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CASE NO.: Special Leave Petition (civil) 12800  of  2000

PETITIONER: STATE OF RAJASTHAN & ORS.

       Vs.

RESPONDENT: ANIL KUMAR

DATE OF JUDGMENT:       66/02/2001

BENCH: M.B. Shah & S.N. Variava.

JUDGMENT:

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S. N. VARIAVA, J.

Leave granted.

Heard parties.

   This 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.

   The  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 :

   "Rule 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

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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 possible.  The Appeal stands disposed of accordingly.  There shall be no order as to costs.