1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR ORDER S.N.Khinchi Vs. State of Raj. & Ors. S.B.CIVIL WRIT PETITION NO.3393/2006 Date of Order : : 18/09/2008 PRESENT HON'BLE MR.JUSTICE H.R.PANWAR Mr.M.R.Singhvi, for the petitioner. Mr.Arjun Singh, Dy.Govt.Counsel for the respondent-State Mr.Sandeep Shah, for the respondent No.3 None present for the respondent No.4 BY THE COURT: By the instant writ petition under Article 226 of the Constitution of India, the petitioner seeks following reliefs:- “(i) the respondents be directed to finalise the seniority list of Assistant Engineers and to assign appropriate seniority to the petitioner while treating him as promotee of the year 1990-91 or 1992-93 and simultaneously private respondents be assigned seniority as per their 2 substantive appointment and not while treating them as promotee of the year 1990-91 and 1992-93 respectively: (ii) The Government be directed to determine the vacancies yearwise and thereafter to consider the eligible candidates for promotion to the post of Assistant Engineer and assign appropriate seniority” The facts and circumstance giving rise to the instant writ petition are that the petitioner came to be appointed on the post of Overseer by order Annexure-1 dated 15th June, 1971. However, in due course of time nomenclature of the post of Overseer was changed as Junior Engineer (Mechanical). The service condition of the petitioner is said to have been governed by the Rajasthan Service of Engineers and Research (Irrigation Branch), Rules, 1954 (for short “the Rules of 1954” hereinafter). By Annexure-4 dated 23rd December, 1998, the petitioner came to be promoted against the vacancies for the year 1996-97. However, by the same order Shri Surender Vyas was also promoted to the post of Assistant Engineer against the vacancies for the year 1996- 97. By order Annexure-5 dated 12th March, 2001, the respondents published a provisional seniority list under the Rules of 1954, more particularly under Rule 28 of the Rules of 3 1954 in respect of Assistant Engineers. Vide para 2 of the Annexure-5, the objections were invited within ten days from publication of the provisional seniority list Annexure-5, if any. However, the seniority list has not yet been finalised and no final seniority list has been published by the respondent. It has been stated that the respondents No. 3 and 4 have been promoted by DPC of the year 1990-91 and 1991-92 respectively, who have been placed above the petitioner in the provisional seniority list. In the provisional seniority list, the name of the petitioner stands shown at serial No.24 as a degree holder while recognising him to have been promoted in the year 1996-97. In the said provisional seniority list Annexure-5, the respondent No.3 and 4, Rajpal Singh and Anand Choudhary has been shown at serial Nos.15 and 16 respectively as a degree holder assigning them the quota of 1990-91 and 1991-92 respectively as they were promoted through DPC. However, it has been averred in the writ petition that these two private respondents were appointed on the compassionate ground because while in service their fathers being government servants died and they dependent of the deceased government servant were provided compassionate appointment under the Rajasthan Recruitment of Dependents of Government Servants Dying While in Service Rules, 1975 4 (for short, “the Rules of 1975” hereinafter). The petitioner by the instant writ petition claims senior over the respondents No.3 and 4 respectively as also seeks direction to the respondent to finalise the seniority list and determine the yearwise vacancies. Hence, this writ petition. A reply to the writ petition has been filed by the respondent State admitting the orders Annexure-1, 3, 4 and 5. However, so far as respondents No.3 and 4, Rajpal Singh and Anand Choudhary, who have been shown at serial No.15 and 16 respectively in the provisions seniority list Annexure-5 is concerned, the respondent-State came with the case that they were appointed on the compassionate ground on the post of Assistant Engineer (Mechanical) by order dated 28th November, 1990 and 4th February, 1993 respectively with the concurrence of the Rajasthan Public Service Commission and approval of the DOP (A-2) by Annexure-6 and Annexure-R/1 respectively and the appointment is given by His Excellency the Governor of Rajasthan. It has further been submitted that in column No.6 of Annexure-5, the provisional seniority list, the word DPC has wrongly been mentioned in place of RPSC in respect of respondents No. 3 and 4. The respondent-State also came with the reply that private respondents were appointed on the compassionate ground under the Rules of 5 1975 by the State Government on the Post of Assistant Engineer (Mechanical) under the direct Recruitment quota for the year in which the orders were issued with the concurrence of the RPSC and approval of the DOP. Therefore, it is contended by the learned Deputy Government Counsel that since the respondents No.3 and 4 were appointed against the quota of direct recruitment, therefore, they are the senior to the petitioner and have rightly been placed at serial Nos.15 and 16 in the provisional seniority list Annexure-5. So far as the petitioner claiming to be considered for the year 1990-91 or 1992-93 are concerned, the State came with the case that in the year 1990-91 and 1991-92 only two vacancies of Assistant Engineer (Mechanical) were available under the direct recruitment quota, which were filled up by the recruitment of respondents No.3 and 4 providing them appointment on the compassionate ground under the Rules of 1975 and therefore, for these two years, there is no quota for promotion from the post of Junior Engineer (Mechanical) to the Assistant Engineer (Mechanical). Learned counsel appearing for the private respondent No.3 submits that the challenge made by the petitioner at such a belated stage cannot be entertained. The 6 provisional seniority list is published on 12th March, 2001 vide Annexure-5 and the petitioner had not raised any objections whereas objections were invited within 10 days from publishing of the said provisional seniority list. Learned counsel further submits that so far as appointment of the private respondents on the compassionate ground is concerned, though in the appointment order, the temporary basis has been written but in fact it is a regular appointment. Learned counsel has relied on two decisions of this Court in Ram Chandra Vs. The Executive Engineer & Ors.,1999(1) WLC (Raj.) 258 and Kanhaiya Lal Vs. The State of Rajasthan, 2007 (2) WLC (Raj.)386. In both these decisions, while considering the essence of Rule 5 of the Rules of 1975, this Court held that appointment under the Rules of 1975 is regular appointment. The restriction of no vacancy in applicable to such appointment. In case of no vacancy, supernumerary post has to be created, and therefore, the appointment of dependent of a deceased government servant on compassionate grounds under the Rules of 1975 is a regular appointment for all purposes and the said appointment cannot be treated as temporary or causal. From the contentions raised and pleadings of the parties, the facts relating to the appointment of the petitioner 7 initially on the post of Overseer, which in due course of time by changing nomenclature as a Junior Engineer and subsequent having been promoted on the post of Assistant Engineer from the date mentioned therein are not in dispute. However, Annexure-5 the provisional seniority list has heavily been challenged by the petitioner showing the name of the petitioner lower than that of the names of respondents No.3 and 4 as also their appointment by way of promotion through DPC whereas according to learned Deputy Government Counsel and learned counsel appearing for the private respondent, it was direct recruitment on the compassionate ground and all these questions can be raised and decided by way of filing objections to the provisional seniority list. Learned Deputy Government Counsel appearing for the State submits that the provisional seniority list has not been finalised. Therefore, in my view, it would be more appropriate permitting the petitioner as well as private respondents No. 3 and 4 to raise all their objections to the seniority list by way of filing objections within 15 days from today and the respondents shall finalise the seniority list preferably within three months from today as also determine the yearwise vacancies 8 With these directions, the writ petition stands disposed of. Stay petition also stands disposed of. NK (H.R.PANWAR), J.