candidates, the respondents sent the appointment litter to other candidates, but unfortunately no appointment letter was sent to the petitioner. The petitioner contacted the respondents several times, but no satisfactory explanation or reply was given to him by the respondents. (v) The further case of the petitioner is that since the respondents without any valid reason did not give appointment to the petitioner while appointment, in pursuance of lottery system, were given to other candidates, therefore, the act of the respondents comes in the purview of violation of Article 14 of the Constitution of India as the action of the respondents is arbitrary and discriminatory. Hence, this writ petition with the above mentioned prayer. 3. Reply to the writ petition was filed by the respondent and in the reply, the respondents have raised following preliminary objections: (i) That the petitioner has not impleaded the Municipal Corporation as a party in the writ petition therefore, the writ petition is not maintainable. (ii) That since list of selected candidates (Annex. P/4) was published on 19.7.96 and the petitioner has filed the present writ petition in the year 1999, therefore, the writ petition filed by the petitioner deserves to be dismissed on the ground of inordinate delay. Further reply of the respondents is that it was not necessary for the respondents to fill in all the vacancies, but out of 774 posts of Safai Karamchari (Sweeper), 642 posts have been filled in, but the case of the petitioner and other similarly situated persons numbering 132 is still pending under consideration and decision will be taken by the Municipal Corporation, Jodhpur in consultation with the State Government to fill up the rest of the vacancies and, therefore, no case is made out and the writ petition is liable to be dismissed. 4. I have heard the learned counsel for the parties and perused the record. 5. There is no dispute on the point that as per the letter dated 16.11.95 (Annex. P/3) lottery system was introduced and 774 posts of Safai Karamchari (Sweeper) were advertised through advertisement (Annex. P/1), and as per reply of the respondents, 642 posts of Safai Karamchari have been filled in and for rest the matter is under consideration. 5. There is no dispute on the point that as per the letter dated 16.11.95 (Annex. P/3) lottery system was introduced and 774 posts of Safai Karamchari (Sweeper) were advertised through advertisement (Annex. P/1), and as per reply of the respondents, 642 posts of Safai Karamchari have been filled in and for rest the matter is under consideration. There is also no dispute on the point that the petitioner was selected in the lottery system. 6. It may be stated here that none of the conditions for appointment to the candidate was that the appointment was to be given only to those candidates whose one of the family members was in the employment of respondents. Such candidates were not entitled for employment for the simple reason that their other family members were already in the employment of the respondents. This condition is mentioned at serial No. 3 in the advertisement dated 9.1.96 (Annex. P/l). During the course of arguments, it was submitted that because of this, the appointment was not given to some candidates because the matter was being examined from that point of view and the case of the petitioner is also being examined from the point of view also. 7. This Court in writ petition No. 273/97 (Sajjan Raj v. State of Rajasthan), decided on 6.9.2000 , considered this aspect of the matter and passed the following order: "Thus in the facts and circumstances of the case, all these petitions are disposed of finally that the learned Secretary Jaipur may issue the guidelines to the Municipal Corporation, Jodhpur as what is the meaning of "family" within a period of 10 weeks from today. Shri Kailash Joshi, learned counsel for the respondent No. 1 is directed to furnish a certified copy of the order to the learned secretary within a period of two weeks from today. The respondents No. 2 and 3 shall decide the case of entitlement of the employment of the petitioners and similarly situated persons in accordance with the definition given by the respondent No. 1 thereafter within a period of two months." 8. In the present case, the petitioner has submitted an affidavit stating that no member of his family is in the service of Municipal Corporation, Jodhpur and further made clear that neither his wife, brother or parents nor any other family member is in service of Municipal Corporation, Jodhpur. In the present case, the petitioner has submitted an affidavit stating that no member of his family is in the service of Municipal Corporation, Jodhpur and further made clear that neither his wife, brother or parents nor any other family member is in service of Municipal Corporation, Jodhpur. Thus, since the petitioner has fulfilled all the conditions mentioned in the advertisement (Annex. P/1) and his matter is pending with the respondents as pointed out by the respondents themselves in their reply in these circumstances, the petitioner is entitled to be given appointment on the post of Safai Karamchari (Sweeper), but the prayer that he should be given appointment from the date when other persons were given appointment cannot be accepted and he should be given appointment from the date when he joins the duty. 9. During the course of arguments , an objection was raised by the respondents that since the Municipal Corporation, Jodhpur has not been impleaded as party respondent in the writ petition, is not maintainable. It does not appear to be valid ground for rejecting the writ petition. Since it is very technical objection, therefore, looking to the facts and circumstances of the case, the writ petition cannot be dismissed merely on a technical ground. The other objection that the writ petition has has been filed after a delay is concerned, the writ petition should not be dismissed on this ground alone as benefit of appointment would be given to the petition from the date of he joins the duty. Therefore, both the preliminary objections stand rejected. 10. For the reasons mentioned above, this writ petition deserves to be allowed.Accordingly, the writ petition is allowed and the respondents are directed to give appointment to the petitioner on the post of Safai Karamchari (Sweeper) in pursuance of advertisement dated 9.1.96 (Annex. P/1) within a period of three months from today.Costs made easy. Petition allowed. *******