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2015 DIGILAW 859 (RAJ)

Purushottam Jeswani v. State of Rajasthan

2015-04-16

PRAKASH GUPTA, SUNIL AMBWANI

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JUDGMENT : Prakash Gupta, J. In all these writ petitions the common question involved is as to whether the recruitment in the Municipalities on the encadered posts by way of transfer is carried out by the State Government without the consultation of the Rajasthan Public Service Commission (for short RPSC) as provided in proviso (i) of the Rule 7 (c) of the Municipal Service Rules, 1963, in violation to the Rules made under Rajasthan Municipal Service Rules, 1963 (for short the Rules of 1963) and are hence, invalid. 2. It is stated that in case suitable persons are not available from direct recruitment or promotion then the post is provided to be filled up by transfer, if Government is satisfied, in consultation with the commission, that suitable persons are not available for appointment by any of the other methods of recruitment. No direct recruitment as provided in the Rules of 1963 has been made by the State Government for encadered posts. The officers recruited by transfer on deputation in Municipal Boards are being illegally, arbitrarily absorbed as the encadered posts. The appointment by transfer in Rajasthan Municipal Services, as provided in Rule 7 (c), is ultra vires to the Constitution because no percentage has been prescribed for filling the post by transfer. The process for direct recruitment has neither been initiated nor made as prescribed in the Rules of 1963 and no such procedure of direct recruitment, as provided in part IV of the Rules of 1963, has been followed by the respondents before appointment on the encadered posts. The appointment by transfer under Rule 7 (c) can only be made with the consultation of RPSC when suitable persons are not available. The rights of the employees of Rajasthan Municipal Services are seriously affected if the persons from the other services are transferred and are subsequently absorbed. 3. A reply has been filed by the respondent-State wherein it is stated that the Government can fill up the post included in the schedule to the Rules of 1963 by way of transfer if the Government is satisfied in consultation with the Commission that suitable persons are not available for appointment by either recruitment or promotion. 3. A reply has been filed by the respondent-State wherein it is stated that the Government can fill up the post included in the schedule to the Rules of 1963 by way of transfer if the Government is satisfied in consultation with the Commission that suitable persons are not available for appointment by either recruitment or promotion. The appointment by transfer is included in the quota of direct recruitment and therefore, the petitioners cannot raise any objection with regard to the appointment by way of transfer to the encadered posts and hence the action of the State is legal and justified and in conformity with the Rules. 4. It is submitted by the learned counsel for the petitioners, Sh. Rajendra Soni, that the respondent-State can neither fill up the posts in the Municipalities, by taking the Officers on deputation, nor can it fill up the posts in the Municipalities which are to be filled in 100% by promotion. It is submitted that the State has ignored the mandate of 74th amendment to the Constitution of India, which has given constitutional status to local bodies including a Municipality. With reference to the Nagar Nigam, Jaipur, he submitted that almost all the Officers are sent on deputation and virtually, it has been converted into a Government Department. The same situation prevails in the other Municipalities also. It is submitted that no appointment on deputation can be made to the said posts from the Officers of the State Government until and unless it has been found that no suitable/eligible candidate is available for appointment to the said post by promotion. 5. It is submitted by the learned counsel for the State that the appointment by transfer is included in the quota of direct recruitment and therefore, the petitioners cannot raise any objection with regard to the appointment by way of transfer to the encadered posts, thus the action of the State is legal and justified and in conformity with the Rules. 6. We have given our thoughtful consideration to the rival submissions raised by the learned counsel for the parties and perused the entire record. 7. 6. We have given our thoughtful consideration to the rival submissions raised by the learned counsel for the parties and perused the entire record. 7. In Rule 7 (c) of the Rules of 1963 the method of recruitment has been prescribed which reads as under:- "Method of recruitment-Vacancies in the service after first appointments by way of integration have been and shall be filled: (a) by direct recruitment as specified in (column 3 of the schedule) (b) By promotion from posts as specified in (column 4 of the schedule) or (c) by transfer Note- Transfer includes transfer of an officer of the Government of deputation: Provided- (i) that if Government is satisfied in consultation with the Commission that suitable persons are not available for appointment by either method of recruitment or promotion in a particular year, appointment by the other method in relaxation of the prescribed proportion may be made in the same manner as specified in these Rules: (ii)............. (iii) ............" 8. We are concerned here with the proviso to Rule 7 (c) which provides that if Government is satisfied in consultation with the Commission that suitable persons are not available for appointment by either method of recruitment or promotion in a particular year, appointment by other method by relaxing the prescribed proportion may be made in the same manner as specified in the Rules. 9. Rajasthan Municipalities Act, 1959 (for short ‘the Act of 1959’) was repealed by Rajasthan Municipalities Act, 2009 (for short ‘the act of 2009’). Clause (b) of sub Section (2) of Section 344 of the Act of 2009 inter alia provides that notwithstanding the repeal of the Act of 1959 all Rules made under that Act shall so far as they are not inconsistent with the provisions of the Act of 2009, be deemed to have been made under the Act of 2009. Section 302 to Section 310-A of the Act of 1959 which deals with the services under municipalities are substantially similar to Section 328 to Section 336 of the Act of 2009. However, Section 331 of the Act of 2009 which was corresponding to Section 305 of the Rajasthan Municipalities Act, 1959 and provided for the consultation with RPSC in matters relating appointment by direct recruitment and disciplinary matters, has been deleted w.e.f. 24th November, 2010 vide the Rajasthan Municipalities (Amendment) Act, 2011. However, Section 331 of the Act of 2009 which was corresponding to Section 305 of the Rajasthan Municipalities Act, 1959 and provided for the consultation with RPSC in matters relating appointment by direct recruitment and disciplinary matters, has been deleted w.e.f. 24th November, 2010 vide the Rajasthan Municipalities (Amendment) Act, 2011. As such any provision in any Rules made under the Act of 1959 and deemed to have been made under the Act of 2009 by virtue of Section 344 thereof, so far as they provided for consultation with the RPSC have become inconsistent with the provision of the Rajasthan Municipalities Act, 2009 w.e.f. 24th November 2010 and are inoperative from the said date. Now, after 24th November 2010, any action under any such Rules cannot be held to be invalid merely for the reason that any authority acting thereunder did not consult the RPSC in respect of any matter under those Rules. Neither can any direction be issued for such consultation. 10. So far as vires of Rule 7 (c) is concerned, merely, because schedule appended to the Rules of 1963 does not prescribed in percentage to which extent to officers can be appointed by transfer, Rule 7 (c) of the Rules cannot be termed as contrary to the said schedule. 11. So far as writ No. 9859/2005 is concerned, we are informed that the deputationists were repatriated and were relieved. In view of this, the prayers in the said writ petition have become infructuous. 12. On the above discussion, all the three writ petitions being devoid of merit, are dismissed and writ No. 9859/2005 is also dismissed as infructuous. All Writ petitions dismissed.