1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :::: O R D E R Puran & Ors. Vs. Municipal Board & Anr. S.B. CIVIL WRIT PETITION NO.112/2002 UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA. DATE OF ORDER :: 05th October, 2006 PRESENT HON'BLE SHRI JUSTICE MOHAMMAD RAFIQ Mr.Sanjay Mathur, Advocate for the petitioners. Mr.Manoj Bohra for Mr.Kailash Nath Joshi, Advocate for the respondents. BY THE COURT The petitioner has filed this writ petition with the prayer 2 that the respondents be restrained from making appointment on the post of Fireman at Municipal Board, Chittorgarh by way of absorption of surplus staff as a consequence of abolition of Octroi posts and be further directed to fill in the existing vacancies on the post of Fireman by way of regular selection. The case of the petitioner as set up in the writ petition is that the petitioner acquired requisite training for the purpose of appointment as fireman under instructions of the Municipal Board, Chittorgarh in the month of September, 1995. The Executive Officer, Municipal Board, Chittorgarh by an order dated 28.09.95 directed that the petitioners shall be working in the fire fighting section of the Board in their own pay scale on temporary basis. The post of fireman is encadred in the Rajasthan Municipal (Sub-ordinate and Ministerial Service) Rules, 1963. Eligibility for appointment on the post of fireman is that preference would be given to a candidate have passed middle class or any equivalent qualification and after appointment the candidate would be required to undergo usual training. It has been stated that as a consequence of abolition 3 of Octroi of the State Government, the staff working on Nakas at various Municipalities became surplus. The Government decided to absorb some of the employees working at these Nakas as fireman in Municipalities and accordingly by its order dated 19.11.2000 instructed various Municipal Boards/Councils to absorb them as fireman. According to the petitioner, there was no provision for absorption of surplus employees under Rajasthan Municipalities Act, 1959 or any Rules framed thereunder. The Municipal Boards being autonomous bodies could not be directed by the Government to absorb the surplus employees from another municipalities. Hence the writ petition. The respondents have contested the writ petition and filed reply thereto. In the reply, it has been submitted that on account of abolition of levy of Octroi, a large number of employees become surplus in different municipalities of the State. The Government therefore keeping in view the interest of those surplus employees took a policy decision to absorb them on the equivalent post either in the municipalities or in Panchayats. The policy decision being in the larger interest of 4 the surplus employees of the Municipalities, the challenge to that policy decision cannot be sustained. The respondents have contended that as per the note (2) Rule 7 of the Rajasthan Municipalities (Clause IV Service) Rules, 1964, the posts of Sanitary Jamadar was to be filled up by 100% by way of promotion from amongst the persons holding the post of Bhisties, Sweepers and Scavengers on the basis of inter se seniority based on length of service. There was therefore separate channel of promotion as far as the sweepers are concerned on which post the petitioners are working. On the other hand, the source of recruitment for the post of fireman is 100% by direct recruitment. Minimum qualification required for appointment against the said post is middle pass or equivalent qualification and after appointment such candidate is required to undergo the training for a period of one month. When the Government decided as a matter of policy to absorb all those who were declared surplus from different municipalities, eligible candidates were appointed 5 against such posts. For such candidates were then sent to undergo requisite training which is of one year. The petitioners however undergone a short training of one month from Rajasthan Swayat Sasan Sansthan, Jodhpur, which does not make them eligible for regular appointment. I have heard learned counsel for the parties and perused the records. The post of fireman is in the fire fighting section of the Municipalities and has been enumerated in Section H of the Schedule appended to Rajasthan Municipal Subordinate Municipal Service Rules, 1963. It has been provided therein that preference would be given to candidates who pass middle or equivalent qualification and such candidate should be required to undergo training after appointment. While the petitioners have not stated that they are middle pass, their contention is that the middle is not a minimum eligibility qualification but only preference has to be given to middle class candidates. When the respondents have taken a policy 6 decision to absorb those who have been declared surplus from other municipalities on account of abolition of octroi, their action in appointing surplus personnels against the post of firemen cannot be faulted with. The petitioners have not alleged that such persons were not eligible and they have also not asserted they themselves were eligible. Moreover, if the mode of recruitment on post of fireman is 100% by direct recruitment and therefore if the respondents have decided to fill them up by way of absorption of surplus personnel, the petitioners can have no legitimate grievance to make because it did not any adverse effect on his chances of promotion in the regular channel of service where he is eligible for promotion on the post of Sanitary Jamadar. Merely because he had remained posted in fire fighting section for some time by way of stop gap arrangement, that wold not give him any right to continue on such post. More over the kind of mandamus which the petitioner has prayed for cannot be issued restraining the respondents to absorb the surplus personnels. This court also cannot direct the respondents to promote/absorb the petitioner on the post of fireman because that would be amount to 7 requiring them to act contrary to the Rules. In the facts of the present case, I do not find any merit in the writ petition. The same is accordingly dismissed with no order as to costs. [MOHAMMAD RAFIQ], J. A.K. Chouhan/-