Skip to content


A.K. Garg Vs. the State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 1468/1973
Judge
Reported in1975WLN(UC)533
AppellantA.K. Garg
RespondentThe State of Rajasthan
DispositionPetition allowed
Cases ReferredMohammed Shujat Ali and Ors. v. Union of India and Ors.
Excerpt:
.....petitioner and his like would be governed by the provisions of clause (5) of the rule 11 of the absorption rules & the petitioner and other persons, similarly situated to him, should be deemed to have been regularly appointed to the new posts of computer in the directorate of economics and statistics, from the date of his or their absorption on such posts.;(b) rajasthan civil services (absorption of surplus personnel) rules, 1969 - rules 11(5) , 15(2) and 16(3)--petitioner absorbed under rule 11(5)--held, his seniority be considered under rule 15(2) and confirmation under rule 16(3).;as the petitioner was an absorbed employee under the absorption rules and his case was covered by clause (5) of rule 11 of the absorption rules, the question of his confirmation could only be..........failing his case would fall under rule 11(2)(b) of the absorption rules under the absorption rules all appointments have been divided into three categories, namely substantive, temporary and ad hoc, as a matter of fact, temporary appointments have been sub divided into two categories, temporary and ad hoc. the crux of the matter in this respect is that if a temporary appointment is made without selection of a person by (a) any of the methods of recruitment provided under the relevant service rules, or (b) any order of the state government, then such temporary appointment would be considered as an ad hoc appointment for the purposes of absorption rules. but if such temporary appointment is made after selection either by any of the methods provided under the service rules or an order.....
Judgment:

D.P. Gupta, J.

1. The main question that arises for consideration in this writ petition is as to whether the petitioner's case is governed by the provisions of Rule 11(5) of the Rajasthan Civil Services (Absorption of Surplus Personnel) Rules, 1969 (hereinafter called the Absorption Rules') or it falls under Rules 11(2)(b) of the said Rules.

2. The facts which have given rise to this controversy are that in the year 1958, the Government of Rajasthan decided to conduct a rapid economic and industrial survey of the State with a view to formulate its proposals for the Third Five Year Plan for Rajasthan. The Chief Secretary to the Government of Rajasthan by his letter dated August 2, 1958, requested the Rajasthan Public Service Commission (hereinafter referred to as 'the Commission') for its permission or concurrence to the making of initial appointments of the requisite staff on temporary basis for the Director of Economic and Industrial Surveys. By their letter dated August 9, 1958 the Commission accorded its concurrence to the appointment of temporary staff for conducting a rapid economic and industrial survey of Rajasthan, as requested by the State Government Thereafter, the Director of Economic and Industrial Surveys, Rajasthan issued an advertisement inviting applications for various posts in the aforesaid Directorate including 23 posts of Computors. All the applicants, including the petitioner, were interviewed by a Selection Board and after such selection, the petitioner was appointed a Computer on a purely temporary basis for a period of six months or till a candidate recommended by the Commission was appointed whichever was earlier, by the order of the Director of Economic and Industrial Surveys, Rajasthan, dated January 12, 1959. The petitioner held the post of Computer in the aforesaid Directorate for sometime and by the order of the Director dated August 13, 1959, he was promoted to the post of Investigator-Grade II. The petitioner was eventually declared surplus from the Directorate of Economic and Industrial Surveys and by the order of the Assort on Committee dated August 31. 1962, he was directed to be absorbed as a Computor in the Directorate of Economics and Statistics. In pursuance of the aforesaid direction of the Absorption Committee, the Director of Economics & Statistics, Rajasthan by his order dated September 11, 1962, absorbed the petitioner as a Computer in that Directorate, on a temporary basis The respondents Nos. 3 to 8 as well as the petitioner were considered for absorption under Rule 11(2)(b) of the Absorption Rules by a Screening Committee and while the respondents Nos. 3 to 7 were found fit and were deemed to be regularly appointed persons under Sub-rule (6) of Rule 11 of the Absorption Rules by the order of the Director of Economics and Statistics dated November 15, 1971, but the petitioner could cot be so appointed under Rule 11(6) of the Absorption Rules as he was not adjudged suitable by the Screening Committee under Rule 11(2)(b) if the Absorption Rules The respondents Nos. 3 to 7 were thereafter confirmed on the posts of Computers in the Directorate of Economics and Statistic by the order dated January 19, 1972 with effect from March 1, 1969 under Rule 16(3) of the Absorption Rules. However, the petitioner could not be confirmed as he was not deemed to be regularly appointed on the post of Computer. Sometime later, the Rajasthan Civil Services (Substantive Appointment and Determination of Seniority of Temporary Employees) Rules, 1972 (hereinafter referred to as 'the 1972 Rules') came into force and the petitioner was then confirmed on the post of Computer with effect from September 14, 1972, the date on which the 1972 Rules came into force. However, the petitioner could not be assigned higher seniority than the respondents Nos. 3 to 7 on the post of Computer, as he was confirmed with effect from a later date than the aforesaid respondents and the seniority in the cadre of Computers was to be determined according to the date of their substantive appointment on the said post. The petitioner felt aggrieved as he was assigned a lower position in the seniority list than !he respondents Nos. 3 to 7 and filed the present writ petition in this court.

3. The contention of the learned Counsel for the petitioner is that as the petitioner was initially appointed on the post of Computer in the Direct-orate of Economic and Industrial Surveys in a regular manner by the Appointing Authority, his absorption in the new post of Computer in the Directorate of Economics and Statistics should be considered to be one under Clause (5) of Rule 11 of the Absorption Rules and therefore, the question of adjudgment of the suitability of the petitioner under Rule 11(2)(b) of the Absorption Rules did not arise, but the petitioner should have been considered to be regularly appointed to the post of Computer from the date of his appointment by absorption, under Clause (6) of Rule 11 and he should have been confirmed under Rule 16(3) of the Absorption Rules and not under the 1972 Rules. It has been urged by the learned Counsel for the petitioner that in this view of the matter, the seniority of the petitioner vis a vis the respondents Nos. 3 to 7 requires reconsideration. On the other hand, learned Additional Government Advocate urged that as the post of Computer in the Directorate of Economics and Industrial Surveys, on which post the petitioner was initially appointed, fell within the purview of the Commission, the petitioner could not be considered to have been regularly appointed under Clauses (5) and (6) of Rule 11 of the Absorption Rules and it was, therefore, necessary to get his suitability adjudged by a Screening Committee under Rule 11(2)(b) of the Absorption Rules, but as he was not found fit by the screening Committee, the petitioner could be given an option to accept the lower post or to seek retirement on payment of compensation gratuity/ pension in accordance with the provisions of Clause (7) of Rule 11, yet in the meanwhile, the 1972 Rules came into force and the petitioner was tightly confirmed under the said Rules with effect from September 14, 1972.

4. Clauses (2)(5) and (6) of Rule 11 of the Absorption Rules, which are relevant for the present case, read as under:

11. Procedure for adjudging suitability and substantive appointment of surplus empolyees in certain cases.

(1) ... ... ...

(2) In the case of surplus employees absorbed under Sub-rule (1) or absorbed under Sub-rule (3) of Rule 7, where the posts on which they were absorbed fail outside the purview of the Commission, the suitability of such surplus employees shall be adjudged by a Screening Committee consisting of the Appointing Authority and the Member-Secretary of the Committee or his nominee not below the tank of Assistant Secretary in the following manner:

(a) the suitability of surplus employees appointed on any posts after having been duly selected by the appointing authority for such posts but who had been officiating or working temporarily or on ad-hoc basis on higher posts continuously for more than 3 years, shall be adjudged by the Screening Committee on the higher costs from which they were declared surplus; &

(b) the suitability of surplus employees, whose appointment was not in a regular manner shall be adjudged by the Screening Committee for a post which is equivalent to the post in which they were initially appointed, though they may be working on the date of their being declared surplus on other equated or equivalent posts or on a higher post in an officiating, ad-hoc or temporary capacity irrespective of their length of service;

Provided that it shall not be necessary to apply the provisions of Sub-rule (1) and (2) to those surplus employees who before publication of these Rules but subsequent to their absorption were recruited on selection by the Commission on the posts on which they were absorbed or have been otherwise adjudged suitable by the Commission or any Committee on such poets under the provisions of relevant Service Rules.

(3) ... ... ...

(4) ... ... ...

(5) It will not be necessary to adjudge the suitability of those permanent or temporary absorbed surplus employees who were initially appointed on previous posts either on the recommendation of the Commission or in a regular manner by the appointing authority and who are subsequently appointed to new posts.

(6) The surplus employees appointed by absorption to new posts whose suitability is adjudged under Sub-rules (1) to (3) or is not necessary to be adjudged under Sub-rule (5) shall be deemed to have been regularly appointed to such posts from the date of their appointment by absorption.

5. The only question which requires determination in the present case is as to whether the initial appointment of the petitioner in a temporary capacity on the post of Computer in the Directorate of Economic and Industrial Surveys was made in a regular manner by the Appointing Authority or not. In case it is held that the petitioner's initial appointment on the afore said post was made in a regular manner, then his case would be covered under Clause (5) of Rule 11 of the Absorption Rules, failing his case would fall under Rule 11(2)(b) of the Absorption Rules Under the Absorption Rules all appointments have been divided into three categories, namely substantive, temporary and ad hoc, As a matter of fact, temporary appointments have been sub divided into two categories, temporary and ad hoc. The crux of the matter in this respect is that if a temporary appointment is made without selection of a person by (a) any of the methods of recruitment provided under the relevant service rules, or (b) any order of the State Government, then such temporary appointment would be considered as an ad hoc appointment for the purposes of Absorption Rules. But if such temporary appointment is made after selection either by any of the methods provided under the service rules or an order of the State Government, then such appointment would be considered as a temporary appointment, as defined in Clause (m) of Rule 3 of the Absorption Rules. As the temporary appointment of the petitioner was made after selection , in accordance with the order of the State Government, there, can be no doubt that his appointment on the post of Computor in the Directorate of Economic and Industrial Surveys was a temporary appointment for the purposes of Absorption Rules Learned Additional Government Advocate urged that, as at, the time when the petitioner was appointed on the afore said post of Computer namely, on January 12, 1959, the said post fell within the purview of the Commission, the appointment of the petitioner on the poet of Computer could not be considered to be one in a regular manner. I am unable to agree with this contention An appointment which could be taken into consideration for purposes of Clause (f) of Rule 11 of the Absorption Rules should have been made either by the Appointing Authority on the recommendation of the Commission or by the Appointing Authority in a regular manner. To my mind, the words 'in a regular manners' appearing in Clause (5) of the Rule 11 have reference to an appointment made in accordance with law. It is admitted that at the time when the petitioner was initially appointed on the post of Computer in January, 1959, there were no service rules governing the appointment of persons to such posts. The only method for making appointments to such posts, which was then available was to do to under orders of the State Government. It can not be doubted that an appointment to such posts could have been made in consultation with the Commission, as envisaged under Article 320 of the Constitution, because at the relevant time the posts had not been taker, out of the purview of the Commission. However, in the present case, there is no doubt that the Commission had given its concurrence to the recruitment of temporary staff for the Directorate of Economic & Industrial Surveys, including the posts of Computers in the Directorate a is no doubt true that the petitioner was not appointed on the basic of a recommendation of the Commission but in respect of his temporary initial appointment the Commission had accorded its concurrence by its letter dated August 9, 1958 and thereafter the petitioner was selected by a duly constituted Selection Committee and was appointed by the Appointing Authority on the recommendation of such Selection Committee.

6. In N. Raghavendra Rao v. Deputy Commissioner, South Kanara Mangalore and Ors. : [1964]7SCR549 , it was held by their Lordships of the Supreme Court that a general approval given by the Central Government was sufficient to remove the embrago of previous approval placed upon the State Government in the proviso to Section 115(7) of the States Re- Organisation Act.

7. In some view was also taken by their Lordships of the Supreme Court in. Mohammed Shujat Ali and Ors. v. Union of India and Ors. 1974 (2) SLR 508 wherein Bhagwati J , speaking for the Court, observed that a general ominibus approval granted in advance to any variation which might be made in the conditions of service relating to departmental promotion, would amount to previous approval of the Central Government within the meaning of the proviso to Sub-section (7) of Section 115 of the States Re-Organisation Act.

8. The aforesaid principle in applicable to the facts of the present case and he giving of concurrence by the Commission to the appointment of temporary staff in the Directorate of Economic and Industrial Surveys should he considered as amounting to consultation with the Commission, so far as the question of appointment of the petitioner on a temporary basis, on the post of Computer in the aforesaid Directorate was concerned. Thereafter as I have already observed above, the appointment of the petitioner was made after advertisement and inviting of application and after due selection by a properly constituted Selection Committee. It cannot therefore, be held that the appointment of the petitioner on the aforesaid post of Computer by the Appointing. Authority, namely the Director of Economic and Industrial Surveys, Rajasthan was not made in a regular manner, although in a temporary capacity. In this view of the matter, the case of the petitioner and his like would be governed by the provisions of Clause (5) of Rule 11 of the Absorption Rules & the petitioner & other persons, similarly situated co him, should be deemed to have been regularly appointed to the new posts of Computer in the Directorate of Economics and Statistics. From the date of his or their absorption on such posts. In these circumstances, it was not at all necessary to determine the suitability of the petitioner under Rule 11(2)(b) of the Absorption Rules and the fact that the petitioner could not be adjudged as suitable by the Screening Committee under the aforesaid prevision can have no relevance to the question of his confirmation on the new post of Computer, on which he was appointed by absorption, in the Directorate of Economics and Statistics It may be that the respondents Nos. 3 to 7 or some of them, who might have been initially app intend in a regular manner, within the meaning of Clause (5) of Rule 11 of the Absorption Rules, like the petitioner, would also be deemed to be regularly appointed to the new posts under Clauses (6) of Rule 11 of the Absorption Rules. But, in any event, the question of confirmation of the petitioner and his like would have to be determined by the State Government under Rule 16(3) of the Absorption Rules and thereafter proper seniority would have to be assigned to the petitioner. As the petitioner was an absorbed employee under the Absorption Rules and his case was covered by Clause (5) of Rule 11 of the Absorption Rules, the question of his confirmation could only be considered under Rule 16(3) of the Absorption Rules and not under the 1972 Rules Sub-rule (3) of Rule 16 of the Absorption Rules provides that temporary surplus employees covered under Sub-rule (5) of Rule 11 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. Thus in the first place the seniority of the petitioner vis-a-vis other temporary absorbed employees and other temporary employees holding the posts of Computers in the Directorate of Economics and Statistics, at the time of the petitioner's absorption en that post, would have to be determined under Rule 15(2) of the Absorption Rules and thereafter the question of the petitioner's confirmation on the said post would have to be decided under Rule 16(3) of the Absorption Rules.

9. In view of the aforesaid discussion, the writ petition is allowed. The order of confirmation of the petitioner with effect from September 14, 1972 under the Rajasthan Civil Services (Substantive Appointment and Determination of Seniority of Temporary Employees) Rules, 1972 is set aside and the respondents are directed to determine the seniority of the petitioner under Rule 15 of the Rajasthan Civil Services (Absorption of Surplus Personnel) Rules, 1969 and to consider the question of confirmation of the petitioner under Rule 16(3) of the aforesaid Rules. In case the respondent Nos. 3 to 8 or any of them falls within the same category as the petitioner, then their cases should also be considered in the aforesaid manner along with the case of the petitioner. The respondents are also directed to give all consequential benefits to the petitioner in the matter of assignment of seniority and further promotions, to which he may be entitled in accordance with law. In the circumstances of the case, the parties are left to bear their own costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //