N. C. SHARMA, J. - (1.) THIS order will decide Civil Writ Petitions No. 2305/ 1989,2278/1989, 2224/1989 and 2109/1989, by a common order because substantially they arose in the similar back-ground.
(2.) FACTS leading to the filing of Civil Writ Petition No. 2305/1989 are that the petitioner, Kamlesh Chand Meena had been adjudged suitable for regular appointment on the post of LDC in Municipal Council, Ajmer by an order dated February 23, 1985 although he initially came to be appointed on this post in the year 1979. The petitioner alleges that in the year 1984 he was directed to work on the post of Revenue Inspector and he continued to work on that post till the year 1986-87. Although, the petitioner worked on the post of Revenue Inspector, he was not paid the salary and benefits admissible to the post of Revenue Inspector. By another order dated December 12, 1988, the petitioner directed to work on the post of Revenue Inspector and since then he was working on that post. However, the Administrator, Municipal Council, Jaipur issued an office order on May 12, 1989 by which it was inter alia directed that if employees of Municipal Council were working on posts other than the one on which they were appointed, they would be relieved from the higher post held by them. This order was modified by an order dated May 20, 1989. Even after the passing of these two orders, the petitioner continued to work on the post of Revenue Inspector. But under yet another order dated June 8, 1989 passed by the Commissioner (Civil Line Zone), Municipal Council, Jaipur, the earlier aforesaid order dated December 28, 1988 was cancelled which resulted in non-continuance of the petitioner on the post of Revenue Inspector. The order dated June 8, 1989 was passed without affording any opportunity of hearing to the petitioner. It is alleged that the petitioner fully possessed the qualifications required for being considered for promotion on the post of Revenue Inspector. Presently, there were nine posts of Revenue Inspectors available for being filled by promotion but the respondents have not taken steps for filling the posts of Revenue Inspectors by promotion in accordance with the Rajasthan Municipal (Subordinate and Ministerial) Service Rules, 1963. The petitioner seeks quashing of the orders dated May 12, 1989 May 8, 1989 and June 20, 1989 (Annexures 3,4 and 5), directions for continuing him on the post of Revenue Inspector with consequential benefits and payment to him of arrears of salary of this post. Respondents No 3 and 4 have filed counter to the writ petition. They have pleaded that from time to time, the petitioner was asked to do the work of Revenue Inspector looking to the exigency of the work. By order dated December 28, 1988, the petitioner was asked to do the work of Revenue Inspector in addition to the duties of his original work of Lower Division Clerk. The petitioner had never been appointed on the post of Revenue Inspector and merely his having worked on the said post did not entitle him to be appointed as Revenue Inspector either by promotion or direct recruitment. The impugned orders are said to be legal and valid and further that there has not been breach of any rules or regulations or that of any constitutional provision. Coming to the next Writ Petition No. 2278/1989 filed by Chiranji Lal, his case is that he was initially appointed on the post of Beldar on November 7, 1977 in the Motor Garage of Municipality, Jaipur. He was made permanent by an order dated March 31, 1981, issued by the Commissioner, Municipal Council, Jaipur. Thereafter, he was transferred to the General Provident Fund/ Provident Fund Branch for doing accounts work of that Branch under an order dated January 3,1987, issued By the Commissioner (Headquarters ). Municipal Council, Jaipur. This order was issued after approval from the Administrator of the Municipal Council. Then by an order dated July 14, 1987 the petitioner had been allotted the work of octroi, garden, receipts and despatch in the General Provident Fund and Provident Fund Branch. The petitioner passed the competitive examination in the year 1986 held by the Rajasthan Public Service Commission for the post of Revenue Officer Gr-II and he was called for interview and was selected for the said post, but his name was kept in the reserve list at Item No 4 The petitioner states that he was fully qualified and eligible for promotion as well as appointment on the post of LDC under the Rajasthan Municipalities (Subordinate and Ministerial Staff) Rules, 1963 (for short hereinafter the "rules") and he has also the requisite experience on the post of LDC However, by an order dated May 12, 1989, issued by the Administrator, Municipal Council, Jaipur, it had been directed to all the subordinate officers of the Municipalities that the person who had been appointed on other post and work is being taken from them of other post, they may be relieved immediately to join their principal post. The petitioner has prayed for a writ, order or direction as against the respondents to direct them to grant him the pay scale and service conditions pertaining to the post of LDC and further to regularise his service on the post of LDC. So far as Babu Lal petitioner in Writ Petition No. 2224/1989 is concerned ' he was appointed as Class IV employee by the Municipal Council, Jaipur on April 14 1978. He possessed matriculation examination Although, he was appointed as Class IV employee, but he was required to perform the duties of the post of LDC. By the same order dated May 12, 1989 of the Administrator, Municipal Council, Jaipur the petitioner is also being relieved and, therefore, he sought a direction as against the respondent to continue him on the post of Lower Division Clerk with all consequential benefits. Last of the writ petition is of Matadeen Sharma, who had been appointed as Beldar in the pay scale of Rs. 240-3-270-4-290 by an order dated March 19 1980 in the Municipal Board, Jaipur and he was confirmed on the said post on November 22, 1984. However, by an order dated August 24, 1981 he has been discharging the duties as Establishment Clerk/ldc. Thereafter he was transferred "to Provident Fund Section. Similarly, he feels aggrieved by the order of the Administrator, Municipal Council, Jaipur, dated May 12, 1989 and prays for continuance on the post of LDC, with all consequential benefits.
(3.) IT would appear from the factual narration of the facts alleged by the respective petitioners that while Kamlesh Chand Meena had been appointed to the post of Lower Division Clerk in the Municipal Council, Jaipur, but he was reauired to work on the post of Revenue Inspector. Respondents No. 3 and 4 in their counter has admitted that by order dated December 28, 1988, the petitioner was asked to do the work of Revenue Inspector in addition to the duties of his original post of LDC. That order was passed by the Commissioner, Municipal Council, Jaipur. The only case set up by respondents No. 3 and 4 is that the petitioner had never been appointed on the post of Revenue Inspector and his mere working against the post of Revenue Inspector does not entitle him to claim salary of that post. In relation to Chiranji Lal petitioner, it is not disputed by the respondents that he had been appointed on the post of Beldar and it is also admitted that he was transferred from Motor Garage to General Provident Fund/provident Fund Branch for doing accounts work and later on he was allotted the work of octroi, garden, receipt and despatch clerk The respondents have pleaded that a large number of persons were working against the post on which they had not been appointed and this was leading to serious complication. Consequently, the order dated May 12, 1989 was issued by the Administrator requiring that such persons should work on their principal post. IT is said that no legal rights of the petitioner were infringed by the impugned order. As regards Babu Lal petitioner in S. B. Civil Writ Petition No. 2224/1989, respondents No 3 and 4 have pleaded that the petitioner had not given details of the persons who had been promoted as LDC without possessing the requisite qualifications. IT is stated that the petitioner was never appointed on the post of LDC and he has never held that post and, therefore, he has no right to the said post. In Matadeen Sharma's writ petition, although power was filed by Mr. J. K. Singhi on behalf of the Administrator, Municipal Council, Jaipur, but in this case, an interim stay was granted by this Court on May 25, 1989 to the effect that the petitioner will perform the same duties which he was already performing. The respondents have filed an application under Art. 226 (3) of the Constitution of India for vacation of the stay order. IT has been mentioned by the respondents that the petitioner had been appointed as Beldar. However, it is admitted that he was transferred and posted by an order dated August 24, 1987 as LDC in the establishment section. Thereafter he was allotted the work in Establishment Section and Provident Fund Section and he was continuing to work there. However, it is assorted that the services of the petitioner cannot be regularised on the post of LDC against rules. The impugned orders are said not to be arbitrary, illegal or unjust. Since the petitioner was not holding the post of LDC on regular post, there was nothing wrong in asking him to discharge the function of his original post by order dated May 12, 1989 and the subsequent order dated May 20, 1989. From the narration of facts in these four writ petitions, it would appear that all these petitioners had been appointed in Municipal Council, Jaipur on lower posts, but they were required to perform the duties of higher posts. Kamlesh Chand Meena, appointed as LDC, was directed to work on the post of Revenue Inspector, which was a higher post. Chiranji Lal was appointed is Beldar, but he was required to work on the post of LDC in various sections of the Municipal Council, Jaipur. Babu Lal was appointed as Class IV employee, but he was required to work on the post of LDC. Matadeen Sharma was appointed as Beldar. From him, also, work of the post of LDC was taken by the Municipal Council, Jaipur. Sec. 302 of the Rajasthan Municipalities, 1959 provides that as soon as may be after the commencement of the Act, there shall be created and constituted by the State Government for the whole of the Slate a Service designated as the Rajasthan Municipal Service. The Service shall be divided into different categories, each category being sub-divided into different grades, and shall consist of officers, administrative as well as technical. Then sec. 303 states that for the purpose of creating and constituting the Service, the State Government may, by notification in the Official Gazette (a) divide municipalities in the State into classes according to their income and other circumstances; (b) transfer a municipality from one class to another class. Sec 304 states that upon the creation and constitution of the Service, appointments to all posts therein shall, subject to any rules under sec. 297 and notwithstanding anything in the rules under section 88, be made in accordance with the provisions of section 307 (a) by direct recruitment (b) by promotion, or (c) by transfer. Section 307 deals with Administrative Officers, like Commissioner,executive Officer and Secretary. Sec. 308 provides that subject as aforesaid the State Government may appoint a Health Officer, a Municipal Engineer, a Revenue Officer, or any other officer for the performance in a Municipality of such special or technical duties under the Act as may be prescribed. Sec. 309 deals with determination of strength of the staff. The Municipal Council can by resolution determine the number of assossors, sanitary inspectors, other inspectors, and subordinate officers, accountants and ministerial establishment and other servants required for the municipality. This has to be done subject to any general or special direction issued by the State Government. Sec. 310 of the Act is a crucial section and it inter alia provides that a sanitary inspector or other inspector or subordinate officer or accountant or a member of the ministerial establishment shall be appointed by the Municipal Council. This is subject to the provisions of Sections 304 and 306 of the Act and of any rules under section 297 or any other provisions of this Act. In pursuance of the powers conferred by Sec. 297, the State Government made the Rajasthan Municipal (Subordinate and Ministerial Service) Rules, 1963. Thus, in subordinate service, various posts like Revenue Inspector and the ministerial service posts like Lower Division Clerk were included. Methods of recruitment to those posts is provided by Rule 8 of the Rules (a) by appointment in the lowest grade of each category; (b) by promotion from the lower to a higher grade in the same category; (c) by transfer of persons holding corresponding posts under a Board and (d) by taking an official on deputation from the State Government. The ratio of filling up the vacancies by direct recruitment and promotion is to be 50:50 unless otherwise provided. Direct recruitment is made through the commission constituted by the Government for the purpose of direct recruitment to the Service. Promotion is made by Promotion Board constituted in the manner provided by Rule 23. Revenue Inspector and Ministerial Establishment stall is appointed by the Municipal Council and, thus, the Municipal Council is the Appointing Authority for this purpose. ;