Kesha Ram Mali vs State of Rajasthan and Others

Sandeep Mehta, J.—By way of the instant writ petition, the petitioner seeks to assail the legality and validity of the order (Annex. 20) dated 16.12.2009 whereby the petitioner, who was assigned the work of Sanitary Inscharge was directed to handover the charge to Shri Chandrashekhar Sharma.

Facts in brief are that the petitioner was appointed as a Class IV employee in the respondent Municipality Jalore by order (Annex. 1) dated 25.11.1982. He was thereafter confirmed in service by order (Annex. 2) dated 27.8.1984. The petitioner was promoted to the post of Fitter by order (Annex. 3) dated 2.2.1998. It appears that there was a requirement of officiating Sanitary Inspectors in the Municipality and by order (Annex. 5) dated 12.3.1999 the petitioner was assigned the duties of looking-after the sanitation, illegal encroachments in few wards of Jalore city. Thereafter, an order (Annex. 6) dated 17.5.2001 came to be issued whereby the petitioner was loosely termed to be an Assistant Sanitary Inspector and was assigned the duty to look after Wards No. 19, 10, 11, 12, 24 and 25 of the Jalore Municipal area. Thereafter, vide order (Annex. 7) dated 23.5.2001, teams were formed to stop illegal encroachments and the petitioner was made a part of the team projecting him to be Assistant Sanitary Inspector. It is relevant to mention here that as per the applicable service rules, the post of Assistant Sanitary Inspector and the Sanitary Inspectors in the Municipality are required to be filled 50% by promotion from the Sanitary Jamadars and 50% by direct recruitment. The pay scales of Sanitary Jamadar is prescribed at Sr. No. 19 of the Schedule and the other Class IV services are mentioned at Sr. No. 38 of the said Schedule. The petitioner claims that numerous orders came to be passed by the superior officer and the Board, whereby he was assigned the duty of Assistant Sanitary Inspector and was also given various appreciation certificates for the performance of his duties.

Learned counsel for the petitioner submits that the impugned order (Annex. 20) whereby a Steno Typist named Chandrashekhar Sharma, respondent No. 4 herein was assigned the duties of the Sanitary Branch of the Municipality in place of the petitioner is unjust and arbitrary and therefore, the said order deserves to be quashed and set aside. Learned counsel heavily relies on the judgment rendered by the Hon''ble Supreme Court in the case of Harpurpratap Singh Vs. State of Punjab and Ors. reported in (2008) 2 SCC (L and S) 618 and the judgment rendered by this Court in the case of Lal Mohammad Vs. State of Rajasthan and Another, and contends that the ad hoc or part timer, who has been appointed on a particular post cannot be replaced by another ad hoc appointee. He, therefore, prays that the writ petition deserves to be allowed in light of the aforesaid decisions.

Per contra, Dr. Pratishtha Dave, learned AGC, appearing for the respondents states that it is clearly not a case where the petitioner was removed from service. The petitioner''s services were earlier being utilized on requirement basis and as a stopgap arrangement as an Assistant Sanitary Inspector but later on a decision was taken to assign the said duty to Chandrashekhar Shamra which is in the discretion of the concerned authorities. She submits that no right accrued in favour of the petitioner simply because he was assigned the duty of an Assistant Sanitary Inspector on stopgap base for a particular period of time, howsoever long the same may be. She contends that as per the Subordinate Service Rules applicable to the Municipal employees, the mode provided for appointment to the post of an Assistant Sanitary Inspector, is 50% by way of promotion from Sanitary Jamadars and 50% by direct recruitment. The petitioner was never appointed as a Sanitary Jamadar. Thus, he has no right to be appointed as an Assistant Sanitary Inspector. As such, she submits that neither any right accrued to the petitioner to be considered against the said post upon his services being utilized as an Assistant Sanitary Inspector nor was any of his rights infringed by the order (Annex. 20) so as to call for any interference in this writ petition. Learned counsel submits that the promotion of the petitioner to the post of Fitter is also illegal because no mode is provided in the rules for promoting a Class IV employee to the post of Fitter.

I have heard and considered the arguments advanced by the learned counsel for the parties and have gone through the material available on record.

It is not in dispute that the petitioner''s initial appointment was on the post of Class IV employee. Thereafter, he was promoted to the post of Fitter. Though a challenge has been made to the said promotion by the learned AGC, but as this Court is not seized of the said controversy, it would not be apt to make any comments on that issue. The undisputed fact as evident from the Service Rules of 1964 is that the post of an Assistant Sanitary Inspector is to be filled 50% by direct recruitment and 50% by promotion from amongst the Sanitary Jamadars. The petitioner was admittedly neither appointed nor posted as a Sanitary Jamadar and thus, he does not hold the requisite eligibility criterion for being promoted to the post of Assistant Sanitary Inspector. The orders, which the learned counsel for the petitioner has relied upon whereby the petitioner''s services were utilized by the Municipality from time to time on the post of Assistant Sanitary Inspector do not give rise to any right in favour of the petitioner for being appointed or being continued on the said post. The said orders were just by way of stopgap arrangements and nothing beyond that. The post of the Assistant Sanitary Inspector can be filled only in the manner prescribed in the rules and not otherwise. By order Annex. 20, the respondent authorities proposed to assign the functions of Sanitation Incharge to the Steno Typist Chandrashekhar Sharma. The order specifically reads that Sharma would look-after the management and supervision of sanitation in the municipal area and shall also supervise the illegal encroachments and unauthorized constructions etc. Thus, even the charge which was assigned to Shri Chandrashekhar Sharma was not on the post of Assistant Sanitary Inspector but was a stopgap arrangement. As such, the direction given to the petitioner by order (Annex. 20) to hand over the charge of the sanitation branch to Shri Chandrashekhar Sharma cannot be held to be an order whereby any right of the petitioner was infringed so as to call for any interference in the instant writ petition. The judgments on which the learned counsel for the petitioner relied upon in the cases of Hargurpratap Singh and Lal Mohd. (supra) are of no help to the petitioner for the reason that in those cases, the controversy involved was regarding an ad hoc appointee being replaced by another ad hoc appointee. It is not the petitioner''s case that he was appointed on ad hoc basis on the post of Assistant Sanitary Inspector and was sought to be replaced by another ad hoc appointee.

Thus, the writ petition being devoid of any merit is hereby dismissed.

No order as to costs.