TEJRAJ BHANDAR Vs. THE STATE OF RAJASTHAN

JUDGEMENT

(1.) Shri Tejraj Bhandari, the petitioner in this writ petition filed under Art. 226 of the Constitution, bad entered Government Service on 17th April 1947 as Warehouse Officer in the Excise Department of the erstwhile Mewar State. After the formation of the State of Rajasthan, the petitioner became an employee of the State of Rajasthan and he continued in the Excise & Taxation Department of the Govt, of Rajasthan. In Dec., 1952, the petitioner was appointed as Inspector Grade 111 in the Excise & Taxation Department He was appointed as Inspector Grade II in the Excise Department with effect from 26th March, 1957 and was confirmed on the said post with effect from 23rd Feb. 1960 On 31st Jan., 1962, the petitioner was appointed as Inspector Grade I on officiating basis in the Excise and Taxation Department. On 1st July, 1964, the Excise and Taxation Department of the Government of Rajasthan was bifurcated into two Departments, viz. Commercial Taxes Department and the Excise Department. After the aforesaid bifurcation, all permanent Inspectors of the Excise and Taxation Department were required to exercise their option as to whether they would like to be considered for appointment as Inspector to the Excise Department or in the Commercial Taxes Department. By his communication dated 24th Sept., 1964, the petitioner exercised his option for appointment in the Excise Department. But in the meanwhile on 11th Sept., 1964, the petitioner was promoted on the post of Assistant Sales Tax Officer (subsequently designated as Assistant Commercial Taxes Officer) on officiating capacity and the petitioner joined the same post on 8th Oct., 1964. The question of allocation of the Inspectors of the former Excise and Taxation Department was considered by the Government on 23rd July, 1966 and it was decided that 18 Inspectors who were working in the Excise Department should be allocated to the Commercial Taxes Department and 10 Inspectors Who were working in the Commercial Taxes Department should be allocated to the Excise Department and that the remaining Inspectors should be allocated to the Departments in which they were working at that time As a result of the aforesaid decision, the petitioner who was working in the Commercial Taxes Department on 23rd July, 1966, stood allocated to the Commercial Taxes Department. By notification dated 16th Sept., 1971, the Governor of Rajasthan promulgated the Rajasthan Commercial Taxes Service Rules, (hereinafter referred to as the 'Rules'), 197l, which were published in the Rajasthan Rajpatra dated 14th Oct., 1971. The Rules provide for the Constitution of the Rajasthan Commercial Taxes Service and Rule 5(4) of the Rules which makes provision for the initial constitution of the said service lays down that all persons who have been continuously holding the post of Assistant Commercial Taxes Officer (including higher posts) in ad hoc, officiating or temporary capacity since 1st Jan., 1968 and who were substantive Commercial Taxes Inspectors on the said date shall be screened for having their suitability adjudged for the posts of Assistant Commercial Taxes Officers by the Committee referred to in sub-rule (2) of Rule 17, provided they possess five years' experience on the posts of Commercial Taxes Inspectors (including higher posts) on the date of commencement of the Rules In accordance with the Rules, the petitioner was selected for appointment as Assistant Commercial Taxes Officer and by order dated 2nd Aug., 1973. the petitioner was confirmed on the post of Assistant Commercial Taxes Officer with effect from 14th Oct., 1971. Although the petitioner has been appointed substantively on the higher post of Assistant Commercial Taxes Officer, he was never confirmed on the post of Inspector Grade I He, therefore, filed this writ petition wherein be has sought an appropriate writ directing the respondents to confirm the petitioner on the post of Excise Inspector Grade I with effect from 31st Jan., 1962 and to give to the petitioner all consequential benefits in the Excise Department as if he was confirmed with effect from 31st Jan. 1962 and alternatively, the petitioner has prayed that the respondents may be directed to confirm the petitioner as Commercial Taxes Inspector Grade I and to give to the petitioner all the benefits which are due to him on that account.

(2.) In the writ petition, the petitioner has submitted that a number of persons, who were junior to the petitioner in the cadre of Excise Inspectors Grade II have been confirmed as Excise Inspector Grade I with effect from 13th June, 1968 but the petitioner, even though he is senior was not considered for confirmation on the post of Excise Inspector Grade I. The petitioner has submitted that on account of his non-confirmation on the post of Inspector Grade I, the emoluments of the petitioner had been affected and further that his substantive appointment as Assistant Commercial Taxes Officer might also be open to challenge inasmuch as under the Rules only a person who was a substantive Commercial Taxes Inspector on lit Jan. 1968 could be appointed as Assistant Commercial Taxes Officer and the petitioner was not holding the post of Commercial Taxes Inspector in substantive capacity on 1st Jan., 1968.

(3.) In the reply, which has been filed on behalf of the respondents to the writ petition, it is stated that the confirmation of the inspector Grade I in the Excise Department took place in 1968 and before that petitioner had been finally allocated to the Commercial Taxes Department and therefore, there was no question of his being confirmed as Inspector Grade 1 in the Excise Department and that the petitioner could not make a grievance on the ground that Excise Inspectors Grade II, who were junior to the petitioner had been confirmed as Excise Inspectors Grade 1. In the said reply, it Is also stated that the petitioner could not claim that he should be confirmed on the post of Commercial Taxes Inspector Grade I with effect from 31it Jan., 1962 at he was not substantively promoted on that date.