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2006 DIGILAW 1467 (RAJ)

Deepak Raj Mittal v. State of Rajasthan

2006-05-03

AJAY RASTOGI

body2006
Judgment Ajay Rastogi, J.-Instant petition was earlier decided by this Court vide order dated 03.01.1990 which was challenged by A.N. Taneja before Division Bench in Special Appeal (Writ) No. 437/92 on the premise that he is directly affected by order of learned Single Judge, which determined seniority of petitioner and as he was not party to writ petition, his rights were directly going to be affected, the Division Bench considered it proper to grant liberty to Taneja (appellant) to be impleaded as party Respondent No. 4 and accordingly set aside order dated 03.01.1990 of learned Single Judge vide Judgment dated 26.02.2004, against which petitioner preferred petition for Special Leave to Appeal (Civil) No. 13277/2004 before Apex Court and by that time, as informed to this Court, Shri Taneja has retired from service and Shri Vinay Mathur filed application for his impleadment as party respondent, which was permitted by Hon’ble Apex Court and while upholding Judgment of Division Bench directed to decide writ petition afresh on merits. Hence the matter has come up for hearing and at the very outset, Counsel for petitioner submits that in view of changed circumstances, and after relief has been accepted by State Government, instant petition has becomes infructuous, which has been opposed by Counsel for Vinay Mathur and respondent State has not come forward to make submission opposing request made by Counsel for petitioner. 2. Contextualfacts, in brief , are that on recommendation of Public Service Commission (“PSC”) on 30.07.1974 Petitioner undeniably was appointed as Assistant Engineer in erstwhile Rajasthan Ground Water Board but on account of administrative decision taken by State Government, his services were transferred to PHED alongwith other subordinate staff working in GWD, request was made for their permanent absorption in PHED and post of Assistant Engineer in GWD was abolished by State Government from 01.04.1980. Petitioner filed instant petition seeking absorption in PHED & so also assigning his seniority in the cadre of Assistant Engineer. Similarly members of subordinate service also filed their separate writ petition with almost same prayer for absorption and assignment of seniority in respective cadre. 3.So far as petition filed by subordinate staff is concerned, CWP 3288/84 (Nandlal vs. State) was decided at principal seat Jodhpur on 13.02.1986 with the direction to State Government to finalise rules. 4. Similarly members of subordinate service also filed their separate writ petition with almost same prayer for absorption and assignment of seniority in respective cadre. 3.So far as petition filed by subordinate staff is concerned, CWP 3288/84 (Nandlal vs. State) was decided at principal seat Jodhpur on 13.02.1986 with the direction to State Government to finalise rules. 4. StateGovernment has also come out with specific plea in their reply to writ petition that draft rules in progress and will be finalised in due course of time and there was already order of this Court so far as subordinate staff services are concerned. This Court also proceeded in directing respondents to frame rules and to consider candidatures of petitioner for absorption in PHED vide Judgment dated 03.01.1990 against which A.N. Taneja preferred special appeal (Supra), under belief that by virtue of order of this Court, if implemented, and he being substantive employee of PHED petitioner might be considered junior to him in the cadre of AEN but by that time, no seniority list was published and as there was direction made by principal seat so also in instant petition, as observed (Supra), and State Government also came out with the plea that draft rules are in progress for finalisation and ultimately issued amendment in Rajasthan Service of Engineers (Public Health Branch) Rules, 1968 (“Rules, 1968”) on 25.05.1992 whereby Rule 6 (3) (a),(b) & (c) were added as under:- “(3)(a) The Assistant Engineer (Drilling) of the Rajasthan Ground Water Department so transferred to Public Health Engineering Department shall be treated as appointment on the post of Assistant Engineer (Mechanical or Electrical) as mentioned at SL. No. 1 of Section Mechanical & Electrical Engineering of the Schedule on substantive/regular/temporary or officiating or ad hoc basis, as the case may be from the date they joined in Public Health Engineering Department. (b) The Committee referred to in Rule 24, shall adjudge suitability of persons so transferred on adhoc/ officiating/urgent temporary basis on the equated post of Assistant Engineer (Mechanical), provided that they possessed the qualification prescribed for the post of Assistant Engineer (Mechanical) in the Rajastahn Service of Engineers (Public Health Branch) Rules, 1968 for direct recruitment. Provided that the persons so screened under Sub-rule 3 (b) for the post of Assistant Engineer (Mechanical) included in section Mechanical and Electrical Engineering of the Schedule appended to the said rules shall be appointed to the service. Provided that the persons so screened under Sub-rule 3 (b) for the post of Assistant Engineer (Mechanical) included in section Mechanical and Electrical Engineering of the Schedule appended to the said rules shall be appointed to the service. (c) Once a person is appointed to the service under Sub-rule (3) of Rule 6, his seniority shall be determined under Rule 29 of the said rules. However the inter-se seniority of such persons among themselves shall be the same as in the parent department.” After amendment made in Rules, 1968 (Supra), seniority list was published of Assistant Engineers and Taneja was remained senior to petitioner despite amendment and while holding post of S. E., retired in February, 2003 and respondent Vinay Mathur was always shown junior to petitioner at all stages whenever seniority list was published; and as per seniority assigned to petitioner, he was further promoted on 010.1996 to the post of Executive Engineer (Mechanical) against vacancy of year 1987-88 and as Superintending Engineer (Mechanical) vide order dated 07.08.2003 (Annexure15) for vacancy of year 2003-04. 5. It has also been informed by Counsel that respondent Vinay Mathur has also been promoted as Superintending Engineer (Mechanical) against quota 2003-04; and is immediate junior to petitioner in seniority of Superintending Engineer published by the department in seniority list of PHED. 6. It was also brought to my notice that Shri Vinay Mathur has initially challenged assignment of his seniority besides seeking confirmation from the date of entry into service as Assistant Engineer by filing appeal before Civil Services Appellate Tribunal but the appeal was withdrawn on 24.08.2005 and has now questioned vires of amendment (Supra), dated 25.05.1992 besides seniority assigned and claiming confirmation in the cadre of Assistant Engineer, in CWP 2912/04 which is pending before this Court. 7. In above back ground, Shri A.K. Bhandari, Counsel for petitioner contends that as a result of subsequent events & development taken place, instant writ petition preferred by petitioner in fact has become infructuous since nothing remained to seek any relief herein. 8. 7. In above back ground, Shri A.K. Bhandari, Counsel for petitioner contends that as a result of subsequent events & development taken place, instant writ petition preferred by petitioner in fact has become infructuous since nothing remained to seek any relief herein. 8. This prayer of petitioner has seriously been opposed by Counsel for respondent Vinay Mathur and submits that once order dated 03.01.1990 of this Court has been set aside in special appeal preferred by Taneja and the same has attained finality upto Apex Court, subsequent events taken place in consequence whereof automatically become nullified and whatever benefits have been extended to the petitioner automatically stands withdrawn and petitioner has to make his submission on merits afresh without taking recourse of subsequent events taken place. 9. Thereis no reply filed by State Government, after matter was remanded back. In the reply originally filed by State it has been specifically averred in Para 7 that for absorption of Assistant Engineers and other subordinate staff from GWD, matter has been referred to the State Government, which is under process for consideration and will take necessary steps as early as possible; and so also in Para 10 that Government has already issued necessary instructions for amendment regarding absorption of Assistant Engineers & Technical Staff of GWD to PHED. 10. Despite question put to Counsel for respondents to show as to whether amendment has been made only on account of Judgment of this Court dated 03.01.1990 or the State had taken steps as averred in their reply for amending rules but no material either way has been placed on record to show in support of contention whereof . 11. I find that either parties had not brought facts (Supra), to the notice before Division Bench and so also Apex Court that amendment under proviso to Article 309 of the Constitution has been made under Rules, 1968 vide notification dated 25.05.1992 and thereafter seniority lists have been published of the post of Assistant Engineers and promotions were also made to next promotional posts of XEN & SE pendente instant writ petition and much developments have taken place. Even added respondent Vinay Mathur who filed application for first time before Apex Court for his impleadment, had also not disclosed this fact about his seniority and he has independently assailed seniority list, besides seeking confirmation as Assistant Engineer in separate judicial proceedings and vires of amendment dated 25.05.1992 is also under challenge in CWP 2912/2004 which is pending before this Court. 12. Faced with subsequent events & developments ibid, especially when independent proceedings have been initiated by Vinay Mathur, in my opinion, since relief claimed herein requires no adjudication instant petition accordingly has become infructuous. 13. However, it is made clear that Vinay Mathur will be free to question validity of amendment and so also his seniority and confirmation independently in CWP No. 2912/2004 filed by him subject to just exception that controversy therein will be examined independently without being prejudiced by any finding if at all recorded in proceedings herein (CWP 2042/88) at any point of time. 14. Consequently, this writ petition is hereby dismissed as having become infructuous as prayed by petitioner but subject to aforesaid observations. No costs.