SBCWP2192/1996 // 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.2192/1996 K.C. Dhand Vs. State of Rajasthan and Others Date of Order ::: 05.03.2010 Present Hon'ble Mr. Justice Mohammad Rafiq Shri Ajeet Kumar Sharma with Shri Vishnu Kant Sharma, Counsel for petitioner Shri S.N. Kumawat for respondent State None present for private respondents #### //Reportable// By the Court:- This writ petition was filed by petitioner K.C. Dhand way back in the year 1996 in a situation where he had been left with no promotional avenues and would be retiring from the same post on which he was initially appointed. In that background, he prayed that a writ of mandamus be issued commanding respondents to include the post of Deputy Architect held by him in the Rajasthan Town Planning Service under the Rajasthan Town Planning Service Rules, 1966 (hereinafter shall be referred to as 'the Rules of 1966') and be treated at par with the post of Deputy Town Planner in all respect with effect from the date of creation of this post with all the requisite SBCWP2192/1996 // 2 // promotional avenues and consequential benefits and further amendment be made by making holder this post eligible for further promotion to the post of Senior Town Planner as was done in the case of Deputy Town Planner (Civil Survey)/ (Planning & Research) by Notification of the Government dated 30.10.1984. Petitioner was initially appointed on ad hoc basis in the Town Planning Department of the State by order dated 06.07.1976 in the pay scale of Rs.700-1100 which incidentally was also the pay scale of Deputy Town Planner. Petitioner possessed the Degree of Architecture at the time of his appointment. Subsequently, Rajasthan Public Service Commission advertised certain post of Architect in the year 1978. Petitioner applied and was selected. He was eventually appointed by order of the Government dated 19.08.1978. In that order, it was mentioned that appointment of petitioner as Deputy Architect in Town Planning Department of the Government of Rajasthan was being made in the pay scale of Rs.1150-1650 on probation for a period of two years. The period of his officiating temporary appointment however shall be counted towards probation period. The order further stated that appointment to the said post has been made in accordance with the provisions and requirement SBCWP2192/1996 // 3 // of Town Planning Service Rules, 1966 and would be subject to terms and conditions laid down in the said Rules. Petitioner was confirmed in that post with effect from 19.08.1978 by order dated 03.12.1980. Petitioner has placed on record copy of communication dated 05.04.1977 sent by the Deputy Secretary to the Government in its Department of Urban Development & Housing to Chief Town Planner, Rajasthan, Jaipur conveying the sanctioned strength of Rajasthan Town Planning Service under the Rules of 1966 as per Rule 4 thereof. Therein are included one post each of Deputy Town Planner (Civil Survey) and Deputy Architect. Till then those posts were yet not included in the Schedule appended to the Rules of 1966 and were therefore treated ex- cadre post, ever since his appointment in 1978 on substantive basis. Petitioner continued to work on the post of Deputy Architect and in that capacity he was invariably also posted against the post of Deputy Town Planner. Conversely, the persons appointed substantively as Deputy Town Planner were also posted against the post of Deputy Architect. Faced with such a scenario, the petitioner apprehended that he might not be able to secure even a single promotion in his entire service career which is what has actually happened to him because he has retired during SBCWP2192/1996 // 4 // pendency of this writ petition. I have heard Shri Ajeet Kumar Sharma, learned counsel for petitioner and Shri S.N. Kumawat, learned counsel appearing on behalf of respondents. Shri Ajeet Kumar Sharma, learned counsel for petitioner has argued that petitioner ever since his appointment, has throughout remained engaged with functions and activities relating to preparation of scheme of residential houses and also designing the architect and projects in particular. Post of Deputy Architect was created by order of the Government dated 14.05.1969 on permanent basis and this fact is borne out from the communication dated 05.04.1977. Some more such posts were created from time to time by the Government as per requirement and exigency of service in Town Planning Department. In the Planning Research Wing, the posts of Investigator, Research Assistant, Assistant Planning Research Officer (APRO), Planning Research Officer (PRO) and Senior Planning Research Officer (SPRO) were created. They were also taken as ex-cadre posts distinct from the main cadre of Town Planning Department. Likewise, one post of Deputy Town Planner (Civil Survey) was also created by the Government order dated 19.09.1974. These gazetted posts of SBCWP2192/1996 // 5 // Planning Research Wing were re-designated as Assistant Town Planner, Deputy Town Planner, Senior Town Planner in place of APRO, PRO and SPRO vide Government order dated 24.06.1980. Later on, post of Deputy Town Planner (Civil Survey) was also encadred in the Rules of 1966 by order dated 30.10.1984. However, such treatment was not meted out to petitioner, whose appointment as Deputy Architect was made much earlier than those appointed against the aforesaid posts and the post of Deputy Architect itself was created much before creation of these posts in the Planning Research Wing. Learned counsel submitted that originally when the Town Planning Service was constituted, the highest post in the service was that of Chief Town Planner and Architectural Adviser and therefore it cannot be said that the work of architecture was completely foreign to the service. Source of recruitment to this post was/is 100% by promotion from the post of Deputy Town Planner having the qualification of Degree of Architect or Civil Engineering or Degree or Diploma in Town Planning. Subsequently, however, by Notification of the Government dated 30.10.1984, nomenclature of this post was changed from Chief Town Planner and Architectural Adviser to that of Chief Town SBCWP2192/1996 // 6 // Planner only. By this Notification, amendment was also made in the Schedule appended to the Rules of 1966. Posts of Deputy Town Planner (Planning Research) and Deputy Town Planner (Civil Survey) were encadred. Entries made in Column 5 against the post shown at Serial No.3 i.e. Senior Town Planner, were also amended, with a view to making the persons working on the post of Deputy Town Planner (Civil Survey)/ (Planning Research) eligible for promotion to the post of Senior Town Planner, in addition to Deputy Town Planner, as originally provided. It was further stipulated that the entry made in Column 5 against the post shown at Serial No.3 would be deemed to have come into force with effect from 01.04.1977. Shri Ajeet Kumar Sharma, learned counsel for petitioner, submitted that respondents have themselves given all the benefits with retrospective effects for all purposes to those working on ex-cadre posts of Deputy Town Planner (Planning Research)/(Civil Survey) which were subsequently encadred. However, no such amendment was made for the post of Deputy Architect, despite the fact that petitioner had been repeatedly submitting representations and his case was favourably recommended by the Department. Learned counsel referring from the SBCWP2192/1996 // 7 // pleadings in para 12 of the writ petition, submitted that the posts of Deputy Architect and Deputy Town Planner even though are two different posts with different nomenclature, yet in practice they were always considered as inter-changeable. Incumbents appointed on the post of Deputy Town Planner have been posted as Deputy Architect and vice-versa. Learned counsel has given examples of Mrs. M. Sen, Shri R.C. Sharma, Shri M.L. Taori and of petitioner himself when he was, for a period of fours, sent on deputation to work on the post of Deputy Town Planner with the Jaipur Development Authority. Learned counsel submitted that experience of working on the post of Deputy Town Planner, who had discharged the duties on the post of Deputy Architect, was considered good for the purpose of eligibility for promotion to the post of Senior Town Planner. He, in this connection, has given examples of Shri R.C. Sharma and Mrs. M. Sen. Learned counsel submitted that wisdom downed upon the Government belatedly when it changed nomenclature of Deputy Architect into that of Deputy Town Planner and Assistant Architect into that of Assistant Town Planner. An application was filed by the Government in the writ petition to say that since the SBCWP2192/1996 // 8 // petitioner has now been treated as Deputy Town Planner therefore his grievance does not survive and therefore the writ petition be dismissed. Learned counsel submitted that change of nomenclature did not remedy grievance of petitioner because this change was made belatedly by order dated 28.03.1998 and in that situation, petitioner in order to get his grievance redressed had to approach this Court by filing third stay petition but therein a plea was set up by the government that since the post of Deputy Architect has been abolished on account of change of nomenclature, the redesignated post of Deputy Town Planner shall be now filled in accordance with the Rules of 1966. This stay petition was allowed by this Court with direction that till final hearing of the writ petition, post of Deputy Architect converted by the Government into the post of Deputy Town Planner shall be continued to be held by the petitioner. The learned counsel submitted that petitioner physically served as Deputy Town Planner for about eight years with effect from December, 1988 till August, 1996 and also successfully passed the associated examination conducted by Town Planning Examination Board of the Institution of Town Planners of India, yet SBCWP2192/1996 // 9 // however he would not be considered eligible for promotion to the post of Senior Town Planner. The petitioner has also been conferred with the associated membership of the Institution of Town Planners of India (AITP), which is granted by the Institution to those persons who have passed Diploma in Town and Country Planning awarded by the School of Town and Country Planning, New Delhi. Shri Ajeet Kumar Sharma, learned counsel for petitioner, referring from the affidavit of the petitioner dated 16.10.1996, submitted that in the course of argument before this Court on 20.08.1996, the respondent No.1 informed the court that the change in Town Planning Service Rules 1966 incorporating the post of Deputy Architect held by the petitioner, was under active consideration of the State Government and has already been approved by the Committee of Secretaries. If that was the situation in 1996, the petitioner cannot be denied his legitimate entitlement just because present writ petition remained pending for so long. Learned counsel in this connection also invited attention of the Court towards minutes of 47th meeting of the Committee of Secretaries held on 17.07.1996, which has been placed on the record with his aforesaid affidavit. SBCWP2192/1996 // 10 // Shri S.N. Kumawat, learned counsel appearing for respondents, has opposed writ petition and submitted that so long the post of Deputy Architect is not encadred in the Rules of 1966, petitioner cannot be held entitled to promotion on the post of Senior Town Planner. It is denied that appointment of petitioner was made in accordance with the provisions of the Rules of 1966. Learned counsel submitted that petitioner was fully aware of the fact that he was selected by the RPSC and was being appointed against ex-cadre post. The post of Deputy Architect was created by order of the Government dated 14.05.1969 and qualification and other service conditions of the post were also laid down by the Government vide order dated 17.01.1970. Learned counsel for respondents has placed those documents on record with reply to writ petition. It is submitted that Town Planning Department is only concerned with planning of town, preparation of development plan, master plan, scheme for residential and commercial, formulation of projects etc. So far as architectural work is concerned, it is separately taken up by the Public Works Department which is responsible for construction of building etc. The post of Deputy Architect SBCWP2192/1996 // 11 // was not included in the Schedule appended to the Rules of 1966 and obviously therefore the petitioner could not be considered eligible for promotion to the post of Senior Town Planner. Merely because he was some time in the year 1988, sent on deputation to work against the post Deputy Town Planner and that certain substantively appointed Deputy Town Planners were posted to work against the post of Deputy Architect, does not mean that rules of the subject can be given a completely go by. Such a practice by itself does not confer eligibility upon the petitioner to claim promotion on the post of Senior Town Planner. Learned counsel for respondent State submitted that creation of post, structuring of cadres and prescribing qualification etc. for appointment on a post, lies within the domain of the rule making authority and this Court, by issue of a writ of mandamus, cannot require such authority to frame the rules in a particular manner. It is submitted that conversion of post of Deputy Architect and Assistant Architect into that of Deputy Town Planner and Assistant Town Planner by order dated 28.03.1998 is only prospective and it is from that date onwards that petitioner, who was holding the post of Deputy Architect, which was converted into that SBCWP2192/1996 // 12 // of Deputy Town Planner, can be taken to be eligible for promotion against the post of Senior Town Planner and counting therefrom the period of five years he completed the requisite experience of five years on such post only on 28.03.2003. He could be considered for promotion against these posts subject to the rule of zone of consideration on any of the available post of general category after that date. Learned counsel submitted that so far as the posts which recently became available in the years 2003-04 and 2004-05 are concerned, they were kept reserved for the candidates belonging to SC and ST. The petitioner retired from services in the meantime on attaining the age of superannuation on 30.06.2006, and he cannot be now held entitled to any promotion. I have given my anxious and thouthful consideration to the rival submissions of learned counsel for the parties and perused the material on record. What is not disputed and cannot be disputed is the fact that the post of Deputy Architect, even though was not encadred in the Schedule appended to the Rules of 1966, is in practice being treated by the respondents equivalent to that of Deputy Town Planner. Petitioner has amply demonstrated this fact on SBCWP2192/1996 // 13 // record that number of persons referred to above were posted to work on the post of Deputy Architect, likewise the petitioner was also required to work on the post of Deputy Town Planner when he was sent on deputation to Jaipur Development Authority on such post from 26.11.1988 to 22.07.1993. Petitioner has also amply proved that experience of persons like Mrs. M. Sen and Shri R.P. Sharma of working on the post of Deputy Architect was taken as good enough to make them eligible for consideration of their names for promotion on the post of Senior Town Planner. Even though it may be a fact that post of Deputy Architect was not encadred in the Rules of 1966 but at the same time, it is also equally true that there was stipulation in the initial appointment order of petitioner dated 19.08.1978, as Clause 3 thereof provides, that appointment of petitioner to the post of Deputy Architect has been made in accordance with the provisions and requirement of the Rules of 1966. The Government by its order dated 05.04.1977 conveyed to Chief Town Planner that as per Rule 4 of the Rules of 1966 it has determined the Cadre strength of permanent post of Rajasthan Town Planning Service, according to which, apart from others, it also included one post each of Deputy Town SBCWP2192/1996 // 14 // Planner (Civil Survey) and Deputy Architect. There was then the post of Deputy Town Planner (Planning Research) also. The Government created the Planning Research Wing with hierchy of Investigator, Research Assistant, Assistant Planning Research Officer (APRO), Planning Research Officer (PRO) and Senior Planning Research Officer (SPRO). The post of Deputy Town Planner (Civil Survey) was created by the Government by Order dated 19.09.1974. These posts were created also as ex-cadre post and much after creation of post of Deputy Town Planner by the Government. Yet however the Government by Notification dated 30.10.1984 has encadred all these subsequently created posts in the Rules of 1966. When the Rules of 1966 were framed, the highest post in that service was the post designated as Chief Town Planner and Architectural Adviser. It was only by way of amendment brought vide Notification dated 30.10.1984 that nomenclature of this post was changed to only Chief Town Planner. But then this is sufficient indicative of the fact that architecture was not completely foreign to the working of the Town Planning Department. Moreover the qualification possessed by petitioner makes him eligible for appointment even as Deputy Town Planner, as many of the SBCWP2192/1996 // 15 // Deputy Town Planners working with the respondents in fact possessed the very same qualification. What is significant to note is that the petitioner possessed some such qualifications, which many of them do not have. Amendments subsequently brought about by the Government in the Rules of 1966 by which posts of Deputy Town Planner (Civil Survey) and Deputy Town Planner (Planning Research) were encadred in the Rules of 1966 and incumbents holding such posts were made eligible for promotion to the post of Senior Town Planner, by providing that such amendments would be deemed to have come into force with effect from 01.04.1977. In other words, the incumbents who were holding the post of Deputy Town Planner (Civil Survey) and Deputy Town Planner (Planning Research) would be eligible for promotion to the post of Senior Town Planner, the moment they complete the requisite experience of five years from the date of their initial appointment as such. The Town Planning Department has been taking up this matter with the Government for last several years and in fact, the Minutes of 47th meeting of the Committee of Secretaries held on 17.04.1996, which are on record, show that a decision was taken by such Committee even before filing of the present writ petition. The SBCWP2192/1996 // 16 // Government itself filed an application before this Court to place on record copy of order dated 28.03.1998 contending now that the post of Deputy Architect has been converted into that of Deputy Town Planner, the petition should be dismissed as having become infructuous. But then, they resisted the prayer made by the petitioner that his continuity on the newly converted such post may not be disturbed by the respondents by contending that since the post of Deputy Architect which the petitioner stood impliedly abolished by the reason that post was converted into that of Deputy Town Planner. It was indeed a very strange analogy and was rightly not accepted by this Court when interim order protecting continuity of petitioner on such post was passed on 20.08.1996. Now the respondents would say that since the post of Deputy Architect has been converted into Deputy Town Planner by order dated 28.03.1998, therefore, experience of five years requisite for eligibility of promotion to the post of Senior Town Planner would be countable only from that date but this argument also is devoid of any merit for the reasons stated herein above. The process for inclusion of the post of Deputy Architect into the Rules of 1966, was started much before filing of the present writ SBCWP2192/1996 // 17 // petition, but ultimately when it came about, but, in a halfheartedly manner, the Government by its order has merely converted the post of Deputy Architect into that of Deputy Town Planner and similarly the post of Assistant Architect into that of Assistant Town Planner. The persons holding such posts could not be left in lurch when they have almost played their innings and are on the verge of attaining the age of superannuation. Action of the Government in encadring the post of Deputy Town Planner (Civil Survey) and Deputy Town Planner (Research Planning) retrospectively from 01.04.1970 and not extending similar treatment to the petitioner is wholly unjust and discriminatory being violative of right to equality enshrined in Articles 14 and 16 of the Constitution of India. When the experience of persons, holding the post of Deputy Town Planners, of working on the post of Deputy Architect has been held to be good for the purpose of eligibility of promotion to the post of Senior Town Planner, there is no reason why the experience gained by the petitioner while working on the post of Deputy Architect could not be counted for the purpose of considering his case for promotion. Moreover, the petitioner has also demonstrated successfully that he has also in between 1988 to SBCWP2192/1996 // 18 // 1993, for about four years, worked on the post of Deputy Town Planner when he was sent on deputation to work against such post in Jaipur Development Authority. Even if the post of Deputy Architect has not been straightway encadred but it has been converted into that of Deputy Town Planner, the relevant order shall have to be construed in the context in which it has been passed and wordings used therein that the post of Deputy Architect created by order of the Government dated 14.05.1969 would stand converted into that of Deputy Town Planner and that the petitioner would be deemed to have throughout worked on the post of Deputy Town Planner. Any other interpretation of the matter to say that the petitioner would be eligible for promotion to the post of Senior Town Planner only upon completion of period of five years after passing of the order dated 28.03.1998, would be highly unjust and too harsh upon the petitioner. The petitioner has retired from service on 30.06.2006. Except respondent No.6 Shri R.P. Sharma, all other private respondents have also retired and Shri R.P. Sharma would be retiring on 30.11.2011. However, it is not disputed that none of the respondents were appointed as Deputy Town Planner prior to 1985-86. In other words, SBCWP2192/1996 // 19 // the respondents No.2, 3, 4 and 5 were promoted as Deputy Town Planner against the vacancies of the year 1985-86 whereas the respondent No.6 was promoted against the vacancies of the year 1989- 90. The petitioner even though was appointed on the post of Deputy Architect by order dated 19.08.1978 (Annexure-3) i.e. in the year 1978, but his case for promotion to the post of Senior Town Planner was obviously not considered for the reasons stated above. In any case, he cannot be deprived of his right of consideration for promotion immediately on completion of requisite experience of five years, now when the respondents have converted the post of Deputy Architect by order dated 28.03.1998 into that of Deputy Town Planner. Subsequently, the respondents No.2 was promoted against the post of Senior Town Planner against the vacancies of the year 1993-94 and respondent No.3 and 5 were promoted on the post of Senior Town Planner against the vacancies of the year 1994-95. However the recommendations of the DPC for promotion qua respondent No.4 Syed Insram Ali Rizvi, were kept in sealed cover on account of pending disciplinary enquiry against him. The respondent No.6 was also later on promoted on the post of Senior Town Planner. It may be significant to notice that despite SBCWP2192/1996 // 20 // impleamdnet of private respondents and service of notice upon them, none has appeared to contest the matter obviously for the reason that except respondent No.6, all have retired on attaining the age of superannuation. In the result, this writ petition is allowed and the respondents are directed to treat the petitioner, who was