1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.3220/1996 Mahesh Chandra Sharma vs. State & Ors. Date of order : 12/3/2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Sandeep Saxena for the petitioner. Shri S.D. Khaspuria, Addl. Govt. Counsel for State. Shri Vijay Jangid for the respondent. ****** REPORTABLE The writ petitioner Shri Mahesh Chandra Sharma has approached this Court aggrieved by the order dated 20.6.1996 whereby he was reverted from the post of Head Clerk to that of UDC by the Executive Engineer, Municipal Board, Rajgarh. Shri Sandeep Saxena, learned counsel for the petitioner has argued that the petitioner was initially appointed as LDC after his regular appointment in Municipal Board, Rajgarh on 13.1.1977. He was confirmed on the post of LDC vide order dated 7.12.1998. He was then promoted on ad hoc basis on the post of UDC by order dated 28.2.1980 and the term of his appointed was extended from time to time. He was further promoted to the post of Head Clerk, which 2 post was later designated as Office Assistant vide order dated 21.7.1987 with effect from 1.1.1987. It is contended that two posts of UDC and one post of Office Assistant were sanctioned in the staffing pattern of the Municipal Board, Rajgarh and that the petitioner was senior most UDC in that Board. Promotion to the post of Head Clerk and UDC under the Rajasthan Municipal (Subordinate & Ministerial Service) Rules, 1963 (for short- the Rules of 1963) are made from the lower cadre and method of recruitment for filling up both these posts was 100% by promotion. In order to become eligible for promotion to the post of Head Clerk, a candidate should have 5 years experience of working as UDC. Petitioner became eligible for such promotion after rendering satisfactory service on the post of UDC against the vacancy of Head Clerk which was determined as on 1.4.1980. In the final seniority list of municipal staff published on 17.1.1987, name of petitioner was placed at S.No.1. Learned counsel submitted that respondent no.3, who was initially appointed as LDC by order dated 3 16.5.1957 in Municipal Board, Todabhim, was not even a matriculate because no proof of such fact was produced by him on reocrd though he claimed that he was matriculate. He was not appointed in that Municipality, but he was transferred from Municipal Board, Todabhim to Municipal Board Kherli by order dated 12.12.1973. He was promoted as UDC in Municipal Board, Kherli on ad hoc basis by order dated 26.8.1976 and subsequently he was regularly promoted on recommendation of the DPC by order dated 16.10.1975. He was then transferred from Municipal Board, Kherli to Municipal Board, Tijara vide order dated 26.8.1976 and was further transferred from Tijara to Rajgarh vide order dated 18.6.1977. He was subjected to various disciplinary proceedings and was also even caught red handed by Anti Corruption Bureau while accepting illegal gratification, but ultimately in the criminal case, he won over the witnesses and was thus acquitted by giving benefit of doubt. When he was reinstated after his acquittal, he was transferred from Rajgarh to Municipal Board, Gangapur City vide order dated 27.2.1986. He 4 again by subsequent order dated 29.9.1988, was brought back to Municipal Board, Rajgarh. Once he was promoted as Head Clerk vide order dated 17.8.1977, but later on that promotion was withdrawn and he was reverted to the post of UDC vide order dated 10.11.1978 on the premise that such promotion was wrongly granted to him. Shri Sandeep Saxena, learned counsel for the petitioner argued that respondent no.3 filed a writ petition before this Court being S.B. Civil Writ Petition No.526/1993 challenging his reversion. That writ petition was dismissed by order of this Court dated 12.3.1993. However, in that judgement, this Court directed the Municipal Board, Rajgarh to hold regular promotions by convening a review DPC. The DPC adjudged him suitable for promotion on 29.12.1993. It is submitted that with a view to promote respondent no.3, the Municipal Board illegally reverted the petitioner from the post of Head Clerk to that of UDC by the impugned order dated 20.6.1996. Neither any notice, nor an opportunity of hearing was accorded to the petitioner. The lien of 5 respondent no.2 was never transferred from Municipal Board Kherli to Municipal Board, Rajgarh and promotion board (DPC) when it again met on 29.12.1993 wrongly accepted the order passed by Executive Engineer, Municipal Board, Rajgarh on 1.8.1989 as the order of transferring his lien. Learned counsel submitted that the order of transfer inter se from one Municipal Board to another is made by the government and the lien if at all it is assumed, which is though denied, can be transferred only by the government and not by the Executive Officer on his own. Learned counsel in this connection referred to the order dated 1.8.1989 which is on record as Annexure-20 passed by the Executive Officer and not by the government. It is contended that according to Rule 38 of the Rules of 1963 whenever deemed necessary, transfer of person appointed in service may be made from one Board to another in equal grade and class. The seniority, promotion of an employee thus transferred, shall however be maintained according to his paternal municipality where he was so appointed. Learned counsel therefore argued that 6 respondent no.3 could be considered for promotion only in his own parental Board i.e. in Kherli and not in Rajgarh. The operation of impugned order of reversion has remained stayed pursuant to the interim order dated 30.7.1996 passed by this Court. In the meantime, the respondent no.2 has retired from service upon attaining age of superannuation. Shri Vijay Jangid, learned counsel for the respondent opposed the writ petition and submitted that since lien of respondent no.3 was transferred by order dated 1.8.1989, Rule 38 of the Rules would not be an embargo for granting him promotion. Impugned order was passed to make regular promotion, with a view to doing so because petitioner's reversion was made since petitioner could not be continued on the post of promotion ignoring the claim of his senior namely respondent no.3. Learned counsel submitted that petitioner is not substantive UDC and promotion from the post of UDC to that of Office Assistant (Head Clerk) should be made only of such a candidate, who was substantively appointed as UDC in that very 7 Municipality. The experience of working on the post of UDC for five years also should have been such which he acquired after substantive appointment as UDC. Learned counsel submitted that Rule 8 of the Rules of 1963 provides that vacancies should be filled by promotion from lower to higher grade in the same category. Rule 10 provides for the determination of the vacancies. Rule 24 provides that for the purpose of promotion, selection strictly on the basis of seniority-cum-merit shall be made from amongst the members of the service eligible for promotion. Rule 25 provides that whenever the vacancies will have to be filled by promotion the concerned Municipal Board has to submit its recommendations to the Promotion Board as constituted under the provisions of Rule 23 along with the Confidential Records and other service record and the Promotion Board after taking into consideration the recommendations and service record shall communicate its decision to the Board concerned. It is contended that promotion from the post of UDC to Office Assistant (Head Clerk) could 8 not be made by violating of these rules. Upon hearing the learned counsel for the parties and perusing the material on record, I find that in so far as the order dated 1.8.1989 is concerned, that has been apparently passed by Executive Officer of the Municipal Board, Rajgarh on his own and there is no order passed by the Director of Local Bodies for Rajasthan or any other competent authority in the government authorising transfer of lien of respondent no.3 from one Municipal Board to another. The respondents have not brought to the notice of the Court any Rule in the Rules of 1963, which empowers Executive Officer to transfer a lien from one Municipal Board to another Municipal Board. In that case, the relevant rules contained in Rules of 1963 would be applicable by virtue of sub-rule (1) of Rule 38 of Rules of 1963. However, even that exercise has not been done in the present case. The respondent no.3 has since retired from service but in any case he could not be considered for promotion ignoring the just claim of the substantive employees of the Municipal Board, Rajgarh. 9 Rule 38(1) provides that whenever deemed necessary, transfer of person appointed in service may be made from one Board to another in equal grade and class. The seniority, promotion of an employee thus transferred, shall be maintained according to his parental municipality where he was so appointed. Sub-rule (2) of Rule 38 provides that this transfer shall be made by the Director or any other Officer authorised by him in this behalf. When the very language of Rule 38(1) suggests that despite transfer of an employee from one Board to another, his seniority and promotion etc. shall be maintained according to his parental Municipal Board, it cannot be accepted that mere transfer from one Municipal Board to another would automatically have the effect of transferring his lien. In so far as the claim of the petitioner is concerned, the respondents may be justified in contending that since he was not a substantively promoted UDC, he could not be promoted to the post of Office Assistant, but reading from the order of reversion dated 20.6.1996, it appears that 10 he was sought to be reverted because recommendations of DPC held on 29.12.1993 were to be implemented as per the order of Deputy Director, Local Self Government, Jaipur dated 13.5.1996. The minutes of the DPC have been placed on record at Schedule- C. This DPC by which the respondent no.3 was adjudged suitable for promotion on the assumption that his lien stood transfered from Municipal Board, Kherli to Municipal Board, Rajgarh. There is then another minutes of the DPC convened five years there before on 23.7.1993. That time, the DPC did not recommend promotion of respondent no.3. The petitioner himself was promoted on the post of Office Assistant (Head Clerk) by order dated 21.7.1987 without there being any due recommendation by DPC as per the Rules. At the same time, no exercise was undertaken by the respondents to confer upon the petitioner regular promotion on the post of UDC, but the writ petitioner could not be held responsible for that situation because whatever experience he acquired by virtue of his working on the post of UDC would be actual experience, there being no 11 quantitative experience between the natural experience, one acquired prior to regular promotion on the strength of ad hoc promotion and other after regular promotion. The fact however is that the petitioner has been ever since he was promoted to the post of Office Assistant (Head Clerk) vide order dated 21.7.1987 discharging the duties of that post. There may be other LDCs or UDCs working with the respondents who like him were also promoted on ad hoc basis and awaiting their regular promotion. In order to therefore, give a quietus to this matter, this writ petition is disposed of with the following directions: i) that the respondents shall undertake an exercise of making regular promotion to the post of UDC from that of LDC in the Municipal Board, Rajgarh within a period of of three months from the date copy of this order is produced before the respodnents; ii) that the respondents shall thereafter undertake an exercise of promotion from the post of UDC to that of Office Assistant as per Rules within three months after promotion orders are issued on the 12 recommendation of DPC from the post of LDC to UDC; iii) that the experience of service acquired by the petitioner while working as UDC on ad hoc and any other employee working with the respondents as UDC on ad hoc basis, would hold good for the purpose of promotion from the post of UDC to that of Office Assistant within three months thereafter; iv) that the interim order passed by this Court would remain operative till the appropriate orders for promotion on regular basis is passed consequent upon the recommendations of DPC from the post of UDC to Office Assistant; v) that in case the DPC after considering all eligible claims, adjudges the petitioner suitable for promotion or some one else, the incumbent so promoted on regular basis shall be entitled to take charge of the post of Office Assistant. There shall be no order as to costs. (MOHAMMAD RAFIQ), J. RS/