NALIN KUMAR Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) AN important question which arises for determination in this writ petition is about the right of a temporary appointee to continue in service against the vacancies which remain available after regular selections for substantive appointment has been made.

(2.) THE factual metrix of this case lies in the very narrow compass. THE petitioner is a Graduate in Civil Engineering. In pursuance of a short term advertisement issued by the Director, Technical Education Directorate, Rajasthan, Jodhpur, on 4. 1. 90, the petitioner made an application for being considered for appointment as Superintendent in the Industrial Training Institute. He was called for interview alongwith other eligible persons and was selected for the purpose of temporary appointment. He was appointed as Superintendent, Industrial Training Institute and was posted at Khetri against a vacant post by order dated, 29. 6. 1990 issued by the State Government under Rule 26 of the Rajasthan Technical Education Service Rules, 1975 (hereinafter to be referred to as the Rules of 1975 ). This appointment was for a period of four months or till the availability of the candidates selected by the Rajasthan Public Service Commission, whichever was earlier. THE term of temporary appointment of the petitioner was continued from time to time by different orders passed by the Government. THE last order for extension in the term of appointment of the petitioner was passed on 15. 5. 1991. THE date of extension mentioned in this order was 31. 8. 1991 or till the availability of the candidate selected by the Rajasthan Public Service Commission, whichever was earlier. THE service of the petitioner has however, been terminated by an order of the Government dated, 2. 8. 1991.

(3.) THE obligation to make year-wise determination of the vacancies has been held by this Court to be mandatory in Dr. M. P. Agrawal vs. State of Rajasthan (1), H. K. Hingorani vs. State of Rajasthan and Others In Prakash Chand vs. State of Rajasthan and Another (3), the Division Bench had the occasion to examine the scope of Rule 9 of Rajasthan Police Subordinate Service Rules, 1974 and Rajasthan Police Subordinate Service Rules, 1989, which are pari-materia with rule-9 of the 1975 Rules. After examining the Rules the Division Bench observed as under : - "it is thus clear from a perusal of rule 9 of 1974 Rules as well as Rule 10 of 1989 Rules that the rule making authority has intentionally laid strong emphasis on year-wise determination of vacancies and regular recruitment by the prescribed mode against yearly determined vacancies. Regarding promotion quota vacancies, a further mandate has been given that the appointing authority shall also determine the vacancies of earlier year year-wise, which are required to be filled in by promotion, if such vacancies were not determined and filled earlier in the year in which they were required to be filled in. Rule 9 (1) (c) contains a solutary provision intended to maintain balance of quota between the direct recruitment and promotion. It is borne out by this rule that with reference to the posts already filled in, prescribed promotion specified in the rules has to be maintained. This rule lays down that where a post is to be filled by more than one method, apportionment of vacancies determined under clause (a) to each such method shall be done maintaining prescribed proportion for the over all number of posts already filled in. This means that if direct recruitment has been made in excess of the quota prescribed for direct recruitment, efforts have to be made to bring about a balance by making promotions. Similarly, if the promotion quota has been filled in excess, more direct recruitment posts have to be filled to bring about a balance. "