Kan Singh, J.
1. This is a writ petition by one Shri Prakash Cand challenging the validity of his order of fixation, Ex.7, in the Rajasthan Municipal Service Rules, 1963, hereinafter to be referred as the 'Rules'.
2. The petitioner entered the service of the Municipal Board, Karanpur with effect from 1.7 48 as Acting Secretary under orders of the Government of the former Bikaner State. He thereafter came to be appointed as Secretary to the Municipal Board, Karanpur, with effect from 1.9.48 in the pay scale of Rs. 80-5-110 This pay scale was later revised to Rs. 90-5-120. The petitioner was holding this post on the date of the formation of Rajasthan. After the formation of Rajasthan he was transferred as Secretary, Municipal Board. Raisinghnagar. The designation of the post of Secretary, Municipal Board, Raisinghnagar was altered to that of Executive Officer under orders of the Director of Local Bodies with effect from 9.12 56. On 31 3 60, the petitioner was thus holding the post of an Executive Officer in the Municipal Board, Raisinghnagar. The petitioner made a representation regarding fixation of a proper pay scale for the post and as a result of his representation the Government fixed the petitioner in the pay grade of 155-10 200-EB 10 250 with effect from 13-1 52 (vide order Ex 2). In view of the revision of his salary with retrospective effect the petitioner was paid his areas of salary. After the formation of Rajasthan the new State enacted the Rajasthan Town Municipalities Act, 1951 for the Municipalities other than the the City Municipalities The City Municipalities, however, continued to be governed by the laws of the erstwhile covenanting States respectively In 1959, the Rajasthan State enacted the Rajasthan Municipalities Act, 1959 bringing in all the Municipalities in the State of Rajasthan under one framework. Under Section 297 of the Rajasthan Municipalities Act, 1959, the State Government was empowered to make rules for the purpose of carrying into effect the provisions of the Act. By Section 302 of the Act the State Government was empowered to constitute a Municipal Service Consequently the Government made the rules. I will be referring to the relevant provisions of the Rules a little later. The Rules made provision for integration of the Municipal Services. For this purpose the posts under the various Municipalities were categorised and then the holders of the posts were to be considered for fixation in the integrated service according to the categorisation of posts on which they were substantive. The petitioner claims that according to Rules 39 and 40 of the Rules he was eligible for appointment to a post in a class III Municipality, but he was not considered for that and was wrongly fixed up in class IV Municipalities. The petitioner, therefore, seeks an appropriate writ, direction or order against the order Ex 7 qua the petitioner in that he was appointed to class IV Municipalities.
3. The writ petition has been opposed by the State of Rajasthan, It is denied that the order Ex 7 was bad or that the petitioner was entitled to be considered for appointment to a class III Municipality. It is maintained that the petitioner has been rightly fixed up for appointment to a class IV Municipality. It is pointed out that the Selection Committee found it difficult to implement Rules 39 and 40 without they being unfair. It is further pointed out that although some classification of Municipalities, according to them, was in force, the appointments were made by the Government in different pay scales; some persons were appointed even on fixed salary. Even before the integrated set up persons who were confirmed in a lower pay scale were posted to posts in a Municipality which came to be accorded a higher category. Likewise, persons having higher pay scales compared to others came to be posted on posts in Municipalities which came to be against the lower category. Thus, the fixation on the basis of categorisation of Municipalities Municipalities alone was bound to be unfair according to the respondents. For this reason the Presiding Officer of the Selection Committee, who was an eminent person, evolved a categorisation based on pay scales and then fixed up the employees accordingly. Thus, according to the State, was a fair treatment to the petitioner.
4. The short question that, therefore, arises for determination is whether the petitioner was properly fixed up in the integrated set up vide order Ex 7. The first question is what was the substantive appointment of the petitioner on 31-3-60 which is the crucial date according to the Rules which I am going to refer in a moment. The petitioner has averred in para 1 of the writ petition that he came to be appointed as Secretary to the Karanpur Municipality with effect from 1-9-48. The State has admitted in its reply that this was correct and the petitioner became substantive Secretary of the Karsnpur Municipality with effect from 1-9-41. Likewise, it is admitted that in the year 1953 the petitioner came to be transferred as Secretary, Municipal Board, Raisinghnagar and further that the designation of the Secratary was changed to that of an Executive Officer.
5. Now I may turn to the relevant rules. Part IX of the Rules is beaded 'Matters Relating to First Appointments by way of Integration.' Rule 39 lays down the eligibility and I may read its relevant portion:
Rule 39. ELIGIBILITY : (1) No officer holding any post enameled in the Service who:
(a) has attained the age of 55 years on 31st March, 1960;
(b) is employed on contract, or
(c) is a retired officer re-employed for a specific period or otherwise, shall be eligible for first appointment by way of integration under these Rules.
(2) Subject to the provisions of Sub-rule (1), an officer holding a post corresponding to a post encoder in the Service on March 31, 1960, shall be eligible for the post specified against each in the following table if he held that post on substantive capacity;
--------------------------------------------------------------------S. No. Post held on 31st March, Category with1960 gradation of postfor which eligible--------------------------------------------------------------------1 2 3--------------------------------------------------------------------1. Municipal Commissioners of MunicipalMunicipal Councils includina Commissioner ofMunicipalities of Ajmer, Alwar, Municipality, ClassBikaner, Jaipur, Jodhpur, I (MunicipalUdaipur, Beawar and Kotah Councils)2. Executive Officer of Class II Executive Officer,Municipality and Secretary Class Class III Municipality. Municipality3. Executive Officer or Secretaty Executive Officerof Class III Municipality Class III(including Municipality of MunicipalityKekri)4. Executive Officer or Secretary Secretary, Class IVof Class IV Municipality Municipality(including Municipality of Deoliand Pushkar)5. Secretary Grade V. VI and VII Secretary, Class VMunicipalities and all other Municipalityunclassified Municipal Boards.... .... .... ........ .... .... ....Provided that such of the persons who are considered suitable for a post in the next higher grade as a result of screening under these rules may be considered for appointment to such post if there be no sufficient number of candidates available for such post in the next higher grade;
Provided further that such of the persons who are considered unsuitable for a particular grade or post as a result of screening under these rules may be considered for a post in any of the lower grade.
(3) All officers holding posts on temporary or ad hoc basis at the commencement of these rules shall be considered for appointment to such posts not higher to that held by them for which they may be found suitable as a result of screening.
6. Rule 40 lays down that persons who are eligible under these Rules shall finish particulars of their service record etc. Rule 41 makes provision for the verification of the service record by the Director. Rule 42 lays down criterion for selection. I may read this rule:
Rule 42 Criterion for selection. (1) For the purposes of recruitment by selection on seniority-cum-merit basis, selection shall be made by the Selection Committee from all the officers including in the list referred to in Rule 41 who are eligible for selection to the various grades of posts specified in Rule 39.
(2) In selection candidates regard shall be had to their:
(a) academic and/or technical qualifications and experience;
(b) tact, initiative and energy;
(c) intelligence and ability;
(d) character including integrity; and
(e) previous record of service, and any other factor which may be relevant.
Rule 43 lays down the procedure for selection. I may read this rule as well:
Rule 43. Procedure for selection.- (1) The Selection Committee shall consider the cases of all the candidates included in the list, interview such of them as they may deem necessary and shall select suitable candidates and prepare a list in order of seniority according to the criterion as laid down in Sub-rule (2) of Rule 42 for each grade of different categories and publish the same in the official Gazette so as to provide an opportunity to any person aggrieved there by to submit his representation to the Selection Committee within one month from the date of such publication.
(2) On the expiry of the period of one month referred to in Sub-rule (1) and after hearing the object, if any, the Selection Committee shall prepare a final list of candidates whom they consider suitable and arrange their names in the order of seniority in each grade in different categories.
(3) The Selection Committee shall submit their recommendations together with the final list referred to in Sub-rule (2) to the Government.
(4) The final selection shall be made by Government from amongst the candidates considered suitable by the Selection Committee in order of seniority.
Rule 39 extracted above lays down that a person holding a post corresponding to a post uncared in the service on 31.3.60 shall be eligible for the post specified against each in the table, provided he held that post in a substantive capacity. Thus, a person who was Executive Officer in a class III Municipality was made eligible for the post of Executive Officer in a class III Municipality. According to Rule 41, after verification of the service record the Director was obliged to include the name of such person in the list of all the eligible officers grade-wise in each category in the order of seniority. Further it was incumbent upon him to place the list of seniority before the Selection Committee. Then the Selection Committee was bound to consider the cases of all the candidates included in the list. Then the Selection Committee was to interview such of them as they deemed necessary and select suitable candidates and prepare a list in order of seniority according to the criterion laid down and then publish the list in the gazette: so as to provide an opportunity to any person aggrieved to make his representation to the Selection Committee The after the Selection Committee was to submit its recommendations to the Government with a final list. Then the Government were to appoint the persons in order of their seniority.
7. The scheme of the Rules shows that eligibility for appointment of a person to a particular class or category or post arises on account of his being the holder of a corresponding post according to the table, in substantive capacity. I am afraid it was not open to the Selection Committee to ignore this statutory classification or categorisation and evolve a different criterion based on the pay scale of a person. As regards categorisation of Municipalities the petitioner has placed on record a Government order No. Misc/A/F/113/10494/ DLB/57 dated 13 8.57 issued by the Director of Local Bodies. At serial number 8 to the list appended is Raisinghnagar Municipality is put as class III, Likewise, Karanpur Municipality is put at serial number 6 and it is also class III Municipality. The petitioner has also placed on record another Notification dated 21.5.60 (Ex 9) and according to this Rgisinghnagar is shown as class II Municipality, but this notification will not govern the position as it was issued after 31 3 60 and the classification will be governed by notification Ex 8. Thus, the petitioner was entitled to be considered for appointment to a class III Municipality. It is not case of the State that he was ever considered for class III Municipality The order Ex: 7 is, therefore, not valid qua the petitioner.
8. The result it that I allow this writ petition and direct the respondents to consider the case of the petitioner afresh for his fixation as Administrative Officer of class III Municipality as on 31-3-60 and if he is found suitable for the same then to fix him accordingly. The parties are left to their own costs.