KESHOTE, J. - (1.) PETITIONER Kamal, a Safai Karamchari in the Municipal Board, Jhalawar (hereinafter shall be referred to as ``the Board''), has filed this writ petition under Article 226 of the Constitution of India and praying for quashing and setting aside the order dated 18. 08. 1993 (Annexure-10) whereby the services of respondent No. 3 Rajesh Gupta have been regularised on the post of Driver with effect from 18. 8. 1993.
(2.) THE facts of the case are that the petitioner was initially appointed on the post of Safai Karamchari on daily wages. Vide order dated 8. 2. 1982 (Annex. 1) he was given regular pay scale by appointing him on temporary basis for a period of two years as Safai Karamchari. His services were later on confirmed by the Board. THE petitioner knows driving and holds a valid driving licence issued on 4th of July, 1983 by the Trans- port Authority for driving light motor vehicle, transport vehicle and tractor. THE petitioner alleged that the Board has taken from him from time to time the work of driving tractor. His work as a driver was highly appreciated by his superiors and for this he has produced a certificate issued by the Executive Officer of the Board in his favour. The respondent No. 2 was appointed on 8. 5. 1991 as Driver on daily wages basis. It is the case of the petitioner that there was a direction by the Director, Local Bodies, Jaipur under order dated 16. 12. 1991 to dispense with the services of those employees who were appointed after 26. 4. 1989 but still the respondent No. 3 was allowed to continue to work. It is stated that the State Government imposed a ban upon any kind of appointment in the Board vide order dated 4. 4. 1990 and, thus the appointment given to respondent No. 3 is illegal. It is the grievance of the petitioner that he is qualified for the post of Driver and he being the employee of the Board should have been given promotion of the post of Driver. In the year 1988 a vacant post of Driver was available in the Board and the petitioner submitted his application on 22. 12. 1988 for appointing him on that post. In the year 1990-91 one post of Driver was sanctioned and the petitioner made a request to the Chairman of the Board to appoint him on that post. Instead of appointing the petitioner, the Board under its order dated 18. 8. 1993 regularised the services of the respondent No. 3 on the post of Driver, who was working on daily wages basis. As per the case of the petitioner, this has been done ignoring the claim of the petitioner for appointment on the post of Driver. The petitioner gave a notice for demand of justice before filing the present petition; that notice was replied by the Board stating that the petitioner was appointed on the post of Safai Karamchari and the post of Driver was sanctioned in that budged 1990-91 and respondent No. 3 was appointed as fire brigade driver and no post of Driver was vacant in the Board. It is also denied that the petitioner was working as a Driver. It has next been submitted that the respondent No. 3 was qualified for appointment as a fire brigade driver whereas the petitioner was not possessing the requisite qualifications for the post. There is no provision for promotion to the post of Driver from the post which the petitioner holds. After receipt of the reply to the notice for demand of justice, the petitioner filed the present petition.
(3.) REPLY to the petition has been filed both by respondent No. 1 as well as the respondent No. 3. From the reply of the respondents I find that there first defence is that the petitioner was not having the requisite qualifications for the post of fire brigade driver. In the year 1990-91 the post of fire brigade driver was sanctioned and as the respondent No. 3 was possessing the requisite qualification for this post he accordingly was given the appointment. There is no provision for promotion to the post of fire brigade driver from the post of Safai Karamchari. From the reply filed by the respondent No. 3 one thing is clear that regularisation of the services of respondent No. 3 on the post of fire brigade driver was not made in accordance with the recruitment Rules. Not only this no selection process was adopted. Learned counsel for the petitioner raised following contentions in support of his petition:- (i) The appointment of respondent No. 3 on daily wages itself was bad as there was total ban on appointments in the Board; (ii) as his initial appointment was bad, no question does arise of regularisation of his services as a fire brigade driver; (iii) the petitioner work on the post of Driver; (iv) he possessed the driving licence and, therefore, he should have been given appointment on the post of Driver; (v) the respondent No. 3 was much junior to the petitioner and ignoring the claim of the senior the junior has been promoted/appointed on the post of Driver; (vi) the petitioner is a member of scheduled caste being `harijan' and not a single post is reserved for this category in the Board; (vii) the Board while appointing the respondent No. 3 on the post of Driver has not followed the procedure for direct recruitment of procedure prescribed for recruitment by promotion and thus the appointment of respondent No. 3 is bad. ;