1. - This appeal is directed against the judgment and order dated 6.5.97 passed by the learned Single Judge in Writ Petition No. 3393/98 whereby the petition was dismissed by the following order:

"Learned counsel Shri Mirdul in his usual fairness to the Court pointed out a Single Bench Judgment of this Court in case of S.K. Dass v. State of Rajasthan & Ors. S.B. Civil Writ Petition No. 587/74, S.B. Civil Writ Petition No. 152/79 and S.B. Civil Writ Petition No. 745/79 decided by a common judgment dated 25th August, 1980 . The identical point involved in this petition has been decided against the petitioner. Thus, the matter is squarely covered against the petitioner by the aforesaid judgment of the learned Single Bench of this Court which has been subsequently confirmed by the Division Bench of this Court.

The petition, is therefore, dismissed in terms of the aforesaid judgment with no costs."

2. This order has been challenged by saying that the statement was made before the learned Single Judge under mistaken belief that the matter had been decided on merits by the Division Bench. It was stated that the matter was squarely covered against the petitioner by the judgments passed in S.B. Civil Writ Petition No. 587/74, 152/79 and 745/79 S.K. Dass v. State of Raj. & Ors. decided by a common judgment dated 25.8.2000 and this decision was subsequently confirmed by the Division Bench of this Court. Learned counsel for the appellant has submitted that in fact in D.B. Special Appeal No. 309/80 on 3.12.86, both the sides stated that appeal had become infructuous and it was dismissed accordingly. The contents of the order dated 3.12.86 passed by the Division Bench read as under:

"Learned counsel for both sides state that the appeal has become infructuous. It is dismissed accordingly. No costs."

3. Learned counsel for the appellant, therefore, submitted that the impugned order dated 6.5.97 was passed on the basis of the statement made under a mistaken belief that the Division Bench had decided the matter on merits and therefore it may not come in the way of present appellant for the purpose of obtaining a decision on merits before the Division Bench in this appeal.

4. Since this appeal has also remained pending for quite some time after admission on 7.1.98, we have heard learned counsel for the parties on merits of the case notwithstanding the statement as above, on the basis of which the petition was decided before the learned Single Judge.

5. The appellant, who was the original petitioner, was a member of Rajasthan Ground Water Services as an Engineer. By way of filing the writ petition, the petitioner has challenged the validity of Proviso to Clause 'c' of sub-rule (3) of Rule 6 of the Rajasthan Ground Water Service Rules, 1969 (for short 'the Rules of 1969'). Rule 6 under Part III 'Recruitment' provides for methods of recruitment and sub-rule [3] thereunder is as under:-

RULE 6

"Methods of recruitment" -

(1) ............ .............

(2) ........................

(3) (a) that soon after the commencement of the Rajasthan Ground Water Service [Amendment] Rules, 1973 all persons who were holding on 28.4.1969 the posts encardred in the Service in an ad hoc, temporary or officiating capacity are qualified under these rules for holding such posts or persons transferred to this Department will be screened once only by a Committee consisting of the following:

(1) The Chairman of the Commission or a member thereof nominated by him as Chairman.

(2) Secretary to Government in the Administrative Department as Member.

(3) "Secretary/Special Secretary to Government in the Department of Personnel" or his nominee not below the rank of Deputy Secretary as Member; and

(4) The Chief Engineer, Rajasthan Ground Water Department as Member Secretary.

(b) The Committee shall assess the suitability of the Officers for the posts which they are holding or for lower posts and shall make recommendations to the Government for their substantive appointment to the posts