LAKSHMANAN, C. J. - (1.) HEARD counsel for both the parties.
(2.) THIS Review Petition has been filed by the State of Rajasthan and the Director, Department of Mines & Geology, Government of Rajasthan against the order dated 15. 05. 1997, passed by the Division Bench of this Court in D. B. Special Appeal (Writ) No. 792/1995 and the order dated 5. 10. 1995, passed by the learned Single Judge in S. B. Civil Writ Petition No. 6359/1994. We have perused the orders, passed by the learned Single Judge and the learned Judges of the Division Bench. The writ petition filed by the respondent-herein was allowed by the learned Single Judge by order dated 5. 10. 1995, on the ground that since the respondent-herein had been holding the post of Certified Surveyor on adhoc basis for over 15 years, he could not be put to disadvantageous position because the said post was declared to be a dying cadre. The learned Single Judge has further observed that had the post of Certified Surveyor continued, he would have been entitled for promotion on the post of Certified Mines Foreman from the post of Mines Foreman Gr. II and considering a long time experience, the petitioner should have considered the case of the respondent for promotion to the post of Assistant Mining Engineer in accordance with the Rules of 1960. Accordingly, the learned Single Judge directed that the case of respondent be considered for promotion on the post of Assistant Mining Engineer. The petitioner-department herein preferred a Special Appeal against the aforesaid order passed by the learned Single Judge, but the Special Appeal stood dismissed by the Division Bench by order dated 15. 05. 1997. While dismissing the Special Appeal, learned Judges of the Division Bench while quoting item No. 3 (i) Assistant Mining Engineer (ii) Assistant Mining Engineer (Recovery) the Schedule-I of the Rajasthan Mines and Geological Service Rules, 1960 have observed that the holder of any post in the subordinate Mines and Geological service carrying scale of pay identical or higher than Mines Foreman Gr. II is entitled for promotion on the above post of Assistant Mining Engineer and since the respondent herein was substantively holding the post of Mines Foreman Grade II and he has worked on adhoc basis on the post of Certified Surveyor for sufficiently long period of 15 years, he was entitled for consideration for promotion to the post of Assistant Mining Engineer. The Rules of 1960 were amended vide Notification No. F. 1 (108) Khan/gr. III/74 dated 20. 5. 1977 as Rajasthan Mines and Geological Services (Amendment) Rules, 1977 wherein Schedule I and II have also been amended. In the Schedule I under item No. 3 (i) Assistant Mining Engineer (ii) Assistant Mining Engineer (Recovery) the post or posts from which appointment by promotion is to be made, the words in column 5 "3. Any post in the subordinate Mines and Geological service carrying scale of pay identical or higher than Mines Foreman Gr. II" has been substituted as "any post in the subordinate Mines and Geological service carrying Scale of pay identical or higher than Mines Foreman Gr. I. "
(3.) THE correctness of the judgment passed by the Division Bench is questioned in the present Review Petition. According to Mr. KK Sharma, learned counsel for the petitioner-department, the judgment of the Division Bench suffers from error apparent on the face of record. Our attention was drawn to the relevant Rules of 1960, quoted by the Division Bench in its judgment at page No. 3. Column No. 5 of item No. 3 under Schedule-I of the Rules of 1960 as extracted in the judgment dated 15. 5. 1997 reads as under:- "1. Mines foreman Gr. I 2. Head Draftsman 3. Any post in the subordinate Mines and Geological service carrying scale of pay identical or higher than Mines Foreman, Gr. II. " Our attention was also drawn at S. No. 3 under heading `assistant Mining Engineer' to Schedule-I at page 230 of the Rajasthan Law Times 1977, wherein Column No. 5 of item No. 3 of the Schedule I reads as under:- "1. Mines foreman Gr. I. 2. Head Draftsman 3. Any post in the subordinate Mines and Geological service carrying scale of pay identical or higher than Mines Foreman, Gr. I. " Shri Sharma has contended that the judgment of the Division Bench suffers from error apparent on the face of record, which calls for review. It has further been argued that the Division Bench has failed to appreciate that the respondent could not have been promoted on the post of Assistant Mining Engineer, merely on the basis of holding the post of Mining Foreman Grade II substantively. It has also been argued that since the respondent was working on the post of Certified Surveyor purely on adhoc basis, the respondent could not have been considered for substantive appointment on the post and there was no other alternative but to sending him back to the post of Mines Foreman Grade-II. ;