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Hiro Badlani Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 2225 of 1970
Judge
Reported in1974WLN673
AppellantHiro Badlani
RespondentState of Rajasthan and ors.
Excerpt:
rajasthan civil services (absorption of surplus personnel) rules, 1969 - ruler 7 & 18--surplus employee has no right to be absorbed against a particular post or cadre or department.;a surplus employee has no right to be absorbed on a particular post or to any post in a particular department, service of cadre and the decision of the absorption committee has to be treated as final. rules 9 is preemptory it the surplus employee is not willing to accept that particular post on which he is sought to be appointed then the only alternative left with him is to seek his termination from service. a rule couched in negative terms is normally mandatory, whereas a rule couched merely in positive form may or may not be mandatory. therefore, inspite of the not quite happy language of the rules i am.....kan singh, j.1. this is a writ petition under article 226 of the constitution by one shri hiro badlani and raises the question about his fixation in rajasthan statistical service on being rendered surplus in the directorate of economics and industrial surveys the petitioner prays that the state may be directed to absorb him on the post of an assistant director from the date he was declared surplus in the directorate of economics and industrial survey and further give him all consequential benefits. in the alternative, he prays that the state be directed to confirm the petitioner on the post of a statistician from the date the first vacancy occurred after his absorption as statistician in the directorate of economics and statistics in preference to respondents no 7, and 12 to 20.2. the.....
Judgment:

Kan Singh, J.

1. This is a writ petition under Article 226 of the Constitution by one Shri Hiro Badlani and raises the question about his fixation in Rajasthan Statistical Service on being rendered surplus in the Directorate of Economics and Industrial Surveys The petitioner prays that the State may be directed to absorb him on the post of an Assistant Director from the date he was declared surplus in the Directorate of Economics and Industrial Survey and further give him all consequential benefits. In the alternative, he prays that the State be directed to confirm the petitioner on the post of a Statistician from the date the first vacancy occurred after his absorption as Statistician in the Directorate of Economics and Statistics in preference to respondents No 7, and 12 to 20.

2. The facts are not in dispute and may be briefly recaptulated. The petitioners was first appointed as a Statistician in the Directorate of Economics and Industrial Surveys on 11.7.59 on temporary basis He held this post till 9.3.60 when he came to be appointed as Assistant Director in the Directorate of Economics and Industrial Surveys. He was declared surplus from the Directorate of Economics and Industrial Surveys on 30.6.63 He came to be absorbed as Statistician to the Rajasthan Statistical Service on 15.7.63. It is further not disputed that the Government had sought the concurrence of the Rajasthan Public Service Commission for appointment of temporary staff in the Directorate of Economics and Industrial Surveys for conducting rapid Economic and Industrial Survey of Rajasthan in connection with the formation of the Third Five Year Plan for Rajasthan and by their letter dated 9.8.58 the Rajasthan Public Service Commission accorded their concurrence to the appointment of the temporary staff as desired by the Government. The Government then recruited the staff for the Directorate of Economics and Industrial Surveys and I have already observed the petitioner was Statistician on 11.7.59. Then it appears that by order dated 9.10.68 the Government appointed the petitioner in the Rajas-than Statistical Service with effect from 15.7.63 on temporary basis and with effect from 16.7.65 on temporary basis. With effect from 1.8.69, the petitioner came to be promoted as Assistant Director and he is continuing on that post.

3. The Government made the Rajasthan Civil Services Absorption of Surplus Personnel) Rules. 1969, hereinafter to be referred as 'the Absorption Rules', with effect from 1.1.54; in other words, retrospective effect was given to these Rules though they were first published on 11.12.69. The petitioner's case, in brief, is that he has not been fixed up in accordance with these rules which will be deemed to be in force at the relevant time. The petitioner maintains that in terms of Rule 7(1) of the Absorption Rules he was entitled to be appointed on a post equivalent to that of the Assistant Director in the Directorate of Economics and Industrial Surveys vis-a-vis the concerning respondents The petitioner submits that these respondents were appointed on the post of Assistant Directors from 31.7.63 onwards upto 15.6.66 The petitioner claims that he had a longer period of service than the respondents at the time he was absorbed in the Statistical Service and, therefore, he had a preferential claim over them for being appointed as Assistant Director. The petitioner further submits that in terms of a Cabinet decision the Absorption Committee was required to appoint the petitioner to the post of an Assistant Director. As regards his alternative prayer the petitioner takes the stand that as Statistician he was not required to be placed on probation and he was entitled to be placed on probation and he was entitled to be confirmed in the Statistical Service from the date of the availability of the vacant post in order of seniority as laid down by Rule 15(2) of the Rules without being placed on probation. If it were done the petitioner could have been confirmed as Statistician before respondents Servashri MC Saxena, B S. Gupta, L.L. Bajpai B.L Bhatia, S. N, Mathur, R.C Atheya, J.P Store, KC Chowdhari, D.S Vyas and V.C. Jain who were confirmed between 1 12 64 and 6 3 65 and in this wav on the basis of his correct seniority as Statistician he would have been promoted as Assistant Director before these respondents came to be promoted-

4. The writ petition has been Opposed by the State of Rajasthan. It is denied that the absorption of the petitioner after he was declared surplus in the Directorate of Economics and Industrial Surveys was not in accordance with the Rules. It is submitted that the petitioner was only an ad hoc appointee in Directorate of Economic and Industrial Surveys and consequently on his absorption in the Statistical Service he could not have a preferential claims over the concerning respondents; the respondent being regularly appointed either by promotion through the Departmental Promotion Committee or through the Rajasthan Public Service Commission Reliance was placed on Rule 18 of the Absorption Rules and it was submitted that no surplus employee has the right to claim appointment by absorption to a particular post or in a particular Department, Service or cadre and the decision of the Committee in this behalf shall be final Consequently, according to the State, the petitioner can make no grievance of the fact that he was not absorbed on the post of an Assistant Director in the Statistical Service, but was appointed only as a Statistician Then it was submitted that in the Statistical Service the seniority has to be assigned to the petitioner according to proviso to Rule 15 which was subsequently inserted by an amendment made on 11.5.74 with retrospective effect. Lastly it was urged that the tenor of the amendmet of the proviso to Rule 2 of the Absorption Rules goes to show that the intention of the Government was that the fixation of those who have already been absorbed in a new Department prior to the publication of the Absorption Rules should not be dealt with under the Absorption Rules, but their fixation should be governed by the substantive rules governing the Service in which they are absorbed.

5. Mainly two points arise for determination:

(1) Whether the petitioner had a right to be absorbed as an Assistant Director in the Statistical Service,

(2) Whether the petitioner has not been fixed as a Statistician according to the Absorption Rules.

I may, therefore, read relevant rules.

5. It appears that certain posts were brought under reduction and employees in consequence rendered surplus, as a measure of economy, from time to time in the State of Rajasthan The Government was anxious to absorb the surplus employees as far as possible and the matter of absorption was governed by the instructions of circulars issued by the Government from time to time. Eventually it appears that the Government felt that the entire process of absorption of surplus employees was lacking a statutory base. It was on account of this reason that the Absorption Rules were made by the Governor with retrospective effect from 1.1.54 so as to afford a legal baste for absorption of the employees rendered surplus during the long period. What (sic) is that the various circulars were included in the Schedule appended to the Absorption Rules and it was laid down that in respect of the period from 1.1.54 to the date of the publication, of these rules the various circu are and 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 formed part of these rules and such appointments shall be substantive, offciating, temporary or ad hoc as indicated in sub Rule (1) of Rule 7. There was an argument regarding the applicability of the Absorption Rules and, therefore, I may read Rule 2 of the Absorption Rules in full:

R 2. Scope and Application.- Notwithstanding anything contained in any service rules or orders for the time being in force regulating the recruitment and conditions of service of persons appointed to the various service or posts in connection with the affairs of the State, surplus personnel shall be eligible for recruitment and appointment by absorption to such service or posts in accordance with these rules subject to the availability of vacant posts:

Provided that-

(i) nothing contained in these rules shall apply to posts encadred in All India Service, the Rajasthan Judicial Service, the Rajasthan Secretariat Service, the Rajasthan Administrative Service, the Raj. Police Service, the Rajasthan Accounts Service and the Rajasthan Tehsildar Service;

(ii) nothing contained in these rules shall apply to the persons holding posts of Statisticians in the Directorate of Economics & Industrial Survey prior to the abolition of that department and subsequently absorbed as Statistical Assistants in the Directorate of Economics and Statistics on their having been rendered surplus & thereafter being adjudged suitable for appointment to the service under-Rule 24 of the Rajasthan Statistical Subordinate Service Rules, 1971.

Rule 3 is the definition clause and I may read the relevant definitions. Clause (a) defines the term 'ad hoc appointment' to mean temporary appointment made without selection of the candidate by any of the methods of recruitment provided under the relevant service rules or any orders of Government. The term 'Committee' means the Absorption Committee constituted by the Government under Rule 6 of these rules. The term 'Equated post' means a post declared by the Committee as equated to the post held by the surplus personnel immediately before his being declared surplus, and the term 'Equivalent post'' means a post carrying an identical time scale of pay and involving similar nature of duties and responsibilities.

7. Rule 6 empowers the Absorption Committee to declare what are equivalent posts for purposes of Rule 7. Rule 7 lays down the procedure for absorption and I may read this rule in full:

Rule. 7. Procedure of Absorption - (1) The Committee shall allot surplus personnel to the departments of services wherein equated or lower vacant post or posts may be available for appointment & 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, such appointment to be substantive, officiating, temporary or ad hoc on such post or posts as indicated below:

------------------------------------------------------------------------------------------

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

post held by him appointment held to be given after

on the date by him on the absorption

declared surplus date declared

surplus

------------------------------------------------------------------------------------------

1 2 3 4

------------------------------------------------------------------------------------------

(a) Permanent Substantive (a) Substantive on

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 Lower Substantive but (b) Officiating on new

post which continues officiating on post, while continuing

to exist higher post from to hold lien on permanent

which declared surplus lower post In the

department from Which he

was declared surplus

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

which also ceased to permanent lower post but Government on

exist alongwith higher post but officiating being moved by the

post on higher post. appointing authority

shall create

supernumerary pott 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 hoe

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

(3) In respect of the period from 1st January, 1954 to the date of publication of these Rules, the various circulars of the Appointments and Genetal Administration Departments of the Government mentioned in the Schedule, and applied during the said period for the appointment by absorption of surplus employees, shall 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 table given below sub-Rule (1) hereof.

Rule 8 is about the relaxation of the age rule for entry into Government service and for connected matters Rule 10 is about certain qualifications with which we are not concerned. Rule 11 lays down the procedure for adjudging suitability and substantive appointment of surplus employees in certain, cases Rules 15 is about the seniority and I may read this rule in full:

Rule. 15, Seniority.- (1) The seniority of a surplus employee appointed substantively to a permanent post in the service or cadre in which he if absorbed shall be determined by the appointing authority concerned by placing him below the junior-postpermanent employees of the new service or department who has a loger period of continuous substantive service on the post compared to the continuous substantive service of the surplus employee on equivalent or higher post. The seniority of a surplus employee who is absorbed on a higher post on officiating basis shall be determined only in respect of his permanent post.

(2) The seniority of a surplus employee appointed to a new post in a temporary or ad hoc capacity shall, pending his appointment on a substantive basis, be determined in the following manner:

(a) In the case of a surplus employee appointed temporarily to a new post his seniority among the temporary employees holding same posts in the service or cadre in which he is absorbed shall be determined by placing him immediately below the temporary employee of the new service or cadre who has rendered a longer period of continuous temporary services compared to the continuous temporary service of the surplus employee on same equivalent or higher post.

(b) In case of surplus employee appointed on ad hoc basis in a new post his seniority among the ad hoc employees holding same posts in the service or cadre in which he is absorbed shall be determined by placing him immediately below the ad hoc employee of the new service or cadre who has rendered a longer period of continuous service on an ad hoc basis compared to the continuous ad hoc service of the surplus employee on same, equivalent or higher post.

Provided that all substantive employees in a cadre or service, including substantive surplus employees absorbed therein, shall rank senior and all temporary employees appointed or absorbed under these rules in such cardre or service and all such temporary employees shall rank senior to all ad hoc employees appointed or absorbed under these rules or otherwise.

Provided further that the seniority of the employee on a post in a cadre or service, including surplus employees absorbed therein and who were substantive on such posts on or before 11th December, 1969, shall be determined according to the provisions of the relevant Service Rules.

(3) The seniority inter se of employees declared surplus from a service or cadre shall on their appointment to new posts in another service or cadre shall be the same as it existed in the former service or cadre.

(The last proviso is added with retrospective effect by Government notification No. F. 1 (20) Apptts (A-II) /72 dated 11 5 74).

8. Rule 16 is about the probation, confirmation and other conditions of service and I may read this rule es well:

Rule. 16. Probation, confirmation and other conditions of service.-

(1) Save as otherwise provided by these rules and subject to the provisions contained in sub Rules (2). (3) & (4), a surplus employee on appointment by absorption to a new post shall be governed by the Rajasthan Service Rules, 1981 and others, relevant service rules made by the Governor under the proviso to Article 309 of the Constitution of India & for the time being in force in all matters relating to probation, confirmation and other conditions of service;

(2) It will not be necessary to place on probation or to confirm a permanent surplus employee on his appointment by absorption to a new post.

(3) Surplus employees covered by sub-Rules (1), (2), and (3) of Rule 11 and temporary surplus employees covered by sub Rule (5) of the said rule shall be confirmed on their new posts from the date of availability of vacant posts in order of their seniority as determined under Rule 15 on their suitability being adjudged, if so required by the said Sub-rules, without being placed on probation.

(4) Where under any service rules, any specific period of experience is required for promotion from the new post to a higher post but the post on which the surplus employee was working prior to his absorption is different from such new post, credit to the extent of one half of the period during which the surplus employee worked in an equivalent or higher post prior to his being absorbed shall be given while reckoning such experience.

Rule 17 is about removal of doubt. It lays down that if any doubt arises relating to application, interpretation and scope of the rules it shall be referred to the Government in the Appointments Department whose decision thereon shall be final.

9. Rule 18 is for option for termination of benefits and I may read this rule:

Rule. 18 Option for termination of benefits-No surplus employee shall have the right to claim appointment by absorption to a particular post or in a particular department, service or cadre and the decision of the Committee in this behalf shall be final. A surplus employee, who is not willing to be appointed to the post to which he has been absorbed may, within 30 days of the receipt of the absorption order, ask for termination of his services by the Government in accordance with the provisions of the Rajasthan Service Rules. 1951 If no such request is made & he also does not join the new post on which he been absorbed, he shall be liable to be treated as absent from duty and further, shall not be entitled to receive any pay and allowance from the date he is treated as absent from duty.

Then I may further notice that the orders reproduced in the Schedule define the powers of the Absorption Committee and the Collectors and I may read relevant portions of the two orders. Clause 3 of the Government order dated 12-6-62 lays down that the Absorption Committee and Collectors shall have full And final powers to absorb a surplus employee on an equated or any other (word 'post' seems to be an omission) in any department irrespective of the qualifications prescribed for recruitment to such posts. The concered appointing authorities shall immediately issue appointment orders on receipt of such absorption orders under intimation to the Absorbing Authority. The Appointing Authority and the Appointment Department shall also take necessary action to enable the absorbed persons to secure their proper places in the Department Then the Government order dated 23-7-66 also deals with the powers of the Absorption Committee. Clause 3 runs as follows (omitting portions which are not applicable):

C1ause. 3 The Absorption Committee and the Collectors shall have full and final powers to absorb a surplus employee on an equated or any other in any department irrespective of the qualifications prescribed for recruitment to such posts The concerned appointing authorities shall immediately issue appointment orders on receipt of such absorption orders under intimation to the Absorbing Authority. The appointing authority and the Appointment Department shall also take necessary action to enable the absorbed persons to secure their proper place in the Department.

10. The Rajasthan Statistical Service Rules, 1958, for constituting the Rajasthan Statistical Service were made by the Governor on 6-11-68. The cadre consists of (1) Director, (2) Deputy Director, (3) Assistant Director, (4) Statistician vide Rule 6 of these Rules, Part 3 deals with recruitment. Rule 8 occurring therein reads as follows:

Rule. 8. Sources of recruitment.- Recruitment to the Service and to posts temporarily encadred after the commencement of these rules, shall be made as follows:

(a) Appointment to the posts of Director, Joint Director. Deputy Directors and Assistant Directors shall be made by promotion, provided that if the Government is satisfied, after consultation with the Commission, that in a particular year suitable persons are not available for appointment bv promotion to any of the said posts, then it may fill such posts by selection through the agency of the Commission.

(b) Recruitment to fill the, vacancies occurring in the posts of Statisticians shall be made by promotions from among Statistical Assistants in various departments and by selection through the agency of the Commission in the proportion of 1:2

Provided that if the Selection Committee prescribed by Rule 25 (2) is satisfied that in a particular year suitable persons are not available for appointment by promotion the vacancies existing in that year may be filled by selection.

Provided further that the posts of Statisticians may also be filled by appointment of persons holding posts of Deputy Director, Assistant Director and Statistician iD the Directorate of Economics & Industrial Survey prior to the abolition of that department, on their having been rendered surplus to the requirements of the Government, and on their being adjudged by the Commission to be suitable for appointment to the service.

NOTE (a) Provisions of this amendment, so far as they relate to Asstt. Director, shall deemed to have come into force with effect from the 10th June, 1965, and

(b) Its provisions, so far as they relate to Director and Joint Director, shall be deemed to have come into force with effect from the 16th April, 1959 and the remaining provisions shall come into force at once.

11. The second proviso was added (vide Notification dated 25-9-67). 1 may atonce refer to Rule 31 which is about seniority. It runs as follows:-

Rule 31 Seniority.- Seniority within the cadre of Deputy Director, Assistant Director and Statistician shall be determined by the year of substantive appointment to the respective posts, provided that among persons appointed in the same year, those appointed by promotion shail rank senior to those appointed by selection and the inter se seniority of those appointed by either promotion or selection shall be in the order in which the names appear in the lists prepared under Rules 25(1)(d) and 22 respectively:

Provided (1) that the seniority inter-se of the persons appointed substantively to the post encadred in the Service before commencement of these rules shall be determined, modified or altered by Government on an ad-hoc basis.

(2) that the seniority inter-se of persons appointed by promoti n to a particular class of posts on the same date shall be the same as in the next below grade, except in cases of continued officiation on higher posts when it will be in accordance with the length of such officiation was not ad hoc or fortuitous.

(This proviso is added from 14-9-66)

(3) that for the purposes of determination of seniority; persons appointed under proviso (2) to Rule 8 shall be deemed to have been appointed by selection through the agency or the Commission from the date on which they joined service in the Directorate of Economics and Statistics

(This proviso is added on 28-9-67)

12. Now the argument of the learned Additional Govt. Advocate is that the petitioner cannot have the right to claim appointment by absorption to a particular post or in a particular Department Service or cadre and decision of the Committee in this behalf shall be final. Learned Counsel for the petitioner, on the other hand, submits that the petitioner's case was not dealt within the proper perspective bearing in mind that he had been working as Assistant Director in the Directorate of Economics and Industrial Surveys for more than three years. He maintains that the petitioner could be taken to have been duly selected be the Commission for the post of Assistant Director in the Directorate of Economics and Industrial Surveys and, therefore, in terms of Rule 11 his suitability as a surplus employee should have been examined on this basis for the higher post equivalent to the one from which the petitioner was declared surplus. Support is drawn from the language of Clause (a) of Rule 11 of the Absorption Rules, A harmonious interpretation has to be given to the Rules. Where as Rule 11 lays down that the surplus employee in, certain cases have to be dealt with on the basis of the service they had rendered on the higher post from which they were d cleard surplus, Rule 18 clearly lays down that no surplus employee shall have the right to claim appointment by absorption to a particular post or in a particular Department, Service or cadre and the discretion of the Committee in this behalf shall be final Further, a surplus employee who is not willing to be appointed to the post to which h has been absorbed may within 30 days of the receipt of the absorption order, ask for termination of his services by the Government. The effect of the relevant Government orders given, in the Schedule, which I have already reffered, is also that the Committee shall have full and final powers to absorb a surplus employee on an equated or any other post in any Department irrespective of the qualifications presecribed for recruitment to such post. The reasonable interpretation to be given to these various provisions which are of course not happily drafted is that it is for the Absorption Committee to determine on which particular post of Department, Service or cadre a surplus employee has to be appointed and finality is given to such a decision. Rule 18 is couched in negative form, whereas Rule 18 lays down in positive terms how the suitability and substantive appointment of surplus employees in certain cases have to be adjudged or made. The idea underlying Rule 11 is hat where a post is within the purview of the Commission the suitability of the surplus employee for such post has to be adjudged by the Commission in the manner indicated therein. In other words, Rule 11 gives the guide lines for the Commission to adjudge the suitability of the surplus employee and in doing to if the surplus employee had been holding the post from which he was declared surplus for more than 8 years continuously then the the Commission would be adjudging the suitability of the surplus employee for the higher post from which he was declared surplus. Nevertheless Rule l8 as also the two Government orders included in the Schedule clearly provide that the surplus employees shall have no right in the matter of claiming a particular post or post in a particular Department, Service or cadre & the decision of the Absorption Committee shall be final. I am dealing with the matter in exercise of the extraordinary jurisdiction of this Court Under Article 226 of the Constitution, therefore, in order to succeed the petitioner has to show that be has a legal right for considaration for appointment to a particular post or a post in a particular Department, Service or cadre. Rule 18 as well as the two Government orders deal with the right of a surplus employee and Rule 11 lays down the procedure to be followed by the Public Service Commission in certain cases for adjudging suitability. The two provisions have distinct and different spheres of operation. Then clause 3 of Govt. order dt 12.6.62 clearly casts a duty on the Appointing authorities that immediately on receipt: of the orders of the Absorption Committee they shall issue appointment orders Further the appointing authorities should not raise any objection in the (sic) of addl. qualification not prescribed under the Ruler as minimum qualifications. Therefore the intention is clear that as soon as the Absorption Committee issues orders the appointing Authority has to make the appointment in the department to which the surplus employing allotted. As 1 have already observed, it is not easy to reconcile fully be varicus provisions of the Absorption Rules including the Circulate which are, (sic) or less, an amalgam of varicus things. Be that as it may, a surplus employee has no right to be absorbed on a particular, service or cadre and the decision of the Absorption Committee has to be treated as final. preemptory. It the surplus employee is not willing to accept that particular post on which he is sought to be appointed then the only alternative left with him is to seek his termination from service. A rule couched in negative terms is normally mandatory, where as rule (sic) merely in positive form may not be mandatory. Therefore. inspite of the not quite happy language of the Rules I am constrained to hold that the petitioner has no right to be absorbed to a particular post namely, that of Assistant Director in the Statistical Services.

13. I may next deal with the question as to what would be his position as Statistician. Learned Additional Government Advocate took the stand that the petitioner was only an ad hoc appointee as he was not appointed either as a direct result through the Public Service Commission or by promotion which are two normal methods of recruitment, every other method beingotherwise than (sic). Whether this was so, is the next question. As I have already observed for appointment of temporary staff for conducting raped economic and Industrial survey of Rajasthan the Government had addressed the Public Service Commission for concurrence. The Public Service Commission by their letter dt 9.8.58 accorded the concurrent. Then there was an advertisement for filling the posts of Statisticians and petitioner like others applied for the post and be was selected by the Selection Committee and then eventually appointed by the Government vide order dated 11.7.59 In the first instance, be was appointed for a period of six months, but the appointment was continued thereafter so much so that he was appointed as Assistant Director on 9.3.60 and continued on the post of Assistant Director till be was declared surplus. This mode of selecting the petitioner, to my mind, cannot be charactrised as anything other than a regular one. The essence of the matter is that the selection was made through open market. The Government appointed a Selection Committee The applications received in pursuance of the advertisement were placed before the Selection Committee on whose recommendations the Government made the appointments, permanent, temporary and such temporary appointments as are ad hoc appointments Really speaking temporary appointments fall into two sub categories; temporary appointments as such through the normal procedure, and temporary appointments otherwise than through the normal procedure The Public Service Commission had given their concurrence to the recruitment of the staff when the Chief Secretary sought their concurrence. Therefore, in the light of all this I am persuaded to bold that the petitioner's appointment was on temporary basis as distinct from appointment on ad hoc basis Learned Additional Government Advocate, however, submits that according to the proviso to Rule 15(1) of the seniority of the employee on the post in a cadre or service including surplus employee absorbed therein and who were substantive on such post on or before 11.12.69 shall be determined according to the provisions of the relevant service rules namely, the Rajasthan Statistical Service Rules, 1958 in the present case. Learned Additional Government Advocate reliesion the third proviso to Rule 31 which lays down that for the purposes of determination of seniority persons appointed under proviso (2) to Rule 8 shall be deemed to have been appointed by selection through the agency of the Commission from the date on which they joined service in the Directorate of Economics and Statistics. The second proviso to Rule 8 lays down an additional source of recruitment, that is, the post in the service can be filled from out of the surplus employees of the Directorate of Economics and Industrial Surveys. Learned Government Additional Advocate, therefore, maintains that these are special provisions for determining seniority of the employees rendered surplus from the Directorate of Economics and Industrial Survey and absorbed in the Raj Statistical Service The argument is, no doubt, attractive, but it clearly ignores the impact of Rule 2 of the Absorption rules which I have already extracted. It starts with a non obstante clause that notwithstanding anything contained in any service rules or orders for the time being in force regulating the recruitment and conditions of service of persons appointed to the various services of posts in connection with the affairs of the State, surplus personnel shall be eligible for recruitment and appointment by absorption to such service or posts in accordance with these rules subject to the availability of vacant posts. Therefore, wherever there is an express provision in the Absorption Rules the relevant service rules applicable to the particular service will give way to such express provisions of the Absorption Rules. The Rajasthan Statistical Service Rules, 1968 do not lay down as to how the inter se seniority of temporary employees in the Statistical Service and the temporary surplus employees absorbed in the Statistical Service would be determined For determination of the inter se seniority of such temporary appointment one has to go to Rule 7 and Rules 15 & 16 of the Absorption Rules. Sub-Rule (2) of Rule 16 applies to such temporary employees Clause (a) thereof lays down that in the case of a Surplus employee appointed temporarily to a new post his seniority amongst the temporary employees holding the same post in which he is absorbed shall be determined placing him immediately below the temporary employee of the new service or cadre who has rendered a longer period of temporary service compared to the continuous longer period of service on some equivalent or higher post. This provision occurs in the Absorption Rules and thee is no such corresponding provision in the Rajasthan Statistical Service Rules, 1968. That being so, the seniority of the petitioner vis-a vis the temporary Statisticians in the Rajasthan Statisticial Service on the date the petitioner was appointed as a Statistician in the Rajastnan Statistical Service on temporary basis should have been determined first according to Clause (2) of Rule 15 of the Absorption Rules. It is only thereafter that the question of confirmation of the temporary Statisticians could be taken up. Then at that stage after confirmation Rule 31 of the Raj. Statistical Service Rules, 1958 would be operative. This lays down that the seniority within the cadre shall be determined by the year of substantive appointment to the respective post There is no contritely between this part of Rule 31 and the Absorption Rules as it is admitted that on the date the petitioner was absorbed as Statistician he was only temporary Likewise, the concerning respondents were also temporary Statisticians (respondent Nos. 6 to 20). Learned Additional Government Advocate tried to make a point on the question of delay. He submitted that the orders under challenge were passed long back and the writ petition was filed after considerable delay. However, it is noteworthy that the Absorption Rules were published for the first time on 11-12-67 though they were made effective front. 1-1-64. Till the statutory Rules were made the petitioner could not be in a position to challenge his absorption and the determination of his seniority. Therefore. I do not find force in this contention

14 In the result, therefore, I allow the writ petition in part. I direct the respondent No. 1, the State of Rajasthan, to determine the (sic) seniority of the petitioner vis a-vis respondents Nos. 16 to 20 according to the provisions of Rule 15 of the Absorption Rules read with other relevant Rules & then on that basis further give him the consequential relief in the matter of assignment of seniority in the higher cadre. The petition regarding the other reliefs prayed for by the petitioner is dismissed.

15. There will be no order as to costs.


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