JUDGMENT 1. (Oral) - The petitioner, who last served in the office of Director of Economics and Statistics, Rajasthan, Jaipur as a Computer and retired from the office of the said respondent on attaining the age of superannuation in the year 1993 has filed this writ petition challenging the appointment of respondent Nos. 3 to 5 on the post of Computer and their subsequent promotions on the higher posts as illegal, ultra-vires and contrary to the Rajasthan Sub-ordinate Services (Recruitment & other service Conditions) Rules 1960, the Rajasthan Sub-ordinate Statistical Service rules, 1971 and of the Rajasthan Civil Services (Absorption of Surplus Personnel) Rules, 1969 (here-in-after referred to as the Rules of 1960, 1969 & 1.971 respectively). 2. The case of the petitioner in short is that he was appointed as a Computer in the scale of Rs. 80-200 + usual allowances as admissible to the employees of the State Government from time to time vide (Annexure-3) dated 12.1.1959. His appointment was made purely on temporary basis for a period of six months or till a regularly selected candidate in pursuance of the recommendations of the Rajasthan Public Service Commission (for short "RPSC") was made available, whichever being earlier. The appointment of other respondents (respondent nos. 3 to 5) on the post of Statistical Assistant was made in the office of respondent No. 2 later in point of time than the petitioner. The same mode of appointment was adopted with regard to the appointment of respondents 3 to 5 as the petitioner. The only point of distinction between the appointment of the petitioner and that of the private respondent Nos. 3 to 5 is that while in the case of petitioner, the concurrence of R.P.S.C. was not obtained by respondent No. 2, whereas in the case of respondent Nos. 3 to 5, the concurrence of the R.P.S.C. was obtained though subsequent to their appointment after their having passed the screening test and on the basis of which they were recommended by the R.P.S.C. The appointment of the petitioner was, however, kept provisional which was neither ad-hoc nor a temporary appointment, whereas in the case of respondent Nos. 3 to 5 soon after the recommendation of the R.P.S.C. had been obtained and it's concurrence in the matter of their respective appointments w.e.f. 6.4.1974, they were placed in the category of regularly selected candidates. 3 to 5 soon after the recommendation of the R.P.S.C. had been obtained and it's concurrence in the matter of their respective appointments w.e.f. 6.4.1974, they were placed in the category of regularly selected candidates. This fact is also borne-out from the perusal of (Annexures 7 & 8) dated 30.1.1.1987 & 26.7.1984 respectively, which are appointment orders, issued by respondent No. 2 in favour of respondents Nos. 3 & 4 on the recommendations of the R.P.S.C., Ajmer. 3. From the perusal of the said documents, it is clearly apparent that the appointment of the said candidates was made on regular basis. With regard to the appointment of the petitioner, it tannot be inferred that his appointment was on regular basis since the concurrence of the R.P.S.C. was obtained by respondent No. 2 through the Chief Secretary of the State for making temporary appointments on the post of Computer vide the letter dated 9.8.1958 in accordance with the procedure laid down for such appointments till the regularly selected candidates were made available for such appointments. 4. Since the appointment of the petitioner was not regularised by the Competent Authority and he continued as a temporary appointee, he raised his grievances by way of a writ petition before this Court vide S.B. Civil Writ Petition No. 1468/73, wherein he sought the relief of regularisation of his services at par with regularly selected candidates i.e. respondent Nos. 3 to 5 in accordance with Rule 11(5) of the Rajasthan Civil Services Absorption of Surplus Personnel Service Rules, 1969 (for short 'the Rules, 1969'). One of the reasons, which impelled the petitioner to file the aforesaid writ petition before this Court was that he was declared surplus employee on the expiry of the fixed tenure of his appointment consequent to the abolition of the said post by the erstwhile Economic & Survey Department of the State, he would have automatically discontinued to held office on the said post unless protected by this court. 5. At this stage, it shall be appropriate to refer the object of framing the Rules of 1969 by the State. 5. At this stage, it shall be appropriate to refer the object of framing the Rules of 1969 by the State. These Rules were enacted by the State legislature in accordance with Article 309 of the Constitution of India with a view to regulate the recruitment by absorption of the surplus personnel of the respective departments to the several services and posts in connection with the affairs of the state and with a view to regulate their conditions of service. For the sake of convenience and ready reference, resort may be had to Rule-3(1) of the Rules, 1.969, which defines surplus personnel or surplus employees as under : "Surplus Personnel or Surplus Employee means the Government servant to whom the Rajasthan Service Rules, 1951 apply and who are declared surplus by the Government or by the Appointing Authority, under directions of the Government, on their being rendered surplus to the requirements of a particular department of the Government due to the reduction of posts or abolition of the offices therein as measures of economy or on administrative grounds. but in whose cases the Government decides not to terminate their services but to retain them in service by absorption on other posts." 6. The petitioner also challenged the impugned order issued by respondent No. 2 by which he was not permanently absorbed in the services of the said respondent on the ground that Rule 11(5) of the Rules, 1969 was not attracted to the case of the petitioner and what in fact was attracted and applicable was Rule 11(2)(b) of the Rules, 1969. The petitioner also challenged the impugned order issued by respondent No. 2 by which he was not permanently absorbed in the services of the said respondent on the ground that Rule 11(5) of the Rules, 1969 was not attracted to the case of the petitioner and what in fact was attracted and applicable was Rule 11(2)(b) of the Rules, 1969. At this stage, it shall be appropriate to re-produce Rule 11(2)(b) & Rule, 11(5) of the rules, 1969, which provide as under : Rule 11(2)(b)-"the suitability of surplus employees, whose appointment was not in a regular manner shall be adjudged by the Screening Committee for a post which is equivalent to the post on which they were initially appointed though they may be working on the date of their being declared surplus on other equated or equivalent posts or on a higher post in an officiating, ad-hoc or temporary capacity irrespective of their length of service." Rule 11(5)-"It will not be necessary to adjudge the suitability of those permanent or temporarily absorbed surplus employees who were initially appointed on previous posts either on the recommendation of the Commission or in a regular manner by the appointing authority and who are subsequently appointed to new posts." From the bare reading of the language deployed in formulating the aforesaid Rules, it is clearly apparent that while in case of surplus employees, who are governed by Rule 11(2)(b) of the Rules, 1969 who have been declared surplus during the period w.e.f. 1.1.1954 to the date of publication of the Rules i.e. 27.11.1969, the post on which the said employees were absorbed, if they fall within the purview of the Commission as on the date of publication of the said Rules, the suitability of such surplus employees was to be adjudged by the Screening Committee for the post on which they were initially appointed though they may be working on the date of their being declared surplus on other equated or equivalent post or on a higher post in an officiating, ad-hoc or temporary capacity irrespective of their length of service, in accordance with Sub-Rules (a) & (b) of Rule 11, whose appointment though initially was not on the recommendations of the Commission but subsequently the recommendation of the Commission had been obtained, while in the case of surplus employees absorbed under Sub-rule (1) or Sub-rule (3) of Rule 7, with regard to the posts against which they were absorbed falling outside the purview of the Commission, the suitability of such surplus employees was subject to being adjudged by the Screening Committee comprising of the Appointing Authority and the Member/Secretary of the Committee or his nominee not below the rank of the Assistant Secretary as referred to in-the said Rule. This procedure was not to be adopted in the case of those employees, who were already appointed either on temporary or permanent basis either on the recommendations of the Commission or in a regular manner by the Appointing Authority and who were subsequently appointed to the new posts. 7. The case of the petitioner before the learned Single Judge of this Court in S.B. Civil Writ Petition NO. 1468/73 was that his candidature for the post of Computer should have been considered in accordance with Rule 11(5) and not in accordance with Rule 11(2)(b) of the Rules 1969. 8. At this stage it shall be appropriate to refer to the background of the controversy giving rise to the filing of the aforesaid writ petition which was to the effect that the Government of Rajasthan decided to conduct a rapid economic and industrial survey of the State with a view to formulate it's proposals for the third five year plan for the State of Rajasthan. 9. The Chief Secretary to the State vide his letter dated 2.8.1958, requested the R.P.S.C. (here-in-after referred to as 'the Commission') for it's permission and concurrence for making initial appointments in the services of the Department for which deployment of requisite staff on urgent temporary basis had become necessary in the Directorate of Economic & Industrial Survey. Accordingly the Commission vide his letter dated 9.9.1958 accorded it's concurrence and approval for the appointment of temporary staff in the said department. All the applicants including the petitioner were accordingly interviewed by a selection board duly constituted by the Commission and after the completion of complete process which was necessary for the purposes of screening and selection of the respective candidates after assessing their respective merits and suitability, the petitioner was appointed as a Computer on purely temporary basis for a period of six months or till a regularly selected candidate, duly recommended by the Commission was appointed, whichever was earlier. The petitioner held the post of Computer in the aforesaid Directorate till he was promoted to the post of Investigator Grade-11 vide Directorate's order dated 13.8.1959. Thereafter the petitioner was declared surplus from the Directorate and by the order dated 31.8.1962 of the Absorption Committee, he was directed to be absorbed as a Computer in the aforesaid Directorate. The subsequent absorption of the petitioner was again on temporary basis. Thereafter the petitioner was declared surplus from the Directorate and by the order dated 31.8.1962 of the Absorption Committee, he was directed to be absorbed as a Computer in the aforesaid Directorate. The subsequent absorption of the petitioner was again on temporary basis. Respondents 3 to 8 in the said earlier writ petition, who have also been arrayed as party respondent Nos. 3 to 5 respectively in the present writ petition were considered for absorption by the Screening Committee in accordance with Rule 11(2)(b) of the Rules 1969, and who on being found fit and suitable to be appointed in accordance with Rules, were deemed to be regularly appointed candidates in accordance with Sub-Rule (6) of Rule 11 of the Rules by the order of the Directorate dated 15.11.1971, while the petitioner could not be so appointed on regular basis. Respondent Nos. 3 to 5 in the present writ petition were thereafter confirmed on the post of Computers' vide order dated 19.1.1972 w.e.f. 1.3.1969 under Rule 16(3) of the Rules. However, the petitioner could not be confirmed since he was not deemed to be a regularly appointed candidate in the accordance with Rules. Later on Rajasthan Civil Services (substantive appointment & determination of seniority of temporary employees) Rules, 1972, (here-in-after referred to as 'the Rules of 1972') came into force and the petitioner was subsequently confirmed on the post of Computer w.e.f. 14.9.1972 in accordance with the Rules of 1972. However, the petitioner could not be assigned higher seniority than respondent Nos. 3 to 5 since he had been confirmed subsequent to the aforesaid respondents and his seniority in the cadre of Computers was to be determined w.c.f. the date of his substantive appointment on the said post in accordance with the Rules of 1969 and hence he could not claim equation in the matter of seniority with respondent Nos. 3 to 5 who were regularly appointed candidates in accordance with the Rules of 1972. 10. Being aggrieved, the petitioner challenged his placement in the order of seniority qua respondent Nos. 3 to 5 since he was placed below the aforesaid respondents in the seniority list. 3 to 5 who were regularly appointed candidates in accordance with the Rules of 1972. 10. Being aggrieved, the petitioner challenged his placement in the order of seniority qua respondent Nos. 3 to 5 since he was placed below the aforesaid respondents in the seniority list. The learned Single Judge of this Court after due examination of the case in accordance with reference to the relevant rules of 1969 as well as the Rules of 1.972 with specific reference to the question as to whether the appointment of the petitioner on the post of Computer in the Directorate of Economic & Industrial Survey was made in a regular manner by the appointing authority or not, vide his order dated 21.11.1975 allowed the writ petition with the observation that the order of confirmation of the petitioner w.e.f. 14.9.1972 under the Rules of 1972 was set-aside and the respondents were directed to determine the seniority of the petitioner under Rule 15 of the Rules of 1969 with a further direction to consider the question of his confirmation under Rule 16(3) of the Rule of 1969. The learned Single Judge of this Court had further opined that in case respondent Nos. 3 to 5 or anyone of them falls within, the same category, then their cases should also be considered in the aforesaid manner alongwith that of the petitioner and the relief of consequential benefits, which may be admissible to the petitioner in accordance with Rules may also be provided. 11. Being-aggrieved by the impugned order of the learned Single Judge, State of Rajasthan preferred an appeal before the learned Division Bench of this Court vide D.B. Special (Writ) AR' peal No. 53/76, which came to be finally disposed of by this said Court vide it's Judgment dated 4.4.1981. 12. 11. Being-aggrieved by the impugned order of the learned Single Judge, State of Rajasthan preferred an appeal before the learned Division Bench of this Court vide D.B. Special (Writ) AR' peal No. 53/76, which came to be finally disposed of by this said Court vide it's Judgment dated 4.4.1981. 12. The learned Division Bench after due examination of the matter with specific reference to the Rules of 1969 as well as the Rules, 1972 opined that since the Screening Committee in it's report had found the petitioner un-suitable and unfit to be appointed as a Computer in a regular manner in accordance with Sub-rule (7) of Rule 11 of the Absorption Rules which relate to absorption of the surplus employees in a new cadre subject to their suitability being adjudged after due screening, observed that since the case of the petitioner did not fall within the ambit of Rule 11(5) of the Rules, 1969, he could not be considered for appointment as a regularly selected candidate whose case had been determined for appointment on the basis of Rule 11(2)(b) of the Rules, 1969 and consequently was of the view that the petitioner could not get the benefit of regular appointment in accordance with Rule 11(5) of the Rules. Learned Division bench further observed that the case of the petitioner stood in an entirely different category from the category of the respondents Nos. 3 to 5 with a further observation that the petitioner cannot claim to have been 'regularly appointed' to the post of Computer or Investigator Grade-II till 23.8.1962, when he was declared surplus by the erstwhile department. The learned Division Bench in para- 14 of it's aforesaid order further observed that what clearly emerges from the above discussion is that since the petitioner was neither appointed on the recommendations of the Commission nor with it's concurrence and since it was apparent from the order of his appointment that his appointment was on purely temporary basis for a period of six months or till a regularly selected candidate recommended by the Commission was appointed, whichever being earlier, it was not open to the petitioner to claim the benefit of Rule 11(5) of the Rules, 1969. 13. 13. While allowing the aforesaid special appeal preferred by the State Government, this court set-aside the impugned order of the learned Single Judge and instead dismissed the writ petition preferred by the petitioner with the observation that the case of the petitioner is governed by Rule 11(2)(b) and not by Rule 11(5) of the Rules, 1969 as opined by the learned Single Judge. Being aggrieved, the petitioner preferred a Special Leave Petition before the Apex Court vide S.L.P. No. 7043/81, which was dismissed summarily by the Apex Court vide it's orders dated 13.9.1983. 14. The petitioner yet not satisfied with the aforesaid judgment of the learned Division Bench as well as the judgment of the Apex Court as aforesaid, preferred another writ petition before this Court vide S.B. Civil Writ Petition No. 2464/89, which is now being finally disposed off by this Court by this order after detailed hearing. 15. I have examined the contentions, which have been advanced by the learned counsel for the parties at the bar and the contentions of the petitioner in this writ petition are peri-materia the same as have been raised in the earlier writ petition. 16. During the course of hearing, Shri Mahendra Shah, learned counsel for the petitioner has vehemently stated at the bar that he has urged new grounds, which have not been taken in the earlier writ petition nor.he had the occasion io raise these points before the learned Division Bench of this court as well as the Apex Court. 17. Learned counsel for the petitioner has assailed the impugned order (Annexure-8) dated 26.7.1984 of the Department of Economic Survey, order dated 26.7.1984 (Annexure-9), order dated 20.9.1984 (Annexure-10), order dated 6.8.1984 (Annexure-11) & 21.8.1985 as well as the subsequent promotional orders, by which respondent Nos. 3 to 5 were given the benefit of promotions and seniority on the respective posts and which has been rightly denied to the petitioner in view of the aforesaid observations of this court as well as the apex court. 18. Learned counsel for the petitioner has further stated at the bar that the concurrence of R.P.S.C. was considered necessary in respect of respondent Nos. 4 and 5 since the same was earlier granted for a limited period and consequently fresh concurrence had become necessary in absence of which their appointment could not be treated as on regular basis. 18. Learned counsel for the petitioner has further stated at the bar that the concurrence of R.P.S.C. was considered necessary in respect of respondent Nos. 4 and 5 since the same was earlier granted for a limited period and consequently fresh concurrence had become necessary in absence of which their appointment could not be treated as on regular basis. Learned counsel for the petitioner has further contended that since the Commission had given only temporary appointments to respondent Nos. 3 to 5, therefore, the petitioner has been discriminated qua respondents Nos. 3 to 5 vide impugned order (Annexure-8). 19. During the course of hearing, it has been brought to the notice of this Court that the petitioner has already retired from services of respondent No. 2 on attaining the age of superannuation in the year 1993 and the exercise has become academic. 20. Learned counsel for the petitioner has placed reliance upon the order dated 3.10.1991 passed by this Court in the matter of Mrs. Ila Viswas v. State of Rajasthan & Ors. in D.B.C.WP. No. 984/78 by which the said candidate though junior to the petitioner in order of seniority was yet given the benefit of regular appointment by the Commission on a higher post. In my view the ratio of the said decision is not attracted to this case. 21. The respondents on being noticed by this Court have filed their reply wherein they have specifically controverted the aforesaid contentions advanced by the learned counsel for the petitioner on the grounds inter-alia that the case of the petitioner was in fact duly considered by the Competent Authority and being a surplus employee, absorbed as against the new post under the Absorption Rules, he was directed to appear before the Screening Committee in accordance with Rule 11(2) of the Rules 1969 with a view to enable the said Committee to adjudge his suitability for regular appointment as a Computer. The Screening Committee in fact adjudged his suitability and found the petitioner un-suitable and unfit for said appointment in a regular manner, and hence the question of the petitioner being considered for any benefit of confirmation on the said post having also been taken into consideration w.e.f. 14.9.1972 vide order (Ex. 5) dated 28.5.1973, therefore, the question of the petitioner being entitled for grant of further benefits qua the regularly selected candidates, does not arise. 5) dated 28.5.1973, therefore, the question of the petitioner being entitled for grant of further benefits qua the regularly selected candidates, does not arise. The respondents have placed specific reliance on the observations of the learned Division Bench in para-17 of it's aforesaid order, which are to the following effect "Since the amendments of January 7, 1976, mentioned above were no more than explanatory and clarificatory in nature, one cannot possible entertain the petitioner's argument that they were made with the ulterior motive of nullifying the impugned judgment made by the learned Single Judge in favour of the petitioner. We are also not impressed by the argument that the Government has practicised any hostile discrimination against the petitioner. Shri S.C. Bhargava who according to the petitioner has been arbitrarily preferred is not shown to have been appointed to any 'new post' on absorption after having been declared surplus from any 'Previous Post' within the ambit of the Absorption rules. His case stands in a category entirely different from the category of the petitioner. The argument based on discrimination must therefore fail." 22. I have examined the contentions, advanced by the learned counsel for the parties in detail and also the relevant documents placed on the record as well as the legal position on the subject in accordance with Rules as referred to above. 23. Prima-facie, I am of the considered opinion that since the contentions, which the petitioner has again raised before this Court in the present writ petition, have already been dealt with by the learned Division Bench of this Court in detail in it's order dated 1.4.1981 and no afresh ground has been raised or urged by the petitioner in this writ petition, it is not open to the petitioner to have invoked the jurisdiction of this Court under Article 226 of the Constitution time and again as has been done by the petitioner in the instant case by filing this frivolous writ petition in a vexatious manner which practice of the petitioner is deprecated. 24. I am further of the opinion that the observations of the learned D.B. of this Court squarely covers the contentions, which the petitioner had earlier raised before this court in the earlier writ petition and now before this Court and it is not open to the petitioner to challenge the same time and again as has been done in this manner. 25. 25. I am in perfect agreement with the aforesaid observations of the learned Division Bench of this court as well as the apex court and 1 do not find any justification to take contrary view of the matter since the matter already stands concluded by the order dated 13.9.1983 of the Apex Court. 26. I am further of the opinion that the questions which the petitioner has raised in the present writ petition have already been raised and agitated by the petitioner in the previous writ petition, which had already been heard and disposed off by this court as aforesaid and hence the principle of res-judicata is at once attracted to this case. I am of the view that it is not open to the petitioner to agitate the aforesaid questions time and again as has been done by way of this writ petition. 27. As a result of the above discussion, nothing further survives for consideration of this Court and the writ petition being devoid of merit and being frivolous and vexatious is dismissed accordingly with costs which I assess at Rs. 5000/- to be deposited by the petitioner with the Legal Aid Board, Jaipur within a period of four weeks from the date of submission of certified copy of this order. 28. Before parting with the case, I would like to record a note of appreciation with regard to the assistance having been rendered to this Court by Ms. Sumitra Goyal, who though a counsel for the State Government has rendered her assistance to this Court in absence of the penal lawyer representing respondent Nos. 1 & 2.Writ Petition Dismissed with Costs of Rs. 5000/-. *******