J.S. Sidhu Vs. State of Rajasthan and ors. - Court Judgment

Excerpt:
rajasthan civil services (absorption of personnel) rules 1969 and rajasthan ground water board service rules, 1969 - rules 2(e)--absorption committee not consulting rpsc for adjuding petitioner's suitability for post of asstt. engineer--held, he could not be appointed substantively as asstt. engineer and was not 'member of service'--flaw be set right retrospectively.;at no point of time, the absorption committee consulted the r.p.s.c. for adjudging the suitability of the petitioner for the new post of assistant engineer under the ground water department. till such consultation was made, the petitioner could not have been substantively appointed to the post of assistant engineer. for this very reason, he could not be treated as a 'member of service' as defined in rule 2(g) of the rajasthan ground water board service rules, 1969 and as laid down in rule 5 of these rules.;in fairness to the petitioner, i would like to add that if the absorption committee did not consult the r.p.s.c. to adjudge the suitability of the petitioner, the fault was not attributable to the petitioner and it squarely lay at the feet of the absorption committee and it would be in fitness of things that this flaw is set right even now and retrospectively.;order accordingly - - (annexure r/1 at page 98 of the paper book). the assistant secretary to the government in the general administration department recommended vide annex. r/1 wherein it had been clearly mentioned that petitioner may be given preference for appointment as assistant engineer. nature of the posts nature of appointment nature of held by him on the held by him on the date appointment to date declared surplus declared surplus be given on absorption (a) permanent substantive (a) substantive on perma- nent post if the post is clearly vacant. if the post is not clearly vacant or if lien there on is held by another person, the govt. (limitation of functions) regulation, 1951 as well. 2 is bad in law and likewise all orders issued on basis there of are equally bad. 14. however, in fairness to the petitioner, i would like to add that if the absorption committee did not consult the r. 2, 3 & 6 are also declared to be bad.r.s. verma, j.1. petitioner j.s. sidhu, respondent n.s. pal and intervenor f.m. golani all of them-are members of rajasthan ground water board service constituted under the rajasthan ground water board service rules, 1969 (for short the service rules). the controversy involved in this writ petition has a chequered history and while petitioner claims seniority over respondent pal & intervenor golani, pal and golani claim seniority over him.2. petitioner holds a.m.i.e. certificate in mechanical engineering which is equivalent to bachelors degree in mechanical engineering. he entered government service in 1964 as demonstrator under the directorate of technical education. later on petitioner was selected for the post of lecturer under the said directorate by a duly constituted selection committee, the post being outside the purview of rajasthan public service commission (for short the r.p.s.c.). this appointment was temporary. petitioner joined this post on 15.7.1968. there was an economy cut during the relevant year and the petitioner faced the prospects of reversion to the post of demonstrator which post was substantively held by him. however, a post of assistant engineer was lying vacant at that time under the rajasthan ground water department. this post was under the purview of the r.p.s.c. the petitioner applied for appointment to this post. (annexure r/1 at page 98 of the paper book). the assistant secretary to the government in the general administration department recommended vide annex. r/1 (page 97 & 98 of the paper book) that preference may be given for appointment of the petitioner to the said post in accordance with the instructions contained in government circular annex. r/2 (page 99 of the paper book). consequently,the petitioner instead of being reverted as demonstrator under the parent department, was appointed as assistant engineer in the ground water department by order dated 27.11.68 (page 112 of the paper book). this appointment was initially for a period of four months. it is not clear what transpired thereafter but it appears that having not been confirmed till 1973, the petitioner filed a writ petition before this court (s.b. c.w.no. 1396/73). in the meanwhile, the service rules had already come into force, likewise, in the meanwhile the rajasthan civil services(absorption of surplus personnel) rules, 1969 (for short absorpotion rules) had also come into force. it appears that by an order dated 12.6.79 (ex. 2), petitioner was absorbed as assistant engineer in the ground water department w.e.f. 2.12.68. by another order dated 16.6.79(ex.3), petitioner was confirmed on the post w.e.f. 1.1.71. both these orders were challenged by n.s. pal respondent and f.m. golani intervenor by filing separate writ petitions. golani filed s.b.c.w.p. no. 974/80 while pal filed s.b.c.w. p. no. 975/80.3. here, i may notice the facts pertaining to appointments of golani and pal and which are not in dispute. golani claims to be b.e. in mechanical engineering. he was selected for the post of assistant engineer in the ground water department by a duly constituted selection committee and was appointed by an order dated 15.2.68 and joined this post on 16.2.68. he was eventually selected by the r.p.s.c. for this post and was confirmed in this post with effect from 21.8.72. n.s. pal is also a b.e. and was similarly selected for the post of assistant engineer in the ground water department by a duly constituted selection committee and was appointed as such on 16.1.67. he joined the post on 2.3.67. he was eventually selected by the r.p.s.c. and was confirmed as assistant engineer w.e.f. 21.8.72.4. it appears that the department issued a seniority list on 21.2.74 wherein name of pal was shown at s. no. 14 and name of golani was shown at s. no. 15. this list did not include the name of the petitioner at all. aggrieved, petitioner filed s.b. civil writ petition no. 2099/83, which came to be decided on 13.1.84 by a learned single judge of this court, who directed the state government to finalise the seniority list by including the name of the petitioner in the same. on 10.8.84, the government passed an order revoking the absorption of the petitioner at assistant engineer affected by order dated 12.6.79. by another order dated 14.8.84, the government confirmed the petitioner as assistant engineer w.e.f 1.3.79 and the name of the petitioner was directed to be added 'below the name of the three officers occurring in government order no. f. 2(15)(2) ag. (v) 73 dated 28.1.74'. consequently, the petitioner who had been posted in the meanwhile against the post of executive engineer was again posted as assistant engineer. initially, shri mridul, advocate for the petitioner contended that ex. 2 and ex.3 conferred valuable civil rights upon the petitioner and ex. 13 to ex. 16 could not have been passed with a view to revoke these orders without affording an opportunity of hearing him and hence on this short ground ex. 13 to ex. 16 deserved to be quashed. but, he did not press this line of argument realising that this would still leave the question open. hence, he invited me to decide the controversy on merits and not on this technical plea. i agree with this line of approach and hence i have heard the learned counsel for the parties on the merits of the controversy.5. learned counsel for the petitioner has contended that once the petitioner had been absorbed against the post of assistant engineer as a surplus employee, the order of absorption could not have been revoked. likewise, once he had been confirmed as assistant engineer, the confirmation order could not have been revoked. it is contended that he had been duly selected as a lecturer and on being declared surplus had been duly absorbed and confirmed and according to such absorption and confirmation was senior to golani and pal and should have been assigned seniority above them and could not have been placed below them. upon such contentions, it has been urged that ex. 13 to ex. 16 by which the original orders of absorption and confirmation were revoked may be set aside and may be quashed.6. the writ petition has been opposed by the respondents as also by the intervenor. the gist of the reply of respondent no. 1 is that petitioner was never absorbed as assistant engineer and was given merely an appointment on a preference basis. the word 'absorption' was wrongly used in the order dated 27.11.1968. due to such mistake a wrong confirmation order was passed to be effective from 1.1.71. as and when, the mistake was detected, the orders were rectified. the mistake had occurred due to a misrepresentation made by the petitioner in as much as petitioner submitted copy of a circular after due attestation being ex. r/7. in this document, the date 1.12.69 had been changed to 1.12.68 while the date should have been 1.2.69 as contained in annex. ex. r/8. it was pleaded that final seniority assigned to the petitioner was proper and was in accordance with the modified orders issued by the government, which were quite just and proper.7. i have heard the learned counsel for the parties at great length and have perused the material available on record. this is an admitted position before me that petitioner was initially appointed as demonstrator under the directorate of technical education. he was then temporarily appointed as lecturer under the said directorate, but after due selection. this is also an admitted position before me that the post of lecturer under the directorate was not within the purview of the r.p.s.c. while the post of assistant engineer in the ground water department was under the purview of the r.p.s.c. hence, an appointment to post of assistant engineer under the ground water department could have been made only in consultation with the r.p.s.c. this is also an admitted position before me that due to economy cut, the post of lecturer under the directorate of technical education was abolished and the petitioner faced the prospect of reversion to his substantive post of demonstrator. he, therefore, applied for appointment to the post of assistant engineer (ex. r/1 page 98). this application was forwarded by letter annex. r/1 wherein it had been clearly mentioned that petitioner may be given preference for appointment as assistant engineer. now, it appears that chief ground water engineer & secretary to government passed the order ex. 1 dated 27.11.68 mistakenly mentioning that shri sidhu 'is absorbed as assistant engineer against the existing vacant post'. admittedly, till then the absorption committee had not met at all and hence there could have been no question of absorption of the petitioner by ex. 1 dated 27.11.68, the post being within the purview of the r.p.s.c.8. at this juncture, i may note that the absorption rules were promulgated in 1969 but by deeming clause in rule 1(2), it was provided that 'they (the rules),shall be deemed to have come into force w.e.f 1st jaunary, 1954'. by rule 7(3) it was provided as follows:in respect of the period from 1st january, 1954 to the date of publication of these rules, the various circulars of the appointments and general administration departments of the government mentioned in the schedule, and applied during the said period for the appointment by absorption of surplus employees, shall apply in relation to them as if they form part of these rules and such appointments shall be substantive, officiating, temporary or ad-hoc as indicated in the table given below sub-rule (1) hereof.the schedule protects and preserves the five circulars mentioned therein and it is note worthy that neither circular annex. r/7 nor annex. r/8 have been as preserved and protected. according to the petitioner, he was entitled to be absorbed under annex. r/7 and r/7 was a true copy of the relevant circular. accordingly to respondent no. 1, the date had been interpaloted in annex. r/7 and annex. r/8 was the correct copy of the relevant circular. i need not enter into the controversy at all because i find that chronologically the last circular preserved and protested under the said provision was dated 23rd july, 1966 and no circular issued in 1968 had been so protected and preserved. hence, i shall have to examine if the petitioner could have been absorbed in the post of assistant engineer w.e.f. 27.11.68 as mentioned in ex. 1 and he could have been confirmed on the post of assistant engineer w.e.f. 1.1.71 as mentioned in ex.3. if he could have been so absorbed appointed and confirmed, then it would follow that these orders could not have been modified or revoked in any manner. but, if i find that he could not have been so absorbed and appointed and confirmed, then it would follow that government could always pass appropriate orders.9. here, i may examine the scheme of the absorption rules, and the back ground history relating to these rules. it appears that due to economy measures, different posts were abolished as and when the exigencies so required. the government dealt with these exigencies by issuing executive circulars as and when required. eventually, the government in exercise of powers vested in it by article 309 of the constitution of india promulgated the rules and preserved and protected the action taken by it under five circulars mentioned in the schedule to the rules, the first circular being of 23.3.60 and the last being of 23.7.66. it also issued other circulars. ex. 7 or ex. 8 whichever may be a correct copy of the original, was also likewise issued. but, in its legislative and executive wisdom, it did not deem it proper to preserve and protect the action taken by it under ex. 7 or ex. 8. i have gone through all the five circulars and on the face of it the so called absorption of the petitioner could not have been covered by any of the five circulars mentioned in the schedule. he does not derive any benefit from ex. 7 or ex. 8 either because the executive government in its legislative wisdom did not choose to preserve and protect action taken under ex. 7 or ex. 8 (whichever be a correct copy).10. now, i may turn to the scheme of these rules, rule 1 deals with the short title and commencement. as noticed earlier, the rules shall be deemed to have come into force w.e.f 1st january, 1954 meaning thereby that the rules are retrospective as also retroactive in nature. rule 2 deals with scope and applicability. it starts with a non obstante clause and reads:scope and applicability: notwithstanding anything contained in any service rules or orders for the time being in force regulating the recruitment and conditions of service of persons appointed to the various services or posts in connection with the affairs of the state, surplus personnel shall be eligible for recruitment and appointment by absorption to such service or posts in accordance with these rules subject to the availability of vacant posts.the provisions to this rule are not relevant for the present discussion and hence i have omitted the two provisions.rule 3 deals with definitions as follows:rule. 3 definitions:- in these rules, unless the context otherwise requires:(a) 'adhoc appointment' means temporary appointment made without selection of the candidate by any of the methods of recruitment provided under the relevant service rules or any orders of government.(b) 'appointing authority' means the appointing authority as defined by the service rule of the state applicable to a particular post and where not so defined, as defined or constituted by the rajasthan civil services (classification, control and appeal) rules, 1958.(c) 'committee' means the absorption committee constituted by the government under rule 5 of these rules;(d) 'commission' means the rajasthan public service commission(e) 'departmental examination' means the departmental examination held under the provisions of the rajasthan civil services (departmental examination) rules, 1969;(f) 'equated post' means a post declared by the committee as equated to the post held by the surplus personnel immediately before his being declared surplus;(g) 'equivalent' post means a post carrying an identical time scale of pay and involving similar nature of duties and responsibilities;(h) 'government' and 'state' means respectively the government and the state of rajasthan;(i) 'new post' means a post on which surplus employee is appointed by absorption under these rules;(j) 'previous post' means a post held in permanent, officiating, temporary or adhoc capacity by a surplus employee on the date of his being declared surplus;(k) 'schedule' means schedule appended to the rules;(l) 'surplus personnel' or 'surplus employee' means the government servant to whom the rajasthan service rules, 1951 apply and who are declared surplus by the government or by the appointing authority, under directions of the government, on their being rendered surplus to the requirements of a particular department of the government due to the reduction of posts or abolition of offices therein as measures of economy or on administrative grounds but in whose case the government decides not to terminate their services but to retain them in service by absorption on other posts.(m) 'temporary appointment' means a temporary appointment made either against a temporary or permanent post other than an adhoc appointment.(n) 'vacant post' means a post under the government not held substantively by a government servant.rule 4 deals with interpretation and lays down that unless the context otherwise requires, the rajasthan general clauses act, 1955 shall apply for the interpretation of these rules.rule 5 deals with the constitution of the absorption committee.rule 6 deals with declaration of equal post. then, comes rule 7, which is most crucial for decision of this case. this rule reads as follows:rule. 7 procedure of absorption-(1) the committee shall allot surplus personnel to the department or service where in 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. on receipt of orders of allotment of surplus personnel from the committee, the appointing authority shall issue orders for appointment, such appointment to be substantive, officiating, temporary or adhoc on such post or posts as indicated below: __________________________________________________________________________________ s. no. nature of the posts nature of appointment nature of held by him on the held by him on the date appointment to date declared surplus declared surplus be given on absorption __________________________________________________________________________________ (a) permanent substantive (a) substantive on perma- nent post if the post is clearly vacant. if the post is not clearly vacant or if lien there on is held by another person, the govt. on being moved by the appointing authority shall create a supern- umerary post for provi- ling lien there on to the absorbed employee. (b) permanent lower post substantive but (b) officiating on new post, which continues to exist. officiating on higher while continuing to hold post from which lien on permanent lower declared surplus post from which he was declared surplus. (c) permanent lower post substantive on (c) officiating on new post which also ceased to permanent lower but government on exist alongwith higher post but officiating being moved by the app- post. on higher post ointing authority shall create super- numerary post equal to the lower post and upon such creation, substantive appointment shall be made on such lower post. (d) temporary temporary (d) temporary (e) temporary adhoc (e) adhoc(2) the government may, by order, delegate the powers of the committee to the collectors of the districts in respect of the ministerial and class iv employees serving within their respective districts.(3) in respect of the period from 1st january, 1954 to the date of publication of these rules, the various circulars of the appointment and general administration departments of the government mentioned in the schedule, and applied during the said period for the appointment by absorption of surplus employees, shall applly in relation to them as if they form part of these rules and such appointments shall be substantive, officiating, temporary or adhoc as indicated in the table given below sub-rule (1) here of.rule 8 to rule 10 are not material for the present decision. then comes rule 11, which reads as follows:rule.11 procedure for adjudging suitability and substantive appointment of, surplus employees in certain cases-(1) in the case of surplus employees absorbed during the period from 1st january, 1954 to the date of publication of these rules under sub-rule (3) of rule 7, where the posts on which they were absorbed, fall within the purview of the commission on the date of publication of these rules, the suitability of such surplus employees shall be adjudged by the commission in the following manner.:(a) the suitability of surplus employees appointed on any posts after having been; duly selected by the commission for such posts but who had been officiating or working temporarily or on adhoc basis on higher posts or service continuously for more than 3 years, shall be adjudged by the commission for the higher posts from which they were declared surplus, and(b) the suitability of surplus employees, whose appointment was not through the agency of the commission shall be adjudged by the commission for a post which is equivalent to the post on which they were initially appointed though they may be working on the date of their being declared surplus on other equated or equivalent posts or on a higher post on an officiating, adhoc or temporary capacity irrespective of their length of service.(2) in the case of surplus employees absorbed under sub-rule (1) or absorbed under sub-rule (3) of rule 7, where the posts on which they were absorbed fall outside the purview of the commission, the suitability of such surplus employees shall be adjudged by a screening committee consisting of the appointing authority and the member-secretary of the committee or his nominee not below the rank of assistant secretary in the following manner(a) the suitability of surplus employees appointed on any posts after having been duly selected by the appointing authority for such posts but who had been officiating or working temporarily or on ad-hoc basis on higher posts continuously for more than 3 years, shall be adjudged by the screening committee on the higher posts from which they were declared surplus; and(b) the suitability of surplus employees, whose appointment was not in a regular manner shall be adjudged by the screening committee for a post which is equivalent to the post on which they were initially appointed though they may be working on the date of their being declared surplus on other equated or equivalent posts or on a higher post in an officiating, adhoc or temporary capacity irrespective of their length of service.provided that it shall not be necessary to apply the provisions of sub-rule (1) and (2) of those surplus employees who before publication of these rules but subsequent to their absorption were recruited on selection by the commission on the posts on which they were absorbed or have been otherwise adjudged suitable by the commission or any committee on such posts under the provisions of relevant service rules.(3) in the case of surplus employees absorbed under sub-rule (3) of rule 7, where the post on which they were absorbed fall within the purview of the commission on the date of publication of these rules and in the case of surplus employees absorbed either under sub-rule (1) or under sub-rule (3) of rule 7, where the post on which they were absorbed fall within the purview of the appointing authority, if on the date of being declared surplus they held adhoc appointment for 3 years or more on the post from which they are declared surplus or equivalent posts, appointment to the new posts shall be in an adhoc capacity as provided for in category (e) specified in the table given in sub-rule (1) of rule 7 and their suitability shall be adjudged by the commission or the appointing authority, as the case may be, for such new posts.(4) in the case of surplus employees absorbed either under sub-rule (1) or under sub-rule (3) of rule 7 where on the date of being declared surplus, they held adhoc appointments for less than 3 years on the post from which they are declared surplus or equivalent posts, appointment to the new posts shall be only in an adhoc capacity as provided in category (e) specified in the table given in sub-rule (1) of rule 7 and they shall have to seek regular direct recruitment alongwith open market candidates in the normal course and in accordance with the provisions of the relevant service rules.(5) it will not be necessary to adjudge the suitability of those permanent or temporary absorbed surplus employees who were initially appointed on previous posts either on the recommendation of the commission or in a regular manner by the appointing authority and who are subsequently appointed to new posts.(6) the surplus employees appointed by absorption to new posts whose suitability is adjudged under sub-rule (1) to (3) or is not necessary to be adjudged tinder sub-rule (5) shall be deemed to have been regularly appointed to such posts from the date of their appointment by absorption.rule 12 to 14 are again not material for the present decision. rule 15 deals with seniority and reads as under:rule 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 authority 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 post on officiating basis shall be determined only in respect of his permanent post.(2) the seniority of a surplus employee appointed to a new post in temporary or adhoc capacity shall, pending his appointment on substantive basis, be determined in the following manners-(a) in the case of a surplus employee appointed temporarily to a new post his seniority among the temporary employees holding same posts in the service or cadre in which he is absorbed shall be determined by placing him immediately below the temporary employee of the new service or cadre who has rendered a longer period of continuous temporary service compared to the continuous temporary service of the surplus employee on same equivalent or higher post.(b) in the case of surplus employee appointed on adhoc basis in a new post his seniority among the adhoc employee holding same posts in the service or cadre in which he is absorbed shall be determined by placing him immediately below the adhoc employee of the new service or cadre who has rendered a longer period of continuous service on an adhoc basis compared to the continuous adhoc service of the surplus employee on same, equivalent or higher post.provided all that substantive employees in a cadre or service including substantive surplus employees absorbed therein, shall rank senior to temporary employees appointed or absorbed under these rules in such cadre or service and all such temporary employees shall rank senior to all adhoc employees appointed or absorbed under these rules or otherwise.(3) the seniority inter-se of employees declared surplus from a service or cadre shall on their appointment to new posts in another service or cadre shall be the same as it existed in the former service or cadre.rule 16 deals with probation, confirmation and other conditions of service. this rule reads as follows:rule 16. probation, confirmation and other conditions of service: (1) save as otherwise provided by these rules and subject to the provisions contained in sub-rules (2), (3) and (4), a surplus employee on appointment by absorption to a new post shall be governed by the rajasthan service rules, 1951 and other relevant service rules made by the governor under the proviso to article 309 of the constitution of india and for the time being in force in all matters relating to probation, confirmation and other conditions of service:(2) it will not be necessary to place on probation or to confirm a permanent surplus employee on his appointment by absorption to a new post.(3) surplus employees covered by sub-rules (1), (2) and (3) of rule 11 and temporary surplus employees covered by sub-rule (5) of the said rule shall be confirmed on their new posts from the date of availability of vacant posts in order of their seniority as determined under rule 15 on their suitability being adjudged; if so required by the said sub-rules, without being placed on probation.(4) where under any service rules, any specific period of experience is required for promotion from the new post to a higher post, but the post on which the surplus employee was working prior to his absorption is different from such new post, credit to the extent of one half of the period during which the surplus employee worked in an equivalent or higher post prior to his being absorbed shall be given while reckoning such experience.11. rules 17 and 18 are not material for deciding this controversy and hence i need not reproduce them. now, i find that the case of the petitioner is covered by item (b) of sub-rule (1) of rule 7 and this would apply to the petitioner. it does not appear that the permanent post of demonstrator under the directorate of technical education had been abolished, which post the petitioner held substantively. only the higher post of lecturer, which post the petitioner held on an officiating or temporary basis, had been abolished. item (b) of sub-rule (1) of rule 7 may here be reproduced again for facility of ready reference:item (b) of sub-rule (1) of rule 7: ______________________________________________________________________________________ s. no. nature of the post nature of appointment nature of the held by him on the held by him on the date appointment to date declared surplus declared surplus be given after absorption ______________________________________________________________________________________ (b) permanent lower post substantive but (b) officiating on new post, which continues to exist. officiating on higher while continuing to hold post from which lien on permanent lower declared surplus post in the department from which he was declared surplus. _______________________________________________________________________________________thus, on absorption petitioner was to be accommodated on the post of assistant engineer on an officiating basis. however, this could be done only in accordance with the provisions of rule 11 already reproduced above. learned counsel for the petitioner was at great pains to urge that it would be sub-rule (5) and (6) of this rule which would govern the case of the petitioner and not the other provisions contained in this rule. the argument at first flush appears to be plausible and attractive but on closer scrutiny has to be rejected. this is an admitted position before that on the relevant day, viz the day on which post of lecturer, which post the petitioner held in temporary capacity as defined in rule 3(m), was abolished, the post of assistant engineer in the ground water department was within the purview of r.p.s.c. hence, the government could not have appointed a person to the post of assistant engineer under the ground water department without consulting the r.p.s.c. because such an appointment would have been violative of the provisions of the rajasthan public service commission (limitation of functions) regulation, 1951 which are statutory in character. hence, rule 11 has to be read in harmony with the provisions of the said regulations. it is a settled principle of law that what cannot be done, directly, cannot be done indirectly also. if contention of shri mridul is to be accepted, then even though under the existing provisions petitioner could not have been appointed to the post of assistant engineer without consulting the r.p.s.c, he would have been so appointed under sub-rules (5) & (6) of rule 11 without consulting the r.p.s.c. to my mind sub-rules (5) & (6) of this rule cannot be read in isolation and have to be read alongwith other provisions of this rule. when sub-rules (5) & (6) of this rule are read together with sub-rule (1) of this rule, it becomes crystal clear that the post of assistant engineer being within provisions of the r.p.s.c, the suitability of thp petitioner for the post ought to have been adjudged by the absorption committee in consultation with r.p.s.c here, i may profitably reproduce sub-rule (1) of this rule which reads as follows:rule. 11(1) procedure for adjudging suitability and substantive appointment of surplus employees in certain cases-(1) in the case of surplus employees absorption during the period from 1st january, 1954 to the date of publication of these rules under sub-rule (3) of rule 7, where the posts on which they were absorbed, fall within the purview of the commission on the date of publication of these rules, the suitability of such surplus employees shall be adjudged by the commission in the following manner:(a) the suitability of surplus employees appointed on any posts after having been duly selected by the commission for such posts but who had been officiating or working temporarily or on adhoc basis on higher posts or service continuously for more than 3 years, shall be adjudged by the commission for the higher posts from which they were declared surplus, and(b) the suitability of surplus employees, whose appointment was not through the agency of the commission shall be adjudged by the commission for a post which is equivalent to the post on which they were initially appointed though they may be working on the date of their being declared surplus on other equated or equivalent posts or on a higher post on an officiating, adhoc or temporary capacity irrespective of their length of service.12. in my opinion this sub-rule squarely governs the situation and it is emphatie in its import that where the post on which an officer was absorbed, fells within the purview of r.p.s.c, his suitability ought to have been adjudged in accordance with clause (b) of this sub-rule i.e. by the r.p.s.c. as i read this sub-rule (1) with sub-rules (5) & (6), it becomes clear to me that sub-rules (5) & (6) cannot' be so read as to nullify the provision of sub-rules (1). reading sub-rule (5) and (6) in this manner would be violative of the provisions of the r.p.s.c. (limitation of functions) regulation, 1951 as well. hence, i am of the view that sub-rule (1) and sub-rules (5) & (6) have to be read harmoniously so that they do not defeat each other. if the interpretation placed by shri mridul is to be accepted then clauses (b) of sub-rule 1 of rule 11 becomes otiose and redundant. in my opinion provisions of rule 11(l)(b) cannot be so interpreted so as to be nullified by sub-rules (5) & (6) or in a manner that the same is rendered otiose. to my mind provisions of sub-rule 5 & 6 of rule 11 have to be read subject to the provisions of sub-rule (l)(b) of rule 11 and cannot be so read as to render sub-rule (1)(b) otiose and redundant. the matter may be examined from yet another angle. if the rule framing authority intended sub-rules (5) & (6) to have an over-riding effect, the sub-rules could have made the position explicit by beginning them with non obstante clauses. neither of the two sub-rules commencing with a non-obstante clause. this also gives an indication to the mind of the rule framing authority and it is evident that it did not intend that sub-rules (5) & (6) should override the provisions of sub-rule. i am in clear in my mind that the case of the petitioner ought to have been adjudged by the absorption committee in consultation with the r.p.s.c. that would have also been in keeping with the provisions of the r.p.s.c. (limitation of functions) regulations, 1951. this not having been done, ex. 2 is bad in law and likewise all orders issued on basis there of are equally bad. when it is so, orders ex. 13 to ex. 16 became otiose and inconsequential.13. this is an admitted position that at no point of time, (he absorption committee consulted the r.p.s.c. for adjudging the suitability of the petitioner for the new post of assistant engineer under the ground water department. till such consultation was made, the petitioner could not have been substantively appointed to the post of assistant engineer. for this very reason, he could not he treated as a 'member of service' as defined in rule 2(g) of the rajasthan ground water board service rules, 1969 and as laid down in rule 5 of these rules.14. however, in fairness to the petitioner, i would like to add that if the absorption committee did not consult the r.p.s.c. to adjudge the suitability of the petitioner, the fault was not attributable to the petitioner and it squarely lay at the feet of the absorption committee and it would be in fitness of things that this flaw is set right even now and retrospectively.15. in the aforesaid premises, i declare that ex. 13 to ex. 16 are insequential orders; likewise ex. 2, 3 & 6 are also declared to be bad. in the circumstances of the case, i direct that respondents no. 1 & 2 shall within one month of this day constitute a fresh absorption committee; such a committee shall within a further period of one month in consultation with the r.p.s.c. adjudge the suitability of the petitioner for absorption on the vacant post of assistant engineer and in case petitioner is found fit and suitable shall allot him to the appointing authority for appointment as an assistant engineering in the ground water department with effect from the date the vacant post of assistant engineer became available for such appointment; whereupon appointing authority shall appoint him as assistant engineer in the ground water department with all consequential benefits including refixation of seniority and promotion etc. in the circumstances of the case, the parties shall bear their own costs.