GOUS MOHD v. SECRETARY, LOCAL SELF DEPARTMENT, GOVERNMENT OF RAJASTHAN
2019-01-03
ARUN BHANSALI
body2019
DigiLaw.ai
JUDGMENT Arun Bhansali, J. This writ petition is directed against the recommendation made by the respondent-Municipal Council in its meeting dated 16.09.2013 (Annex.-14), recommending the name of the respondent No.6 for promotion on the post of Jr. Accountant and seeking direction to promote the petitioner on the post of Jr. Accountant with all consequential benefits. 2. It is, inter alia, indicated in the writ petition that the petitioner was appointed on the post of Sub-Nakedar on compassionate ground in Nagar Palika, Chittorgarh on 20.07.1985. The petitioner was promoted on the post of Nakedar and after abolition of post of Nakedar, the petitioner was absorbed on the post of L.D.C. by order dated 28.08.2002. In the year 2006, the petitioner was directed to work in the Account Department, wherein he has been working since then. Based on the recommendation made by the Department Promotion Committee ('DPC') by order dated 21.12.2010, the petitioner was promoted on the post of U.D.C. w.e.f. 01.04.2006. It is claimed that during the course of time, the petitioner was directed to work as Accountant and was further given additional charge on the post of Assistant Accounts Officer. The petitioner having fulfilled eligibility for promotion to the post of Jr. Accountant, made an application in this regard for promotion, wherein the eligibility indicated for the post of Jr. Accountant is 5 years' experience on the post of U.D.C. working as an Accountant. The DPC also recommended the name of the petitioner vide Annex.-11, however, vide order dated 17.09.2013 (Annex.- 14), the Promotion Committee of the Municipal Council, ordered for promotion of respondent No.6 as Jr. Accountant by indicating that he was working as UDC since 31.08.2005 and was working in the Cash Section and for the petitioner, he was directed to be promoted as Office Assistant. 3. It is, inter alia, submitted by learned counsel for the petitioner that the respondent No.6 is neither eligible nor he was interested in getting promoted on the post of Jr. Accountant, inasmuch as, he himself made an application (Annex.-15) for promotion on the post of Office Assistant and the recommendation also was made for such promotion. 4.
3. It is, inter alia, submitted by learned counsel for the petitioner that the respondent No.6 is neither eligible nor he was interested in getting promoted on the post of Jr. Accountant, inasmuch as, he himself made an application (Annex.-15) for promotion on the post of Office Assistant and the recommendation also was made for such promotion. 4. Submissions have been made that the requirement under the Rajasthan Municipalities (Subordinate & Ministerial Service) Rules, 1963 ('Rules of 1963') is having experience of working as Accountant and as admittedly the respondent No.6 has only worked as Cashier, he cannot be termed as eligible for the promotion to the post of Jr. Accountant and, therefore, the action of the respondents in this regard deserves to be quashed and set aside. 5. Learned counsel for the petitioner made submissions that it is not in dispute that the respondent No.6 has been working in the position of a Cashier only and working as Cashier cannot be equated with the eligibility of having work as an 'Accountant' as the two are totally separate positions and, consequently, the promotion of the respondent No.6 deserves to be quashed and set aside. 6. Learned counsel made reference to the General Financial and Accounts Rules of Govt. of Rajasthan to indicate that the position of Accountants are totally different from the position/duties of Cashier and, therefore, the use of qualification Accountant in the Rules has to be read in the said context and a Cashier cannot by any stretch of imagination be termed as an Accountant and, consequently, the action of the respondents in this regard deserves to be quashed and set aside. 7. It is submitted by learned counsel for the respondent-State that the respondent No.6 is possessing requisite experience and qualification for the post of Jr. Accountant and he is senior to the petitioner in the cadre of U.D.C. and, therefore, he has rightly been promoted on the post of Jr. Accountant and, therefore, the writ petition deserves to be dismissed. 8.
It is submitted by learned counsel for the respondent-State that the respondent No.6 is possessing requisite experience and qualification for the post of Jr. Accountant and he is senior to the petitioner in the cadre of U.D.C. and, therefore, he has rightly been promoted on the post of Jr. Accountant and, therefore, the writ petition deserves to be dismissed. 8. Learned counsel appearing for the respondent No.6 supported the promotion accorded to the respondent No.6 based on the clarification dated 27.12.2017, wherein it has been clarified that certain works would be treated as Accounts work, in which, the work of Cashier is also to be treated as Accounts work and, therefore, it cannot be said that the respondent No.6, who admittedly is much more senior to the petitioner has wrongly been accorded promotion and, therefore, the petition deserves to be dismissed. 9. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 10. It is not in dispute that the respondent No.6 was accorded promotion on the post of U.D.C. on 17.09.2005 and the petitioner was accorded promotion on the post of U.D.C. w.e.f. 01.04.2006. It is also not in dispute that the respondent No.6 is working as Cashier and the petitioner is working in the Accounts Department. The requisite eligibility under the Rules of 1963 for the post of Jr. Accountant reads as under:- ^^9- dfu"B ys[kkdkj Lukrd] ojh;rk mu vH;fFkZ;ksa dks nh tkosxh tks ys[kkdkj ijh{kk mŸkh.kZ gks vFkok p;u cksMZ ls fu;fer :Ik ls p;fur vH;FkhZ gks^^ ys[kkdkj ds :i es dk;Zjr ofj"B fyfid 5 o”kZ vuqHko 11. A perusal of the above eligibility conditions clearly indicates that the same for the promotion to the post of Jr. Accountant is 5 years' experience and a U.D.C. working as Accountant. 12. As to who is to be termed as an Accountant for the purpose of promotion as Jr. Accountant and whether a person working as Cashier can be termed as working as Accountant, the issue appears to have been repeatedly arising at various Local Self Government Institutions, who are governed by the Rules of 1963 and, therefore, the State Govt.
12. As to who is to be termed as an Accountant for the purpose of promotion as Jr. Accountant and whether a person working as Cashier can be termed as working as Accountant, the issue appears to have been repeatedly arising at various Local Self Government Institutions, who are governed by the Rules of 1963 and, therefore, the State Govt. has issued a clarification dated 27.12.2017 (Annex.- R/6/3), which reads as under:- ^^fo"k; %& dfu"B ys[kkdkj ds inksUufr gsrq ys[kk fyfid ds :i esa dk;Zjr ofj"B fyfid ds dk;Z ds laca/k esaA mijksDr fo"k;kUrxZr ys[k gS izkUrh; v/;{k] jktLFkku uxjikfydk deZpkjh QsMjs'ku ds i= fnukad 19-12-2017 ds lanHkZ esa jktLFkku uxjikfydk ¼ea=k;fyd ,oa v/khuLFk½ lsok fu;e 1963 dj vuqlwph es dfu"B ys[kkdkj ds in ij inksUufr gsrq ys[kk fyfid ds :i esa dk;Zjr ofj"B fyfid ftls 5 o"kZ dk vuqHko gks] izkof/kr gSA ys[kk dk;Z ds varxZr 1- jksdMiky dk dk;Z djuk] 2- ds'kcqd ijh{k.k djuk] 3- fofHkUu izdkj ds lans; 'kqYdks dh x.kuk djuk] 4- pkyku ekax i= rS;kj djuk] 5- lans; 'kqYdks dk fjdkMZ@fdlh izdkj ds [kkrs la/kkfjr djuk 'kkfey gSA^^ 13. A perusal of the above clarification issued, indicates that in the Accounts work, the work of Cashier, Examination of Cash Books, Calculation of various charges, preparation of various Challans/Demand Notes and all kinds of maintenance of Accounts have been included. The said clarification, though has been made long after the promotion of respondent No.6, has already taken place, as the same is only clarificatory in nature and appears to have been based on the practice adopted by the respondent-State/Municipal Council etc. for all this period, the work of Cashier having been taken as a part of Accounts work, apparently, the promotion accorded to the respondent No.6, who admittedly is senior to the petitioner in the cadre of U.D.C., cannot be faulted. 14. Insofar as the submissions made by learned counsel for the petitioner based on the dictionary meanings of Accountant and Cashier as well as with reference to the General Financial and Accounts Rules is concerned, the said aspect regarding putting interpretation to the eligibility norms cannot be confined to interpretation based on the dictionary meanings, inasmuch as, if the Accounts Department of the Municipalities etc.
involve several functions including that of a Cashier, a person working in the said position, cannot be deprived of the consideration for such promotion based on taking a literal interpretation of the term used in the Rules of 1963. 15. Insofar as the fact that the respondent No.6 applied for being promoted to the post of Office Assistant is concerned, the making of such an application cannot operate as estoppel against the respondent No.6 so as to hold him ineligible for promotion to the post of Jr. Accountant. 16. A submissions was made by learned counsel for the petitioner that despite ordering for promotion of the petitioner on the post of Office Assistant by the impugned minutes of Promotion Committee (Annex.-14), the petitioner has so far not even been accorded the said promotion, the said action of the respondents cannot be sustained. 17. In view of the above discussion, the writ petition filed by the petitioner insofar as the challenge laid regarding promotion of the respondent No.6 is concerned, has no substance, the same is, therefore, dismissed. However, in case pursuant to the minutes dated 17.09.2013 (Annex.-14), if the petitioner has not been accorded promotion on the post of Office Assistant, the respondents are directed to do the needful within a period of three weeks from today with all consequential benefits to the petitioner. 18. No order as to costs.