JUDGMENT 1. 1. The petitioner is a member of Scheduled Caste being Jatav by caste and he entered the Government service in the year 1970 on being appointed as Fisheries Inspector. It may be stated that the post of Fisheries Inspector is a subordinate service post and at the relevant time there were no subordinate service rules for the Fisheries Department and the recruitment and conditions of Services of Fisheries Inspectors were being governed by the Rajasthan Subordinate Service (Recruitment and Other Conditions of Service) Rules, 1960. The petitioner was thereafter promoted as Assistant Fisheries Development Officer in the year 1973 and that post was also subordinate post. Later on he was selected by the Rajasthan Public Service Commission for the post of Assistant Fisheries Development Officer in the year 1975. The petitioner was posted as Assistant Fisheries Development Officer but had to he reverted back to the substantive post of Assistant Fisheries Development Officer in 1981 in pursuance of some order of the Tribunal which was rendered sometime in 1981. Some how, he was again posted as Fisheries Development Officer on August 2, 1983. He was then promoted as Fisheries Development Officer against the promotion quota of the year 1981 under order dated February 11,1987 (Annr. 1). He was fixed in the pay scale for the post of' Fisheries Development Officer vide order dated April 4, 1987. 2. A seniority list was issued on April 23, 1986 showing the position of Fisheries Development Officers as on December 1, 1985 (Annr. 2). It contains the names of 10 persons and the persons mentioned in the seniority list Annr. 2 upto S. No. 7 i. e R. S. Chaudhary. had already been promoted as Asstt. Director and/or equivalent posts which are included in the category of Junior Grade I post in the Fisheries Section under the Rajasthan Animal Husbandry Service Rules, 1963 (for short, the Rules). 3. The case of the petitioner is that since he was promoted against promotion quota of 1981-82 by virtue of Rule 23A (9A) the petitioner is entitled to have his services/experience counted from April 1, 1981 and he would be deemed to have completed 5 years service on March 31, 1986. By an order dated September 17,1987 the petitioner came to be assigned the promotional post of Junior Grade I alongwith three other persons namely Sarvashri N K., Madhawan, D.N. Singh and M.L. Agrawal. By an order dated September 17,1987 the petitioner came to be assigned the promotional post of Junior Grade I alongwith three other persons namely Sarvashri N K., Madhawan, D.N. Singh and M.L. Agrawal. When the petitioner reported himself at Alwar to join the post of Chief Executive Officer, Fish Farmer Development Agency, he was told by Shri M K. Saxena. Fisheries Development Officer who was holding charge of the post of Chief Executive Officer, Fish Farmer Development Agency, Alwar that the petitioner's posting on the higher post has been cancelled. According to the petitioner he filed a Writ Petition before this Court which was registered as D.B. Civil Writ Petition No. 2487/87 and on September 23, 1987 a show cause notice was issued as to why the petition he not admitted and at the same time on the stay application an order was made staying the operation of order dated September 19, 1987. In reply to that writ petition the respondents came out with the case that there were four vacancies in the cadre of Assistant Director and regular promotions could be made only after holding Departmental Promotion Committee meeting for the post of Deputy Director as well as Assistant Director and equivalent posts and that active steps were being taken for holding the Departmental Promotion Committee at the earliest and for that reason the Government had resorted to working arrangements. The writ petition was ultimately disposed of by the Division Bench of this Court on December 15, 1987. This Court had directed that while making appointment under Rule 26 of the Rules, reservation system shall be kept in mind by the authority concerned. According to the petitioner efforts were made to undo the decision and an order dated February 5, 1988 was made and the petitioner was posted as Field Development Officer Dholpur and by the other order three persons have been posted as Assistant Director or on equivalent posts. The case of the petitioner further is that in the matter of regular promotions as well as temporary promotions members of Schedule d Caste and Scheduled Tribes are entitled to the benefit of reservation, vide Government Notification No. F. 15 (24) Karmik (Ka-II)/75 dated September 3, 1975. The case of the petitioner further is that in the matter of regular promotions as well as temporary promotions members of Schedule d Caste and Scheduled Tribes are entitled to the benefit of reservation, vide Government Notification No. F. 15 (24) Karmik (Ka-II)/75 dated September 3, 1975. It was also clarified that the reservation prescribed by Government order No. F. 9 (19) Karmik (Ka-V)/74 dated February 10, 1975 shall apply to appointment made on ad hoc or urgent temporary basis pending regular recruitment through the DPC or direct recruitment. The zone of consideration for promotion of the candidates belonging, to the Scheduled Castes and Scheduled Tribes is five times number of vacancies although it is lesser for the general candidates. The petitioner also has come out with the case that the promotion of the persons under order dated September 17, 1987 was made without considering the case of the petitioner, who is a member of Scheduled Caste, is arbitrary and suffers from malice and it has been done with the object to over come the observations made by this Court. The petitioner also submits that the action of the respondents is a clear example of the executive trying to over-reach the process of the court. The petitioner states that even if three vacancies were to be filled by promotion on ad hoc basis, the petitioner if entitled to be promoted because his name falls within the zone of consideration He is a senior member of Scheduled Caste amongst the Fisheries Development Officers, and has all the requisite qualifications for promotions and yet he has been totally ignored in the matter of promotion. 4. Show cause notice was issued and reply his been filed. In the reply para 7 of the writ petition has been admitted. An attempt has been made by Mr. Khan by filing an additional affidavit to undo the admission of para 7 of the writ petition. In para 7 of the writ petition it has been stated by the petitioner that as he has been promoted against promotion quota of 1981-82 by virtue of Rule 23A (9A) the petitioner is entitled to have his services/experience counted from April 1, 1981 and he would he deemed to have completed 5 years service on March 31, 1986. In para 7 of the writ petition it has been stated by the petitioner that as he has been promoted against promotion quota of 1981-82 by virtue of Rule 23A (9A) the petitioner is entitled to have his services/experience counted from April 1, 1981 and he would he deemed to have completed 5 years service on March 31, 1986. As already stated, this para in the reply has been admitted the respondents cannot now be allowed to undo their own admission and set up a new case that the petitioner had not completed 5 years service even if he was entitled to have his service experience counted for (sic from) 1981-82. It will therefore be taken as granted for the disposal of the writ petition as stated in para 7 of the writ petition that the petitioner had requisite service experience of 5 years and the same is to be counted from April 1, 1981. 5. The first contention of Mr. Singhvi, learned counsel for the petitioner is that firstly even in the DPC held in 1986 the petitioner was entitled to be considered for promotion. He further contends that if the DPC is held for some earlier year then there can be no reserve-list and the Government cannot fall back to make appointments out of the reserve-list. It is also contended by him that in the earlier writ petition No. 2487,87 C. L. Shivi v. State of Rajasthan which was decided by this Court on December 15, 1987 , the Government never came out with the case that there was any reserve list and said that there were four vacancies in the cadre of Asstt. Director and regular promotion could only be made after holding DPC for the post of Dy. Director as well as Asstt. Director and that steps were being taken for holding the DPC at the earliest and for that reason, the Government had resorted to working arrangement. It can therefore be said that in the aforesaid reply to the writ petition the Government did not come out with the case that there was any meeting of the Departmental Promotion Committee in 1986 and any reserve list was prepared. This court while disposing of the writ petition under its order dated December 15, 1987 said that : "We hereby set aside the order Anne. This court while disposing of the writ petition under its order dated December 15, 1987 said that : "We hereby set aside the order Anne. 5 and direct the State Government that the appointment should be made in accordance with the rule 26 of the Rules". The court again said that ; "While making appointments under Rule 26 of the Rules, the reservation system shall be kept in mind by the Authority concerned". It will therefore be clear that the Government never came out with the case that there was any reserve list prepared by the Departmental Promotion Committee and it wants to make appointment out of that reserve list. This Court had issued a direction that the appointment should be made by the Government in accordance with rule 26 of the Rules. Rule 26 of the Rules deals with urgent temporary appointment and according to its sub-rule (1) a vacancy in the Service which cannot be filled in immediately either by direct recruitment or by promotion under the rules may be filled in by the Government or by the authority competent to make appointment as the case may be, by appointing in an officiating capacity thereto an officer eligible for appointment to the post by promotion or by appointing temporarily thereto a person eligible for direct recruitment to the Service where such direct recruitment has been provided under the provisions of these Rules. Such an appointment cannot continue beyond a period of one year without referring the case to the Commission for concurrence, where such concurrence is necessary. It will therefore be clear that this court had made categorical direction that the appointment shall be made under rule 26 of the Rules. 6. It is contended by Mr. Khan that not only that reserve list was in force, but due to unavoidable reasons it could not be brought into the notice of the court. According to him, the State Government can always bring it to the notice of the court. We may state that it relates to the order issued earlier of this court dated Dec. 15, 1987 and if any modification of the aforesaid order was thought necessary, the review petition should have been filed for seeking review of that order. According to him, the State Government can always bring it to the notice of the court. We may state that it relates to the order issued earlier of this court dated Dec. 15, 1987 and if any modification of the aforesaid order was thought necessary, the review petition should have been filed for seeking review of that order. In view of the specific directions of this Court in the aforesaid order it is not possible for us to say that the appointments were nit to he made under rule 26 of the Rules, but, in 1987 out of the reserve list prepared by the Departmental Promotion Committee held in 1986. 7. Apart from what has been stated earlier we are of the opinion that there can be no logic in having the reserve list in the aforesaid year and the candidates who were in the zone of consideration in that year in which the DPC is held could only have been considered. A look at sub-rule 11 (a) of rule 23A of the Rules, and we may state that a similar rule was inserted in many service rules though its number is separate will show that the Committee shall prepare a separate list on the basis of seniority cum merit and on on the basis of merit as the case may be as per the criteria for promotion laid down in the rules, containing the names of persons equal to the number of persons selected in the list prepared under sub- rule 11 (a) of rule 23A of the Rules to fill temporary or permanent vacancies which may occur subsequently. The list so prepared on the basis of seniority cum merit and/or on the basis of merit shall be arranged in the order of the seniority in the category of posts from which selection shall be made. Such a list shall be reviewed and revised by the Departmental Promotion Committee that meets in the subsequent year and that such list shall remain in force till the end of the last day of the next year or till the Departmental Promotion Committee meets whichever is earlier. As the purpose of the reserve list is to fill temporary or permanent vacancies which may occur subsequently there can be no logic or sense in preparing the reserve list if the Departmental Promotion Committee is held for back year. As the purpose of the reserve list is to fill temporary or permanent vacancies which may occur subsequently there can be no logic or sense in preparing the reserve list if the Departmental Promotion Committee is held for back year. Thus, the question of reserve list only arises if the DPC is held to fill temporary or permanent vacancy which may occur subsequently. Thus, viewed from any angle, on the basis of the judgment of this Court dated Dec. 15, 1987 in which the State Government did not come out with a case that there was any reserve list, and as already stated earlier, the DPC which was held in 1986, for year 1985-86, could not have and should not have prepared any reserve list, we are of the opinion that the State cannot fall back on any reserve list and either they could have made appointment under rule 26 of the Rules as directed by this Court under its order dated December 15, 1987 or could have held DPC for the year 1986-87. 8. It may be stated that it is not disputed that so far as three posts of Asstt. Directors Fisheries Department or equal posts are concerned, the vacancy only arose as a result of promotion to the post of Dy. Director or equal posts in 1987. We have already said earlier that the petitioner was eligible for consideration against one of the vacancies of Asst. Director which would have fallen vacant in 1986-.87. So far as the Departmental Promotion Committee for the year 1985-86 is concerned, even Mr. Singhvi learned counsel for the petitioner does not claim any right for consideration and cannot claim any such right for 1985-86, as in the Departmental Promotion Committee for the year 1985-86 the petitioner could not have become eligible, but the petitioner is eligible for consideration in the Departmental Promotion Committee for the year 1986-87, 1987-88 and 1988-89. 9. Consequently, we allow this writ petition and direct the respondents to determine year-wise vacancies and we further direct that the Departmental Promotion Committee should be held as soon as possible, but in no case later than three months. The case of the petitioner in accordance with roster system and in accordance with the Rules for promotion to the post of Asstt. Director or equivalent post shall he considered by the Departmental Promotion Committee. The case of the petitioner in accordance with roster system and in accordance with the Rules for promotion to the post of Asstt. Director or equivalent post shall he considered by the Departmental Promotion Committee. If the petitioner is found suitable for promotion against one of the posts of Asstt. Director or equivalent post he shall he entitled to all the consequential benefits from the date he is found suitable and is appointed.Costs made easy.Petition allowed. *******