KESHOTE, J. - (1.) BRIEFLY stated the facts giving rise to filing of this revision petition under Section 115 of the C. P. C. are that the plaintiff respondent No. 1 filed a civil suit along with the application under Order 39 Rules 1 & 2 of the C. P. C. on 21st of September, 1999 in the Court of Civil Judge (Sr. Div.) Bharatpur. It is pleaded in the suit that he was appointed as Junior Accountant on 19th of June, 1976 in the Municipal Council, Bharatpur. He was promoted as Accountant with effect from 16. 9. 1988 and now he is working as Assistant Accounts Officer with effect from 1. 7. 1999.
(2.) IT is submitted that the services of employees and officers of the Municipalities are governed by the Rajasthan Municipal (Subordinate & Ministrerial) Service Rules, 1969 (for short, `the Rules, 1969') and Rajasthan Municipal Service Rules, 1963 (for short, the Rules, 1963' ). In the relevant service rules though there is a provision that the post of Assistant Accounts Officer is to be filled in 100% by promotion, but the defendants in total violation of the mandatory provisions of the rules has not made any promotion to the post of Assistant Accounts Officer from a long time. IT has further been stated that Shri Chandra Bhan Gupta was working on the post of Assistant Account Officer on deputation prior to 1. 7. 1999. After his transfer elsewhere the said post became vacant and the plaintiff was given charge of that post and since then he is continuously holding the same. IT is stated that the defendants are trying to disturb the plaintiff by filling the said post by deputation or transfer. IT has further been submitted that the plaintiff is fully eligible for promotion on the post of Assistant Account Officer on regular basis and thus this post cannot be filled in either by deputation or by transfer. The prayer has been made to restrain the defendants not to disturb the plaintiff from the post of Assistant Accounts Officer. Further prayer is made for a direction to them not to fill the post of Assistant Accounts Officer either by transfer or deputation and to maintain status quo till the final decision of the suit. The application for temporary injunction filed by the plaintiff respondent No. 1 was contested by the defendant petitioner by filing detailed reply thereto. The defendant petitioner has not denied that the plaintiff is working on the post of Assistant Account Officer. What it is stated that due to transfer of Shri Chandra Bhan Gupta from Municipal Council, Bharatpur the charge of the said post was given the plaintiff in addition to the charge of the post of Accountant and for which extra remuneration at the rate of 6% of the basic pay is being paid to the plaintiff. It is admitted that the post of Assistant Accounts Officer is to be filled in hundred percent by promotion. Where the eligible persons for promotion are not available, the Government is free to fill in the said post by way of deputation or transfer. The learned trial court on 14th of July, 2000 dismissed the application for temporary injunction filed by the plaintiff under Order 39 Rule 1 and 2 read with Section 151 of the C. P. C. The plaintiff carried the matter in appeal before the District Court, Bharatpur, which was decided by the learned Additional District Judge No. 1, Bharatpur vide its order dated 21. 9. 2000. The order of the learned trial court was set aside and the defendants are directed not to disturb the plaintiff respondent from the post of the Assistant Accounts Officer and not to fill the post by deputation till final decision of the suit. Thus, this revision petition. Shri Mohd. Rafiq, Additional Advocate General, appearing on behalf of the defendant petitioner, contended that the defendant petitioner is the Director, Treasury and Accounts, Rajasthan, Jaipur who maintains a unified cadre of Junior Accountant, Accountant and Assistant Accounts Officers which cadre work as a pool to be deployed in various Government Departments as also the Local Bodies like Municipality, Urban Improvement Trust, Jaipur Development authority and different Panchayat Samities. The Government has decided as a matter of policy that accounts cadre is separately constituted under the defendant petitioner so that their expertise is utilized in all the Department whether Government or Semi Government, to man the post of Junior Accountant, Accountant and Assistant Accounts Officer. In pursuance of the Government policy the post of Assistant Accounts Officer in the Municipal Council, Bharatpur has always been held by the Assistant Accounts Officer from the defendant petitioner, on deputation. The plaintiff has no indefeasible right muchless a fundamental right to claim that the post of the Assistant Accounts Officer cannot be filled in by deputation of an officer of the defendant petitioner Department. It has next been contended that the learned first appellate court has failed to appreciate correctly sub-rule (2) of Rule 26 of the Rules, 1963 which confers the power of appointment on the post of Assistant Accounts Officer to the Director Local Bodies and the view taken by it that the Municipal Council, Bharatpur had correctly declined to accept the appointment on deputation is wholly erroneous and contrary to the said provision. Shri R. D. Rastogi, the learned counsel for the plaintiff supported the order of the learned first appellate court. It is submitted that the defendant petitioner cannot thrust upon the Municipalities to take the Officer on deputation or cannot fill a post in the Municipalities which to be filled in hundred percent by promotion, by transfer of the Officer from the Government. It has next been contended that the State of Rajasthan and more particularly the defendant petitioner has altogether ignored an important fact that by 74th amendment of the Constitution of India, the Municipality is not a creature of the statute but it is a constitutional authority. Shri R. D. Rastogi, the learned counsel for the plaintiff, submitted, that the State Government has made this constitutional authority its own department. Making reference to the Nagar Nigam, Jaipur, he submitted that almost all the officers are sent on deputation and virtually it is a Government Department. That also is the position in the other Municipalities. It is submitted that the post of Assistant Accounts Officer is to be filled in from the officials of the Municipal Ministerial services and it cannot be filled in by deputation or by transfer of an Assistant Accounts Officer of the State service. Replying to the reference made by Shri Mohd. Rafiq, the learned Additional Advocate General to the policy of the Government, Shri R. D. Rastogi submitted that this policy has no legal force. It cannot nullify the provisions of the Statute.
(3.) I have given my thoughtful and anxious consideration to the rival contentions raised by the learned counsel for the parties, perused the entire record of the revision petition and orders of the courts below. Before the rival contentions advanced by the learned counsel for the parties are considered, it is appropriate to make the reference of the relevant provisions of the Rajasthan Municipal Service Rules, 1963 (for short, `the Municipal Service Rules') and the Rajasthan Municipal (Subordinate & Ministerial Service) Rules, 1963 (for short, `the Rules, 1963' ). Rule 7 of the Municipal Service Rules provides the methods of recruitment. Vacancies in the service after first appointment by way of integration have been made, shall be filled in the following manner, (a) by direct recruitment as specified in column 3 of the schedule, or (b) by promotion from posts as specified in column 4 of the schedule, or (c) by transfer. ;