TaxTMI 
TaxTMI 
2000 (8) TMI 1151
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....lenge in this special appeal was passed by the learned Single Judge dismissing the review petition as time barred. The review petition was filed on 21.3.1996 against order dated 8.1.96. (2). Civil Writ Petition No. 818/79 was preferred by Suresh Kumar Hawa challenging the judgment dated 23.8.79 of the Tribunal whereby it allowed present appellant (N.S. Bohra's) appeal No. 638/1977 and in view of the findings on issue No. 3 - What should be the seniority of the appellants vis-a-vis respondents? it held that N.S. Bohra must be placed in the seniority list above the respondent Nos. 2 to 7 - The Tribunal however, dismissed appeal No. 525/1977 of S.C. Jain. (3). The present appellant and respondent No. 3 (Sohan Chand Jain) had preferred Appeal Nos. 638/77 & 525/77 respectively before the Tribunal challenging a revised final seniority list dated 17.6.77 showing them as Juniors to the present respondent Nos. 1, 2 & 4 to 7. This seniority list related to the Assistant Mining Engineers was published superseding previous seniority list dated 15.5.75 & 6.10.72, in this view of the matter, the contesting parties are the present appellant and respondent No. 1 (writ petitioner) in resp....
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.... entered into service on 6.7.64 upon his initial appointment as Temporary Lecturer in Mining Engineering in Udaipur Polytechnic, whereafter he was regularly selected as such by a duly constituted selection committee on 24.7.65 and accordingly he was confirmed on 18.8.66. Sohan Chand Jain (respondent No. 3 herein and appellant before the Tribunal in his appeal) was initially appointed as Lecturer in Mining Engineering in Udaipur Polytechnic by order dated 7.3.67. However, S.C. Jain was declared surplus on 22.7.68 but absorbed as Assistant Mining Engineer on 2.6.69 in the Mines Department (respondent No. 8) whereas the appellant was declared surplus w.e.f. 31.5.70 as the Mining Engineering Department in Udaipur Polytechnic was closed by the State Government. (8). Admittedly, the respondent Nos. 1, 2 and 4 to 7 were regularly appointed as Assistant Mining Engineer on the basis of recommendation of the Rajasthan Public Service Commission by a common order dated 26.3.68 of the State Government and they (except No. 2 who was confirmed on 28.3.70) were confirmed on 25.3.69, while the respondent No. 3 (S.C. Jain) was later on confirmed w.e.f. 27.7.70. (9). After the appellant or the ....
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....es & Geology Department among other Assistant Mining Engineers appointed through the Rajasthan Public Service Commission as under:- (1) Shri N.S. Bohra (2) Shri S.C. Jain (3) Shri S.K. Hawa (4) Shri S.G. Bohra (5) Shri S.M. Mathur (6) Shri Y.C. Gupta (7) Shri S.M. Chordia (8) Shri Sita Ram Sharma (9) Shri R.G. Kabra (10) Shri O.P. Jain (11) Shri P.C. Sanghi. Note : The seniority of Shri B.M. Sharma who is at present under suspension will be fixed after the criminal case pending against him in a Judicial Court is decided. Sd/- (P.R. Sharma) Dy. Secretary to Government." (10). Against the afore-quoted final seniority list, the writ petition (S.K. Hawa) submitted his representation dated 1.11.1972 praying therein for placing him at S. No. l instead of No. 3. Thereafter, Order No. F.37(75)Khan/72 dt. 15.5.75 was issued by the Mines Department staling therein that in the order of even number dated the 6th October, 1972, regarding seniority list of Assistant Mining Engineers, the name of Shri B.M. Sharma be inserted between the names of Shri S.M. Chordia and Shri Sitaram Sharma and the note given below in para 4 of the said order be deleted. However, the seniority po....
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....ines "ad hoc appointment" which means temporary appointment made without selection of the candidate by any of the method of recruitment provided under the relevant service rules or any orders of Government where no service Rules exists and otherwise than on the recommendations of the Commission of the post of in its purview. Under Sub-rule (f), "equated posts" means a post declared by the Committee as equated to the post held by the surplus personnel immediately before his being declared surplus. Sub-rule (2) defines "equivalent post" which means a post carrying an identical time scale of pay and involving similar nature of duties and responsibilities. Under Sub-rule (i) "new post" means a post on which surplus employee is appointed by absorption under Absorption Rules. Sub-rule (jj) defines "regularly appointed" and according to it, "regularly appointed" means persons appointed on the recommendations of the Commission if the posts are on its purview, and the persons appointed in accordance with the procedure laid down for recruitment to the post or service, as the case may be, but does not include an "ad hoc" or urgent temporary appointment or officiating appointment which is subj....
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....t or posts. Its Sub-rule (4) provides that surplus personnel who were absorbed on lower posts or on equated posts may be reabsorbed on equivalent posts or on the same posts from which they were declared surplus, provided they have not been confirmed on such posts, if the absorption committee is satisfied that hardship had been caused to them by their absorption on the lower posts or on equated posts due to non- availability of vacancies at the lime of their first absorption. (17). Under Issue No. 2, the Tribunal analysed the provisions contained in the Absorption Rules particularly Rules 3(a), 3(jj) and 7 as discussed above and then observed as under:- "However, it is seen from Ex.9 dated 28.4.1975 which is a letter from Assistant Secretary to the Government in the Mining Department addressed to Shri Jain that the Government had recognised that he was absorbed on an equivalent post of the Assistant Mining Engineer. Therefore, after such a long lapse of time of nearly eight years, on the date of the appeal we do not consider it proper to hold that as the posts were not declared equivalent posts the absorption of the appellants is not proper. Regarding the appellant Shri ....
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....lent posts, it cannot be held that the absorption of the appellant was not proper. (19). Be that as it may, in view of the aforesaid admission on the part of the Government, Itself there is a remis on its part especially when it is significant to note that admittedly the appellant (NS Bohra) was senior to Shri i.C. Jain in the previous post of Lecturer in Mining, Government Polytechnic Udaipur whose absorption was held to be regular, in our considered view also, there was no illegality in considering the appellant also as having been so absorbed. So, the Tribunal has rightly decided issue No. 2 in favour of the appellants in their appeals, which do not call for any interference by this Court in exercise of its extra ordinary jurisdiction. (20). The Tribunal under Issue No. 3 considered provisions of Rules 11 (6) and 15 of the Absorption Rules and concluded as under:- "But the seniority is to be determined in accordance with Rule 15. Shri Rohra was already a confirmed Lecturer with effect from 18.8.1966 and, Therefore, his seniority is to be determined under Sub-rule (1). He should be placed below the junior most permanent employee of the new service who has a longer ....
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....rovided that the surplus employee appointed by absorption to new posts whose suitability is adjudged under Sub-rule (1) to (3) or is not necessary to be adjudged under Sub-rule (5) shall be deemed to have been regularly appointed to such post from the date of their appointment by absorption. (22). If we examine the appellant's case in the light of the afore discussed provisions contained in Rule 11 of the Absorption Rules, then we are of the considered opinion that the case of the present appellant comes and is covered within the purview of Rule 11(5) according to which the suitability of the appellant (being permanent absorbed employee who was initially regularly appointed on previous post by the appointing authority and who was subsequently appointed to new post in the Mines Department) was not necessary to be adjudged and, Therefore, in view of Rule 11 (6) the present appellant shall be deemed to have been regularly appointed from the date of his appointment by absorption. Be that as it may, in our considered opinion, the appellant has rightly been held by the Tribunal, as having been absorbed as permanent and substantively appointed in a regular manner under the Absorpti....
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....as under:- "15. Seniority.--(1) The seniority of a surplus employee appointed substantively to a permanent post in the service or cadre in which he is absorbed shall be determined by the appointing authority concerned by placing him below the junior-most permanent employee of the new service or department who has a longer period of continuous substantive service on the post compared to the continuous substantive service of the surplus employee on equivalent or higher post. The seniority of a surplus employee who is absorbed on a higher posts on officiating basis shall be determined only in respect of his permanent post: Provided that the seniority of the surplus employee whose length of continuous service in substantive or officiating capacity or in both such capacities is lesser than the length of continuous service in substantive or officiating capacity or in both such capacities of the junior most permanent employee of the service or cadre of the New department in which such surplus employee has been absorbed, shall be determined by placing the surplus employee immediately below the said junior most permanent employee in the service or cadre or the department i....