BALIA, J. - (1.) BY order dated 7. 10. 1996, the Division Bench of this Court has ordered that S. B. Civil Writ Petition No. 277/95 be heard alongwith this appeal, which was the second writ petition filed by the petitioner for the like reliefs.
(2.) THIS writ petition is directed against the order passed by the respondent-Municipality dated 9. 1. 1995 (Annex. 5), by which the petitioner's service as Assessor were not extended to which he was appointed on temporary basis by order dated 13. 11. 1993, under Rule 27 of the Rajasthan Municipal Subordinate and Ministerial Service Rules, 1963 (hereinafter referred to as `the Rules of 1963' ). The background of the case is that as per Rule 8 of the Rules of 1963, the ratio of filling up of vacancies by direct recruitment and by promotion shall be 50:50 unless otherwise provided for. The post of Assessor is included in Subordinate Services in Revenue segment of services under Municipality under Rule 6 of the Rules of 1963. The respondent-Municipality was not determining the vacancies of Assessor every year, as per Rule 10 of the Rules of 1963 for direct recruitment and was not filling those vacancies. This led to filing of S. B. Civil Writ Petition No. 3154/89 by the present petitioner seeking a writ of mandamus to the respondents for determining the year-wise vacancies and consider his case for appointment as and when eligible for the post of Assessor. The said writ petition was allowed by the learned Single Judge vide order dated 7. 10. 1991 directing the Municipal Council to determine the year-wise vacancies in terms of Rule 10 of the Rules of 1963 and consider the case of the petitioner against the vacancies so determined and if the petitioner has become over-age because of non-determination of the vacancies, the age factor should not come in the way of considering his candidature. The exercise was directed to be completed within a period of three months from the date of judgment. However, it appears that the said exercise was not carried out within the period of three months. Notwithstanding filing of appeal, in appeal no interim order was passed by the Court. This led to filing a contempt petition by the present applicant- petitioner. The said contempt petition in S. B. Civil Writ Petition No. 3154/89 was got dismissed by the alleged contemnors on 10. 8. 1994 by representing that since the petitioner has been given promotion on the post of Assessor, the direction was given to determine vacancies, which shall be determined, no action against the contemnors was required to be taken. This order appears to have been made by the Court on the representation made to it by the respondents in contempt petition which seems to be misleading and incorrect as will be evident from the facts and circumstances to be noticed presently. It is apparent that by the letter of appointment given to the petitioner, he was given appointment for a period of one year temporarily. however, the background of the case, as noticed by us above, clearly gives out that the respondents have acted clandestinly in dealing with the petitioner.
(3.) IN writ petition No. 3154/89, the Court has found as a fact that vacancy against direct quota for 1982 was not filled by the Department and the operative part of the order dated 7. 10. 1991 reads as under:- " Therefore, in the facts and circumstances of this case the writ petition is allowed and it is directed that the respondents shall determine the vacancies in terms of Rule 10 of the Rules of 1963 and fill the post of the Assessor in accordance with law. IN case petitioner has by now become over-age, then the case of the petitioner should be considered as because of the failure of the respondents not to determine the vacancies and make the recruitment, petitioner should not be placed in disadvantageous position. The vacancies should be determined in accordance with law and recruitment should be made within a period of 3 months from today. " It is clear that direction was to determine the vacancies in terms of Rule 10 and fill the post of Assessor in accordance with law. In the context of controversy raised and decided it relates to determination of vacancy for direct recruitments and for recruitments against such vacancies, the Court has itself found that against quota of 1982 vacancy, no recruitment was made While the order passed on 1081994 speaks about giving promotion to petitioner and not of temporary appointment upto December, 1994 as if the petitioner was regularly promoted The direction was to determine the year-wise vacancy for direct recruitment on the post of Assessor or make recruitment against such post by not placing petitioner at a disadvantageous position indicates consideration for regular appointment against permanent post by direct recruitment Yet it was not stated that appointment was only for a period to expire shortly. Significantly it was noticed by the Court that direction was to determine vacancy. it was not stated before the Court that vacancy had been determined way back in 1992, much before the order was passed in 1994. ;