Rajasthan High Court - Jaipur
N.S. Bohra vs Suresh Kumar Hawa And Ors. on 24 August, 2000
Equivalent citations: 2000(3)WLC635
JUDGMENT Madan, J.
(1) This special appeal arises out of two judgments cum orders dated 8.1,96 and 10.4.97 passed by the learned Single Judge. First one was passed allowing S.B. Civil Writ Petition No.818/79 of Suresh Kumar Hawa (respondent No.3) and remanding the matter to the Rajasthan Civil Services Appellate Tribunal to examine the record and to see whether the procedure as prescribed under the Rajasthan Civil Services (Absorption of Surplus Personnel) Rules, 1969 (for short, "Absorption Rules") has been followed or not, and, therefore, the judgment dated 23.8.79 of the Tribunal in appeal filed by the present appellant against publication of final seniority list cum order dated 23.8.79 was set aside. Second order dated 10.4.97 under challenge in this special appeal was passed by the learned Single Judge dismissing the review petition as time barred. The review petition was filed on 21.3.1996 against order dated 8.1.96.
(2). Civil Writ Petition No.818/79 was preferred by Suresh Kumar Hawa challenging the judgment dated 23.8.79 of the Tribunal whereby it allowed present appellant (N.S. Bohra's) appeal No.638/1977 and in view of the findings on issue No.3 - What should be the seniority of the appellants vis-a-vis respondents? it held that N.S. Bohra must be placed in the seniority list above the respondent Nos. 2 to 7 - The Tribunal however, dismissed appeal No.525/1977 of S.C. Jain.
(3). The present appellant and respondenl No.3 (Sohan Chand Jain) had preferred Appeal Nos. 638/77 & 525/77 respectively before the Tribunal challenging a revised final seniority list dated 17.6.77 showing them as Juniors to the present respondent Nos. 1, 2 & 4 to 7. This seniority list related to the Assistant Mining Engineers was published superseding previous seniority list dated 15.5.75 & 6.10.72, in this view of the matter, the contesting parties are the present appellant and respondent No. 1 (writ petitioner) in respect of their seniorily resulting out of revised final seniority list dated 17.6.77 (Annex. 11) and the Judgment of the Tribunal.
(4). The Tribunal in ils judgment formulated following issues for consideration:
1. Whether the appellants have been regularly selected on the post of Lecturer, Polytechnics?
2. Whether they have been properly absorbed in the Mining Department and hence can be deemed to be members of the service?
3. What should be the seniorily of the appellants vis-a-vis respondents?
4. Whether seniority list can be revised?
(5). We have heard the learned counsel for the parties at length on merits of the controversy as to the seniority of the parties, and have perused the impugned judg-ments of this Court as also the Tribunal besides other documents produced on record in the writ petition out of which Ihis special appeal arises.
(6). The review pelition was filed on 21.3.96 against order dated 8.1.96 in writ petition. Moreover, the review pelition was admitted on 5.4.96 and ad interim stay order was passed on 5.4.96 slaying the operation of the judgment dated 8.1.96 passed in writ petilion. Upon the preliminary objection raised by Shri S.G. Bohra (respondent No.2) by his application dated 8.5.97 alleging that the special appeal is time barred, the appellant submitted his application under Section 5 read with Section 14 of the Limitation Act explaining therein that from 21.3.96 to 10.4.97 review petition was pending so the special appeal could not have been filed, and that apart, name of appellant's counsel was not shown in the cause list dated 8.1.96 when writ petition was heard and decided. This fact could not have been controverted by the respondent No.2 (S.G. Bohra). The judgment of the Tribunal qua S,B. Bohra is final as he did not challenge it. In our considered view, it is a flt case having sufficient cause to condone the delay, if any, and laches alleged against the appellant. Immediately after the order passed in review petition, the special appeal has been preferred without any delay and, therefore, the lime consumed in disposal of the review petition can be excluded and the appellant was reasonably prevented from 6.1.96 to 10.4.97 to file special appeal. The alleged delay deserves to be condoned keeping in view the merits of the case of the appellant.
(7). Indisputably, the appellant entered into service on 6.7.64 upon his initial appointment as Temporary Lecturer in Mining Engineering in Udaipur Polytechnic, whereafter he was regularly selected as such by a duly constituted selection committee on 24.7.65 and accordingly he was confirmed on 18.8.66. Sohan Chand Jain (respondent No.3 herein and appellant before the Tribunal in his appeal) was initially appointed as Lecturer in Mining Engineering in Udaipur Polytechnic by order dated 7.3.67. However, S.C. Jain was declared surplus on 22.7.68 but absorbed as Assistant Mining Engineer on 2.6.69 in the Mines Department (respondent No. 8) whereas the appellant was declared surplus w.e.f. 31.5.70 as the Mining Engineering Department in Udaipur Polytechnic was closed by the State Government.
(8). Admittedly, the respondent Nos. 1, 2 and 4 to 7 were regularly appointed as Assistant Mining Engineer on the basis of recommendation of the Rajasthan Public Service Commission by a common order dated 26.3.68 of the State Government and they (except No.2 who was confirmed on 28.3.70) were confirmed on 25.3.69, while the respondent No.3 (S.C. Jain) was later on confirmed w.e.f. 27.7.70.
(9). After the appellant or the contesting respondents were regularly absorbed or appointed in the Mines Department, for the first time a tentative seniority list of Assistant Mining Engineers was issued by the Mines Department under Order No.F.8(2)(2)/lnd/8/65, dt. 6.5.69 (Annex.5) whereby objections were invited. This tentative seniority list dated 6.5.69 (Annex.5) was finalised by issuing Order No.F.37(75) Khaniz/72 dt. 6.10.72 (Annex.6), which is reproduced as under:-
Government of Rajasthan Mines Department No.F.37/(75)Khaniz/72 Dated Jaipur 6.10.72 Order Tentative seniority list of Assistant Mining Engineers was issued vide this department Order No.F.8(2) (2)/lnd/8/65, dated the 6th May, 1969 and objections were invited thereon. After considering the objections it has been decided to issue a final seniority list of Assistant Mining Engineers under Rule 27 of the Rajaslhan Mines & Geological Service Rules, 1960. For fixing the final seniority list indicating the present position, the Assistant Mining Engineers selected by the RPSC during the years 1970 and 1971 and later on confirmed have also been assigned seniority.
2. Shri N.S. Bohra, Lecturer in Mining, Government Polytechnic Udaipur was declared surplus and was absorbed in Mines & Geology Department vide this department Order No.F.37/(1) Khaniz 70, dated 26.11.1970. He was appointed on probation from 18th February, 1965 and was confirmed with effect from 18th August, 1966 under Education C-11 Department Order No.F.3 (47) Edu-11/65, dated the 30th June, 1967. He joined the Mines and Geology Department on 30th November, 1970.
3. Shri S.C. Jain, Lecturer in Mining Government Polytechnic Udaipur was declared surplus and was absorbed in the Mines & Geology Department vide Government Order No.F/( )GA/C/ 69/2823, dated 21st May, 1969. He was appointed as Lecturer on probation from the date of taking over charge which is 29lh March, 1967 (AN) vide Education C-1I Department Order No.F.2(b)(3) Edu/C-11/67, dated 7th March, 1967. He was confirmed on the post Assistant Mining Engineer with effect from 29.7.1970 under this Department Order No.F.37(!4) Khaniz/70 dated 28.-1.1971.
4. Under Rule 15 of the Rajasthan Civil Services (Absorption of Surplus Personnel) Rules, 1969, the seniority of Sarva Shri N.S. Bohra and S.C. Jain is fixed in the cadre of Assistant Mining Engineers in the Mines & Geology Department among other Assistant Mining Engineers appointed through the Rajasthan Public Service Commission as under:-
(1) Shri N.S. Bohra (2) Shri S.C. Jain (3) Shri S.K. Hawa (4) Shri S.G. Bohra (5) Shri S.M. Mathur (6) Shri Y.C. Gupta (7) Shri S.M. Chordia (8) Shri Sita Ram Sharma (9) Shri R.G. Kabra (10) Shri O.P. Jain (11) Shri P.C. Sanghi.
Note : The seniority of Shri B.M. Sharma who is at present under suspension will be fixed after the criminal case pending against him in a Judicial Court is decided. Sd/- (P.R. Sharma) Dy. Secretary to Government."
(10). Against the afore-quoted final seniority list, the writ petition (S.K. Hawa) submitted his representation dated 1.11.1972 praying therein for placing him at S.No.l instead of No.3. Thereafter, Order No.F.37(75)Khan/72 dt. 15.5.75 was issued by the Mines Department staling therein that in the order of even number dated the 6th October, 1972, regarding seniority list of Assistant Mining Engineers, the name of Shri B.M. Sharma be inserted between the names of Shri S.M. Chordia and Shri Sitaram Sharma and the note given below in para 4 of the said order be deleted. However, the seniority position of the present appellant, respondent Nos. 1 & 3 remained unchanged and the appellant stood senior to the contesting respondents by virtue of aforequoted final seniority list in the cadre of Assistant Mining Engineers.
(11). Notwithstanding the aforestated position, surprisingly enough despite the fact the tentative seniority list of Assistant Mining Engineers stood finalised after taking into consideration objections against tentative list vide final list (Annex.6) dated 6.10.72 followed by Order dated 15.5.75 (Annex.8), the Mines Department again invited objections by its Order dated 28.4.76 (Annex.9) and pursuant thereto the writ petitioner presented his representation dated 21.5.76 (Annex. 10) praying therein for placing him at the top of the list, which was accepted and he was placed at S.No.l in the list communicated by Order dated 6.10.72 (Annex.11) and thereby the present appellant and respondent No.3 (S.C. Jain) were placed at S.Nos.7 & 8 respectively, against which they preferred appeals (supra) before the Tribunal, which by its judgment dated 23.8.79 allowed appellant's appeal as indicated above.
(12). Under issue No.1 the Tribunal took into consideration the Government Order dated 28.10.64 (Ex.1) according to which the technical posts in the Directorate of Technical Education had been taken out of the purview of the Rajasthan Public Service Commission and Ex.1 prescribed the procedure in regard to the recruitment of staff for Gazetted technical posts in the Technical Education Directorate and Polytechnic through the selection committee. Thus after having considered the contentions of the contesting respondents, the Tribunal had rightly arrived at the conclusion that the two appellants were recruited through the seleciion committee as early as 1965 or 1967 and the absorption commiltee also treated them to be regularly selected persons in the polytechnics. It then held as under:
"We have no material to hold that the two appellants were not recruited to the post of Lecturers in accordance with the rules and cannot, therefore, come under the category of regularly appointed within the meaning of Rule 3(j) of the Rajasthan Civil Services (Absorption of Surplus Personnel) Rules, 1969 (for short the Absorption Rules)."
(13). Rule 3 prescribes definitions of various terms used in the Absorption Rules, Its Sub-rule (a) defines "adhoc appointment" which means temporary appointment made without selection of the candidate by any of the method of recruitment provided under the relevant service rules or any orders of Government where no service Rules exists and otherwise than on the recommendations of the Commission of the post of in its purview. Under Sub-rule (f), "equated posts" means a post declared by the Committee as equated to the post held by the surplus personnel immediately before his being declared surplus. Sub-rule (2) defines "equivalent post" which means a post carrying an identical time scale of pay and involving similar nature of duties and responsibilities. Under Sub-rule (i) "new post" means a post on which surplus employee is appointed by absorption under Absorption Rules. Sub-rule (jj) defines "regularly appointed" and according to it, "regularly appointed" means persons appointed on the recommendations of the Commission if the posts are on its purview, and the persons appointed in accordance with the procedure laid down for recruitment to the post or service, as the case may be, but does not include an "adhoc" or urgent temporary appointment or officiating appointment which is subject to review and revision by the Departmental Promotion Committee. Under Sub-rule (m), "temporary appointment" means a temporary appointment either against a temporary or permanent post other than an adhoc appointment, Sub-rule (j) defines "previous post" which means a post held in permanent, officiating, temporary or adhoc capacity by a surplus employee on the date of his being declared surplus.
(14). Even from the seniority list dated 6.10.72 (Annex.G), it is crystal clear that the Mines Department itself conceded that the appellant was declared surplus and absorbed in its department vide its Order No.F.37(1) Khaniz/70/dated 26.11.70 after taking into consideration the fact that he was appointed on probation from 18.2.65 and was confirmed w.e.f. 18.8.66 under Education C- II Department Order No.F.3(47) Edu-11/65, dated 30.6.67. In this view of the matter the appellant was rightly held by the Tribunal to have come within the category of "regularly appointed & recruited" person as defined in Rule 3(jj) of the Absorption Rules and we find no illegality in the conclusions arrived at by the Tribunal under Issue No.1, as discussed above.
(15). Rule 5 of the Absorption Rules provides that the Government shall constitute an absorption committee consisting of not less than 3 and not more than 5 members as may be deemed fit, for absorbing surplus personnel. Its proviso provides for reconstitution of the Committee or change of all or any of its member from time to time. Rule 6 provides that the Committee may if it deems fit, for purposes of Rule 7, declare a post or class of posts as equaled to the post held by the surplus employee immediately before his being declared surplus keeping in view the nature of duties, qualifications and pay scales attached to such post or class of posts.
(16). Rule 7 provides procedure of absorption and its Sub-rule (I) provides that the Committee shall allot surplus personnel to the departments or services wherein equated, equivalent or lower vacant post or posts may be available for appointment and shall also specify the vacant post or posts against which surplus employee or employees are to be absorbed, and on receipt of orders of allotment of surplus personnel from the committee, the appointing authority shall issue orders for appoint-ment such appointment to be substantive, officiating, temporary or adhoc on such post or posts. Its Sub-rule (4) provides that surplus personnel who were absorbed on lower posts or on equated posts may be reabsorbed on equivalent posts or on the same posts from which they were declared surplus, provided they have not been confirmed on such posts, if the absorption committee is satisfied that hardship had been caused to them by their absorption on the lower posts or on equated posts due to non-availabilily of vacancies at the lime of their first absorption.
(17). Under Issue No.2, the Tribunal analysed the provisions contained in the Absorption Rules particularly Rules 3(a), 3(jj) and 7 as discussed above and then observed as under:-
"However, it is seen from Ex.9 dated 28.4.1975 which is a letter from Assistant Secretary to the Government in the Mining Department addressed to Shri Jain that the Government had recognised that he was absorbed on an equivalent post of the Assistant Mining Engineer. Therefore, after such a long lapse of time of nearly eight years, on the date of the appeal we do not consider it proper to hold that as the posts were not declared equivalent posts the absorption of the appellants is not proper. Regarding the appellant Shri Bohra there was a further lacuna because he was absorbed by order dated 30.12.70 on the post of Commercial Officer which was higher than the Assistant Mining Engineer and under Rule 7 he could not have been absorbed on a higher post. The Government have treated him as absorbed on the post of Assistant Mining Engineer and have, therefore, shown him in the seniority list. His name has figured right from 1972. Though there is a remis on the part of the Government, yet it is significant to note that the appellant Bohra was senior to the appellant Jain in the previous post of Lecturer and, therefore, when Shri Jain's absorption has been held by us to be regular we do not see any illegality in considering Shri Bohra also as having been so absorbed. Hence, this issue is found in favour of the appellants."
(18). Similarly it is also explicitly clear from Ex.9 dated 28.4.75 that the Government had recognised that Shri S.C. Jain (who was also Leclurer in Mining Government Polytechnic Udaipur like the appellant - N.S. Bohra) was absorbed on an equivalent post of the Assistant Mining Engineer. Thus it can be held that the post of Lecturer in Mining in the Government Polytechnic Udaipur was equivalent to the post of Assistant Mining Engineer Mines Department as recognised by the Government, itself, in its letter dated 28.4.75 (Ex.9). That being so, the appellant was stated in seniority list (Ex.6) to have been absorbed by the Government of Rajasthan in its Mines and Geology Department vide Order dated 26.11.70 treating him as regularly appointed under Rule 3(jj) and thereby he was shown as confirmed Assistant Mining Engineer under whose category he was placed as junior keeping in view date of his confirmation as such under rule 7(1) in the seniorily list dated 6.10.72 (Ex.6). Moreover, once the Government had treated the appellant duly absorbed on the post of Assistant Mining Engineer and thereby had shown him as senior most in the seniority list (Ex.6) dated 6.10.72 in view of his regular selection on initial appointment with consequential confirmation and absorption in the Mines Department, we are also of the opinion while concurring with the Tribunal that after a lapse of lime of nearly eight years from the date of absorption of the appellant till the date of revising the seniorily list challenged in the appeal, merely because the posts were not declared equivalent posts, it cannot be held that the absorption of the appellant was not proper.
(19). Be that as it may, in view of the aforesaid admission on the part of the Government, Itself there is a remis on its part especially when it is significant to note that admittedly the appellant (NS Bohra) was senior to Shri i.C. Jain in the previous post of Lecturer in Mining, Government Polytechnic Udaipur whose absorption was held to be regular, in our considered view also, there was no illegality in considering the appellant also as having been so absorbed. So, the Tribunal has rightly decided issue No.2 in favour of the appellants in their appeals, which do not call for any interference by this Court in exercise of its extra ordinary jurisdiction.
(20). The Tribunal under Issue No.3 considered provisions of Rules 11 (6) and 15 of the Absorption Rules and concluded as under:-
"But the seniority is to be determined in accordance with Rule 15. Shri Rohra was already a confirmed Lecturer with effect from 18.8.1966 and, Iherefore, his seniority is to be determined under Sub-rule (1). He should be placed below the junior most permanent employee of the new service who has a longer period of substantive continuous service on the post compared to the continuous substantive service of the service employee. Respondent Nos. 2 to 7 can be considered to be on continuous substantive service only with effect from 26.3.68 whereas Shri Bohra had continuous substantive service from 24.7.1965 when he was appointed on the basis of selection. Hence, Shri Bohra is senior to the respondent Nos. 2 to 7."
(21). Rule 11 of the Absorption Rules provides procedure for adjudging suitability and substantive appointment of surplus employees in certain casps. Its Sub-rule (1) deals with category of surplus employees absorbed during the period from 1.1.195-1 to the date of publication of the absorption Rules, under Rule 7(3), where the posts on which they were absorbed, fall within the purview of the Commission. Sub-rule (2) prescribes the cases of surplus employee absorbed under Rule 7(1) or 7(3) where the posts on which they were absorbed fall outside the purview of the Commission. Sub-rule (2) prescribes the cases of surplus employee absorbed under Rule 7(1) or 7(3) where the posts on which they were absorbed fall outside the purview of the Commission Sub-rule (3) deals with cases of surplus employee absorbed under Rule 7(12) or 7(3) on the post which falls within purview of the Commission but if on the date of being declared surplus they held adhoc appointment for 3 years or more on the post for which they are declared surplus or equivalent posts, the appointments to the new posts shall also be in an adhoc capacity and their suitability shall be adjudged by the Commission or the appointing authority for such new posts. Sub-rule (4) deals with cases of surplus employees absorbed under Rule 7(1) or 7(3) but if they held adhoc appointments for less than three years on the post from which they are declared surplus or equivalent posts, their appointment to the new posts shall only be in an adhoc capacity and they shall have to seek regular direct recruitment alongwith open market candidates. Sub-rule (5) specifically provided that there would not be necessary to adjudge the suitability of those permanent or temporary absorbed surplus employees who were initially appointed on previous post either on the recommendation of the Commission or in a regular manner by the appointing authority and who are subsequently appointed to new posts. Sub-rule (6) further provided that the surplus employee appointed by absorption to new posts whose suitability is adjudged under Sub-rule (1) to (3) or is not necessary to be adjudged under Sub-rule (5) shall be deemed to have been regularly appointed to such post from the date of their appointment by absorption.
(22). If we examine the appellant's case in the light of the afore discussed provisions contained in Rule 11 of the Absorption Rules, then we are of the considered opinion that the case of the present appellant comes and is covered within the purview of Rule 11(5) according to which the suilability of the appellant (being permanent absorbed employee who was initially regularly appointed on previous post by the appointing authority and who was subsequently appointed to new post in the Mines Department) was not necessary to be adjudged and, Iherefore, in view of Rule 11 (6) the present appellant shall be deemed to have been regularly appointed from the date of his appointment by absorption. Be that as it may, in our considered opinion, the appellant has rightly been held by the Tribunal, as having been absorbed as permanent and substantively appointed in a regular manner under the Absorption Rules. In that view of the matter, the Tribunal after having dealt with factual as well as legal aspect has rightly concluded under Issue No,2 lhat the appellant was properly absorbed in the Mining Department and hence can be deemed to be members of the service. In our considered view, the learned Single Judge ought not to have remanded the matter to see whether procedure prescribed under the Absorption Rules has been followed or not. The learned Single Judge failed to exercise iis jurisdiction to adjudge the conclusions of the Tribunal, which are based on proper appreciation of the documentary evidence on record and critical analysis of the provisions contained in the Absorption Rules qua the controversy raised at the bar as to the procedure adopted for absorption of the appellant and the determination of the seniority. Moreover, in appeals before the Tribunal the controversy raised by the appellant was confined to the determination of seniority under revised final seniority list challenged therein. That being so, under issue No.2 the Tribunal categorically held that after a lapse of eight years it would not be proper to hold the absorption of the appellant as not proper merely because the posts were not declared equivalent posis. Be that as it may, by now, a period of about 30 years has since elapsed ever since then. Hence, it would be highly unjust and unfair at this stage to disturb the absorption of the appellant and further it would not be advisable to leave the matter for probing inlo the question of adequate procedure whether adopted or not for his absorption in the manner he was so absorbed and whether or not he lacks requisite criterion for being absorbed under the Absorption Rules. We are satisfied with the conclusions of the Tribunal which are sustained on the basis of the material on record in the light of the Absorption Rules is not open to challenge. We find support from the observation of this Court in Vijay Singh v. State (1) followed in D.K. Sanghi v. State (2). Accordingly, we find error or law in the impugned judgments of the learned Single Judge and find no reason to disturb the conclusions of the learned Tribunal in respect of the absorption of the appellant.
(23). Last question relates to the determination of Seniority. Rule 15 of the Absorption Rules prescribes the procedure for determination of Seniority. Rule 15(1) provides as under:-
"15. Seniority.--(1) The seniority of a surplus employee appointed substantively to a permanent post in the service or cadre in which he is absorbed shall be determined by the appointing aulhority concerned by placing him below the junior-most permanent employee of the new service or department who has a longer period of continuous substantive service on the post compared to the continuous substantive service of the surplus employee on equivalent or higher post. The seniority of a surplus employee who is absorbed on a higher posts on officiating basis shall be determined only in respect of his permanent post:
Provided that the seniority of the surplus employee whose length of continuous service in substantive or officiating capacity or in both such capacities is lesser than the length of continuous service in substantive or officiating capacity or in both such capacities of the junior most permanent employee of the service or cadre of the New department in which such surplus employee has been absorbed, shall be determined by placing the surplus employee immedialely below the said junior most permanent employee in the service or cadre or the department in which the surplus employee has been absorbed."
(24). As already held above, since the appellant was regularly appointed and permanent Lecturer in Mining Govt. Polytechnic Udaipur in his previous post duly confirmed w.e.f. 18.8.66 and was deemed to have been regularly appointed from the date of his appointment by absorption by virtue of Rule 11 (6) of the Absorption Rules, his seniority was rightly held by the Tribunal to be determined under Sub-rule (1) of Rule 15 and, therefore, the Tribunal held that he should be placed below the junior most permanent employee of the new service i.e. on the post of Asstt. Mining Engineer who has a longer period of substantive continuous service on the post as compared to the continuous substantive service of other employees. We do not find any justification to reverse the conclusions of the Tribunal which held that Respondent Nos. 2 to 7 before it can be considered to be on continuous substantive service only with effect from 26.3.68 whereas Shri Bohra (present appellant) had continuous substantive service from 24.7.65 when he was appointed on the basis of selection and hence Shri Bohra was senior to the present respondent Nos. 1 to 7. Such conclusions based on well propounded legal principles of service jurisprudence in the light of the Absorption Rules cannot be upset by this court in its extraordinary jurisdiction and, therefore, the learned Single Judge has acted illegally and arbitrarily in remanding the matter for the controversy which was not germane in the appeals before the Tribunal and which has elaborately dealt with procedure of the absorption for determination of the seniority which was only the issue raised therein.
(25). We have further reason to interfere with the impugned judgment of the learned Single Judge in the right of the facts and circumstances which are taken note of by this court in this appeal but have been ignored by the learned Single Judge by having eschewed as irrelevant for, whereas it goes to the root of the merit of the case. The appellant, respondents and the Government before the Tribunal were at same wave length that the appellant was absorbed as Asstt. Mining Engineer. Surprisingly enough, none challenged the order by which the appellant was absorbed in 1970. Respondent Shri S.M. Malhur'had also filed writ petition at Jodhpur in 1980 which was dismissed as withdrawn. But no writ petition by the State and other respondents except writ petition SK Hawa was filed. No stay was granted. Seniority list of higher cadre was challenged by Mr.S.K. Hawa but the Tribunal dismissed his appeal on 24.6.85 against which his Civil Writ Petition No.423/86 was also dismissed on 26.9.86. During pendency of this writ petition, Mr.S.K. Hawa was selected in I.A.S. and the appellant was promoted as Superintending Mining Engineer against vacancy of 1978, on 3.3.81 vide Annex.R/8 and after adhoc promotion, was regularly promoted as Director on the recommendalions of the D.P.C. on the basis of merit. These promotions were never challenged. Moreover, absorption of the appellant was never challenged by the writ pelitioner and now at this stage it cannot be allowed to the challenged indirectly. Thus, there was remiss on the part of not only the Government but also other respondents, for which the appellant cannot be made to suffer. In the peculiar facts and circumstances of the case (supra), there has been error apparent on the face of record besides illegality discussed above which have been eschewed by the learned Single Judge and on the ground of laches and delay, such errors and illegalities cannot be allowed to be perpetuated forever and the appellant cannot be made to suffer.
(26). As a result of the above discussion, this special appeal is allowed. The impugned judgment and order dated 8.1.1996 and 10.4.97 are hereby set aside. The judgment dated 23.8.79 of the Tribunal is restored. Consequently the writ petition of S.K. Hawa is dismissed. No order as to costs.