K. S. LODHA, J. - (1.) THESE five writ petitions involve a common question and therefore, they can conveniently be disposed of by a common order. By these writ petitions the five petitioners have challenged the order of the State Government in the Finance (Excise) Department dated 15. 7. 83 by which 16 persons have been declared surplus on account of the fact they by another order of the same date the State Government had abolished 17 posts of Assistant Public Prosecutors of the Excise Department with effect from 10. 8. 83.
(2.) THE case of the petitioners bereft of all embellishment and unnecessary details is that the petitioners who are included in the 16 persons who have been declared surplus could not have been so declared unless an attempt had been made to absorb them in the Excise Department itself. In order to understand this contention of the learned counsel for the petitioners a few facts relevant for the aforesaid purpose may be stated here. THE petitioners are all law graduates and were duly selected by the selection board. Under Rule 20 of the Rajasthan Subordinate Services (Recruitment & other service conditions) Rules, 1960 (hereinafter referred to as the Rules of 1960) and they were posted as Prosecuting Inspector (excise) by order dated 25. 11. 72. THEy had also undergone the training prescribed for Excise Inspectors by the order of the Excise Commissioner dated 29. 11. 72. THEy also further underwent another training vide order dated 4. 12. 72 and they also cleared the departmental examination for Excise Inspectors. On the coming into force of the new Criminal Procedure Code in 1974, 23 posts of Prosecuting Inspectors in the Excise Department were re-designated as Assistant Public Prosecutors in the Excise Department by order dated 17. 5. 84 (a copy of which has been produced as Annx. 8) w. e. f. 1 4. 74 and simultaneously by another order of the same date 14 Prosecuting Inspectors of the Excise Department who were designated as A. P. Ps. by the aforesaid order, were appointed A. P. Ps. under section 25 of the Code of Criminal Procedure including the present petitioners, a copy of the said order has been produced as Annx. 8 (a ). Later by order dated 16. 8. 75 these officers were confirmed as A. P. Ps. in the Excise Department, a copy of this order has also been produced as Annx. 6. A seniority list of the A. P. Ps. of the Excise Department was also published in 1978 vide Annx. 7. In the meantime the Rajasthan Subordinate Service (General Branch) Rules, 1974 (hereinafter referred to as the Rules) and the Rajasthan Excise Service (General Branch) Rules, 1974 (hereinafter referred to as the Rules of 1974) were enforced. Under rule 11 (6) of the Rules of 1974 it was directed that three posts of Assistant Excise Officers shall be reserved for appointment from amongst Prosecuting Inspectors who have put in five years of service and have passed the prescribed examination. It appears that in 1977 when promotions to the posts of Assistant Excise Officers were made, the A. P. Ps. who were originally the Prosecuting Inspectors but were re-designated as A. P. Ps. as aforesaid were not considered for such promotions, whereupon the matter was taken to the Rajasthan Civil Services Appellate Tribunal and that order was quashed by the Tribunal and it declared that the A. P. Ps. were also eligible for considerations for the posts of Assistant Excise Officers, a copy of the order of the Tribunal dated 16. 11. 79 has been produced and marked as Annx. 9. That order, of course is under challenge in a writ petition which is said to be pending before the Jaipur Bench of this Court. It may be mentioned here that on the coming into force of the Code of Criminal Procedure, 19 3, the posts of Prosecuting Inspectors in the Excise Department were abolished by order of the Governor dated 31. 3. 74 and the present petitioners were declared as surplus by the order of the Excise Commissioner dated 5. 4. 74, however, that order was superceded by order dated 17. 5. 74 by which 23 permanent posts of Prosecuting Inspectors were redesignated as those of A. P. Ps. in the Excise Department w. e. f. 1. 4. 1974. The petitioners, therefore, continued with the Excise Department as A. P. Ps. It will not be out of place to mention here that despite the change of the designation, the petitioners continued to be in the same grade as that of the Prosecuting Inspectors. Later, again a proposal was made for integration of the Assistant Public Prosecutors of the Excise Department into the Rajasthan Prosecution Services but that too appears to have fissiled out. Again, an option was asked from the petitioners in pursuance of the correspondence between Excise Commissioner and the Department of Personnel and Administrative Reforms etc. , whether they wanted to continue in the cadre of the A. P. Ps. in the Excise Department which was termed as a dying cadre or they wanted to be declared surplus and they were requested to give their option within a week of the receipt of the aforesaid communication. However, before this could be acted upon, the Excise Commissioner wrote to the Deputy Secretary, Finance (Excise) Department intimating to him that after discussion with the A. P. Ps. , who agreed that the proper course would be to declare them surplus and absorb them as Excise Inspector grade II. The matter did not end there and after some correspondence the Excise Commissioner again wrote to the Special Secretary, Finance (Excise) Department that the A. P. Ps. could be accompanied as Excise Inspectors grade I in the Excise Department as there were vacancies in that cadre. This position appears to have been reiterated in some correspondence with the Government and the Excise Commissioner by his letter dated 21. 11. 82 (Annx. 23) wrote to the Special Secretary, Finance (Excise) Department, "if the decision to declare them as surplus is taken they can be absorbed by the department under rule 7 read with schedule 5 (9) of the Rajasthan Civil Services (Absorption of Surplus Personnel) Rules, 1969 as a Excise Inspector grade II. The surplus personnel can be absorbed on equated, equivalent or lower vacant posts. The lower posts are vacant in this Department". It, however, appears that this proposal did not go through and ultimately the State Government passed the order under challenge by which the petitioners have been declared surplus, a copy of the said order is Annx. 33. In this order a certificate has been appended to the effect that all efforts of absorbing the aforesaid persons in the department itself had been made but no proper posts were available where they could be absorbed and, therefore, they were directed to appear before the Secretary, Absorption Committee in G. A. D. Gr. III. As already stated above, the contention of the learned counsel for the petitioners in these writ petitions is that before they could be thus declared surplus and referred to the G. A. D. for absorption else-where, they should and could have been absorbed in the Excise Department itself as there were some posts available in the department itself in the cadre of Excise Inspectors grade I. Without trying to thus absorb and accommodate, the petitioners, they could not have been thrown out of their department. In this connection reliance has been placed upon the Rajasthan Civil Services (Absorption of Surplus Personnel Rules, 1969 (hereinafter referred to as the 'rules of 1969) and the instructions of the State Government issued thereunder Special reference has been made to the definition of surplus personnel under rule 2 (1) of the Rules of 1969 and the order of the State Government No. F. 1 (14) /ga 111/78 dated 20. 5. 78. It is contended by the learned counsel for the petitioners that under clause (5) of the aforesaid order dated 20-5-78. It was incumbent upon the Excise Commissioner to explore the possibility of departmental absorption first, and in doing so, he should have tried to adjust the petitioners in similar posts in the department for which they were qualified and in order to achieve this object he should have reverted or discharged employees in other similar posts in the Excise Department, who were junior in service to the petitioners. This having not been done, the order Annx. 33 passed by the State Government is improper and illegal and should be set aside. Apart from this it was also contended by the learned counsel for the petitioners that the declaration of the petitioners as surplus vide Annx. 33 is malafide and lastly it was also contended that the order Annx. 33 is also violative of Article 14 of the Constitution because certain other A. P. Ps, who had already been promoted as Assistant Excise Officers on adhoc basis and who were otherwise similarly situated as the petitioners have been retained in the Excise Department itself.
(3.) THE State Government has opposed the writ petition and has tried to support the order Annx. 33 Mr. Maheshwari appearing for the State has strenuously urged that in the first place the petitioners do not continue to be in the Excise Department and, therefore, the question of their being absorbed in that department does not arise. In the second place he also tried to urge that the orders and instructions issued by the Government on 20. 5. 78 and earlier are only departmental instructions and the petitioners cannot claim any right under them. In view of the submissions made before me by the learned counsel for the parties, the first and foremost question which arises for consideration is whether the petitioners continued to be in the Excise Department. It is not disputed before me that initially they were appointed in the Excise Department in the cadre of Inspectors appointed under the Rules of 1960. The contention of Mr. Maheshwari, however, is that on the coming into force of the new Criminal Procedure Code A. P. Ps had to be appointed under section 25 Cr. P. C. and actually by order dated 17. 5. 74, the petitioners were so appointed as A. P. Ps. under sec. 25 Cr. P. C. In the order annx. 9 (A) by which they were appointed as A. P. Ps under sec. 25 Cr. P. C, it was mentioned in the endorsement to the Excise Commissioner that while the appointments and postings of Assistant Public Prosecutors shall vest in the State Government, they will be under his control and supervision for all other purposes. He further pointed out that the appointing authority of the A. P. Ps. even under the Rules was made to be the State Government and not the Commissioner of Excise Department as formally used to be and thus the A. P. Ps. have been appointed by the State and their appointing authority is also the State Government. They cannot be deemed to be in the Excise Department. I am altogether unable to countenance such a contention. As already stated above, it is not disputed before me that the petitioners were initially appointed in the Excise Department. Later, even after coming in to force of the Criminal Procedure Code, 1973, they continued to be with the Excise Department as would be clear from the order dated 17-5-74 by which the posts of Prosecuting Inspectors in the Excise Department were re-designated as A. P. Ps. and in the letter it is clearly mentioned that these posts have been merely re-designated otherwise they will continue to be with the Excise Dept. Even in the order appointing the petitioners as A. P. Ps. under sec. 25 of the Code of Criminal Procedure, it has specifically been mentioned that these A. P. Ps. will be under the control and supervision of the Excise Commissioner. These two orders are of the same date and in view of the clear language used in both these orders there is absolutely no room for doubt that the petitioner continued to be with the Excise Department. The appointment under sec. 25 of the Criminal Procedure Code is only for a limited purpose so as to enable the prosecuting Inspectors of the Excise Department to act as A. P. Ps. otherwise the posts continued to be with the Excise Department. Their is no other material on record to suggest that the petitioners had been taken out of the Excise Department, Mr. Maheshwari, of course tried to show that they were now governed by the Finance Department but this contention cannot be accepted in as much as the Finance Department has come into the picture only on account of the fact that the appointing authority of the A. P. Ps. has been made the State Government instead of the Excise Commissioner. The petitioners are not borne on the cadre of the Finance Department. On the other hand, there is ample material on record that even after the appointments of the petitioners as A. P. Ps. under section 25 Cr. P. C. on 17. 5. 74 they continued with the Excise Department and the State Government also considered them to be a part of that department and the cadre under the Rules of 1974. Reference in this connection may be made to the fact that the petitioners were asked to appear at the departmental examinations of the Excise Inspectors even after coming into force of the Criminal Procedure Code and their appointments as A. P. Ps. thereunder, vide Annx. 4 dated 9. 8. 74. Again, the order Annx. 6, whereby they were confirmed as A. P. Ps. it was mentioned that it was in Excise Department that they were so confirmed. By order dated 16. 11. 79. The Rajasthan Civil Services Appellate Tribunal has held that the petitioners were eligible for being considered for promotion to the post of Assistant Excise Officer. This could not have been so unless the petitioners were in the Excise Department itself. The matter does not rest here, a long series of correspondence has taken place between the Finance Department, the General Administration Department and the Department of Personnel with the Excise Commissioner whereby at different stages efforts were being made to see that the petitioners are absorbed and accommodated in the Excise Department itself and the Excise Commissioner had shown his willingness and even ability to absorb them, at one time in the posts of Inspectors grade I and at another as Inspectors grade If. This would be clear from Annxs. 19, 20, 21, 22 and 23, a reference to which has already been made above. I am, therefore, clearly of the view that the petitioners are still with the Excise Department and are members of the Rajasthan Excise Subordinate Services. This would further be borne out from a reference to the schedule read with rule 4 of the Rules. Rule 4 of the Rules provides that the nature of posts in the service shall be as specified in column 3 of the schedule and in the schedule three types of posts have been mentioned in column 2, namely, Inspectors of Excise grade I, Inspectors of Excise grade II and Assistant Public Prosecutor of Excise. Lastly in order Annx. 3 the State Government itself has clearly mentioned that those parts of A. P. Ps. in the Excise Department have been abolished. The next question which immediately arises is whether the petitioners should have been tried to be absorbed in the Excise Department itself. The Rules of 1969 defines surplus personnel in clause (1) of rule 2 as "the Government servant to whom the Rajasthan Service Rules, 1951 apply and who are declared surplus by the Government or by the Appointing Authority, under directions of the Government, on their being rendered surplus to the requirements of a particular department of the Government due to the reduction of the posts or abolition of offices therein as measures of economy or on administrative grounds but in whose case the Government decides not to terminate their services but to retain them in service by absorption on other posts. 1 specifically asked Mr. Mahe-shwari to point out the rule or rules under which the declaration of the person as surplus has to be made before he could be absorbed under these rules. Mr. Maheshwari clearly expressed his inability to point out any such rules and in these circumstances it has to be ascertained as to in what manner and in what circumstances a person can be declared to be surplus. Some light is thrown on this question by the definition of the term surplus personnel referred to above and it goes to show that a person can be declared as surplus if he has been rendered surplus to the requirements of the particular department of the Govt. due to the reduction of posts of abolition of offices etc. Therefore, the first thing to ascertain is whether the petitioners have been rendered surplus in the Excise Department. Now, for this purpose the only document to which reference has been made in the order Annx. 33 is another order of the State Government dated 15. 7. 83, a copy of which has been made available to me by the learned counsel for the petitioner. That order is in a form of a letter addressed to the Excise Commissioner Rajasthan, Udaipur by the Deputy Secretary (Excise) Rajasthan. It reads as under:- "i am directed to say that as a result of policy decision 17 posts of Assistant Public Prosecutors of Excise Department are hereby abolished with effect of (from) 10. 8. 83. And on account of abolition of these posts these petitioners are sought to be declared as surplus by the order Annx. 33. As already stated above, a certificate has been appended to this order that all efforts of absorbing the petitioners with in the department have been made but could not materialise on account of the fact that there were no proper posts in the department where they could be so absorbed. This gives rise to an inference that there is some procedure by which an effort has to be made to absorb a person whose post has been abolished or reduced to be absorbed in the department itself and to this effect appears to be clause (5) of the order of the State Government dated 20. 5. 78 on which reliance has been placed by the learned counsel for the petitioners. This clause reads as under:- "5. On the basis of the order abolishing the posts, all the Heads of Departments will explore the possibility of departmental absorption first. In doing so, the Heads of Departments should try to adjust surplus employees in similar posts in the Department for which they are qualified and in order to achieve this object they should revert or discharge employees in other similar posts in the Department, who may be junior in service. Such departmental absorption should however be got confirmed by the absorbing authority to ensure that junior or unqualified employees arc not unduly retained in the Department". A careful reading of the clause clearly goes to show that before a person can be declared surplus for the department and can be thrown out or referred to the G. A. D. for absorption elsewhere, an exercise has to be made by the Head of the Department in which he had been working till the pott was abolished or reduced. That exercise consists of exploring the possibility of departmental absorption first. In doing so, the Heads of the Departments should try to adjust surplus employees in similar posts in the Department for which they are qualified and in order to achieve this object they should revert or discharge employees in other similar posts in the Department, who may be junior in service. A further caution has been added in this clause to the effect that such departmental absorption should however be got confirmed by the absorbing authority to ensure that junior unqualified employees are not unduly retained in the Department. When it is accepted by the learned Govt. Advocate that there are no other rules prescribing the manner in which a person has to be declared as surplus the Government must have felt called upon the prescribed a procedure in this respect by issuing departmental orders and notifications and that is why the order dated 20. 5. 78 has been issued. The State Government as also the Excise Department appears to be adhering to this clause as would be clear from the fact that at an earlier stage exercise had been made in order to absorb and accommodate the petitioners in the Excise Department itself as would be clear from the documents Annx. 20 and 23 as also from the fact that the certificate almost in the terms envisaged by clause (5) of the order dated 20. 5. 78 has been appended to the order Annx. 33 dated 15. 7. 83 by which the petitioners have been declared surplus but as a matter of fact this exercise appears to have been left in the middle because although the Excise Commissioner had been informing the State Government that the petitioners could be accommodated in the department either as Inspectors of grade I or at least Inspectors grade II but before resort could be made to finalise this, the State Government came forward to abolish the posts and declared the petitioners and the other A. P. Ps. surplus. The fact that the circulars and orders issued by the State Government in order to fill in the lacuna of the rules and to specify the procedure involved are not mere departmental instructions but they have binding force also, had been refuted by Mr. Maheshwary but the contention cannot be accepted in view of the decision of the Supreme Court in State of Uttar Pradesh v. Chandra Mohan Nigan (I ). The certificate appended to the order dated 15. 7. 83 (Annx. 33) also does not appear to be factually correct because as a matter of fact it does appear from the correspondence between the Excise Department and the Finance and D. O. P. , specially letters Annx. 20 and 23 go to show that there were similar posts in the Excise Department vacant and the petitioners and the other A. P. Ps. could have been absorbed and accommodated there. In any case when the Excise Commissioner was of the view that the petitioners could have been so absorbed in the Excise Department itself the State Government should have come forward with clear and specific reasons why this could not have been done but no such reasons are put forward. ;