RAFIQ, J. - (1.) UNDER challenged in this writ petition is the order dated 20th March, 2002 passed by the respondent No. 1 and the consequential order dated 7th May, 2002 passed by the respondent No. 2 whereby the petitioner's earlier absorption on the post of LDC was changed and he was ordered to be absorbed as Sahayak Parcha Vitarak.
(2.) THE petitioner entered in the services of the respondent Municipal Board, Sirohi as Sub Nakedar having been appointed as such on 12th June, 1989. He was later confirmed on this post vide order dated 13th July, 1990. When octroi was absolished by the State Government with realization of octroi in different Municipalities of the State were declared surplus and thus the petitioner was also rendered surplus. THE government however directed their absorption/adjustment on various posts in different Local Bodies of the State. THE Chairman and the Executive Officer of the Municipal Board, Sirohi at this stage by letter dated 20th August, 2001 requested the Director, Local Bodies for Rajasthan, Jaipur for permission to absorb the petitioner on the post of LDC. Requisite qualification for regular appointment on the post of LDC is Matric or its equivalent qualification which the petitioner possessed. THE Municipal Board, Sirohi in its general meeting held on 31st August, 2001 passed a resolution thereby deciding to absorb the petitioner on the vacant post of LDC and the matter was referred to the Government for its approval. THE Director, Local Bodies of the State by his communication dated 8th February, 2002 granted approval for absorption of the petitioner on the post of LDC and accordingly the respondent Board passed an order dated 25th February, 2002 whereby the petitioner was appointed on the post of LDC and he joined as such on the same date. The Under Secretary to the Government in its department of Local Self Government by his order dated 20th March, 2002 cancelled the earlier absorption order of the petitioner as LCD made by the order dated 25th February, 2002. Pursuant to this order respondent Board passed an order on 7th May, 2002 whereby the petitioner was now ordered to be absorbed on a lower post of Sahayak Parcha Vitarak. It is that background of the matter that the present writ petition has been filed with the prayers extracted above. The respondents have contested the writ petition and supported the impugned orders. According to them, the employees who were declared surplus consequent upon abolition of octroi were required to be absorbed on equivalent post as per the policy decision of the government. Since the petitioner was working on the post of Sub Nakedar, his earlier absorption on higher post of LDC was legally not correct. He has now been absorbed on the post of Sahayak Parcha Vitarak which is an equivalent post. The decision of the Government was based in over all public interest so that large number of employees in the different municipalities were not rendred jobless and therefore they were decided to be absorbed on equivalent post in different local bodies of the State, keeping in view their eligibility qualification for a given post. It has been stated that apart from Sahayak Parcha Vitarak, other post equivalent to the post of Sub Nakedar are the post of Daroga, Moharrir, Helper Gr. I, Firemen, Lineman, Wireman, Fitter, Karigar, Choudhary, Sahayak Choudhary etc. Although earlier approval was granted for absorption on the petitioner on the post of LDC but on re-examination of the matter, the Government came to the conclusion that the post of Sub Nakedar was not equivalent to the post of LDC and therefore directions were issued for absorption of the petitioner as per rules. It has therefore been submitted that there was no legal infirmity in the order passed by the respondents. The petitioner has filed a detailed rejoinder in response to the reply filed by the official respondents. The petitioner has contested the position that all those declared surplus have been absorbed only on equivalent post. The petitioner has given instances of Sarva Shri Yogesh Kumar Dave, Narayandan Adha and Mahendra Singh who were holding the post of Sub Nakedar/naka Guard yet they have been absorbed on the post of Gram Sevak-cum-Paden Sachiv in different Gram Panchyats, carrying the pay scale of 3200-4590 which is even higher then the pay scale admissible to the post of LDC i. e. Rs. 3050-4590. It has been contended that while the pay scale of Sub Nakedar is Rs. 2950-4475 and that of Naka Guards Rs. 2650-4000, as compared to these two the pay scale of Gram Sewak is much higher i. e. 3200-4900. The petitioner has placed on record as may as six documents respectively dated 25th October, 1999, 15th March, 2000, 28th December, 2001, 7th March, 2002, 18th August 2000 and 1st October, 2001 as Annexures 11 to 16 to substantiate his assertion that a large number of other employees in different Municipalities who were originally working as Nakedar, Sub Nakedar and Naka Guard have been absorbed on higher post including on the post of Gram Sewak. There are large number of such persons who were declared surplus and were later absorbed on higher post. The argument of the respondents that the absorption was to be made only on equivalent post is therefore not factually correct. I have heard Shri Sangeet Lodha, learned counsel for the petitioner and Mr. Manoj Bohra, learned counsel for the respondents and perused the record.
(3.) SHRI Snageet Lodha, learned counsel for the petitioner argued that the petitioner was substantive employee of the respondent Board and therefore the Board by its unanimous resolution had rightly decided to absorb the petitioner on the post of LDC. When this resolution was approved by the Government, there was no reason to later rescind the same particularly when the consequential order for absorption of the petitioner was passed and he having joined on such post had worked for a fairly long spell of time. SHRI Lodha argued that a right had come to accrue to the petitioner on account of his absorption for continuing on the post of LDC. No opportunity of hearing was provided to the petitioner nor any notice was given to him prior to his reversion. Shir Lodha argued that the reasons assigned by the respondents for passing the impugned orders are not only sustainable in law but are wholly unfounded being factually incorrect. The so called policy decision to absorb the service personnel from the octroi sections of various Municipalities was no where to be found inasmuch as a large number of employees whose details the petitioner has produced along with rejoinder were absorbed on much higher post of Gram Sewak carrying the pay scale of Rs. 3200-4900, whereas they were holding the post of Sub Nakedar in the pay scale of Rs. 2950-4475 and Naka Guard in the pay scale of Rs. 2650-4000. Absorption of the petitioner was made by the Board by its resolution keeping in view utility of the petitioner, clear the vacant post and the qualification held by the petitioner. Cancellation of such order and consequential absorption of the petitioner on the lower post is absolutely illegal. The impugned orders are therefore liable to be set aside. On the other hand, Shri Manoj Bohra, learned counsel for the respondents reiterated his arguments with reference to reply to the writ petition already enumerated above. He argued that the petitioner could not claim absorption on a higher post because he as per the policy of the Government could have been absorbed only on an equivalent post. It was argued that the earlier order of approval passed by the Government was based on ignorance of such policy and thereafter the Government upon reconsideration of the matter decided to revoke the same. There was therefore no illegality in the order passed by the respondents. I have considered the rival arguments advanced by learned counsel for the parties and perused the record. ;