Full Judgment
Kanta Bhatnagar, J.
1. The petitioner' was appointed as Naka-guard vide Order Ex. 1 dated November 20, 1985 on the death of his father under the provisions of the Recruitment of Dependents of Government Servants Dying while in Service Rules, 1975 (for short the Rules' here in after). He worked on that post up to September 24, 1986 and on that date the Order Ex. 2 terminating his service was issued. The petitioner feeling aggrieved by the termination of his services has-appoached this Court by filing the petitions under Article 226 of the Constitution of India.
2. Mr. Kamal Joshi, learned Counsel for the petitioner strenuously contended that petitioner's father had expired on November 10, 1985 and the post of Naka Guard which he was holding fell vacant. Then consequently, petitioner got the appointment as of right under the Rules. It has been urged that the persons who were not legally appointed on such posts were retained while the services of the petitioner despite his being entitled to continue have been terminated.
3. Mr. M.R. Singhvi, learned Counsel for the non-petitioner submitted that in the reply filed on behalf of the Municipal Board, Nagaur the reason for termination of services of the petitioner has been given. According to Mr. Singhvi, the appointment of a number of persons on the post of Naka Guard was illegal because they were appointed without there being any vacancy for the post. As such, Mr. Singhvi submitted that when the question of termination of service arose, the petitioner not having been appointed subsequent to those whose appointment was illegal on account of there being no posts available, his service was terminated.
4. The question similar to the one arisen in the present petition came for consideration before the Division Bench of this Court in the case of Municipal Board, Nagaur v. Ashok Kumar (D.B. Civil Special Appeal No. 86/87) decided on May 14, 1987. Their Lordships allowed the appeal on the ground that the vacancy had fallen on account of the death of the father of the respondent and therefore he was a rightful claimant for the post.
5. In the case on hand, the admitted position is that the petitioner's appointment was under the Rules. In other words the petitioner had a claim to be appointed on the post suitable for him in consequence of his father's death. If there are illegal appointments of certain persons, they cannot claim to be retained on the post falling vacant on account of the death of the petitioner's father. The ground taken by the non-petitioner that because there was no vacancy, services of the petitioner were terminated is devoid of force because the post had fallen vacant on account of the death of father of the petitioner and as such those persons who had been illegally appointed without there being any vacancy cannot be accommodated on the post falling vacant on account of the death of the father of the petitioner.
6. In this view of the matter the order of termination of the services of the petitioner Ex. 2 dated September 24, 1986 is liable to be quashed.
7. Consequently, the writ petition is allowed. The order of termination of the services of the petitioner Ex. 2 dated September 24, 1986 is quashed. The non-petitioner is directed to re-instate the petitioner allowing him all consequential benefits.