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2005 DIGILAW 2112 (RAJ)

Vijay Singh Jatav v. Jaipur Nagar Nigam

2005-08-10

AJAY RASTOGI

body2005
Judgment Ajay Rastogi, J.-These writ petitions raise identical question, therefore, they are being disposed ob by a common Judgment . 2. The instant writ petitions have been filed by the petitioner with the grievance that despite they being eligible and senior in the cadre of Class IV, were deprived of their appointment on urgent temporary basis under Rule 27 of the Rajasthan Municipal (Subordinate & Ministerial Service) Rules, 1963 (“the Rules of 1963”) and juniors have marched over them by passing order dated 29th January, 1992 (Annexure-3). 3. It is undisputed fact that the petitioners being substantive in the cadre of Class IV were eligible for promotion under the Rules of 1963 and as per their seniority list of Class IV employees dated 10th January, 1983 (Annexure-1). The name of petitioners Vijay Singh Jatav finds place at Serial No. 217, Ram Kalyan Meena at Sr. No. 215 and Ram Swaroop Meena at Sr. No. 73. Despite they being eligible for consideration against the quota reserved for promotion to the post of LDC under the Rules of 1963, the persons junior to them in the cadre of Class IV namely; Shri Sarvottam Bohra, Lalit Singh, Chiranjilal and Prabhudatt Sharma were promoted on the post of LDC on urgent temporary basis under Rule 27 of the Rules of 1963 vide order dated 29th January, 1992 (Annexure-3) and at that point of time, the candidature of the petitioners was ignored despite the fact that they were eligible for consideration for promotion on the post of LDC. 4. Shri Rajesh Raja Kumawat, Counsel for petitioners has urged that once the petitioner were senior in the cadre of Class IV and were eligible for promotion to the post of LDC even while making urgent temporary appointment under Rule 27 of the Rules of 1963 their seniority could not have been ignored by the respondents and denial of their consideration for promotion in the present facts and circumstances is in violation of Article 14 & 16 of the Constitution of India. 5. 5. The additional affidavit has been filed by the petitioners in which it has been pointed out that during the pendency of writ petition the petitioners were also promoted as LDC under Rule 27 of the Rules of 1963 vide order dated 24th December, 1997 and only grievance which now remains to be examined as to whether the petitioners are entitled for their retrospective promotion on adhoc basis under Rule 27 of the Rules of 1963 with effect from the date juniors were promoted prior to them. 6. Despite service upon the respondents, no reply to the writ petition has been filed and Shri Satyavrat Sharma who is appearing on behalf of Mr. Mahesh Chandra Sharma, Counsel for respondents, but despite his best efforts, no one has come forward to come with the explanation and he is unable to assist this Court. The only objection raised by him is that these are adhoc promotions and no right is conferred on those who were earlier promoted on 29.01.1992 and whenever regular promotions will be made in accordance with Part V of the Rules of 1963, the seniority assigned to the petitioners in terms of Annexure-1 dated 10th January, 1983 shall be taken into consideration and in such circumstances, the petitioner will not be deprived of their legimate right of consideration for regular promotion in the cadre of LDC and so also of their consequential Seniority. 7. I considered the submissions made and perused the material on record. 8. The facts remain undisputed that the petitioners were senior in the cadre of Class IV and eligible for promotion on the post of LDC, but seniority has not been considered while appointments were made under Rule 27 of the Rules of 1963 and denial of consideration even for adhoc promotion certainly violates the fundamental right of an incumbent as enshrined under Article 14 & 16 of the Constitution of India but since the petitioners have now been promoted during the pendency of writ petition vide order dated 24th December, 1997 and those who are said to be junior to them are also working on adhoc basis as LDC and when no regular promotions have been made and under Part V of the Rules, the respondents are under an obligation to make regular promotion in accordance with Scheme of Rules after taking note of seniority of all the Class IV employees. Once the promotions of the petitioners have been made on urgent temporary basis and they are holding the post, their right of consideration for regular promotion, in my opinion, cannot be jeopardized. Since as per Annexure-1 which is seniority list of Class IV employees they are senior in the cadre of Class IV qua those persons who were promoted w.e.f. 29th January, 1992. In facts and circumstances, it will serve that purpose and meet out the grievance of the petitioners if their seniority is being noticed and considered while making regular promotions from the cadre of Class IV under the Scheme of Rules of 1963, which alone will be considered for determination of seniority in the promotional cadre of LDC in terms of the Rules of 1963. 9. Counsel for petitioners has informed to this Court that for last more than 13 years, no regular promotions have been made atleast from the cadre of Class IV to the post of LDC under the Rules of 1963. Since there is no counter to the statement available on record, no opinion can be expressed, but it is always to be considered and to be kept in mind by the concerned authorities that as per the Scheme of Rules of 1963, regular promotion has to be made after due determination of vacancies in terms of Rule 10 of the Rules and once the Scheme of Rules provides the procedure in making regular promotion, in my opinion, the same cannot to be deviated at all and if promotions are still not made on regular basis that certainly defeat the legitimate right of the incumbents who are eligible for regular promotions for last 13 years. 10. Consequently, these writ petitions are partly allowed and the respondents are directed to make regular promotions if not made so far against the quota reserved for Class IV employees on the post of LDC in accordance with the Rules of 1963 after due determination of vacancies on year-wise basis in terms of Rule 10 of the Rules and consider the candidature and suitability of the petitioners for their regular promotions alongwith other similarly situated persons as per their seniority and if the petitioners are found suitable from the date anterior to their adhoc promotions, they may be promoted with all consequential benefits. The present exercise be undertaken within a period of six months. 11. No order as to costs.