HIRO BADLANI Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is a writ petition u/art. 226 of the Constitution by one Shri Hiro Badlani and raises the question about his fixation in the Rajasthan Statistical Service on being rendered surplus in the Directorate of Economics and Industrial Surveys. The petitioner prays that the State may be directed to absorb him on the post of an Assistant Director from the date he was declared surplus in the Directorate of Economics and Industrial Surveys and further give him all consequential benefits. In the alternative, he prays that the State be directed to confirm the petitioner on the post of a Statistician from the date the first vacancy occured after his absorption as Statistician in the Directorate of Economics and Statistics in preference to respondents Nos. 7 and 12 to 20.

(2.) THE facts are not in dispute and may be briefly recapitulated. THE petitioner was first appointed as a Statistician in the Directorate of Economics and Industrial Surveys on 11-7-59 on temporary basis. He held this post till 9-3-60 when he came to be appointed as Assistant Director in the Directorate of Economics and Industrial Surveys. He was declared surplus from the Directorate of Economics and Industrial Surveys on 30 6-63. He came to be absorbed as Statistician to the Rajasthan Statistical Service on 15-7-62. It is further not disputed that the Government had sought the concurrence of the Rajasthan Public Service Commission for appointment of temporary staff in the Directorate of Economics and Industrial Surveys for conducting rapid Economic and Industrial Survey of Rajasthan in connection with the formation of the Third Five Year Plan for Rajasthan and by their letter dated 9-8-58 the Rajasthan Public Service Commission accorded their concurrence to the appointment of the temporary staff as desired by the Government. THE Government then recruited the staff for the Directorate of Economics and Industrial Surveys and I have already observed the petitioner was appointed as Statistician on 11-7-59. THEn it appears that by order dated 9-10-68 the Government appointed the petitioner in the Rajasthan Statistical Service with effect from 15-7-63 on temporary basis and with effect from 16-7-65 on substantive basis. This effect from 1-8-69, the petitioner came to be promoted as Assistant Director and he is continuing on that post.

(3.) A harmonious interpretation has to be given to the Rules. Whereas rule 11 lays down that the surplus employees in certain cases have to be dealt with on the basis of the service they had rendered on the higher post from which they were declared surplus, rule 18 clearly lays down that no surplus employee shall have the right to claim appointment by absorption to a particular post or in a particular Department, Service or cadre and the discretion of the Committee in this behalf shall be final. Further, a surplus employee who is not willing to be appointed to the post to which he has been absorbed may within 30 days of the receipt of the absorption order, ask for termination of his services by the Government. The effect of the relevant Government order given in the Schedule, which I have already referred, is also that the Committee shall have full and final powers to absorb a surplus employee on an equated or any other post in any Department irrespective of the qualifications prescribed for recruitment to such post. The reasonable interpretation to be given to these various provisions which are of course, not happily drafted is that it is for the Absorption Committee to determine on which particular post or Department, Service or cadre a surplus employee has to be appointed and finality is given to such a decision. Rules 18 is couched in negative form, whereas rule 18 lays down in positive terms how the suitability and substantive appointment of surplus employees in certain cases have to be adjudged or made. The idea underlying rule 11 is that where a post is within the purview of the Commission the suitability of the surplus employee for such post has to be adjudged by the Commission in the manner indicated therein. In other words, rule 11 gives the guide lines for the Commission to adjudge the suitability of the surplus employee and in doing so, if the surplus employee had been holding the post from which he was declared surplus for more then 3 years continuously then the Commission would be adjudging the suitability of the surplus employee for the higher post from which he was declared surplus. Nevertheless rule 18 as also the two Government order included in the Schedule clearly provide that the surplus employees shall have no right in the matter of claiming a particular post or post in a particular Department, Service or cadre and the decision of the Absorption Committee has to be final. I am dealing with the matter in exercise of the extraordinary jurisdiction of this Court under Art. 226 of the Constitution & therefore, in order to succeed the petitioner has to show that he has a legal right for consideration for appointment to a particular post or a post in a particular Department, Service or cadre. Rule 18 as well as the two Government orders deal with the rights of a surplus employee and rule 11 lays down the procedure to be followed by the Public Service Commission in certain cases for adjudging suitability. The two provisions have distinct and different spheres of operation. Then clause 3 of Government order dated 12-6-62 clearly casts a duty on the appointing authorities that immediately on receipt of the orders of the Absorption Committee they shall issue appointment orders. Further the appointing authorities should not raise any objection on the score of additional qualifications not prescribed under the Rules as minimum qualifications. Therefore, the intention is clear that as soon as the Absorption Committee issues orders the appointing authority has to make the appointment in the department to which the surplus employee is allotted. As I have already observed, it is not easy to reconcile fully the various provisions of the Absorption Rules including the Circulars which are, more or less, an amalgam of various things. Be that as it may, a surplus employee has no right to be absorbed on a particular post or to any post in a particular department, service or cadre and the decision of the Absorption Committee has to be treated as final. R. 18 is peremptory. If the surplus employee is not willing to accept that particular post on which he is sought to be appointed then the only alternative left with him is to seek his termination from service. A rule couched in negative terms is normally mandatory, whereas a rule couched merely in positive form may or may not be mandatory. Therefore, inspite of the not quite happy language of the Rules I am constrained to hold that the petitioner has no right to be absorbed to a particular post namely, that of Assistant Director in the Statistical Service.