GUPTA, J. - (1.) THIS case raises a very short point for determination, namely as to whether the case of the petitioner for absorption on the post of Assistant Mining Engineer (Survey) is covered by the provisions of sub-r. (l) (b) of R. 11 or sub-r. (4) of R. 11 of the Rajasthan Civil Services (Absorption of Surplus Personnel) Rules, 1969 (hereinafter to be referred as 'the Rules' ).
(2.) THE facts giving rise to this petition may be briefly stated. THE petitioner, Shri Kacker was appointed as an Assistant Mining Engineer (Survey) in a temporary capacity for a period of six months by the order of the State Government dated June 19, 1964. THEreafter the period of his temporary appointment was extended. While the petitioner was working as such the post of Assistant Mines Manager, Palana Colliery, Palana (Rajasthan) was advertised and a selection committee was constituted by the State Government for selecting a candidate for appointment to the aforesaid post. It may be mentioned here that the Palana Colliery was a Rajasthan Government undertaking. THE petitioner was selected by the Selection Committee, constituted by the State Government, for the post of Assistant Mines Manager of the aforesaid colliery and was appointed on the aforesaid post by the order of the State Government dated April 20, 1965 with effect from the date he joined his duties. This appointment was on a temporary basis for a period of six months or till a candidate selected by the Rajasthan Public Service Commission joined duty, whichever was earlier. THE petitioner continued to hold the post of Assistant Mines Manager till she State Government decided to close down the aforesaid Colliery in April, 1967 THEreafter, by the order of the State Government dated April 27, 1967 she petitioner was declared surplus and was directed to report himself to the General Administration Department for absorption. THE case of the petitioner was considered lor absorption by the State Government and it was decided that since no post for absorption of the petitioner was available in any other Department, he may be absorbed in the Mines Department. THE Government, therefore, passed an order on July 13, 1967, that the petitioner may be absorbed against the post of Assistant Mining Engineer (Survey) with effect from July 1, 1967. In the year 1969, the Rajasthan Civil Services (Absorption of Surplus Personnel Rules, 1969 were published on December 11, 1969 and they were deemed to have come into force with effect from January 1, 1954. Thereafter, the petitioner approached the State Government with a request that his suitability for the post of Assistant Mining Engineer may be got adjudged by the Rajasthan Public Service Commission, (hereinafter referred to as 'the Commission') in terms of the provisions of sub-r (1) (b) of R. 11 of the Rules. The representation of the petitioner in this respect was rejected by the State Government by its order dated January 4, 1970 (Ex. 4) on the allegad ground that the case of the petitioner was governed by sub-r. (4) of R. 11 of the Rules and that the petitioner would have to seek regular direct recruitment for the post of Assistant Mining Engineer alongwith open market candidates, in the normal course. The request of the petitioner for getting his suitability adjudged by the Commission was thus rejected. The petitioner then approached the State Government in the Department of State Enterprises for a declaration as to whether his appointment on the post of Assistant Mines Manager, Palana Colliery was temporary or ad hoc. The State Government in the State Enterprises Deparment by its letter dated January 12, 1971, informed the petitioner that his appointment on the post of Assistant Mines Manager at the aforesaid colliery was a temporary appointment made against a permanent post. The petitioner thereupon again represented to the State Government to the effect that his case was governed by sub-r. (l) (b) or R. 11 and not by sub-r. (4) of the aforesaid Rule. The State Government, however, rejected the petitioner's representation by its order dated February 11, 18, 1971. The only question canvassed by the learned counsel for the petitioner in this case is that the appointment of the petitioner by absorption on the post of Assistant Mining Engineer was governed by the provisions of sub-r. (l) (b) and not of sub r. (4) of R. 11 of the Rules. Snb-r. (1) and (4) of R. 11 read under: R. 11 Procedure for adjudging sutability and substantive appointment of surplus employees in certain cases - (1) In the case of surplus employees absorbed during the period from 1-1-1954 to the date of publication of these Rules under sub-rule (3) of R. 7 where the posts on which they were absorbed, fall within the purview of the Commission on the date of publication of these Rules, the suitability of such surplus employees shall be adjudged by the Commission in the fallowing manner - (a) the suitability of surplus employees appointed on any posts after having been duly selected by the commission for such post but who had been officiating or working temporarily or on ad hoc basis on higher posts or service continuously for more than 3 years, shall be adjudged by the Commission for the higher posts from which they were declared surplus, and (b) the suitability of surplus employees, whose appointment, was not through the agency of the Commission shall be adjudged by the Commission for a post which is equivalent to the post on which they were initially appointed though they may be working on the date of their being declared surplus on other equated or equivalent post or on a higher post on an officiating, ad hoc or temporary capacity irrespective of their length of service - (2 ). . . . . . . . . . . . (3 ). . . . . . . . . . . . . (4) In the case of surplus employees absorbed either under sub rule (1) or under sub-rule (3) of R. 7 where on the date of being declared surp-they held ad hoc appointments for less than 3 years on the post from which they are declared surplus or equivalent posts, appointment to the new posts shall be only in an ad hoc capacity as provided in category (e) specified in the table given in sub rule (1) of R. 7 and they shall have to seek regular direct recruitment along win open market candidates in the normal course and in accordance with the provisions of the relevant service rules. . . . . . . . . . " It would appear from a reading of both provisions together that a surplus employees would be considered to have been absorbed under sub-r. (4) of R. 11 only if he held an 'ad hoc' appointment on the date of his being declared surplus for less than 3 years on the post from which he was declared surplus or equivalent posts. An 'ad hoc appointment' has been defined in R. 3 (a) of the Rules as: "temporary appointment made without selection of the candidate by any of the methods of recruitment provided under the relevant service rules or any orders of Government. " The case of the State Government is that the petitioner was not appointed by selection through the agency of the Commission, which according to it, was the only mode provided for making appointments to the posts of Assistant Mines Manager under the service rules, and therefore, the appointment of the petitioner on the post of Assistant Mines Manager was merely 'ad hoc'. However, it appears that in taking the aforesaid view, due weight has not been giving to the words 'made without selection of the candidate by any orders of the Government' occurring in the definition of an 'ad hoc appointment' in R. 3 (a) of the Rules. Thus the selection of a candidate, for the aforesaid definition clause, is not confined merely to the methods of recruitment specified in the relevant service rules but in case a recruitment is made by selection under any order of the State Govt. then also the appointment of such a selected candidate would be 'temporary' and not merely 'ad hoc' for the purposes of the Rules. It is not disputed before me that the appointment of the petitioner on the post of Asstt. Mines Manager at the Palana Colliery was made after selection by a Selection Committee appointed for the purpose by the State Government and as such it cannot be denied that the petitioner's appointment on the post of Assistant Mines Manager was made after selection under the orders of the State Government. As such, the temporary appointment of the petitioner on the post of Assistant Mines Manager cannot be held to be an 'ad hoc' appointment' as defined in R. 3 (a) of the Rules. As the appointment of the petitioner on the post of Assistant Mines Manager was not merely an 'ad hoc one, the question of application of sub-r. (4) of R. 11 to his case will have to be ruled out. Now under sub-r. (l) (b) of R 11, the requirement for recruitment is that the appointment of the surplus employee concerned on the post, on which he was initially appointed should not have been made through the agency of the Commission, though he may be working on the date of being declared surplus on other equated or equivalent post or on a higher post in an officiating, temporary or ad hoc capacity, irrespective of the length of his service. There is no doubt that the petitioner was not appointed on the post of Assistant Mines Manager through the agency of the Commission, and that is why under R. ll (l) (b) of the Rules it was necessary that his suitability should have been adjudged by the Commission, for the new post of Assistant Mining Engineer, on which he was absorbed temporarily under R. 7 The petitioner's appointment under sub-r. (3) of R. 7 after absorption should be considered as 'temporary', as the nature of his appointment on the post held by him on the date he was declared surplus was 'temporary'. If the nature of the appointment held by the petitioner when he was declared surplus would have been ad hoc only, then he would have been absorbed on the new post also on ad hoc basis only under R. 7 (3 ). In this view of the matter, the case of the petitioner cannot be said to be governed by the provisions of sub-r. (4) of R. 11, but his absorption on the post of Assistant Mining Engineer should be considered to be under sub-r. (l) (b) of R. 11. The petitioner's appointment on the post of Assistant Mining Engineer was terminated by the State Government by its order date January 27, 1971, (Ex. 7), under an erroneous impression that he was merely an 'ad hoc' appointee falling under category (e) specified in R. 7 (1) and that he had, therefore, to compete with open market candidates before the commission for a regular direct recruitment, as provided in sub-r. (4) of R 11. In the view of the State Government, as the petitioner did not compete with the open market candidates before the Commission for the post of Assistant Mining Engineer, he could not be retained in service after persons selected by the Commission for the aforesaid post were available. However, as the petitioner's case was governed by the provisions of sub-r. (l) (b) of R. 11, and not sub-r. (4) of the said rule, his services could not have been terminated in this manner, without getting his suitability for the post of Assistant Mining Engineer adjudged by the Commission. It might be that the petitioner could not successfully compete with the open market candidates in merit but still he may be considered suitable for the post of Assistant Mining Engineer by the Commission. In case the Commission finds the petitioner suitable for such post, he should be retained in service but in case the Commission is of the view that the petitioner is unsuitable for the post of Assistant Mining Engineer, then onyy his services can be terminated. The order of termination of the sesvices of the petitioner dated January 27, 1971 (Ex. 7) is, therefore, invalid and cannot be upheld. No other point was argued before me. In view of the aforesaid discussion, the writ petition is allowed and the order of the termination of services of the petitioner from the post of Assistant Mining Engineer, dated January 27, 1971, (Ex. 7) is quashed and the respondent No. 1 is directed to get the suitability of the petitioner for the post of Assistant Mining Engineer adjudged by the Commission in accordance with the provisions of sub. r. (1) (b) of R. 11 of the Rules, and thereafter proceed in the manner indicated above and the provisions of the Rules. In the circumstances of the case, the parties are left to bear their own costs. . ;