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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
O R D E R
S.B. CIVIL WRIT PETITION NO.6260/2006
(Hajari Vishnu Vs. State of Raj. & Ors.)
Date of order : 11.7.2008
P R E S E N T
HON’BLE MR. JUSTICE GOPAL KRISHAN VYAS
Mr. Mahesh Bora, for the petitioner.
Ms. Prathistha Dave, Dy. Govt. Counsel.
Mr. Yashwant Mehta, for the Municipal Council.
By way of filing the present writ petition,
the petitioner has challenged the reversion order
dated 31.8.2006 (Annexure-P/8 passed by the Executive
Officer, Municipal Board, Mount Abu and the order
dated 19.6.2006 (Annexure-P/9) passed by the Dy.
Director (Administration), Local Bodies, Govt. of
Rajasthan, Jaipur.
In this case, the petitioner was promoted on
the post of Revenue Inspector when he was working on
the post of U.D.C. vide order dated 18.9.1992
(Annexure-P/2). The said order was purely on
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temporary basis till confirmation by the D.P.C. The
said promotion order was declared illegal and
thereafter, the petitioner was ordered to be reverted
from the post of Revenue Inspector to the post of
U.D.C. vide order dated 17.9.1993, issued by the
Executive Officer, Municipal Board, Mount Abu on the
basis of the order issued by the Dy. Director, Local
Bodies, Jodhpur dated 25.8.1993. The petitioner
challenged the order dated 17.9.1993 by way of filing
revision under Section 300 of the Rajasthan
Municipalities Act, 1959 before the Director, Local
Bodies, Govt. of Rajasthan, Jaipur. The Director,
Local Bodies vide order dated 20.1.1994 (Annexure-P/6)
has set aside the order dated 17.9.1993 and it was
specifically ordered that the Municipal Board, Mount
Abu shall fill up the vacant posts by way of direct
recruitment and promotion in accordance with the Rules
after determination of the vacancies and till then
status quo was ordered to be maintained.
The case of the petitioner is that he was
working on the post of Revenue Inspector since 1992
but abruptly without making compliance of the order
passed by the Director on 20.1.1994, the order
impugned dated 31.8.2006 was passed by the
Commissioner, Municipal Board, Mount Abu whereby it
was ordered that the petitioner’s promotion on the
post of Revenue Inspector is illegal and there is no
sanction, therefore, the petitioner is hereby reverted
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to the post of U.D.C. The order dated 31.8.2006 has
been passed on the basis of the order dated 19.6.2006
passed by Dy. Director (Administration), Local Bodies,
Jaipur wherein it was observed that the promotion of
the petitioner on the post of Revenue Inspector was
illegal.
The petitioner has challenged both the
impugned orders on the ground that the petitioner is
working since 1992 on the post of Revenue Inspector
and without assigning any reasons and treating his
promotion as illegal, he has been reverted without any
notice. Further, it is submitted that according to
the rules, the petitioner was eligible for promotion
against the quota on the post of Revenue Inspector,
therefore, the respondents were under obligation to
comply with the directions issued by the Director vide
order dated 20.1.1994 and promotions were to be made
after determination of the vacancies as ordered by
Director but it has not been done, therefore, the
respondents have illegally reverted the petitioner
while treating his promotion as illegal.
Learned counsel for the petitioner vehemently
argued that initially the promotion order of the
petitioner was challenged by one Kumar Singh by way of
filing writ petition being SB Civil Writ Petition
No.466/1993 in which the learned Single Judge of this
Court has held that the petitioner’s promotion cannot
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be questioned and the petitioner was very much
entitled for promotion as Revenue Inspector from the
cadre of UDC, which cannot be doubted or faulted with
and further, it has been held that the promotion order
cannot be challenged. Meaning thereby, the promotion
of the petitioner though made on temporary basis was
held to be valid by learned Single Judge of this Court
in the aforesaid writ petition vide order dated
27.4.2000. The relevant para of the aforesaid
judgment reads as under :
“Having heard the learned counsel
and heaving seen the Gazette Notification and
the decisions cited, I am of the view that
eligibility of respondent No.3 to be promoted
as Revenue Inspector from the cadre of UDC
cannot be doubted or faulted. His promotion
to be post of Revenue Inspector cannot,
therefore, be challenged. Moreover, the
petitioner has two hurdles to pass. First he
will have to claim and get promotion to the
post of Assistant Revenue Inspector and then
only he becomes eligible for promotion to the
post of Revenue Inspector. He, cannot,
therefore, challenge the promotion of
respondent No.3 to the post of Revenue
Inspector even before he gets promotion as
Assistant Revenue Inspector.”
In this view of the matter, once, the
promotion of the petitioner was held to be legal and
the petitioner was held to be eligible for promotion
to the post of Revenue Inspector, then, there was no
5occasion left with the respondents to pass an order
contrary to the judgment rendered by this Court in the
aforesaid writ petition. Therefore, it is prayed that
the impugned reversion order dated 31.8.2006
(Annexure-P/8) and the order dated 19.6.2006
(Annexure-P/9) may kindly be quashed and set aside.
Per contra, learned counsel for the
respondents submits that the petitioner was wrongly
promoted to the post of Revenue Inspector and he was
not eligible for the said post, therefore, there is no
question of regularization of the petitioner on the
post of Revenue Inspector, so also, according to the
rules, the petitioner was not eligible for promotion
on the post of Revenue Inspector and he was illegally
promoted, therefore, the order has already been passed
by the Commissioner, Municipal Board, Mount Abu in
which no interference is required and this writ
petition deserved to be dismissed.
I have perused the entire record of the case.
First of all, the promotion of the petitioner vide
order dated 18.9.1992 was held to be valid by
Coordinate Bench of this Court in the year 2000 in the
writ petition filed by one Kumar Singh, challenging
the validity of the promotion of the petitioner.
Therefore, now it is not open for the Municipal Board
to say that the petitioner was not eligible for
promotion on the post of Revenue Inspector from the
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post of U.D.C. Further, when in the year 1994,
directions was issued by Director for determination of
the vacancies and for filling upon the vacant posts,
then, those directions were required to be complied
with by the Municipal Board, Mount Abu but admittedly
till 2006, the directions issued by the Direcotr,
Local Bodies vide order dated 20.1.1994 was not
complied with and abruptly the petitioner was reverted
while saying that the promotion order of the
petitioner was illegal. In my opinion, after the
order passed by learned Single Judge in the aforesaid
writ petition filed by one Kumar Singh, initially the
promotion of the petitioner on the post of Revenue
Inspector cannot be question. More so, when the
petitioner was allowed to work on the post of Revenue
Inspector since 1992-93 till 2006 then such promotion
cannot be treated as illegal in view of the order
passed by learned Single Judge in case of Kumar Singh
(supra). It is also required to be observed that the
directions issued by the Director in the order dated
20.1.1994 passed in revision was also not complied
with and in pursuance of those directions, the
petitioner was allowed to work on the post of Revenue
Inspector and he worked as such till reversion order
was passed. Therefore, in my opinion, in view of the
judgment rendered by Hon’ble Supreme Court in case of
Secretary, State of Karnataka Vs. Uma Devi, reported
in 2006 (4) SCC 1 the petitioner was allowed to work
on the post of Revenue Inspector for more than
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14 years then, the respondents are under obligation to
consider the case of the petitioner for regular
promotion in view of para 53 and 55 of the judgment
rendered by Hon’ble Supreme Court in case of Uma Devi
(supra), which reads as under :-
“53. One aspect needs to be clarified. There may
be cases of irregular appointments (not illegal
appointments) as explained in S.V.Narayanappa,
R.N.Nanjundappa and B.N.Nagarajan and referred
to in para 15 above, of duly qualified persons in
duly sanctioned vacant posts might have been
made and the employees have continued to work
for ten years or more but without the intervention
of orders of the courts or of tribunals. The
question of regularization of the services of such
employees may have to be considered on merits in
the light of the principles settled by this Court in
the cases above referred to and in the light of this
judgment. In that context, the Union of India, the
State Governments and their instrumentalities
should take steps to regularize as a one-time
measure, the services of such irregularly
appointed, who have worked for ten years or more
in duly sanctioned posts but not under cover of
orders of the courts or of tribunals and should
further ensure that regular recruitments are
undertaken to fill those vacant sanctioned posts
that require to be filled up, in cases where
temporary employees or daily wagers are being
now employed. The process must be set in motion
8within a six months from this date. We also clarify
that regularization, if any already made, but no
sub judice, need not be reopened based on this
judgment, but there should be no further
bypassing of the constitutional requirement and
regularizing or making permanent, those not duly
appointed as per the constitutional scheme.
55. In cases relating to service in the
commercial taxes department, the High Court has
directed that those engaged on daily wages, be
paid wages equal to the salary and allowances that
are being paid to the regular employees of their
cadre in government service, with effect from the
dates from which they were respectively
appointed. The objection taken was to the
direction for payment from the dates of
engagement. We find that the High Court had
clearly gone wrong in directing that these
employees be paid salary equal to the salary and
allowances that are being paid to the regular
employees of their cadre in government service,
with effect from the dates from which they were
respectively engaged or appointed. It was not
open to the High Court to impose such an
obligation on the State when the very question
before the High Court in the case was whether
these employees were entitled to have equal pay
for equal work so called and were entitled to any
other benefit. They had also been engaged in the
teeth of directions not to do so. We are,
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therefore, of the view that, at best, the Division
Bench of the High Court should have directed that
wages equal to the salary that are being paid to
regular employees be paid to these daily wage
employees with effect from the date of its
judgment. Hence, that part of the direction of the
Division Bench is modified and it is directed that
these daily wage earners be paid wages equal to
the salary at the lowest grade of employees of
their cadre in the Commercial Taxes Department
in government service, from the date of the
judgment of the Division Bench of the High Court.
Since, they are only daily wage earners, there
would be no question of other allowances being
paid to them. In view of our conclusion, that
Courts are not expected to issue directions for
making such persons permanent in service, we set
aside that part of the direction of the High Court
directing the Government to consider their cases
for regularization. We also notice that the High
Court has not adverted to the aspect as to
whether it was regularization or it was giving
permanency that was being directed by the High
Court. In such a situation, the direction in that
regard will stand deleted and the appeals filed by
the State would stand allowed to that extent. If
sanctioned posts are vacant (they are said to be
vacant) the State will take immediate steps for
filling those posts by a regular process of
selection. But when regular recruitment is
undertaken, the respondents in C.A. No. 3595-
3612 and those in the Commercial Taxes
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Department similarly situated, will be allowed to
compete, waiving the age restriction imposed for
the recruitment and giving some weightage for
their having been engaged for work in the
Department for a significant period of time. That
would be the extent of the exercise of power by
this Court under Article 142 of the Constitution to
do justice to them.”
In this view of the matter, while quashing the order
of reversion dated 31.8.2006 passed by the Commissioner,
Municipal Board, Mount Abu and the order dated 19.6.2006
passed by Dy. Director (Administration), Local Bodies, Govt. of
Rajasthan, Jaipur, the respondents are directed to grant all
consequential benefits to the petitioner and consider the case of
the petitioner for regularization on the post of Revenue
Inspector as per law laid down by Apex Court in Uma Devi’s case
(supra) because his promotion was found to be legal by
Coordinate Bench of this Court in the year 2000 in case of
Kumar Singh (supra) and in view of the fact that the petitioner
has worked on the post of Revenue Inspector for more than 14
years.
With the above directions, this writ
petition is allowed.
(GOPAL KRISHAN VYAS), J.
arun