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2003 DIGILAW 1197 (RAJ)

Suresh Chandra Purohit v. State of Rajasthan

2003-08-27

H.R.PANWAR

body2003
JUDGMENT : 1. - This writ petition has been filed seeking directions to the respondents to determine and fill-up the vacancies of Executive Officer (Gr. IV)/Revenue Officer (Gr. II) considering the candidature of the petitioner and in the meanwhile, allow the petitioner, like others, to continue on the post of Executive Officer (Gr.IV) till regularly selected candidates are made available. 2. The facts and circumstances giving rise to this writ petition are that petitioner was initially appointed on the post of Lower Division Clerk on 27.8.1968. He has to his credit the qualification of M.A. and Diploma in Local Self Government. Thereafter he was promoted to the post of Revenue Inspector. Again, he was selected and appointed on ad hoc basis on the post of Executive Officer (Gr.IV) and contained to work on this post for about three years. On selected candidates being made available by the Rajasthan Public Service Commission, the petitioner was reverted to the post of Revenue Inspector. Respondents, after 1980, neither determined the vacancies nor made any selection on the post of Executive Officer (Gr.IV). Certain persons, whose services were terminated vide Annx. 3, were taken back vide Annx. 4 despite the fact that they appeared but could not qualify in the test held by the R.P.S.C. Petitioner made representations to the respondents for determining the post of Executive Officer/Revenue Officer and consider his case for promotion but to no avail. Hence this writ petition. 3. I have heard learned counsel for the parties and perused the record. 4. It has been contended by the learned counsel for the petitioner that the post of Executive Officer (Gr.IV) is required to be filled up 100% by direct recruitment under the provisions of the Rajasthan Municipal Service Rules, 1963 (for short, "the Rules, 1963") and under rule 10 of the Rules, 1963 a duty has been cast upon the appointing authority to determine the number of vacancies every year but it was not done in the instant case; similarly situated persons were taken back and allowed to continue on the post after their termination despite the fact that many of them could not qualify the test held by the R.P.S.C. He, therefore, contended that the petitioner has been discriminated. It was further submitted that the instant case stands squarely covered by the decision of this Court given in SBCWP No. 707/1993, Laxmi Gopal v. State of Rajasthan & Ors., the appeal against which stood dismissed vide judgment dated 9.7.97 and, therefore, in the light of the said judgment too, the petitioner is entitled for the relief claimed in the writ petition. In support of his submissions, learned counsel for the petitioner has placed reliance upon the judgments of the Hon'ble Supreme Court in (i) Virendra Kumar & ors. v. Union of India & ors., AIR 1981 SC 1775 ; and (ii) Vishundas Hundumal etc. v. The State of M.P. and ors., AIR 1981 SC 1636 . 5. On the other hand, learned counsel for the respondents reiterated the averments taken in the reply and submitted that the petitioner was working on the post of Revenue Inspector and there is no channel of promotion to the post of Executive Officer (Gr.IV) from the post of Revenue Inspector as the post of Revenue Inspector is encadred in the Rajasthan Municipal (Subordinate & Ministerial) Service Rules, 1963 whereas the post of Executive Officer (Gr.IV) is encadred in Rajasthan Municipal Service Rules, 1963; the post of Executive Officer (Gr.IV) is not a promotional post but it can be filled up by 100% direct recruitment. However, to meet out the administrative exigency, certain persons were given ad hoc appointment on the post of Revenue Officer and their services were terminated when duly selected candidates were made available; the judgment in Laxmi Gopal's case (supra) was the result of a mistake on the part of counsel appearing for respondents when he conceded that the case of the petitioners in that case would be screened on the basis of record and as such the verdict in that case does not come to the rescue of the petitioner; vacancies had already been determined and selections had been made after 1980; the channel of promotion from the post of Revenue Inspector was on the post of Assessor and not on the post of Executive Officer (Gr.IV); as such the writ petition lacks merit and may be dismissed. 6. I have given my thoughtful consideration to the rival submissions and perused the relevant Service Rules. 6. I have given my thoughtful consideration to the rival submissions and perused the relevant Service Rules. The petitioner was working on the post of Revenue Inspector and his services were governed by the Rajasthan Municipal (Subordinate and Ministerial) Service Rules, 1963 and the next promotional post is the post of Assessor. The post of Revenue Officer is governed by the provisions of the Rajasthan Municipal Service Rules, 1963 and the same can be filled up by 100% direct recruitment and not by promotion from the post of Revenue Inspector. There may be a mistake on the part of the respondents in promoting certain persons from the post of Revenue Inspector to the post of Revenue Officer (Gr.IV) to meet certain administrative exigency but that illegality cannot be perpetuated. I find no force in the submission that such a hostile discrimination to the petitioner violates the Doctrine of Equality enshrined under Article 14 of the Constitution, for the reason that it is settled proposition of law that Article 14 is not meant to perpetuate an illegality. I am fortified in my view by decisions of the Hon'ble Apex Court rendered in Snehprabha v. State of U.P. & Ors., AIR 1996 SC 540 ; Secretary, Jaipur Development Authority v. Daulat Mal Jain, (1997)1 SCC 35 ; State of Haryana v. Ram Kumar Mann, (1997) 3 SCC 321 ; and M/s. Faridabad Ct. Scan Centre v. Director General, Health Services & ors., (1997) 7 SCC 752 . 7. In Jalandhar Improvement Trust v. Sampuran Singh, (1999)3 SCC 494 ; the Hon'ble Supreme Court held that any allotment contrary to the rules will be against the law. Since the allotments made in favour of some of the respondents was based on wrong application of the reservation made for "local displaced person" those allotments were contrary to law; hence the principle of promissory/equitable estoppel cannot be invoked to protect such illegal allotments. 8. In Union of India v. Rakesh Kumar, AIR 2001 SCW 1458 , the Hon'ble Supreme Court held that no person can claim any right on the basis of decision which is de hors the statutory rules nor there can be any estoppel and in such cases, there cannot be any consideration on the ground of hardship. 9. 8. In Union of India v. Rakesh Kumar, AIR 2001 SCW 1458 , the Hon'ble Supreme Court held that no person can claim any right on the basis of decision which is de hors the statutory rules nor there can be any estoppel and in such cases, there cannot be any consideration on the ground of hardship. 9. In Financial Commission v. Gulab Chand & Anr., AIR 2001 SCW 4774 , the Apex Court held that merely because some other persons, who may or may not be similarly situated; were allowed to continue to remain in service, would not give the respondent a right to remain in service even though he has not passed the departmental examination which was a pre-requisite for the satisfactory completion of the probationary period and subsequent regularisation of the service. Any order/action contrary to law does not give right to other for similar treatment. 10. Thus, the judgments cited by the learned counsel for the petitioner do not come to petitioner's rescue as the facts and law dealt with in those judgments are different from the in that instant case. 11. In this view of the matter, there is no merit in the instant writ petition and it is accordingly dismissed. There shall be no order as to costs.Petition dismissed. *******