JUDGMENT 1. - This is an appeal under Section 38 of the High Court of Judicature for Rajasthan Ordinance, 1949 against the judgment of the learned Single Judge of this Court, dated the 28th October, 1974, dismissing the writ petition of the petitioner, N.S. Mathur. It would be proper to first mention, in brief, the facts leading to this present litigation. 2. The appellant being a Science Graduate was initially appointed as Research Assistant in the Agriculture Department on which post he worked from 2nd January, 1960 to 11th May, 1961 and on being transferred as Locust Assistant he worked as such from 12th May, 1961 to 19th January, 1962. 3. By an order dated the 2nd January, 1962, the appellant was appointed as Inspector Grade II in the Excise and Taxation Department and in this order his name was at No. 1. This appointment was given after advertising the post and inviting applications from the candidates in open market. The appellant had been selected by a selection committee after interview and on the basis of this selection the appointment order dated 2nd January, 1962 was issued by the Commissioner Excise and Taxation in pursuance of which the petitioner joined on 20th January, 1962 and Sales Tax Inspector and continued to work as such till 9th July, 1962. On 10th July, 1962 he was posted as Excise Inspector Nasirabad. The term of appointment was extended from time to time. The appellant also passed the departmental examination for the post of Excise Inspector grade II which was held in November, 1969. At this time the post of Excise Inspector Grade II was not in the purview of the Rajasthan Public Service Commission. The appellant was confirmed as Excise Inspector Grade II w.e.f. 1st July, 1970 by the order dated the 10th July, 1970. The order by which he was confirmed is the order (Ex. I) It has been pointed out that till this time there were no particular service Rules governing such posts of Inspectors grade II and relevant service Rules were the Rajasthan Subordinate Service (Recruitment and other Service Conditions) Rules, 1960. By an order dated the 15th July, 1970 a tentative seniority list of Excise Inspectors as on 1st July, 1970 was published in which the appellants name was included at serial No. 75. 4. By an order dated the 15th July, 1970 a tentative seniority list of Excise Inspectors as on 1st July, 1970 was published in which the appellants name was included at serial No. 75. 4. A notice dated the 8th September, 1972 was also served on the appellant calling upon to show-cause as to why he should not be de-confirmed. The appellant filed the replies dated 18th September and 28th September, 1972 to the aforesaid show cause notice, stating therein that even if the representative of the administrative department was not there in the Committee under R. 17(2) of the 1960 Rules it could not be a ground for his de-confirmation. Two members constituting the majority were there in the committee and that, merely because the third member was not there it was not such an irregularity so as to warrant de-confirmation and that the appellant was not at fault. 5. Another show-cause notice of de-confirmation was again issued on 11th October, 1972. In reply dated the 9th November, 1972, the appellant stated that his reply is the same as had been given earlier. Ultimately, the order dated the 13th November, 1973 (Ex. 3) withdrawing the confirmation was issued. 6. The Rajasthan Excise Subordinate Service (General Branch) Rules, 1974 were promulgated and these rules came into force when the notification dated the 30th May, 1974 was published in the Gazette on 6th June, 1974. Whereas the appellant had been de-confirmed he was not treated as a member of this service under R. 5 and was subjected to screening under proviso (iii) to Rule 6 The screening committee without giving an opportunity of personal hearing to the appellant did not find him suitable and therefore, terminated the services of the appellant vide order dated 14th October 1974 (Ex. 4). 7. The appellant preferred writ petition praying that the impugned orders (Ex. 3) by which he Was de-confirmed and the order (Ex. 4) by which he Was terminated be quashed and that he may be assigned a proper seniority in the seniority list dated the 21st October, 1972. Tie writ petition was dismissed at admission stage, after hearing the Additional Government Advocate on 28th October, 1974. 8. 3) by which he Was de-confirmed and the order (Ex. 4) by which he Was terminated be quashed and that he may be assigned a proper seniority in the seniority list dated the 21st October, 1972. Tie writ petition was dismissed at admission stage, after hearing the Additional Government Advocate on 28th October, 1974. 8. Against the judgment of the learned Single Judge, the appellant filed this special appeal.Shri M. R. Calla, the learned counsel, appearing on behalf of the appellant, submitted that similar writ petitions had been filed by other Inspectors who had been terminated on identical ground by the orders passed on the same date i. e. the 14th October, 1974. One of such writ petitions being writ petition No, 3105 of 1974. Yashwant Kumar v. State of Rajasthan was allowed by the court on 25th February, 1980 . Against this judgement the State Government went in appeal before the division bench and, the division bench upheld the judgment dated the 25th February, 1980 and dismissed the appeal filed by the State Government on 8th September, 1980 and, thereafter, an order dated the 11th December, 1980 has also been passed by the Commissioner in favour of Yashwant Kumar Somani. 9. Shri Calla submitted that the ground on which the appellant's de-confirmation (Ex. 3) was held to be valid by the learned single Judge in his impugned order dated the 28th October, 1974 was that, since one of the members was not there, there was no selection committee is a ground which is contrary to law and does not hold the field. Shri Calla further pointed out that exactly the same question came up for consideration in Fahimuddin Farooqi v. State of Rajasthan (D. B. Civil Special Appeal No. 237/80, decided on 16th July, 1982) . In Fahimuddin's case (supra) the Division Bench of this Court, while relying the decision of the Supreme Court in Ishwar Chand v. Satya Narain Sinha, AIR 1972 SC 812 and considering the judgment of this Court in Dr. S. M. Gupta v. State of Rajasthan, 1970 R.L.W. 539 held that according to the view of the Supreme Court in Ishwar Chand's case (supra), the decision of this court in S. M. Gupta's case (supra) which takes a contrary view is no longer good law. S. M. Gupta v. State of Rajasthan, 1970 R.L.W. 539 held that according to the view of the Supreme Court in Ishwar Chand's case (supra), the decision of this court in S. M. Gupta's case (supra) which takes a contrary view is no longer good law. The emphasis was given to the following observations of the Division Bench in Fahimuddin's case (supra)- "Before dealing with the aforesaid contention we may refer to the decision of this court, in Dr. S. M. Gupta v. State of Rajasthan (1970 RLW 539) . In that case the selection made by the Special Recruitment Board constituted under the medical Service (Collegiate Branch) Special Selection Rules, 1967 was held to be invalid for the reason that Dr. S. C. Mehta, the then Director of Medical and Health Services, who was one of the members of the said Board, had not attended the meetings of the Selection Board in which the candidates were interviewed by the Board. In the said case, it was held as under:- 'Where a statute constitutes a certain authority for authority for certain specified purposes and confers certain powers on it then such powers are exercisable by that authority only. It is all the five members who will constitute a Board and not the majority of them. There is, therefore, no escape from the conclusion that the persons who interviewed the candidates on 24th and 25th October, 1969, were not the Board within the meaning of the 1967 Rules. The inevitable result of this is that the taking of the interviews by 4 out of the 5 members vitiates the interviews." In Ishwar Chand v. Satya Narain Sinha a Committee consisting of three members had been constituted for submitting a panel of name for asking appointment on the post of Vice-Chancellor of Sagar University. A meeting of the said committee was held on April 4, 1970, but the said meeting was attended by two of the members only but the third member did not attend the said meeting as it was convenient for him to come to Indore for the purpose of attending the said meeting. A meeting of the said committee was held on April 4, 1970, but the said meeting was attended by two of the members only but the third member did not attend the said meeting as it was convenient for him to come to Indore for the purpose of attending the said meeting. The Supreme Court upheld the recommendations made by the Committee at its meeting held on April 4, 1970 and observed- 'It is also not denied that the meeting held by two of the three members on the 4th April, 1970 was legal because sufficient notice was given to all the three members. If for one reason or the other one of them could not attend, that does not make the meeting of other illegal. In such circumstances, where there is no rule or regulation or any other provision for fixing the quorum, the presence of the majority of the members would constitute it a valid meeting and matters considered there at cannot be held to be invalid.' In view of the aforesaid decision of the Supreme Court in Ishwar Chand v. Satya Narain Sinha (supra) it must he held that in cases where there is no rule or regulation or any other provision for fixing the quorum the presence of the majority of the members would constitute it a valid meeting and matters considered thereat cannot be held to be invalid and the learned Single Judge was right in holding that the decision of this court in Dr. S. M. Gupta v. State of Rajasthan (supra) which takes a contrary view, is no longer a good law." 10. Shri Calla also submitted that the decision of the learned Single Judge deserves to be quashed in view of the principle laid down in Fahimuddin's case (supra), as the appellant was de-confirmed only on the ground that the Government nominee was not there and thus there was no validly constituted Selection Committee which was held to be valid by the learned single judge. However, since the Division Bench has specifically overruled the decision of S. M. Gupta's case and, that of Supreme Court in Ishwer Chand's case (supra) has been followed, it cannot be held that the presence of all the members in necessary. However, since the Division Bench has specifically overruled the decision of S. M. Gupta's case and, that of Supreme Court in Ishwer Chand's case (supra) has been followed, it cannot be held that the presence of all the members in necessary. Contrary to it, now it is the law of the land that the presence of the majority of the selection committee is sufficient and the order would be valid. 11. Shri Calla then argued that once the order (Ex. 3) goes there remains hardly an occasion to subject the appellant to screening under 1974 Rules and he becomes a member of service under R.5 of 1974 Rules, How ever, even if the validity of the order dated the 14th October, 1974 is examined, it is contended that this order also cannot be sustained because the Screening Committee did not find the appellant to be suitable and on that basis this order was passed whereas the screening committee did not afford any opportunity to the appellant and no personal hearing was given before holding the appellant to be unsuitable and this point stands decided in favour of the appellant in Yashwant Kumar's case (supra) and upheld in D.B. Special Appeal No. 211/1980 decided on 8th September, 1980 while relying upon the principles laid down by the Supreme Court in Mohammed Rashid Ahmed v State of U. P., AIR 1979 SC 502 12. An emphasis was given to the following portion of the decision of Single Bench in Yashwant Kumar's case (supra)- "Clause (iii) of the first proviso to Rule 6 of the Rules which deals with absorption of persons who were working on the posts included in the Schedule to the Rules on ad hoc/officiating/temporary basis since before January 1, 1972, reads as under:-The persons who were appointed to the posts included in the schedule in adhoc/officiating/temporary basis before 1-1-72 and were working as such in the date these rules come into force shall be screened and recommended by a Committee referred to in Rule 24 for adjudging their suitability on the posts held provided that they possess the academic qualifications prescribed in these rules either for direct recruitment or promotion or the prescribed qualifications on the basis of which the persons were selected for adhoc/officiating/temporary appointment." The relevant provisions of Rule 24 with regard to the Committee referred to in clause (iii) of the first proviso to Rule 6, are as under : 24 (3) A Committee consisting of the Commissioner as Chairman, the Deputy Secretary to the Government in the Finance (Excise) Department, Deputy Secretary to the Government in the Department of Personnel and Deputy Commissioner, Excise Department nominated by the Commissioner who shall also be member Secretary, shall consider the cases of all persons included in the list referred to in sub-rule (1) interviewing such of them as it may deem necessary and shall prepare lists containing names of suitable candidates to be promoted on the basis of seniority-cum-merit and merit respectively upto one and a half times the number of posts to be filled in on the respective basis." 13. The learned single Judge in Yashwant Kumar's case observed, on a perusal of clause (iii) of the first proviso to Rule 6 and rule 24 (3) that the Rules do not prescribe the procedure which has to be followed by the Committee in the matter of adjudging the suitability of persons for appointment to the service. 14. The learned single Judge in Yashwant Kumar's case observed, on a perusal of clause (iii) of the first proviso to Rule 6 and rule 24 (3) that the Rules do not prescribe the procedure which has to be followed by the Committee in the matter of adjudging the suitability of persons for appointment to the service. 14. The question which arose for consideration before the learned Single Judge in Yashwant Kumar's case (supra) was whether the Committee can arrive at its decision with regard to the suitability of a person for appointment to the service on the basis of the record of service alone, as contended by the learned Deputy Government Advocate, or the Committee has further to afford a personal hearing to the person concerned before arriving at a decision with regard to his suitability or otherwise for appointment as contended by the petitioner's counsel. 15. According to the learned Single Judge in Yashwant Kumar's case, a similar question arose before the Supreme Court wherein the Supreme Court was dealing with a case relating to absorption of the employees of the Municipal Councils,in the Centralised service constituted by the Government of Uttar Pradesh. section 112-A of the Uttar Pradesh Nagar Mahapalika Adhini-yam 1959 which provided for centralisation of services contained a provision for absorption of officers and servants serving on the posts included in the centralised service as well as officers and servants performing the duties and functions of those posts if they were found suitable. The State Government had issued certain circulars laying down the procedure to be followed for absorption of officers and servants. Under the said circulars Divisional Committees were constituted for making necessary recommendations to the State Government with regard to suitability of the officer and servants for absorption in the centralised service after giving them an opportunity of personal interview. The Supreme Court, while dealing with the nature of the functions entrusted to the State Government in the matter adjudging the suitability of the officers and servants, for absorption in the centralised service, observed : "The very nature of the functions entrusted to the State Government under Rule 6(2) (iii) of the U. P. Palika (Centralised) Services Rules, 1966 for purposes of final absorption under S. 112-A of the Adhiniyam, implies a duty to act in a quasi-judicial manner. It cannot be denied that an officer or servant provisionally absorbed under S. 577(e) or temporarily appointed under S. 577(ee) had the right to be considered for purposes of final absorption such officers or servants, particularly those in permanent employment who had put in 20 to 25 years of service in the erstwhile Municipal* Boards or development Boards were virtually affected in the matter of final absorption. (para 35) "By S. 112-A of the Act, the Legislature created a machinery for determining the suitability or otherwise of such officers or servants for absorption in the newly created Centralised Services. The entrustment of this work to the State Government under S. 112-A, imposed a corresponding duty or obligation on the Government to hear the officers and servants concerned. In view of this it is rightly urged that the impugned orders, unless they conform to the rules of natural justice, were liable to be struck down as invalid. (Para 36) The Supreme Court further observed as under : "The whole purpose of the personal interview was that when it was proposed to declare such an official unsuitable for absorption the Committee had to afford him an opportunity to appear before it and clear off his position " (Para 46) 16. As per the observation, the Supreme Court found that in the case of Mohd. Rashid Ahmed, no opportunity of a hearing had been afforded to Mohd. Rashid Ahmed by the Minister for Local Self Government before passing the order terminating his services and the Supreme Court held that the order terminating the services of Mohd. Rashid Ahmed suffered from a serious legal infirmity. 17. Shri Calla also placed reliance upon the decision of the Supreme Court in Mohd. Rashid Ahmed's case (supra) and the following observations made by the learned Single Judge in Yashwant Kumar's case (supra) which has been upheld by the Division Bench of this Court, referred to above:- "From the aforesaid decision of the Supreme Court in Mohd. 17. Shri Calla also placed reliance upon the decision of the Supreme Court in Mohd. Rashid Ahmed's case (supra) and the following observations made by the learned Single Judge in Yashwant Kumar's case (supra) which has been upheld by the Division Bench of this Court, referred to above:- "From the aforesaid decision of the Supreme Court in Mohd. Rashid Ahmed v. State of U. P. (supra) it follows that the determination of suitability of Government servant for the purpose of absorption in service implies a duty to act in a judicial manner and for a proper and effective discharge of the said duty, it is necessary that the authority which has been entrusted with the said duty must afford to the employee concerned an opportunity to appear before it so that it may clear up the position with regard to any adverse material existing against him in the service record." 18. The above contentions of Shri Calla, which we have extracted and mentioned from his verbal as well as written arguments were not seriously contested by the learned Addl. Govt. Advocate. In fact, although time was allowed to both the parties to submit the written arguments on 18th January, 1983. Only Shri Calla has submitted written arguments along with the copy of the relevant judgment. The respondents have not cared to controvert these submissions presumably, because after the judgment of Fahimuddin's case (supra), the contentions of Shri Calla have become almost unassailable. 19. We have even then considered the submissions of Shri Calla. Obviously, the learned Single Judge, in the instant case, has distinguished the judgment of the Supreme Court in Ishwar Chand's case (supra) on the ground that the committee was not properly constituted. However, (we find that the two members of the committee were present and the constitutionality of the committee was satisfactory and no formal constitution was necessary every time. It is not in dispute that the two members who attended the committee were duly authorised. The learned Additional Government Advocate has not been able to show, in what manner, the committee was unconstitutional or illegal. Obviously, there was no room or law fixing the quorum of this committee and two members were present. The order of confirmation was passed in the presence of the Government nominee who was too equal as the third member, the constitution of the committee was legal. Obviously, there was no room or law fixing the quorum of this committee and two members were present. The order of confirmation was passed in the presence of the Government nominee who was too equal as the third member, the constitution of the committee was legal. This assumption for the purpose of de-confirmation is obviously against the judgment of his court in Fahimuddin's case (supra) which has over ruled the decision of Dr. S. N. Gupta's case (supra). 20. In Yashwant Kumar's decision (supra), this court had occasion to consider, in details, a similar question and the order of reversion was set aside, as discussed above. Special appeal in Yashwant Kumar's case (supra) was dismissed by the Division Bench. 21. The decision in Yashwant Kumar's case (supra) provides on additional reason for setting aside the judgment of the learned Single Judge, in the instant case, although on account of Fahimuddin's case (supra) the de-confirmation was illegal. 22. We would not like to repeat the entire submissions of Shri Calla, extracted above, because we are of the opinion that the foundation of the de-confirmation was illegal and void ab initio being against the decision of this court in Fahimuddin's case (supra). Accordingly, the de-confirmation order and consequential order of termination dated 14-10-74 (ex.4) deserves to be set aside. 23. The result of the above discussion is, that the impugned order of de-confirmation along with the impugned order of the Single Judge is set aside and the writ petition is accepted allowing the special appeal. However, as far as the question of the salary and other emoluments for the period after de-confirmation is concerned, we would leave it to the respondents authorities to consider it according to the Rajasthan Service Rules and take a decision in accordance with them. We allowing the special appeal without any order as to costs, as indicated above, and it is directed that the petitioner may be allowed to continue as Excise Inspector Grade II.Appeal allowed. *******