CHAINA RAM KHOT VS. STATE OF RAJASTHAN & ORS. (D.B.CIVIL SPECIAL APPEAL NO.798/08) 1 CHAINA RAM KHOT VS. STATE OF RAJASTHAN & ORS. (D.B.CIVIL SPECIAL APPEAL NO.798/08) Date of Judgment:- 2.2.2009. HON'BLE MR.JUSTICE A.M.KAPADIA HON'BLE MR.JUSTICE SANGEET LODHA Mr.S.P.Sharma, for the appellant. 1. This special appeal is directed against order dated 24.4.08 passed by the learned Single Judge of this court, whereby the writ petition preferred by the petitioner assailing the validity of order dated 30.11.02 issued by the Executive Engineer, Public Health & Engineering Department( in short “PHED” hereinafter), City Division-I, Jodhpur stands dismissed. By order dated 30.11.02, the appellant , who was declared surplus from the post of Pump Attendant in the office of Dy.Conservator of Forest (World Food Programme), Jaisalmer has been absorbed on the post of Helper in the PHED, City Division-I Jodhpur . 2. It was contended on behalf of the appellant before the learned Single Judge that he was working as Pump Attendant in the Department of Forest therefore, he should have been absorbed on the same post in the PHED. It was further submitted that though absorbed on the post of Helper, his services are being utilised in the PHED as Pump Driver, therefore, for this reason also, he deserves to be absorbed on the post of Pump Driver. CHAINA RAM KHOT VS. STATE OF RAJASTHAN & ORS. (D.B.CIVIL SPECIAL APPEAL NO.798/08) 2 3. The learned Single Judge after due consideration of the submissions made on behalf of the appellant found that the respondents have committed no illegality in absorbing the appellant on the available suitable post in the PHED. The learned Single Judge opined that a surplus employee is required to be absorbed on the available suitable post and it is not always necessary that the post must be equivalent to the post held by him at the time when he was declared surplus. Accordingly, the learned Single Judge has declined to interfere with the order dated 30.11.02 passed by the competent authority. 4. It is contended by the learned counsel appearing on behalf of the appellant before us that as per provisions of Rule 7 and 15 of the Rajasthan Civil Services(Absorption of Surplus Personnel) Rules, 1969 ( in short “the Rules of 1969” hereinafter) which protects the rights and interest of the employee declared surplus upon his absorption in the new department, the appellant ought to have been appointed on the same post held by him in the department from where he has been declared surplus. The learned counsel submitted that even though the appellant was holding the post of Pump Attendant in the Department of Forest as work charge employee but, since he was later granted status of regular employee and was granted regular pay scale therefore, he could not have been denied the appointment on CHAINA RAM KHOT VS. STATE OF RAJASTHAN & ORS. (D.B.CIVIL SPECIAL APPEAL NO.798/08) 3 the equivalent post in terms of the provisions of Rules of 1969. 5. We have considered the submissions of the learned counsel and perused the material on record. 6. As per Rule 7 of the Rules of 1969, which provides the procedure for absorption, the absorption committee constituted by the State Government 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. Thus, from Rule 7, in no manner, it can be inferred that a person declared surplus can only be absorbed on the equivalent post. To the contrary, it specifically provides that the surplus employee may be allotted to the departments even for absorption on the available lower vacant post. 7. Rule 15 of the Rules of 1969 referred to by the learned counsel for the appellant only deals with the seniority of a surplus employee appointed substantively to a permanent post in the service or cadre in which he is absorbed. The said rule also does not suggest in any manner that a person declared surplus should always be absorbed on the post equivalent to the post held by him in his parent department. 8. Thus, the contention of the learned counsel that the CHAINA RAM KHOT VS. STATE OF RAJASTHAN & ORS. (D.B.CIVIL SPECIAL APPEAL NO.798/08) 4 appellant could not have been absorbed on the post lower than the post held by him in his parent department on work charge basis is devoid of any merit. 9. There is yet another aspect of the matter. The appellant was ordered to be absorbed on 30.11.02. He joined his duties on the post without any grouse or protest and thereafter, assailing the validity of the order of absorption,the writ petition was preferred by him after a lapse of about 6 years. The appellant having acquiesced with his absorption on the post of Helper, he cannot be permitted to raise any grievance in this regard at such a belated stage. Therefore, as a matter of fact, the writ petition preferred by the petitioner was liable to be dismissed solely on the ground of inordinate and unexplained delay. 10. In view of the discussion above, in our considered opinion, the order impugned passed by the learned Single Judge does not suffer from any error warranting interference by this Court in this intra court appeal. 11. In the result, the special appeal fails, it is hereby dismissed. No order as to costs. (SANGEET LODHA),J. (A.M.KAPADIA),J. Aditya/-