GARG, J. - (1.) THE above writ petitions are being decided by this common order as in both the writ petitions facts are similar in nature and the questions raised are also similar. Facts of Writ Petition No. 1164/92
(2.) THIS writ petition under Article 226 of the Constitution of India has been filed by the petitioner against the respondents on 25. 2. 92 with a prayer that by an appropriate writ, order or direction the orders dtd. 5. 10. 91 (Annex. 6) and 7. 10. 91 (Annex. 5) whereby respondents No. 4 and 5 have been promoted be quashed petitioner for promotion to the post of Executive Officer, Municipal Board Gr. II in the post falling vacant after December, 1976 and for the post of Executive Officer, Gr. I, Municipal Board on the post falling vacant after December, 1981 and the State Government may be directed to allow the petitioner the emoluments of the post of Executive Officer Gr. II, Municipal Board with effect from 25. 4. 81 and any other appropriate writ, order or direction be issued the may be deemed expedient for the ends of justice. It arises in the following circumstances: i) The petitioner was appointed as Executive Officer Class III, Municipal Board vide order dtd. 9. 8. 71 (Annex. 1) passed by the Director, Local Bodies in exercise of powers conferred under Rule 27 of the Rajasthan Municipalities service Rules, 1963 (hereinafter referred to as the Rules of 1963 ). ii) The Rules of 1963 came to be amended by the State Government vide notification No. F. 10) (1) LSG/56 dated 10. 12. 76 published in the Rajasthan gazette dtd. 23. 12. 76 published in the Rajasthan gazette dtd. 23. 12. 76. Through that amendment, Rule 7 was amended and proviso (v) to Rule 7 was introduced and same reads as under:- " (v) that the names of existing Executive Officers Class III appointed by direct recruitment vide Rule 27 temporarily or in officiating capacity shall be referred to the Commission to adjudge their suitability according to the qualifications etc. prescribed at the time of their appointments and their appointments shall be terminated immediately in case they are not adjudged suitable. " iii) Thus, proviso (v) to Rule 7 of the Rules of 1963 provides that the service of the persons who were not adjudged suitable, their services were to be terminated. (iv) The proviso (v) to Rule 7 of the Rules of 1963 necessarily implied that the names of the persons who were required to be adjudged under the said proviso by the Rajasthan Public service Commission should be sent immediately by the Government to the Rajasthan Public Service Commission. (v) The petitioner was referred to the Rajasthan Public Service Commission in the year 1980. The Commission, however after doing the needful adjudged the petitioner suitable. Thereupon the respondent No. 2 passed an office order No. F. 18/a/iii/dlbk/69/ii/487 dtd. 13. 2. 81 (Annex. 2) ordering that since the persons named therein including the petitioner have been adjudged suitable by the Rajasthan Public Service Commission, they are confirmed with effect from the date of their being adjudged suitable i. e. 20. 12. 80. NOTE: From perusing the writ petition, mainly this order dtd. 13. 2. 81 (Annex. 2) has been challenged, though in prayer this aspect is missing. vi) By order dtd 13. 2. 81 (Annex. 2), the Government confirmed the petitioner on the post of Executive Officer Grade III with effect from 20. 12. 80. vii) The case of the petitioner is that even in the case where the initial appointment is not may by following procedure laid down by the Rules, but the appointees continued in the post uninterruptedly till regularization of his service in accordance with the Rules, the period of officiating service is to be counted. Hence, service of the present petitioner should be counted from the initial appointment i. e. from 9. 8. 71. viii) The further case of the petitioner is that in the alternative when the Rule 7 of the Rules of 1963 was amended with effect from 23. 12. 76, therefore, he should have been confirmed from that date and for that he has placed reliance on Rule 29 of the Rules of 1963 also. Hence the present writ petition with the above prayer. ix) The order Annex. 2 dt. 13. 2. 81 has also been challenged by the petitioner on the ground that the Rajasthan Public Service Commission in its order dt. 20. 12. 80 specifically mentioned that the petitioner was found suitable with effect from 24. 4. 71. From this point of view also the order dt. 13. 2. 81 (Annex. 2) is wrong and cannot be sustained. Reply to the writ petition was also field by the respondents and in the reply it has been submitted that since initial appointment of the petitioner was on temporary basis under Rule 27 of the Rules of 1963 and since after amendment in Rule 7 of the Rules of 1963 and since after amendment in Rule 7 of the Rules of 1963 in the year 1976, the case of the petitioner was to be referred to the Commission for adjudging his suitability and the Commission for adjudging his suitability and the Commission vide order dtd. 20. 12. 80 found him suitable and therefore, the petitioner was confirmed with effect from 20. 12. 80 and, therefore, seniority which was assigned to the petitioner was according to Rules. Hence, the writ petition filed by the petitioner be dismissed. The learned counsel for the petitioner has raised following submissions: i) That the petitioner should be assigned seniority from the date when he was initially appointed i. e. 9. 8. 71 through Annex. 1 because the appointment was described as officiating one and it was made against the vacant post and further more, it was made under Rule 27 of the Rules of 1963, therefore, the petitioner should not be denied the benefit of his officiating service which he rendered. ii) That giving seniority to the petitioner from the date when he was regularized in service after he was found suitable by the RPSC with effect from 20. 12. 80 is wrong and contrary to law. iii) That in the alternative, there was no jurisdiction for not effecting confirmation of the petitioner with effect from the date of commencement of the amendment made in Rule 7 of the Rules of 1963 with effect from 23. 12. 76 as with effect from that date, his case was liable to be immediately referred to the Commission. I have heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents and gone though the material available on record.
(3.) THERE is no dispute on the point that through order Annex. 1 dtd. 9. 8. 71 the petitioner was appointed as Executive Officer Grade III on officiating basis and further that appointment was for a period of six months and till the persons duly recruited from Rajasthan Public Service Commission were made available. Sub-clause 2 of Rule 27 of the Rules of 1963 reads as under:- " No appointment made under sub-rule (1) shall be continued beyond a period of one year without referring it to the Commission for their concurrence and shall be terminated immediately on their refusal to concur. " Thus Rule 27 of the Rules of 1963 clearly provides that such an appointment which is officiating in nature shall not be continued beyond a period of one year without referring it to the Commission for their concurrence and if that concurrence was not obtained, it shall be terminated immediately one their refusal to concur. In the present case, concurrence of RPSC was obtained in the year 1980 with effect from 20. 12. 80 and apart from this, the petitioner was continued in service even after expiry of period of one year without further extension of period of his service and without any concurrence of the Commission upto 20. 12. 80. Thus, appointment of the petitioner upto 20. 12. 80 cannot be termed as according to Rules of 1963 and specially after expiry of period of one year, the appointment of the petitioner in all respects would be against the officiating appointment is only one year and after expiry of one year, the appointment of such person becomes irregular one and thus it can be concluded that appointment of the petitioner after expiry of one year from the date of initial appointment becomes irregular and it became regular only when he was found suitable by the Rajasthan Public Service Commission with effect from 20. 12. 80. ;