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2011 DIGILAW 248 (RAJ)

Rajesh Kumar v. State of Rajasthan

2011-02-03

GOPAL KRISHAN VYAS

body2011
JUDGMENT 1. - Heard learned counsel for the parties. 2. In this writ petition following prayer has been made by the petitioners : PRAYER "It is, therefore, most humbly and respectfully prayed that this writ petition may kindly be allowed and by appropriate writ, order or direction : (i) the impugned order dated 04.09.2006 (Annex. 5) passed by the respondent No. 2 may kindly be quashed and set aside; (ii) the effect and operation of the order dated 04.09.2006 (Annex. 5) may kindly be stayed till disposal of this writ petition. (iii) Any other relief/reliefs, which this Hon'ble Court may deem just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner. (iv) Costs of the writ petition may kindly be awarded in favour of the petitioner." 3. Brief facts of the case are that the petitioners were selected for appointment on the post of Sweeper by the selection committee of the Municipal Board, Sangaria, District Hanumangarh and after due selection they were provided appointment on the post of Sweeper on 07.01.2005. All the petitioners were provided appointment against the sanctioned post issued by the Government on 13.1.2003, which is Annexure-1. 4. It is pleaded in the writ petition by the petitioners that after appointment, the petitioners were working on the post of Sweeper but abruptly the services of the petitioners were terminated vide impugned order dated 04.09.2006. The said termination order was issued solely on the ground that selections were made during the ban imposed by the Government. Learned counsel for the petitioners vehemently argued that once permission was given by the Government vide Annexure-1 dated 13.1.2003 then obviously, it was within the jurisdiction of the Municipality to make selections as per the desire of the Sweepers for the municipal area of Municipal Board, Sangaria, District Hanumangarh. There is no allegation that selection process undertaken by the respondent Municipal Board was erroneous but the reasons for terminating the services of the petitioners is that all the selections were made during the ban imposed by the Government. 5. Learned counsel for the petitioners invited the attention of the Court towards the judgment of Division Bench of this Court rendered in case of State of Raj. & Ors. 5. Learned counsel for the petitioners invited the attention of the Court towards the judgment of Division Bench of this Court rendered in case of State of Raj. & Ors. v. Prakash Chandra & Ors., reported in RLW 1996 (1) (Raj.) 675 and Judgment of Coordinate Bench of this Court in case of Rajasthan Handpump Mistry Karmchari Sangh Instu. v. State of Rajasthan & Ors., reported in 2006 (1) RLW 204 and submits that controversy involved in this case is squarely covered with the judgment rendered by Division Bench in case of State of Raj. & Ors. v. Prakash Chandra & Ors (supra). 6. Learned counsel appearing for the respondents submits that though selection were made in accordance with the rules but services of the petitioners were terminated on the ground that the appointment were made during the ban imposed by the Government. Therefore, this writ petition deserves to be dismissed. 7. After hearing learned counsel for the parties and perusing the pleadings of the case, I am of the opinion that there is no whisper in the reply filed by the respondents that the petitioners are not possessing the qualification or they were wrongly appointed, more so, the fact that the petitioners were appointed by the duly constituted selection committee but appointments were made during the ban imposed by the Government, therefore, the services of the petitioners were terminated. In my opinion, the reason, which is assigned in the order of termination is not sustainable as per the verdict of Division Bench of this Court in case of State of Raj. & Ors. v. Prakash Chandra & Ors. . (supra). In para 25 of the said judgment, the following adjudication was made by Division Bench of this Court : "(25). In the present case, as per the case of the appellants, the appointments given by the appointing authority during the period when there was a ban on appointments imposed by the Government. The District Education Officer, who is an appointing authority and is a functionary of the State Government, was competent to give appointments. During this ban period he advertised the vacancies, invited the applications, called the eligible candidates for interview, constituted the selection committee, held the interviews and issued appointment letters to the selected candidates. The District Education Officer, who is an appointing authority and is a functionary of the State Government, was competent to give appointments. During this ban period he advertised the vacancies, invited the applications, called the eligible candidates for interview, constituted the selection committee, held the interviews and issued appointment letters to the selected candidates. If he acted in contravention of the condition and in neglect of his duties gave appointment to the candidates then that will not affect the validity of his action as the respondent - petitioners have no control over the act of the District Education Officer. Non-compliance of the directions by the appointing authority is an internal matter between the appellants and its functionaries relating to disobedience but the respondents cannot be thrown out of the employment arising out of the fault of the District Education Officer. Whether the directions issued by the State Government relating to the ban on appointments are mandatory or directory; is not necessary to be considered in this case but even if taking it as a mandatory, the ban imposed by the administrative order can be considered to be mandatory qua the appellants and its officer and not qua the third parties and a breach of such condition and giving appointments during the ban period will not invalidate the appointments if otherwise the respondents were eligible and fit to be appointed. Quashing those appointments on this ground will be allowing the appellants to take advantage of the wrong of its functionaries. The fault of the State Government to have an effective control over its functionaries would not vitiate the appointments. The selection and appointments of the respondent - petitioners, therefore, cannot be set-aside on the ground that the same were made during the period when there was a complete ban on appointment." 8. The fault of the State Government to have an effective control over its functionaries would not vitiate the appointments. The selection and appointments of the respondent - petitioners, therefore, cannot be set-aside on the ground that the same were made during the period when there was a complete ban on appointment." 8. In view of the aforesaid judgment and upon the ground that for cleanliness of the city, it is basic requirement for the Municipality to appoint sweepers and if after taking into consideration the need of cleanliness of the city and as per availability of posts if the petitioners were provided appointment on the post of Sweeper by the Municipal Board, then, in my opinion, no wrong has been committed by the Municipality and State Government has unnecessarily directed the Municipality to terminate the services of the petitioners, who are appointed after due selection as per the procedure laid down under the Rules. 9. In this view of the matter, this writ petition is allowed. The order of termination dated 04.09.2006 (Annexure-5) is hereby quashed and set aside with all consequential benefits to the petitioners.Writ Petition Allowed. *******