BALIA, J. - (1.) HEARD learned counsel for the parties.
(2.) APPELLANT-petitioner in this case, which working as Class IV servant in the Municipal Council, Jodhpur, was promoted as Assistant Sanitary Inspector on 17. 4. 1984. Thereafter, by order dated 20. 11. 1991, following order was communicated to the petitioner, who was then working as Assistant Sanitary Inspector: *** This order appears to be merely a posting order, of Assistant Sanitary Inspector Shri kalla to the post of Sanitary Inspector Shri Kalla to the post of Sanitary Jamadar, who had earlier been appointed as Incharge of the Slaughter House by order dated 30. 04. 1990 (Annx. 7 ). Treating it to be an order of reversion from the post of Assistant Sanitary Inspector to Sanitary jamadar, without following the procedure for reversion, which could take place only after holding of an inquiry by way of punishment of disclosing any other reason, on account of which petitioner was asked to discharge the functions of Jamadar instead of Assistant Sanitary Inspector, for which he has been granted promotion since 17. 4. 1984, the petitioner filed Writ Petition No. 6311/91. The operation of the order dated 20. 11. 1991 was stayed and the petitioner continued to serve as Assistant Sanitary Inspector until he superannuated on 31. 5. 1997 on attaining the age of 58 years vide communication date 30. 5. 1997 (Annx. 11 ). When the matter came up before the Court on 22. 04. 1998, learned counsel for the respondents stated that since the petitioner has already retired form service, he can make proper application to the competent authority, who shall decide the point in accordance with law at the earliest. In view of this statement, petition was disposed of, with direction- ``petitioner is directed to make suitable application to the competent authority within one month from today and on receiving the same, the competent authority shall decide the same within 3 months form the date of receipt thereof. The authority shall decide the same in accordance with law by keeping in mind the fact that this Court has passed the interim order in his favour and he was allowed to work and also retired on the post of Assistant Sanitary Inspector, coupled with the fact that he was continued on the post from 1984 till January, 1992. '' In pursuance of this order, appellant-petitioner moved an application before he competent authority on May 04, 1998 stating that he has continued on the post from 1984 to 31. 05. 1997, date on which he retired; therefore, he may be allowed salary and other benefits of the post of Assistant Sanitary Inspector right from 1984 and thereafter to make necessary fixation including fixation and payment subsequent to period when regularisation was done, till his retirement. This application was rejected on 20. 07. 1998 vide Annx. 14 by holding that at the relevant time when petitioner was promoted on the post of Assistant Sanitary Inspector, he was lower in seniority and could not have been so promoted and, inter alia, on the ground that petitioner-appellant was first appointed for the period of one year on 17. 4. 1984 on and hoc basis as Assistant Sanitary Inspector and by order dated 5. 11. 1986, said order was cancelled and he was posted on his original post of jamadar. However, reply also stated that after order dated 5. 11. 1986, he was again posted against vacant post of Assistant Sanitary Inspector with effect from 23. 11. 1986 for a period of 6 months. There is nothing on record that after 23. 11. 1986, appellant-petitioner was reverted back on the post of Jamadar, either from the material produced before the Court or otherwise. What appears is that the interim order passed by the Court came to an end by decision on 22. 4. 1998 and since in the case of Alla Beli, who was also a jamadar and was appointed against vacant post of Assistant Sanitary Inspector on 23. 12. 1986, was paid in the pay scale applicable to his original post and who has since retired, drawing retrial benefits in the same pay scale; it was concluded that the appellant-petitioner can also not be granted the benefits of higher pay scale of Assistant Sanitary Inspector and consequential retrial benefits on that basis.
(3.) BEFORE the learned Single Judge, it was also pointed out by learned counsel that retirement age of Jamadar is 60 years and of Assistant Sanitary Inspectors and officers is 58 years and, appellant-petitioner has been superannuated at the age of 58 years by treating him to be working on the post of Sanitary Inspector Gr. II, as is apparent from the documents produced along with the writ petition. However, learned Single Judge rejected the contention founded on the difference in retirement age in the case of Assistant Sanitary Inspector and in case of Jamadar, by holding that since plea was not raised in the earlier petition, referred to above, appellant-petitioner can not now raise this plea on the principle of constructive res judicate and then agreed with the conclusion of the competent authority. It seems that appellant-petitioner has not averred that the petitioner was recommended by the Board to the Commission along with service record of the petitioner, containing details of his qualification etc. to Adjudge his suitability and after receipt of the recommendations of the Board, the Commission has communicated its decision regarding suitability on the promotion post of Assistant Sanitary Inspector and therefore, he should be treated as substantively appointed/promoted from the date of his temporary/adhoc promotion/appointment on the post. Learned Single Judge also stated that because such promotion amounts to backdoor promotion, obtained by the petitioner, is is not entitled to any benefits. ;