R.S VERMA,J - (1.) -
(2.) PETITIONER J.S. Sidhu, respondent N.S. Pal and Intervener F.M. Gelani all of them are members of Rajasthan Ground Water Board Service constituted under the Rajasthan Ground Water Board Service Rules, 1969 (for short the Service Rules). The controversy involved in this writ petition has a chequerred history and while petitioner claims seniority over respondent Pal & Intervener Gelani, Pal and Gelani claim seniority over him. Petitioner helds A.M.I.E. Certificate in Mechanical Engineering which is equivalent to Bachelors Degree in Mechanical Engineering. He entered cove-rnment service in 1964 as Demonstrator under the Directorate of Technical Education Later on petitioner was selected for the post of Lecturer under the said Directorate by a duly constituted selection committee, the post being outside the purview of Rajasthan Public Service Commission (for short the RPSC) This appointment was temporary. Petitioner joined this post on 15 7 1968 There was an economy cut during the relevant year and the petitioner faced the prospects of reversion to the post of Demonstrator which post was substantively held by him. However, a post of Assistant Engineer was lying vacant at that time under the Rajasthan Ground Water Department. This post was under the purview of R.P.S.C. The petitioner applied for appointment to this post Annexure R/1 at page 98 of the paper book). The Assistant Secretary to the Government in the General Administration Department recommended vide Annex. R/l (Page 97 & 98 of the paper book) that preference may be given for appointment of the petitioner to the said post in accordance with the instruction contained in Government Circular Annex. R/2 (Page 99 of the paper book) Consequently, the petitioner instead of being reverted as Demonstrator under the parent department, was appointed as Assistant Engineer in the Ground Wafer Department by order dated 27.11.68 (P. 112 of the paper book). This appointment was initially for a period of four months. It is not clear what transpired thereafter but it appears that having not been confirmed till 1973, the petitioner filed a writ petition before this Court (S.B C.W. No. 1396/73, In the mean while the service Rules had already come into force. Likewise, in the meanwhile the Rajasthan Civil Ssrvice (Absorption of Surplus Personnel) Rules 1969 (for short Absorption Rules) had also come into force. It appears that by an order dated 12.6.79 (Ex.2), petitioner was absorbed as Assistant Engineer in the Ground Water Department w.e.f. 2.12.68. By another order dated 16 6 79 (Ex 3) petititoner was confir,ed on the post w.e.f. 1.1.71. Both these orders were challenged by N.S. Pal respondent and, M. F. Gelani Intervenor by filing separate writ petitions. Gelani filed S.B.C.W.P. No. 974/80 while Pal filed S.B.C.W.P. No. 975/80. Here, I may notice the facts pertaining to appointments of Gelani and Pal and which are not in dispute. Gelani claime to be B.E. in Mechanical Engineering. He was selected for the post of Assistant Engineer in the Ground Water Department by a duly constituted selection committee and was appointed by an order dated 15.2.68 and joined this post on 16.2.68. He was eventually selected by R P.S.C. for this post and was confirmed in this post with effect from 21.8.72 N.s. Pal is also a S.B.E. and was similarly selected for he nos of Asststant Engineer in the Ground Water Department by a duly constituted selection committee and was appointed as such on 16.1.67. He joined the post on 2.3.67. He was eventually selected by R.P.S.C. and was confirmed as Assistant Engineer w.e.f. 21.8.72. It appears that the Department issued a seniority list on 21.2.74 wherein name of Pal was shown at S.No. 14 and name of Gelani was shown at S.No. 15. This list did not include the name of the petitioner at all. Aggrieved, petitioner filed S.B. Civil Writ Petition No. 2099/83 which came to be decided on 13.1.84 by a learned Single Judge of this Court, who directed the State Government to finalise the seniority list by including the name of the petitioner in the same. On 10.8.84, the Government passed an order revoking the absorption of the petitioner as Assistant Engineer effected by order dated 12.5.79. By another order dated 14.8.84., the government confirmed the petitioner as Assistant Engineer w.e.f. 1.3.79 and the name of the petitioner was directed to be added below the name of the three officers occuring in Government Order No. F.2 (l5) (2) Ag. (V) 73 dated 28.1.74." Consequently, the petitioner who had been posted in the meanwhile against the post of Executive Engineer was again posted as Assistant Engineer. 4-A. Initially Shri Mridul Advocate for the petitioner contended that Ex. 2 and Ex.3 conferred valuable civil right upon the petitioner and Ex. 13 to Ex. 16 could not have been passed with a view to revoke these orders without affording an opportunity of hearing him and hence on this short ground Ex. 13 to Ex. 16 deserved to be quashed. But, he did not press this line of argument realising that this would still leave the question open. Hence, he invited me to decide the controversy on merits and not on this technical plea. I agree with this line of approach and hence I have heard the learned counsel for the parties on the merits of the controversy. Learned counsel for the petitioner has contended that once the petitioner had been absorbed against the post of Assistant Engineer as a surplus employee, the order of absorption could not have been revoked. Likewise, once he had been confirmed as Assistant Engineer, the confirmation order could not have been revoked. It is contended that he had been duly selected as a Lecturer and on being declared surplus had been duly absorbed and confirmed and according to such absorption and confirmation was senior to Gelani and Pal and should have been assigned seniority above them and could not have been placed below them. Upon such contentions, it has been urged that Ex. 13 to Ex. 16 by which the original orders of absorption and confirmation were revoked may be set aside, may be quashed.
(3.) THE writ petition has been opposed by the respondent as also by the Intervenor. THE gist of the reply of respondent No. 1 is that petitioner was never absorbed as Assistant Engineer and was given merely an appointment on a preference basis. THE word 'absorption' was wrongly used in the order dated 27.11.1968. Due to such mistake a wrong confirmation order was passed to be effective from 1.1.71. As and when, the mistake was derected, the orders were rectified. THE mistake had occurred due to a misrepresentation made by the petitioner in as much as petitioner submitted copy of a circular after due attestation being Ex. R./7. In this document, the date 1.12 69 had been changed to 1.12.68 while the date should have been 1.2.69 as contained in Annex, Ex. R/8 It was pleaded that final seniority assigned to the petitioner was proper and was in accordance with the modified orders issued by the government, which were quite just and proper. I have heard the learned counsel for the parties at great length and have perused the material available on record. This is an admitted position before me that petitioner was initially appointed as Demonstrator under the Directorate of Technical Education. He was then temporarily appointed as Lecturer under the said Directorate, but after due selection. This is also an admitted position before me that the post of Lecturer under the Directorate was not within the purview of R.P.S.C. while the post of Assistant Engineer in the Ground Water Department was under the purview of R.P.S.C. Hence, an appointment to post of Assistant Engineer under the Gound Water Department could have been made onlyin consultation with the R.P.S.C. This is also an admitted position before me that due to economy cut, the post of Lecturer under the Directorate of Technical Education was abolished and the petitioner faced the prospect of reversion to his substantive post of Demonstrator. He, therefore, applied for appointment to the post of Assistant Engineer (Ex.R/l Page 98). This application was forwarded by letter Annex. R/l wherein it had been clearly mentioned that petitioner may be given preference for appointment as Assistant Engineer Now, it appears that Chief Ground Water Engineer & Secretary to Government passed the order Ex. 1 dated 27.11.68 mistakenly mentioning that Shri Sidhu "is absorbed as Assistant Engineer against the existing vacant post". Admittedly, till then the Absorption Committee had not met at all and hence there could have been no question of absorption of the petitioner by Ex. 1 dated 27.11.68, the post being within the purview of R.P.S.C. At this juncture, I may note that the Absorption Rules were promulgated in 1969 but by deeming clause in Rule 1 (2), it was provided that 'they (the Rules) shall be deemed to have come into force w.e.f. 1st January 1954". By Rule 7 (3) it was provided as follows : "In respect of the period from 1.01.1954 to the date of publication of these Rules, the various circulars of 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 form part of these rules and such appointments shall be substantive, officiating, temporary or adhoc as indicated in the table given below sub-rule (1) hereof." The Schedule protects and preserves the five circulars mentioned therein and it is note worthy that neither circular Annex. R/7 nor Annex. R/8 have been so preserved and protected. According to the petitioner, he was entitled to be absorbed under Annex. R/7 and R/7 was a true copy of the relevant circular. According to respondent No. 1, the date had been interpalated in Annex. R/7 & Annex. R/8 was the correct copy of the relevant circular. 1 need not enter into the controversy at all because I find that chronologically the last circular preserved and protested under the said provision was dated 23.07.1966 and no circular issued in 1968 had been so protected and preserved. Hence, 1 shall have to examine if the petitioner could have been absorbed on the post of Assistant Engineer w.e.f. 27.11.68 as mentioned in Ex. 1 and he could have been confirmed on the post of Assistant Engineer w.e.f. 1.1.71 as mentioned in Ex. 3. If he could have been so absorbed, appointed and confirmed, then it would follow that these orders could not have been modified or revoked in any manner. But, if I find that he could not have been so absorbed and appointed and confirmed, then it would follow that government could always pass appropriate orders. ;