JUDGMENT
S.K. Keshote, J.
1. Briefly stated the facts giving rise to filing of this revision petition under Section 115 of the C.P.C. are that the plaintiff respondent No. 1 filed a civil suit along with the application under Order 39 Rules 1 & 2 of the C.P.C. on 21st of September, 1999 in the Court of Civil Judge (Sr.Div.) Bharatpur. It is pleaded in the suit that he was appointed as Junior Accountant on 19th of June, 1976 in the Municipal Council, Bharatpur. He was promoted as Accountant with effect from 16.9.1988 and now he is working as Assistant Accounts Officer with effect from 1.7.1999.
2. It is submitted that the services of employees and officers of the Municipalities are governed by the Rajasthan Municipal (Subordinate & Ministerial) Service Rules, 1969 (for short, ‘the Rules, 1969′) and Rajasthan Municipal Service Rules, 1963 (for short, the Rules, 1963’). In the relevant service rules though there is a provision that the post of Assistant Accounts Officer is to be filled in 100% by promotion, but the defendants in total violation of the mandatory provisions of the rules has not made any promotion to the post of Assistant Accounts Officer from a long time. It has further been stated that Shri Chandra Bhan Gupta was working on the post of Assistant Account Officer on deputation prior to 1.7.1999. After his transfer elsewhere the said post became vacant and the plaintiff was given charge of that post and since then he is continuously holding the same. It is stated that the defendants are trying to disturb the plaintiff by filling the said post by deputation or transfer. It has further been submitted that the plaintiff is fully eligible for promotion on the post of Assistant Account Officer on regular basis and thus this post cannot be filled in either by deputation or by transfer. The prayer has been made to restrain the defendants not to disturb the plaintiff from the post of Assistant Accounts Officer. Further prayer is made for a direction to them not to fill the post of Assistant Accounts Officer either by transfer or deputation and to maintain status quo till the final decision of the suit.
3. The application for temporary injunction filed by the plaintiff respondent No. 1 was contested by the defendant petitioner by filing detailed reply thereto. The defendant petitioner has not denied that the plaintiff is working on the post of Assistant Account Officer. What it is stated that due to transfer of Shri Chandra Bhan Gupta from Municipal Council, Bharatpur the charge of the said post was given the plaintiff in addition to the charge of the post of Accountant and for which extra remuneration at the rate of 6% of the basic pay is being paid to the plaintiff. It is admitted that the post of Assistant Accounts Officer is to be filled in hundred percent by promotion. Where the eligible persons for promotion are not available, the Government is free to fill in the said post by way of deputation or transfer.
4. The learned trial court on 14th of July, 2000 dismissed the application for temporary injunction filed by the plaintiff under Order 39 Rule 1 and 2 read with Section 151 of the C.P.C. The plaintiff carried the matter in appeal before the District Court, Bharatpur, which was decided by the learned Additional District Judge No. 1, Bharatpur vide its order dated 21.9.2000. The order of the learned trial court was set aside and the defendants are directed not to disturb the plaintiff respondent from the post of the Assistant Accounts Officer and not to fill the post by deputation till final decision of the suit. Thus, this revision petition.
5. Shri Mohd. Rafiq, Additional Advocate General, appearing on behalf of the defendant petitioner, contended that the defendant petitioner is the Director, Treasury and Accounts, Rajasthan, Jaipur who maintains a unified cadre of Junior Accountant, Accountant and Assistant Accounts Officers which cadre work as a pool to be deployed in various Government Departments as also the Local Bodies like Municipality, Urban Improvement Trust, Jaipur Development authority and different Panchayat Samities. The Government has decided as a matter of policy that accounts cadre is separately constituted under the defendant petitioner so that their expertise is utilized in all the Department whether Government or Semi Government, to man the post of Junior Accountant, Accountant and Assistant Accounts Officer. In pursuance of the Government policy the post of Assistant Accounts Officer in the Municipal Council, Bharatpur has always been held by the Assistant Accounts Officer from the defendant petitioner, on deputation. The plaintiff has no indefeasible right muchless a fundamental right to claim that the post of the Assistant Accounts Officer cannot be filled in by deputation of an officer of the defendant petitioner Department. It has next been contended that the learned first appellate court has failed to appreciate correctly Sub-rule (2) of Rule 26 of the Rules, 1963 which confers the power of appointment on the post of Assistant Accounts Officer to the Director Local Bodies and the view taken by it that the Municipal Council, Bharatpur had correctly declined to accept the appointment on deputation is wholly erroneous and contrary to the said provision.
6. Shri R.D. Rastogi, the learned counsel for the plaintiff supported the order of the learned first appellate court. It is submitted that the defendant petitioner cannot thrust upon the Municipalities to take the Officer on deputation or cannot fill a post in the Municipalities which to be filled in hundred percent by promotion, by transfer of the Officer from the Government. It has next been contended that the State of Rajasthan and more particularly the defendant petitioner has altogether ignored an important fact that by 74th amendment of the Constitution of India, the Municipality is not a creature of the statute but it is a constitutional authority. Shri R.D. Rastogi, the learned counsel for the plaintiff, submitted, that the State Government has made this constitutional authority its own department. Making reference to the Nagar Nigam, Jaipur, he submitted that almost all the officers are sent on deputation and virtually it is a Government Department. That also is the position in the other Municipalities. It is submitted that the post of Assistant Accounts Officer is to be filled in from the officials of the Municipal Ministerial services and it cannot be filled in by deputation or by transfer of an Assistant Accounts Officer of the State service. Replying to the reference made by Shri Mohd. Rafiq, the learned Additional Advocate General to the policy of the Government, Shri R.D. Rastogi submitted that this policy has no legal force. It cannot nullify the provisions of the Statute.
7. I have given my thoughtful and anxious consideration to the rival contentions raised by the learned counsel for the parties, perused the entire record of the revision petition and orders of the courts below.
8. Before the rival contentions advanced by the learned counsel for the parties are considered, it is appropriate to make the reference of the relevant provisions of the Rajasthan Municipal Service Rules, 1963 (for short, ‘the Municipal Service Rules’) and the Rajasthan Municipal (Subordinate & Ministerial Service) Rules, 1963 (for short, ‘the Rules, 1963’).
9. Rule 7 of the Municipal Service Rules provides the methods of recruitment. Vacancies in the service after first appointment by way of integration have been made, shall be filled in the following manner,
(a) by direct recruitment as specified in column 3 of the schedule, or
(b) by promotion from posts as specified in column 4 of the schedule, or
(c) by transfer.
10. As per Rule 7 of the Municipal Service Rules, ‘transfer’ includes transfer of an officer of the Government on deputation. Sub proviso (i) of Rule 7 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 the other method in relaxation of the prescribed proportion may be made in the same manner as specified in these Rules.
11. ‘Service’ is defined in Sub-rule (j) of Rule 2 of these rules which means the Rajasthan Municipal Service created and constituted by the government under Section 302 of the Rajasthan Municipalities Act, 1959.
12. ‘Commission’ is defined in Sub-rule (d) of Rule 2 of the rules aforesaid which means the Rajasthan Public Service Commission.
13. ‘Appointing Authority’ is defined in Sub-rule (b) of Rule 2 which means the authority competent to make appointments to various grades of posts in different categories of service under Rule 26.
14. Part-V of the Municipal Service Rules related to the procedure for recruitment by promotion. Rule 24 makes a provision that selection for promotion from lowest post or category of post in the service to the next higher post or category of posts in the Service as mentioned in the Schedule shall be made solely on the basis of seniority-cum-merit from amongst the persons who have put in the requisite period of service on the first day of the month of April of the year of selection on the post or category of post from which selection is to be made. The persons enumerated in column 4 of the Schedule shall be eligible for the promotion to posts specified against them in column 2 thereof to the extent indicated in column 3 subject to their possessing minimum experience on the first day of the month of April of the Year of selection as specified in column 5.
15. The recruitment by promotion to the post in the service under the Municipal Service Rules is to be made by appointing authority on the basis of recommendations made by the Committee provided under Sub-rule (3) of Rule 25 of the Municipal Service Rules.
16. In the Schedule appended to the Municipal Service Rules at serial No. 11 of Part II (Technical Officers), the post of Assistant Accounts Officer is mentioned. Wherein the source of recruitment is provided that it shall be filled in 100% by promotion on the basis of seniority-cum-merit from the post of Accountant Grade I possessing the qualification of graduation with five years experience. The post of Accountant Gr.I is included in Rule 6 of the Municipal Service Rules.
17. Article 243Q of the Constitution of India in Part IX-A thereof inserted by the Constitution (74th Amendment) Act, 1992 provides the Constitution of the Municipalities, There shall be constituted in every State,
(a) A Nagar Panchayat (by whatever name called) for a transitional area, that is to say, an area in transition from a rural area to an urban area;
(b) a Municipal Council for a smaller urban area; and
(c) a Municipal Corporation for a larger urban area,
in accordance with the provisions of the Part IX-A.
18. Article 243-R is a provision for composition of Municipalities. Article 243-U provides for duration of Municipalities, etc. Article 243-V provides for disqualifications for membership. Article 243-W provides for powers, authority and responsibilities of Municipalities, etc.
19. Thus, from Chapter IX-A of the Constitution of India and more particularly Article 243Q inserted by the Constitutional (74th Amendment) Act, 1992, the Municipalities in the State is the Creature of the constitution, it is a constitutional authority.
20. From the facts of this case it is undisputed that the Municipal Council, Bharatpur was not favouring sending by the government an Officer of the Government on deputation to it on the post of Assistant Accounts Officer. It is not in dispute that on the post of Accounts Officer one Chandra Bhan Gupta, was on deputation till 1st of July, 1999. He was transferred from Municipal Council, Bharatpur. The plaintiff who is eligible for promotion to the post of Assistant Accounts Officers, was asked to hold the charge of Assistant Accounts Officer from the date on which Shri Chandra Bhan Gupta has relinquished the charge of that post and since then he is continuing holding the charge of the post. An attempt is sought to be made by the Government of Rajasthan to usurp the post of Assistant Accounts Officer in Municipal Council, Bharatpur by its own Officer on deputation. That proposed action certainly is prejudicial one to the right of consideration for promotion to this post of the plaintiff and he is fully justified for protection of his this right, to approach to the Civil Court. There defence has been taken by the State Government that it has a right to send the Officers on deputation and the reliance has been placed on Rule 7 of the Municipal Service Rules. To fill up the posts by transfer is one of the mode of recruitment in the services and the transfer of an Officer of the Government on deputation includes therein. But we cannot oblivious the post of the Assistant Accounts Officer under the service rules is provided to be filled in hundred percent by promotion. Thus, it is not permissible under the Municipal Service Rules to the petitioners to send a Government Officer on deputation to the post of Assistant Accounts Officer in the Municipality. It is also not permissible to the Government to fill in this post by direct recruitment. In case where the Government is satisfied in consultation with the Commission that suitable persons are not available for appointment by promotion in a particular year, appointment by method in relaxation of the prescribed proportion may be made in the same mariner as specified in the Rules. It is not the case of the Government that in the Municipal Council, Bharatpur suitable persons are not available for appointment by promotion on the post of Assistant Accounts Officer. This power under the Rule 7 of the Rules to make the appointment by transfer which includes the transfer of an Officer of the government on deputation is available only in case where the government is satisfied in consultation with the Commission that suitable persons are not available for promotion. It is not the case of the petitioner that it has consulted the Commission and was satisfied that the suitable persons are not available for appointment by promotion on the post of Assistant Accounts Officer in the Municipal Council, Bharatpur.
21. The post of Assistant Accounts Officer in the Government of Rajasthan is a subordinate service. The recruitment and other service conditions of this post are regulated by the Rajasthan Subordinate Accounts Service Rules, 1963 (for short, ‘the Rules, 1963’) framed under Article 309 of the Constitution of India. The posts of Junior Accountant, Accountant and Assistant Accounts Officers are defined in Clauses (hh),
(b) and (d) of Rule 2 of the Rules of 1963. These clauses read as under,
(hh) “Junior Accountant” means the holder of the post of Junior Accountant recruited under proviso (ii) of Rule 6 or in accordance with the manner stated against serial No. 3 of Schedule;
“(b) “Accountant” means the holder of the post of an Accountant in the Rajasthan Government Secretariat, High Court and Courts subordinate thereto or State Legislative Assembly or Rajasthan Public Service Commission or in the offices of other Heads of Departments and their subordinate offices or Inspecting Superintendent in Local Fund Audit Department and such other posts which may be specially sanctioned as posts to be held by Accountants and on which pay is admissible in the sanctioned scale for Accountants, but does not include a District Revenue Accountant or a Divisional Accountant of the Public Works Department or an Upper Division Clerk dealing with accounts work;
(d) “Assistant Accounts Officer” means an Accountant holding the gazetted post of Assistant Accounts Officer, Assistant Treasury Officer, whole time Sub-Treasury Officer, Assistant Examiner Local Fund Audit Department (Junior), or any other post as may be declared equivalent thereto by the Government from time to time; Members of the service have been defined in Clause (i) of Rule 2 of the Rules, 1963 which means a person appointed in the substantive capacity to the post of the service under the provisions of these Rules or the orders superseded by these Rules and includes a person placed on probation. “Service” means the Rajasthan Subordinate Accounts Services. Under the Rules, 1969 the post of Assistant Accounts Officer is to be filled in 100% by promotion. It is the post under the Rules, 19969 altogether different Rules and the post of Assistant Accounts Officer under the Municipal Service.”
22. “Member of the Service”, which is defined in Clause (i) of Rule 2 of the Rules, 1963, means,
“a person appointed in a substantive capacity to a post of the Service under the provisions of ds these Rules or the Rules or orders superseded by these Rules, and includes a person placed on probation;”
23. “Service”, which is defined in Clause (k) of the Rule (2) of Rules, 1963, means,
“the Rajasthan Subordinate Accounts Service;”
24. Under the Rules, 1963 the post of Assistant Accounts Officer is to be filled in 100% by promotion. This post under Rule 1963 is altogether different then the post of Assistant Accounts Officer under the Municipal Service Rules. It is a different service. When these two posts are of two different services, I fail to see how it is justified on the part of the and more particularly the Director, Treasury and Accounts, Rajasthan, Jaipur to send its own officers to a different service on deputation. It is true-under, the Rules, 1963 the Assistant Accounts Officer includes the Officer on deputation but that will not make any difference and will not be taken out the post of Assistant Accounts Officer from the Municipal Service Rules.
25. A conjoint reading of the Rajasthan Subordinate Accounts Service Rules, 1963 and the Municipal Service Rules, makes it clear that the post of Assistant Accounts Officer though by nomenclature appears to be one post but these are two different and distinct posts for all the purposes belonging to two different services.
26. It is really shocking and surprising that the Government though the Municipality is a constitutional authority to have absolute autonomy, it is making all efforts and attempt to convert it in a Government Department. On close circuit view, we find that almost all the key posts in the municipalities in cities are being manned by the Government Officers on deputation. This action of the Government of Rajasthan certainly is an violation of the constitutional provision.
27. The right of consideration for promotion is a fundamental right. Otherwise also under the Municipal Service Rules the post of Assistant Accounts Officer is to be filled in hundred percent by promotion, how far it is justified for the Government to thrust upon the Municipalities on the post of Assistant Accounts Officer of its own Officer on the deputation moreso when it is not its case that on consultation with the Commission it is satisfied that suitable persons are not available for appointment by promotion. This attempt and action of the Government of Rajasthan to place its Officers on deputation on the post of Assistant Accounts Officers on deputation on the post of Assistant Accounts Officer in Municipal Council, Bharatpur is against the Municipal Service Rules. Otherwise also the Government of Rajasthan who is appointing authority of the post of Assistant Accounts Officer has altogether shown scant disregard to the Municipal Service Rules framed for regulating the service conditions of the Officers of the municipalities. A clear vacancy is there of the Assistant Accounts Officer, a post to be filled in hundred percent by promotion. It is the legal duty and obligation casts upon the Government of Rajasthan to take the steps to fill in that post by promotion. It is unfortunate that in this direction the Government of Rajasthan has not cared and concerned. Reason is very obvious as it is interested to grab the post of Assistant Accounts Officer which is to be manned by the holder of the post of Accountant Gr.I in Municipalities on promotion to be manned by its own Officer on deputation.
28. It is not permissible and rightly so because it is against the provisions of the statutory rules. The learned first appellate court is perfectly legal and justified in its approach and rightly granted temporary injunction in favour of the plaintiff. It is a fit case where the Government of Rajasthan is to be restrained from placing any Officer on deputation on the post of Assistant Accounts Officer at the Municipal Council, Bharatpur.
29. As a result of the aforesaid discussion, this revision petition, fails and the same is dismissed with costs which is quantified to Rs. 2,000/- (Rs. two thousand). The petitioner is directed to pay this amount of costs personally to the plaintiff respondent by Account Payee Cheque/DD/Pay Order.
30. Since the revision petition itself has been dismissed, the stay application does not survive and the same is also dismissed.
31. Before parting with the order I consider it necessary to make it clear that the order of the learned first appellate court and of this court will not come in the way of the Government of Rajasthan to fill in the post of Assistant Accounts Officer by promotion from the post of Accountant Gr.I in accordance with the Municipal Service Rules.