MADAN, J. - (1.) THIS special appeal arises out of two judgments cum orders dated 8. 1. 96 and 10. 4. 97 passed by the learned Single Judge. First one was passed allowing S. B. Civil Writ Petition No. 818/79 of Suresh Kumar Hawa (respondent No. 3) and remanding the matter to the Rajasthan Civil Services Appellate Tribunal to examine the record and to see whether the procedure as prescribed under the Rajasthan Civil Services (Absorption of Surplus Personnel) Rules, 1969 (for short, "absorption Rules") has been followed or not, and, therefore, the judgment dated 23. 8. 79 of the Tribunal in appeal filed by the present appellant against publication of final seniority list cum order dated 23. 8. 79 was set aside. Second order dated 10. 4. 97 under challenge in this special appeal was passed by the learned Single Judge dismissing the review petition as time barred. The review petition was filed on 21. 3. 1996 against order dated 8. 1. 96.
(2.) CIVIL Writ Petition No. 818/79 was preferred by Suresh Kumar Hawa challenging the judgment dated 23. 8. 79 of the Tribunal whereby it allowed present appellant (N. S. Bohra's) appeal No. 638/1977 and in view of the findings on issue No. 3 - What should be the seniority of the appellants vis-a-vis respondents? It held that N. S. Bohra must be placed in the seniority list above the respondent Nos. 2 to 7 - The Tribunal however, dismissed appeal No. 525/1977 of S. C. Jain. The present appellant and respondent No. 3 (Sohan Chand Jain) had preferred Appeal Nos. 638/77 & 525/77 respectively before the Tribunal challenging a revised final seniority list dated 17. 6. 77 showing them as Juniors to the present respondent Nos. 1, 2 & 4 to 7. This seniority list related to the Assistant Mining Engineers was published superseding previous seniority list dated 15. 5. 75 & 6. 10. 72. In this view of the matter, the contesting parties are the present appellant and respondent No. 1 (writ petitioner) in respect of their seniority resulting out of revised final seniority list dated 17. 6. 77 (Annex. 11) and the Judgment of the Tribunal. The Tribunal in its judgment formulated following issues for consideration: 1. Whether the appellants have been regularly selected on the post of Lecturer, Polytechnics? 2. Whether they have been properly absorbed in the Mining Department and hence can be deemed to be members of the service? 3. What should be the seniority of the appellants vis-a-vis respondents? 4. Whether seniority list can be revised? We have heard the learned counsel for the parties at length on merits of the controversy as to the seniority of the parties, and have perused the impugned judgments of this Court as also the Tribunal besides other documents produced on record in the writ petition out of which this special appeal arises. The review petition was filed on 21. 3. 96 against order dated 8. 1. 96 in writ petition. Moreover, the review petition was admitted on 5. 4. 96 and ad interim stay order was passed on 5. 4. 96 staying the operation of the judgment dated 8. 1. 96 passed in writ petition. Upon the preliminary objection raised by Shri S. G. Bohra (respondent No. 2) by his application dated 8. 5. 97 alleging that the special appeal is time barred, the appellant submitted his application under Section 5 read with Section 14 of the Limitation Act explaining therein that from 21. 3. 96 to 10. 4. 97 review petition was pending so the special appeal could not have been filed, and that apart, name of appellant's counsel was not shown in the cause list dated 8. 1. 96 when writ petition was heard and decided. This fact could not have been controverted by the respondent No. 2 (S. G. Bohra ). The judgment of the Tribunal qua S. B. Bohra is final as he did not challenge it. In our considered view, it is a fit case having sufficient cause to condone the delay, if any, and laches alleged against the appellant. Immediately after the order passed in review petition, the special appeal has been preferred without any delay and, therefore, the time consumed in disposal of the review petition can be excluded and the appellant was reasonably prevented from 6. 1. 96 to 10. 4. 97 to file special appeal. The alleged delay deserves to be condoned keeping in view the merits of the case of the appellant.
(3.) INDISPUTABLY, the appellant entered into service on 6. 7. 64 upon his initial appointment as Temporary Lecturer in Mining Engineering in Udaipur Polytechnic, whereafter he was regularly selected as such by a duly constituted selection committee on 24. 7. 65 and accordingly he was confirmed on 18. 8. 66. Sohan Chand Jain (respondent No. 3 herein and appellant before the Tribunal in his appeal) was initially appointed as Lecturer in Mining Engineering in Udaipur Polytechnic by order dated 7. 3. 67. However, S. C. Jain was declared surplus on 22. 7. 68 but absorbed as Assistant Mining Engineer on 2. 6. 69 in the Mines Department (respondent No. 8) whereas the appellant was declared surplus w. e. f. 31. 5. 70 as the Mining Engineering Department in Udaipur Polytechnic was closed by the State Government. Admittedly, the respondent Nos. 1, 2 and 4 to 7 were regularly appointed as Assistant Mining Engineer on the basis of recommendation of the Rajasthan Public Service Commission by a common order dated 26. 3. 68 of the State Government and they (except No. 2 who was confirmed on 28. 3. 70) were confirmed on 25. 3. 69, while the respondent No. 3 (S. C. Jain) was later on confirmed w. e. f. 27. 7. 70. After the appellant or the contesting respondents were regularly absorbed or appointed in the Mines Department, for the first time a tentative seniority list of Assistant Mining Engineers was issued by the Mines Department under Order No. F. 8 (2) (2)/ind/8/65, dt. 6. 5. 69 (Annex. 5) whereby objections were invited. This tentative seniority list dated 6. 5. 69 (Annex. 5) was finalised by issuing Order No. F. 37 (75) Khaniz/72 dt. 6. 10. 72 (Annex. 6), which is reproduced as under:- Government of Rajasthan Mines Department No. F. 37/ (75)Khaniz/72 Dated Jaipur 6. 10. 72 Order Tentative seniority list of Assistant Mining Engineers was issued vide this department Order No. F. 8 (2) (2)/ind/8/65, dated the 6. 05. 1969 and objections were invited thereon. After considering the objections it has been decided to issue a final seniority list of Assistant Mining Engineers under Rule 27 of the Rajasthan Mines & Geological Service Rules, 1960. For fixing the final seniority list indicating the present position, the Assistant Mining Engineers selected by the RPSC during the years 1970 and 1971 and later on confirmed have also been assigned seniority. 2. Shri N. S. Bohra, Lecturer in Mining, Government Polytechnic Udaipur was declared surplus and was absorbed in Mines & Geology Department vide this department Order No. F. 37/ (1) Khaniz 70, dated 26. 11. 1970. He was appointed on probation from 18. 02. 1965 and was confirmed with effect from 18. 08. 1966 under Education C-II Department Order No. F. 3 (47) Edu-II/65, dated the 30. 06. 1967. He joined the Mines and Geology Department on 30. 11. 1970. 3. Shri S. C. Jain, Lecturer in Mining Government Polytechnic Udaipur was declared surplus and was absorbed in the Mines & Geology Department vide Government Order No. F/ ( )GA/c/ 69/2823, dated 21. 05. 1969. He was appointed as Lecturer on probation from the date of taking over charge which is 29. 03. 1967 (AN) vide Education C-II Department Order No. F. 2 (b) (3) Edu/c- II/67, dated 7. 03. 1967. He was confirmed on the post Assistant Mining Engineer with effect from 29. 7. 1970 under this Department Order No. F. 37 (14) Khaniz/70 dated 28. 4. 1971. 4. Under Rule 15 of the Rajasthan Civil Services (Absorption of Surplus Personnel) Rules, 1969, the seniority of Sarva Shri N. S. Bohra and S. C. Jain is fixed in the cadre of Assistant Mining Engineers in the Mines & Geology Department among other Assistant Mining Engineers appointed through the Rajasthan Public Service Commission as under:- (1) Shri N. S. Bohra (2) Shri S. C. Jain (3) Shri S. K. Hawa (4) Shri S. G. Bohra (5) Shri S. M. Mathur (6) Shri Y. C. Gupta (7) Shri S. M. Chordia (8) Shri Sita Ram Sharma (9) Shri R. G. Kabra (10) Shri O. P. Jain (11) Shri P. C. Sanghi. Note : The seniority of Shri B. M. Sharma who is at present under suspension will be fixed after the criminal case pending against him in a Judicial Court is decided. Sd/- (P. R. Sharma) Dy. Secretary to Government. " ;