S.N.MODI, J. - (1.) THIS is an application for review by Ram Swaroop of an order dated 21 -1 -70 passed by a Bench consisting of Hon'ble Jaget Narayan, Chief Justice and myself As Hon'ble Jagat Narayan latter on retired and ceased to be attached to this Court, the application for review is placed before me for disposal.
(2.) I sitting singly have jurisdiction to pass order on this review application in view of the express wordings of Order 47, Rule 5 C.P.C and the decision of this Court in Maji Mohan Kanwar and Ors. v. The State of Rajasthan and Anr. . Order 47, Rule 5 C.P.C runs as follows: Where the Judge or Judges, or any one of the Judges, who passed the decree or made the order, a review of which is applied for, continues or continue attached to the Court at the time when the application for a review, is presented, and is not or are not precluded by absence of other cause for a period of six months next after the application from considering the decree or order to which the application refers, such Judge or Judges or any of them shall hear the application, and no other Judge or Judge of the Court shall hear the same. In Maji Mohan Kanwar's case (supra), it was held: , Thus if the decree or order sought to be reviewed, is passed by a Division Bench consisting of two Judges and if both of them continue to be attached to the Court, then the application for review must be heard by both of them. If only one of the two Judges continues to be attached to the Court and the other one has retired, or is no longer attached to that Court for any other reason, then the application should be heard by the single Judge who continues to he attached to the Court. I being one of the members of the Bench which passed the order under review and continue attached to this Court, the application for review can be disposed of by me, The facts leading to this application are: The petitioner Ramswaroop was appointed as a lower division clerk in the Insurance Department of the erstwhile State of Jaipur on 1 -7 -47 and was confirmed with effect from 1 -7 -1918. After the formation of Rajasthan, his services were transferred to the State of Rajasthan where he continued to serve as lower division clerk till 2 -11 -1953. He was then promoted as an upper division clerk and confirmed with effect from 3 -11 -53. Thereafter he worked as Section Incharge but later on the posts of Section Incharge were abolished. He was therefore reverted to his substantive post of upper division clerk along with respondents Nos. 4 to 8 who were also working as Section Incharge. The Deputy Director of Insurance vide order dated 30 -11 -56 issued in pursuance of the directions contained in the letter of the Finance Department, Government of Rajasthan, dated 27 -11 -56, appointed 16 persons including the petitioner and respondents Nos 4 to 8 as supervisor with effect from the dues noted against each. In this order, the petitioner's name is shown at serial number 11 and the date of his appointment as 3 -11 -56. In the same order, he names of respondents Nos. 4 to 8 have been shown at serial numbers 5, 7, 8 and 10 and the date of their appointment as 1 -11 -56. Thereafter by an order dated 29 -11 -57, 14 persons out of 16 appointees including the petitioner and respondents Nos 4 to 8 were confirmed as Supervisors. The Deputy Director of Insurance who signed this order mentioned therein that inter se seniority of the 14 appointees will be decided later on. Then, under Rules 2 and 27(1) of the Rajasthan Subordinate Offices Ministerial Staff Rules 1957, he worked out a provisional seniority list of the supervisors working in the Department on 14 -7 -62. In this list, the petitioner was shown at serial number 9 whereas the respondents Nos. 4 to 8 were shown senior to him. The petitioner filed representation against this provisional list and claimed seniority over the respondents Nos. 4 to 8 but it was rejected. A final seniority list of the permanent supervisor was then published on 13 -7 -64 wherein the name of the petitioner was shown at serial No. 9 and those of respondents Nos. 4 to 8 at serial numbers 3, 4, 5, 6 7 and 8 respectively. Dissatisfied with this final seniority list, the petitioner filed an appeal to the Deputy Director of Insurance which was dismissed. The petitioner then approached the State Government and ultimately this Court by a writ petition under Article 226 of the Constitution, praying inter alia that the final seniority list (Ex. 15) be quashed and the respondents Nos. 1 to 3 viz. the State of Rajasthan, Director of Insurance and the Deputy Director of Insurance be directed to re -determine the seniority of the petitioner and the respondents Nos 4 to 8 according to rules. My learned brother Tyagi J. who heard the writ petition dismissed the same by his judgment dated 12 -11 -69 holding that the Finance Department, Government of Rajasthan for the appointment of Supervisors had prescribed that (1) the incumbent must be graduate with 3 years service as upper division clerk or (2) if the incumbent is non -graduate, then he must be atleast a matriculate and must have three years service as upper division clerk on the day of his appointment and must have completed a total service of 7 years excluding class IV service. The petitioner qualified himself for the post of Supervisor only on 3 -11 -56 for he was substantively appointed as upper division clerk with effect from 3 -11 -53. It was further held that since the respondents Nos. 4 to 8 were substantively appointed as upper division clerks on 1 -11 -53, they became eligble to be appointed as Supervisors on 1 -11 -56, that is, two days earlier than the petitioner. The learned Judge further observed that it was due to this reason that the Deputy Director in his order 30 11 -56 appointing the petitioner and the respondents Nos. 4 to 8 as Supervisors put the appointment date against the name of the petitioner to be 3 -11 -56 and against the names of the respondents Nos. 4 to 8 as 1 -11 -56. The learned Judge further held that the appointment order dated 30 -11 -56 (Ex. 4) was not challenged by the petitioner to be erroneus at the time when it was issued and it would not be in the interest of justice to permit the petitioner to challenge this appointment order on the basis that he had officiated as upper division clerk in the Department before he was confirmed as upper division clerk on 3 -11 -53 and had qualified himself for the appointment as supervisor even before 1 -11 -56. The learned Judge then considered whether the final seniority list (Ex 15) published by the Department was in accordance with the Rajasthan Subordinate Offices Ministerial Staff Rules, 1957. In this connection, the learned Judge examined Rule 27, the relevant portion of which runs as: Rule 27 Seniority - -Seniority in each class of posts shall be determined by the date of the cider of substantive appointment to the class of post concerned: Provided: (i) that the seniority inter se of persons appointed to a particular category of posts before the commencement of these Rules, or in accordance with the proviso to Rule 2, shall be determined, modified or altered by the appointing authority on an ad hoc basis subject to the directions of Government, if any. (ii) xx xx xx xx xx xx(iii) that the seniority inter se of persons appointed by promotion 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 of higher posts whan it shall be in accordance with the length of such continued officiation provided that such officiation was not ad hoc or fortuitous. The learned Judge held that the case was governed by proviso (i) and not by proviso (iii) of Rule 27, for the inter se seniority of the persons appointed as supervisors was to be determined subject to the directions embodied in the letter of the Finance Department, Government of Rajasthan, dated 27 -11 -56.
(3.) AGGRIEVED by the dismissal of his writ petition, the petitioner filed special appeal under Section 18 of the Rajasthan High Court Ordinance. The appeal was rejected summauly on 21 -1 -70 by Hon'ble Jagat Narayan, C.J. and myself as already stated above.;