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Dr. Gopal Krishna Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ No. 22/69
Judge
Reported in1970WLN302
AppellantDr. Gopal Krishna
RespondentState of Rajasthan and ors.
Excerpt:
rajasthan civil services (absorbtion of surplus personnel) rules, 1969 - rule 2, 7 & 11 and rajasthan educational service rules, 1960--rule 4--supersession by the rules of 1969--extent of--surplus employee absorbed be deemed to have been appointed in a substantive capacity as a member of the service--he does not cease to be a member of the service on holding an ex cadre post and is entitled to be considered for seniority along with other members.;rule 4(g) defines the term 'member of the service' to mean a person appointed substantively to a post in the service under the provisions of these rules. to the extent it is said in these rules that a person has to be appointed in accordance with these rules, such rules stand superseded by the rules of 1969 by virtue of rule 2 thereof......kan singh, j.1. this is a writ petition under article 226 of the constitution by one dr. gopal krishna who has prayed for a writ, direction or order against the state of rajasthan directing the state government to appoint the petitioner as a joint director of education and to restrain the present incumbents of the post of joint director form functioning as such and also for issuing a direction to the state government to constitute a departmental promotion committee for consideration of the case of the petitioner for the post of a joint director of education. in the alternative, the petitioner prays for declaring the rajasthan educational service rules, 1960 invalid on the ground that the post which the petitioner was holding prior to this being declared as surplus was not included in the.....
Judgment:

Kan Singh, J.

1. This is a writ petition under Article 226 of the Constitution by one Dr. Gopal Krishna who has prayed for a writ, direction or order against the State of Rajasthan directing the State Government to appoint the petitioner as a Joint Director of Education and to restrain the present incumbents of the post of Joint Director form functioning as such and also for issuing a direction to the state Government to constitute a Departmental Promotion Committee for consideration of the case of the petitioner for the post of a Joint Director of Education. In the alternative, the petitioner prays for declaring the Rajasthan Educational Service Rules, 1960 invalid on the ground that the post which the petitioner was holding prior to this being declared as surplus was not included in the Educational Service. The relevant facts may be recounted as follows.

2. The petitioner passed his Master's degree in Political Science in 1940. He obtained his Bachelor's Degree in Education in 1945 and Master's Degree in Education in 1950 and he obtained the Doctrate in Education in 1955. He entered the service of the U.P. Government in 1955 as a trained graduate teacher and in 1958 he entered the Provincial Educational Service Class II of that State. On 6-11-1957 the Rajasthan Public Service Commission issued an advertisement No. 35 inviting applications for the post of Director Vocational and Guidance Bureau for the Education Department of the State of Rajasthan The post was advertised to be a permanent and pensionable post in the grade of Rs. 500-30-740- EB 30-800-50-990. The petitioner applied for the post and was selected. He was then appointed temporarily as the Director, Vocational and Guidance Bureau in the Education Department. While he was temporary, he was treated on deputation. His services were later transferred to the State of Rajasthan. The Government of Rajasthan by its order dated 17-5-1962, (Ex. 3) on record, confirmed the petitioner on the post of Director Vocation and Guidance Bureau with the effect from 28-8-1959. This post was not included in the Rajasthan Educational Service and was thus an ex-cadre post. In the year 1962, Vocational and Guidance Buroau was a abolished and the pettitioner was rendered surplus. The petitioner was informed by the Director of Primary and Secondary Education, Bikanpr, vide his letter dated 28-8-1962 that the petitioner's case for absorption had been referred to the Government and in the meantime, he was to attend his office from 1-9 1962 and on wards till further orders for his absorption were received The petitioner states that eventually he was absorbed by transfer to the Education Department as Deputy Director of Education vide letter dated 31-8-1962 (Ex. 9) from the Member Secretary, Absorption Committee. This was followed by a posting order from the Government (Ex. 7) which mentions that the petitioner was transferred as Deputy Director of Education Headquarters. It was also mentioned in this order that the junior most Deputy Director was to be reverted to his substantive post as Inspector of Schools to make way for the petitioner. In pursuance of the order (Ex. 7) the petitioner took charge on 8-11-1962 as Deputy Director of Education (Headquarters) Bikaner. The petitioner claims that on account of abolition of the post of Director, Vocational and Guidance Bureau his lien on that post stood terminated and thereafter he acquired his lien on the post of Deputy Director of Education. The petitioner further claims that as a necessary consequence of this posting, he became a member of the Rajasthan Educational Service which was created by the Rajasthan Educational Service Rules, 1960. On 14-3-1963 the petitioner again came to be posted as Dieector, Vocational and Guidance Bureau for Education Department with Headquarters at Bikaner. By virtue of his claim to be a mem. per of the Rajastan Educational Service, the petitioner contends that respondent No. 3 Shri. S.C. Mathur and respondent No 4. Shri. S. Kumar were junior to him in service as prior to the petitioner's posting as Deputy Director of Equ-cation, these officers were only inspectors in the Education Department in their substantive capacity. These two officers thereafter came to be promoted as joint Directors and the petitioner a case in short is that in ignoring the petitioners claim and in posting respondents No. 3 and 4 to higher post in the Rajasthan Equcational service, the petitioner has been discriminated against and thus the Government order appointing respondents No. 3 and 4 as Joint Directore respectively was viola, tive of Article 16 of the Constitution, The petitioner's case in the alternative is that if it is found that he had not become a member of the Rajasthan Educa. tional Service, then the Rules themselves were bad as in the year 1960 when the Rules were made, the post of the Director, Vocational and Guidance Bureau was existing and this post also should have been included in the Rajasthan Educational Service as without it the future chances for promotion of the petitioner would be completely barred. The petitioner states that he made representations to the State Government but they did not bring any result.

3. The State of Rajasthan denies that the petitioner had acquired any acqired any lien on the post of Deputy Director of Education or that he had become a members of the Rajasthan Educational Service. It is also denied that Rajasthan Equcation Service Rules were bad on account of the non-inclusion of the post of Director, Vocational and Guidance Bureau in such service. It is pointed out that the requirements of the post of a Director were different and so were the qualification of a person who is to hold that post. It is, however, admitted that the post of Director, Vocational and Guidance Bureau was made permanent with effect from 1-7-1959 and the petitioner was confirmed on the said post with effect from 28-8-1959. It is also admitted that the Absorpsion Committee recommended the transfer of the petitioner to the Education Department on the abolition of the Vocational and Guidance Bureau and, according to the respondent, the petitioner was no doubt posted as a Deputy Director of Education, but he was, they add not a member of the Rajasthan Education Service. It is stated by the respondent State that during the relavant time, there was no post of Deputy Director of Education and the petitioner was continued only against posts which were temporarily available on account of the permanent incumbents being on leave and for such other reasons. In other words, according to the State, the petitioner had not become a substantive holder of the post of Deputy Director of Education & hence he was not a member of the Rajasthan Education Service. It is further stated that the petitioner was allowed to continue as Deputy Director for sometime for the period 10-10-1962 to 14-3-1963 against temporary vacancies and thereafter he was posted as Director, Vocational and Guidance Bureau which post was again created. According to the State, the petitioner bad acquired his lien on that post and had never become a member of the Rajasthan Educational Service. As regards the alternative contention of the petitioner, the stand of the State is that the Rajasthan Educational Service Rules, 1960 were not had on account of the non-inclusion of the post of Director, Vocational and Guidance Bureau therein

4. Respondent No. 4 Shri S. Kumar has filed a written reply denying the petitioner's claim for either being a member of the Rajasthan Educational Service or being senior to respondent No. 4 in that service. Shri S.C., Mathur has retired in the meantime and has not submitted any reply. The case was heard by me on 13-1-1970 at sufficient length. One remarkable thing that was then noticed was that the Governor had made in the mean time what were known as Rajasthan Civil Services (Absorption of Surplus Personnel) Rules, 1969 which appeared in the Rajasthan Gazette of 11-12-1969 and these Rules were given retrospective effect from 1-1-1954. In the light of these Rules, a three fold contention was made by learned Counsel for the petitioner. One was that as a result of the order (Ex. 7) the petitioner came to be substantively appointed as Deputy Director. The second one was that the petitioner could not have been appointed as Deputy Director temporarily or against any socalled leave vacancy and the third contention was that the schedule attached to the Rajasthan Educational Service Rules, 196o was villative of Article 16 of the Constitution in as much as the post on which the petitioner was first substantively appointed was not included in the cadre. The Rules which I have just now adverted to were relied on for these contentions. Learned Advocate General submitted on that day that as these Rules- had not been referred to in the writ petition and he had also not gone through them, the case be adjourned. Accordingly, the case was adjourned to enable the learned Advocate General to meet the contentions based on these Rules. Since the stand of the State was found to be that the petitioner was only temporarily holding the post of Deputy Director of Lducation subsequent to the abolition of the Vocational and Guidance Bureau, the learned Advocate General was asked to let the Court know (1) the number of posts of Deputy Directors, that were existing at the time order Ex. 7 was passed. (2) He was also to indicate who were the permanent incumbents of the posts and whether there were any substantive vacancies available at the time order Ex 7 was passed. Then he was to let the Court know as to who were the incumbents of the posts of Deputy Director in substantive or temporary or officiating capacity at the relevant time. Learned Advocate General placed the necessary information on record and the case was heard on 10-2-1970. The case was argued for some time and the learned Advocate General wanted to put in an affidavit for clarifying the position for the existing vacancies in the cadre of Deputy Directors on 3rd October, 1962 when the order (Ex 7) was passed. The case was then heard on 19-2-1970. For today the case was kept at the request of the learned Advocate General as on the last date the impact of the Rule was not throughly explained. Learned Advocate General was not able to come today. Shri Chatterjee sought an adjournment, but I was not inclined in adjourn the case any further as the case already has been heard and I have myself seen the Rules since then.

5. The first and foremost question that emerges for consideration is whether by the order (Ex. 7) the petitioner came to be substantively appointed as Deputy Director in the Education Department, The allied question that flows from the first is whether as a result of the petitioner's appointment in substantive capacity as Deputy Director, Education Department, he had become a member of the Rajasthan Educational Service. Before I refer to the relevant order (Ex. 7), I may read the relevant rules on the consideration of which these question have to be answered.

6. I may first refer to the Rajasthan Service Rules, 1951 and the position has to be examined on the indisputable footing that as Director, Vocational and Guidance Bureau the petitioner had become permanent. Rule 18 of the Rajasthan Service Rules provides that a Government servant's lien on a post may in no circumstances be terminated, even with consent if the result will be to leave him without a lien or on a suspended lien upon a permanent post. As a necessary adjunct to Rule 18, Rule 19 provides that subject to the provisions of Rule 20, the Government may transfer to another permanent post in the same cadre the lien of a Government servant who is not performing the duties of the post to which the lien relates, even if that lieu has been suspended Rule 20 lays down that the Government may transfer a Government servant from one post to another, the only limitation being that that except on one's own request or on account of inefficiency or misbehaviour, a Government servant shall not be transferred to a lower post. Lien is the right which a Government servant acquires on a permanen post including a tenure post to which he has been appointed substantively. It is thus clear that as long as a Government servant continues in service and he is a permanent servant of the Government, the Government must provide him with a lien on a permanent post.

7. It appears that in or about the year 1962, the Government were animated with the desire to economise in the administration and with that view certain departments and posts were abolished. As a result thereof the Government were faced with the problem of absorption of surplus employees. An absorption Committee was appointed and stop gap arrangementwere made to continue the employees declared surplus as a result of the abolition of the department to which the Government servant belonged or as a result of the abolition of the post in the department. The framework within which the Absorption Committee was to function was provided by a number of circulars or instructions issued by the Government from time to time. Ultimately, with a view to providing a statutory base to what had been ordered from time to time, the Governor had made recently the Rajasthan Civil Services (Absorption of Surplus Personnel)' Rules 1989. These rules have been made effective from 1-1-1954 because even before 1962 several department or posts that came to the new United State of Rajasthan as a legaly from the erstwhile covenating States or as a result of organisation of department by the new State were abolished from time to time and the incumbents of sus posts were absorbed or retired. The new Rules thus cover a long period of most 16 years so that the position of the surplus employees who might be decred surplus in one department and absorbed in another may be placed on a hosper footing. The import of these Rules, therefore, requires to be closey scrutinised.

8. The rules, as I have already said are known as the Rajasthan Civil Services (Absorption of Surplus Personnel) Rules, 1969. Rule 2 lays down that they shall be deemed to have come into force with effect from 1st January, 1954. Rule 2 may be read in full as it overrides several other rules applicable to the various services:

Scope and Applicability:

Notwithstanding anything contained in any service rules or orders for the time being in force regulating the requirement and conditions of service of persons appointed to the various services or posts in connection with the affairs of the State, surplus personnel shall be eligible for recruitment and appointmant by absorption to such service or posts in accordance with these rules subject to the availability of vacant post:

Provided that nothing contained is these rules shall apply to posts encadred in the all India Service, the Rajasthan Judicial Service, the Rajasthan Secretariate Service, the Rajasthan Administrative Service, the Rajasthan Police Service, the Rajasthan Accounts Service and the Rajasthan Tehsildar Service.

Except when the proviso is applicable, a surplus personnel is deemed eligible for recruitment and appointment by absorption to all other services or posts in accotdance with these rules subject to availabily of vacant posts, Rule 3 gives the definitions. 'Committee' means the Absorption Committee constituted by the Government under Rule 5 of these rules. ' Equated post' means a post declared by the committee as aequated to the post held by the suplus peronnel immediately before his being declared surplus. 'Equivalent post' means a post carrying an identical time scale of pay & involving similar nature of duties and responsibilities; 'Surplus Personnel' or 'Surplus Employee' means the Government servant to whom the Rajasthan Service Rules, 1951 apply and who are declared surplus by the Government or by the Appointing Authority, under the directions of the Government, on their being rendered surplus to the requirement of a particular department of the Government due to the reduction of posts or abolition of offices therein as measures of economy or on administrative grounds but in whose case the Government decides not to terminate their services but to retain them in service by absorption on other posts Rule 7 lays down the procedure for absorption. I may read this rule in full though it is a long one:

7. Procedure of Absorption.--(1) The Committee shall allot surplus personnel to the departments or services wherein equatted, equivalent or lower vacant posts may be available for appointment and shall also specify the vacant post or posts against which surplus employee or employees are to be absorbed. On receipt of orders of allotment of surplus personnel from the Committee, the appointing authority shall issue orders for appointment to be substantive, officiating, temporary or adhnce on such post or posts as indicated below:

S. No. Nature of the Nature of appointment Nature of appointment

post held by held by him on the to be given

date declared date declared surplus after absorption

surplus

1 2 3 4

(a) Permanent Substantive (a) Substantive Permanent

post if the post

is clearly vacant.

If the post is not

clearly vacant or if

lien thereon is held

by another person,

the Government on

being moved by the

appointing authority

shall create a

supernumerary post

for providing lien

thereon to the absorbed

employee

(b) Permanent Substantive but (b) Officiating on new

Lower Post officiating on higher post, while continuing

which continues post from which to hold lien on

to exist declared surplus permanent lower

post in the department

from which he

was declared surplus

(c) Permanent Substantive on (c) Officiating on new

lower post permanent lower post post but Government

which also but officiating on on being moved

ceased to exist higher post by the appointing

along with authority shall

higher post create supernumerary

post equal to the lower

post and upon such

creation, substantive

appointment shall

be made on such

lower post

(d) Temporary Temporary (d) Temporary

(e) Temporary Ad hoc (e) Ad hoc

(2) The Government may, by order, delegate the powers of the Committee to the Collectors of the districts in respect of the ministerial and class IV employees serving within their respective districts.

(3) In respect of the period from 1st January, 1954 to the date of publication of the Rules, the various circulars of the appointments and General Administration Department of the Government mentioned in the Schedule and applied during the said period for the appointment by absorption of surplus employees, shall apply in relation to them as if they form part of these rules and such appointments shall be substantive, officiating, temporary or ad hoc as indicated in the table given below Sub-rule (1) hereof.

9. A persual of this rule reveals two things. According to the table, if a surplus employee holds a permanent post, then he is to be provided on a permanent post. In other words, if he was substantive before being declared surplus, he has to be provided with a substantive appointment on absorption. The second thing worth noticing is that according to Sub-rule (3) for the period 1st January, 1954 to the date of publication of the Rules, the various circulars of the Government mentioned in the Schedule and applied during the said period are deemed to form part of these rules and such appointments shall be substantive, officiating, temporary or ad hoc as mentioned in the table of Sub-rule (1) of Rule 7. Rule 10 is about qualifications. Rule 11 lays down the procedure for adjudging suitability and substantive appointment of surplus employees in certain cases. Rule 11 lays down that in the case of surplus employees absorbed during the period from 1st January, 1954 to the date of publication of these rules, where the posts on which they are absorbed, fall within the perview of the Commission on the date of publication of these Rules, the suitability of such employees shall be adjudged by the Committee in the manner laid down therein. Sub-rule (1) of Rule 11 reads as follows:

11. Procedure for adjudging suitability and substantive appointment of surplus employees in certain cases.--In the case of surplus employees absorbed during the period from 1st January. 1954 to the date of publication of these Rules under Sub-rule (3) of Rule 7, where the post on which they were absorbed, fall within the perview of the Commission on the date of publication of these Rules, the suitability of such surplus employees shall be adjudgsd by the Commission in the following manner:

(a) the suitability of surplus employees appoirtment on any posts after having been duly selected by the Commission for such post but who had been officiating or working temporarily or on ad hoc basis on higher posts or service continuously for more than 3 years, shall be adjudged by the Commission for the higher posts from which they were declared surplus, and

(b) the suitability of surplus employees, whose appointment was not through the agency of the Commission shall be adjudged by the Commission for the post which is equivalent to the post on which they were initially appointed though they may be working on the date of their being declared surplus on other equated or equivalent post or on a higher post on an officiating, ad hoc or temporary capacity irrespective of their lengh of service.

10. Sub-rule (5) is important. It lays down that it will not be necessary to adjudge the suitability of those permanent or temporary absorbed surplus employees who were initially appointed on previous posts either on the recommendation of the Commission or in a regular manner by the appointing authority and who are subsequently appointed to new posts. The term 'New post' means a post on which surplus employee is appointed by absorption under these rules. Rule 15 is for the fixation of seniority of surplus employees after absorption. In the Schedule, the circular dated 24/27-3-61 is given. It relates to the posts which were abolished with effect from 1st June, 1861. Also a circular dated 12th June, 1862 is included therein. The combined effect of the provisions of the Rajasthan Service Rules, the circulars which are row at pat with the statutory rules and the Rules of 1969 made applicable from 1-1-1854 is like this:

(1) A permanent Government servant holding a lien on a permanent post on absorption after he is declared surplus, has to be provided with a lien on a permanent post. In other words, if he is retained in service after he is declared surplus, then he must be given a permanent post, otherwise, there will be violation of Rule 18 of the Rajasthan Service Rules, 1951.

(2) The effect of Rule 2 of the Rules of 1969 is that all other service rules or orders for the time being in force regulating the recuirtment and conditions of service of persons appointed to the various services or posts are of no avail so far as the surplus personnel are concerned and their absorption shall be in accordance with these Rules subject to the availability of the vacant posts.

(3) If the post is vacant, then the surplus employee who is permanent will be appointed to such new post in permanent capacity. If there is no such post as is vacant, then a supernumerary post for a lien will have to be provided for him & it may be over and above the prescribed strength of the cadre to which he is appointed otherwise than in a permanent capacity; otherwise there will be violation of Rule 7 of the Rules of 1969, the table whereunder lays down that if the nature of the post held by the surplus employee is permanent and he is substantive, then the nature of appointment to be given after absorption will be substantive on permanent post, if the post is clearly vacant. If the post is not clearly vacant or if the lien thereon is held by another person, the Government shall create a supernumerary post for providing lien thereon to the absorbed employee. Thus, if the petitioner is correct in saying that he was a permanent servant of the Government, which undoubtedly he is as this position is admitted, then the Government are bound to appoint the petitioner on absorption against a permanent post and in a substantive capacity. If the post is available, then the surplus employee shall hold such available post in substantive capacity. If it is not available, then for making room for him, a supernumerary post will be created so that he may hold his lien on that posts. As will appear from my detailed order dated 13-1-70, information was called about the existence of vacant posts on the relevant date and it appears from the information furnished by the learned Advocate General that a permanent vacancy at the relevant time was not available. That may be so. But them the appointment of the petitioner as Deputy Director after he was declared surplus cannot but be otherwise than in substantive capacity and his lien will have to be provided by creating a supernumerary post of Deputy Director. Even if it was for a period of a few months, the petitioner cannot remain without a lien against a permanent post. After the post of Director, Vocational and Guidance Bureau was again created and the petitioner was posted as Director Vocational and Guidance Bureau, he may be taken to be substantive holder of that post. Now it is in this light that one has to look at the order Ex. 7. Order Ex. 7 runs as under:

In pursuance of Cabinet Secretariat Order No. F. 12 (16) Cab/62-Pt. II dated the 20th September, 1962, regarding rationalisation of ranges and jurisdiation of District level Officers the following transfers/postings are hereby ordered:

Name From To

Shri Shambhulal Deputy Director of Deputy Director of

Sharma Education, Jaipur. Education, Udaipur.

Shri Ratan Singh Offg. Deputy Director Offg. Deputy Director

of Education, Kota. of Eduaction, Jaipur.

Shri K.K. Chaturvedi Deputy Director of Head master, Sadul

Education, Head-quarters, Pubolic School, Bikaner

Bikaner.

Shri J.D. Vaish Offg. Deputy Director Deputed for training

of Education, Udaipur at Dehli for a period

of 3 months. On return

he will join as

Offg. Deputy Director

Head-quarters vice

Shri K.K. Chaturvedi.

Shri Gopal Krishna Awaiting posting orders Deputy Director

at Bikaner Head-quarter (The

Junior most Deputy

Director will be reverted

to his substantive

post as Inspector of

Schools).

Shri V.D. Brijbasi Offg. Inspector of Offg. Assistant Director

Schools, Bharatpur Mid-day Milk

Scheme attached to

the Deputy Director

School Education

(New post).

Shri S.M. Sayeed Inspector of Schools, Registrar, Departmental

Bikaner Examinations,

Bikaner and I.O.S. for

Bikaner City Schools.

Shri R.C Calla Offg. Deputy Director Inspector of Schools,

of Education, Bikaner Jaipur.

Shri Hariharlal Offg. Inspector of Offg. Inspector of

Gupta Schools, Jaipur (East) Schools, Jhunjhunu

Shri S. Raghunandan Offg. Inspector of Offg. Inspector of

Swarup Schools, Ganganagar. Schools, Bharatpur.

Shri N.L. Verma Offg. Assistant Director, Offg. Additional

Social Education, Inspector of Schools,

Jaipur. Jaipur.

Shri S.N. Dwivedi Offg. Inspector of Offg. Inspector of

Schools, Jhunjhunu Schools, Ganganagar

Shri Ahmed Ali Offg. Inspector of Offg. Inspector of

Schools, Tonk Schools Karauli (For

Sawai Madhopur Tonk)

Shri B.M. Trivedi Offg. Inspector of Offg. Inspector of

Schools, Jalore. Schools, Barmer

Shri P.S. Trivedi Offg. Registrar, Depar tmental Offg. Inspector of

Examinations, Schools, Banswara

Bikaner. (Banswar--Dungarpur)

Shri B.L. Kurawat Offg. Inspector of Offg. Inspector of

Schools, Banswara Schools, Chittor

Smt. O. Joshi Offg. Inspector of Offg. Inspector of

Schools, Bundi Schools, Kota (Kota-Bundi).

Shri T.L.G. Trivedi Offg. Inspector of Offg. Inspector of

Schools, Chittorgarh Schools, Udaipur.

Shri P.S. Kumar Offg. Head Master, Offg. Asstt. Director

Sadul Public School, Social Education,

Bikaner Jaipur

Shri A.S. Mathur Offg. Inspector of Offg. Registrar Board

Schools, Karauli of Technical Education,

Jodhpur.

Shri S. Kumar, Dy. Director or Education, Jodhpur will continue as Officiating Dy. Director, Jodhpur Range.

The Inspector of Schools at Ajmer, Alwar. Sikar, (For Churu and Rural areas of Bikaner), Jodhpur, Nagpur, Pali, Sirohi, Bhilwara and Jhalawar will continue to work as heretofore.

It supercedes this Department Order of even number dated the 11th August, 1962.

11. A persual of this order shows that whereas other officers who were oppointed in officiating capacity, the word 'officiating' was prefixed against the new posting, in the case of the petitioner whose name appears at serial No. 5, it is mentioned that he is to be Deputy Director Head-quarters and it further mentioned there that the junior most Deputy Director will be reverted to his substantige post of Inspector of Schools. This order Ex. 7 was issued in persuance of the Cabinet Secretariat order. About respondent No. 4 it is mentioned that he will continue as Deputy Director, Jodhpur Range. Therefore. there is no escape from the conclusion that the petitioner, after his absorption, became Deputy Director in the Education Department in substantive. capacity.

12. Now, the date of the order Ex. 7 is 3rd October, 1962, The Rajasthan Educational Service Rules, 1960 had come into force in the year 1960. Rule 4(g) defines the term 'Member of the Service' to mean a person appointed substantively to a post in the service under the provisions of these Rules. To the extent it is said in these Rules that a person has to be appointed in accordence with these rules, such rules stand superseded by the Rules of 1969 by virtue of Rule 2 thereof. Therefore, in the case of a surplus employee who is absorbed, he will be deemed to have been appointed in substantive capacity notwithstanding anything contained in the Rajasthan Educational Service Rules and as there was no post of a Deputy Director outside the cadre of the Rajas than Educational Service, the petitioner had become a member of the Rajasthan Educational Service on his appointment as Deputy Director in terms of Ex 7.

13. Now I may examine the effect of the petitioner's subsequent posting as Director, Vocational and Guidance Bureau when the post was again created in the year 1933. The order of the petitioner's appointment as Director. Vocational and Guidance Bureau is Ex. 8. It runs as follows:

Dr. Gopal Krishna at present working as Deputy Director of Education at Bikaner in place of Mrs. K. Patwardhan who proceeded on leave is hereby posted as Director, Educational and Vocational Guidance Bureau, with head-quarters at Bikaner with immediate effect against the new post created under Government order No. F. 9(a)(14) Edu/Cell-I/62, dated the 6th March, 1963.

14. This order only shows that the petitioner is posted as Director, Educational and Vocational Guidance Bureau. This post is an ex-cadre post, being not included in the Rajasthan Educational Service, but there is no legal bar to a member of the Rajasthan Educational Service holding an ex-cadre post. The mere fact that he is posted on an ex-cadre post will not lead to the result that he has ceased to be a member of the Rajasthan Education Service.

15. As such member he will be entitled to be considered for a higher post in the Educational Service along with other eligible candidates as without that there would be violation of Article 16 of the Constitution. So far as the question of lien is concerned, according to Rules 19 and 20 of the R.S.R., the Government may transfer the lien of a Government servant from one post to another. Nevertheless a person who has become a member of the Rajasthan Educational Service by virtue of the Absorption Rules cannot be removed from that service, and he will continue to be a member thereof. As I have already observed, a member of the Service can be asked to hold an ex-cadre post provided the ex-cadre post does not carry less emoluments than the post on which the person is holding a lien for time being

16. In these circumstances, the State Gavernment has to assign a proper seniority to the petitioner in the Rajasthan Educational service and to consider him for promotion to higher post as and when such an opportunity arises.

17. As I have already observed, one of the two respondents, namely Shri S.C. Mathur has already retired . and respondents No. 4 Shri S. Kumar is holding the appointment as Joint Director of Education only in an Officiating capacity. As such, it appears just and proper that the respondent State be directed to assign a proper seniority to the petitioner in the Rajasthan Educatioasl Service in the cadre of Deputy Directors according to Rule 15 of the Rajasthan Civil Services (Absorption of Surplus Personnel) Rules, 1969 and after fixation of the seniority vis-a-vis the other members of the Service in the cadre of Deputy Directors to consider the petitioner as Well for promotion to the post of Joint Director in the Education Department as and when such post is to be filled up. In view of the conclusion that I have reached, I am not called upon to consider the question about the validity of the Rajasthan Educational Service Rules, 1960 on account of the non-inclusion of the post of Director, Vocational and Guidance Burea therein.

18. In the result, I allow the writ petition in part and direct the State Government to fix the petitioner's seniority in the cadre of Deputy Director of Education within a period of six months from today and then to consider his name when the post of a Joint-Director of Education is to be filled up by promotion in future. The parties are left to bear their own costs.


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