JUDGMENT
R.S. Verma, J.
1. These three writ petitions raise interconnected disputed and hence have been heard together by consent of all concerned and are being disposed of by a common order.
2. The controverties raised in the three writ petitions have been borrowed down considerable during the course of arguments and hence I need not give in details the various averments and contentions raised in the pleadings of the parties. I shall, therefore, confine myself to such salient features of the three cases, as are necessary for decision of the controversies raised before me.
3. Bhim Singh is a substantive Nakedar belonging to the cadre of Municipal Board Khudala Falna. Lal Singh is an Assistant Revenue Inspector belonging to the cadre of Municipal Board, Takhatgarh. In Municipal Board Falna, there is only one sanctioned post of Assistant Revenue Inspector. Bhim Singh was promoted to this post provisionally on a temporary basis for a period of one year by the competent appointing authority. An order dated 22.5.90 was issued in this regard and copy of this order appears as Annexure 2 in S.B. Civil Writ Petition No. 4595/90. On 19.6.1990 Lal Singh aforesaid was transferred from his parent Municipal Board, Takhatgarh to the post of ARI occupied by Bhim Singh in Municipal Board, Khudala Falna. It is this transfer which has given rise to the various controversies raised in the three writ petitions. At this very juncture, certain other developments which followed in the wake of this transfer, may be noticed. On 20.6.90,Bhim Singh was transferred as ARI in Municipal Board, Takhatagarh vide Annexure 4. On 18.8.90, this transfer was canceled by Annexure 5, and Bhim Singh joined back as ARI in his parent Municipal Board, Khudala Falna. This resulted in posting of two ARIS in Municipal Board Khudala Falna against sanctioned strength of one ARI. In these circumstances, Bhim Singh filed S.B. Civil Writ Petition No. 4595/90 and interalia prayed that (i) respondents be restrained from disturbing his status as ARI in Municipal Board Khudala Falna and (2) respondents be directed to repatriate Lal Singh to his parent Municipal Board Takatgarh or some other Municipal Board. The case of the petitioner is that he, having been appointed ARI in his parent Municipal Board had a right to continue on this post and since there was only one post of ARI, Lal Singh could not continue on this post and Lal Singh’s transfer to Municipal Board Khudala Falna was bad in law.
4. This writ petition was opposed on the grounds interalia that Bhim Singh’s promotion to post of ARI was temporary and adhoc and the government was competent to transfer Lal Singh against the post of ARI in Municipal Board Khudala Falna, Certain other pleas were also raised but they were not pressed at the time of arguments and it was contended on the twin grounds that the writ petition deserved to be dismissed.
5. It appears that during the pendency of the writ petition, Bhim Singh was reverted to the post of Nakedar by order dated 28.11.90. Bhim Singh filed S.B. Civil Writ Petition No. 5040/90 challenging the legality and validity of his reversion order. Prayer regarding repatriation of Lal Singh to his parent board was interalia reiterated. This writ petition has also been opposed, interalia on the grounds pleaded in reply to earlier writ petition and a further stand was taken that Bhim Singh’s promotion being bad in law, he was rightly reverted.
6. It transpires that the order of reversion of Bhim Singh to the post of Nakedar was stayed by this Court vide order dated 6.12.90 with the result that he continues to occupy the post of ARI in Municipal Board Khudala Falna. The net resultant position is that now two ARI are functioning against one sanctioned post in Municipal Board Khudala Falna.
7. It may here be stated that during the pendency of the two writ petitions, the composition of Municipal Board Khudala Falna changed and with this changed complexion, Municipal Board Khudala Falna has instituted. S.B. Civil Writ Petition No. 2992/92 pleading interalia that it cannot bear the financial burden of two posts of ARIs and the government cannot insist upon the petitioner board to continue with Lal Singh as ARI. It has challenged order Annexure 11 dated 16.5.92 whereby it has been directed that Lal Singh shall continue to work as ARI in Municipal Board Khudala Falna. This writ petition has been opposed on behalf of all the respondents. In all the cases, necessary counters have been filed.
8. I have heard the learned Counsel for the parties and have perused the record. First of all, I shall deal with the last writ petition, wherein Municipal Board Khudala Falna has claimed that it cannot be compelled to bear the burden of two posts of ARIs and the government cannot insist that Lal Singh should continue as ARI in this Municipal Board. First, I take up the first question. Determination of staff of a Municipal Board is governed by Section 309 of the Act and primarily it is the Municipal Board itself which has to determine its staffing pattern by passing a resolution in this behalf. However, this is subject to any general or special direction which may be issued by the State Government. Section 309 of the Act makes this position very clear. The Section 309 reads as follows:
309. Determination of strength of the staff-(1) Subject to any general or special directions issued by the State Government, a council or a board, as the case may be, may be resolution determine the number of assessors, sanitary inspectors, other inspectors, and subordinate officers, accountants and ministerial establishment and other servants required for the municipality.
(2) Subject as aforesaid, a council or a board may direct that one person shall be appointed to discharge the duties of any two or more officer.
Municipal Board Khudala Falna has vaguely pleaded that it is already facing a financial crisis and is not in a position to bear burden of an additional post of ARI. It has also referred to some agitation by the Karmachari Union of the Municipal Board. It has not placed before the Court material to show its financial condition. On the contrary Annexure R 3/1 to R 3/3 have been placed on record showing that the board had asked for one post of Revenue Inspector. In my opinion, determination of strength is an internal matter of the Board and is subject to general or special directions of the Government. Such determination would involve detailed study of the financial resources of the board, comparable staffing pattern of other Municipal Boards, existing financial liabilities of the board and numerous other relevant factors. This Court is ill equipped to undertake this study, particularly when relevant material has not been placed before it. Hence, I would not enter into this question at all. The board is left free to determine its further stating pattern according to its financial needs by passing proper resolution. It may place the entire material before the State government stating how additional posts of RI or ARI are not required. It may represent its case before the State government in this regard with all relevant facts and figures. It is expected that the State government shall give due weight and respect to the views of the board and only thereafter shall take any decision in this regard by giving proper reasoned order, indicating that it has given due consideration to the views of the board in the matter. That would be the only legitimate and democratic way of dealing with the proposals of an autonomous body like a Municipal Board. Hence, I leave the matter at that.
9. This takes me to the consideration of the question of posting of Lal Singh in the Municipal Board Khudala Falna. By inserting Section 310 A in the Rajasthan Municipalities Act, 1959 by the Rajasthan Municipalities (Amendment Act) Act, 1991, the State Government has armed itself with power to transfer an employee of one board to another. The new Section 310 A reads as follows:
310A- Transfer from one board to another. Any officer or servant of a board who is a member of subordinate service, ministerial service or class IV service may be transferred by the State Government from the service of one board to the service of another board in accordance with the rules made under Section 297.
However, this power has to be exercised subject to provision of rules made under Section 297 of the Act. Moreover, posting of Lal Singh in the Municipal Board Khudala Falna would presuppose that a vacancy in the post of ARI already exists in that the Municipal Board. Reversion of Bhim Singh from post of ARI to Nakedar was stayed by this Court in S.B. Civil Misc. Stay Petition No. 4809/90 in S.B. Civil Writ Petition No. 5040/90 by order dated 6.12/90. The result is that Lal Singh cannot continue in this board as there is no vacancy in the post of ARI. However, it would be a different matter if the State Government decides to create one more post of ARI after adopting the procedure detailed in para 8 of this judgment. Then of course, it would be lawful for the government to post Lal Singh in the Municipal Board Khudala Falna but no till then. Till an additional post of ARI is created in the Municipal Board Khudala Falna, Lal Singh cannot be permitted to hold post of ARI in that board and the government must pass suitable orders to repatriate him to his parent board or to transfer him to some other board where vacancy of ARI exists.
10. The Rajasthan Municipal (Subordinate and Ministerial Service) Rules, 1963 govern the service conditions of employees like Bhim Singh and Lal Singh. These rules have been promulgated in exercise of powers vested in the State government by virtue of Ss. 88 and 297 of the Rajasthan Municipalities Act, 1959. Rule 38 of these rules governs these transfer. This rule has been quashed by a Division Bench of this Court in Chhagan Lal v. State of Raj. and Ors. 1990 (1) RLR 95. The result is that initial transfer and posting of Lal Singh in the Municipal Board Khudala Falna was bad and illegal. Likewise transfer of Bhim Singh from the Municipal Board Khudala Falna was also bad. At the time the initial transfer order of Lal Singh was passed and posted him to the Municipal Board Khudala Falna, the State government did not possess any power to transfer him to the Municipal Board Khudala Falna. However, by insertion of Section 310 A in the Act and promulgation of a new Rule 38, the position has slightly changed. This new rule reads as follows:
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11. A bare perusal of this rule would go to show that even after a transfer in pursuance of this rule, the employee retains his original seniority as obtainable in the parent Municipal Board. The rule is clear, categorical and unambiguous and admits of no doubt. It appears that by Annexure R 3/3 dated 4.3.92 addressed by the then Adhyakasha/Administrator, it was proposed that out of two proposed posts of ARIs, one may be got upgraded and Lal Singh may be promoted and appointed to this post. This letter categorically indicates the mind of the then Adhyakasha/ Administrator. In my opinion, Lal Singh cannot be promoted to any post of RI in M.B. (sic) Falna even if such a post is sanctioned in Municipal Board Khudala Falna. (sic) his seniority in his parent the Municipal Board and only if he is promoted in his parent board, he can be transferred to post of RI in Khudala Falna, I have already indicated that so long as Bhim Singh continues to hold the post of ARI in the Municipal Board Khudala Falna, Lal Singh cannot be posted as ARI. in the Municipal Board Khudala Falna because currently there is only one post of ARI.
12. Now, regarding the two writ petitions of Bhim Singh. Bhim Singh is a confirmed Nakedar in the Municipal Board Khudala Falna. He was in line for promotion to the post of ARI. He was promoted as ARI by the competent appointing authority. This promotion was temporary for one year. Initially Sarva Shri S.G. Ojha and N.M. Lodha tried to suggest that Bhim Singh was not eligible to be promoted as he did not possess requisite qualifications. However, this contention was not pressed when the relevant provisions were brought to their notice. Schedule to the Rajasthan Municipal (Subordinate & Ministerial Service). Rules, 1963 provides for post of ARI at item No. 3. For direct recruits, the essential qualification prescribed is matriculate with LSGD. However, for promotion, the only qualification is Nakedar/Moharrir with five years experience. At one time Shri N.M. Lodha contended that experience of five years should be after substantive appointment as Nakedar. However, he gave up this argument also because the schedule did not lay down any such condition. It may be recalled that Bhim Singh entered service as Nakedar on 18.1.84. He was given regular scale of Nakedar on 23.2.85. He was confirmed as Nakedar on 23.2.87. He was promoted as ARI on 22.5.90 against a permanent post. By this time he had acquired experience as Nakedar, for more than six years. I, therefore, reject the contention that Bhim Singh was not eligible to be promoted and appointed as ARI.
13. One limb of the contention was that Bhim Singh was not the senior most Nakedar/Moharrir and hence he could not have been promoted. Suffice it to say that none of the Nakedars/Moharrirs of the Municipal Board Khudala Falna have challenged Bhim Singh’s appointment on this score even though this promotion took place as back as 22.5.90. I, therefore, do not find any substance in this contention as well.
14. This takes me to the consideration of the nature of promotion accorded to Bhim Singh as ARI and if Bhim Singh could have been reverted to the post of Nakedar. Rule 23 of the relevant service Rules provides for constitution of a promotion board. Rule 23 of these Rules makes provision for procedure of selection. The procedure is that whenever vacancies are to be filled up by promotion, the concerned Municipal Board sends its recommendations to the Promotion Board alongwith relevant service record. The Promotion Board then takes a decision and this decision has to, be on basis of criteria prescribed under Rule 24. This is for regular promotions.
15. Power of making temporary or emergent appointments has been conferred on the appointing authority by Rule 27 of the Rules. Bhim Singh was promoted by the appointing authority under this rule. Relevant portion of this rule reads as under:
27. Emergent Temporary appointment-(1) A vacancy in the service maybe filled temporarily by the appointing authority by appointing thereto a person eligible for direct recruitment under the rules or by temporarily promoting thereto a person holding the next lower post and possessing the requisite qualifications.
Provided that no such temporary appointment either by promotion or by direct recruitment shall be contained beyond a period of one year without referring to the Promotion Board, in case of promotion and to the Commission in the case of direct recruitment for their concurrence and on their refusal to concur, such appointment shall be terminated immediately.
Provided further that until selected candidates are made available by the Commission the term may be extended by the Director from time to time.
The proviso to this rule are material. Once the appointing authority promotes a person temporarily or on emergent basis, the matter has to be referred to the promotion board. In case of direct recruitment, it is to be referred to the Commission. Once the matter has been referred to the Board and the Board refuses to concur to the promotion, the appointment shall be terminated immediately. In the present case, the promotion of Bhim Singh was for one year or till a duly selected candidate was available. It does not appear that Board has refused to concur to the promotion of Bhim Singh. Now, concurrence or noncurrence of the promotion Board is a matter beyond the control of the promoted employee. The promotion order of Bhim Singh, though mentions period of one year in consonance with first proviso to the rule has to be read as a promotion, till” refusal to concur “by the Board. As indicated above, there is no averment or material to show that the Promotion Board has refused to concur to the promotion of Bhim Singh. There is some seeming inconsistency in the provisions of first proviso to the rule but on a harmonious construction of the entire rule, it would appear that if an employee has been promoted by the appointing authority, he shall continue to hold the promotional post, till the Promotion Board refuses to concur to promotion or till a duly selected candidate by the Commission has been made available. Since, it was a single vacancy and had to be filled by promotion only and there was no refusal to concur to promotion, Bhim Singh was entitled to continue on the higher post. There was no question of availability of a duly selected candidate by the Commission either.
16. I may here briefly indicate that a question of duly selected candidate being made available by the Commission could have arisen only after the Municipal Board Khudala Falna had initiated action under Rule 17 which falls in part IV of the rules under the heading “Procedure for direct recruitment”. There is neither averment nor material to show that the Municipal Board Kliudala Falna ever initiated action under the said rule at all. However, as indicated above, since there was only one vacancy, hence also it could be filled up by promotion alone and not by direct recruitment.
17. I find that there was no legitimate or valid cause for reversion of Bhim Singh to the post of Nakedar. He was entitled to continue as ARI till the Promotion Board had refused to concur to his promotion. When it is so, there is no vacancy on the post of A.R.I. available for posting of Lal Singh in the Municipal Board Kliudala Falna. Bhim Singh shall continue to hold the post till he is immferred on an equivalent post of ARI in some other Municipal Board but without affecting his rights available under Rule 38 of the Rules.
18. In the above premises, I dispose of all the three writ petitions. I set aside and quash the order of reversion of Bhim Singh. Annexure 7 dated 28.11.90 in S.B. Civil Writ Petition No. 5040/90 which was stayed by this Court vide order dated 6.12.90. Lal Singh may be repatriated to his own parent board in equivalent capacity or in any other board in which equivalent post is vacant but in accordance with amended rule 38 of the Rules i.e. without affecting the seniority and rights flowing there from in respect of the employees of such Board, to which he may be so transferred. Matter of creation of two posts of ARI or one post of RI in the Municipal Board Kliudala Falna is left to the discretion of the Municipal Board Khudala Falna and the State Government, in light of discussion made in para 8 of this judgment. In the circumstances of the case, parties are lift to bear their own costs.