D.P. Gupta, Actg C.J.
1. This writ petition has come up before us on a reference made by a learned Single Judge of this Court.
2. The petitioner entered Government service in the State of Rajasthan on September 1, 1954 arid after working on various posts he came to be appointed as Assistant traffic Inspector in the Roadways Department by order dated January 17, 1961 After he was selected for the aforesaid post by the Rajasthan Public Service Commission, he was confirmed in the said post on August 11, 1964. While the petitioner was working in the Roadways Department of the State Government, the Rajasthan State Road Transport Corporation (hereinafter called 'the Corporation') was constituted and the services of the petitioner along with several other employees were placed on deputation at the disposal of the Corporation. The order of the State Government, by which the services of the petitioner and others were placed at the disposal of the Corporation specifically provided that for the duration of the period of deputation of Such employees to the Corporation, supernumerary posts shall be Sanctioned separately in the directorate of Transport for retaining the lien of the petitioner and other employees, who were similarly sent to the Corporation.
3. On April 15, 1966 the State Government issued a circular inviting option from such employees whose services were placed at the disposal of the Corporation on deputation. Another circular was subsequently issued by the State Government on February 1, 1967 again inviting option from such employees and it was notified that the employees could exercise their option within a period of one month of the receipt of the notice and if any employee failed to exercise his option within the specified time, then it shall be deemed that the employee has given the option for returning to the service of the State Government. It is not disputed that the petitioner did not exercise any option. As a matter of fact he sought certain clarifications. It was also clearly mentioned in the circular dated February 1, 1967 that if the employee failed to give his Option within the specified time, but desired to have some clarification or submitted a representation the period of option shall not be considered to have been extended on any such ground. The petitioner's case was considered by the Absorption Committee constituted by this State Government and by the order dated December 13, 1967 the petitioner was ordered to be absorbed as a Store keeper, Family Planning in the Directorate of Medical and Health Services. The petitioner submitted a protest on the ground that the persons junior to him as Assistant Traffic Inspectors were absorbed on the posts of Motor Vehicles Sub-Inspectors in the Transport Department, on which posts the lien of the petitioner and such other persons was kept by creation of supernumerary posts but the petitioner was not so absorbed. It appears that the petitioners's representation in this respect was not accepted and at one stage his services were actually terminated. But then on a further reconsideration, the State Government by its letter dated December 4, 1963 directed the petitioner to join his duties on the post of Upper Division Clerk, Family Planning, under the Director. Medical & Health Services, within three days of the receipt of that letter, failing which his services would be terminated. The petitioner thereupon joined the post of Upper Division Clerk in the Directorate of Medical & Health Services and according to him he was ill for quite a long time and as such remained on leave for quite some time.
4. In the present writ petition, the grievance of the petitioner is that the persons junior to him in the former Roadways Department were observed on the post of Motor Vehicles Sub Inspector in the Directorate of Transport, while the petitioner was declared surplus, and was absorbed as the clerk in the Medical &, Health Department. Three of such persons, who have been absorved in the Transport Department as Motor Vehicles Sub-Inspectors, have been joined as respondents. Musaddilal, Satya Prakash Sharma, and Hari Narayan respondents were also holding the posts of Assistant Traffic Inspectors in the Corporation at the time when they were reverted and they were absorbed in the Transport Department of the State Government, as Motor Vehicles Sub-Inspectors, Learned counsel for the petitioner contended that the petitioaer was discriminated against, in as much as although his juniors have been absorbed in the Transport Department itself, as Sub-Inspectors, on the basis of supernumerary posts created to maintain the lien of all such persons including the petitioner, yet the case of the petitioner was not considered for absorption in the Transport Department itself but he was sent to the Medical & Health Department as an Upper Division Clerk.
5. The case of the State Government is that the order of the Absoruption Committee, in the matter of absorption of surplus staff is final and as there were no vacancies available in the Transport Department for absorption of surplus employees, the Absorption Committee decided to absorb the petitioner in the Directorate of Medical & Health. It is contended by the learned Additional Government Advocate in this respect that no employee could claim a right to be absorbed in a particular Department, and it was for the Absorption Committee to decide the post on which and the Department in which a surplus employee could be absorbed considering the number of vacancies in the various Department of the State.
6. At the time when the petitioner was declared surplus, the circular issued by the State Government dated July 23, 1966 was in force, which has subsequently been given statutory force, by inclusion thereof in the schedule annexed to the Rajasthan Civil Services (Absoruption of Surplus Personnel) Rules, 1969 (hereinafter called the Rules): Sub-rule (3) of Rule 7 of the Rules provides that in respect of the period from January 1, 1954 to the date of publication of the Rules, the circular issued by the Appointments & General Administration Department of the Government specified in the schedule would apply in relation to the absoruption of surplus employees, as if such circulars formed part of the rules. Para 9 of the Circular of 1966, referred to above, provides for departmental absorption of surplus employees and it enjoins on the Heads of Departments to explore the possibility of absorbing surplus employees within the department on similar posts for which they may be qualified and in order to achieve this object the Heads of the Departments may revert or discharge the employees in other similar posts in the department who may be junior in the service. It was only when a departmental absorption was not possible in case of any employee, who was declared surplus, that the matter was to be considered by the Absorption Committee constituted in para 3 of the aforesaid circular of 1966. There is no doubt that the Absorption Committee's decision in the matter as to the post on which and the department in which the surplus employee was to be absorbed was final and could not be questioned. But if the State Government considered the cases of persons, who were declared surplus by the very same order and occupied similar posts, at different times and persons who were comparatively junior were absorved departmentally while other persons who were senior were thrown out and their cases were referred to the Absorption Committee on the ground that there remained no further vacancy in the Department in such cases it appears that the persons who were senior but were denied departmental absorption have been discriminated against.
7. In Hari Narain v. State of Rajasthan, S.B. Civil Writ Petition No. 869 of 1968, decided by Tyagi J., on April 3,1969 it was held that Hari Narain had a lien in the Transport Department, he had a right to be absorbed on a post in that Department after he reverted to the service of the State Government. It was observed in that case that it was the very condition of deputation of the employee to the Corporation that the State Government would create supernumerary posts in the Directorate of Transport to absorb such employees where services were placed at the disposal of the Corporation on deputation, in case these employees chose to revert to the service of the State Government & because of this condition, the employee was entitled to get a post in the parent department on his reversion from the Corporation.
8. In Dulichand v. State of Rajasthan & Ors. S.B. Civil Writ Petition No. 305 of 1968, decided on January 8,1972 a similar question was also raised before another learned single Judge of this Court. Singhal J., as he then was, while deciding the aforesaid case, held that even if one single employee who was junior to the employee in service was absorbed in the present department, there was nothing to prevent the Absorption Committee from absorbing the concerned employee as Motor Vehicles Sub Inspector in the Transport Department, on account of the provisions of para 9 of the, circular of 1966. It was, therefore, held that the Absorption Committee did not exercise its powers lawfully by absorbing the employee who was similarly placed to the petitioner in the present case, as a Family Planning Social Worker in the Directorate of Medical and Public Health Department of the State Government.
9. In the case of another employee, who was also similarly placed Tyagi J., again held in Satya Prakash Sharma v. State of Rajasthan and Ors. S.B. Civil Writ Petition No. 544 of 1968: decided on July 29, 1968 that it was incumbent on the State Government to absorb the employee on the post of Motor Vehicles Sub Inspector in the Transport Department of the State when he was sent back from the Corporation.
10. Although para 4 of the circular of 1966 provides that the Absorption Committee has full and final powers to order the absorption of a surplus employee on an equated post in the department, but that discretion ought to be exercised by the Absorption Committee subject to the provisions of para 9 of the aforesaid circular, which provides for self absorption in the first instance in the department concerned. It may be pointed out that the condition No. 4 of the deputation of the employees of the defunct State Roadways Department, whose services were placed at the disposal of the Corporation was as follows:--
For such period all the Government employees of the Roadways Department who remain on deputation to the Corporation, supernumerary posts will be sanctioned separately in the Directorate of Transport for retaining their lien in that Department.
Thus by the creation of supernumerary posts the lien of the petitioner was retained in the Directorate of Transport during the period he remained on deputation with the Corporation. After his return from the Corporation, therefore the petitioner was entitled to be absorbed in the Transport Department under the Director of Transport, so long as there were vacancies existing in the Department as he had a lien on a post in that department. If at the time of absorption of such surplus persons like the petitioner, any person junior to the petitioner was absorbed in the Transport Department then it cannot be said that the petitioner cannot similarly be absorbed for want of vacancy, as otherwise it would amount to hostile discrimination against the petitioner. It is not in dispute that Dulichand, Hari Narain and Satya Prakash, who were also working as Assistant Traffic Inspectors in the Corporation on deputation along with the petitioner, were junior to the petitioner and as all of them were absorbed in the Transport Department the petitioner should have been likewise absorbed in the Transport Department itself on the post of Motor Vehicles Sub-Inspector, which is an equated post to that of Assistant Traffic Inspector.
11. Learned Additional Government Advocate also raised two preliminary Objections. His first contention was that the petitioner had joined his duties in the Medical and Health Department and as such he should be considered to have acquiesced and was barred on that ground from challenging the order of Absorption Committee. The second contention of the learned Additional Government Advocate Was that the Writ petition Was filed after considerable delay.
12. So far as first objection of the learned Additional Government Advocate is concerned, it Would be sufficient to state that soon after the Order of absorption passed by the Absorption Committee was communicated to the petitioner, he Submitted a representation: (Ex. 7) requesting that his case for absorption in the Transport Department in which he already had a lien should be considered, and he cited the cases of other similar situated employees. Who were absorbed in the Transport Department as Motor Vehicles Sub-Inspectors; after their return from the Corporation, Even after the protest made by the petitioner when his request was rejected and his services were terminated and on reconsideration were sought to be terminated in case he failed to join on the post of a clerk in the Medical & Health Department, it cannot be held that the petitioner by his conduct has acquiesced in the order passed by the Absorption Committe. So far as the question of delay is concerned, we may observe that the same has been sufficiently explained by the petitioner. Moreover, it will be too late now to dismiss the writ petition on the mere ground of delay, after the same has remained pending in this court for almost Ten years, and further as we have heard the parties on merits.
13. In view of the fore-going discussion, the writ petition is allowed and the order passed by the Absorption Committee dated December 13, 1961 and the order of the State Government dated December 4, 1968 regarding the absorption of the petitioner in the Directorate of Medical Health are set aside and the respondents are directed to decide the case of the petitioner's absorption afresh and absorb him on the post of Motor Vehicles Sub-Inspector in the Transport Department as has been done in the case of respondents Nos. 3 to 5. Three months, time is allowed to the State Government and the Director of Transport to pass the necessary orders regarding the absorption of the petitioner. The parties are left to bear their own costs.