SBCWP No.784/94. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION NO.784/1994. Shri Narain Meena Vs. Rajasthan Housing Board & Anr. Date of order : October 13, 2008. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri R.A. Katta for the petitioner. Shri J.K. Singhi for the respondents. **** BY THE COURT :- This writ petition has been filed by Shri Narain Meena challenging the order of the respondents dated 1/2/1994 by which he was transferred from the office of Resident Engineer Electric (II) to the Office of Head Legal Officer (II) from the post of Helper to Electrician. 2) Shri R.A. Katta, learned counsel for the petitioner has assailed the aforesaid order on the ground that petitioner was appointed on the post of Electrician by the respondents vide order dated 19/8/1989 for the period of three months and then he continued thereafter on the said post. The Rajasthan Housing Board created the post of Electrician vide Resolution/Circular No.125 dated 7/12/1988 (Ann.1A) which was to be filled in 100% by direct recruitment from amongst its employees having qualification of SBCWP No.784/94. 2 I.T.I. Diploma for Electrician subject or experience of 5 years as Electrician. Petitioner even though appointed as Helpder but fulfilled qualification having possessed the experience of more than 5 years and, therefore, he was appointed on that post. Respodnents did not in the impugned-order indicate his posting as Electrician and with a view to frustrate in the claim of the petitioner merely transferred him as Helper. Learned counsel submitted that the respondents in reply to the writ petition have come out with the plea that it approached the government for approval of creation of the said post and encadrement of the same under the Rajasthan Housing Board Employees Recruitment and Promotion Regulations, 1976 (for short, "Regulations of 1976") which proves that creation of the post is not denied even by the respondents. It is, therefore, prayed that the impugned order dated 1/2/1994 be quashed and the petitioner be declared substantively appointed on the post of Electrician from the date of his initial appointment and held entitled to consequential benefits. 3) Shri J.K. Singhi, learned counsel for the respondents has submitted that petitioner was substantively appointed as Helper and he was merely asked to work as Electrician by way of stop gap arrangement. It is contended that since no approval was received from the government either for creation of the aforesaid post or encadrement of the same in the Regulations of 1976, the post of Electrician SBCWP No.784/94. 3 cannot be taken to have been created so as to make any regular selection thereagainst. It was contended that since the petitioner was appointed substantively as Helper, order dated 1/2/1994 merely seeks to transfer him as such. It does not cause any prejudice to the petitioner as he was continuously holding the post of Helper in substantive capacity. 4) Consideration of the arguments aforesaid reveals that though the fact that petitioner was appointed on ad-hoc temporary basis as Electrician vide order dated 21/8/1989 is not in dispute but at the same time, it is also not in dispute that the aforesaid post was proposed to be created in the Board for being filled up by way of direct recruitment. Approval of the State Government was sought for creation of the post as well as for amendment of the rules. Even if such an approval is necessary but the fact remains that post was meant for being filled up by direct recruitment. Petitioner was straightway picked up from the services of the Board to temporarily man the post. The respondents did not advertise the post by giving opportunity to all eligible candidates and if the post was to be filled in by way of direct recruitment, it should have been ploated in the open market. Even if therefore the petitioner has worked for some time in between on the post of Electrician upto the year 1994, that cannot provide a sufficient justification for issuance of a writ of mandamus directing the respondents to treat him substantively appointed on SBCWP No.784/94. 4 the said post but at the same time, keeping in view the fact that respondents have not denied the factum of petitioner's working on the post of Electrician for the period from 19/8/1989 upto 31/1/1994, their action for not paying him salary of the post, duties of which were actually discharged by him, cannot be held legal. Upholding such action would amount to allowing exploitation of the petitioner by the respondent Board. 5) In the result, this writ petition is allowed in part. While upholding the order dated 1/2/1994 as legal and valid, it is deem it appropriate to direct the respondents to pay to the petitioner salary of the post of Elecrician minus the amount already paid for the post of Helper. Compliance of the judgment shall be made within a period of three months from the date copy of the same is produced before the respondents. (MOHAMMAD RAFIQ), J. anil