JUDGMENT 1. - Shri Manohar Nagora, the petitioner in this Writ Petition filed under Article 226 of the Constitution is by caste a Khatik which is a Scheduled Caste in Rajasthan. The petitioner was appointed on the post of Archivist, by order dated 12th July, 1977 after regular selection by the Rajasthan Public Service Commission. This post of Archivist is now designated as Puralekh Adhikari. The petitioner was confirmed on the said post of Archivist by order dated 4th Oct, 1982 The next post higher to that of Archivist is that of Asstt. Director of Archives. The post of Asstt. Director of Archives forms part of the Rajasthan Archives Service. The recruitment to the posts in and conditions of service of persons appointed to the Rajasthan Archives Service is regulated by the Rajasthan Archives Service Rules, 1975 (hereinafter, referred to as the Rules'). Under (he Schedule lo the Rules, recruitment on the post of Asstt. Director, Archives is to be made 100% by promotion from amongst Archivist/Research Officers. The qualifications and experience prescribed under the Rules for such promotion is M. A. IInd Class in History or Sanskrit or Philosophy and experience of 5 years on the post of Archivist or Research Officer after regular selection. Originally there were two posts of Assist. Director of Archives. By order (Annexure 4) dated 29th Sept. 1982, on temporary post of Asstt. Director of Archives was created upto 28th Feb. 1983 from the date, the said post was filled in. The case of the petitioner is that the additional post of Asstt. Director of, Archives was required to be filled from amongst Scheduled Castes/Scheduled Tribes as per roster prescribed under Article 16(4) of the Constitution. The case of the petitioner is further that on 29th Sept. 1982, the date on which this additional post of Asstt. Director, Archives was created, the petitioner had completed 5 years service as Archivist and he possessed the requisite qualifications and experience for promotion on the post of Asstt. Director of Archives. The petitioner has stated that for extraneous reasons his name was omitted for being considered for the purpose promotion to the post of Asstt. Director of Archives and that one Dr. Gyan Chand Sharma, respondent No 4, who is not a member of Scheduled Caste/ Scheduled Tribe was being considered and was likely to be given promotion on the said post. Director of Archives and that one Dr. Gyan Chand Sharma, respondent No 4, who is not a member of Scheduled Caste/ Scheduled Tribe was being considered and was likely to be given promotion on the said post. The petitioner has, therefore, filed this writ petition wherein he was prayed that respondent Nos. 1 and 2. namely the State of Rajasthan and the Departmental Promotion Committee (DPC) be directed to consider the petitioner for promotion to the post reserved for Scheduled Caste/Scheduled Tribes and that in case the DPC meets, and without considering the case of the petitioner recommends any person for such an appointment be quashed. 2. The writ petition has been contested by the respondents. A reply to the writ petition has been filed on behalf of respondents Nos. 1 to 3 and another reply has been filed by respondent No.4. In the reply that has been filed on behalf of respondents Nos. 1 to 3, it has been stated that the post of Asstt. Director of Archives which was created vide order dated 29th Sept. 1982 is a vacancy for the year 1982-83 and the petitioner is not eligible for promotion on the said post under the Rules, because the petitioner did not have the requisite experience of five years as Archivist on 1st April, 1982. In the said reply it has also been stated that the newly created post of Asstt. Director of Archives is to be filled in from amongst the members of the Scheduled Caste/Scheduled Tribes provided such a candidate fulfils the requisite qualifications and experience as laid down in the Rules, as amended and since the petitioner did not fulfil the requisite experience of 5 years as Archivist as on 1st April, 1982, his case does not fall within the eligibility one. In the said reply it has been stated that the case of the petitioner was considered, but since he failed to fulfil the requisite qualifications and experience, the said post was converted to general category. 3. The petitioner has filed a rejoinder to the aforesaid reply. Additional affidavits of Brij Lal Asstt. Director who is officer-in-charge in the case dated 30th October, 1983 and 6th November, 1985 have also been filed on behalf of respondents Nos 1 to 3. 4. Shri P. C. Jain, the learned counsel for the petitioner has urged that the post of Asstt. Additional affidavits of Brij Lal Asstt. Director who is officer-in-charge in the case dated 30th October, 1983 and 6th November, 1985 have also been filed on behalf of respondents Nos 1 to 3. 4. Shri P. C. Jain, the learned counsel for the petitioner has urged that the post of Asstt. Directer of Archives was created by order dated 29th Sept, 1982. and eligibility for promotion on the said post has to be considered with reference to the date of creation of the said post and since the petitioner had acquired 5 years experience as Archivist in July 1982, he was eligible for promotion to the said post and he has been wrongly denied consideration for promotion to the said post on the ground that he was not so eligible. Shri Mathur, the learned Addl, Govt. Advocate on the other hand has submitted that the vacancy which arose as a result of creation of additional post of Asstt, Director by notification dated 29th Sept. 1982, should be treated as a vacancy of the year 1982-83 and for the purpose of promotion to the said post, the condition of eligibility must be satisfied by the petitioner as on 1st April. 1982 in view of Sub-rule (2) of rule 24A of the Rules. The submission of the learned Addl Govt. Advocate was that on 1st April, 1982 the petitioner did not possess the requisite experience of five years a Archivist prescribed under the rules and, therefore, he was not eligible for promotion to the said post Archivist Director of Archives and he has been rightly excluded from consideration. 5. Sub-rule (2) of Rule 24-A of the Rules prescribes that the persons enumerated in column 5 of the relevant column regarding "post from which promotion is to be made, as the case may be of the relevant Schedule shall be eligible for promotion to posts specified against them in column 2 thereof to the extent indicated in column 3 subject to their possessing minimum qualifications and experience on the 1st day of the month of April of the year of selection, as specified in column 6 or in the relevant column regarding "minimum qualification and experience for promotion," as the case may be. The aforesaid sub-rule indicates that the prescribed qualification and experience should be possessed by the officer to be eligible for promotion on the 1st day of the month of April of the year of selection The question which needs to be considered is what is the year of selection for the post of Asstt. Director of Archives which was created by order dated 29th Sept. 1982. For the purpose of deciding this question it will be necessary to take note of the provisions contained in Rule 9 of the Rules of which provides for determination of vacancies. Rule 9 of the Rules was substituted by notification dated 21st December, 1981. Under clause (a) of sub-rule (1) of Rule 9, as amended, it has been laid down that subject to provisions of the Rules the appointing Authority shall determine on 1st April, every year, the actual number of vacancies occurring during the financial year. Under the aforesaid sub-rule, an obligation has been imposed on the Appointing Authority to determine on the first day of April every year the actual number of vacancies occurring during the financial year. Can a vacancy arising as a result of creation of the post of Asstt. Director of Archives on 29th Sept. 1982 to be treated as a vacancy occurring during the year 1982-83 and the said vacancy is, therefore, the vacancy of the year 1982-83. Shri Jain has urged that only those vacancies can be treated vacancies of the year 1982 83 under Rule 9 of the Rules which were existing or anticipated on 1st April 1982 and since the vacancy on the post of Asstt. Director of Archives which was created on 29th September, 1982, cannot be said to have been anticipated on 1st April, 1982, it cannot be included amongst the vacancies which were required to be determined under sub-rule (i)(a) of rule 9 and, therefore, the said vacancy has to be excluded from the vacancies of the year 1982-83 we determined under Rule 9. The learned Additional Government Advocate has placed reliance on the circular (Annexure No. 4) dated 18th February 1984 whereby clarification has been made on certain points relating to determination of vacancies under clause (a) of sub-section (I) of the rule 9 of the Rules One of the points on which clarification has been made by the said circular is whether the vacancy occurring during the year besides including vacancies due to retirement, could include posts created during the financial year and lien vacancies due to long term deputation. While dealing with this question it has been clarified that the vacancies occurring during the year would include newly created points, if only, included in the bugget or as may have been agreed to by the Finance Department upto the date the vacancies are determined. The learned Additional Government Advocate has submitted that the additional post of Assistant Director of Bachives which was created vide order dated 29th September, 1982 (annexure 4) was included amongst the additional posts which were to be created in the Department in the budget for the year 1982-83 which was presented in the State Legislative Assembly on 3rd March, 1982 and that the said budget of the Department was voted by the Legislative Assembly on 20th March, 1980 wherein lump sum amount of rupees 4 lacs was allocated to the Department of Archives as plan ceiling, it has been stated that after the aforesaid allocation had been made, the Budget finalising Committee for the year 1982-83 method deliberated for allocation of fonds for different items and it was decided to create one post of Assistant Director Archives one post of L.D.C. and the post of Sweeper and the expenditure amounting to 23 lacs (Rs. 23,000/-) for these posts for the year 1982-33 was kept apart. The submission of the learned Additional Govt. Advocate was that this proposal for creation of the additional post of Assistant Director of Archives was under consideration and provision was made for it in the budget and it was approved by the Legislative Assembly on 28th March, 1982 and it can, therefore, be said that the said post was under contemplation on 1st April, 1982 and it could be included amongst the vacancies occurring during the year 1982-83 under rule 9(l)(a) of the Rules. In this connection the learned Additional Government Advocate has referred to the Additional affidavit of Shri Brij Lal dated 6th November, 1985 and has also placed before me the budget proposals and relevant papers in this regard which show that one post of Assistant Director of Archives was included amongst the additional post for which. provision was made in the said budget proposals and subsequently the budget finalising Committee had approved the creation of three new posts, namely, one post of Assistant Director of Archives, one post of L.D.C. and one post of Sweeper and the expenditure amounting Rs. 23 lacs was kept apart for three posts. On the basis of the averments in the Additional affidavit filed by Brij Lal on behalf of respondents No. 1 to 3 which are borne out by the records which were placed by the learned Additional Govt. Advocate for the perusal of this Court. I am satisfied that proposal for creation of one additional post of Assistant Director of Archives was included in the budget proposals for the Archives Department which was submitted in the State Legislative Assembly on 3rd March, 1982 and was approved by the State Legislative Assembly on 20th March, 1982 and the post of Asstt. Director Archives was created by order dated 29th Sept., 1982 in accordance with these proposals. It can, therefore, be said that one post of Asstt. Director Archives was under contemplation on 1st April, 1982 and the said post of Asstt. Director of Archives can, be treated as anticipated vacancy which was expected to occur during the year 1982-83. The said vacancy on the post of Asstt. Director Archives was, therefore, covered by Rule 9 of the Rules and for the purpose of promotion on the said post it was necessary for the petitioner to fulfil the requirement of sub-rule (2) of Rule 24A of the Rules and that he should have possessed the minimum qualifications and experience prescribed for the said post on 1st April, 1982. 6. Shri Jain has however, argued that the circular (annexure No. 4) dated 18th Feb., 1984 was issued much later than 29th Sept. 1982 and the said circular can have no application to the present case. It is true that the said circular dated 18th Feb , 1984 was issued after the creation of the post of Asstt. 6. Shri Jain has however, argued that the circular (annexure No. 4) dated 18th Feb., 1984 was issued much later than 29th Sept. 1982 and the said circular can have no application to the present case. It is true that the said circular dated 18th Feb , 1984 was issued after the creation of the post of Asstt. Director of Archives on 29th Sept., 1982, but the said circular is only in the nature of a clarificatory circular which clarifies certain doubts in the matter of determination of vacancies under rule 9 (1) (a) of the Rules. The action taken by respondents Nos. 1 to 3 accused with the aforesaid clarification issued by the circular dated 18th Feb., 1984, but the said action cannot be held to be bad merely because it accords with the clarification contained in letter dated 18th Feb., 1984. Shri Jain has not been able to show that the action which has been taken by respondents Nos. 1 to 3 in. treating the additional post of Asstt. Director Archives created on 29th Sept. 1982 as vacancy for the year 1982-83 is in violation of the Rules or is otherwise bad. In these circumstances the said action cannot be held to be bad merely because it is in accord with the circular dated 18th Feb. 1984 which was not in existence on 29th Sept. 1982. 7. Once it is held that the additional post of Asstt. Director of Archives created by notification dated 29th Sept., 1992, is a vacancy occurring in the year 1982-33 and promotions on the said post has to be made from amongst persons who were eligible for promotion in terms of sub-rule (2) of rule 24A of the Rules, it is evident that the petitioner could not be considered eligible for that post because on 1st April, 1982 he did not possess the requite experience of five years on the post of Archivist. 8. 8. Shri Jain has, however, submitted that even if it be held that the petition did not possess the requisites five years experience on 1st April, 1982, his case should have been considered by the D.P.C. in view of the proviso to sub-rule (5) of rule 24A of the rules which reads as under:- "24-A (5) Subject to the provisions of sub-rule (7), selection for promotion from the lowest post or category of post in the State Service to the next higher post or category of post in the State Service and for all posts in the Subordinate Services and in the Ministerial Services shall be made strictly on the basis of seniority-cum-merit from amongst the persons who have passed the qualifying examination, if any, prescribed under these Rules, and have put in at least five years' service, unless a different period a prescribed elsewhere in these Rules, on the first day of the month of April of the year of selection on the post or category of post from which selection is to be made : Provided that in the event of non-availability of the persons with the requisite period of service of five years, the Committee may consider the persons having less than the prescribed period of service, if they fulfil the qualifications and other conditions for promotion prescribed elsewhere in these Rules, and are found otherwise suitable for promotion on the basis of seniority-cum-merit in the promotion of 50 : 50". 9. A perusal of the said sub-rule (5) would show that it relates to promotion from the lowest post or category of post in the State Service to the next higher post or category of post in the State Service and selection for promotion for all posts in the Subordinate service and in the ministerial services and in that connection it prescribes that the persons to be selected, should have put in at least 5 years service unless a different period is prescribed in the Rules on the first day of the month of April of the year of selection on the post or category of post from which selection is to be made. The proviso to sub-rule (5) prescribes that in the event of non-availability of the persons with the requisite period of service of five years, the Committee may consider the persons having less than the prescribed period of service, if they fulfil the qualification and other conditions for promotion prescribed elsewhere in these Rules, and arc found otherwise suitable for promotion on the basis of seniority-cum-merit. The said sub-rule (5) of rule 24-A of the Rules does not deal with the situation where selection for promotion is to be made from a post in the subordinate service jo a post in the State service. In the present case we are concerned with promotion from the post of Archivist to the post of Asstt. Director of Archives. The post of Asstt. Director. Archives is a post in the State Service, namely the Rajasthan Archives Service. The post of Archivist is not a post in the State Service because it is not included in the Schedule to the Rules. Sub-rule (5) and the proviso to the said rub-rule have, therefore, no application to the present case and the present case is governed by the provisions contained in sub-rule (2) of rule 24-A. In the circumstances it cannot be said that it was incumbent for the D. P. C. to consider the suitability of the petitioner for the post of Asstt. Director of Archives even though he did not possess the requisite 5 years experience on 1st April, 1982 and for that reason the said post of Asstt. Director of Archives could be put in the general category. 10. No other contention was urged by Shri Jain. 11. Thus none of the contentions urged by Shri Jain merits acceptance. 12. In the result the writ petition fails and is hereby dismissed. The interm order passed by this court would stand vacated. No order as to costs.Petition dismissed. *******