- (1.) THE petitioner was initially appointed as a Lower Division Clerk in the Krishi Upaj Mandi, Jodhpur, on June 18, 1968. On September 21, 1968, this order was superseded and the petitioner was ordered to be treated as an Upper Division Clerk on ad hoc basis. This was confirmed by the Marketing Officer, Agricultural Department vide letter dtd. October 8,1968. THE Samiti vide order dated January 11, 1972, relieved him keeping his lien and treating him on leave without pay from January 12, 1972, as the petitioner was desirous of joining the University of Jodhpur. THE Samiti thereafter passed an order on July 21, 1972, directing the petitioner to return back to the service, and in pursuance of that, he came back and joined the service on August 10, 1972. THE period of the service of the petitioner as Upper Division Clerk, was extended from June 21, 1970 to March 31, 1973 vide order dated Nov. 29, 1973. He was then sent for training of Marketing Secretary vide order dated January 29,1975. On successful completion of this training, he was promoted as Assistant Secretary. But, without giving effect to this order he was promoted as Supervisor. THE Rajasthan Agricultural Marketing Board approved this promo on vide its communication dated May 28, 1976.
(2.) IN 1975, the State of Rajasthan framed the Rajasthan Agricultural Produce Markets (Market Committee Employees) Service Rules, 1975 (hereinafter referred to as 'the Rules' ). This was done under sec. 11 of the Rajasthan Agricultural Produce Markets Act, 1961. Rules 64 of the Rules prescribes the method of recruitment for superior posts. Proviso 2 to sub-rule (1) of Rule 64 provides that a person who has continuously held posts of temporary basis in the service for a period of not less than six months on January 1, 1975, shall be screened by the Selection Board referred to in Rule 65 (1) for adjudging their suitability to the posts held on January 1 , 1975 provided they possess the qualifications prescribed in the rules either for direct recruitment or for promotion, on the basis of which persons were selected for ad hoc/temporary appointments. A screening committee was then constituted and the petitioner was selected for the post of Lower Division Clerk. In spite of that selection, the petitioner continued on the post of Supervisor. On October 15, 1979, the petitioner has been recommended to be promoted as Upper Div. Clerk, and the promotion order was in passed in consequence thereof. The petitioner feeling aggrieved by the orders dated Oct. 15, 1979 and May 28, 1979, and from the threatened reversion, filed this writ petition and prayed that the following relief may be granted to him : - "that by an appropriate writ, order or direction, the orders dated 15. 10. 1979 and 28. 5. 1979 may be declared to be illegal in so far as the same relate to the petitioner and the respondents may be directed to get the case of the petitioner considered for appointment by screening on the post of U. D. C. on and from the date he is entitled to and get the case of the petitioner considered for appointment by promotion to the post of Supervisor after seniority being properly reckoned consequential to the relief aforesaid. That by an appropriate writ, order or direction the respondents may, in the meanwhile be restrained from effecting the reversion of the petitioner. Further, if in the meanwhile, for any reason the reversion of the petitioner is effected, the respondents may be directed to put back the petitioner on the post of Supervisor as if the order was never made, and the respondents may be directed to pay the petitioner all his emoluments and benefits consequential to such relief, if granted. That any other appropriate writ, order or direction which may be considered just and proper in the circumstances of the case may be issued in favour of the petitioner. That costs of the writ petition may be allowed to the petitioner. " The respondents have contested the writ petition. The case of the respondents is that initial appointment of the petitioner as a U. D. C. was illegal, null and void because of the following reasons (a) that no person could be promoted to the post of U. D. C. without the working on the post of L. D. C. (b) that no appointment could have been made except through the Employment Ex-chang (c) that the petitioner had crossed the maximum age and (d) that since the petitioner was a temporary employee, he could not have been sent on deputation nor lien could have been kept on the post in the Krishi Upaj Mandi Samiti. On the basis of the above, Mr. Mathur, learned counsel for Krishi Upaj Mandi Samiti and Mr. Bhandari, learned counsel for Marketing Board submitted that on the framing of the rules, the Screening Committee examined the case of the petitioner and found that his basic and initial appointment was illegal and, therefore, he could not have been and should not have been found suitable for the post of Upper Division Clerk. Consequently, the Committee recommended that he should be kept as an L. D. C. only.
(3.) THE above contentions of Mr. Mathur and Mr. Bhandari were sought to be repelled by Mr. Mridul on the ground that the proviso to Rule 64 (1) nowhere empowers the Selection Board to reject or declare the petitioner unsuitable on the post of Upper Division Clerk on the basis of the grounds relied upon by the respondents. It was pointed out that at the relevant time when the petitioner was appointed as a U. D. C. , there were no rules prescribed in the qualifications and whatever was required for the eligibility of a person for appointment or promotion to the post of Upper Division Clerk was duly fulfilled by the petitioner. It would be now convenient to first reproduce rule 64 (1) with the proviso for ready reference as the entire fact of the case depends upon its interpretation, - "64-1. Method of recruitment for superior posts. (1) Recruitment to the service, after the commencement of these Rules, shall be made by the following methods : - (i) By direct recruitment: (ii) By promotion; (iii) By deputation from State Government; Provided that if the Secretary, or any authority authorised in this respect, is satisfied that suitable persons are not available for appointment by either method or recruitment in a particular year, appointment by either methed, in relaxation of the prescribed proportion, may be made in the same manner as specified in these Rules; Provided further that the persons, who have continuously held posts on temporary basis in the service for a period of not less than 6 months on 1-1-1975 shall be screened by the Selection Board referred to in Rule 65 (i) for adjudging their suitability to the posts held on 1-1-1975, provided they possess the qualifications prescribed in the Rules either for direct recruitment or for promotion, on the basis of which persons were selected for ad hoc/ temporary appointments. " A plain reading of the proviso would show that the proviso contemplates the following conditions for the eligibility of the persons to be considered for suitability by the Selection Board (a) an employee must have continuously held a post on temporary basis in the service for a period not less than six months on 1-1-1975 and (b) that he should possess qualifications prescribed in the Rules either for direct recruitment or for promotion on the basis of which persons were selected for ad hoc/ temporary appointments. It is not in dispute that on 1-1-75, the petitioner was holding the post of U. D. C. on temporary basis in the service of the Krishi Upaj Mandi Samiti, Jodhpur and had completed a period of six months. ;