Prakash Gupta, J. - (1.) IN all these writ petitions the common question involved is as to whether the recruitment in the Municipalities on the encadered posts by way of transfer is carried out by the State Government without the consultation of the Rajasthan Public Service Commission (for short RPSC) as provided in proviso (i) of the Rule 7(c) of the Municipal Service Rules, 1963, in violation to the Rules made under Rajasthan Municipal Service Rules, 1963 (for short the Rules of 1963) and are hence, invalid.
(2.) IT is stated that in case suitable persons are not available from direct recruitment or promotion then the post is provided to be filled up by transfer, if Government is satisfied, in consultation with the commission, that suitable persons are not available for appointment by any of the other methods of recruitment. No direct recruitment as provided in the Rules of 1963 has been made by the State Government for encadered posts. The officers recruited by transfer on deputation in Municipal Boards are being illegally, arbitrarily absorbed as the encadered posts. The appointment by transfer in Rajasthan Municipal Services, as provided in Rule 7(c), is ultra vires to the Constitution because no percentage has been prescribed for filling the post by transfer. The process for direct recruitment has neither been initiated nor made as prescribed in the Rules of 1963 and no such procedure of direct recruitment, as provided in part IV of the Rules of 1963, has been followed by the respondents before appointment on the encadered posts. The appointment by transfer under Rule 7(c) can only be made with the consultation of RPSC when suitable persons are not available. The rights of the employees of Rajasthan Municipal Services are seriously affected if the persons from the other services are transferred and are subsequently absorbed. A reply has been filed by the respondent -State wherein it is stated that the Government can fill up the post included in the schedule to the Rules of 1963 by way of transfer if the Government is satisfied in consultation with the Commission that suitable persons are not available for appointment by either recruitment or promotion. The appointment by transfer is included in the quota of direct recruitment and therefore, the petitioners cannot raise any objection with regard to the appointment by way of transfer to the encadered posts and hence the action of the State is legal and justified and in conformity with the Rules.
(3.) IT is submitted by the learned counsel for the petitioners, Sh. Rajendra Soni, that the respondent -State can neither fill up the posts in the Municipalities, by taking the Officers on deputation, nor can it fill up the posts in the Municipalities which are to be filled in 100% by promotion. It is submitted that the State has ignored the mandate of 74th amendment to the Constitution of India, which has given constitutional status to local bodies including a Municipality. With reference to the Nagar Nigam, Jaipur, he submitted that almost all the Officers are sent on deputation and virtually, it has been converted into a Government Department. The same situation prevails in the other Municipalities also. It is submitted that no appointment on deputation can be made to the said posts from the Officers of the State Government until and unless it has been found that no suitable/eligible candidate is available for appointment to the said post by promotion.;