D.P. Gupta, J. - (1.) THE main question that arises for consideration in this writ petition is as to whether the petitioner's case is governed by the provisions of Rule 11(5) of the Rajasthan Civil Services (Absorption of Surplus Personnel) Rules, 1969 (hereinafter called the Absorption Rules') or it falls under Rules 11(2)(b) of the said Rules.
(2.) THE facts which have given rise to this controversy are that in the year 1958, the Government of Rajasthan decided to conduct a rapid economic and industrial survey of the State with a view to formulate its proposals for the Third Five Year Plan for Rajasthan. The Chief Secretary to the Government of Rajasthan by his letter dated August 2, 1958, requested the Rajasthan Public Service Commission (hereinafter referred to as 'the Commission') for its permission or concurrence to the making of initial appointments of the requisite staff on temporary basis for the Director of Economic and Industrial Surveys. By their letter dated August 9, 1958 the Commission accorded its concurrence to the appointment of temporary staff for conducting a rapid economic and industrial survey of Rajasthan, as requested by the State Government Thereafter, the Director of Economic and Industrial Surveys, Rajasthan issued an advertisement inviting applications for various posts in the aforesaid Directorate including 23 posts of Computers . All the applicants, including the petitioner, were interviewed by a Selection Board and after such selection, the petitioner was appointed a Computer on a purely temporary basis for a period of six months or till a candidate recommended by the Commission was appointed whichever was earlier, by the order of the Director of Economic and Industrial Surveys, Rajasthan, dated January 12, 1959. The petitioner held the post of Computer in the aforesaid Directorate for sometime and by the order of the Director dated August 13, 1959, he was promoted to the post of Investigator -Grade II. The petitioner was eventually declared surplus from the Directorate of Economic and Industrial Surveys and by the order of the Assort on Committee dated August 31. 1962, he was directed to be absorbed as a Computer in the Directorate of Economics and Statistics. In pursuance of the aforesaid direction of the Absorption Committee, the Director of Economics & Statistics, Rajasthan by his order dated September 11, 1962, absorbed the petitioner as a Computer in that Directorate, on a temporary basis The respondents Nos. 3 to 8 as well as the petitioner were considered for absorption under Rule 11(2)(b) of the Absorption Rules by a Screening Committee and while the respondents Nos. 3 to 7 were found fit and were deemed to be regularly appointed persons under Sub -rule (6) of Rule 11 of the Absorption Rules by the order of the Director of Economics and Statistics dated November 15, 1971, but the petitioner could cot be so appointed under Rule 11(6) of the Absorption Rules as he was not adjudged suitable by the Screening Committee under Rule 11(2)(b) if the Absorption Rules The respondents Nos. 3 to 7 were thereafter confirmed on the posts of Computers in the Directorate of Economics and Statistic by the order dated January 19, 1972 with effect from March 1, 1969 under Rule 16(3) of the Absorption Rules. However, the petitioner could not be confirmed as he was not deemed to be regularly appointed on the post of Computer. Sometime later, the Rajasthan Civil Services (Substantive Appointment and Determination of Seniority of Temporary Employees) Rules, 1972 (hereinafter referred to as 'the 1972 Rules') came into force and the petitioner was then confirmed on the post of Computer with effect from September 14, 1972, the date on which the 1972 Rules came into force. However, the petitioner could not be assigned higher seniority than the respondents Nos. 3 to 7 on the post of Computer, as he was confirmed with effect from a later date than the aforesaid respondents and the seniority in the cadre of Computers was to be determined according to the date of their substantive appointment on the said post. The petitioner felt aggrieved as he was assigned a lower position in the seniority list than !he respondents Nos. 3 to 7 and filed the present writ petition in this court. The contention of the learned Counsel for the petitioner is that as the petitioner was initially appointed on the post of Computer in the Direct -orate of Economic and Industrial Surveys in a regular manner by the Appointing Authority, his absorption in the new post of Computer in the Directorate of Economics and Statistics should be considered to be one under Clause (5) of Rule 11 of the Absorption Rules and therefore, the question of adjudgment of the suitability of the petitioner under Rule 11(2)(b) of the Absorption Rules did not arise, but the petitioner should have been considered to be regularly appointed to the post of Computer from the date of his appointment by absorption, under Clause (6) of Rule 11 and he should have been confirmed under Rule 16(3) of the Absorption Rules and not under the 1972 Rules. It has been urged by the learned Counsel for the petitioner that in this view of the matter, the seniority of the petitioner vis a vis the respondents Nos. 3 to 7 requires reconsideration. On the other hand, learned Additional Government Advocate urged that as the post of Computer in the Directorate of Economics and Industrial Surveys, on which post the petitioner was initially appointed, fell within the purview of the Commission, the petitioner could not be considered to have been regularly appointed under Clauses (5) and (6) of Rule 11 of the Absorption Rules and it was, therefore, necessary to get his suitability adjudged by a Screening Committee under Rule 11(2)(b) of the Absorption Rules, but as he was not found fit by the screening Committee, the petitioner could be given an option to accept the lower post or to seek retirement on payment of compensation gratuity/ pension in accordance with the provisions of Clause (7) of Rule 11, yet in the meanwhile, the 1972 Rules came into force and the petitioner was tightly confirmed under the said Rules with effect from September 14, 1972.
(3.) CLAUSES (2)(5) and (6) of Rule 11 of the Absorption Rules, which are relevant for the present case, read as under: 11. Procedure for adjudging suitability and substantive appointment of surplus employees in certain cases. (1) ... ... ... (2) In the case of surplus employees absorbed under Sub -rule (1) or absorbed under Sub -rule (3) of Rule 7, where the posts on which they were absorbed fail outside the purview of the Commission, the suitability of such surplus employees shall be adjudged by a Screening Committee consisting of the Appointing Authority and the Member -Secretary of the Committee or his nominee not below the tank of Assistant Secretary in the following manner: (a) the suitability of surplus employees appointed on any posts after having been duly selected by the appointing authority for such posts but who had been officiating or working temporarily or on ad -hoc basis on higher posts continuously for more than 3 years, shall be adjudged by the Screening Committee on the higher costs from which they were declared surplus; & (b) the suitability of surplus employees, whose appointment was not in a regular manner shall be adjudged by the Screening Committee for a post which is equivalent to the post in which they were initially appointed, though they may be working on the date of their being declared surplus on other equated or equivalent posts or on a higher post in an officiating, ad -hoc or temporary capacity irrespective of their length of service; Provided that it shall not be necessary to apply the provisions of Sub -rule (1) and (2) to those surplus employees who before publication of these Rules but subsequent to their absorption were recruited on selection by the Commission on the posts on which they were absorbed or have been otherwise adjudged suitable by the Commission or any Committee on such poets under the provisions of relevant Service Rules. (3) ... ... ... (4) ... ... ... (5) It will not be necessary to adjudge the suitability of those permanent or temporary absorbed surplus employees who were initially appointed on previous posts either on the recommendation of the Commission or in a regular manner by the appointing authority and who are subsequently appointed to new posts. (6) The surplus employees appointed by absorption to new posts whose suitability is adjudged under Sub -rules (1) to (3) or is not necessary to be adjudged under Sub -rule (5) shall be deemed to have been regularly appointed to such posts from the date of their appointment by absorption.;