1 S.B. Civil Writ Petition No.4365/1996 Shiv Prakash Ojha. vs. State of Rajasthan and others. Date : 18.3.2010 HON'BLE MR. PRAKASH TATIA, J. Mr.DK Godara, for the petitioner. Dr.GR Calla, for the respondents. - - - - - Heard learned counsel for the parties. The petitioner was given initial appointment on the post of Senior Teacher in Agriculture (Science) vide office order dated 3.2.1986 under Rule 28 of the Rajasthan Education Subordinate Service Rules, 1971 which allows the appointment on urgent temporary basis and as per the order of appointment, initially, the petitioner was given appointment for a fixed term and that was extended and thereafter, there was break in service also and then ultimately, vide order dated 17.12.1992, the petitioner was given appointment under Rule 20 of the Rules of 1971 as he was duly selected by the selection committee with specific condition that his appointment shall be treated to be from the date when he passed the requisite educational 2 qualifications of B.Ed. At that time i.e. in the year 1992 itself, there was no vacant post available and, therefore, he was given temporary appointment vide order dated 17.12.1992 with a condition that whenever vacant post will be available, he will be given permanent status. Copy of this order has been placed as Annex.5 and condition of giving appointment to the petitioner as substantive appointee when he passed the B.Ed. Degree is not under challenge. The contention of the petitioner is that in view of the fact that the petitioner was entitled to be considered for promotion on the post of Head of Agriculture Department in view of Entry No.6 in the Schedule appended to the Rules of 1971, he should have been considered for promotion from the completion of 5 years from the date of his initial appointment which was made in the year 1986 even if the petitioner has acquired the B.Ed. Degree in the year 1992. Learned counsel for the petitioner submits that one person Hanuman Sahai who was also appointed in 1985-86 and did his B.Ed. Degree in 1995, has already been given promotion. Learned counsel for the respondents submitted that the petitioner was given urgent temporary appointment and was not in cadre strength. He was given appointment in 1992 by a specific order under Rule 20 of the Rules of 1971 under which 3 only a substantive appointment can be given. In the order dated 17.12.1992, it is clearly mentioned that the petitioner has been given appointment against a temporary post as at that time also, there was no vacant post. A person can come into regular cadre only when he is selected in regular cadre for regular appointment by recommendation of the committee, accepted by the State Government and appointment is given. It is also submitted that in the year 1986, the petitioner was not having requisite educational qualification of B.Ed. and, therefore, his appointment cannot relate back when he had no requisite qualification. It is also submitted that the petitioner accepted the order dated 17.12.1992 of giving him appointment in the year 1992 when he passed B.Ed. Examination and, therefore, he cannot claim promotion prior to completion of 5 years from the date of his regular appointment in the cadre, may he has acquired the B.Ed. Degree in the year 1992 but that cannot relate back to the original date of appointment nor it can be a retrospective regular appointment for the purpose of counting his seniority. It is also submitted that so far as Hanuman Sahai is concerned, neither he is party nor his promotion is under challenged for which learned counsel for the petitioner submitted that Hanuman Sahai was given promotion after filing of the writ petition. 4 I considered the submissions of learned counsel for the parties and perused the facts of the case. It is clear that the petitioner was given temporary appointment in 1986 and it is also clear that he was untrained teacher as well as not regularly selected under Rule 20 of the Rules of 1971. He was given appointment on absolutely ad hoc basis as well as temporary. His appointment orders were passed subsequently and ultimately, he faced the selection committee on 1.12.1992 and then he was given appointment from the date he passed the B.Ed. Degree and this appointment too was on temporary post and not against permanent post. Therefore, the petitioner came on permanent post on availability of permanent post. In view of the above reasons, the petitioner's case could not be considered as claimed by the petitioner by counting his service from 1986 even when he has acquired eligibility for the post in the year 1992. So far as Hanuman Sahai is concerned, for that no fact has been pleaded and that argument has been advanced orally. Hanuman Sahai is not party to this writ petition, therefore, that plea cannot be raised by the petitioner after about more than 12 years as Hanuman Sahai was given promotion in the year 1997. 5 In view of the reasons mentioned above, I do not find any merit in this writ petition. Consequently, this writ petition is hereby dismissed. (PRAKASH TATIA), J. S.Phophaliya