Sang Singh v. Municipal Board, Pokaran

Guman Mal Lodha, J.:— In this writ petition, Mr. Shrimali, appearing for the petitioner, has raised three-fold objections to the order of termination of the petitioner, from the post of Upper Division Clerk of the Municipal Board, Pokaran. It is not disputed that the petitioner is an ex-service man being retired Company Havaldar Major in the Army, He was directly ordered to be appointed as UDC as per the Government order dated January 22, 1979. This appointment was made under Rule 27 of the Rajasthan Municipal (Subordinate and Ministerial Service) Rules, 1963 (in short, ‘the Rules’ hereafter) for one year from the date of the order. He joined on August 3, 1979. It is on record that the Assistant Regional Director extended his services for one year by Ex. 4, dated July 9, 1980. The Administrator of the Municipal Board has terminated the services of the petitioner.

2. On the above undisputed facts, Mr. Shrimali has submitted that firstly, extension having been granted by the Director, the Administrator could not have terminated the services of the petitioner.

3. It was also argued that in any case, the petitioner is a workman and the provisions of Industrial Disputes Act apply and, therefore, his termination amounts to retrenchment and the conditions of retrenchment having not been fulfilled, the termination is bad in law. Mr. Shrimali relied upon the judgements of the Supreme Court reported in State of Assam v. Raghava Rajgopalachari (11), D.N Banerji v. P.R Kukherjee (2), Bhopal Sugar Industries v. Income-tax Officer (3) and State Bank of India v. Shri R. Sundara Money (4) in support of the above propositions.

4. Mr. Purohit, appearing for Municipal Board, has vehemently opposed the writ application. According to him, the initial appointment of the petitioner as a UDC itself was illegal, because the original appointment is to be made as a Lower Division Clerk, under Rule 8 of the Rules. For UDC, the qualification prescribed in the schedule is graduates with three years’ experience or matriculate or equivalent with seven years experience and he should be promoted from the post of Lower Division Clerk. It was contended that there is no provision for direct recruitment of the UDC. Rule 8 is as under,—

“8. Vacancies after the commencement of these Rules shall be filled:—

(i) By appointment in the lowest grade of each category.

(ii) By promotion from the lower to a higher grade in the same category.

(iii) By transfer of persons holding corresponding posts under a Board.

(iv) By taking an official on deputation from the State Government.

The ratio of filling up the vacancies by direct recruitment and promotion shall be 50:50 unless otherwise provided.”

5. The petitioner could not be appointed as UDC because he was never an LDC in order to fulfil the qualifications and experience and otherwise of UDC. It was also pointed out that extension could not have been granted without the concurrence of the Commission.

6. In reply to the above, Mr. Shrimali pointed out that extension can be granted from time to time by the Director, because no candidates selected by the Commission are available. He also pointed out that in Rule 8, it has been mentioned that ratio of filling up the vacancies by direct recruitment and promotion shall be 50:50 unless otherwise provided. According to Mr. Shrimali, this provision would become redundant in case, it is held that a UDC cannot be appointed by direct recruitment.

7. Having considered the submissions of the learned counsel for the parties, I am of opinion that Rule 8 read with the Schedule, clearly shows that a UDC can be appointed only by promotion and no direct recruitment is contemplated. Sub-clause (1) of Rule 8 clearly mentions that appointments can be made in the lowest grade of each category. The Schedule attached to these rules show that the services constitute of various categories, for example, revenue, health legal affairs, public works, motor garrage, ministerial service etc. The ratio of filling up of vacancies by direct recruitments and promotion which has been fixed as 50:50 applies to the appointment on lowest grade of each category only and not to all appointments. In the ministerial services, LDC is appointed in the lowest grade and, therefore, in the category of ministerial services, so far as other appointments to UDC and Head Clerk are concerned, they are to be done from LDCs and UDCs respectively. Column 4 of the Schedule which mentions the posts from which appointments are to be made by promotion and this post is LDC for the purpose of appointment to be made to the post of UDC. I have got, therefore, no hesitation in accepting the contention of Mr. Purohit that no direct recruitment is contemplated in the rules for a UDC and a person who has remained as LDC atleast for three years, if he is a graduate and for seven years if he is a matriculate can only be appointed by promotion to the post of UDC.

8. Confronted with the above, Mr. Shrimali argued that the Administrator cannot be allowed to challenge the order of the Director and furthermore, since he himself appointed the petitioner earlier, he cannot be allowed to turn around and point out some infirmities in it by taking a somersault. This proposition as enumerated by Mr. Shrimali may be correct depending upon the facts and circumstances of each case.

9. However, so far as this court is concerned, yet another consideration which is equally important is whether this court can issue writ or direction for perpetuating an illegality ? Since I have held that the initial appointment of the petitioner, who was not qualified to be appointed as UDC was illegal this Court would be perpetuating an illegality if it directs that he should be allowed to continue because of any of the reasons canvassed by Mr. Shrimali. Assuming that the Administrator cannot pass an order against the order of the Director & further assuming that the petitioner was a workman as alleged by Mr. Shrimali and his services could not be terminated on account of non-compliance of Section 25 F, yet the fundamental and basic question remains for consideration is whether, when the appointment of an ex-serviceman as UDC was per se illegal this Court, under Art. 226 of the Constitution should issue such directions which would result in perpetuating illegality & compelling the respondents to continue the illegality in future also. The answer is in negative. If this question is examined from the other point of view, one has to consider what would happen, if somebody comes & files a writ of “quo warranto” challenging the illegal appointment of the petitioner. Once this court is convinced, as 1 am, that a UDC cannot be appointed directly without remaining LDC and gaining experience of the same post, for the requisite number of years, as prescribed in the Schedule referred to above, I have got no hesitation in holding that the petitioner is a usurper of the office of UDC and it would be too much to expect from this Court, while exercising equitable jurisdiction to compel the respondents to continue a ‘usurper’ in office in future also. In this view of the matter, it is not necessary for me to examine in details the various contentions raised and referred to above about the validity of the impugned order now. The writ petition therefore fails and is hereby dismissed without any order as to costs.