1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. O R D E R Norang Lal Sharma v. State of Rajasthan & Ors. S.B.CIVIL WRIT PETITION NO.1555/1997 under Article 226 of the Constitution of India. Date of Order :: 26th March, 2009 P R E S E N T HON'BLE MR.JUSTICE GOVIND MATHUR Mr. D.L.R.Vyas, for the petitioner. Mr. D.S.Rajvi ] Mr. Vijay Bishnoi] for the respondents. .... BY THE COURT : The petitioner by this petition for writ is giving challenge to the order dated 25.6.1996, giving promotion to the respondent No.4 as Lower Division Clerk on urgent temporary basis and also to the order dated 1.7.1996, whereby the State Government confirmed promotion of the respondent No.4 on urgent temporary basis as Lower Division Clerk. The petitioner has also sought a direction to consider his candidature for the purpose of promotion as Lower Division Clerk. 2 The factual matrix necessary for adjudication of instant petition for writ is that the petitioner entered in services of Municipal Board, Nohar being appointed as Naka Guard on 16.4.1977. He also acquired Local Self Government Diploma in the year 1982. The Government of Rajasthan under a letter dated 23.8.1979 allocated two posts of Lower Division Clerk to the respondent Municipal Board to be filled in by way of promotion from among Class-IV employees working with the Board. The respondent Board in its meeting dated 7.11.1985 resolved to promote respondent No.4, a working Naka Guard, as Lower Division clerk. The Government of Rajasthan under its order dated 17.2.1986 set aside promotion of the respondent No.4 made by the Municipal Board, Nohar being in contravention of the Rules applicable. The Executive Officer, Municipal Board, Nohar, in pursuant to the resolution No.10 dated 29.12.1990 undertaken by the general council of the Municipal Board, Nohar, again promoted the respondent No.4 as Lower Division Clerk in the pay scale of Rs.960-1680 on urgent temporary basis. A complaint was made by the petitioner regarding promotion given to the respondent No.4 to the Director, Local Self Government, Jaipur and by considering that the Deputy Director, Local Self Government by his order dated 28.2.1996 cancelled the order dated 9.1.1996 giving promotion to the respondent No.4. The order dated 3 28.2.1996, passed by the Deputy Director, Local Self Government, stood cancelled by the State Government under an order dated 25.6.1996 and by the same order appointment of the petitioner as Lower Division Clerk on urgent temporary basis was also confirmed. Being aggrieved by the same, this petition for writ is preferred. The contention of counsel for the petitioner is that two vacancies of Lower Division Clerks were available with the Municipal Board, Nohar in view of letter dated 23.8.1979 (Anx.6) and those were to be filled in by way of promotion from among the Class-IV employees. The administrative committee in its meeting dated 7.11.1985 promoted the respondent No.4 as Lower Division Clerk though he was quite junior than the petitioner in the cadre of Naka Guards. The promotion aforesaid stood cancelled being contrary to the Rules, however, the respondents again promoted the respondent No.4 as Lower Division Clerk under an order dated 9.1.1996 in pursuant to a resolution dated 29.12.1990. As per the petitioner, his candidature should have been considered for promotion on regular basis against the vacancies made available under letter dated 23.8.1979. It is asserted that even on 7.11.1985, the day on which candidature of the respondent No.4 at first instance was considered for promotion, the petitioner too was eligible to be 4 considered for promotion. It is emphasised by counsel for the petitioner that the petitioner being senior than the respondent No.4 was having better preference to be promoted as Lower Division Clerk, however, the respondent Board even by ignoring the provisions applicable for promotion to the post of Lower Division Clerk want to continue the respondent No.4 as Lower Division Clerk. A reply to the writ petition has been filed on behalf of the respondent Municipal Board as well as on behalf of the respondent No.4. As per the respondent Municipal Board, the respondent No.4 was appointed as Naka Guard in the year 1985 and by order Anx.7 dated 7.11.1985 a promotion was given to him as Lower Division Clerk but that came to be cancelled on 17.2.1986. Promotion subsequently was given to him in view of a resolution undertaken by the general council of the Municipal Board. As per respondent No.4, the petitioner stood promoted as Sub-Nakedar in the year 1989 and, therefore, as per provisions of the Rajasthan Municipal (Subordinate and Ministerial Service) Rules, 1963 (hereinafter referred to as “the Rules of 1963”) he is not eligible to be considered for promotion as Lower Division Clerk. It is also stated that a promotion was given to him by the Municipal Board, Nohar in accordance with the Rules of 1963. 5 Heard counsel for the parties. It is not in dispute that two vacancies of Lower Division Clerks were available with the Municipal Board, Nohar and those were filled in by way of promotion from among Class-IV employees. The administrative committee of the Municipal Board in its meeting dated 7.11.1985 decided to promote the respondent No.4 as Lower Division Clerk. At the relevant time the eligibility for promotion as Lower Division Clerk as per the Rules of 1963, was as follows:- Lower Division Clerk. Matriculate or its equivalent qualification Class IV employees, Nakedars, Moharrirs, Tindel / Leading Fireman, Sub- Nakedar/Naib- Moharrir 25% by promotion, it qualified hands are available. Matriculate or its equivalent qualification on the basis of seniority. As per the provision quoted above, on 7.11.1985, the petitioner was eligible to be considered for promotion as Lower Division Clerk, however, from the proceedings of the administrative committee dated 7.11.1985 it is apparent that the committee did not consider candidature of any person except the respondent No.4. The promotion given under recommendations of the administrative committee dated 6 7.11.1985 was cancelled by the State Government, however, an urgent temporary appointment was again accorded to the respondent No.4 under an order dated 9.1.1996. The respondent No.4 in pursuant to the order dated 9.1.1996 is still working as Lower Division Clerk on urgent temporary basis. Pertinent to note that confirmation made by the State Government is only of urgent temporary appointment and that in no way makes the respondent No.4, a substantive Lower Division Clerk of the respondent Municipal Board. The mode for making appointment by way of promotion to the post of Lower Division Clerk is given under Rule 23 of the Rules of 1963 and that has not at all been adhered by the respondents so far. As such, since 1985 a permanent vacancy of Lower Division Clerk is available with the Municipal Board, Nohar being not filled in so far in regular manner. The respondent No.4 is occupying the vacancy aforesaid purely on urgent temporary basis since 1996. Prior to that also he hold the post aforesaid for some period in pursuant to a decision of the administrative committee dated 7.11.1985. The permanent vacancy of Lower Division Clerk, that is available with the respondent Board is required to be filled in from among the Class-IV employees. The vacancy aforesaid was at the first instance sought to be filled in by way of promotion on 7.11.1985, as such on that day all eligible Class-IV 7 employees should have been considered for promotion as Lower Division Clerk. A valuable right accrued to all eligible Class-IV employees to be considered for promotion on 7.11.1985. Such consideration was denied to them without any just and valid reason. For the reasons stated above, I am inclined to dispose of this petition for writ by directing the respondent Municipal Board, Nohar to fill in the vacancy of Lower Division Clerk available to it since 7.11.1985 from among the Class-IV employees eligible to be considered for promotion as on 7.11.1985. Such consideration is required to be made by the Municipal Board within a period of four months from today, i.e. on or before 26.7.2009. The urgent temporary appointment of the respondent No.4 shall remain in currency till then only. No order to costs. ( GOVIND MATHUR ),J. kkm/ps.