JUDGMENT : - This writ petition has been filed by petitioner praying for a direction to respondents to treat him having been appointed as departmental candidate against their quota, with effect from 22.07.1994 and assign him seniority treating him as departmental candidate and place at serial no.148 in the seniority list dated 09.08.2001. Shri Ashok Gaur, learned counsel for petitioner, argued that as per the Rajasthan State Electricity Board Service of Engineers (Recruitment, Promotion, and Seniority, etc.) Regulations, 1969, the post of Assistant Engineer in the respondent Corporation is filled in by two channels, one is by way of direct recruitment and another is by way of promotion. In direct recruitment, 2/3rd posts are to be filled in from open market candidates and 1/3rd are to be filled in from in-service Junior Engineers having two years experience (degree holder) and seven years experience (diploma holders), respectively. Petitioner possesses Degree of Bachelor of Engineering (Mechanical), which he obtained in the year 1989 from the then Malviya Regional Engineering College, Jaipur, and on the basis of said qualification, initially he got appointment in erstwhile Rajasthan State Electricity Board (for short, 'the Board') on the post of Junior Engineer-I (Mechanical) on the basis of recommendation of selection committee vide order dated 24.03.1990 and joined on 31.03.1990. The respondent Board, thereafter, issued an advertisement dated 26.01.1993 for filing up 41 posts of Assistant Engineer from 2/3rd quota of open market candidates. Minimum educational qualification for that post was B.E. (Electrical) or Diploma in Electrical Engineering with 7 years experience as Junior Engineer. The respondent Board issued a Circular dated 30.03.1993 providing that Junior Engineers with B.E. in Mechanical, could also apply in the examination. The respondent Board further issued notification dated 07.04.1993, wherein existing Junior Engineer-I, Electrical and Mechanical, who had served the Board for at-least two years as on 01.04.1993 were also made eligible to appear in the examination for the post of Assistant Engineer (Electrical) against 1/3rd quota of in-service candidates. The approximate number of posts to be filled in was 20 including the posts reserved for the candidates belonging to Scheduled Caste and Schedule Tribe, as per roster. Petitioner also applied pursuant to notification dated 07.04.1993. Petitioner received two admission cards bearing with roll number 1945 and 1991 to appear in the written examinations but none of the admission cards indicated the category of the petitioner. Petitioner also applied pursuant to notification dated 07.04.1993. Petitioner received two admission cards bearing with roll number 1945 and 1991 to appear in the written examinations but none of the admission cards indicated the category of the petitioner. Petitioner appeared in the written examination on admission card with roll no.1945. He was declared successful. He was interviewed on 15.06.1994. Vide order dated 22.07.1994 petitioner was appointed on the post of Assistant Engineer on the basis of recommendations of the selection committee. He was shown to have been appointed on probation for two years against 2/3rd quota of open market candidates. Petitioner submitted a representation on 18.10.1994 for treating him to have been appointed against 1/3rd quota of in-service candidates, pointing out that though he was issued two admission cards but none of the admission cards indicated his category. He made such request so that he may not be deprived of his past service in the Board. The petitioner was not conveyed any decision on his representation, but he was hopeful that whenever seniority list would be published, his representation would be taken care of and he would be treated as in-service candidate and not as open market candidate. The petitioner remained under the impression that erstwhile Board would consider his request as the petitioner secured second position in written examination and he was shown just below one candidate, namely, Shri Surendra Vashistha, who was taken as in-service candidate by issuing separate office order. It is contended that in the year 2000, the Board was dissolved and in its place, five new companies were constituted, and its work was divided into these five companies. Services of the petitioner came to be transferred to Jaipur Vidyut Vitran Nigam Limited, Jaipur (for short, 'JVVNL'). Petitioner, immediately on transmission of JVVNL, submitted representation to the Deputy Secretary, JVVNL, Jaipur, in continuation of his earlier representation dated 18.10.1994, making a request to include his name in the list of in-service candidates instead of open-market candidates selected fro the post of Assistant Engineer in erstwhile Board through direct recruitment in the year 1994. The Deputy Secretary, JVVNL, Jaipur, issued tentative seniority list of Assistant Engineers (E&M) on 02.03.2001, which contained petitioner's name at serial no.158. Persons shown at serial nos.151 to 157 therein were recruited as Assistant Engineer in the year 1994 and they were treated as in-service candidates. The Deputy Secretary, JVVNL, Jaipur, issued tentative seniority list of Assistant Engineers (E&M) on 02.03.2001, which contained petitioner's name at serial no.158. Persons shown at serial nos.151 to 157 therein were recruited as Assistant Engineer in the year 1994 and they were treated as in-service candidates. Petitioner submitted representation for change in tentative seniority list pointing out that the persons at serial nos.151 to 157 in the tentative seniority list had secured lesser marks than petitioner in the written examination for the post of Assistant Engineer but they have been placed above him despite his representation for treating him as in-service candidate as he had served as Junior Engineer for more than three years and the experience requisite was only for two years. Looking to his merit position, he should have been placed at serial no.151 above Shri Umesh Gupta. In final seniority list dated 09.08.2001, petitioner's position was not changed and the department placed him at serial no.155 below the persons junior to him shown at serial nos.148 to 154. Hence, this writ petition. Shri Ashok Gaur, learned senior counsel for petitioner, argued that petitioner applied in both the categories meant for open market candidates and in-service candidates. Name of petitioner appeared at serial no.148 in the merit list of in-service candidates and respondents ought to have considered his case against the posts meant for in-service candidates treating him departmental candidate with effect from 22.07.1994. It is submitted that the respondents had offered appointment to 41 candidates against the posts of 1/3rd quota meant for in-service candidates. Vide order dated 22.07.1994 (Annexure-14) 37 in-service candidates were appointed on the post of Assistant Engineer, and thus four candidate in the main list are yet to be appointed. It is argued that the petitioner secured second position in the merit list of 1/3rd quota of in-service candidates, while therein one Surendra Vashistha stood at top and petitioner was just below him in the merit list. Petitioner was illegally treated to have been appointed against 2/3rd quota meant for open market candidates, though he accepted such appointment, but immediately after joining, he submitted representation. All the candidates, except one, appointed against 1/3rd quota of in-service candidates, were less meritorious than the petitioner. Petitioner was illegally not considered. Learned senior counsel argued that many other candidates were permitted to change the category from open market candidates to in-service candidates. All the candidates, except one, appointed against 1/3rd quota of in-service candidates, were less meritorious than the petitioner. Petitioner was illegally not considered. Learned senior counsel argued that many other candidates were permitted to change the category from open market candidates to in-service candidates. Reference is made to the application dated 18.08.1993 made by said Shri Surendra Vashistha for change of his category from open market candidate to in-service candidate, and the order passed thereon permitting him to change the category. It is argued that the petitioner was wrongly treated to have appeared in the examination for the post meant for open market candidates, that was conducted by the respondent Board on 08.08.1994. Two notifications were published for the post of Assistant Engineer; one was for open market candidates and second was for in-service candidates. A common written examination was conducted for the same. Petitioner requested the respondents to treat his name for appointment against the post meant for in-service quota but they treated him for appointment against open market quota. Respondents admitted petitioner's appearance in the competitive examination against the vacancies meant for open market candidates. Learned senior counsel for petitioner cited judgment of this court in Mohan Swaroop Saraswat Vs. The Rajasthan State Electricity Board, Jaipur through its Secretary – S.B. Civil Writ Petition No.2962/1996, decided vide judgment dated 15.02.2010, and argued that this court allowed the request of petitioner therein to switch over from 2/3rd quota of open market candidate to 1/3rd quota of in-service candidates. It is submitted that case of present petitioner is squarely covered by aforesaid decision in Mohan Swaroop Saraswat, supra. Per contra, Shri Virendra Lodha, learned senior counsel for respondents opposed the writ petition and submitted that since the petitioners applied against both the notifications therefore, the respondents issued him two admission cards. The competitive examination was conducted for selection on the post of Assistant Engineer on 5th to 8th of August, 1993 and at that time the respondents sought option from departmental candidates whether they wanted to appear in the examination as departmental candidate or as open market candidate. The petitioner did not submit any option at that time, whereas other similarly situated persons, namely, Shri Murari Lal and Shri Umesh Gupta, who filed applications both categories, opted to appear in the examination as departmental candidate by filing application in the examination hall itself. The petitioner did not submit any option at that time, whereas other similarly situated persons, namely, Shri Murari Lal and Shri Umesh Gupta, who filed applications both categories, opted to appear in the examination as departmental candidate by filing application in the examination hall itself. He did not raise any such objection at the time of appointment or even after three months. Now by way of afterthought that he can get some benefit if he is treated to have been selected against the quota of in-service candidates, he accordingly submitted representation. After joining the post, he has no legal right to be considered as in-service candidate. Petitioner was appointed in the year 1994 and preferred the case after inordinate delay of nine years, which is liable to be dismissed on the ground of delay and laches. I have given my anxious consideration to rival submissions and perused the material on record as well as respectfully studied the case law. Petitioner has been able to show that he had completed more than three years of service on the post of Junior Engineer-I while the experience required by the respondent Board from in-service candidates was only of two years. Petitioner secured second position in the merit list of 1/3rd quota of in-service candidates, while one Surendra Vashistha stood at top therein and petitioner was just below him in the merit list. Petitioner was illegally treated to have been appointed against 2/3rd quota meant for open market candidates, though he accepted such appointment, but immediately after joining, he submitted representation. All the candidates, except one, appointed against 1/3rd quota of in-service candidates, were less meritorious than the petitioner. Respondents cannot deny that they themselves permitted one Surendra Vashistha during the process of selection to change his category from 2/3rd quota of open market candidates to 1/3rd quota of in-service candidates. He submitted such application on 18.08.1993. Respondents cannot deny that petitioner was eligible to appear against 1/3rd quota of in-service candidate as he has having requisite experience of two years. This controversy has been set at rest by this court vide its judgment dated 15.02.2010 delivered in Writ Petition No.2962/2996 – Mohan Swaroop Saraswat Vs. He submitted such application on 18.08.1993. Respondents cannot deny that petitioner was eligible to appear against 1/3rd quota of in-service candidate as he has having requisite experience of two years. This controversy has been set at rest by this court vide its judgment dated 15.02.2010 delivered in Writ Petition No.2962/2996 – Mohan Swaroop Saraswat Vs. The Rajasthan State Electricity Board, in which case although additionally challenge was made to words “Gr.I” mentioned in Note No.2 below Item No.1 in Schedule appended to the Rajasthan State Electricity Board Service of Engineers (Recruitment, Promotion and Seniority etc.) Regulations, 1969 and this court held that when a candidate is held entitled to appear against both the quotas, his case also ought to be considered against 1/3rd quota of in-service candidates particularly when many other candidates were permitted to change the category from open market candidates to in-service candidates. Petitioner appeared in the examination held from 05th to 8th August, 1993, result of which was declared on 09.03.1994. Petitioner was interviewed on 15.06.1994. It was thereafter that the respondents by order dated 22.07.1994 appointed him on the post of Assistant Engineer against 2/3rd quota of open market candidates, as per recommendations of the selection committee. Petitioner soon thereafter submitted representation on 18.10.1994 for treating him to have been appointed against 1/3rd quota of in-service candidates. His plea was that though he was issued two admission cards but none of them indicated his category – whether open market candidate or in-service candidate. He therefore requested that he cannot be deprived of his past service. The respondents did not reject the application of the petitioner nor did they send any communication to him declining his request. Fresh cause of action arose to Petitioner when respondents issued tentative seniority list on 02.03.2001 in which name of petitioner appeared at serial no.158 and the candidates stood at serial nos.151 to 157 were those who secured lesser marks than him in the written examination. Merely because the Petitioner did not immediately submit application to treat him in the in-service category, could not make any difference because according to him, two admission cards were issued to him but none of them indicated his category – whether open market candidate or in-service candidate. That is why he did not submit the application in the examination hall itself. That is why he did not submit the application in the examination hall itself. The facts of the present case are somewhat identical to the case of Mohan Swaroop Saraswat, supra, in which case too said Shri Mohan Swawroop Saraswat submitted application for change of his category on 14.12.1995, which was not acceded by the respondents. He therefore approached this court by filing Writ Petition No.2962/1996, which was allowed by judgment dated 15.02.2010. The present writ petition therefore cannot be said to suffer from delay and laches, particularly when the writ petition, on the basis of fresh cause of action accruing on 02.03.2001, was filed in 2002, and was admitted by this court for hearing in 2008 and has remained pending for last 12 years. It has to be now decided on merits and not on technicality of delay and laches, which argument, even otherwise in the facts of the case, is not substantiated. In view of above discussion, writ petition therefore deserves to succeed and is accordingly allowed. Respondents are directed to treat the petitioner to have applied against the posts of 1/3rd quota of in-service candidates and he be treated to have been appointed against that quota by placing him immediately below one Shri Surendra Vashistha as the petitioner was immediately below him in the merit list. Compliance be made within three months from the date a copy of this order is placed before the respondents.