JUDGMENT 1. - Petitioner Dinesh Singh Bhati & six others were appointed as L.D.Cs. in the years 1983, 1984 and 1985 in the Department of Small Savings and State Lotteries. They were paid wages on daily rate basis. The Department of Small Savings and State Lotteries came to be bifurcated in two different departments vide order dated 18 7 87. From that date two departments viz; the Department of State Lotteries and the Department of State Insurance and General Provident Fund came into existence. All the petitioners were retained in the State Lotteries Department after bifurcation the petitioners were not being paid salary in the regular pay scale and they were not being given benefits admissible to other Govt. servants, petitioners filed a writ petition No. 437 of 1986 in the name of their association viz; Rajasthan State Lotteries Work Charged Employees Union. They prayed that they should be allowed salary in the regular pay scale as admissible to other L.D Cs. After hearing the parties, an order was passed on 16.12.86 by a Single Bench and the writ petition was allowed. In his order, the learned Single Judge had noticed that in all, 3o posts of L.D.Cs. were available in the Department of State Lotteries and Small Savings, out of which ten were permanent and twenty were temporary. Sixteen posts were already filled and 14 posts were lying vacant. The learned Single Judge took the notice of the argument of learned Dy. G. A. that regular appointments on the posts of L D.Cs. can be made only in accordance with the Rajasthan Subordinate Offices Ministerial Staff Rules, 1957 and the selection is required to be made by the Rajasthan Public Service Commission. After taking note of the above submission, the learned Single Judge held that members of the petitioner Union will be entitled to be considered for regular selection by the R.P.S.C. Until regular selection are made, the members of the petitioner Union who are employed on the posts of L.D Cs. shall not be terminated. The learned Singe Judge observed that the Government will sanction adequate number of posts of L D.Cs. so that the members or the petitioner Union who may have been working continuously for more than six months. may be absorbed on regular basis. A Special Appeal was preferred by the State Govt. against the order of learned Single Judge. The learned Singe Judge observed that the Government will sanction adequate number of posts of L D.Cs. so that the members or the petitioner Union who may have been working continuously for more than six months. may be absorbed on regular basis. A Special Appeal was preferred by the State Govt. against the order of learned Single Judge. D. B Special Appeal No. 123(1987 was dismissed on 13.7.87. Special Leave Petition was also dismissed by the Supreme Court on 14.1.1988. 2. The petitioners have stated that when the order of learned Single Judge was not implemented despite dismissal of the Special Appeal by the D. B. and of the Special Leave Petition by the Supreme Court. a Contempt Petition was tiled. On 11.8.88. the statement was made in the contempt petition that substantial compliance of the order of the Court has been made. 3. The petitioners have stated that on 24.3.88, sanction of the Governor was conveyed for creation of 23 temporary posts of L.D.Cs. between 1.3.1988 to 29.2.1989. By another order of the Govt. issued on 24.3.88, it was ordered that the petitioners and other be paid salary of L D.C./Class 1V employee with effect from the date of adhoc appointment as given-out in the said order. It was also directed that the arrear bills be prepared and payment be made as early as possible. On 24.3.8 , a letter was also written by the Dy. Secretary, Finance (Revenue & Accounts-1) Department to the Director, State Lotteries Department with the request for making a recruitment against 2 t posts of L.D.Cs. sanctioned by order dated 24.3.88. The Director, State Lotteries Department wrote a letter dated 25.4.88 to the Dy. Director (Finance) with the request that the Department of Personnel be directed to take action for filling up of 23 posts through the agency of R P S C. in accordance with the provisions of Raj. Subordinate Offices Ministerial Staff Rules, 1957. The names of the petitioners were included in the letter dated 25 4.1988 sent by the Director, State Lotteries Department to the Dy. Secretary (Finance) Deptt. However, within a period of two months, the Govt. took a decision to abolish seven posts of L D Cs. Subordinate Offices Ministerial Staff Rules, 1957. The names of the petitioners were included in the letter dated 25 4.1988 sent by the Director, State Lotteries Department to the Dy. Secretary (Finance) Deptt. However, within a period of two months, the Govt. took a decision to abolish seven posts of L D Cs. and five posts of Class IV employees and the Section Officer of the Finance Department sent a communication dated 29 6.88 to the Director, State Lotteries Department asking the latter to abolish the posts and to declare the employees holding those posts as surplus and to send them to the General Administration Department for their duty The Director. State Lotteries Department thereafter passed an order dated 8/7/8 and declared seven petitioners and five class IV employees as surplus and asked them to report for duty before the General Administration Department. However, the petitioners were not relieved and a letter dated 3rd Aug. 1988 was sent by the Sestina 0M.:ex of the Finance Department to the Director, State Lotteries conveying sanction of the Governor to the extension of 23 posts of L.D.Cs. and some other posts upto 28-2-1989, against which daily wage employee were employed. Despite the afore,said communication, the petitioners were relieved on 15-8-88. The petitioner reported for duty to the General Administration Department but they were not allowed to join their duty and instead, they were sent back to the department vide letter dated 21-10.88 of The Section Officer of the General Administration Department. This order included the names of only four of the petitioners. Immediately thereafter, Govt. of the Finance Department wrote a letter dated 24-11-88 asking the Director State Lotteries Department to transfer the seven surplus L.D.Cs. to the State Insurance Department against the vacant pasts on the same terms and conditions on which they were working in the Stare Lotteries Department The petitioners were relieved from the Director State Lotteries Department on 30-11-88 and on 1-12-1988, the Addl. Director (Admn.) State Insurance and Provident Fund Department passed an order posting the petitioners at Chittorgarh, Barmer, Jaisalmer. Jalore, Sirohi, Dholpur and Banswara. 4. Director (Admn.) State Insurance and Provident Fund Department passed an order posting the petitioners at Chittorgarh, Barmer, Jaisalmer. Jalore, Sirohi, Dholpur and Banswara. 4. The petitioners have stated that so called abolition of posts which finds mention in the letter dated 6 9-88, the orders dated 8-7-88, 21-10-88, 24-11-88, 30-11-1988 and 1-12-198 , has been made with the sol object to frustrate the rights of the petitioner which they have acquired under the order dated 16-12-86 passed by the Court in Writ Petition No 437/86. Precisely for this reason despite the sanction of the posts upto 28-2-89 by the Governor, in the light of the decision of the High Court, the respondents devised unfair means to circumvent the order of the Court and in the garb of the abolition of the posts, an order for transfer of the petitioners has been is used from State Lotteries Department to State Insurance and Provident Fund Department. 5. The petitioners have claimed that no effort at all was made for absorption of the petitioners in the State Lotteries Department. Despite the Gal.t. circular dated 20/8, they have been transfer in the State Insurance and Provident Fund Department without any effort having been made for their absorption and the transfer has been affected without consent of the petitioners. The sole object is to post the petitioners at far fling places so that they may not be able to prosecute their claim for regularisation in service. They have indirectly been punished for having approached the Court in writ petition which was decided on 16-12-1986. 5. The petitioners have prayed that the orders dated 29.6-88 16-8.88, 24-11-88, 30-11-88 and 1-12-88 may be declared illegal and quashed and the petitioners be ordered to be continued as L. D. Cs. in regular pay scale admissible to them in the State Lotteries Department. A further prayer has been made to direct the respondents to send the requisition to Rajasthan Pubic Service Commission for regular selection on the post of L D. Cs. 6. In reply to the writ petition, the respondents have stated that although the State Lotteries Department and State Insurance and Provident Fund Department are separate but both these departments are administered by the Finance Department and, therefore, persons from State Lotteries Department have been transferred, to the State Insurance and Provident Fund Department. This has been done in order to safeguard the interest of the employees. This has been done in order to safeguard the interest of the employees. The respondents have state that at the time of the decision of the learned Single Judge, 14 pasts of L. D. Cs. were calculated as vacant but these posts were not lying vacant in the head office at Jaipur. The same were lying vacant in different district offices. If the employees were to be retained in the Small Saving and State Lotteries Determent, they were to past them at different offices. After bifurcation of the two departments, State Govt created additional pods of temporary L D Cs. After scrutiny, a decision was taken to abolish seven pasts of L. D. Cs. and five psis of class IV employees. To avoid further complications, the Administration Department viz ; the Finance Department transferred seven L D. Cs to State Insurance and Provident Fund Department. In para 9 of the reply. it has been stated that before the date of hearing of the Contempt Petition i. e 11-8-88, the State Govt. examined the cadre of strength of employees and decided to reduce seven posts of L D. Cs. and five posts of class IV servant vide its order dated 29- -87 (Apparently date is 29-6-8 because reference has been made to Annex.5). The matter regarding creation of posts upto 28-2-1989 and the abolition of the posts were dealt-with in different files and. therefore, the matters could not be interlinked. In para 13 of the reply, it has been stated that after passing of the order dated 29-6-88, the provisions o Rajasthan Civil Services (Absorption of Surplus Personal) Rules, 1969 have been complied with and surplus employees were relieved and directed to report themselves to General Administration Department. The matter relating to class IV servants who have been declared surplus is still pending can consideration with the Finance Department. It has been admitted that the General Administration Department returned the seven candidates to the State Lotteries Department because their cases are not governed by the provisions of aforesaid 1969 Rules. In this view of the matter, the decision was taken to transfer seven junior most employees to the State Insurance and Provider Fund Department. The respondents have stated that this.has not teen done in order to violate or circumvent the order dated 16-12-1986 passed by the Court but if they would not have transferred the petitioners. In this view of the matter, the decision was taken to transfer seven junior most employees to the State Insurance and Provider Fund Department. The respondents have stated that this.has not teen done in order to violate or circumvent the order dated 16-12-1986 passed by the Court but if they would not have transferred the petitioners. their service were liable to be terminated. It was within the competence of the Department to transfer the employees from one department to another in administrative exigence. The transfer orders have not affected the petitioners pre-judicially. The respondents have disputed the claim of the petitioner that posts of L.D.Cs. are lying vacant in the State Lotteries Department. 7. A rejoinder has been filed by the petitioners In the rejoinder. the petitioners have again reiterated that the State Insurance and Provident Fund Department is a separate department than the state Lotteries Department and there is no provision for transfer of employees from one department to another except with their consent. The petitioners have already been ordered to be fix-d in the regular pay scale as per the earlier decision in Writ Petition No. 437/86. The treatment which has been meted out to the petitioners by treating them to be daily wages employees is wholly unjustified and illegal. The petitioners have placed on record t NO orders dated 2,4-88 and 26-12-88 showing the sanction of earned leave by L.D.Cs who were paid salary on daily wages basis. The petitioners have then asserted that the posts of L.D.Cs. were sanctioned for State Lotteries Department with the prior approval of the Governor and when such an approval was there, the 'posts could not have been abolished. The petitioners have asses to that they are wrongly being treated as daily wages employees. The petitioners have questioned the jurisdiction of the Finance Department to direct the transfer of the petitioners from State Lotteries Department to State Insurance Provident Fund Department. 8. A reply to the rejoinder has also been filed but the contents of the same are not more or less anything than the repetition of the averments made in reply to the writ petition. 9. A further affidavit has been filed by the petitioners on 16.8.90. In this affidavit, it has been stated that Finance Department had issued an order dated 27.11-88 for posting of the seven surplus L.D.Cs. outside Jaipur. 9. A further affidavit has been filed by the petitioners on 16.8.90. In this affidavit, it has been stated that Finance Department had issued an order dated 27.11-88 for posting of the seven surplus L.D.Cs. outside Jaipur. This was stated by the Director, State Insurance and Provident Fund Department when the petitioners were posted. While the petitioners have been sent outside Jaipur, the Governor's sanction has been issued for employment of 20 retired Assistant Accounts Officers/ Accountants and Accounts Clerks/Ministerial employees on temporary basis upto 28-2-89. The petitioners have stated that about forty persons are working in the department on daily wage basis. 10. The first question which arises for determination is a3 to whether there was justification for treating the posts as abolished. A perusal of the documents which have been placed on record clearly show that sanction of the Governor was conveyed for creation of 23 posts of L.D.Cs vide order dated 24-3-88 The Govt. issued an order of the same date giving salary in regular pay scale to the employees whose names have been mentioned in that order. Steps were initiated for making regular recruitment on these posts Thereafter suddenly decision was taken to abolish the seven posts and to declare the petitioners as surplus. Director State Lotteries, who was instructed to reduce seven L.D.Cs. and five Class IV employees from the cadre strength of the Department, and he accordingly issued the order for declaring the petitioners as surplus and directed the petitioners to report to the General Administration Department No order has been placed on record by the respondents to show that seven posts of L.D.Cs. were abolished with the sanction of the Governor. The explanation furnished the respondents that matters regarding sanction of the posts and abolition of the posts had been dealt within different files and the same could not have inter-linked, is wholly unbelievable. It is not possible to believe this statement of the petitioners in the absence of any material of having been placed on record. At any rate for abolition of posts, order could have been passed only in accordance with the Rules of business. In the absence of an appropriate order having been passed in accordance with the rules, it is not possible to accept the plea of the respondents that seven posts have been abolished. 11. At any rate for abolition of posts, order could have been passed only in accordance with the Rules of business. In the absence of an appropriate order having been passed in accordance with the rules, it is not possible to accept the plea of the respondents that seven posts have been abolished. 11. The second question which arises for consideration is as to whether the petitioners could have been transferred even if abolition of the posts is treated to have taken place. In order to determine this controversy it would be proper to refer to the Government order No. F. 1(14) CA/111/78 dated 20th May, 1918. Paragraphs 1 to 5 of this circular reads as under : "In pursuance of Rule 3(1) of the Rajasthan Civil Services (Absorption of surplus Personnel) Rules, 1959, the question of revision of the crucial date was under consideration,Government have not decided in continuation of that easier instructions on the subject that Temporary employees appointed on or before January I, of the calendar year, immediately preceding the year in which decision is taken to retrench the Government employee, will be eligible for being declared surplus. 2. Temporary Employees appointed after such crucial date are not to be kept in employment except for those : 1. recruited through R. P. S. C. If posts are within the purview of R. P. S. C. 2. recruited through competitive examination held by the R. P. S. C. e. g. L. D. Cs. of 197 = 1 P. S. C. test etc. 3. employees belonging to S. C /Schedule Tribes. 4. employees who are ex-service man. 5. Physically handicapped employees. 6. Employees appointed. under the provisions of the Rajasthan Recruitment of Dependents of Government servants Dying while in Service Rules, 1975. 3. The employees of the following categories are not to be continued in employment or retained on higher posts respectively even if they have been in continuous service from Jan. 1 of the calendar year immediately preceding the year in which decision was taken to declare the surplus employee or earlier : 1. Unqualified persons appointed/Promoted on adhoc basis i. e. whose appointment/Promotion were not regular in accordance with the provisions of the relevant rules e. g. LDCs who either failed in RPSC. examination or did not qualify this examination. 2. qualified persons promoted on adhoc basis on abolition of posts, who can be reverted to lower posts. Unqualified persons appointed/Promoted on adhoc basis i. e. whose appointment/Promotion were not regular in accordance with the provisions of the relevant rules e. g. LDCs who either failed in RPSC. examination or did not qualify this examination. 2. qualified persons promoted on adhoc basis on abolition of posts, who can be reverted to lower posts. 4. Whenever an order abolishing the posts in any deptt. is issued or a decision to discontinue that posts is taken on or on cessation of posts a copy may be sent immediately to Member Secreter Absorption Committee by the Admn Deptt./Head of Department. 5 On the basis of the order abolishing the post all the Heads of Departments will explore the possibility of departmental absorption first. In doing so, the Heads of Departments should try to adjust surplus employees in similar posts in the Department for which they are qualified and in other similar posts in the Deptt , who may be junior in service. Such departmental absorption should however be got confirmed by the absorbing authority to ensure that junior or unqualified employees are not unduly retained in the Department.'' 12. A bare look at the aforesaid circular clearly show that persons who are appointed before Jan. 1 of the calendar year immediately preceding the order in which decision is taken to retrench the Government employees are entitled to be declared as surplus. The petitioners were appointed in the service in the years 1983, 1984 and 1985. Action for declaring them surplus has been taken in 1988. Obviously their cases are covered by the order dated 2't-5.78 The General Administration Department has taken a decision to send the petitioners back to the parent departments under a mistaken impression that the petitioners were daily wage earners. In fact under the orders of the government, they became entitled to payment of salary in the regular pay scale and the Government had in fact passed an order granting them salary in the regular pay scale. The petitioners cannot be treated as daily wage earners in view of the subsequent orders passed by the government. Clearly the premise on which the general administration department refused to treat the petitioners as surplus is wrong. The case of petitioners comes within the ambit of circular dated 20-5-78. Therefore, they should have been absorbed in accordance with the provisions of the Rajasthan Civil Services (Absorption of Surplus Personnel) Rules, 1969. Clearly the premise on which the general administration department refused to treat the petitioners as surplus is wrong. The case of petitioners comes within the ambit of circular dated 20-5-78. Therefore, they should have been absorbed in accordance with the provisions of the Rajasthan Civil Services (Absorption of Surplus Personnel) Rules, 1969. 13. The action of the respondents not seeking to transfer the petitioners from State Lotteries Department to the State Insurance and Provident Fund Department cannot, therefore, be justified on any ground. 14. The Writ Petition is, therefore, allowed. Orders dated 29.6.88, 16.8.88, 24-11-88, 30-11-88 and 1-12-88 are declared illegal and are hereby quashed. The respondents will however be free to pass appropriate orders in accordance with law. Parties are left to bear their own costs.Writ Petition Allowed. *******