1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R S.B. CIVIL WRIT PETITION No.8999/2002. : : Kailash Chand Vs. Municipal Board, Indergarh. : : Date of Order 6.1.2009 HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Mr.Shiv Charan Gupta for the petitioner. Mr.Aklesh Jain, Dy.Govt.Counsel for the State. Heard learned counsel for the parties. This writ petition has been filed challenging the award of Industrial Tribunal, Kota dated 8.8.2002 by which reference, on the question whether the petitioner who was Naka Guard and did not have the qualification of Middle or its equivalent at the relevant time was still eligible for promotion on the post of Sub-Nakedar, was answered in negative. Shri Shiv Charan Gupta, learned counsel for the petitioner argued that learned Tribunal has wrongly held that petitioner is not eligible and submitted that judgment of this Court in SB Civil Writ Petition No.1306/1990 : Pannalal Saini Vs. Director, Local Bodies & Ors., decided on 11.10.1995 on 2 which the Tribunal has placed reliance has not been correctly decided. Learned counsel submitted that Column No.4 of Schedule appended to Rajasthan Municipal (Subordinate & Ministerial Service) Rules, 1963 has not been correctly interpreted by the Coordinate Bench of this Court in the aforesaid judgment because this Column No.5 has to be read instead of Column No.3, which is pertaining to qualification required for direct recruitment which is middle on the post of Sub-Nakedar and not for promotion in Column No.4, which provides for 25% quota for promotion for the post of Nakedar. Learned counsel argued that the petitioner even otherwise has procured the qualification of middle in the year 1995 and still this fact has duly entered in his service record. Shri Aklesh Jain, learned Deputy Government Counsel opposed the writ petition and submitted that learned Tribunal has rightly decided the matter because the petitioner did not have the qualification of middle at the relevant time and that the judgment of this Court in Panna Lal (supra) has correctly held that 25% quota for promotion of Naka Guard on the post of Sub-Nakedar is available only for such Naka Guards who are qualified. 3 Consideration of the arguments aforesaid and perusal of the impugned award and also relevant part of the aforesaid judgment in the case of Panna Lal (supra), clearly show that this Court on perusal of Column No.4 of Schedule of Rules of 1963, held as under : - “Naka Guard could be promoted to the post of Sub-Nakedar, 25% by promotion, if qualified hands are available.” Column No.5 additionally required five years experience. Five years experience obviously need not be insisted for direct recruitment and in the scheme of Rules of 1963 this requirement is meant for promotion, but at the same time, quota of 50% was for promotion for the holder of the post of Naka Guard. The Coordinate Bench of this Court in Pannal Lal (supra) on consideration of the aforesaid entry in Column No.5 held as under :- “ The words 'if qualified hands are available' makes it clear that the qualification as specified in Coln.No.3 would also be applicable with the experience of 5 years mentioned in Col.5.” 4 Schedule to the Rules of 1963 has been drafted in such a manner that both the direct recruitment and promotion have been clubbed together for being included in Entry 5 of Part-A of the Schedule for the post of Sub- Nakedar. While middle is additional qualification has been prescribed for direct recruitment, the quota of 25% was earmarked for promotion with a rider if qualified hands are available. In my considered view, Coordinate Bench of this Court was right when it held that “if qualified hands are available”, the qualification as specified in Column No.3 would also be read in Column No.5. In view of the above discussions, I do not find any merit so far as the first argument of the learned counsel for the petitioner. However, if in spite of qualification of middle the respondents are not considering his case for promotion, only because of pendency of litigation, such action of respondents is not at all justified. The respondents are directed to consider his case against any vacancy, which became available after 1995 in accordance with the Rules. The writ petition is accordingly disposed of. No order as to costs. (MOHAMMAD RAFIQ)J. A.Arora/-Item No.36.