K.S. Jhaveri, J. - (1.) By way of these appeals, the original writ petitioners (appellants herein) have challenged the judgment and order of the learned Single Judge, whereby the learned Single Judge has dismissed the petitions and has confirmed the order of cancelling their appointment.
(2.) The facts of the case are that the respondent Municipal Council, Sirohi issued an advertisement at Annexure-A on 13.01.2015 for seven different posts where the total available vacancies were 19, thereafter another advertisement was issued on 20.01.2015, pursuant to which, the appellants holding the requisite qualification applied for the same. The appellant having certificate in Sanitary Inspector's Diploma Course was appointed on the post of Sanitary Inspector vide order dated 23.02.2015 and he resumed his charge on 03.03.2015. According to the appellant, the posts aforesaid advertised by the Municipal Board were sanctioned by the State Government on 30.09.2015. Subsequently the issue was discussed in the general body of the respondent Municipal Board on 10.12.2014 vide resolution No.3, decided to proceed for the appointment. It was further contended in the writ petition that order dispensing with the services of the appellants at Annexure-17 was issued abruptly, without following any procedure and the appellants were deprived to their legitimate expectations and because of the change of powers, the action was taken.
(3.) Learned counsel for the appellants had relied upon the provisions under Section 335 of the Rajasthan Municipalities Act, 2009 (hereinafter referred to as the 'Act of 2009') which reads as under: "335. Subordinate and Ministerial Establishment and other Employees.- (1) Subject to the provisions of Section 330 and 331 or any rules under Sec.337 or any other direction issued or restrictions imposed by the State Government or any other provision of this Act a sanitary inspector or other inspector or subordinate servant or accountant or a member of the ministerial establishment shall be appointed by the Municipality. (2) Subject to any rules under Section 337 or any other provision of this act appointments to other posts, whether permanent or temporary, shall be made by Chief Municipal Officer with the approval of the Chairperson. (3) It shall be lawful for the Chief Municipal Officer to punish such staff appointed under this Section except with the punishment of dismissal or removal from the service. (4) A person appointed under sub-Section (1) or sub-Section(2) may be dismissed, removal or otherwise punished in accordance with rules then obtaining by the appointing authority, subject to a right of appeal of such dismissal, removal or punishment within the prescribed time limit- (i) to the State Government, if the order appealed from is passed by Municipality, and (ii) to the Municipality if such order is passed by the Chief Municipality Officer." Counsel for the appellant has contended that in view of this provision, the appointments, which have been made, are legal & valid as mandatory requirement of approval of the Chairman has been obtained. Counsel for the appellants has relied upon the judgment of this Court in Purushottam Jeswani & Anr. vs. State of Rajasthan & Ors., 2015 WLC(Raj)UC 714 wherein it was observed that: "9. Rajasthan Municipalities Act, 1959 (for short 'the Act of 1959') was repealed by Rajasthan Municipalities Act, 2009 (for short 'the act of 2009'). Clause (b) of sub Section (2) of Section 344 of the Act of 2009 inter alia provides that notwithstanding the repeal of the Act of 1959 all Rules made under that Act shall so far as they are not inconsistent with the provisions of the Act of 2009, be deemed to have been made under the Act of 2009. Section 302 to Section 310-A of the Act of 1959 which deals with the services under municipalities are substantially similar to Section 328 to Section 336 of the Act of 2009. However, Section 331 of the Act of 2009 which was corresponding to Section 305 of the Rajasthan Municipalities Act, 1959 and provided for the consultation with RPSC in matters relating appointment by direct recruitment and disciplinary matters, has been deleted w.e.f. 24Th November, 2010 vide the Rajasthan Municipalities (Amendment) Act, 2011. As such any provision in any Rules made under the Act of 1959 and deemed to have been made under the Act of 2009 by virtue of Section 344 thereof, so far as they provided for consultation with the RPSC have become inconsistent with the provision of the Rajasthan Municipalities Act, 2009 w.e.f. 24Th November 2010 and are inoperative from the said date. Now, after 24th November 2010, any action under any such Rules cannot be held to be invalid merely for the reason that any authority acting thereunder did not consult the RPSC in respect of any matter under those Rules. Neither can any direction be issued for such consultation.";