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Rajasthan High Court · body

2006 DIGILAW 473 (RAJ)

Indra Kumar D. Rawal v. State

2006-02-10

N.P.GUPTA

body2006
Honble Gupta, J.–Heard learned counsel for the petitioner. (2). By this petition, the petitioner seeks to challenge the Annexure-19, whereby the Dy. Director (Administration), Local Self Government Directorate, has directed, that the post of Electrical Inspector (Assistant Electrical Inspector) is not in the promotional channel of L.D.C., still the petitioner has been promoted, which is illegal, and that cannot be regularised, therefore, it had been directed, that the promotion be cancelled immediately, and the name of the person, responsible for the promotion, the immediately sent, so that further action may be taken. (3). It is contended that the petitioner was of course appointed as L.D.C., but then, it was vide Annexure-6, that he was promoted by the Executive Officer of the Municipality, stipulating, that the payment of salary would be paid on the budget, and the post, being sanctioned. Learned counsel relied upon Annexure-5, and submitted, that it is the Municipal Board, which had recommended for the petitioners promotion, and accordingly, Annexure-6 was passed, and thereafter, from time to time, the Directorate had been asking the informations, about the petitioners working as Electrical Inspector/Asst. Electrical Inspector, as to whether he was a direct recruitee, or promotee, and whether he was selected by the Selection Commission, and if so, the copy of the selection order was required, and it was intimated, that he was appointed as L.D.C., and he has not been selected by the Commission, still he continued to serve, for all these years, and now Annexure-19 has been passed, therefore, it is bad, apart from the fact that if he is reverted to as LDC, he will be deprived of all the benefits, that would have accrued to him, had he continued as L.D.C., during all these years. (4). I have considered the submission, and find that the post of Assistant Electrical Inspector, is governed by the provisions of the Rajasthan Municipal (Subordinate & Ministerial Service) Rules, 1963, and in the Schedule, this post finds place, in category (G), Item No. 2. It is 100% promotion post, and the feeding channel for promotion to this post is that of Wiremen. Admittedly, the petitioner does not fall in the feeding channel for promotion to this post, as such, the so called promotion, as made vide Annex. 6 is, on the face of it, bad. It is 100% promotion post, and the feeding channel for promotion to this post is that of Wiremen. Admittedly, the petitioner does not fall in the feeding channel for promotion to this post, as such, the so called promotion, as made vide Annex. 6 is, on the face of it, bad. That apart, a look at the provisions of Rule 23 onwards, shows that they provide a procedure for promotion, and admittedly, the procedure prescribed by this Part V has not been followed. Even if it were to be considered, that the petitioner was promoted temporarily, even then, according to the provisions of Rule 27, such promotions, either could not made, or in any case, could not be continued for all this time. In other words, the petitioner has no right whatever to hold the post, which he has occupying, and thus, Annexure-19 cannot be found fault with. In the totality of circumstances, it is a writ large, that the petitioner was illegally given promotion, and obviously therefore, the Directorate has directed, to forward the name of the person, responsible for the promotion, so that further proceedings may be taken against him. (5). So far Annexure-5 is concerned, a look at this, shows that, on the report of the clerk, in view of the post being vacant, a report was made in favour of promotion of the petitioner, on ad- hoc basis, and the administrator, in whom the powers of the Board are said to be vested at that time, ordered the petitioner to be promoted, but then, as found above, the promotion was clearly contrary to the provisions of Rules,and therefore, no benefit can be derived by the petitioner. May be that the promotion was made by the Board, but then, the fact remains, that the said promotion is not supportable by any authority of law, and even the Board cannot be conceded any power to act, de horse the legal provisions, and the petitioner can also not be allowed to lay any claim on the basis of such illegal promotion, more so, by way of asking this Court to invoke Art. 226 jurisdiction. (6). So far the petitioner having served on this post for all these years is concerned, the petitioner has already received the salary, for the job done, but then, in any case, Annexure-19 cannot be found any fault with. (7). (6). So far the petitioner having served on this post for all these years is concerned, the petitioner has already received the salary, for the job done, but then, in any case, Annexure-19 cannot be found any fault with. (7). There is yet another aspect of the matter, viz. that firstly the order Annex. 19 is perfectly valid, and even if it is assumed to be illegal, yet setting it aside, in my writ jurisdiction would result in restoration of the illegal promotion. And it is settled law, consistently laid down by this Court and Honble the Supreme Court, that for such purpose, the jurisdiction under Art. 226 cannot be invoked, nor exercised. In that view of the matter also Annex. 19 cannot be interfered with in my writ jurisdiction. (8). So far the petitioners feeling about having suffered the losses, on the post of LDC is concerned, it is clarified, since the petitioner has been in service during all this period, that consequent upon being sent back as LDC, the petitioner obviously would be entitled to the benefits of service, during all this period as if he was serving as LDC, and consequential benefits flowing there from. (9). The writ petition is, therefore, dismissed with the aforesaid observations.