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2016 DIGILAW 768 (RAJ)

Sharda v. State of Rajasthan

2016-05-26

SANDEEP MEHTA

body2016
JUDGMENT : Sandeep Mehta, J. By way of these writ petitions, the petitioners have approached this Court being aggrieved of the orders of different dates enumerated in the Schedule below, whereby the respondent Municipal Board, Sirohi terminated the services of the petitioners from their respective ministerial/subordinate posts on which they claim to have been regularly appointed. SCHEDULE Writ Petition Petitioner Date of appointment Post Termination Order 12953/2015 Dinesh Kumar 25.2.2015 Driver 27.10.2015 13272/2015 Smt. Sharda 23.6.2015 Gardener 7.8.2015 8569/2015 Bhalla Ram 23.6.2015 Sahayak Karamchari 7.8.2015 8570/2015 Bhanwar Singh 23.6.2015 Driver 7.8.2015 12954/2015 Parveen Kumar Dulani 23.2.2015 Sanitary Inspector 27.10.2015 12972/2015 Lada Ram 25.2.2015 JCB Operator 27.10.2015 12973/2015 Jawana Ram 25.2.2015 Driver 27.10.2015 13205/2015 Jayanti Lal 25.2.2015 Gardener 27.10.2015 13273/2015 Ishwar Lal Sain 23.6.2015 Sahayak Karamchari 7.8.2015 13274/2015 Virendra Singh 23.6.2015 Sahayak Karamchari 7.8.2015 Succinctly stated the facts relevant and necessary for disposal of these writ petitions are noted here in below. 2. The Government of Rajasthan initiated a process for filling the vacancies existing in the ministerial and subordinate cadres of various local bodies in the State. The concerned municipal bodies were directed to conduct an exercise for identifying the posts and to determine the number of vacancies. 3. The respondent Municipal Board, Sirohi took it upon itself, to conduct the recruitment and issued two different advertisements dated 13.1.2015 and 20.1.2015 for recruitment of Sanitary Inspector (1 post), Assistant Fire Officer (1 post), Vehicle Driver-General (5 posts), JCB Driver (1 post), Fireman (4 posts), Gardener (6 (posts) and Computer Operator (1 post). Both the advertisements were issued for very same posts. However, the advertisement dated 13.1.2015 mentions that the posts were contractual, whereas the advertisement dated 20.1.2015 talks of regular recruitment in the cadre. The petitioners claim to be possessing the requisite qualifications for being appointed on their respective posts. Accordingly, they applied against the advertised vacancies. The Municipal Board, thereupon allegedly conducted a selection exercise and, the petitioners upon being found successful therein, were offered temporary appointment on their respective posts vide orders of different dates set out in the Schedule with specified terms and conditions. Condition No. 6 of the appointment orders reads inter-alia that in case, the affidavits/certificates of the applicant were found to be wrong or if the appointment was found to be dehors the Rules, then the incumbent could be terminated from service without any prior intimation. 4. Condition No. 6 of the appointment orders reads inter-alia that in case, the affidavits/certificates of the applicant were found to be wrong or if the appointment was found to be dehors the Rules, then the incumbent could be terminated from service without any prior intimation. 4. The petitioners claim to have joined on their posts and were performing their duties to the satisfaction of the employer. However, to their utter surprise, different orders dated 7.8.2015 and 27.10.2015 detailed in the schedule came to be passed by the respondent Municipal Board Sirohi, terminating their services without any prior intimation and without following the due procedure of law. Thus, they have approached this Court by way of these writ petitions assailing the orders, whereby their services were terminated. 5. The respondents have filed replied to the writ petitions. The thrust of the assertions made in the reply is that the appointment of the petitioners made by the Municipal Board, Sirohi was totally illegal as the Municipal Board was neither competent nor vested with authority or jurisdiction to fill in any of the advertised posts on regular basis and thus, the action of the Municipal Board, Sirohi in selecting and appointing the petitioners is the ministerial and subordinate cadre on regular basis, was grossly illegal. Consequently, and upon realising this fundamental error, the orders dated 7.8.2015 and 27.10.2015 were passed whereby, the petitioners' appointments in the Municipal Board, Sirohi were cancelled and their services were terminated. 6. Shri Kuldeep Mathur and Shri Girish Sankha, learned counsel for the petitioners vehemently contended that the petitioners were appointed in the ministerial and subordinate services of the Municipal Board, Sirohi with due compliance of the recruitment procedure prescribed under the relevant statutory provisions. The respondents, before terminating the petitioners' services, did not follow the mandatory procedure prescribed in law' and so also the principles of natural justice. No enquiry was conducted before issuing the termination orders to the petitioners, who are regularly selected employees. Thus, as per them, action of the respondents in terminating the petitioner's services without providing them an opportunity of showing cause and without following the lawful procedure and principles of natural justice is arbitrary, bad in the eye of law and unconstitutional. In support of their contentions, they relied upon the judgments rendered by this Court in the cases of Ruchika Kansara v. State of Rajasthan and Ors. In support of their contentions, they relied upon the judgments rendered by this Court in the cases of Ruchika Kansara v. State of Rajasthan and Ors. reported in 2013 (5) WLC (Raj.) 310 : 2013 (1) RLW 775 and Rajesh Kumar and Ors. v. State of Rajasthan and Ors. reported in 2011 WLC (Raj.) 429 and urged that the writ petitions deserve acceptance and the impugned orders should be quashed. 7. Per contra, learned counsel Dr. Pratishtha Dave, AGC and Shri Rishabh Tayal on behalf of Shri K.L. Thakur, AAG, appearing for the respondents vehemently opposed the submissions advanced by the petitioners' counsel. They contended that the Municipal Board is not having jurisdiction to make recruitment on ministerial and subordinate posts advertised vide the disputed advertisements. Relying on the provisions of Rajasthan Municipalities Act, 2009 and the Rajasthan Municipalities (Subordinate and Ministerial Staff Service) Rules, 1963, they urged that the procedure of recruitment in Municipal Ministerial and Subordinate Services is strictly governed by these statutory provisions which were admittedly not followed before making appointments on the posts. The appointment orders issued to the petitioners bear the specific condition No. 6 as per which, in case of the appointment being found to be irregular, their services could be terminated without any prior intimation. They urged that it is clearly mentioned in the orders dated 7.8.2015 and 27.10.2015, whereby the appointments of the petitioner were cancelled and their services were terminated, that the appointments were illegal and contrary to the Rules. This aspect of the impugned orders is not questioned or challenged in the petitioner's pleadings. Thus, as per them, the impugned orders are perfectly just and legal and do not call for any interference by this Court in its extraordinary writ jurisdiction. In support of this contention, they relied upon the judgments rendered by Hon'ble Supreme Court in the cases of Krishna Hare Gaur v. Vinod Kumar Tyagi and Ors. reported in AIR 2015 SC 1248 and University of Rajasthan v. Prem Lata Agarwal reported in (2013) 3 SCC 705 and urged that the writ petitions are devoid of any merit and should be dismissed. 8. I have heard the arguments advanced by the learned counsel representing the parties and have gone through the record. 9. reported in AIR 2015 SC 1248 and University of Rajasthan v. Prem Lata Agarwal reported in (2013) 3 SCC 705 and urged that the writ petitions are devoid of any merit and should be dismissed. 8. I have heard the arguments advanced by the learned counsel representing the parties and have gone through the record. 9. The impugned orders dated 7.8.2015 and 27.10.2015 whereby the petitioners' appointments were cancelled clearly reflect that the appointments were being cancelled as having being made without authority of law. 10. It is relevant to mention here that so far as the petitioners Bhalla Ram (W.P. No. 8569/2015), Virendra Singh (W.P. No. 13274/2015) and Ishwar Lal Sain (W.P. No. 13273/2015) are concerned, orders of appointment dated 23.6.2015 were issued appointing them as Sahayak Karamchairs purportedly in pursuance of the advertisement dated 13.2.2015. However, surprisingly enough, the post of Sahayak Karamcharis had not even been advertised in the advertisement dated 13.1.2015. Furthermore, the advertisement dated 13.1.2015 was for contractual appointment, whereas these petitioners were provided regular appointment in the cadre. 11. So far as the petitioners Bhanwar Singh (W.P. No. 8570/2015) and Smt. Sharda (W.P. No. 13272/2015) are concerned, they too were offered appointment as Gardeners vide orders dated 23.6.2015, which purportedly was issued in furtherance of the advertisement dated 13.1.2015. The appointment orders speak of regular appointment on probation basis whereas, the advertisement dated 13.1.2015 was issued for engaging the employees on contractual basis only. Thus, evidently, the appointments orders issued to these petitioners were totally fraudulent. 12. The petitioners have vaguely pleaded in their writ petitions that their appointments were in consonance with the relevant statutory provisions. The respondents have set up a specific case in their reply that the appointments of the petitioners were not made in accordance with the Rules. 13. Since the issue is purely legal, the relevant provisions of the Rajasthan Municipality Act and the Rajasthan Municipalities (Subordinate and Ministerial Staff Service) Rules, 1963 need to be considered for appreciating the arguments and for resolving the controversy. 14. Section 330 of the Act of 2009 provides for the mode of recruitment to the posts in the Municipal Services and reads as under:- "330. 14. Section 330 of the Act of 2009 provides for the mode of recruitment to the posts in the Municipal Services and reads as under:- "330. Recruitment to posts in the Service.- (1) Upon the creation and constitution of the service, appointments to all posts therein shall, subject to any rules under Section 337 and notwithstanding anything contained in the rules made under section 339, be made in accordance with the provisions of sections 332, 333 or as the case may be, 335. (a) by direct recruitment, (b) by promotion, (c) by transfer, or (d) by deputation in exceptional case when eligible person is not available in municipal service. (2) The State Government shall lay down the terms and conditions on which appointments shall be made by transfer or deputation from a State Service. (3) With the approval of the State Government and in conformity with such general or special directions as it may from time to time issue, any officer or servant of a Municipality who is a member of the Service may be transferred to the service of another Municipality. (4) It shall not be lawful for the Municipality,- (a) to take any officer or employee on deputation from any department of the State Government without obtaining prior approval of the State Government, (b) to relieve any officer or employee without seeking orders of the State Government, (c) to refuse or not to allow any officer or employee to join the duty when such employee is transferred or deputed by the State Government." 15. Though as per sub-section (1) of Section 335 of the Act, the Municipality has been authorised to issue appointment orders for these posts but the procedure of recruitment is governed by the Rules framed under Section 337 of the Act. 16. Section 337 of the Act confers powers upon the State Government to frame rules and orders for carrying out the provisions of the Act. No. Rules of recruitment have been framed under Section 337 of the Act of 2009 till date. However, the existing rules of recruitment framed by the State Government under the Act of 1965 still hold field by virtue of Section 344(2)(a) of the Act of 2009, which reads as below: "344. Repeal and Savings.- (1).... (2).... No. Rules of recruitment have been framed under Section 337 of the Act of 2009 till date. However, the existing rules of recruitment framed by the State Government under the Act of 1965 still hold field by virtue of Section 344(2)(a) of the Act of 2009, which reads as below: "344. Repeal and Savings.- (1).... (2).... (a) such repeal shall not affect the validity or invalidity of anything already done or suffered or any action already taken under the repealed enactment or the rules, regulations and bye-laws made thereunder; and" 17. Thus, the Rules framed under the old Act continue to prevail till new Rules are framed by the State Government. As per these Rules, all appointments in the subordinate services of the municipalities are to be made by a Commission defined under Rule 3(i)(d) and constituted under Rule 8A of the Rules, which read as below: "3.(1)(d) Commission" means the Commission constituted under the provisions of these rules for the district in which the Board is situated." "Rule 8A. 1. The Commission shall be constituted district-wise for the purpose of the promotion and recruitment of the posts of these rules. 2. The Commission so constituted for the district shall be responsible for the recruitment and promotions of the posts provided in these rules of all the Municipal Boards situated in the district. 3. The Commission shall consist of Collector or his nominee not below the rank of Additional Collector as a Chairman in case of Board/Council, and Divisional Commissioner or his nominee not below the rank of the Additional Divisional Commissioner in case of Corporations, Dy. Director (Regional) of the area as Secretary member and concerned Chairperson or his representative or Municipal Officer not below the rank of Executive Officer as a member and Technical person will also be a member of Commission in case of recruitment of technical posts." 18. The method of recruitment is provided in Rule 8 which reads as under: "Rule 8. Method of recruitment.- Vacancies after the commencement of these rules shall be filled:- (i) By appointment in the lowest grade of each category. (ii) By promotion from the lower to a higher grade in the same category. (iii) By transfer of persons holding corresponding posts under a Board. (iv) By taking an official on deputation from the State Government. Method of recruitment.- Vacancies after the commencement of these rules shall be filled:- (i) By appointment in the lowest grade of each category. (ii) By promotion from the lower to a higher grade in the same category. (iii) By transfer of persons holding corresponding posts under a Board. (iv) By taking an official on deputation from the State Government. The ratio of filling up the vacancies by direct recruitment and promotion shall be 50:50, unless otherwise provided. Note.-Any person, rendered surplus consequent on the fixation of the strength of the service, shall be absorbed first irrespective of this ratio of recruitment. Provided that the cases of such persons who were temporarily appointed during the period from 24.11.1963 to 31.12.1984, (both inclusively) and who have not so far been confirmed on their respective posts, although working continuously shall be referred to the Commission by the Board concerned along with its recommendations for adjudging their suitability. The service record of the persons shall be sent to the Commission while referring cases to it. The Commission, after considering the recommendations of the Board, the service record of the individuals, their qualifications, age etc., adjudge their suitability and shall communicate its decision to the Board concerned. The persons found suitable shall be treated as substantively appointed from the date of their temporary appointment. Provided further that in case a person is not adjudged suitable by the Commission for the post to which he has been appointed, his services shall be terminated forthwith and thereupon, such post shall be deemed to have become vacant and shall then be filled in accordance with these rules. Provided further that persons who were appointed and confirmed under Rajasthan Municipalities (Class IV) Service Rules, 1964 and have been working against the post of driver continuously for seven years upto 31st December, 1998 and are in service at the time of screening for judging their suitability, shall be referred to commission by the Board concerned along with its recommendations and service record adjudging their suitability. The Commission after considering the recommendations of the Board and the service record of the person, adjudge their suitability and communicate its decision to the Board concerned. The persons found suitable shall be appointed on the post of Driver from the date of their screening." 19. Chapter 4 of the Rules provides for the mode of direct recruitment. The Commission after considering the recommendations of the Board and the service record of the person, adjudge their suitability and communicate its decision to the Board concerned. The persons found suitable shall be appointed on the post of Driver from the date of their screening." 19. Chapter 4 of the Rules provides for the mode of direct recruitment. Rules 17, 18 and 19 of the Rules provide for determination of the vacancies, preparation of the lists and issuance of advertisements for inviting applications filling such vacancies. Rule 21 provides for scrutiny of the application forms by the Commission. As per this rule, the Commission can invite such number of the applicants as it thinks fit for interviews. Rule 20 postulates that the application shall be made in the form prescribed by the Commission and obtainable from the office of Dy. Director, Regional, upon payment of fees. As per Rule 22, the Commission is required to prepare Board-wise lists of candidates found suitable for appointment to each grade or category of post and to forward the same to the concerned Board. Thus, all the steps of recruitment on the Ministerial and Subordinate services in the Municipal Bodies viz. inviting applications by advertisement, holding interviews, preparing select lists and forwarding the same to the concerned Board exclusively lie within the domain of the Commission constituted under the Rules of 1963. It is only upon the recommendations received from the Commission that the Municipality is authorised to issue appointment orders in 5 the cadre of ministerial and subordinate services as per Section 335(1) of the Act. 20. Admittedly, in the case at hand, the two advertisements on which the petitioners' counsel relied upon heavily, were issued by the Municipal Board, Sirohi and not the recruitment Commission constituted under Rule 8A of the Rules. None of the mandatory steps of recruitment as stipulated under the Rules of 1963 were followed before issuance of the controversial appointment orders. The fact that the recruitment process was itself conducted in a clandestine and suspicious manner is clear from the circumstance that the advertisement dated 13.1.2015 was issued inviting applications for appointment on the ministerial and subordinate service posts on contractual basis, whereas, the advertisement dated 20.1.2015 refers to regular recruitment on these very posts. The fact that the recruitment process was itself conducted in a clandestine and suspicious manner is clear from the circumstance that the advertisement dated 13.1.2015 was issued inviting applications for appointment on the ministerial and subordinate service posts on contractual basis, whereas, the advertisement dated 20.1.2015 refers to regular recruitment on these very posts. Thus, the entire procedure of recruitment is shrouded under cloud of doubt and was apparently carried out in total violation of the procedure prescribed under law and by an authority not competent to do so. The posts of Sahayak Karamcharis were not even advertised and despite that the petitioners Bhalla Ram, Ishwar Lal Sain and Virendra Singh were given regular appointments in the said cadre. 21. In view of the foregoing discussion, this Court is of the firm opinion that as the orders appointing the petitioners in the Municipal Board, Sirohi on probation basis were issued in a totally illegal, clandestine and virtually fraudulent manner without following the statutory recruitment procedure prescribed under the relevant Rules thus, the same amount to nullity and have no sanctity in the eye of law. The Hon'ble Supreme Court, in the case of Krishna Hare Gaur (supra) and this Court in the case of Municipal Board, Raisinghnagar v. Harish Chandra Joshi and Ors. reported in 2002 (3) RLW Raj. 1869, have clearly propounded that where appointments on civil posts are made without following the procedure prescribed in the Rules, the same are nullity and as such, there is no requirement of following the principles of natural justice before setting aside or cancelling such appointments. 22. As an upshot of the above discussion, the argument advanced by the petitioners' counsel that the impugned orders whereby, the petitioners' services were terminated should be declared as bad in the eye of law because principles of natural justice were not following before passing such orders, has no legs to stand whatsoever. The Board, upon realising the fatal mistake committed by it in giving appointment to the petitioners in the ministerial and subordinate services without following the mandatory procedure of recruitment was perfectly justified in terminating their services and cancelling the appointments. 23. The petitioners Praveen Kumar Dulani, Dinesh Kumar, Lada Ram, Jawana Ram and Jayanti Lal are continuing in pursuance of the interim orders passed by this Court staying the operation of the termination order dated 27.10.2015. 23. The petitioners Praveen Kumar Dulani, Dinesh Kumar, Lada Ram, Jawana Ram and Jayanti Lal are continuing in pursuance of the interim orders passed by this Court staying the operation of the termination order dated 27.10.2015. Even an per the admitted case as set up in the writ petitions, the petitioners were continuing in the probation period when the order of termination came to be passed. Thus, the termination of the petitioners cannot be treated to be stigmatic. 24. The respondent authorities may consider continuing the services of these petitioners (who were granted interim protection) on contractual basis at the fixed remuneration prescribed in the appointment order till their services are required or regularly selected candidates become available. However, this indulgence of continuance on contractual basis shall not create any equity in favour of the respective petitioners. 25. The writ petitions and the stay applications being devoid of any merit are dismissed with the above observations. 26. A copy of this order be placed in each file.