MADAN, J. - (1.) THIS writ petition has been filed by the above-named petitioner in the matter of Rajasthan Municipal Service Rules, 1963 and in the matter of Rajasthan Municipal (Subordinate and Ministerial Service) Rules, 1963.
(2.) THE facts giving rise to the filing of this writ petition, briefly stated, are that the petitioner who is a municipal employee serving under the Municipal Council, Kota respondent No. 1, joined the service of the Municipal Council at Kota w. e. f. 18. 6. 1968 as Sub-Nakedar. THE petitioner was subsequently promoted to the post of Lower Division Clerk on ad-hoc basis initially for a period of six months or till the persons duly selected by the Public Service Commission are made available, vide order, dated 2nd March, 1976 vide Annexure 1. It has been contended on behalf of the petitioner that D. P. C. was convened on 13th June, 1978 for considering the cases of regularisation of the respective candidates and in accordance with Rule 26 of the Rajasthan (Subordinate and Ministerial Service) Rules, 1963 ( for short Rules of 1963 ). It will be pertinent to mention here that in view of his selection by the D. P. C. respondent No. 2 to 8 were also appointed as L. D. C. s. on probation for one year w. e. f. 1. 3. 1976 vide Annexure 3. It has been further contended in the petition that respondent No. 1 issued final seniority list of the various categories of the employees vide order, dated 10. 7. 1984 and the petitioner was placed at serial No. 49 in the said seniority list; whereas respondent Nos. 2 to 8 were placed above the petitioner treating their confirmation earlier to the petitioner vide Annexure 4. Aggrieved by the impugned seniority list, the petitioner made a representation to the department to which he has received no reply till date. In the meanwhile respondent No. 1 issued another tentative seniority list on 1. 3. 1989 wherein respondent Nos. 2 to 8 were again placed above the petitioner not with standing the fact that the said respondents were confirmed w. e. f. 1. 3. 1977, whereas the petitioner was placed at serial No. 67 in the seniority list and shown as confirmed w. e. f. 13. 6. 1978 vide order, dated 1. 3. 1989 vide Annexure 5. The petitioner against submitted a representation against the aforesaid Seniority list on 4. 3. 1989 to the effect that since the petitioner was promoted as L. D. C. w. e. f. 4. 3. 1976 and as such he ought to have been assigned seniority from the date of his regular appointment i. e. 4. 3. 1976. This is not with standing the fact that the date of confirmation of the petitioner as L. D. C. was 13. 6. 1978, i. e. after other candidates, i. e. respondent Nos. 2 to 8 who were not only appointed earlier but also confirmed earlier than the petitioner which is apparently clear from the perusal of the impugned seniority list Annexure 5. It is this impugned seniority list which the petitioner has challenged in this writ petition and has prayed for quashing and setting aside the same on the ground that since the petitioner was confirmed by the D. P. C. on the post of L. D. C. w. e. f. 4. 3. 1976, i. e. , the date he joined the said post, the petitioner ought to have been given seniority on the post of L. D. C. from the date of his substantive appointment. It has been further contended by the petitioner that the cases of the candidates who have been temporarily appointed during the period 24. 11. 63 to 21. 12. 1984 and who have not been confirmed on their respective posts, shall be referred by the State Government in terms of its notification dated, 29. 9. 1976 in exercise of powers conferred under clause B of sub-section (2) of Section 227 read with Section 88 of the Rajasthan Municipalities Act, 1959 as amended by rule 8 of Service Rules, 1963 to the R. P. S. C. The Commission after considering the recommendations of the Board the service record of the individuals, their qualifications, age etc. adjudged their suitability and shall communicate its decision to the Board concerned. It has been further contended on behalf of the petitioner that the persons who were found suitable by the Commission shall be treated as substantively appointed from the date of their temporary appointment. If the candidate concerned is not found suitable by the Commission, his services shall stand terminated forthwith and the posts shall fall vacant. It has also been contended that the petitioner was confirmed by D. P. C. vide order, dated 13. 6. 1978 from 4. 3. 1976, i. e. the date he joined as L. D. C. Thus, the petitioner should have been given seniority w. e. f. 4. 3. 1976 instead of 13. 6. 1978 and he has been wrongly assigned seniority at serial No. 67; whereas he ought to have been placed at serial No. 5 just below Shri Bhanwar Singh Hada. The petitioner has also challenged the promotion ordersannexures 7,8,&9) in respect of other candidates since the said promotion orders have been passed on the basis of impugned seniority list which is contrary to rules. In the reply to the writ petition filed on behalf of respondent No. 1 it has been specifically contended that the petitioner should not have been confirmed w. e. f. 4. 3. 1976 under the provisions of the Service Rules, 1963 since the petitioner was not even entitled to be considered for promotion as L. D. C. In any case the date of substantive appointment could at best be treated as 13. 6. 1978 on which date the petitioner was confirmed. It has been further contended on behalf of respondent No. 1 that the petitioner has deliberately concealed the fact regarding issuance of final seniority list of subordinate and ministerial staff which as issued on 20. 12. 1978 and the petitioner's name appeared at serial No. 57 below respondent Nos. 2 to 8 vide Annexure R. 1. Thus,under these circumstances there was no question of giving the petitioner seniority w. e. f. 4. 3. 1976 since his substantive appointment could not be treated prior to that date, since he was given substantive appointment as L. D. C. w. e. f. 13. 6. 1978. Seniority list dated 10. 7. 1984 was issued taking into consideration the earlier seniority list dated 20. 12. 78 and the petitioner retained his position below respondent Nos. 2 to 8 and the same position has been maintained in the impugned seniority list dated 1. 3. 1989 (Annex. 5 ). Hence there was no question of placing the petitioner above respondent Nos. 2 to 8. It has further been contended in the reply that the petitioner has concealed the fact that one tentative seniority list had been issued on 12. 10. 1988 and in that seniority list also the petitioner was shown below respondent Nos. 2 to 8. The petitioner did not challenge the seniority list dated 20. 12. 1978 which has beco- me final. On the question of latches, it has been contended that even against the order, dated 15. 4. 1988 the writ petition was filed after the delay of more than 1 1/2 years which are now not open to challenge belatedly before this court. In reply to the grounds it has been contended that the order of confirmation was issued on 13. 6. 1978 and on strict interpretation of Rule 28 of Service Rules, 1963 the petitioner cannot claim seniority over respondent Nos. 2 to 8, since the orders of confirmation of the said respondents had already been issued much earlier on 11. 3. 1977 and since the petitioner was confirmed later in point of time, obviously he cannot claim seniority over respondent Nos. 2 to 8.
(3.) THE same position has been affirmed in reply to the writ petition filed on behalf of respondent No. 4, Satya Narain Vijay. This court has been informed that the validity of the seniority lists dated 20. 12. 78, 10. 7. 1984 and 1. 3. 1989 (impugned Annex. 5) had also been challenged by the petitioner before the court of Munsiff Magistrate, Kota and this fact has been suppressed from the knowledge of this court in the writ petition. This fact has been revealed in the reply to the writ petition filed by respondent No. 4 in para 8 of the said reply. It was the duty of the petitioner to have clarified the position in this regard to this court in the writ petition itself and having already availed the remedy before Munsif Magistrate, Kota,it was not open to the petitioner to have simultaneously invoked the jurisdiction of this court under Art. 226 of the Constitution of India. It has been contended on behalf of respondent No. 4 that the final seniority list was prepared on the basis of date of confirmation instead of date of substantive appointment. Since the petitioner was promoted on ad-hoc basis as L. D. C. w. e. f. 4. 3. 1976 and ad-hoc appointment cannot be treated as substantive appointment till a person has been confirmed on the said post. As per the meeting of the D. P. C. dated 13. 6. 1978 the petitioner was confirmed w. e. f. 13. 6. 1978 and hence his confirmation could not be \reckoned w. e. f. 4. 3. 1976 when he was promoted as L. D. C. on ad-hoc basis. Perusal of the record further reveals that respondent Nos. 2 to 8 were confirmed as substantive L. D. C. prior to the confirmation of the petitioner on the said post and on perusal of the record as well as the impugned seniority list I am of the considered opinion that respondent Nos. 2 to 8 are admittedly senior to the petitioner and hence the petitioner is not entitled to claim seniority over and above the said respondents. It will be pertinent to refer to Rule 28 of the Subordinate Service Rules, 1963 wherein it has been provided that seniority in each grade and category shall be determined by the date of the order of substantive appointment to the post in that grade or category provided that :- (i) the seniority inter-se of the members of the service, appointed to posts in a particular grade or category before the commencement of these rules, shall be such as has been or may be fixed by the Board; (ii) if two or more persons are appointed to the posts in the same grade or category under the same order or orders to the same date, their seniority shall be determined on the basis of their age (i. e. elder being the senior); (iii) as amongst persons appointed to a post by promotion or direct recruitment on the same date those appointed by promotion shall rank senior. In support of his contentions advanced at the bar learned counsel for the respondents placed reliance on the judgment of the Apex Court reported in Baleshwardas and Others vs. State of U. P. and Other (1), where in the question which arose for consideration of the Apex Court was regarding interpretation of section 96-B of the Government of India Act, 1919 and the relevant Rules framed in the years, 1936 for determination of seniority of the members of service. On interpretation of relevant clause (b) of the said Rules which defines member of the service "to mean a Government servant appointed in a substantive capacity under the pro- visions of these Rules to a post in the cadre of the service,it was held by the Apex Court that the touch stone is the substantive capacity of appointment if a post is temporary it was held in this context and the appointee knows that his tenure cannot exceed the post in longevity, there cannot be anything unfair or capricious in clothing him with no rights. It was further held that the temporary appointees whose appointments have received the approval of the Public Service Commission and who have run out two years on probation, must be deemed to be appointed in a substantive capacity and the order of appointment in substantive capacity is the significant starting point for reckoning seniority. It was further held in this context as under; "therefore the point from which service has to be counted is the commencement of the officiating service of the Assistant Engineers who might not have secured permanent appointments in the beginning and in that sence may still be temporary, but who, for another purposes, have been regularized and are fit to be absorbed into per- permanent posts as and when they are vacant. A seniority list should be prepared in the light of the above principles. " ;