MAHESH CHANDRA SHARMA Vs. STATE

JUDGEMENT

(1.) The writ petitioner Shri Mahesh Chandra Sharma has approached this Court aggrieved by the order dated 20.6.1996 whereby he was reverted from the post of Head Clerk to that of UDC by the Executive Engineer, Municipal Board, Rajgarh.

(2.) Shri Sandeep Saxena, learned counsel for the petitioner has argued that the petitioner was initially appointed as LDC after his regular appointment in Municipal Board, Rajgarh on 13.1.1977. He was confirmed on the post of LDC vide order dated 7.12.1998. He was then promoted on ad hoc basis on the post of UDC by order dated 28.2.1980 and the term of his appointed was extended from time to time. He was further promoted to the post of Head Clerk, which post was later designated as Office Assistant vide order dated 21.7.1987 with effect from 1.1.1987. It is contended that two posts of UDC and one post of Office Assistant were sanctioned in the staffing pattern of the Municipal Board, Rajgarh and that the petitioner was senior most UDC in that Board. Promotion to the post of Head Clerk and UDC under the Rajasthan Municipal (Subordinate & Ministerial Service) Rules, 1963 (for short- the Rules of 1963) are made from the lower cadre and method of recruitment for filling up both these posts was 100% by promotion. In order to become eligible for promotion to the post of Head Clerk, a candidate should have 5 years experience of working as UDC. Petitioner became eligible for such promotion after rendering satisfactory service on the post of UDC against the vacancy of Head Clerk which was determined as on 1.4.1980. In the final seniority list of municipal staff published on 17.1.1987, name of petitioner was placed at S.No.1. Learned counsel submitted that respondent no.3, who was initially appointed as LDC by order dated 16.5.1957 in Municipal Board, Todabhim, was not even a matriculate because no proof of such fact was produced by him on reocrd though he claimed that he was matriculate. He was not appointed in that Municipality, but he was transferred from Municipal Board, Todabhim to Municipal Board Kherli by order dated 12.12.1973. He was promoted as UDC in Municipal Board, Kherli on ad hoc basis by order dated 26.8.1976 and subsequently he was regularly promoted on recommendation of the DPC by order dated 16.10.1975. He was then transferred from Municipal Board, Kherli to Municipal Board, Tijara vide order dated 26.8.1976 and was further transferred from Tijara to Rajgarh vide order dated 18.6.1977. He was subjected to various disciplinary proceedings and was also even caught red handed by Anti Corruption Bureau while accepting illegal gratification, but ultimately in the criminal case, he won over the witnesses and was thus acquitted by giving benefit of doubt. When he was reinstated after his acquittal, he was transferred from Rajgarh to Municipal Board, Gangapur City vide order dated 27.2.1986. He again by subsequent order dated 29.9.1988, was brought back to Municipal Board, Rajgarh. Once he was promoted as Head Clerk vide order dated 17.8.1977, but later on that promotion was withdrawn and he was reverted to the post of UDC vide order dated 10.11.1978 on the premise that such promotion was wrongly granted to him.

(3.) Shri Sandeep Saxena, learned counsel for the petitioner argued that respondent no.3 filed a writ petition before this Court being S.B. Civil Writ Petition No.526/1993 challenging his reversion. That writ petition was dismissed by order of this Court dated 12.3.1993. However, in that judgement, this Court directed the Municipal Board, Rajgarh to hold regular promotions by convening a review DPC. The DPC adjudged him suitable for promotion on 29.12.1993. It is submitted that with a view to promote respondent no.3, the Municipal Board illegally reverted the petitioner from the post of Head Clerk to that of UDC by the impugned order dated 20.6.1996. Neither any notice, nor an opportunity of hearing was accorded to the petitioner. The lien of respondent no.2 was never transferred from Municipal Board Kherli to Municipal Board, Rajgarh and promotion board (DPC) when it again met on 29.12.1993 wrongly accepted the order passed by Executive Engineer, Municipal Board, Rajgarh on 1.8.1989 as the order of transferring his lien. Learned counsel submitted that the order of transfer inter se from one Municipal Board to another is made by the Government and the lien if at all it is assumed, which is though denied, can be transferred only by the Government and not by the Executive Officer on his own. Learned counsel in this connection referred to the order dated 1.8.1989 which is on record as Annexure-20 passed by the Executive Officer and not by the Government. It is contended that according to Rule 38 of the Rules of 1963 whenever deemed necessary, transfer of person appointed in service may be made from one Board to another in equal grade and class. The seniority, promotion of an employee thus transferred, shall however be maintained according to his paternal municipality where he was so appointed. Learned counsel therefore argued that respondent no.3 could be considered for promotion only in his own parental Board i.e. in Kherli and not in Rajgarh. The operation of impugned order of reversion has remained stayed pursuant to the interim order dated 30.7.1996 passed by this Court. In the meantime, the respondent no.2 has retired from service upon attaining age of superannuation.