of Rajasthan & Ors Vs. Anil Kumar  Insc
67 (6 February 2001)
Shah & S.N. Variava. S. N. Variava, J.
Appeal is against an Order dated 3rd April, 2000 by which the Appeal filed by the Appellant herein has been
dismissed in limine. Applying Rule 28 of the Rajasthan Engineering Subordinate
Service (Public Health Branch) Rules, 1967 certain persons, who were earlier
Diploma holders and who had subsequently obtained Degrees, were placed above
the Respondent in a seniority list. The Respondent had challenged his placement
in this seniority list as prepared by the Public Health Engineering Department,
Government of Rajasthan. The Respondent had in the petition inter alia
challenged the vires of Rule 28.
Learned Single Judge, by an Order dated 21st September, 1999, made the Petition
absolute by holding that the controversy was covered by a judgment of this
Court in the case of Vijay Singh Deora and Others vs. State of Rajasthan and
Another reported in 1997 (3) S.C.C. 118. The learned single Judge did not at
all consider the effect or validity of Rule 28, which reads as follows :
28 : - Seniority - Seniority of persons appointed to the lowest post of the
Service or lowest categories of posts in each of the group/section of the
service, as the case may be, shall be determined from the date of confirmation
of such persons to the said posts but in respect of persons appointed by
promotion to other higher posts in the service or other higher categories of
posts in each of the group/section in the service, as the case may be, shall be
determined from the date of their regular selection to such posts." In Deora's
case (supra) the applicability, effect or validity of Rule 28 had not been
dealt with at all. In that case seniority was not fixed on basis of this Rule.
The questions raised in this Writ Petition were therefore not covered by that
decision. The aspects raised in this Petition should have been considered on
merits. The Learned Single judge did not consider them. Unfortunately the
Division Bench dismissed the appeal in limine. Accordingly we set aside the
impugned order and remit the matter back to the Division Bench for
consideration of the Appeal on its merits. This being an Appeal of 1999, we
hope that the High Court shall dispose of the Appeal as expeditiously as
Appeal stands disposed of accordingly. There shall be no order as to costs.