DWARKA PRASAD GUPTA, J. - (1.) THIS writ petition raises a complex question about the seniority of Assistant Engineers (Civil) in the Rajasthan Public Health Engineering Department.
(2.) THE petitioner is a holder of degree of Bachelor of Engineering (Civil) and he was initially appointed as a Lecturer in Civil Engineering Department in Jodhpur Polytechnic, after selection by a Selection Committee constituted by the Director of Technical Education, Rajasthan. The advertisement which was issued for the aforesaid selection stated that 9 persons were to be selected for the posts of lecturer in Civil Engineering for the various Polytechnics in the State of Rajasthan, out of which six posts were temporary but were likely to become permanent while 4 temporary posts were likely to be created from July 1967. When the petitioner's appointment order was issued on August 5 1967, it appears that all the 9 posts of lecturers in civil engineering had come into existence. The petitioner's name finds place at serial No. 8 in the list prepared by the selection committee, recommending names of selected candidates for appointment as lecturers in civil engineering. In the appointment order dated August 5, 1967, it was mentioned that all the candidates, including the petitioner, will be placed on probation for a period of two years. It appears that later on some posts of lecturers in civil engineering in the Polytechnics were abolished and the petitioner and some other lecturers were declared surplus. The petitioner was absorbed by the Absorption Committee by its order dated 26 -10 -68 as Assistant Engineer in the Public Health Engineering Department. The Chief Engineer of the Public Health Engineering Department, Rajasthan, by his order dated October 28,1968 posted the petitioner as Assistant Engineer at the Head Office at Jaipur. Soon after the petitioner and some other lecturers were absorbed in the Public Health Engineering Department, a dispute arose as to whether the petitioner and other lecturers like him were permanent employees in their parent department or were merely temporary employees. The petitioner's case was that he was appointed on probation against a permanent post and as such on absorption in the Public Health Engineering Department he should have been absorbed as a permanent employee. The order of absorption Ex.2 is conspicuously silent as to whether the petitioner was a permanent or a temporary employee or he was absorbed as a permanent or temporary Assistant Engineer. The dispute went on for a number of years and ultimately by the order of the State Government dated January 11, 1975, the petitioner and other lecturers who were declared surplus from their parent department and were absorbed as Assistant Engineers in the Public Health Engineering Department were confirmed on the post of Assistant Engineers (Civil) with effect from January 1, 1971. On January 16, 1975 a seniority list of Assistant Engineers (Civil) was also issued by the Department in which the petitioner and other surplus lecturers were assigned seniority on the basis that they were earlier temporary employees absorbed as Assistant Engineers (Civil) in a temporary capacity. The aforesaid orders, confirming the petitioner with effect from January 1,1971, on the post of Assistant Engineer (Civil) and the seniority list dated January 16, 1975 prepared on that basis, have been challenged by the petitioner in the present writ petition.
(3.) THE first contention of the learned counsel for the petitioner is that the petitioner and other lecturers appointed with him in the Civil Engineering Department of the Polytechnics were initially appointed on probation on substantive posts, after a regular selection by the selection committee constituted for the purpose and that when the petitioner and other lecturers were declared surplus from the parent department and were absorbed as Assistant Engineers in the Public Health Engineering Department, they should be considered to have been absorbed as permanent employees in accordance with Rule 7(1) of the Rajasthan Civil Services (Absorption of Surplus Personnel) Rules, 1969 (hereinafter referred to as 'the Absorption Rules') and that seniority should be assigned to the petitioner and other absorbed lecturers under Rule 15(1) of the said Rules. The second submission of the learned counsel is that in case it is held that the petitioner and other lecturers like him were appointed on a temporary basis against temporary posts, yet as they were selected in a regular manner by a properly constituted selection committee, before they were appointed as lecturers in the Civil Engineering Department, their case fell within Sub -rule (5) of Rule 11 of the Absorption Rules and as permanent vacancies were then available in the Public Health Engineering Department when the petitioner and other similarly situated lecturers were absorbed as Assistant Engineers in that department, they should have been absorbed on permanent basis. A further submission has been made by the learned counsel for the petitioner that in case it is held that the petitioner was appointed as a lecturer in the Civil Engineering Department on a temporary post and after he was declared surplus in the parent department, he was absorbed in the Public Health Engineering Department as a temporary employee, yet on account of the existence of permanent vacancies in the new department, the petitioner was entitled to be confirmed on the new post in accordance with sub -rule (3) of rule 16 of the Absorption Rules before the respondents Nos. 3 to 8, who were appointed as Assistant Engineers (Civil) on a temporary basis after selection by the Rajasthan Public Service Commission.;