BANNEY SINGH RATHORE Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) BY the instant writ petition under Article 226 of Constitution of India, the petitioner seeks direction to quash the seniority list dated 10 -10 -1988 Annexure -6 and to treat the respondents No. 3 to 5 junior to the petitioner. The petitioner has also prayed for the consequential reliefs.

(2.) THE say of the petitioner is that he was appointed as Excise Inspector grade -II w.e.f. 24th October, 1973. He was subsequently confirmed on the said post with effect from the same date i.e. the date of appointment. The respondents No. 3 to 5 were initially appointed in the year 1966 in the Department of Sheep and Wool on the post of wool Graders. They were confirmed on the said post w.e.f. 1 -4 -1972. On being declared surplus, they were absorbed in the Excise Department in accordance with the Rajasthan Civil Services (Absorption of surplus Personnel) Rules, 1969 (hereinafter referred to as Rule 69). The grievance of the petitioner is as the respondents No. 3 to 5 have been appointed subsequent to him in the Department as such they could not have been given seniority above him. It is also claimed that the respondents No. 3 to 5 were not even qualified to be the Excise Inspector in the year 1973 when he was appointed as Excise Inspector. In the year 1973 while he was graduate the respondents No. 3 to 5 were only matriculate. It is further claimed that the respondents No. 3 to 5 were in the pay -scale of Rs. 385 -650 when he was in the higher pay scale of Rs. 440 -770.

(3.) THE petition has been contested by the Department as well as the private respondents No. 3 to 5. It is submitted by the learned counsel appearing for the respondents that no relief can be granted to petitioner in the matter of seniority with reference to answering respondents as he has not challenged the order of their absorption in the Department. The Learned counsel has placed reliance on a judgment of the Supreme Court in P. Chltharanjan Menon v. A. Balakrishnan, reported in (1977) 2 Serv LR 289 : (1977 Lab IC 1215). It is held therein that if the basic order of promotion is not challenged, the subsequent order determining the date of commencement of service cannot be challenged. Mr. P. P. Choudhary, learned counsel for the petitioner submits that he has no quarrel with the said proposition of law. However, he submits that the petitioner was not required to challenge the initial order of absorption as no exercise contemplated under Rule 7 if the surplus Rules 69 was undertaken. Rule 6 provides that the committee may if deem fit for the purposes of Rule 7 declare a post or class of post equivalent to the post held by the employees immediately before be is being declared surplus, keeping in view, the nature of duties, qualifications and pay scales attached to such post or the class of post. Rule 7 provides the procedure for absorption. Learned counsel has also referred to Rule 11 (2) which provides suitability and substantive employment of surplus employees in certain cases. Rule 10 provides for deemed relaxation of qualification for the purpose of absorption.