2000 (8) TMI 1151 - HC - Indian Laws

Surplus employee absorption under 1969 Rules and seniority based on continuous service upheld; later seniority downgrade quashed

The HC held that an absorbed surplus employee was 'regularly appointed' and properly absorbed under the Rajasthan Civil Services (Absorption of Surplus ... - 1. ISSUES PRESENTED AND CONSIDERED (i) Whether delay in filing the intra-court appeal deserved condonation by excluding the period during which the review petition remained pending, on the facts shown. (ii) Whether the absorbed employee was to be treated as 'regularly appointed' and 'properly absorbed' under the Rajasthan Civil Services (Absorption of Surplus Personnel) Rules, 1969, so as to be deemed a member of the service, and whether a remand to re-examine compliance with absorption procedure was legally justified. (iii) Whether seniority in the cadre after absorption was correctly determined by applying Rule 15(1) (read with Rules 11(5) and 11(6)), and whether the Tribunal's placement of the absorbed employee above the direct recruits appointed later was sustainable. 2. ISSUE-WISE DETAILED ANALYSIS Issue (i): Condonation of delay due to pendency of review Legal framework: The Court considered exclusion/condonation principles under Section 5 read with Section 14 of the Limitation Act, on the pleaded facts of time spent pursuing review. Interpretation and reasoning: The Court accepted that the review petition remained pending for a substantial period and that the appeal was filed promptly after disposal of the review. It also noted the pleaded circumstance that counsel's name was not shown in the cause list when the writ was decided, and treated the overall explanation as 'sufficient cause.' Conclusion: Any delay was condoned and the period spent in the review proceedings was excluded; the appeal was treated as maintainable on limitation. Issue (ii): Regularity of appointment/absorption; propriety of remand to re-test absorption procedure Legal framework: The Court examined definitions and scheme under the Absorption Rules, including 'regularly appointed' (Rule 3), constitution/functioning of absorption machinery (Rules 5-7), and deeming regularity where suitability need not be re-adjudged (Rules 11(5) and 11(6)). Interpretation and reasoning: The Court upheld the Tribunal's finding that the employee's initial appointment in the previous post was through the prescribed selection process and was not 'ad hoc,' bringing him within 'regularly appointed.' It further accepted that Government records had treated the absorption as on an equivalent post and had consistently included him in the cadre seniority from an early stage. The Court agreed with the Tribunal that, after long lapse of time, absorption could not be treated as improper merely because of an asserted procedural lacuna about declaration of equivalence, especially when the administration itself had recognized and acted upon the absorption. Applying Rules 11(5) and 11(6), the Court held that suitability was not required to be adjudged afresh and the employee was deemed regularly appointed from the date of absorption. The Court found the remand direction erroneous because the Tribunal had already decided the absorption issue on evidence and on the relevant rules, and reopening it decades later was unjust and unnecessary. Conclusion: The employee's absorption was held to be proper and he was deemed a regular member of the service; the Single Judge's remand to re-examine absorption procedure was set aside as legally unsustainable. Issue (iii): Determination of seniority after absorption under Rule 15(1) Legal framework: The Court applied Rule 15(1) of the Absorption Rules for fixing seniority of a surplus employee substantively appointed to a permanent post in the new service, in conjunction with Rule 11(6) (deeming regular appointment from the date of absorption) and the Tribunal's reasoning on continuous substantive service. Interpretation and reasoning: The Court affirmed the Tribunal's method: seniority was to be fixed by comparing continuous substantive service of the absorbed employee on the equivalent/higher previous post with the continuous substantive service of the junior-most permanent employee in the new service who had longer service. On the facts found, the direct recruits could be treated as having continuous substantive service only from their later appointment date, whereas the absorbed employee had continuous substantive service from his earlier regular selection in the previous post. The Court held that the Tribunal's conclusion-placing the absorbed employee above those appointed later through direct recruitment-was consistent with Rule 15(1) and could not be displaced in extraordinary jurisdiction. It further held that the Single Judge acted illegally in remanding the matter on an issue not germane to what was adjudicated by the Tribunal and in disregarding settled service positions which had remained unchallenged. Conclusion: Seniority was conclusively held to be correctly determined under Rule 15(1) as per the Tribunal's decision; the later revision which pushed the absorbed employee down was not sustained, and the Tribunal's seniority placement was restored.