JUDGMENT 1. - Although the reliefs claimed in these two writ petitions are slightly different, the questions raised in the two writ petitions are closely related. Both the writ petitions were heard together and now they are being disposed of by a common order. In order to decide the questions involved in these writ petitions it is necessary to set out the facts of the two cases. In writ Petitions No. 6743/1991, S.K Agrawal and others v. State of Rajasthan and others , the petitioners have stated that they are holding the posts of Assistant Agriculture Research Officer. Earlier this post was known as Research Assistant. All the petitioners have claimed that they are eligible to be considered for promotion to the post of Agriculture Research Officer. However, on account of failure of the respondents No. 1 and 2 to make year wise determination of vacancies in accordance with the existing rules, promotion quota posts are not being filled and at the same time, the Rajasthan Public Service Commission has made selections for appointment by direct recruitment. Petitioners have stated that the Rajasthan Public Service Commission issued Advertisement No. 6/90-91 for filling ten posts of Assistant Agriculture Chemist. Applications were invited by 18.2.91 and the screening test was going to be held on 1.10.91 in pursuance of the said Advertisement. It has been stated that all the petitioners except petitioners No. 1 and 7 have filled the forms even though they do not fulfil the requirement of age limit. The posts advertised by the Rajasthan Public Service Commission relate to the period between 1982 to 1990. After the issue of advertisement the designation of the posts has been changed from one of Assistant Agriculture Chemist to that of Agriculture Research Officer. While the Rajasthan Public Service Commission is proceeding with the selection for recruitment on the post of Agriculture Research Officers, corresponding promotion quota is not being filled even though as per the provisions contained in the Rajasthan Agriculture Service Rules, 1960 (for short the Rules) 60% vacancies are required to be filled by promotion and 40% by direct recruitment and the vacancies are required to be determined year wise in terms of Rule-10 of 1960 Rules. The petitioners have stated that since 19.7.80 only 11 promotion quota posts have been filled and the petitioners who have rendered almost 20 years of service or more or not being given a chance of consideration for promotion because, the promotion quota posts are not being filled. 2. In reply to the writ petition respondents No. 1 and 2 have stated that as per the rules vacancies are required to be determined every year. After the year 1980 vacancies were determined but no vacancies available prior to 1985-86 are lying vacant. It has been stated that the departmental candidates who have not attained the age of more than 40 years are eligible to be considered for selection. In para 12 of the reply respondents No. 1 and 2 have stated that two posts were filled by promotion against the quota of 1987-88. Three posts were filled for the promotion quota of 1988-89, 12 posts have been filled against the promotion quota of Assistant Agriculture Chemist and Agriculture Research Officer against the year 1989-90 and the year 1991-92. On the basis of the averments made in the reply, the respondents have asserted that rules regarding determination of vacancies and the quota have been followed strictly and the petitioners cannot make any grievance against the recruitment being made through the agency of the Rajasthan Public Service Commission. In separate reply filed by them S/Shri Rajendra Kumar Sharma, Mahesh Kumar and Ramesh Chand Chandak have stated that between 1982 to 1985 no vacancies arose in the cadre of Assistant Agriculture Chemist. Vacancies for the years after 1985 have been determined and have been advertised on 21.12.90. A screening test was held on 1.12.91. Result of the screening was published in Dainik Navjoyti, dated 9.1.92. The Commission declared that 15 candidates have passed. Out of the ten vacancies advertised by the Rajasthan Public Service Commission five are of general category vacancies, three are reserved for Scheduled Caste and two for Scheduled Tribes. After publication of the result by the Rajasthan Public Service Commission the State Government had sent requisition to the Commission for 8 more vacancies. Later on one post was reduced and thus, 7 additional vacancies were available before the Commission. Thus, in all 17 vacancies were available to the Commission. The petitioners Nos. 2 to 6 and 8 filled their forms in pursuance in the screening test but, could not succeed. Later on one post was reduced and thus, 7 additional vacancies were available before the Commission. Thus, in all 17 vacancies were available to the Commission. The petitioners Nos. 2 to 6 and 8 filled their forms in pursuance in the screening test but, could not succeed. Those candidates who passed the screening test were interviewed by the Commission on 25/26th March, 1992. Thereafter, the Government issued order dated 1.5.92 and appointed 9 candidates on the recommendations of the Commission. Their posting order was issued by the Director, Agriculture on 8.5.92. These respondents have stated that neither in the determination of vacancies nor in maintaining the quota of direct recruits and promotions any illegality has been committed by the respondents No. 1 and 2. These respondents have also stated that the petitioners who took part in the Screening Test and could not succeed have no right to challenge the selection made by the Public Service Commission. Two petitioners who did not choose to fill the applications forms cannot assail the validity of the selection made by the Public Service Commission. 3. Rajasthan Public Service Commission has filed a separate reply. It has stated that against the Advertisement dated 21.12.90, 315 application forms were received by the Public Service Commission. After initial screening 301 candidates were found eligible to appear in the screening test. The test was held on L12.91 and the result was declared on 7.L92. After the declaration of the result of the screening test in which 15 candidates were found successful, the State Government vide its letter dated 31.1.92 sent additional requisition for 8 vacancies. The number was subsequently reduced to 7 by another letter dated 233.92. Thus, the Commission was requested to send names against 17 vacancies, i.e. 10 from general category, four from amongst Scheduled Caste and 3 from amongst Scheduled Tribes. In all 28 candidates were called for interview. Of them 15 were from the general category, 7 from amongst Scheduled Caste and six from Scheduled Tribes. However, only 15 candidates were found suitable by the Commission and their names were sent to the Government vide letter dated 31.3.92. Under the directions of the Court two additional affidavits dated 16.10.92 and 22.10.92 have been filed by the respondents No. 1 and 2 giving out the details of the number of vacancies against direct recruitment quota and promotion quota for the years 1979 to 1991-92. Under the directions of the Court two additional affidavits dated 16.10.92 and 22.10.92 have been filed by the respondents No. 1 and 2 giving out the details of the number of vacancies against direct recruitment quota and promotion quota for the years 1979 to 1991-92. In the affidavit dated 16.10.90, break-up of vacancies has been mentioned in Para 5. A somewhat different break-up has been given in the affidavit dated 21.10.92. Detailed averments made in the two affidavits will be referred to in the latter part of the judgment. 4. In S.B. Civil Writ Petition No. 3425/1992, the petitioners have also claimed that they are working as Assistant Agriculture Research Officers. They were appointed on these posts after selection by the Public Service Commission. The facts regarding the advertisement of the posts have been mentioned. It has then been stated that after about 11 months of the issue of the advertisement on 21.12.90 a requisition for 8 additional vacancies was sent by the Government. On the basis of the screening test held on 1.12.91 the Commission declared the result indicating names of 15 candidates in the general category. These candidates were called for interviews held on 25th and 26th March, 1992. These petitioners have stated that as per its resolution passed in 1987 the Commission had decided to call candidates upto four times the number of vacancies. However, only 15 candidates were called against five vacancies of the general category. Making the ratio of 1:3 between the posts and number of candidates. It has also been stated that in fact the number of vacancies which became available at the time of actual interview was 18 and therefore at least 39 candidates ought to have been called for interview and even though the petitioners were within the zone of 39 candidates, they were denied equal opportunity in the matter of employment because, they were not called for interview. These petitioners have challenged the action of the Commission in restricting the number of candidates to 15 for the purpose of interview. They have claimed that at the time of interview 8 additional vacancies have not been taken into consideration and this has resulted in exclusion of the petitioners. 5. These petitioners have challenged the action of the Commission in restricting the number of candidates to 15 for the purpose of interview. They have claimed that at the time of interview 8 additional vacancies have not been taken into consideration and this has resulted in exclusion of the petitioners. 5. In its reply, the Rajasthan Public Service Commission has reiterated the facts which have been set-out in its reply to the writ petition No. 6743 of 1991, S.K. Agrawal and others v. State of Rajasthan and others. The Commission has stated that in all 28 candidates were called for interview. Of them, 15 candidates belong to general category, 7 from amongst Scheduled Castes and six from amongst Scheduled Tribes. Regarding its resolution of 1987, the respondent Commission has stated that it has discretion to fix ratio upto three times only. It can call the candidates even less than three times the number of vacancies, but the ratio has never exceeded three times the number of vacancies and the additional requisition sent by the State Government after the advertisement of vacancies will not affect the number of persons to be called for interview. The additional requisition was received much after the original requisition. It was received on 31.1.92 and was amended on 23.3.92. The Commission had made selections in accordance with the provisions of 1960 Rules and particularly Rules 18 and 22. The Commission has already sent list of selected candidates but, on account of stay order passed by the Court appointments have not been made to the full extent. 6. In their reply respondents No. 2 and 3 have stated that initially requisition was sent by the State Government to the Rajasthan Public Service Commission vide its letter dated 29.10.92. Additional requisition was sent for 8 vacancies on 31.1.92. Thus, the total vacancies were 18. One post was subsequently abolished and, therefore, vide letter dated 233.92 the Government wrote to the Commission that additional vacancies shall be treated as 7 only. The selection had been made in accordance with the provisions of 1960 Rules and the Commission is fully entitled to keep names of suitable persons in the reserve list to the extent of 50% of the advertised vacancies. Their names can be recommended to the Government in the order of merit, within six months of the sending of the original list. The Commission forwarded the list of 15 candidates. Their names can be recommended to the Government in the order of merit, within six months of the sending of the original list. The Commission forwarded the list of 15 candidates. Of these 12 persons belong to general category and three are from the reserved category. Appointment orders have already been issued in favour of 9 persons including three belonging to reserve category. The respondents have stated that all selected candidates are necessary parties to the writ petition and without hearing them no order can be passed against them pre-judicially affecting their rights. 7. Respondents No. 4 to 7 have also filed a separate reply to this writ petition. Their reply is on the same lines on which the reply has been filed to the writ petition No. 6743 of 1991. An additional affidavit has been filed by the petitioners on 20.2.92 in which it has been alleged that year wise vacancies have not been determined by the respondents No. 2 and 3 and this has resulted in serious prejudice to the petitioners.On the basis of the pleadings of the petitioners and the respondents in the two writ petitions the following undisputed facts emerge:- (a) The Government had sent a requisition on 29.10.90 to the Rajasthan Public Service Commission for recruitment against ten vacancies of Assistant Agriculture Chemist. (b) The Rajasthan Public Service Commission issued Advertisement No. 6/1990-91 on 21.12.90. (c) The last date fixed for receipt of the applications was 18.2.91. (d) Of the ten vacancies advertised by the Commission, five were of general category, three were reserved for Scheduled Castes and two for Scheduled Tribe candidates. (e) The designation of the posts were changed from Assistant Agriculture Chemist to Agriculture Research Officer(Chemistry). (f) In all 315 applications were received by the Commission. On scrutiny 301 candidates were found eligible for appearing in the screening test. The screening test was held on 1.12.91. The result of the screening test was declared by the Commission on 7.1.92 and it was published in Dainik Navjyoti, dated 9.1.92 and the Roll Numbers of 15 candidates who were to be called for interview were notified in the result. (g) The interviews were held on 25th and 26th March, 1992. 15 candidates of general category were called on the basis of the screening test and 13 candidates belonging to Scheduled Castes and Scheduled Tribes were called for interview. (g) The interviews were held on 25th and 26th March, 1992. 15 candidates of general category were called on the basis of the screening test and 13 candidates belonging to Scheduled Castes and Scheduled Tribes were called for interview. (h) The Commission prepared a list of 15 candidates, (12 general candidates, 2 Scheduled Caste candidates and 1 Schedule Tribe candidate). (i) Before the interviews were held the Government had sent a letter dated 31.1.92 intimating 8 additional vacancies to the Commission. This number was subsequently reduced to 7 vide governments letter dated 23.3.92. (j) On the basis of the result of interview the Commission forwarded the names of selected candidates to the Government on 31.3.92. (k) The appointment order of 9 candidates was issued by the Government on 1.5.92 and posting order was issued by the Director on 8.5.92. (1) Out of 7 petitioners in writ petition No. 6743 of 1991, five had applied for appointment on the post of Agriculture Research Officers. Four petitioners in writ petition No. 3425 of 1992 also applied in pursuance of the advertisement. 8. During the course of hearing Shri Ashok Parihar learned counsel for the Rajasthan Public Service Commission, produced a list purporting to be the merit list of candidates getting marks upto 40% for the post of Assistant Agriculture Chemist. Shri Parihar also stated before the court that the candidates upto 3 times of the advertised vacancies were called for the interview. On the basis of the policy decision of the Commission in all 15 candidates belonging to general category were called for interview against five advertised vacancies and all 13 persons belonging to Scheduled Caste and Scheduled Tribes were called for interview. Shri Parihar also admitted that Annexure-2 showing that no reserve list was prepared by the Commission is correct. 9. In the affidavit dated 16.10.92 filed by Shri Harnath Singh, Assistant Director (Agriculture), a statement of yearwise vacancies for promotion and direct recruitment quota for the post of Agriculture Research Officer (Chemistry) has been given in para-5. In his affidavit dated 22.10.92, Shri Harnath Singh has given out slightly different statement. He has also stated that vacancies against the promotion quota have been filled for the years 1987-88 to 1991-92. In his affidavit dated 22.10.92, Shri Harnath Singh has given out slightly different statement. He has also stated that vacancies against the promotion quota have been filled for the years 1987-88 to 1991-92. Orders dated 18.1.92 for the years 1987-88 and 1988-89, dated 21.4.90 for the years 1989-90 and dated 22.6.91 for the year 1991-92 have been placed on record as Annexures-R/C, R/D and R/E alongwith the additional affidavit. 10. The statements made in para 5 of the affidavit dated 16.10.92 and statement made in paragraph 2(i) (ii) and Para-3 of the affidavit dated 22.10.92 are reproduced below for the purpose of ready reference: "5. That yearwise statement of vacancies for promotion and direct recruitment quota for the post of Agriculture Research Officer (Chemistry) is as under:- S.No. Year Direct recruitment quota Promotion quota 1. 1979 1 Nil 2. 1980-81 to 84-85 Nil Nil 3. 1985-86 1 Nil 4. 1986-87 Nil Nil 5. 1987-88 3 2 6. 1988-89 2 3 7. 1989-90 6 6 8. 1990-91 Nil Nil 9. 1991-92 5 6 The promotion quota posts were filled through D.P.C. as per Annexures R/l to R/3 as already submitted with the reply at pages 47 to 49." 2. That the additional affidavit has been submitted previously by the answering respondents on 16.10.1992 before this Hon'ble High Court and at page No. 2 of the said affidavit the statement of vacancies for promotion and direct recruitment quota for the post of Assistant Agriculture Chemist now Agriculture Research Officer (Chemistry) has been given which is based on the information given by the department. There was some informations to be submitted which is as follows:- (i) That 11 vacancies were available in the Department of the answering non-petitioners. (ii) That seven posts filled by the D.P.C. and four vacancies were for direct recruitment out of four, three were filled by direct recruitment, 1 was left over for direct recruitment which is stated in the additional affidavit previously submitted by the Officer Incharge before this Hon'ble Court. In the year 1987-88 sue vacancies were created and in my previous affidavit dated 16.10.1992 it is stated that 3 posts were of direct recruitment and 2 posts were for DPC whereas it is 4 for the direct recruitment and two were for DPC. In the year 1987-88 sue vacancies were created and in my previous affidavit dated 16.10.1992 it is stated that 3 posts were of direct recruitment and 2 posts were for DPC whereas it is 4 for the direct recruitment and two were for DPC. In the year 1989-90 total 11 new vacancies were created and out of that six were mentioned for direct recruitment in my additional affidavit dated 16.10.92 but actually it was 5 instead of 6 vacancies, as per original record. The total number of vacancies from 1979 till 1992 as stated in my additional affidavit of 16.10.1992 are still remaining the same, no post of direct recruitment have been diverted to DPC quota." 3. That now as per direction given by the Hon'ble Court on 21.10.1992, the statement showing the vacancies from 1979 to till 1992 is as under:- S.No. Year Vacancies Date of vacancies derive R.P.S.C. quota D.P.C. quota 1. 1979 11 13.2.1979 (4) 1 (filled one left over) 7 filled by DPC 2. 1980-81 to 1984-85 Nil Nil Nil Nil 3. 1985-86 1 13.5.1988 1 Nil 4. 1986-87 Nil Nil Nil Nil 5. 1987-88 6 13.5.1988 4 2 filled by DPC 6. 1988-89 5 13.5.1988 2 3 filled by DPC 7. 1989-90 11 Jan.,1990 5 6 filled by DPC 8. 1990-91 Nil Nil Nil Nil 9. 1991-92 11 15.5.1991 5 6 filled by DPC 11. All the parties are in agreement that recruitment to the post of Assistant Agriculture Chemist (re-designated as Agriculture Research Officer) is governed by the provisions contained in the Rajasthan Agriculture Service Rules, 1960 (for short the rules of 1960). These rules came into force on 17.10.60. Rule 4 contains definitions of various terms. Rule 6 refers to the strength of service. Rule 7 deals with initial constitution of the service. Rule 8 defines the sources of recruitment. Rule 9 contains provisions regarding reservation of vacancies for the Scheduled Castes and Scheduled Tribes. That rule also provides for mode of recruitment to the reserved vacancies. Rule 10 pertains to determination of vacancies. Rule 11 deals with nationality. Rule 12 prescribes the age limit and contains various clauses relating to relaxation in the upper age limit. Rule 13 deals with academic qualifications and experience. Rule 14 contains provisions regarding character for direct recruitment. Rule 15 refers to the requirement of physical fitness. Rule 10 pertains to determination of vacancies. Rule 11 deals with nationality. Rule 12 prescribes the age limit and contains various clauses relating to relaxation in the upper age limit. Rule 13 deals with academic qualifications and experience. Rule 14 contains provisions regarding character for direct recruitment. Rule 15 refers to the requirement of physical fitness. Rule 15A authorises the Commission to take action against the candidates who employ irregular or improper means during the course of examination. Rule 16 contains the provision regarding qualifications and experience for promotion. Part IV of the Rules contains procedure for direct recruitment. Rule 18 and Rule 22 which deal with inviting of applications and recommendations of the Commission respectively are of vital importance for deciding real controversy involved between the parties. Part V contains procedure for recruitment by promotion and it is not necessary to give details of these Rules. Rule 27 speaks of the power of the Government to make appointment to the service by the Government on occurring of substantive vacancies. Rules 28 empowers the Government to make urgent temporary appointments. Rule 29 deals with seniority. Rule 30 prescribes the period of probation and the requirement of passing of departmental examination and training. Rule 30A provides for deemed confirmation of regularly recruited persons. Rule 31 empowers the Appointing Authority to take action in case of unsatisfactory progress during probation. Rule 32 deals with confirmation of the probationers. Other rules are not relevant for the purpose of decision of this writ petition. 12. Rule 10 deals with determination of vacancies. It has undergone several changes during the last two decades. As originally enacted, it empowered the Government to determine the vacancies from time to time which were anticipated during a particular period. By notification dated 16.10.1973 the existing rule was substituted and the following rule came to be inserted : "10. Determination of vacancies- (1) Subject to the provisions of these Rules, the Appointing Authority shall determine each year the number of vacancies anticipated during the following twelve months and the number of persons likely to be recruited by each method. By notification dated 16.10.1973 the existing rule was substituted and the following rule came to be inserted : "10. Determination of vacancies- (1) Subject to the provisions of these Rules, the Appointing Authority shall determine each year the number of vacancies anticipated during the following twelve months and the number of persons likely to be recruited by each method. Such vacancies shall be determined again before the expiry of 12 months of the last termination of such vacancies." (2) In calculating the actual number of vacancies to be filled by each method on the basis of the percentage prescribed in column 3 of the Schedule, appended with relevant Service Rules, each Appointing Authority shall adopt an appropriate cyclic order to correspond with the proportion laid down in each of the Service Rules by giving precedence to promotion quota over direct recruitment quota, where this appointment is by direct recruitment and promotion e.g. in the percentage of 75 and 25 respectively, the cycle shall run as follows 1. By promotion, 2. By direct recruitment, 3. By direct recruitment, 4. By direct recruitment, 5. By promotion, 6. By direct recruitment, 7. By direct recruitment, 8. By direct recruitment, 9. By promotion and so on. 13. It was again substituted vide Notification No. F. 5(3) DOP/A- 11/77 dated 6.10.1979. Another substitution has been done by Notification No. F.7(2) DOP/ A-II/8-1, dated 21.12.1981. The last notification dated 21.12.1981 has been made effective from 1.4.1981. This rule as it stands today is reproduced below:- "Determination of vacancies. - (1) (a)- Subject to the provisions of these rules, the Appointing Authority shall determine on 1st April every year, the actual number of vacancies accruing during the financial year. (b) Where a post is to be filled in by a single method as prescribed in the rule of schedule, the vacancies so determined shall be filled in by that method. (c) Where a post is to be filled in by more than one method as prescribed in the rules or schedule, the apportionment of vacancies, determined under clause (a) above, to each such method shall be done maintaining the prescribed proportion for the over- all number of posts already filled in. (c) Where a post is to be filled in by more than one method as prescribed in the rules or schedule, the apportionment of vacancies, determined under clause (a) above, to each such method shall be done maintaining the prescribed proportion for the over- all number of posts already filled in. If any fraction of vacancies is left over, after apportionment of the vacancies in the manner prescribed above, the same shall be apportioned to the quota of various methods prescribed in a continuous cyclic order giving precedence to the promotion quota. (2) The Appointing Authority shall also determine the vacancies of earlier years yearwise which were required to be filled in by promotion, if such vacancies were not determined and filled earlier in the year in which they were required to be filled in. 14. Rules 18 and 22 are also having important bearing on the question raised in these writ petitions and therefore, these two rules are also quoted below "18. Inviting of applications. - Applications for direct recruitment to the post or posts in the Service shall be invited by the Commission by advertising the vacancies to be so filled, in the Rajasthan Gazette or in such other manner as they may deem fit : Provided that while selecting candidates for the vacancies so advertised, the Commission may, (i) if intimation of additional requirement is sent to the Commission before the selection and (ii) if suitable persons are available keep on their reserve list more candidates whose number shall not exceed 50 % of the advertised vacancies. (The names of such candidates may, on requisition, be recommended in the order of merit to the Appointing Authority within six months from the date on which the original hst is forwarded to the Appointing Authority.") "22. Recommendations of the Commission- The Commission shall thereafter, prepare a list of the candidates whom they consider suitable for appointment to the post or posts concerned, arranged in order of preference and forward the same to Government : Provided that the Commission, may to the extent of 50% of the advertised vacancies keep names of suitable candidates on the reserve list. The names of such candidates may, on requisition, be recommended in the order of merit to the Government within six months from the date on which the original list is forwarded by the Commission to the Government." 15. The names of such candidates may, on requisition, be recommended in the order of merit to the Government within six months from the date on which the original list is forwarded by the Commission to the Government." 15. Schedule appended to the Rules of 1960 provides that recruitment to the post of Assistant Agriculture Chemist which falls in Group-B amongst the junior posts be made by promotion and direct recruitment in the ratio of 60:40. 16. Similar provisions exist in other Service Rules which regulate recruitment and conditions of service of persons appointed to other services. 17. A perusal of the scheme of the Rules of 1960 and in particular, Rule 10, Rule 25A (i), Rule 27, Rule 29, Rule 30A and the Schedule show that rule making authority has designedly given great emphasis on the requirement of determination of vacancies every year, consideration of the candidature of the eligible persons with reference to yearly determined vacancies and maintaining proportion between direct recruits and promotees. On account of administrative inactions and lapses promotion quota vacancies were left unfilled by regular appointments for a number of years. The rule making authority felt great concern on account of this situation and in order to remedy the grievance of persons who were eligible for promotion against the vacancies of earlier years, the Rajasthan Services (Recruitment by Promotion Against Vacancies of Earlier Years) Rules, 1972 were enacted. The sole object of enacting these rules was to restore the quota between direct recruits and promotees which had been disturbed on account of the fact that regular appointments against the direct recruitment quota had been made but the Competent Authorities had failed to fill the corresponding number of vacancies in the promotion quota. This intention of the rule making authority is evident from the objects and reasons set out in the Notification dated January 7,1972 by which the rules of 1972 were promulgated. This intention of the rule making authority is evident from the objects and reasons set out in the Notification dated January 7,1972 by which the rules of 1972 were promulgated. These reasons are " Whereas, under most of the service Rules regulating recruitment and conditions of service made by the Governor under proviso to Article 309 of the Constitution of India the method of recruitment is provided for by quota rule of direct recruitment and promotion and number of vacancies in the service anticipated during a particular period of recruitment and the number of persons likely to be recruited by each of such method are to be determined from time to time but, due to various administrative reasons, vacancies to be filled by promotion could not be determined regularly by the competent authority or if they were determined, they could not be filled up by promotion by convening the meeting of the Departmental Promotion Committee while the vacancies against direct quota were filled up in a regular manner which resulted in hardship to the persons who were eligible for being considered against the vacancies of the promotion quota of earlier years and deprivation of appointment by promotion and of appropriate seniority from the day or year the vacancies , of their quota become available." "Whereas, vacancies against the promotion quota occurred in earlier years and eligible persons were also appointed on ad hoc and officiating basis, the Departmental Promotion Committee could not meet due to various administrative reasons in time and it met only in later years, as a result whereof, it selected persons against promotion quota vacancies only from a later date which resulted in hardship to the persons eligible for substantive appointment against promotion quota vacancies of earlier years and who, if appointed against their appropriate vacancies could have claimed seniority over the direct recruits of those years. And whereas, the State Government with a view to strictly follow the quota rule and to increase efficiency in the public administration and for sub-serving the common good have decided that the Departmental Promotion Committee should meet and make recommendations for selection against such vacancies so that Government may make such appointments against such vacancies with reference to appropriate order. Now, therefore, in exercise of the powers ----------- 18. Now, therefore, in exercise of the powers ----------- 18. Rule 2 of these rules empowered the Appointing Authority to determine the number of vacancies which were required to be filled in by promotion specifying the year corresponding to the year in which the vacancies against direct recruitment quota were filled. Thus, the emphasis was on the fact that if in a particular year direct recruitment quota vacancies have been filled, corresponding number of vacancies in the promotion quota of that year should be filled. 19. In Narendra Kumar Sen v. State of Rajasthan, 1979(3) SLR 54 , a learned Single Judge of this Court interpreted Rule 2 of 1972 Rules and held that by invoking provisions of 1972 Rules the promotion quota vacancies could be filled only with reference to the year in which direct recruitment quota vacancies had been filled in the past. That judgment clearly recognises a direct co- relation between the determination of vacancies and the requirement of maintaining quota between promotees and direct recruits as prescribed within the relevant Service Rules. 20. The legislative intendment of maintaining the proportion between direct recruits and promotees in various services has been re-enforced by substituted Rule 10 as it stands today. Rule 10 (l)(c) imposes a mandatory obligation on the Competent Authority to maintain the prescribed proportion for overall number of posts already filled in while making apportionment of vacancies in a post which is required to be filled in by more than one method under the relevant Service Rules. Rule 30A which has been inserted in the Rules of 1960 and various other Service Rules also refers to the requirement of maintaining quota between direct recruits and promotees at the stage of confirmation/deemed confirmation. Rule 29 which deals with determination of seniority clearly lays down that the seniority will be determined with reference to the year of appointment and amongst direct recruits and promotees appointed in a particular year, the promotees shall rank senior to the direct recruits. This rule is based on sound logic. A promotee is a person who renders sufficient length of service on the lower post or in the lower cadre before he gets a chance of shouldering responsibilities of the higher post. A direct recruit is not necessarily a person possessing previous experience of the Government service. This rule is based on sound logic. A promotee is a person who renders sufficient length of service on the lower post or in the lower cadre before he gets a chance of shouldering responsibilities of the higher post. A direct recruit is not necessarily a person possessing previous experience of the Government service. Rule making authority, therefore, gives indirect weightage to the past experience of an existing Government servant by placing a promotee of a particular year above the direct recruit of that year. However, this cannot be read as conferring a right on all promotees to be ranked senior to the direct recruits irrespective of the year of vacancies. The entire scheme of the rules will be frustrated if the seniority of promotees over the direct recruits is not confined to a particular year. The Rajasthan Public Service Commission which ordinarily makes recruitment to the State Service posts is required to discharge multifarious functions and it has become impossible for it to complete the process of selection within a period of one year. That apart even the process of determination of vacancies is not commenced at an appropriate point of time. The various Competent Authorities do not undertake year-wise determination of vacancies for good, bad or indifferent reasons. After the determination of vacancies is done requisition is sent to the selecting body and then the process of selection starts. Sufficiently long time is taken in completion of the process of selection. Even after the selection is made and names are sent to the Appointing Authority, verification of the documents, character etc. consumes substantial time. Therefore, appointment by direct recruitment usually takes place after the particular year for which the vacancies have been determined, is over. Rule 10(1) read with Rule 10(2) and similar other rules have often been interpreted to mean that so far as the promotion quota is concerned, vacancies will have to be determined every year and selection is to be made with reference to such yearly determined vacancies irrespective of the fact that corresponding vacancies of direct recruitment have been filled in that year or not. This approach is wholly erroneous and has led to enormous amount of litigation between direct recruits and promotees in regard to their confirmation, seniority and promotions. 21. This approach is wholly erroneous and has led to enormous amount of litigation between direct recruits and promotees in regard to their confirmation, seniority and promotions. 21. The debate and controversy regarding implementation of quota rule which commenced with S.G. Jai Singhani v. Union of India, 1967(7) SLR 482 has been continuing even after 25 years. Dozens of cases have been decided by the Apex Court in addition to hundreds decided by the High Courts and the various Tribunals. In Jai Singhanis case the Supreme Court observed that quota rule must be adhered to. That decision has been followed in most of the subsequent decisions of the Supreme Court except in few cases like, A. Janardhan v. Union of India, AIR 1983 SC 769 : [1983(2) SLR 113 (S.C.)] , Narendra Chaddha v. Union of India, AIR 1986 SC 638 : [1986(1) SLR 437 (S.C.)] , when on account of special provisions contained in the rules or continued breach of quota rule for years together, the Supreme Court has upheld deviation from quota rule. However, in Sonal Bhimappa v. State of Karnataka, AIR 1987 SC 2359 , their Lordships of the Supreme Court again held that where the recruitment is required to be made from two sources on the basis of quota, fixing of inter se seniority in the gradation list has to be worked out on the basis of quota. In K Shiva Reddy v. State of Andhra Pradesh, AIR 1988 SC 860 : [1988(1) SLR 695 (S.C.) ], their Lordship of the Supreme court reiterated the requirement of strict compliance of quota rule. While taking note of the difficulty which the Administration may face on account of reopening of the question of seniority right from the date of commencement of the Rules, their Lordships gave a specific direction that this must be given effect to from the year 1982. While doing so, the Supreme Court observed "Reopening the question of inter se seniority on the basis of nonenforcement of the rules from the very beginning may create hardship and that would be difficult to mitigate but we see no justification as to why the benefit of the scheme under the rules should not be made available to direct recruits at legist from 1982. When the State Government by rules duly framed prescribe the method of recruitment and put the scheme into operation it had the obligation to comply with it. The explanation offered by the State Government for non-compliance of the requirements of the rules does not at all impress us. We, therefore, direct that as on 31.12.1982, the State Government must ascertain the exact substantive vacancies in the category of Assistant Engineers in the service. On the basis that 37.5% of such vacancies were to be filled up by direct recruitment, the position should be worked out. Promotees should be confined to 62.5% of the substantive vacancies and in regard to 37.5% of the vacancies the shortfall should filled up by direct recruitment. General Rules shall not be applied to the posts within the limits of 37.5% of the substantive vacancies and even if promotees are placed in those posts, no seniority shall be counted." The same principle has been followed in Radha Krishna Reddy v. State of Andhra Pradesh , 1990(1) SLR 136 and P.N.Saxena v. State of U.P., AIR 1991 SC 235 . 22. The above discussion has been necessitated because, the administrative authorities who are required to apply and implement various service rules framed under proviso to Article 309 of the Constitution of India for regulating recruitment to post and conditions of service of persons appointed under the Government of Rajasthan do not have a clear idea and understanding of the scheme of the Rules and the requirement as well as the need for strict compliance of the quota rule. On the basis of the interpretation of the rule regarding year-wise determination of vacancies which were made in Dr. M.P. Agarwal v. State of Rajasthan, 1978 WLN (UC) 383 and which was reiterated in H.M. Hingorani v. State of Rajasthan, 1979 WLN (U.C.) 421 , Maqbool Beg v. State of Rajasthan, 1984 R.L.W. 409 and which view has been affirmed in D.B. Civil Special Appeal No. 136/85, L.N. Maheshwari v. State of Rajasthan, decided on 28.9.1988 , Prakash Chand v. State of Rajasthan, 1990(2) R.L.R ., Dr. Rajeev Mathur v. State of Rajasthan, 1991(1) Western Law Cases P.l , Rajasthan Council of Diploma Engineers v. State of Rajasthan, 1991(1) R.L.R. 727 , it has been thought that the year-wise determination of vacancies and filling of the same has to be made year-wise irrespective of the requirement of maintaining quota between the direct recruits and promotees, even where rules require that a particular post be filled by more than one source of recruitment. I wish to make it clear that Rule 10 of 1960 Rules and similar other rules which have been interpreted in the various decisions referred to hereinabove, undoubtedly show that a mandatory obligation has been imposed on the State Government and other competent authorities to make year-wise determination of vacancies. But, at the same time, provisions contained in Rule 10(1) (c) of 1960 Rules and similar rule in other Service Rules require that the competent authority must maintain the proportion of posts already filled in the past wherever recruitment is made from more than one source. The same principle must be applied in respect of the vacancies which occur in future. Where the recruitment is required to be made from one source i.e. by promotion, the determination of vacancies and filling of the same with retrospectives effect by virtue of Rule 10(2) and 25-A (11-A) and like rules may not present any difficulty. However, where the recruitment is required to be made from more than one source, while making promotions the Competent Authority is under obligation to keep in mind the vacancies already filled and recruitment should be made in such a manner that the proportion prescribed under the Rules between the various sources is strictly maintained. The promotion quota vacancies of previous years can be filled only with reference to those years in which direct recruitment vacancies are filled. If direct recruitment vacancies have not been filled in the earlier years, corresponding number of promotion quota vacancies cannot be filled by taking resort to rules like 10(2) read with Rule 25- A(ll-A) and such like rules. 23. So far as the Rules 18 and 22 are concerned, a perusal of these rules together with rule regarding determination of vacancies show that after the determination of vacancies requisition is to be sent to the Commission and the Commission has to undertake the process of selection by inviting applications and considering the candidature of eligible persons. 23. So far as the Rules 18 and 22 are concerned, a perusal of these rules together with rule regarding determination of vacancies show that after the determination of vacancies requisition is to be sent to the Commission and the Commission has to undertake the process of selection by inviting applications and considering the candidature of eligible persons. Thereafter it is required to prepare the select Hst and forward it to the Government. While doing so, the Commission has to keep the the names of suitable candidates in reserve list upto the extent of 50% of the advertised vacancies. This reserve Hst can be utilised for making appointments on the basis of the requisition which may be made by the Government within six months from the date on which the original list is forwarded by the Commission. The interpretation sought to be placed by Shri Ashok Parihar, Shri B.L. Sharma as also by Shri Ajay Rastogi, who appeared as in intervener on behalf of some of the selected candidates, namely, Mrs. Madhulata Singh and Mrs. Pramila Panwar is that before completion of the process of selection, the Government sends intimation of additional vacancies to the Commission, those vacancies should also be taken into consideration for preparing the main list and the reserve list must be prepared by taking into consideration the originally advertised vacancies as also the vacancies for which intimation is received subsequently. On the other hand, learned counsel for petitioners is the writ petition of Shri A.K. Jain and others, argued that object and purpose of Rules 18 and 22 is one and the same i.e. to authorise the Commission to keep the names of suitable candidates on the reserve list and in no case the reserve list can exceed 50% of the advertised vacancies. 24. In my considered view that argument of the learned counsel for the respondents and interveners cannot be accepted. Although, proviso to Rule 18 and proviso to Rule 22 are worded differently, a perusal of these two rules show that both these provisions empower that Commission to keep names of suitable candidates on the reserve list. The limit upto which the reserve list can extend is 50% of the advertised vacancies. Although, proviso to Rule 18 and proviso to Rule 22 are worded differently, a perusal of these two rules show that both these provisions empower that Commission to keep names of suitable candidates on the reserve list. The limit upto which the reserve list can extend is 50% of the advertised vacancies. Proviso to Rule-18 used the phrase "whose number shall not exceed 50% of the advertised vacancies" and proviso to Rule 22 was the phrase "may to the extent of 50% of the advertised vacancies". Thus, the crucial factor with reference to which reserve list can be prepared is the number of advertised vacancies. In either of the provisos outer limit of preparing the reserve list is 50% of the advertised vacancies and not more. Provisions contained in Rules 18 and 22 have to be read harmoniously. If they are so read it becomes clear that only when requisition of additional vacancies is sent to the Commission that the reserve list can be prepared. More-over these additional vacancies must relate to the year for which vacancies have already been advertised. These provisos cannot be interpreted to mean that if for any reason the Government sends requisition for vacancies of the subsequent years, by treating such vacancies to be additional vacancies, the Commission can take note to those vacancies and then prepare the main list and the reserve list. If the vacancies of subsequent years are allowed to be utilised for making recruitment on the basis of an already issued Advertisement, serious anomalies would result and selection will then be open to charge of violation of equality clause. Constitutional injunctions contained in Articles 14 and 16 provide that in the matter of employment all eligible persons must be given fair chance of consideration. Rules relating to year-wise determination of vacancies and recruitment by inviting applications from eligible candidates are intended to fulfil the obligation of the State to give opportunity of equality in the matter of employment to all eligible persons. Against the vacancies of a particular year which are advertised by the Commission or by other selecting body only those candidates who fulfil the conditions of eligibility at a particular point of time can apply. Others who acquire eligibility at a subsequent point of time cannot enter into the zone of competition. Against the vacancies of a particular year which are advertised by the Commission or by other selecting body only those candidates who fulfil the conditions of eligibility at a particular point of time can apply. Others who acquire eligibility at a subsequent point of time cannot enter into the zone of competition. However, those becoming eligible at a subsequent point of time have a right to compete for the vacancies which became available in subsequent years. If the vacancies which become available during subsequent years are utilised for making appointment on the basis of selection made for already advertised vacancies on the basis of requisition of additional vacancies large number of eligible persons will be deprived of their right of consideration. Their right of equality in the matter of employment will be infringed. In my opinion Rules 18 and 22 must be interpreted in such a manner as to allow the Commission to keep the names of suitable candidates on the reserve hst only as against the vacancies which are advertised. The intimation of additional vacancies can facilitate the task of the Commission in keeping the names of candidates on the reserve hst. The additional vacancies can be intimated if by mistake some vacancies are left out in the process of determination. At the time of yearly determination the competent authority takes into account the vacancies accruing during the year due to retirement or promotion to the next high post vacancies which occur due to new creation or unforeseen contingencies cannot but be treated as vacancies for subsequent year. The Government cannot intimate to the Commission vacancies which become available during the subsequent years as additional vacancies. The vacancies becoming available for subsequent years have to be intimated to the Commission for the purpose of initiating recruitment process afresh. If Rules 18 and 22 are interpreted as authorising the Government to treat the vacancies of subsequent year as additional vacancies and use them for the purpose of selection with reference to vacancies already advertised, the whole scheme of the rules providing for year wise determination of vacancies and filling the same by taking into consideration the quota rule, wherever recruitment is made from more than one source, will be frustrated. Such interpretation has to be avoided because it is a settled principle of interpretation that if two interpretations of a statutory instrument are possible and one of the interpretation results in a situation where the statute itself becomes vulnerable to the charge of unconstitutionality, then such interpretation must, as far as possible, be avoided. 25. The argument of Shri Kuhad, learned counsel for the petitioners, in S.B. Civil Writ Petition No. 6743/91 that the respondents No. 1 to 3 cannot make selection by direct recruitment against the advertised vacancies because corresponding number of vacancies of the promotion quota have not been filled cannot be accepted in the face of the facts which have come on record. A perusal of the statement which has been quoted on page 14 of this judgment shows that promotion quota vacancies have been filled in for the years 1979, 1987-88, 1988- 89, 1989-90 and 1991-92 upto the year 1989-90 18 vacancies have been filled. As against this, only 3 vacancies were filled by direct recruitment in the year 1979. Thereafter, not a single vacancy has been filled by direct recruitment although for maintaining the ratio of 60:40 between promotion quota and direct recruitment quota at least 9 vacancies ought to have been filled upto the year 1989-90 as per Rule 10(l)(c) of 1960 Rules. If total number of (34) vacancies were to be taken into consideration 20.4 vacancies ought to have been filled by promotion and 13.6 by direct recruitment. 10 vacancies which were advertised by the R.P.S.C. in pursuance of the requisition sent by the Government on 29.10.1990 are vacancies which become available in the year 1979, 1985-86, 1987-88, 1988-89 and 1989- 90. Thus, although the respondent State Government has failed to fill the total number of vacancies by promotion as well as direct recruitment, so far the impugned selection is concerned, it is not possible to hold that the Government has violated the quota rule. Rather, the exercise which ought to have been made during previous years has now been made by the respondent Government in discharge of its obligation under Rule 10(l)(c) of 1960 Rules. The only direction which is required to be given is that while making recruitment against the vacancies which have become available in 1991-92 or which may become available in future years, recruitment should be made by strictly maintaining the proportion between promotion quota and direct recruitment quota. The only direction which is required to be given is that while making recruitment against the vacancies which have become available in 1991-92 or which may become available in future years, recruitment should be made by strictly maintaining the proportion between promotion quota and direct recruitment quota. For the year 1991-92 six promotions have been made. In future recruitment the respondent Government must adhere to the ratio of 60:40 between promotees and direct recruits. 26. Coming to the argument of Shri Prahlad Singh, learned counsel for the petitioners in writ petition No. 3425/92 regarding failure of the Commission to call larger number of candidates for interview it must be observed that the Commission has a wide discretion to decide as to how many candidates should be called for interview in proportion to the vacancies for which the Commission has to make selections. The ration of 1:3 which has been adopted by the Commission cannot be considered as wholly arbitrary or unreasonable. This court cannot interfere with the decision of the Commission regarding the proportion of vacancies and number of candidates to be called for interview unless it is shown that the decision of the Commission is vitiated by malice, arbitrariness or is unreasonable. No scientific formula can be devised for determining the proportion between the number of vacancies and the candidates. Since no allegation of malafide has been levelled in the present case and the ratio of 1:3 does not per se appear to be arbitrary, in my opinion the decision of the Commission cannot be faulted. 27. The other branch of the submission of Shri Prahalad Singh, namely, that against the additional vacancies numbering 7, larger number of candidates belonging to the general category should have been called, requires to be considered in the light of the interpretation of the Rules 18 and 22. There may have been some justification in the submission of Shri Singh that larger number of candidates belong to general category should be called if additional vacancies intimated by the Government related to the year 1989-90, but as it has been shown in the statement of the government, the additional vacancies are those vacancies which have become available subsequent to the year 1989-90. Admittedly, the requisition for so-called additional vacancies was sent by the Government to the Commission sometime in the month January 1992 and it has neither been pleaded nor has it been shown that the additional vacancies are the vacancies which were available for the year 1989-90. Since I have already held, the vacancies which become available during subsequent years cannot be treated as additional vacancies, it must further be held that neither the Government was legally entitled to send the requisition of additional vacancies in January 1992 nor was it open to the Commission to take these vacancies into consideration while making its recommendations. Thus, there was no reason for the Commission to have called more than 15 candidates of general category and the argument of the learned counsel for the petitioners that larger number of candidates should have been called cannot be accepted. Such argument could have some validity if the additional vacancies related to 1989-90 or earlier years. Then of course, the Commission would have been required to call at least 24 candidates for preparing main list of 5 and reserve list of 3. As far as this case is concerned the only option open to the Commission was to have prepared a list of five candidates belonging to the general category, three of Scheduled Caste and two of Scheduled Tribes and prepare a reserve list to the extent of 50% of the advertised vacancies keeping in view the vacancies ear-marked for different categories. Of course, in the event of non-availability of the suitable candidates belonging to Scheduled Caste and Scheduled Tribes the same could be filled from amongst the members of general category candidates. 28. Shri Ashok Parihar, learned counsel for the Rajasthan Public Service Commission, had admitted the fact that the Public Service Commission had made recommendations in favour of 15 candidates as shown in Annexure-2 filed with S.B. Civil Writ Petition No. 3425/92. He also agreed that no reserve list was prepared by the Commission. It is thus, clear that although total number of vacancies for which recommendation has been made by the Commission comes to 15 which is equal to the main list and the reserve list which the Commission could prepare on the basis of advertised vacancies (numbering 10) without taking into consideration the vacancies separately indicated for general category and the reserve categories. However, the Commission has apparently taken into consideration the additional vacancies and has made its recommendation in favour of 15 candidates. This is also borne out from the averments made in para 6 of the reply filed by the Commission in writ petition No. 3425/92. Even then it is not understandable as to how the Commission made recommendations in favour of 12 candidates belonging to general category, because, as per the averments made in para 6 of the reply, the Government had sent letter dated 23.3.1992 to the Commission and made recommendation to send names for 17 posts i.e. 10 for general category, 4 Scheduled Caste and 3 Scheduled Tribes. So far as the Commission is concerned, it has to make recommendations strictly in accordance with the number of vacancies intimated to it. In the event of non-availability of suitable candidates belonging to reserve categories, in terms of Rule 9(4) the Government can make appointment from amongst the general category candidates and apply carry forward rule. That has not been done, because, there is no reserve list for filling the vacancies which remained unfilled on account of the non- availability of the candidates belonging to Scheduled Caste and Scheduled Tribes. 29. On the basis of the above discussion, the following conclusions emerge:- (1) Under the scheme of the Rajasthan Agriculture Service Rules, 1960 recruitment is required to be made to the post of Agriculture Research Officer by promotion and by direct recruitment in the ratio 60:40. The Government and its functionaries are under a statutory obligation to strictly maintain the quota between the promotees and direct recruits and if any imbalance has occurred in the past it has to be remedied according to Rule 10(1) (c) of the Rules. (2) Where sources of recruitment to a particular cadre or posts are more than one, promotion quota vacancies of earlier years can be filled only with reference to the vacancies, already filled by direct recruitment and if direct recruitment has not been made in the earlier years promotion quota vacancies cannot be filled. (3) The Rajasthan Public Service Commission or any other selecting body can prepare the reserve list of suitable candidates only to the extent of 50% of the advertised vacancies, intimation regarding additional vacancies has been sent by the government/appointing authority or not. (3) The Rajasthan Public Service Commission or any other selecting body can prepare the reserve list of suitable candidates only to the extent of 50% of the advertised vacancies, intimation regarding additional vacancies has been sent by the government/appointing authority or not. (4) The vacancies occurring after the determination of vacancies cannot be treated as additional vacancies for the purpose of Rule 18 or similar rule in other service rules. Such vacancies will have to be taken into consideration for determination of vacancies of subsequent year. 30. In the present case, the respondent Government has committed an illegality in sending the requisition of 8 additional vacancies to the Commission ignoring the fact that these vacancies pertain to the subsequent years. The Commission has also committed an error in taking into consideration these additional vacancies while making its recommendations for appointment. 31. On the basis of the above discussion the writ petition No. 6743/91 is dismissed. Writ Petition No. 3425/92 is partly allowed. It is declared that the Government had no jurisdiction to send the requisition of 8 additional vacancies for the purpose of consideration on the basis of advertisement issued by the Commission on 21.12.1990. The Commission has also erred in preparing the merit list by taking into consideration these additional vacancies. The Rajasthan Public Services Commission is now directed to re-draw the list of selected candidates. The Commission should then forward the names of selected candidates. The appointment already made by the Government shall however, not be disturbed. They will be subject to the result of writ petition No. 6370/92 pending before the Court. If any candidate is to be appointed on the basis of the revised list, he shall be entitled to seniority accordance with order of merit. Costs made easy.Order accordingly *******