1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. O R D E R Vasudeo v. State of Rajasthan & Anr. S.B.CIVIL WRIT PETITION NO.1269/1996 under Article 226 of the Constitution of India. Date of Order :: 19th February, 2009 P R E S E N T HON'BLE MR.JUSTICE GOVIND MATHUR Mr. M.S.Singhvi, for the petitioner. Mrs. Pratishtha Sinha, for the respondents. .... BY THE COURT : Though several prayers are also made in this petition for writ but counsel for the petitioner, during the course of arguments, mainly pressed in service the prayers (a) & (c) only, those read as under:- “(a)by an appropriate writ, order or direction, respondents be directed to fix the pay of the petitioner in the cadre of Law Officer with effect from 1.4.88 with all consequential benefits including payment of arrears. (c)by an appropriate writ, order or direction, the respondents may further be 2 directed to equate the post of Law Officer to a post in Rajasthan State Service to implement the notification dated 18.1.89 with all consequential benefits to the petitioner and they may further be directed to provide promotion avenues to the Law Officers in Rajasthan Municipal Service as are admissible to the members of State Service with all consequential benefits.” The noticeable facts of the case are that the petitioner was appointed as Perokar Gr.II as per the provisions of the Rajasthan Municipalities (Subordinate and Ministerial Service) Rules, 1963. A promotion to the post of Perokar Gr.I was accorded to him and then under an order dated 9.5.1989 he was promoted to the post of Law Officer against the vacancies of the year 1988-89. The service conditions of the petitioner are presently governed and regulated by the provisions of the Rajasthan Municipal Service Rules, 1963 (hereinafter referred to as “the Rules of 1963”). As per the petitioner, though the respondents promoted him as a Law Officer by the order dated 9.5.1989 against the vacancies of the year 1988-89 but are not making fixation of his pay in the pay scale applicable to the post of Law Officers from the account year 1988-89. It is also urged on behalf of the petitioner that the State Government under its notification dated 18.1.1989, while exercising powers 3 under sub-sections (1) and (2) of Section 297 of the Rajasthan Municipalities Act, 1959 read with Rule 32 of the Rules of 1963, notified that all the pay scales, allowances and bonus for the officers and other employees of the municipalities in the State of Rajasthan shall be equivalent to the employees of the State Government, but equivalence of the Law Officers working in municipalities is yet not been made with their counter parts working with the Government of Rajasthan. As per counsel for the petitioner the post of Assistant Legal Remembrance appointed as per the provisions of the Rajasthan Legal Service Rules, 1981 is a post equivalent to the post of Law Officer created under the Rules of 1963 and as such the respondents must allow the pay scale applicable for the Assistant Legal Remembrance working with the Government of Rajasthan to the Law Officers employed with the municipalities in the State. While contesting claim of the petitioner, Mrs. Pratishtha Sinha, appearing on behalf of the respondents, urged that under the order dated 9.5.1989 appointment by way of promotion as Law Officer was given to the petitioner on probation for a term of one year, therefore, the pay scale relating to the post of Law Officer was accorded to him from 9.5.1989 only. It is also stated that prior to 9.5.1989 the petitioner was holding the post of Perokar Gr.I and, therefore, he was entitled for getting the pay scale of the post 4 on which he was working. While meeting the second claim of the petitioner, relating to equivalence in grant of pay scale with the post of Assistant Legal Remembrance, it is urged that this Court while exercising powers under Article 226 of the Constitution of India must not discharge executive function i.e. the equation of different posts. While placing reliance upon the judgment of Hon'ble Supreme Court in State of U.P. & Ors. v. J.P.Chaurasia & Ors., (1989)1 SCC 121, it is emphasised that the work relating to equivalence of different posts should be left to the executive and Court should not make such determination. Heard counsel for the parties. From perusal of the document Anx.1 dated 9.5.1989 it is apparent that a regular promotion was given to the petitioner as Law Officer against the vacancies of the year 1988-89. An avenue for such promotion is available to the Perokar Gr.I under the Rules of 1963. As per Rule 10 of the Rules of 1963 the Government is required to determine at the commencement of each year the number of vacancies anticipated in each grade under different categories during the calender year and number of vacancies likely to be filled in by each method. The respondents as per Rule 10 of the Rules of 1963 determine the vacancies relating to the post of Law Officer. A 5 substantive right to be considered for promotion, therefore, was accrued to the petitioner in the year 1988-89 itself. Promotion was accordingly given to the petitioner as Law Officer against the vacancies of the year 1988-89. If any delay is occurred in granting promotion to the petitioner on the day he was entitled for the same, then the promotion as and when given is required to relate back to the date on which right of promotion accrued to the person concerned. In the instant case the respondents have already did so by according promotion to the petitioner against the vacancies of the year 1988-89. In such circumstances the respondents are also required to make fixation of the petitioner's pay in the pay scale relating to the post of Law Officer on notional basis from the date the petitioner become entitled for such promotion on occurrence of the vacancies relating to the post of Law Officer. The respondents, therefore, should have allowed the pay scale relating to the post of Law Officer in the account/vacancy year of 1988-89 from the date the vacancies occurred against which promotion was given to the petitioner as Law Officer. The fixation of the petitioner's pay in the pay scale relating to the post of Law Officer w.e.f. 9.5.1989, therefore, is apparently bad. So far as petitioner's claim regarding equivalence with the Assistant Legal Remembrance working with the Government of Rajasthan is concerned, 6 suffice it to mention that such equivalence is required to be made by the Government of Rajasthan in light of the notification dated 18.1.1989. This Court is not required to exercise the executive function i.e. of making equivalence between various posts of the municipalities and the Government of Rajasthan. Accordingly this petition for writ is allowed in part. The respondents are directed to allow the pay scales relating to the post of Law Officer to the petitioner from the date the vacancy occurred against which promotion is given to him as Law Officer in the year 1988-89. Fixation of the petitioner in the pay scale concerned is required to be made on notional basis. The petitioner shall be entitled for all consequential benefits arising because of fixation required to be made as directed above. The Secretary, Department of Local Self Government, Government of Rajasthan, Jaipur is directed to appoint an equivalence committee within a period of six weeks from today to examine equivalence of the post of Law Officer available under the Rules of 1963 with the posts created under the Rajasthan Legal Service Rules, 1981. The committee so appointed shall make necessary equivalence to execute the notification No. एफ.12 (मग) ड एलब 189134-270) dated 18.1.1989 and submit its report to the Government of Rajasthan within a period of three months of its 7 constitution. The committee concerned shall provide an opportunity of hearing to the petitioner as well as to all other Law Officers working with different Municipal Corporations / Councils / Boards in the State of Rajasthan to represent their case/stand regarding equivalence required. The State Government shall take appropriate decision after considering report of the committee concerned within a period of one month subsequent to receipt of the report. No order to costs. ( GOVIND MATHUR ),J. kkm/ps.