JUDGMENT 1. This writ petition is directed against the Order Annexure-3 dated 5-8-1992 passed by the Rajasthan Civil Service Appellate Tribunal, Rajasthan, Jaipur (for short ‘the Tribunal), whereby the learned Tribunal has held that promotions of Shri Baluram, Ram Rakh and petitioner Tarachand to the Selection Scale of Rajasthan Administrative Service cannot be maintained because they did not have very good or outstanding service record of all the seven years. While allowing the appeals filed by respondents No. 3 to 5, the learned Tribunal has directed the State Govt, to convene Review Departmental Promotion Committee for the year 1987-88 for promotion to the posts in selection scale of the Rajasthan Administrative service in the light of the observations made by it in its judgment. 2. The facts necessary for the disposal of this writ petition briefly stated are : that the petitioner was appointed in the Junior Scale of Rajasthan Administrative Service vide Order Annexure-1 dated 16-8-1974. He was promoted in the Selection Scale of RAS against the merit quota of the year 1987-88 vide Order Annexure-2 dated 21-4-1988. Aggrieved against that order, respondents No. 3 to 5 filed appeals before the learned Tribunal. Of course, the petitioner was impleaded as party to those appeals but as the matter was contested by the State Govt, the petitioner did not feel advised to contest the appeals separately. Those appeals filed by respondents No. 3 to 5 were decided by the learned Tribunal by a common order vide its Order Annexure-3 dated 5-8-1992 as aforesaid. 3. The case of the petitioner is that in the year 1987-88, there were in all 27 vacancies in the cadre of Selection Scale of RAS and as per the provisions of Rajasthan Administrative Service Rules, 1954 (hereinafter to be referred as ‘the Rules’) 50% vacancies were to be filled up by seniority-cum-merit and the remaining 50% vacancies were required to be filled up by merit alone. Thus, 14 vacancies were to be filled up by seniority cum merit and the remaining 13 vacancies were to be filled up by merit quota. He has further submitted that out of these 27 vacancies, 6 were reserved for Scheduled-Castes and 4 were reserved for Scheduled Tribes Candidates. Thus, 14 vacancies were to be filled up by seniority cum merit and the remaining 13 vacancies were to be filled up by merit quota. He has further submitted that out of these 27 vacancies, 6 were reserved for Scheduled-Castes and 4 were reserved for Scheduled Tribes Candidates. According to the petitioner, as sufficient number of SC/ ST candidates were not available against the merit quota and, therefore, candidates belonging to the general category were promoted against the seniority cum merit quota. In the first instance in all, 11 persons were given promotion on seniority-cum-merit basis and 10 persons were given promotions against the merit quota and the recommendations in respect of 6 Officers were kept in a sealed cover. According to the petitioner, for according promotions to the Selection Scale of RAS the DPC met on 16-8-1987 but orders were issued on 21-4-1988. 4. The learned Tribunal has held that SC/ST candidates could not be promoted against the seniority-cum-merit quota in excess of 5 posts and if sufficient number of meritorious candidates of SC/ST were not available then vacancies to that extent should have been filled up by the candidates belonging to General Category and equivalent number of vacancies should have been carried forward as provided by R. 8(4) of the Rules. It was further held that the rejection of the appellants against the merit quota for the year 1987/88 was valid. It was also held that the promotions of the petitioner Tarachand and two others viz., Shri Ram Rakh and Shri Baluram against the merit quota was not in accordance with the provisions of the Rules in as much as the record of all these persons was not outstanding or very good for all the 7 years. 5. According to the petitioner, the impugned order Annexure-3 passed by the learned Tribunal is laconic, perverse and a non-speaking order. His APARs of the year 1986-87 were not considered because they did not attain finality because the DPC met on 16-9-1987. He has submitted that the vacancies are to be determined on the first day of the April of the year of selection and, therefore, record immediately preceding that year should have been considered. His APARs of the year 1986-87 were not considered because they did not attain finality because the DPC met on 16-9-1987. He has submitted that the vacancies are to be determined on the first day of the April of the year of selection and, therefore, record immediately preceding that year should have been considered. He has further submitted that the Judgment of the learned Tribunal suffers from an error apparent on the face of the record in as much as the learned Tribunal has not given any reasons in support of its conclusions. It has simply recorded that the performance of the petitioner for 7 years under consideration i.e. from 1979-80 to 1985-86 is neither outstanding nor consistantly good. According to him, the impugned order passed by the learned Tribunal being subject to judicial review, it should have recorded its reasons. It was contended that the promotion of the petitioner to the selection scale of RAS could not have been set aside at the instance of respondents No. 3 to 5, when the Tribunal itself has held that respondents Nos. 3 to 5 were not meritorious to get promotion against merit quota and, therefore, they have no locus standi to challenge the promotion of the petitioner. It was also contended that the non-consideration of the APARs of the year 1986-87 is a serious error apparent on the face of the record. 6. It was submitted by the petitioner that in case, this Court comes to a conclusion that the finding of the learned Tribunal as regards promotion of the petitioner against the merit quota is not correct, then explanation to clause (c) of sub-rule (11) of R. 28-B of the Rules be struck down being illegal and ultra vires of the Constitution. It was submitted by the petitioner that in case, this Court comes to a conclusion that the finding of the learned Tribunal as regards promotion of the petitioner against the merit quota is not correct, then explanation to clause (c) of sub-rule (11) of R. 28-B of the Rules be struck down being illegal and ultra vires of the Constitution. It was further submitted that the finding of the learned Tribunal that the candidates belonging to Scheduled Castes and Scheduled Tribes, who were not selected against the merit quota could not have been considered against the seniority cum merit quota and those vacancies should have been filled up by General Candidates and equivalent number of vacancies should have been carried forward as provided by R. 8(4) of the Rules is liable to be set aside because R. 8(4) of the Rules cannot be pressed into service, when SC/ST candidates can be promoted against the seniority-cum-merit quota, if not against the merit quota because the whole purpose or object of reservation is to see that the vacancies of the reserved community do not lapse and they get their promotion as per roster. The petitioner has, therefore, prayed that the impugned order of the learned Tribunal Annexure-3 dated 5-8-1992 be declared illegal and be quashed and the appeals filed by respondents Nos. 3 to 5 be dismissed. The explanation to clause (c) of sub-rule (11) of R. 28-B of the Rules be declared ultra vires of the Constitution and be struck down. 7. A reply to the writ petition has been filed on behalf of respondent No. 5 Shri Mahaveer Singh. According to respondent No. 5, respondents Nos. 3 to 5 are senior to the petitioner and, therefore, they are certainly aggrieved by the promotion of the petitioner because it affects their seniority and their consideration for further promotions. As the petitioner’s promotion against the merit quota is illegal, invalid and contrary to the provisions of the Rules, the petitioner has no locus standi to file this writ petition. 8. It was further submitted that in the appeals filed before the learned Tribunal, though the petitioner was a party to those appeals, he did not choose to file any reply and, therefore, he is estopped from filing this writ petition. 8. It was further submitted that in the appeals filed before the learned Tribunal, though the petitioner was a party to those appeals, he did not choose to file any reply and, therefore, he is estopped from filing this writ petition. He cannot take shelter under the plea that since the State Govt, contested the matter, he did not feel advised to contest the appeals. 9. According to respondent No. 5. the DPC has selected 3 Officers belonging to Scheduled Castes and Scheduled Tribes over and above the quota of five vacancies meant for them against the seniority cum merit basis and, therefore, that could not have been done. He has submitted that he has acquired a right to be promoted in the Selection Scale of RAS against the vacancies of the year 1987-88 and, therefore, he is entitled to get his seniority-protected vis a vis the petitioner and other junior Officers promoted illegally. The finding of the learned Tribunal that respondents Nos. 3 to 5 are not fit to be promoted in the Selection Scale of RAS in the merit quota is of no consequence because the proper method of selection was not applied. According to the respondent No. 5 firstly, promotions should have been accorded against seniority cum merit quota and, thereafter, the remaining candidates who were eligible should have been considered against merit quota. The petitioner is very much entitled to be considered for promotion to the selection scale of RAS vis a vis his juniors, who have been placed over his head illegally. 10. It was contended that the requirements of the explanation appended to Clause(c) of sub-rule(II) of R. 28-B of the Rules have to be complied with and unless they are complied with, the petitioner is not eligible to be considered for promotion. The explanation to Clause (c) of sub-rule (11) of R. 28-B of the Rules is absolutely valid and the Judgment of the learned Tribunal is quite correct. The explanation to Clause (c) of sub-rule (11) of R. 28-B of the Rules is absolutely valid and the Judgment of the learned Tribunal is quite correct. According to respondent No. 5, the vacancies of Scheduled Castes and Scheduled Tribes in the merit quota, if they are transferred to seniority-cum-merit quota in case, suitable candidates are not available, then those vacancies should have been filled up from amongst the persons belonging to General category on the basis of seniority cum merit and they could not have been kept reserved for SC/ST candidates and equivalent number of vacancies should have been carried forward as provided by R.8(4) of the Rules and since that has not been done in this case, the whole selection itself is improper and so, the learned Tribunal was quite right and justified in holding that promotions of Shri Baluram, Shri Ram Rakh and petitioner Tarachand cannot be maintained. 11. Reference has been made to certain Rules and Circulars and it has been claimed that firstly vacancies of seniority cum merit quota have to be filled in and then the vacancies of merit quota have to be filled in. In the additional pleas, it has been contended that the writ petition has been filed belatedly i.e. after expiry of three months and that delay has not been explained. 12. On behalf of the State Govt., a reply to the writ petition has been filed and it has been claimed that the DPC was right in not considering the APARs of the year 1986-87 because they did not attain finality as per the Govt. Circular dated 30-3-1976. According to the State Govt., the explanation to Clause (c) of sub-rule (11) of R. 28-B of the Rules is perfectly valid. It was submitted that against the Judgment of the learned Tribunal, the State of Rajasthan has also filed three D.B. Civil Writ Petitions and they are pending and in those writ petitions, stay orders have been passed. 13. A rejoinder to the reply to the writ petition has been filed on behalf of the petitioner, in which, almost all the grounds taken in the writ petition have been reiterated. 13. A rejoinder to the reply to the writ petition has been filed on behalf of the petitioner, in which, almost all the grounds taken in the writ petition have been reiterated. A reply to the rejoinder has also been filed on behalf of the respondent State of Rajasthan wherein it has been contended that the consideration of 7 years APARs has been finally determined by this Court in Randhir Singh’s case (D.B. Civil Writ Petition No. 3273 of 1987, decided on April 9, 1990) . The operation of the Judgment can only be prospective in nature and not retrospective and, therefore, the DPCs proceedings held prior thereto cannot be struck down on that basis. It will govern the DPCs which have decided certain matters between 9-4-1990 and 30-11-1990, when explanation to Clause (c) of sub-rule (11) of R. 28-B of the Rules was revised and modified and it was provided that for purpose of selection for promotion on the basis of merit, no person shall be selected if he does not have ‘outstanding’ or ‘very Good’ record in at least five out of the 7 years preceding the year for which DPC is held. It was further contended that the judgment rendered by their lordships of the Supreme Court in State of Rajasthan v. Rajendra Kumar Godika (Civil Appeal No. 694 of 1993) (reported in 1993 Lab IC 964) will hold the field. 14. We have heard Mr. M. Mridul, Senior Advocate assisted by Mr. M.S. Singhvi and Mr. Saleel Trivedi for the petitioner, Dr. S.S. Bhandawat, Govt. Advocate cum Additional Advocate General, Mr. U.C.S. Singhvi, learned Additional Govt. Advocate and Mr. R.N. Munshi, the learned counsel appearing for respondents Nos. 3 to 5 and have carefully gone through the record of the case. 15. M. Mridul, Senior Advocate assisted by Mr. M.S. Singhvi and Mr. Saleel Trivedi for the petitioner, Dr. S.S. Bhandawat, Govt. Advocate cum Additional Advocate General, Mr. U.C.S. Singhvi, learned Additional Govt. Advocate and Mr. R.N. Munshi, the learned counsel appearing for respondents Nos. 3 to 5 and have carefully gone through the record of the case. 15. It may be stated here that this Court in Randhir Singh’s case (D.B. Civil Writ Petition No. 3273 of 1987, decided on April 9, 1990 by a Division Bench of this Court at Jaipur Bench) has held that the DPC is competent to consider the past 7 years record of a candidate for considering his case for further promotion to the next higher post and in doing so, it is required to give effect to the provisions of explanation appended to Clause (c) of sub-rule (11) of R. 28-B of the Rules, which categorically provides that for purpose of selection for promotion on the basis of merit, Officers with ‘outstanding’ or consistently ‘very good’ record shall only be selected and their names arranged in the order of seniority. It was also held that the consideration of 7 years rule is quite just and proper and the use of word ‘only’ in the above explanation makes it obligatory on the DPC to consider the record of 7 years and promote Officers against merit quota only, if the record of past 7 years is outstanding or consistently very good. In ,that case, the validity of explanation added to Clause (c) of sub-rule(11) of R.28-B of the Rules was not challenged. The validity of Govt. Circular prescribing for consideration of 7 years record was also not challenged. That was challenged in the case of Govind Narain v. State of Raj. (D.B. Civil Writ Petition No. 4204 of 1990, decided on 14-8-1991) . In that case, the validity of the explanation appended to Clause (c) of sub-rule (11) of R. 28-B was challenged. The validity of the explanation appended to Clause (c) of sub-rule (11) of R. 28 B of the Rules as also consideration of 7 years rule was upheld by this Court. Against that decision, a special leave to appeal was filed before their lordships of the Supreme Court bearing No. 15822 & 15086/91 and that came to be dismissed by their lordships vide order dated 8-9-1992. Against that decision, a special leave to appeal was filed before their lordships of the Supreme Court bearing No. 15822 & 15086/91 and that came to be dismissed by their lordships vide order dated 8-9-1992. The SL.P filed against the Judgment of this Court in Randhir Singh’s case (supra) was also dismissed by their lordships of the Supreme Court vide Judgment dated 30-10-1990. Thus, so far as the consideration of past 7 years record is concerned and further, the validity of explanation appended to Clause (c) of sub-rule (11) of R. 28-B of the Rules is concerned, the matter stands concluded by the aforesaid decisions of this Court in Randhir Singh’s case (supra) and Govind Narain’s case (supra). Even, Mr. M. Mridul, Senior Advocate appearing for the petitioner has frankly conceded that challenge to the validity of explanation appended to Clause (c) of sub-rule(11) of R. 28-B of the Rules no more survives. 16. However, it was contended by Mr. Mridul, that the impugned Judgment of the Tribunal is laconic, non-speaking and perverse. According to him, while holding the promotion of the petitioner to the Selection Scale of RAS, which has been recommended by the DPC and approved by the State Govt., being against the Rules, the learned Tribunal has not assigned any reasons. He has further contended that the impugned judgment of the Tribunal being subject to judicial scrutiny, it should have disclosed the particular year, of which, the APARs of the petitioner has not been found to be very good or outstanding, so that the petitioner could meet that case. 17. It is true that the learned Tribunal has not disclosed the year in which the petitioner’s record was not found to be outstanding or very good. However, after looking into the record, the learned Tribunal has recorded a categorical finding that the record of the petitioner along with other promotees viz., Shri Ram Rakh and Shri Baluram has not been outstanding or consistently very good for all the 7 years. Thus, the reasons for setting aside the promotion to the petitioner to the selection scale of RAS has been recorded by the learned Tribunal and, therefore, that order cannot be said to be laconic or perverse. We have been taken through the APARs of the petitioner Tarachand only because the other two promotees viz., Shri Ram Rakh and Shri Baluram are not before us. We have been taken through the APARs of the petitioner Tarachand only because the other two promotees viz., Shri Ram Rakh and Shri Baluram are not before us. There is no doubt that the record of the petitioner for the period under consideration i.e. from 1979-90 to 1985-86 is very good so far as all these years are concerned except the year 1984-85 when the petitioner has been rated as a Good Officer and not a very Good Officer not only by the Reporting Officer but also by the Reviewing Officer. This fact was disclosed to Mr. M. Mridul although the relevant APARs were not shown to him because they form confidential documents. The intelligence of the Officer has been rated to be above average and his drive and leadership has also been rated to be above average. His initiative and creativity has also been rated to be above average. His Capacity to handle people and about judgment has also been rated to be above average. It has been recorded that he is claim, self - controlled and can stand stresses and strains with equanimity. He is patient and tolerant of differences of opinion and temperament. He is not short tempered. He is also not frustrated and cynical. His Output has been rated to be above average. His Organisation and control of work has also been rated to be above average. His quality and dependability for work, cost consciousness and ability to communicate have been rated to be above average but his relations with citizens and their representatives have been rated to be outstanding. His attitude towards the weaker sections of the Society has been recorded as satisfactory. Thus, almost on all important heads, his performance has been rated to be above average except his relations with the citizens and their representatives, which have been rated to be outstanding and, therefore, the Reporting Officer rated him to be a Good Officer and the Reviewing Officer also agreed with him and has categorically recorded that he is a good Officer. Thus, the finding of the Tribunal cannot be said to be either perverse or laconic or non-speaking because out of the past 7 years record under consideration, his performance has been rated to be Good only and not very Good for the years 1984-85. 18. It was contended by Mr. Thus, the finding of the Tribunal cannot be said to be either perverse or laconic or non-speaking because out of the past 7 years record under consideration, his performance has been rated to be Good only and not very Good for the years 1984-85. 18. It was contended by Mr. Mridul that sub-rule (1) of R. 28-B of the Rules provides that as soon as the appointing authority determines the number of vacancies (under R. 9 of these Rules) and decides that a certain number of posts are required to be filled in by promotion, it shall, subject to provisions of sub-rule (9), prepare a correct and complete list of senior-most persons, who are eligible and qualified under these Rules for promotion on the basis of seniority-cum-merit or on the basis of merit to the class of posts concerned. Sub-rule (2) of R.28-B provides that for appointment to the Service by promotion, the eligible persons included in the list mentioned in R. 28 shall be considered. Sub-rule (3) of R. 28-B further provides that no person shall be considered for first promotion in the Service unless he is substantively appointed and confirmed on the lowest post in the Service. According to Mr. Mridul, while according promotions, the DPC is required to consider the record and not the APARs only of the concerned Officers. He has submitted that even explanation to Clause (c) of sub-rule (11) of R. 28-B of the Rules clearly provides that for the purpose of selection for promotion, on the basis of merit, no person shall be selected if he does not have ‘Outstanding’ or ‘very good’ record for all the 7 years preceding the year for which DPC is held. Thus, for considering the case of a person for according him promotion, his entire record has to be considered and not the APARs only. The consideration should not be mechanic but it is to be real and objective. The DPC is required to consider the entire record of a person and thereafter, it has to come to a conclusion whether the performance of the Officer for that particular year is outstanding or very good. 19. It was contended by Mr. The consideration should not be mechanic but it is to be real and objective. The DPC is required to consider the entire record of a person and thereafter, it has to come to a conclusion whether the performance of the Officer for that particular year is outstanding or very good. 19. It was contended by Mr. Mridul that a very high-powered Committee has been appointed to consider the cases of promotion as provided by R. 32 of the Rules which says that in accordance with vacancies determined under the provisions laid down in R.9, appointment to senior scale, selection scale and super-time scale post will be made on the basis of merit and seniority cum merit on the recommendations of a Committee, which shall consist of the following: 1. Chairman, RPSC; 2. Chairman, Board of Revenue, 3. Secretary to Govt, in Supertime scale of the Indian Administrative Service, as may be nominated by the State Govt.; and 4. Special Secretary to Govt, in the Department of Personnel. According to Mr. Mridul, when such a high powered committee considers the proposals regarding promotions then that consideration should not be lightly interfered with. When the Committee is entrusted with the job of consideration of the record then it necessarily means that it has discretion vested in it to consider the entire record and it can consider all pros and cons of the matter and after looking into the APARs and the other relevant record of the Officer, it can come to a conclusion that the performance of a particular Officer is either outstanding or very good for a particular year. It was further contended by him that consideration is not to be mechanical but it has to be objective. In this respect, he drew our attention to a Division Bench decision of this Court in Kuldeep Singh v. U.O.I., 1974 Raj LW 171 . Of course, that was a case where consideration was with regard to imposing of punishment but the learned Judges in para 25 of the judgment have observed that the word ‘consider’ or the process of consideration has within its ambit an examination of circumstances with objectivity rather than a mere subjective conclusion. Essentially, it implies the duty to act judicially. Of course, that was a case where consideration was with regard to imposing of punishment but the learned Judges in para 25 of the judgment have observed that the word ‘consider’ or the process of consideration has within its ambit an examination of circumstances with objectivity rather than a mere subjective conclusion. Essentially, it implies the duty to act judicially. It was further observed that any objective consideration necessarily implies the examination of the two sides of the matter and the duty conferred on the punishing authority under R. 1719 postulates that he must have both sides of the picture before he can adequately discharge the cherous duty of reaching the conclusion, which to the Govt, servant concerned is a matter of vital importance. No doubt, it was a case of consideration for sustaining or not sustaining the order of dismissal or removal or reinstatement, but the learned Judges of the Division Bench have held that the word ‘consider’ or the process of consideration has within its ambit an examination of circumstances with objectivity rather than a mere subjective conclusion and essentially, it implies the duty act judicially. 20. Mr. Mridul further drew our attention to sub-rule (11) (a) of R. 28-B of the Rules also, which provides that the Committee shall consider the cases of all senior most persons, who are eligible and qualified for promotion to the class of posts concerned under these rules. He also drew our attention to sub-rule (11)(b) of R. 28-B of the Rules, which lays down that the Committee shall also prepare a separate list on the basis of seniority-cum-merit and/or on the basis of merit, as the case may be, as per the criteria for promotion laid down in the rules, containing names of persons equal to the number of persons selected in the list prepared under sub-rule (11) (a) of Rule 28-B 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 seniority in the category of posts from which selection shall be made. 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 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 DPC meets, whichever is earlier. Reference was also made to sub-rule (12) of R. 28-B of the Rules, which says that where consultation with the Commission is necessary, the lists prepared by the Committee shall be forwarded to the Commission by the Appointing Authority along with the personal files and Annual Confidential Rolls of all the persons, whose names have been considered by the Committee. Sub-rule(13) of R.28-B of the Rules further provides that the Commission shall consider the lists prepared by the Committee along with other relevant documents received from the appointing authority and unless any change is considered necessary, shall approve the lists. In case, the Commission consider it necessary to make any change in the lists received from the appointing authority, it shall inform the appointing authority of the changes proposed by it. After taking into account the comments of the Commission, if any, the Appointing Authority may approve the lists finally with such modifications, as may, in its opinion, be just and proper and when the appointing authority is an authority subordinate to the Govt., the lists approved by the Commission shall be disturbed only with the approval of the Government. Thus, the Commission is also required to see the Personal Files and Annual Confidential Rolls of the persons, whose names have been considered by the Committee and after considering personal files, APARs and other relevant material objectively, it may come to a conclusion whether the performance of the Officer for that particular year is outstanding or very good. 21. At that stage, Mr. R.N. Munshi, the learned counsel appearing for respondents Nos. 3 to 5 has raised a preliminary objection that such a plea was never raised either before the learned Tribunal or before this Court. It has been raised for the first time now and, therefore, such a plea cannot be allowed to be raised for the first time at the time of the arguments. 3 to 5 has raised a preliminary objection that such a plea was never raised either before the learned Tribunal or before this Court. It has been raised for the first time now and, therefore, such a plea cannot be allowed to be raised for the first time at the time of the arguments. In support of his submission, Mr. Munshi has placed reliance on a decision of their lordships of the Supreme Court in M.S.M. Sharma v. Sri Krishna Sinha, AIR 1959 SC 395 , wherein it has been observed that it would not be right to permit the petitioner to raise question, which depends on facts which were not mentioned in the petition but were put forward in a rejoinder to which the respondents had no opportunity to reply. 22. Our attention was next drawn to a decision of their lordships of the Supreme Court in T.N.R. Reddy v. M.S.T. Authority, AIR 1971 SC 1662 , wherein a new plea or point was not allowed to be raised before Supreme Court as it was not raised before High Court. 23. Our attention was further drawn to a decision of their lordships of the Supreme Court in T.G. Mudaliar v. State of T.N., AIR 1973 SC 974 , wherein it has been held that the question regarding validity of Chapter VI-A of the Motor Vehicles Act on the ground of infringement of Article 19(l)(f) which though open was not raised in earlier writ petitions cannot be raised in subsequent writ petitions. Here, it is a case of filing of the first writ petition and, therefore, this authority has no application to the facts of the present case.Mr. Munshi then drew our attention to a decision of the Orissa High Court in P.J. Appalanarasayya & Sons v. General Manager, S.E. Railway, AIR 1993 Orissa 40 , wherein the plea that licence is irrevocable under Section 60(b) of Easement Act was neither averred in written statement nor raised before authorities below and, therefore, it was held that it cannot be raised for the first time in the writ petition. That was a case where the plea was raised in the writ petition but here it is a case where the plea has not at all been raised in the writ petition and it was also not raised before the Service Appellate Tribunal because the petitioner did not chose to file any reply. Mr. Munshi has, therefore, argued that the petitioner should not be allowed to raise this plea for the first time at the time of arguments. 24. However, it was been contended by Mr. Mridul that the petitioner has raised a pure question of law and that can be allowed to be raised at any point of time. According to Mr. Mridul, it is not a case where the factual foundation of a plea has to be mentioned in the writ petition. He has submitted that when the plea is purely legal then no factual foundation has to be laid in the writ petition. It was, therefore, submitted by Mr. Mridul that decision of their lordships of the Supreme Court in M.S.M. Sharma’s case ( AIR 1959 SC 395 ) (supra) has no application to the facts of the present case. We find great force in the submission of Mr. Mridul so far as this aspect of the matter is concerned. 25. Mr. Munshi next drew our attention to a decision of their lordships of the Supreme Court in M.P. Sugar Mills v. State of U.P., AIR 1979 SC 621 . That was a case based on the pleading of waiver. It was held that it is elementary that waiver is a question of fact and it must be properly pleaded and proved. No plea of waiver can be allowed to be raised unless it is pleaded and the factual foundation for it is laid in the pleadings. In that case, the plea of waiver was not taken by the State Govt, in the affidavit filed on its behalf in reply to the writ petition nor was it indicated even vaguely in such affidavit. It was raised for the first time at the hearing of the writ petition. It was held that was clearly impermissible without an amendment of the affidavit in reply or a supplementary affidavit raising such plea. 26. It was submitted by Mr. It was raised for the first time at the hearing of the writ petition. It was held that was clearly impermissible without an amendment of the affidavit in reply or a supplementary affidavit raising such plea. 26. It was submitted by Mr. Munshi that when the petitioner has not chosen to file any reply before the Service Appellate Tribunal as regards this aspect of the matter, it should be treated that he has waived that plea. In this case, the plea of waiver has not been pleaded as observed by their lordships of the Supreme Court and, therefore, this authority will not help the case of respondents Nos. 3 to 5. 27. Mr. Mridul drew our attention to a decision of their lordships of the Supreme Court in State of Rajasthan v. Karamchand Thappar, AIR 1965 SC 913 , wherein it has been held that the question of law which can be decided op the material on the record of the case can be allowed to be raised at the stage of appeal, by special leave. Our attention was further drawn to a decision of their lordships of the Supreme Court in S.D.G. Pandara-sannidi v. State of Madras, AIR 1965 SC 1578 , it has been held that even if the plea is not raised in the petition or in the affidavit in its support but specifically taken up in affidavit in rejoinder ana the respondent having full notice of it, the rejection of petition by High Court on the ground that the plea was raised for the first time at the time of argument was erroneous. 28. Mr. Mridul also drew our attention to Gurcharan Singh v. Kamla Singh, AIR 1977 SC 5 , wherein it has been held that a pure question of law going to the root of the case and based on undisputed or proven facts could be raised even before the Court of last resort, provided the opposite side was not taken by surprise or otherwise unfairly prejudiced. Of course in that case, the new plea sprang from the common case of the parties and there was nothing which may work injustice by allowance of this contention at the late stage of the Letters Patent Appeal and therefore, it was held that injustice will not be caused to anybody. Here, it has been contended by Mr. Of course in that case, the new plea sprang from the common case of the parties and there was nothing which may work injustice by allowance of this contention at the late stage of the Letters Patent Appeal and therefore, it was held that injustice will not be caused to anybody. Here, it has been contended by Mr. Mridul that the plea is totally legal and it is based on the interpretation of the R. 28-B read with R. 28 of the Rules and, therefore, such a plea can be allowed to be raised at any stage. 29. Our attention was drawn to another decision of their lordships of the Supreme Court in Sunil v. I.T. Commr., Ahemdabad, AIR 1986 SC 368 , wherein it has been held that the new plea that the question whether no profit or gain could be said to arise to a partner (assessee) when he brought his personal asset into partnership firm as his contribution to its capital was neither referred nor argued at any earlier stage. It was held that the point resting on considerations purely of law and being fundamental to question whether capital gain arose to assessee upon such transfer and, therefore, the objection was overruled. 30. Mr. Mridul further took us through a decision of their lordships of the Supreme Court in Assistant Collector of Central Excise, Guntur v. Ramdev Tobacco Company, AIR 1991 SC 506 . That was a case, where the new plea was based on the principle of ‘ejusdem generis’. It was not raised before the High Court. The Supreme Court entertained it in appeal being a pure question of law. 31. Lastly, our attention was drawn to a decision of their lordships of the Supreme Court in Joint Council of Bus Syndicate v. Union of India, AIR 1992 SC 1616 , wherein it has been held that when the points raised are based essentially on construction of statutory provisions and reference to facts are not warranted, such a plea cannot be rejected on technical view that the point was not raised in the writ petition. It was argued by Mr. Mridul that these decisions clinch the issue. The plea is purely based on the interpretation of the provisions of the Section 28-B of the Rules. No factual foundation is required to be disclosed and, therefore, such a plea can be ta ken before this Court. It was argued by Mr. Mridul that these decisions clinch the issue. The plea is purely based on the interpretation of the provisions of the Section 28-B of the Rules. No factual foundation is required to be disclosed and, therefore, such a plea can be ta ken before this Court. We entirely agree with the submission of Mr. Mridul so far as this aspect of the matter is concerned. 32. It was contended by Mr. Mridul that as per the provisions of sub-rule (13) of Rule 28-B of the Rules, the State Government even has the power of modification of the list. The word ‘Modification’ came up for consideration before the learned single Judge of this Court in Dr. Mahendra Kumar Patni v. State (S.B. Civil Writ Petition No. 536/ 1966) decided on 5-5-1987 . The learned Judge while defining the word ‘Modification’ came to the conclusion that it generally means to make the partial changes in to alter or vary without radical transformation. In that case the word ‘Modification’ was used in Rule 24(7) of the Rajasthan Medical Service (Collegiate Branch), Rules. 1962. The learned lodge came to the conclusion that the report of the DPC is only recommendatory and if a man has been screened and found unfit for the appointment by it, it does not mean that Government under Rule 24(7) of the afore-said Rules cannot appoint that person, who has been screened and rejected by the DPC. It was, therefore, argued by Mr. Mridul that when the Government has power to modify the list and the Government and Commission have approved the report of DPC, it cannot be interfered-with by the Tribunal. 33. We have earnestly considered the submission made by Mr. Mridul and we entirely agree with him that the DPC has the power to consider the record objectively and, in doing so, it has to act judicially. The consideration should not be mechanical but has to be real and should be based on certain dates. 33. We have earnestly considered the submission made by Mr. Mridul and we entirely agree with him that the DPC has the power to consider the record objectively and, in doing so, it has to act judicially. The consideration should not be mechanical but has to be real and should be based on certain dates. In our opinion, if the DPC comes to the conclusion while considering the record of a particular Officer that the performance of that Officer for a particular year is very good or outstanding, though the reporting Officer or the Reviewing Officer has reported his performance to be good then in such a case, while differing from the views of the Reporting Officer and the Reviewing authority, the DPC should record its own reasons because that is very much implicit in the explanation appended to Clause (c) of sub-rule (11) of R. 28-B of the Rules, which provides that only that Officer shall be promoted against merit quota, whose record is either outstanding or consistently very good and when that is the criteria laid down for promoting a man or to adjudge his suitability for being promoted against the merit quota and when the validity of such a criteria has been upheld then that criteria cannot be overlooked in any way. 34. We were taken through the Minutes of the Meeting of the DPC, which was held on 16-9-1987 to consider the case for promotion to the Selection Scale of RAS for the year 1987-88. The DPC considered the APARs and other relevant service record of all the Officers falling within the zone of consideration as per the eligibility list enclosed as Annexure-I and it recommended the following Officers suitable for promotion : ON THE BASIS OF SENIORITY CUM MERIT S/SHRI- 1. Shri Rajendra Nath Saxena 2. Shri Abid Ali 3. Shri K.K. Sabikhi 4. M.K. Khanna 5. Bharat Lal Verma (ST) 6. Mool Chand (SC) 7. Suraj Mai Meena (ST) 8. Yad Ram Gauri (SC) 9. Jagdish Prasad (SC) 10. R.P.K. Trivedi 11. Bharat Lal B. Parmar ON THE BASIS OF MERIT ALONE: S/SHRI 1. R.P. Pareek 2. Baluram 3. Ram Rakh 4. Babulal Jaiman 5. Tarachand 6. Rajendra Bhanawat 7. Jagat Prakash Sharma 8. R.P.S. Chouhan 9. Allauddin Azad 10. Mool Chand (SC) 7. Suraj Mai Meena (ST) 8. Yad Ram Gauri (SC) 9. Jagdish Prasad (SC) 10. R.P.K. Trivedi 11. Bharat Lal B. Parmar ON THE BASIS OF MERIT ALONE: S/SHRI 1. R.P. Pareek 2. Baluram 3. Ram Rakh 4. Babulal Jaiman 5. Tarachand 6. Rajendra Bhanawat 7. Jagat Prakash Sharma 8. R.P.S. Chouhan 9. Allauddin Azad 10. Amar Chand Bhatt (SC) From the perusal of the Minutes of the DPC, it is clear that while considering the petitioner Tarachand fit for promotion to the Selection Scale of RAS on the basis of merit, though for the years 1984-85 he was rated to be a Good Officer by the Reporting Officer and the Reviewing Officer, no finding based on any objective consideration has been recorded in this report as to why the record of the petitioner was considered as outstanding or above average for the year 1984-85. The DPC has only given a subjective finding that after considering the record, it recommends certain Officers suitable for promotion. It cannot be termed as an objective finding but it is a mere conclusion and, therefore, such a subjective finding cannot be sustained. It may be stated here that the APARs are the annual performance appraisal of the Officer and this appraisal is for the entire year’s performance of the Officer, which is being recorded by the Reporting Officer and the Reviewing Officer. While considering the cases for promotion, the DPC can also look into the other record along with APARs but in this case, no other record has been brought to our notice, which may disclose that the performance of the petitioner was outstanding or very good in the years 1984-85. We have already recorded the substance of the APARs of the year 1984-85, which rates the petitioner’s ability almost on all fronts except his relations with the Citizens and their representatives as above average. 35. A Division Bench of this Court in Govind Narain's case (D.B. Civil Writ Petition No. 4204 of 1990, decided on 14-8-1991) has categorically held that the above-average is equivalent to good and it cannot be rated as very good. 36. It was submitted by Mr. 35. A Division Bench of this Court in Govind Narain's case (D.B. Civil Writ Petition No. 4204 of 1990, decided on 14-8-1991) has categorically held that the above-average is equivalent to good and it cannot be rated as very good. 36. It was submitted by Mr. Mridul that the petitioner was conveyed appreciation by the Deputy Commissioner, Commercial faxes Department in the year 1984-85 as regards better collection of taxes and the substance of it is mentioned in Part I of the APARs for the year 1984-85, wherein the petitioner has disclosed the appraisal of his own performance. The letter of appreciation written by the Deputy Commissioner (Admn.), Commercial Taxes Department) bearing No. DC-I/1984/85/219 dated 14-5-1985 was shown to us, which only says that in spite of difficulties, the petitioner has been able to achieve the target of collection of revenue. It was also written in that letter that this appreciation is being issued with the approval of the Commissioner. Achieving of target regarding collection of revenue is a normal function of an Officer. It is not beyond normal call of duty as has been claimed by Mr. Mridul. At best, if target has been achieved in spite of difficulties, the performance of the Officer can be rated to be above average, which is equivalent to good and not very Good. Moreover, such a certificate cannot be considered by the DPC as per instructions issued by the Govt, of Rajasthan relating to the Drawal and submissions of APARs of the Govt. Servants. Part II of these instructions provides which documents have to be placed in the Annual Performance Appraisal Dossier and it clearly provides that so far as the Officers of the State Services are concerned, their APARs Dossiers have to be accompanied by the letters of appreciation issued by the Govt, to its employees. It further provides that the letters of appreciation issued by the Head of Department can be placed in the Annual Performance Appraisal Dossier, when they relate to the subordinate Ministerial/Class IV Services. The petitioner being a member of the State Service, the letter of appreciation issued by the Deputy Commissioner (Admn.), Commercial Taxes Department with the approval of the Commissioner cannot be considered to be a letter issued by the State Govt, and, therefore, so far as the petitioner is concerned and that appreciation is of no avail. The petitioner being a member of the State Service, the letter of appreciation issued by the Deputy Commissioner (Admn.), Commercial Taxes Department with the approval of the Commissioner cannot be considered to be a letter issued by the State Govt, and, therefore, so far as the petitioner is concerned and that appreciation is of no avail. No other record has been brought to our notice which may show that though while appraising the annual performance of the petitioner for the year 1984-85, the Reporting Officer as well as the Reviewing Officer have rated the petitioner as a Good Officer but after perusing the APARs as also other record, the DPC has come to the conclusion that the annual performance of the petitioner during the year 11984-85 was that of a very Good Officer. As stated above, while differing from the findings of the Reporting Officer as also the Reviewing Officer, the DPC must record reasons as to why it considers the performance of the petitioner to be outstanding or very good in the year 1984-85. Such a finding has to be recorded in an objective and judicial manner because that is subject to judicial scrutiny. Normally, when APARs and other record is categorised as outstanding or very good then the list has to be prepared only on the basis of seniority and that categorisation has to be done objectively and judicially on the basis of the record as held by this Court in Kuldeep-singh's case (1974 Raj LW 171) (supra). Mere subjective conclusion will not help. 37. It is true, as held by their lordships of the Supreme Court in Khalid Hussain v. Commr. & Secy., Govt, of T.N., Health Department, AIR 1987 SC 2074 , that if there are no guidelines to judge the comparative eminence of sportsmen either at the National or International or State level then selection has to be made on the basis of academic merit. It is also true that in C.O.M., Atarra post Graduate College v. V.C. Bundelkhand University, AIR 1990 SC 2056 : (1990 Lab IC 1674) , their lordships of the Supreme Court have held that the Supreme Court cannot reappraise factual circumstances considered by Vice-Chancellor. 38. As stated above, in this case, the. It is also true that in C.O.M., Atarra post Graduate College v. V.C. Bundelkhand University, AIR 1990 SC 2056 : (1990 Lab IC 1674) , their lordships of the Supreme Court have held that the Supreme Court cannot reappraise factual circumstances considered by Vice-Chancellor. 38. As stated above, in this case, the. Reporting Officer and the Reviewing Officer have rated the petitioner as a Good Officer, but the D.P.C. without recording its reasons has rated him as a very Good Officer. It has not given any reasons to come to the conclusion that though the Reporting Officer as well as the Reviewing Officer have rated the petitioner to be a Good Officer, but in its opinion, the petitioner is being rated as a very Good Officer and, therefore, the finding recorded by the DPC cannot be sustained. 39. It was next contended by Mr. Mridul that a finding of fact cannot be lightly interfered with. In support of this submission, he has placed reliance on a decision of their lordships of the Supreme Court in Mithilesh Kumari v. Prem Behari Khare, AIR 1989 SC 1247 . That was a case, where the concurrent finding of learned lower Court was not changed as regards Benami transaction. The Court felt that it will not interfere with this finding which is a concurrent finding. Here, no factual foundation is there as to how annual performance of appraisal of the petitioner which has been rated to be good by the Reporting Officer as well as the Reviewing Officer, has been rated as very good or outstanding and, therefore, this authority will not help the case of the petitioner. 40. Our attention was next drawn to a decision of the Gujarat High Court in J.C. Parikh v. S. Patel University, (1981) 3 Serv LR 44 : (AIR 1981 Gujarat 248) . That was a case where judicial review over selection for an academic post at the University level was under challenge. The learned Judge observed that the Court should be slow to interfere if the decision of selection Committee is not arbitrary or mala fide. In this case, as per the provisions of the Rules, a person can only be selected on the basis of merit, if his past 7 years record is outstanding or consistently very good. The learned Judge observed that the Court should be slow to interfere if the decision of selection Committee is not arbitrary or mala fide. In this case, as per the provisions of the Rules, a person can only be selected on the basis of merit, if his past 7 years record is outstanding or consistently very good. Of course, that is not the eligibility condition but that is a suitability condition and that condition has to be complied with before a man is found fit for promotion against the merit quota. Of course, it was contended by Mr. Munshi that it is an eligibility condition. As stated above, a person can be considered on the basis of zone of consideration as provided by R. 28 of the Rules and hence, the eligibility condition is the requirement of R. 28 of the Rules i.e. the zone of consideration and the above condition is a condition to adjudge suitability of a person for his promotion and that suitability condition has to be complied with before granting promotions. In this view of the matter, the order of the learned Tribunal has to be sustained. 41. It was next contended by Mr. Mridul that the promotion of the petitioner to the selection scale of RAS, which has been approved by the DPC as also the State Govt, could not have been set aside by the learned Tribunal. In this respect, he has placed reliance on a decision of their lordships of the Supreme Court in Dr. M.V. Nair v. Union of India, (1993) 2 SCC 429 : (1993 Lab IC 1111) . That was a case where the person who challenged the promotion was not eligible because he did not fulfil the condition of 5 years service on posts in the scale of Rs. 500-2000 or equivalent under the recruitment rules. That was the eligibility condition which too was also not fulfilled by the petitioner. In those acts, their lordships held that the Tribunal was not justified in setting aside the appointment when respondent himself admitted himself to be ineligible and prayed for the relaxation of the eligibility conditions. Here, it is not the case of the petitioner that the respondents, who were senior to him were not entitled to be considered against the merit quota. Here, it is not the case of the petitioner that the respondents, who were senior to him were not entitled to be considered against the merit quota. They were very much entitled to be considered for promotion against merit quota as also against seniority cum merit quota. It is not a case of filing of an appeal or writ by ineligible persons. The appeals filed by the respondents before the Tribunal were based on three fold grounds: firstly that if suitable persons were not found available for selection against SC/ST quota than those vacancies could have been transferred to the seniority cum merit quota and should have been filled in by general candidates and not by SC/ST candidates alone and those SC/ST vacancies should have been carried forward for three years as per R. 8(4) of the Rules; secondly that their record also is very good and therefore, they should be considered against merit quota; and thirdly that after the transfer of vacancies from merit quota on account of non-availability of suitable SC/ST candidates, they should have been considered against those vacancies on the basis of seniority cum merit. According to the respondents, R. 33 of the Rules categorically provides that if a man is promoted in a higher scale prior to his seniors in the lower scale then the promotion of such a man will certainly affect the seniority of the persons who are admittedly senior to him in the lower scale. In this case, admittedly, respondents Nos. 3 to 5 are senior to the petitioner in the senior scale of RAS and when the promotion of the petitioner against the merit quota is against the Rules, the respondents are certainly going to be prejudiced by this promotion and they can challenge it because it is going to adversely affect their seniority and hence, they are aggrieved persons. In these circumstances, Dr. M.V. Nair’s case (1993 Lab IC 1111) (SC) has no application to the facts of the present case. 42. In these circumstances, Dr. M.V. Nair’s case (1993 Lab IC 1111) (SC) has no application to the facts of the present case. 42. On the basis of the decision of their lordships of the Supreme Court in Umakant Saran v. State of Bihar, AIR 1973 SC 964 : (1973 Lab IC 229) , it was contended that in order that mandamus may issue to compel the authorities to do something, it must be shown that the statute imposes a legal duty and the aggrieved party had a legal right under the statute to enforce its performance. That was also a case where at the time when the State Govt, had taken the decision to fill up the posts, the appellant had not even completed the minimum period of teaching experience and while the respondents had done so and, therefore, the petitioners were ineligible persons. Here, the respondents are very much eligible for consideration and they are aggrieved persons because the petitioner’s promotion will adversely affect their seniority and consideration for future promotion and, therefore, it cannot be said that their appeals could not have been entertained. It is a different matter that after consideration of the record, the Tribunal came to the conclusion that the respondents are not entitled to be promoted against the merit quota. That is a decision after scrunity and determination but that does not affect their entitlement to file the writ petition/Appeals. 43. It is no doubt true that notice need not be given to senior who is proposed to be passed over by the DPC as held by their lordships of the Supreme Court in Union of India v. M.L. Capoor, AIR 1974 SC 87 : (1974 Lab IC 338) but that does not disentitle those persons who have been superseded to come to the Court and say that those who have been promoted have been wrongly promoted ahead of them. They are aggrieved persons and they can challenge such promotions. 44. Reference has been made to certain decisions about the merit quota and specially to the decision of their lordships of the Supreme Court in Guman Singh’s case, 1971 Serv LR 799 : (1972 Lab IC 1295) wherein merit formula was considered and how the decisions of the Supreme Court should be applied but they are not very much relevant. 44. Reference has been made to certain decisions about the merit quota and specially to the decision of their lordships of the Supreme Court in Guman Singh’s case, 1971 Serv LR 799 : (1972 Lab IC 1295) wherein merit formula was considered and how the decisions of the Supreme Court should be applied but they are not very much relevant. The only controversy that requires decision of the Court is that when validity of consideration 7 years record has been upheld and when explanation appended to clause (c) of sub-rule (11) of Rule 28-B of the Rules has also been upheld in Govind Narain’s case (supra), whether D.P.C. had power to adjudge performance of an officer for the year 1984-85 to be very good or outstanding, although the Reporting Officer and the Reviewing Officer had rated him to t good only. We have already held that the Departmental Promotion Committee has power to consider the APARs as well as other relevant record of the officer and can come to a positive finding objectively in the judicial manner that the performance of the Officer is good, very good or outstanding but if they differ from the Reporting Officer or the Reviewing Officer then they have to record their reasons for doing so, so that the Courts may scrutinise them and come to a finding, whether that consideration is right or wrong, sound or perverse, bona fide or mala fide. Unless that is done, such subjective consideration will not be of any avail. Much stress has been laid on the fact that promotion was granted by a very high powered DPC and the Commission as well as the Govt, has a power to alter or modify that list and, therefore, when that promotion has been approved by the Commission and the Govt, then it should be sustained. We are unable to accept this contention. It is not the case where the Commission or the Government has altered or modified the list. If the Rules provide a particular suitability condition then that condition has to be complied with unless the Rules provide for any relaxation of that condition and if the relaxation has been made it should be made specific in the order that such a relaxation power permitted under the Rules has been exercised by the Competent Authority. 45. If the Rules provide a particular suitability condition then that condition has to be complied with unless the Rules provide for any relaxation of that condition and if the relaxation has been made it should be made specific in the order that such a relaxation power permitted under the Rules has been exercised by the Competent Authority. 45. We may also state here that much will not turn upon the argument that the APARs of the year 1986-87 should have been considered because that will not change the context as in the APARs of the year 1984-85 of the Officer has been rated as good and not very good. That period comes within the consideration period of 7 years. Even if APARs of the year 1986-87 is considered that will not change the fate of the decision rendered by the Tribunal. In this view of the matter, this contention is not sustainable. 46. In the result, we find no force in this writ petition and it is hereby dismissed with no order as to costs.Petition dismissed. *******