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Jagannath Singh Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 621 of 1975
Judge
Reported in1983WLN(UC)523
AppellantJagannath Singh
RespondentState of Rajasthan and ors.
Cases Referred(R.P. Sharma v. State of Rajasthan and Ors.). In
Excerpt:
rajasthan civil services (absorption of civil personnel) rules, 1969 - rules 7(1), 11(5) and 16(3)--rajasthan services (recruitment by promotion against vacancies of previous years ) rules, 1972 and rajasthan service of engineers (public health branch) rules 1968--rule 5--temporary lecturer absorped as temporary asst. engineer (civil)--held, absorption is right.;the petitioner was a temporary employee of the education department and on his being declared as surplus, he was rightly absorbed on the post of assistant engineer (civil) in the public health engineering department, also in a temporary capacity.;(b) rajasthan civil services (absorption of civil personnel) rules, 1969 - rule 7(1), 11(5) and 16(3) and rajasthan services (recruitment by promotion against vacancies of previous years).....dwarka prasad gupta, j.1. this writ petition raises a complex question about the seniority of assistant engineers (civil) in the rajasthan public health engineering department.2. the petitioner is a holder of degree of bachelor of engineering (civil) and he was initially appointed as a lecturer in civil engineering department in jodhpur polytechnic, after selection by a selection committee constituted by the director of technical education, rajasthan. the advertisement which was issued for the aforesaid selection stated that 9 persons were to be selected for the posts of lecturer in civil engineering for the various polytechnics in the state of rajasthan, out of which six posts were temporary but were likely to become permanent while 4 temporary posts were likely to be created from july.....
Judgment:

Dwarka Prasad Gupta, J.

1. This writ petition raises a complex question about the seniority of Assistant Engineers (Civil) in the Rajasthan Public Health Engineering Department.

2. The petitioner is a holder of degree of Bachelor of Engineering (Civil) and he was initially appointed as a Lecturer in Civil Engineering Department in Jodhpur Polytechnic, after selection by a Selection Committee constituted by the Director of Technical Education, Rajasthan. The advertisement which was issued for the aforesaid selection stated that 9 persons were to be selected for the posts of lecturer in Civil Engineering for the various Polytechnics in the State of Rajasthan, out of which six posts were temporary but were likely to become permanent while 4 temporary posts were likely to be created from July 1967. When the petitioner's appointment order was issued on August 5 1967, it appears that all the 9 posts of lecturers in civil engineering had come into existence. The petitioner's name finds place at serial No. 8 in the list prepared by the selection committee, recommending names of selected candidates for appointment as lecturers in civil engineering. In the appointment order dated August 5, 1967, it was mentioned that all the candidates, including the petitioner, will be placed on probation for a period of two years. It appears that later on some posts of lecturers in civil engineering in the Polytechnics were abolished and the petitioner and some other lecturers were declared surplus. The petitioner was absorbed by the Absorption Committee by its order dated 26-10-68 as Assistant Engineer in the Public Health Engineering Department. The Chief Engineer of the Public Health Engineering Department, Rajasthan, by his order dated October 28,1968 posted the petitioner as Assistant Engineer at the Head Office at Jaipur.

3. Soon after the petitioner and some other lecturers were absorbed in the Public Health Engineering Department, a dispute arose as to whether the petitioner and other lecturers like him were permanent employees in their parent department or were merely temporary employees. The petitioner's case was that he was appointed on probation against a permanent post and as such on absorption in the Public Health Engineering Department he should have been absorbed as a permanent employee. The order of absorption Ex.2 is conspicuously silent as to whether the petitioner was a permanent or a temporary employee or he was absorbed as a permanent or temporary Assistant Engineer. The dispute went on for a number of years and ultimately by the order of the State Government dated January 11, 1975, the petitioner and other lecturers who were declared surplus from their parent department and were absorbed as Assistant Engineers in the Public Health Engineering Department were confirmed on the post of Assistant Engineers (Civil) with effect from January 1, 1971. On January 16, 1975 a seniority list of Assistant Engineers (Civil) was also issued by the Department in which the petitioner and other surplus lecturers were assigned seniority on the basis that they were earlier temporary employees absorbed as Assistant Engineers (Civil) in a temporary capacity. The aforesaid orders, confirming the petitioner with effect from January 1,1971, on the post of Assistant Engineer (Civil) and the seniority list dated January 16, 1975 prepared on that basis, have been challenged by the petitioner in the present writ petition.

4. The first contention of the learned counsel for the petitioner is that the petitioner and other lecturers appointed with him in the Civil Engineering Department of the Polytechnics were initially appointed on probation on substantive posts, after a regular selection by the selection committee constituted for the purpose and that when the petitioner and other lecturers were declared surplus from the parent department and were absorbed as Assistant Engineers in the Public Health Engineering Department, they should be considered to have been absorbed as permanent employees in accordance with Rule 7(1) of the Rajasthan Civil Services (Absorption of Surplus Personnel) Rules, 1969 (hereinafter referred to as 'the Absorption Rules') and that seniority should be assigned to the petitioner and other absorbed lecturers under Rule 15(1) of the said Rules. The second submission of the learned counsel is that in case it is held that the petitioner and other lecturers like him were appointed on a temporary basis against temporary posts, yet as they were selected in a regular manner by a properly constituted selection committee, before they were appointed as lecturers in the Civil Engineering Department, their case fell within Sub-rule (5) of Rule 11 of the Absorption Rules and as permanent vacancies were then available in the Public Health Engineering Department when the petitioner and other similarly situated lecturers were absorbed as Assistant Engineers in that department, they should have been absorbed on permanent basis. A further submission has been made by the learned counsel for the petitioner that in case it is held that the petitioner was appointed as a lecturer in the Civil Engineering Department on a temporary post and after he was declared surplus in the parent department, he was absorbed in the Public Health Engineering Department as a temporary employee, yet on account of the existence of permanent vacancies in the new department, the petitioner was entitled to be confirmed on the new post in accordance with sub-rule (3) of rule 16 of the Absorption Rules before the respondents Nos. 3 to 8, who were appointed as Assistant Engineers (Civil) on a temporary basis after selection by the Rajasthan Public Service Commission.

5. It may be observed that 22 posts of Assistant Engineers (Civil) for the Public Health Engineering Department were advertised by the Rajasthan Public Service Commission March 8, 1967, out of which 16 posts were permanent while 6 posts were temporary. The respondents Nos. 3 to 8 were selected by the Rajasthan Public Service Commission, in pursuance of the aforesaid advertisement, with respect to 6 temporary posts of Assistant Engineers (Civil). Those respondents Nos. 3 to 8, after their selection by the Rajasthan Public Service Commission, were appointed as Assistant Engineers (Civil) on temporary basis until further orders, by the orders of the State Government dated January 31, 1968 and February 19, 1968. By an order dated January II 1975 the respondents Nos. 3 to 8 were appointed as Assistant Engineers (Civil), against permanent posts retrospectively from the date of their joining the Public Health Engineering Department and by the same order they were confirmed with effect from various dates in the year 1970, on the completion of two years' service on the posts of Assistant Engineer (Civil), except Shri S.K. Choudhary whose record of service was considered to be unsatisfactory and who was confirmed with effect from February 1, 1971 on the completion of three years' service.

6. So far as respondents Nos. 28 and 29 are concerned, the petitioner has no longer any grievance, because by a subsequent order issued by the State Government dated April 1, 1975 (Ex R-7) the seniority of respondents Nos. 28 and 29 has been modified and bath of them have been placed below Shri H.L. Chouhan respondent No. 8 and above the promotees of 1970. In respect of other respondents Nos. 12 to 27, it is not disputed by the petitioner that they were appointed after regular selection by the Rajasthan Public Service Commission in the year 1967 and it appears from the advertisement referred to above that 16 permanent posts of Assistant Engineers (Civil, were then available. As respondents Nos. 12 to 27 were appointed substantively against permanent posts after regular selection by the Rajasthan Public Service Commission, and they were also subsequently confirmed in their posts on the completion of the period of their probation and so respondents Nos. 12 to 27 were undoubtedly senior to the petitioner. The other respondents Nos. 10,11 and 11-A are promotees on the posts of Assistant Engineers (Civil) and they have been assigned the year 1965 in accordance with the provisions of the Rajasthan Services (Recruitment by Promotion against Vacancies of earlier years) Rules, 1972. The learned counsel for the petitioner, at the time of arguments before me, does not raise any contest regarding the seniority assigned to the respondents Nos. 10,11 and 11-A the seniority list Ex.6 dated January 16, 1975. Respondent No. 9 has been assigned seniority at No. 54 in the aforesaid seniority list dated January 16, 1975 as a promotee who was assigned the year 1970 under the aforesaid 1972 Rules.

7. The petitioner urged that his initial appointment as a lecturer in the Polytechnic was made on a substantive basis. He has relied upon the fact that in the appointment order Ex. 1 dated August 5, 1967 all the nine appointees, including the petitioner are shown to have been appointed on probation for a period of two years. The contention of the learned counsel for the petitioner is that the appointment order does not show that the appointment of the petitioner as a lecturer was made against a temporary post or on temporary basis and because the appoiotment of the petitioner was made on probation for a period of two years, it should be assumed that the petitioner was appointed on substantive basis on a temporary post or on substantive basis on a substantive post Support was sought in this respect from the letter of the Deputy Secretary to the Government in the Education Department dated December 18, 1968 (Ex. 3) in which it was stated that:

I am to inform you that these officers were working on probation against the permanent posts.

The letter sent by the Director, Technical Education, Rajasthan, Jodhpur dated November 9, 1968 (Ex. 13), also stated that the petitioner and other lecturers appointed along with him, were appointed on probation.

8. In reply to the aforesaid documents relied upon by the learned counsel for the petitioner, learned counsel for the respondents referred to the other documents placed on the record which go to show that the contention of the learned counsel for the petitioner in this respect does not appear to be justified. The Director of Technical Education by his letter dated September 10, 1970 (Ex. R-4) informed the State Government that the nature of appointment of the petitioner and other lecturers appointed along with him was temporary and that they were appointed on probation. Another letter sent by the Director dated March 26, 1973 (Ev. R-3) shows that the Directorate did not recommend the appointment of the petitioner and other lecturers, Devi Singh, S.S. Ramecha, A.U. Thanwani on permanent basis or even for placing the said candidates on probation, because permanent posts were not available for them at that time. Similarly, an earlier letter written by the Director of Technical Education to the State Government on February 2, 1968 (Ex. R-2.) goes to show that the Director, even at that stage, drew the attention of the State Government to the fact that the persons appointed as lecturers even earlier to the appointment of the petitioner and other lecturers of his batch, were appointed purely in a temporary capacity. The Director had drawn the attention of the State Government to the anomalous situation created on account of the appointment of the earlier batch of lecturers in a temporary capacity and the appointment of the subsequent batch of persons as lecturers on probation for a period of two years. It was also mentioned therein that the Directorate did not recommend the appointment of the latter batch of lecturers, including the petitioners permanent basis nor requested for placing those candidates on probation. The Director requested the State Government that the condition of probation for a period of two years contained in the order of appointment of the petitioner and other lecturers of his batch should be withdrawn and the persons belonging to the earlier batch and appointed by the order dated March 16, 1967 may be placed on probation against permanent vacant posts of lecturers, instead of the petitioner and other appointees of his batch. Then by a subsequent order dated February 13, 1974 (Ex R-6) passed by the State Government, the confirmation of three lecturers of the batch of the petitioner, namely, Devisingh. S.S. Pamecha and A.U. Thanwani was withdrawn. The aforesaid letter dated February 13, 1974 contain the following recital:

The matter was examined by this Deptt. in consultation with the Education Department, when it transpired that these persons were selected by the Education Department against temporary posts of Lecturers, though they were regularly selected by the Selection Committee of that Department.

9. Thus, from all the documents placed on record it clearly emerges that four lecturers, namely, U.M.Lodha, L.K.Nuwal, A.U.Thanwani and the petitioner, whose names appeared at serial Numbers 6 to 9 in the appointment order dated August 5, 1967 were appointed in a temporary capacity against temporary posts, although they were regularly selected by the selection committee constituted by the Department of Technical Education. It , may be mentioned here that U.M.Lodha also appeared before the Rajasthan Public Service Commission for direct recruitment in the year 1967 and was selected by the Commission against permanent post, while L.K.Nuwal did not join the service as a lecturer.

10. The question as to whether the petitioner and other persons of his batch, who were subsequently declared surplus, were appointed as lecturers in a temporary capacity or they were substantively appointed in those posts on probation, was also raised before this Court in S.B Civil Writ petition No.555 of 1974 (R.P. Sharma v. State of Rajasthan and Ors.). In that writ petition, the present petitioner was amongst respondents Nos. 3 to 6, while Swadesh Pal was respondent No. 2. This Court differentiated the case of Swadesh Pal from that of the respondents Nos. 3 to 6,including the petitioner and held that Swadesh Pal was a substantive lecturer in the Polytechnic at the time of his absorption in the Public Health Engineering Department, while the petitioner and other persons of his batch were declared surplus while they were holding the posts of lecturers in a temporary capacity and as such they were entitled to be absorbed in the new cadre of Assistant Engineers (Civil) in the Public Health Engineering Department below the temporary employees then working as Assistant Engineer (Civil), who had rendered a longer period of continuous temporary service in that cadre.

11. From a perusal of the material placed on record, it clearly emerges that in the appointment order (Ex.1) dated August 5, 1967 it was erroneously mentioned that the petitioner and three other persons, whose names were included at serial number 6 to 9, in the said order Ex 1 were, placed on probation. If the appointment order is read alongwith the extract of the advertisement Ex. R1, it appears that only five posts of Assistant Engineers were substantive, while the remaining four posts were temporary and the petitioner having been recruited for one of the remaining four posts, his appointment ought to have been shown as temporary and not as one made on probation, on account of the fact that a substantive post was not vacant. The positition has been clarified, both by the Director of Technical Education as well as by the State Government, in the letters Ex.R2, Ex.R3, Ex.R4 Ex. R6. It thus appears to be a sheer mistake that in the appointment order Ex.1 no distinction was made between the five persons who were appointed on probation against permanent posts and the remaining four persons, who were appointed in a temporary capacity against temporary posts, because no permanent post was available for them. Once it is held that the petitioner was a temporary employee while he was working as lecturer in Civil Engineering in the Polytechnic then after his being declared as surplus therefrom, he could have been absorbed only in a temporary capacity, in accordance with Rule 7(1) of the Absorption Rules. Thus, the appointment of the petitioner by absorption on a temporary basis, as mentioned in the order dated September 28, 1968 (Ex.R-5) appears to be fully in accordance with the factual position. Thus, the petitioner was a temporary employee of the Education Department and on his being declared as surplus, he was rightly absorbed on the post of Assistant Engineer (Civil) in the Public Health Engineering Department, also in a temporary capacity. In this view of the matter, the petitioner can have no case so far as respondents Nos. 12 to 27 are concerned, who were appointed, after regular selection by the Rajasthan Public Service Commission, by direct recruitment in a substantive capacity against permanent posts

12. Coming to the second contention of the learned counsel for the petitioner, it may be pointed out that under the Absorption Rules, if a person was earlier holding a temporary post even after regular selection, then after his absorption his appointment in the new cadre would be only on a temporary basis. Rule 7(1) of the Absorption Rules makes the legal position clear in this respect. If the post earlier held by the person is temporary and the nature of his appointment is also temporary, then the post to be given to him after absorption should also be temporary and the nature of his appointment would also be temporary capacity. The fact that the petitioner was selected by a duly constituted selection committee, before he came to be appointed on the post of lecturer in Civil Engineering, would undoubtedly bring bis case under Sub-rule (5) of Rule 11 and as such it would not be necessary to adjudge his suitability again on the new post to which he was appointed after absorption, as he was initially appointed on the previous post on the basis of the recommendation of a duly constituted selection committee. As a matter of fact, under Rule 16(3) such a person is entitled to be confirmed on the new post on which he is appointed by absorption, from the date of availability of substantive vacant post, in order of seniority. Thus, the question which now arises is as to when a vacant permanent post of Assistant Engineer (Civil) in the Public Health Engineering Department was available for the petitioner so that he could be lawfully confirmed on that post under Rule 16(3) of the Absorption Rules. It appears that the question of inter-se seniority of the petitioner and other lecturers in Civil Engineering, who were appointed along with him, in a temporary capacity but were later on declared surplus and were absorbed in the Public Health Engineering Department on the posts of Assistant Engineer; and the respondents Nos. 3 to 8, who were directly recruited to the posts of Assistant Engineers in the year 1968 remained unresolved for a number of years. The file of the State Government Secretariat relating to the determination, of seniority and confirmation of the officials of the Public Health Engineering Department was placed before me by the learned Deputy Government Advocate and it appears from a perusal thereof that lot of complications arose in that matter, and considerable difficulty was experienced by the State Government in deciding the rival claims to seniority advanced by the surplus lecturers, including the petitioner and respondents Nos.'3 to 8, who were freshly recruited as Assistant Engineers on temporary posts. At the time when the respondents Nos. 3 to 8, were appointed as Assistant Engineers in the Public Health Engineering Department, there were no specific service rules governing the appointment, promotion or other service conditions relating to the officers of the Public Health Engineering Department. The Rajasthan Service of Engineers (Public Health Branch) Rules, 1968 'were published in the Rajasthan Gazette dated July 19, 1968 and thereby a Rajasthan Service of Engineers (Public Health Branch) was constituted. According to Rule 5, all persons holding substantively the posts specified in the Schedule and who opted for the service, were deemed to have been substantively appointed in the service. Similarly, all those persons who were temporarily appointed to the posts included in the Schedule and who opted for the service, were deemed to have been appointed temporarily to the service. The respondents Nos. 3 to 8 did not fall into either of these two categories as they were not employees of the erstwhile Public Works Department, which was bifurcated to form the new Public Health Engineering Department. As a matter of fact, the respondents Nos. 3 to 8 were freshly recruited as Assistant Engineers in the Public Health Engineering Department itself, on the basis of the advertisement issued on March 8, 1967.

13. So far as 16 persons, who were substantively appointed against permanent posts and who are respondents Nos. 12 to 27, the petitioner could have no grievance, in as much as they were holding the posts of Assistant Engineer in the Public Health Engineering Department substantively at the time when the petitioner was declared surplus in his parent department and was absorbed as Assistant Engineer (Civil) in the same Department. However. respondents Nos. 3 to 8 and the petitioner stood on the same footing, in as much as the petitioner and his batch of lecturers, who were absorbed in a temporary capacity on the posts of Assistant Engineers (Civil) as well as respondents Nos. 3 to 8, who were temporarily appointed on the posts of Assistant Engineer (Civil), although , after due selection by the Rajasthan Public Service Commission, were after all temporary employees at the relevant time. According to Rule 15(2) of the Absorption Rules, the seniority of a surplus employee appointed to a new post in a temporary capacity among the temporary employees holding same class of posts in which he is absorbed has to be determined by placing him immediately below the temporary employees of the new cadre who had rendered a longer period of continuous temporary service compared to the continuous temporary service of the surplus employee on the equivalent post. Thus, the petitioner, having been appointed on the equated post of lecturer in Civil Engineering in the Polytechnic by the order dated August 5, 1967, had rendered a longer period of continuous temporary service as compared to the respondents Nos. 3 to 8, who were appointed as Assistant Engineer (Civil) in a temporary capacity by the order dated January 31, 1968 and February 19,1968. Thus, in view of the provisions of Rule 15(2), the Petitioner should have ranked senior to respondents Nos. 3 to 8.

14. Learned counsel for the respondents Nos. 3 to 8, however, urged that substantive posts were available in the Public Health Engineering Department and as respondents were appointed after due selection by the Rajasthan Public Service Commission, they should be held to have been substantively appointed against permanent posts. It was urged by the learned counsel that there was a mis-calculation and on that basis the respondents Nos. 3 to 8 were appointed only in a temporary capacity. A lot of material has been placed before me on behalf of the State Government to show that permanent posts of Assistant Engineers were available against which respondents Nos. 3 to 8 were or could have been appointed after their selection by the Rajasthan Public Service Commission. However, from a perusal of the entire record, which has been placed before me and the file of the secreteriat it does not appear that at the time of initial appointment of respondents Nos. 3 to 8 permanent posts of Assistant Engineers were available on which they could be appointed. The note at page 370 in the Government file shows that as on August 1, 1968 there were 46 permanent posts and 6 temporary posts of Assistant Engineers (Civil), out of which 39 posts could be filed in by direct recruitment while 15 posts were available for promotion quota. The service Rules, as I have already mentioned above, came into force on July 19, 1968. Thereafter, the State Government fixed the cadre strength by the order dated September 9, 1968, according to which there were 38 permanent posts, of Assistant Engineers ( Civil) and 3 temporary posts, which were likely to be made permanent. There were 5 more posts by way of deputation, leave and training reserve. By a subsequent order passed by the State Government on May 30, 1970, the three temporary posts of Assistant Engineers (Civil) were converted into permanent posts with effect from September 9, 1968. Thus, 41 permanent posts and 5 temporary posts for deputation, leave and training reserve, in all 46 posts, were available on September 9, 1968, of which 33 belonged to the direct recruitment quota while 11 were of promotion quota. This was so because of the fact that two substantive lecturers in Civil Engineering, who were substantively holding the posts of lecturers before they were declared surplus and were absorbed as Assistant Engineers, namely, Jaikrishan and Swadesh Pal, were to be absorbed and assigned proper seniority according to length of continuous permanent service rendered by them, as provided in Rule 15 CD of the Absroption Rules. Thus, out of 46 substantive posts available on 9th September, 1968, two posts were assigned to the aforesaid two substantive lecturers, who were absorbed as Assistant Engineers (Civil). If the seniority list Ex. 6 is examined, it appears that the respondents Nos. 3 to 8, whose names appeared at S. Nos. 48 to 53 could not have come within the first 45 employees, who could occupy permanent posts available on that date. In this view of the matter, the argument of the learned counsel for the respondents Nos. 3 to 8 cannot be accepted that permanent posts were available in the department at the relevant time on which the said respondents could be substantively appointed.

15. Learned counsel drew my attention to the definition of substantive appointment' contained in Rule 2 (j) of the Service Rules. According to the said definition 'substantive appointment' means an appointment made under the provisions of the Rules to a substantive vacancy after due selection by any of the methods of recruitment prescribed under the Rules and includes an appointment on probation. The respondents Nos. 3 to 8 were not appointed on probation. But the argument of the learned counsel for the respondents is that as they were appointed against substantive vacancies after due selection, they should be deemed to have been substantively appointed on the posts of Assistant Engineers (Civil), with effect from the date on which they were initially appointed to such posts. It is clear that respondents Nos. 3 to 8 could not have been appointed against substantive vacancies, as they did not exist at the relevant time. Moreover, it may also be pointed out that clause (j) of Rule 2 was inserted in the Service Rules by the notification dated July 3, 1974 and the same was not in existence either when the respondents Nos. 3 to 8 were appointed as Assistant Engineers (Civil) or even on the date when the Rules came into force or on September 9, 1968 when the cadre strength of the service was fixed. Thus, neither the respondents No. 3 to 8 were appointed in a substantive capacity nor they were appointed against substantive vacancies. The argument of the learned counsel for the respondents in this respect is based upon a misconception about the nature of vacancies available at the time of appointment of the respondents Nos. 3 to 8 as Assistant Engineers (Civil), on January 1, 1968 or even on September 9, 1968.

16. The Government record also shows that as some difficulty was experienced by the State Government in deciding the matter relating to inter se seniority between the petitioner and his batch of lecturers, who were declared surplus and were then absorbed as Assistant Engineer (Civil) and the respondents Nos 3 to 8 who were directly appointed to such posts, the State Government sought to resolve the conflict by converting six temporary posts in the cadre of Assistant Engineers (Civil) info permanent post retrospectively with effect from January 1, 1968. Three orders were issued by the State Government on January 11, 1975. By one order issued on that date, the State Government converted 6 temporary posts of Assistant Engineers (Civil) into permanent posts with effect from January 1, 1968 and also converted six more temporary posts into permanent post with effect from June 18, 1970. By another order issued on the same date, respondents Nos. 3 to 8 were deemed to have been appointed against permanent posts from the date of their joining as Assistant Engineers (Civil) and five of them were confirmed after completion of two years' service on the post of Assistant Engineer (Civil), It may be mentioned here that in the order dated January 11, 1975 the State Government acknowledged the fact that respondents Nos 3 to 8 were appointed in a temporary capacity till then, as Assistant Engineers (Civil). The idea was that after the conversion of six temporary posts of Assistant Engineers (Civil) into permanent posts, respondents Nos. 3 to 8 would be able to avail of those posts and that it would be possible to adjust them against such substantive posts retrospectively with effect from the date they joined the department. The State Government thought on those lines as appears from para 376of the Government file.

17. However, while forming this view, the State Government failed to take into consideration the fact that out of the six temporary posts, which were thus retrospectively converted into permanent posts, two had to be allotted to the promotion quota, as out of 52 total posts, (as shown in para 370 of the Government file) after the conversion of 6 temporary posts info permanent posts only 39 posts could be filled in by direct recruitment, while 13 had to be filled in by promotion. While fixing the quota, the question of fixation of the emyloyees absorbed under the Absorption Rules also ought to have been taken into consideration. Rule 9 of the Absorption Rules provides that if a service rule contains provisions for filling up vacant posts both by direct recruitment and promotion, then the total number of vacant posts available for recruitment shall be determined after reducing the number of vacant posts by those filled in by appointment by means of absorption. It may be pointed out that the Absorption Rules have an over-riding effect over other Service Rules. Rule 2 of the Absorption Rules being with a non-obstente clause and provides that anything contained in any service Rules or orders for the time in force regulating the recruitment and conditions of service of persons appointed to the various services or posts shall be subject to the appointment by absorption of surplus personnel eligible for appointment in accordance with the Absorption Rules. If the six posts which were converted by the order dated January 11, 1975 into permanent posts, would not have been available for appointment by direct recruitment, then the respondents Nos. 3 to 8 could not have been appointed against those permanent posts by the odrer dated January 11, 1975.

18. The third order (Ex.5) issued on January 11, 1975 relates to the petitioner and his batch of surplus lecturers absorbed as Assistant Engineers (Civil). By that order, the State Government confirmed the petitioner and his batch of surplus lecturers on the post of Assistant Engineers (Civil) with effect from January 1,1979 keeping in view the availability of substantive posts. Thus, according to the order Ex.5, substantive posts were not available for confirmation of the petitioner and other absorbed lecturers, who were similarly situated as the petitioner, before January 1, 1971 otherwise the petitioner could have been confirmed from a prior date. Sub-rule (3) of Rule 16 provides that temporary surplus employess, falling under Sub-rule (5) of Rule 11, shall be confirmed in their new posts from the date of availability of vacant posts, in order of their seniority as determined under Rule 15. If six temporary posts in the cadre of Assistant Engineer (Civil) were converted into permanent posts with effect from January 1, 1958 then according to Rule 16(3) of the Absorption Rules, three of such permanent posts should have been made available in the first instance to the surplus lecturer who were absorbed as Assistant Engineer (Civil). Although the petitioner was a temporary lecturer when he was declared surplus and was also absorbed as a temporary Assistant Engineer (Civil), in accordance with Rule 7 (1), yet if a permanent post was available in the cadre of Assistant Engineer (Civil) on November 6, 1968, when the petitioner joined the post of Assistant Engineer (Civil) after absorption, then such permanent post should have been made available to the petitioner and such permanent posts could not have been kept vacant for subsequent confirmation of some of the respondents Nos. 3 to 8.

19. The order Ex. 7 issued by the State Government January 11, 1973 relating to the appointment and confirmation of respondents Nos. 3 to 8,does not take into consideration the fact that some of the permanent posts, even if created retrospectively with effect from January 1, 1968, would have to be utilised for the confirmation of the surplus lecturers, who were absorbed in the cadre of Assistant Engineers (Civil) during the year 1968. The respondents Nos. 3 to 8 were confirmed after the completion of two years' service, in accordance with the provisions of Rule 30-A which was inserted in the Service Rules by the notification dated January 22, 1974 with retrospective effect from the date on which the service rules came into force. According to the provisions of Rule 30-A, thus introduced in the Service Rules, a person who was appointed on a post against a temporary vacancy after regular selection and who had put in more than 2 years' service on such post, shall be deemed to have completed the period of probation and on a permanent vacancy being available he shall be confirmed on such post, provided he fulfills other conditions for confirmation as laid down in the Rules. Thus, the respondent Nos. 3 to 8 were although appointed temporarily against temporary posts after regular selection, they could be confirmed on the posts of Assistant Engineers (Civil) on the completion of two years' probation on such posts, provided permanent vacancies were available. Before the respondent Nos. 3 to 8 could complete two years period of service, the petitioner and his batch of surplus lecturers were absorbed in the cadre of Assistant Engineers (Civil) by the order dated October 28, 1968. As Rule 16 (3) of the Absorption Rules would prevail over the Service Rules, as many permanent vacancies in the cadre of Assistant Engineers (Civil) as would be filled in by the surplus temporary lecturers who were absorbed in that cadre, the same could not be made available for being filled in either' by direct recruitment or by promotion. After the surplus temporary lecturers, including the petitioner, were accommodated against such permanent vacancies, the remaining vacancies were required to be distributed amongst the direct recruits and the promotees in the ratio of 3:1 and then as many direct recruits from amongst respondents Nos. 3 to 8, as could be accommodated in the remaining permanent vacancies, out of those which were converted into permanent posts with effect from January 1, 1968 could be confirmed under Rule 30-A of the Service Rules. The remaining persons, out of the respondents Nos. 3 to 8, would have to wait till further permanent vacancies were made available.

20. It is really unfortunate that the State Government wavered for a long time, some times favouring the surplus lecturers and sometimes favouring the Assistant Engineers appointed on temporary posts by direct recruitment, yet the ultimate solution which it thought of and which appears from the three orders issued on January 1, 1975 did not take into consideration the provisions of Rule 16(3) of the Absorption Rules and their overriding effect on the confirmation of the surplus lecturers on newly converted permanent posts. The respondent Nos. 3 to 8 were never appointed on probation and Under Rule 30A only upon the availability of permanent post, they could be confirmed after two years' service against the temporary posts on which they were appointed in a temporary capacity. This aspect of the matter was totally lost sight of by the State Government while passing the three orders dated January 11, 1975. A very easy solution was probably thought, namely, by converting six temporary posts of Assistant Engineers into permanent posts with effect from January 1, 1968, respondents Nos. 3 to 8 except B.K. Choudhary could be confirmed on such newly converted posts, as envisaged in para 376 of the Government file. The State Government also lost sight of the fact that 75% posts in the cadre of Assistant Engineers (Civil) could only be filled in by direect recruitment and 25% posts had to be filled in by promotion and thus all the six posts of Assistant Engineers, which were newly converted with effect from January 1, 1968 could not be made available for respondents No. 3 to 8, who were appointed by direct recruitment in a temporary capacity against temporary posts.

21. In this view of the matter, the writ petition is partly allowed and the orders, Ex: 5 and Ex. 7 dated January 11, 1975 are set aside and the State Government is directed to re-decide the question of confirmation of the petitioner and other surplus lecturers, who were absorbed as Assistant Engineers (Civil) and the respondents Nos. 3 to 8 afresh, keeping in view the observations made above and the provisions of the Rajasthan Civil Service (Absorption of Surplus Personnel) Rules, 1969 and the Rajasthan Service of Engineers (Public Health Branch) Rules, 1963. The seniority list Ex. 6 is also set aside, only to the extent it relates to the respondent Nos. 3 to 8, whose names appear at serial No. 48 to 53 in the said seniority list, and the surplus lecturers, whose names appear at serial Nos. 56 to 60. The State Government is also directed to re-decide the question of seniority amongst the direct recruits of 1968 and the surplus lecturers. Respondents Nos. 3 to 8 appear to have been wrongly described in the seniority list Ex. 6 as direct recruits of the year 1957. The State Government should re-decide the aforesaid matters of confirmation and seniority within reasonable time. The parties are left to bear their own costs.


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