IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR SPL. APPL. WRIT No. 62 of 2008 STATE & ORS. V/S MOHD.ASLAM Mr. PR MEHTA, for the appellant / petitioner Ms. SUMAN PORWAL, for the respondent Date of Order : 6.4.2009 HON'BLE THE CHIEF JUSTICE SHRI DEEPAK VERMA HON'BLE SHRI NP GUPTA,J. ORDER ----- This appeal has been filed by the unsuccessful respondent in the writ petition, against the order of the learned Single Judge dt. 1.1.2006, allowing the writ petition, quashing the order dt. 20.3.2002 and the order dt. 7.5.2002, and also directing that the writ petitioner will be entitled to all consequential benefits, and that the compliance be made within three months from the service of its copy. The necessary facts are, that the petitioner entered services of Municipal Board, Sirohi as Sub Nakedar, as having been appointed on 12.7.1989, and later on confirmed vide order dt. 13.7.1990. Later on the octroi was abolished, and all those working in connection with realization of 1 octroi in different municipalities were declared surplus. In this process the writ petitioner also happened to be rendered surplus. The Government, however, directed for their absorption/adjustment on various posts in different local bodies. It is in this process that the Chairman and Executive Officer of the Municipal Board, vide letter dt. 20.8.2001 requested the Director Local Bodies, Jaipur seeking his permission to absorb the petitioner on the post of L.D.C. as the writ petitioner possessed requisite qualification for the post of L.D.C., being matric or equivalent. The Municipal Board in its general meeting dt. 21.8.2001 had passed a resolution, deciding to absorb the writ petitioner on vacant post of L.D.C. The Director, Local Bodies, in turn, vide communication dt. 8.2.2002 granted approval for absorption of the writ petitioner on the post of L.D.C. Accordingly vide order dt. 25.2.2002 he was so appointed, and the writ petitioner joined the duties as such. Suddenly the Under Secretary to the Government, in the Department of Local Self, vide order dt. 20.3.2001 cancelled the aforesaid absorption order of the writ petitioner, and pursuant to this order dt. 20.3.2002, the Municipal Board passed the order dt. 7.5.2002, whereby the writ petitioner was ordered to be absorbed on lower post of Sahayak Parcha Vitrak. Aggrieved of this, the writ petitioner approached this Court under Article 226 of the Constitution of India. The order was supported by the present appellant before the learned Single Judge, interalia on the ground, that the person could be absorbed on equivalent posts, his absorption on higher post of L.D.C. was not legally correct, and that now he has been absorbed on equivalent post. It was contended that the decision of the Government was passed in over all public interest. It was also pleaded that large number of employees in different municipalities were rendered surplus, therefore, they were decided to be absorbed on equivalent post in different local bodies of the state, keeping in view their eligibility qualification, for the given post, and that, apart from Sahayak Parcha Vitrak the other equivalent posts are Daroga, Moharrir, Helper Gr. I, Firemen, Lineman, Wireman, Fitter, Karigar etc. A positive stand was taken to the effect, that although earlier approval was granted for absorption of the petitioner on the post of LDC, but on re-examination of the matter, the Government came to the conclusion, that the post of Sub Nakedar was not equivalent to the post of L.D.C. Therefore, directions were issued for absorption of the writ petitioner as per rules. This stand was contested. The writ petitioner contended that he has been absorbed on equivalent post. Various instances were quoted, 3 comprising of various employees who were holding the post of Sub Nakedar or Naka Guard, and were absorbed on the post of Gram Sevak cum Paden Sachiv in different Gram Panchayats, carrying the pay scale of 3200-4590, which is higher than the scale of L.D.C. being 3050-4590. In this regard various documents were produced being Annexures 11 to 16. Learned Single Judge found, that undisputedly writ petitioner was already an employee with the Municipal Board on the post of Sub Nakedar, who was rendered surplus, and the Government decided to absorb such employees, and that there was a clear vacant post of L.D.C. available with the Municipal Board, the petitioner fulfills eligibility qualification, the respondent board resolved to absorb the writ petitioner on the post of L.D.C., which proposal was conveyed to the Government for approval, and the Government accorded necessary approval, and consequently the employee was absorbed. It was also found, that notwithstanding the spacious plea of policy decision of the Government to absorb surplus employees only on equivalent post, large number of employees, as detailed by the writ petitioner, depicts a contrary picture. Learned Single Judge referred to all those documents. Then, reference was made to Chapter IX-A of the Constitution, conferring autonomy in local bodies, and it was found, that the impugned action of the Government tantamounts to reversion of the writ petitioner on the lower post, after having been once absorbed, and that this order was illegal, having been passed in utter disregard of the principles of natural justice, and it was passed practicing discrimination, particular qua the Sub Nakedar of this very municipal board. Thus, the impugned order was set aside. Assailing the impugned order it was argued by the learned counsel for the appellants, that under the absorption rules the absorption committee decides the post on which incumbent is to be absorbed. Likewise, the person rendered surplus can be absorbed on equivalent or lower post, but cannot be absorbed on a higher post. Learned counsel was pointedly asked to read to us the rule of the Absorption Rules in this regard, but the learned counsel did not. It would suffice to say that according to the Absorption Rules, as framed by the State Government in the year 1986 an absorption committee is to be constituted, and that committee decides, as to on what post the particular employee who had been rendered surplus is to be absorbed, and the appointing authority thereafter is left with no discretion, except to pass a formal order of appointment of the incumbent on that post. In that view of the matter, learned 5 counsel for the appellant was asked, as to what was the absorption committee constituted under the Rules, with respect to the writ petitioner, to which again no reply was given, and the query was simply avoided. In this background it would suffice to say, that the Municipal Board, Sirohi is the employer, by whom the writ petitioner was appointed, and the board in its general meeting dt. 21.8.2001, had resolved to absorb the petitioner on vacant post of L.D.C., which resolution was adopted after considering the fact, that the writ petitioner possesses requisite academic qualification. Not only this, necessary concurrence was also sought from the State Government (Director, Local Bodies) which too was duly accorded vide order dt. 8.2.2002, and accordingly vide order dt. 25.2.2002, the writ petitioner was appointed on the post of L.D.C., who joined as such. Significantly this factual position is not in dispute. Learned counsel for the appellant then harped on the question, that absorption could be only on equivalent post, and not on higher post. In our view, when the State Government (Director, Local Bodies) who had accorded concurrence vide order dt. 8.2.2002, for absorption of the writ petitioner on the post of L.D.C., we have our own doubts, as to whether it was at all open to the State Government to review the said order, obviously because review is creature of the State, and does not inhere in any one. All this can be said to be one aspect of the matter. However, the other important aspect of the matter, as found by the learned Single is, that the order was passed in utter disregard of the principles of natural justice. Obviously, admittedly, before passing of the order dt. 20.3.2002, no opportunity of hearing was given to the writ petitioner. In that view of the matter, we do not find any ground to interfere with the impugned order of the learned Single Judge. However, at the request of the learned counsel for the appellant, the impugned order is modified, in the manner, that it would be open to the appellants to pass fresh order, after giving opportunity of hearing to the writ petitioner, obviously if it could be so passed. However, till any such fresh action is taken, the order of the learned Single Judge shall be complied with. Consequently, the appeal is partly allowed as above. Parties shall bear their own costs. ( NP GUPTA ),J. (DEEPAK VERMA ),C.J. /Sushil/ 7