1. This is an appeal filed by original Respondent 5 before the High Court in Civil Writ Petition No. 186 of 1977.
2. On 7-5-1971, the appellant was appointed as Hostel Superintendent in the Social Welfare Department, State of Rajasthan. The post of Hostel Superintendent is a non-gazetted post under the Rajasthan Social Welfare Subordinate Services Rules, 1963. It falls in Group 'B' of posts under those Rules. He was transferred as Research Assistant (Beggary Survey Project) in 1973. He was subsequently transferred on ad hoc basis as Acting Probation and Prison Welfare Officer with effect from 23-7-1975. Probation and Prison Welfare Officer is also a non-gazetted post falling in Group 'B' of the Rajasthan Social Welfare Subordinate Services Rules, 1963.
3. While the appellant was working as Acting Probation and Prison Welfare Officer, an advertisement was issued inviting applications for combined competitive examination for Rajasthan Administrative Service, Rajasthan Accounts Service and Rajasthan Police Service. In the Rajasthan Administrative Service, two posts were reserved for non-gazetted employees working in the Rajasthan State Services. The appellant applied for one of these two posts reserved for non-gazetted employees. The appellant qualified in the written examination and also in the viva voce and he was placed at Sl. No. 31 in the final merit list. One Hastimal Chandalia who had applied in the open category was also selected and was placed at Sl. No. 26. The appellant was selected to one of the two reserved posts for non-gazetted employees in the Rajasthan Administrative Service. Hastimal Chandalia could not be offered any of the open seats in the Rajasthan Administrative Service since the persons above him in the merit list occupied all the available seats. He was given a post in the Rajasthan Accounts Service.
4. Hastimal Chandalia filed the present writ petition challenging inter alia the selection of the appellant to the Rajasthan Administrative Service, The High Court has set aside, inter alia, the appointment of the present appellant and has allowed the petition of Hastimal Chandalia holding that the appellant was not qualified for selection to the post reserved for non-gazetted employees since at the material time, he was holding a gazetted post. The decision of the High Court seems to have been affected by the similarity in the designations of various posts gazetted and non-gazetted in the Social Welfare Department of the State Services. Before the High Court, the State of Rajasthan had filed an affidavit to which a note was annexed explaining the position relating to the post held, inter alia, by the appellant at the material time. The note filed by the State Government explains in detail the nature of the post held, inter alia, by the appellant and the actual designation of that post as varied from time to time. The note clearly sets out that the post of Probation and Prison Welfare Officer is included in Group 'B' of the Subordinate Services which consists of non-gazetted employees. The substantive post of Hostel Superintendent which was held at the material time by the appellant is also a non-gazetted post under the Rajasthan Subordinate Services although there is no reference in the note to the post of Hostel Superintendent. A perusal, however, of the Rajasthan Social Welfare Subordinate Services Rules, 1963 clearly shows that post as listed in Group 'B' of the Social Welfare Subordinate Services. The post appears to be interchangeable with the post of Probation and Prison Welfare Officer, looking to the manner in which the appellant has been transferred from the post of Hostel Superintendent to the post of Probation and Prison Welfare Officer. In view thereof, it is not possible to sustain the finding of the High Court that the appellant was not eligible for selection to a post in the Rajasthan Administrative Service reserved for a non-gazetted employee. The impugned order of the High Court is, therefore, set aside insofar as the appellant is concerned.
5. We are informed by learned counsel for the present Respondent 2, that is to say, Hastimal Chandalia -- the original petitioner, that pursuant to the order of the High Court, he has been given a post in the Rajasthan Administrative Service and in the seniority list, he is placed above the appellant. In view of the position in the order of merit, learned counsel appearing for the appellant states that he has no objection to the second respondent being given a post in the Rajasthan Administrative Service or to his being placed above the appellant in the seniority list. In view of the fact that for the last ten years, this has been the inter se position as between Respondent 2 and the appellant, since the appellant has also been functioning in the Rajasthan Administrative Service pursuant to the interim orders in this appeal, we confine our order only to setting aside the order of the High Court insofar as the High Court has held that the appellant was not qualified to be appointed to the Rajasthan Administrative Service in the reserved post for a non-gazetted employee. The appointment of the appellant to the Rajasthan Administrative Service is upheld. The inter se seniority between the appellant and Respondent 2 as existing will not be disturbed looking to the special facts and circumstances of the present case.
6. The appeal is accordingly allowed. There will be no order as to costs.