JUDGMENT 1. 1. This writ petition, under Article 226 of the Constitution of India and in the matter of Rajasthan Agriculture Service Rules, 1960 read with Article 14 and 16 of the Constitution of India, was field by the petitioner who retired from Government service on 31st July, 1988 from the post of Additional Director, Agriculture (Extension) in the pay scale of Joint Director in terms of order dated 13th July, 1981 read with order dated 5.1.1987 Annex-1 and 2 respectively. The facts, as briefly stated, are that the petitioner discharged his duties as Additional Director, Agriculture (Extension) right from 13.7.81 till the date of his retirement i.e. 31.7.88 and it is stated that he was discriminated by the Department in the matter of fixation of pay-scale since the post of Additional Director, Agriculture (Extension) is a post higher to that of Joint Director, Agriculture and the grievance of the petitioner is that notwithstanding the fact that he discharged his duties , on the post of Additional Director continuously for a long stretch of time from .13.7.81 to 31.7.88 as stated above, the petitioner was paid the salary of lower post i.e. of Joint Director by the respondents which has resulted in violation of the principles of 'equal pay for equal work' enshrined under Article 39 of the Constitution of India in as much as the petitioner has been discriminated by the respondents in violation of Articles 14 and 16 of the Constitution of India. 2. Shri R.C. Joshi, learned Counsel for the petitioner, during the course of hearing has stated at the bar that there was no justification for the respondents in not paying the petitioner the salary for the post of Additional Director (Extension) for the aforesaid period, since he had discharged the duties of Additional Director (Extension) all through but he has been paid the salary of a lower post of Joint Director. 3. It will be pertinent to refer the pay-scale of Joint Director and that of Additional Director as tabulated herein below:- From July 81 to 31.8.81 1700-60-1760-70-1900-75-2200. From 1.9.81 to 31.8.86 2100-75-2400-100-2500. From 1.9.86 to the date of retirement. 3150-100-3650-125-4400-150-4700. 4. 3. It will be pertinent to refer the pay-scale of Joint Director and that of Additional Director as tabulated herein below:- From July 81 to 31.8.81 1700-60-1760-70-1900-75-2200. From 1.9.81 to 31.8.86 2100-75-2400-100-2500. From 1.9.86 to the date of retirement. 3150-100-3650-125-4400-150-4700. 4. It has been further contended by the learned Counsel for the petitioner that the petitioner had discharged duties of Additional Director which was a duly sanctioned post in the World Bank Scheme as the head of extension discipline for executing the scheme in the State and the entire responsibility was entrusted to the petitioner while handing over the charge of this post as would appear from the documents Annex-3 and 4 dated 5.2.82 and 13/14.10.82 respectively issued by the Dy. Secretary to the Government, Agriculture to the Director, Agriculture. 5. Since the petitioner was unable to get the relief he had submitted various representations for proper fixation of his pay-scale as admissible for the post of Additional Director (Extension) and had also personally met the concerned functionaries of the Department. The petitioner has placed on the record the various representations from Annex-8 to 13. It is apparent from the perusal of the representation dated 20th February, 1988, which was submitted by the petitioner before the Director, Agriculture, who in turn, marked this representation to the petitioner himself with the note "needful is being done" which in fact is a solemn assurance conveyed to the petitioner by the Director that something positive would emerge in favour of the petitioner in this regard. It has been further contended by Shri Joshi, learned Counsel for the petitioner that despite above, no relief whatsoever has been given to the petitioner till date as a consequence of which the petitioner was constrained to file the present writ petition in this Court on 11.12.89. 6. A perusal of Annexure-17 which is a certificate issued by the Director, Agriculture Under Rule 250(C) of R.S.R. reveals that the appointment of the petitioner as Additional Director was on officiating basis while holding the lower post of Joint Director in substantive capacity and it was not against leave vacancy in additional to the duties of his own post i.e. Joint Director (Extension), Agriculture. A perusal of Annex-16 which is a letter dated 24.5.88 issued by the Director, Agriculture to the Secretary to Government of Rajasthan, Agriculture (Gr.I) is regarding sanction for grant of pension in favour of the petitioner and for onward transmission to the Chief Pension Officer, Rajasthan, Jaipur, wherein the designation of the petitioner is mentioned as Additional Director, Agriculture (Extension) Department. 7. During the course of hearing Shri R.C. Joshi, learned Counsel for the petitioner, in support of his contentions has placed reliance on Rules 10 and 28 of the Rajasthan Agriculture Service Rules, 1960 (hereinafter to be referred as 'the Rules of 1960'). While Rule 10 deals with determination of vacancies by the appointing authority as on 1st April every year (during the financial year), Rule 28 of the Rules of 1960 deals with the cases of urgent temporary appointments. The aforesaid Rules 10 and 28 of the Rules of 1960 are reproduced herein below for the sake of ready reference: "10. 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 occurring during the financial year. (b) Where a post is to be filled in by a single method as prescribed in the rule or 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. If any fraction of vacancies is left over, after apportionment of the vacancies in the manner prescribed above, the same shall be apportioned continuous cyclic order giving precedence to the promotion quota. (2) The Appointing Authority shall also determine the vacancies of earlier years, year wise 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. "28. (2) The Appointing Authority shall also determine the vacancies of earlier years, year wise 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. "28. Urgent temporary appointment: (1) A vacancy in the service which cannot be filled in immediately either by direct recruitment or by promotion under the rules may be filled in by the Government or by the Authority Competent to make appointment, as the case may be, by appointing in an officiating capacity thereto an officer eligible for appointment to the post by promotion or by appointing temporarily there to a person eligible for direct recruitment to the Service, where such direct recruitment has been provided under the provisions of these Rules. Provided that such an appointment will not be continued beyond a period of one year without referring the case to the Commission for concurrence, where such concurrence is necessary, and shall be terminated immediately on its refusal to concur. Provided further that in respect of the Service or a post in the Service for which both the above methods of recruitment have been prescribed, the Government or the Authority competent to make appointment, as the case may be, shall not, save with the specific permission of the Government in the Administrative Department concerned in respect of other services, fill the temporary vacancy against the direct recruitment quota by a whole-time appointment for a period exceeding three months, otherwise than out of persons eligible for direct recruitment and after a short-term advertisement. (2) In the event of non-availability of suitable persons, fulfilling the requirements of eligibility for promotion, Government may, not with standing the conditions of eligibility for promotion required under Sub-Rule (1) above, lay down general instructions for grand of permission to fill the vacancies on urgent temporary basis subject to such conditions and restrictions regarding pay and other allowances as it may direct. Such appointments shall, however, be subject to concurrence, of the Commission as required under the said Sub-Rule. 8. Such appointments shall, however, be subject to concurrence, of the Commission as required under the said Sub-Rule. 8. A perusal of the above provisions of the Rules of 1960 reveals that the compliance to proviso to Rule 28 is a mandatory by the concerned Department in as much as it is stipulated there in that such an appointment will not be continued beyond a period of one year without referring the case of the concerned appointee to the Commission for its concurrence, where such concurrence is necessary and shall stand terminated immediately on its refusal to concur. Further Rule 10 of the Rules also casts a statutory duty on the appointing Authority to determine actual number of vacancies occurring during every financial year by 1st April of the said year and also to make year wise determination of vacancies which were required to be filled in by promotion every year, if they remain unfilled up in the earlier preceding year in which they were required to be filled in. 9. Perusal of the case file reveals that the aforesaid mandate cast upon the Appointing Authority by the statute has been violated in this case. 10. During the course of hearing I had specifically put this question to the learned Dy. G.A. Shri Paker Farooq as to what were the reasons which prevented the Department from referring the case of petitioner to the Commission for obtaining its concurrence since the services of the petitioner had been continued on the post of Addl. Director (Extension) beyond a period of one year as stipulated in the aforesaid Rule from 13.7.81 till date of his retirement i.e. 31.7.88. No justification has been assigned by learned Dy. G. A. as to what were the reasons for (i) not convening DPC for a long spell of time as referred to above, till date of retirement of petitioner and; (ii) what were impelling reasons which prevented respondents from not complying with the requirement of Rules 10 and 28 of the Rules of 1960. From the perusal of the official record which has been summoned by the Court, I find no answer to the above referred quarries. It is also pertinent to refer to Rule 25 of the Rules of 1960, which deals with the revised criteria eligibility and procedure for promotion to junior, senior arid other posts encadered in the Service. Sub-Rule (3) of Rule 25. It is also pertinent to refer to Rule 25 of the Rules of 1960, which deals with the revised criteria eligibility and procedure for promotion to junior, senior arid other posts encadered in the Service. Sub-Rule (3) of Rule 25. A provides as under:- "25(03). 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. After first promotion in the Service, for subsequent promotion to higher posts in the Service, a person shall be eligible if he has been appointed to such post from which promotion is to be made after selection in accordance with one of the methods of recruitment under any Service Rules promulgated under proviso to Article 309 of the Constitution of India. Provided that for first promotion in the Service if number of persons substantively appointed and confirmed on the lowest post, equal to the number of vacancies are not available then persons who have been appointed to the lowest post in the Service after selection in accordance with one of the methods of recruitment prescribed under these Rules shall also be eligible if they fulfil other conditions of eligibility. 11. It is clear from the above that no candidate shall be considered for first promotion in the Service unless he is substantively appointed and confirmed on the lower post in Service and after first promotion In Service for subsequent promotion to the higher post in Service, such candidate shall be eligible only if he is eligible to be appointed, to such posts from which promotion is to be made after selection in accordance with one of the methods of recruitment under any Service Rules for promotion promulgated under Article 309 of the Constitution of India. 12. 12. In the instant case the petitioner already stood confirmed as Joint Director, Agriculture against the substantive post and it was only subsequently that he was appointed in officiating capacity as Additional Director (Extension), Agriculture which could not be continued beyond the period of one year without obtaining concurrence of the Commission and after the expiry of one year period a proper selection had to be made determining the eligibility of the petitioner for the promotional post of Additional Director (Extension), Agriculture, which could only be done by a duly constituted D.P.C. after selection in accordance with Sub-Rule (3) of Rule 25-A of the Rules of 1960, as referred to above and which has not been done in the present case. It is thus clear from the perusal of the aforesaid Rules that no officer shall be considered for promotion on the basis of the regular selection on the next higher post unless he is substantively appointed and confirmed on the lower post. 13. In support of his contentions advanced at the bar Shri Joshi, learned Counsel for the petitioner has placed reliance upon the D.B. judgment of this Court in the matter of Gopal Naraian Singh v. Rajasthan State Co-operative Bank Ltd. and Anr. in DB Civil Writ Petition No., 2947/87 decided on 28th April, 1988 , which is stated to be identical case. In the aforesaid D.B. matter the case of the petitioner was that though he had been holding the post of Dy. Manager substantively with the respondent-Bank, but he was made to discharge his duties on the post of Regional Manager from the date mentioned therein. The grievance of the petitioner in the aforesaid case was that although he performed the duties of the post of Regional Manager for a long spell of more than 3 years, he had been paid the salary in the pay-scale meant for the lower post of Deputy Manager, though in fact he was entitled to be paid his salary in the grade meant for the post of Regional Manager in the revised pay-scale on the principle of 'equal pay for equal work' as enshrined in Article 39(d) read with Article 14 of the Constitution of India. In the said decision, this Court while allowing the writ petition held the petitioner to be entitled to the pay-scale meant for the the post of Regional Manager with effect from the due date and further directed to payment of arrears to the petitioner including the pay in the said grade while working as Regional Manager. During the course of hearing I have been informed that the Department had preferred an SLP against the aforesaid D.B. judgment and the said SLP was dismissed by the Apex Court thereby affirming the D.B. judgment of this Court. 14. In the reply to the writ petition filed on behalf of the respondents, the respondents have admitted that the petitioner had worked as Additional Director (Extension), Agriculture in his own pay-scale of Joint Director from 13.7.81 to the date of retirement i.e. 31.7.88. The respondents have however denied the entitlement of the petitioner for payment of dues as admissible in the pay-scale of Additional Director on which post the petitioner had already performed his duties during the period 13.7.81 to 31.7.88, as referred to above, on the ground that no promotion was given to the petitioner from the post of Joint Director to that of Additional Director and he was only working on ad hoc basis on the said post and it was not a regular selection. However, it has not been disputed by the respondents that the petitioner had performed his duties on the post of Additional Director during the aforesaid period while holding the substantive rank of Joint Director. In support of his contention Shri Paker Farooq, learned Dy. G.A. for the State has placed reliance upon the judgment of the Apex Court in the matter of Ramakant Shripad Sinai Advalpalkar v. Union of India and Ors., AIR 1991 Supreme Court 1145 , wherein the question which had arisen for the consideration of the Apex Court was as to whether where an officer who was substantively holding a lower post was asked to perform the duties on a higher post, whether it can be treated as a promotion ? The Apex Court held that in such cases the concerned officer is entitled to get the salary of the post on which he has worked by way of stop-gap-arrangement but since the officer concerned continues to hold a substantive post while discharging the duties on a higher post it cannot be considered to be a promotion. It was further held that the said officer would continue to be treated as "absorbed employee" only in relation to the post he held immediately prior to the post which he was holding since he has been working on the higher post on officiating basis by way of stop-gap-arrangement and, therefore, no lights, equalities or expectations could be built upon it. 15. After hearing the learned Counsel for the parties and examining the rival claims and contentions advanced at the Bar and also on perusal of the relevant documents tendered on the record, I am of the considered opinion that since the respondents have faulted for non-compliance of Rules 10, 25 A and 28 of the Rules of 1960 and since the appointment of the petitioner on the post of Addl. Director (Extension), Agriculture, who was then holding the substantive post of Joint Director, such appointment cannot be considered to be a promotion in absence of regular selection by a duly constituted D.P.C. and since it was only by way of stop-gap-arrangement though the services of the petitioner as Addl. Director on ad-hoc basis continued beyond a period of one year without concurrence of the Rajasthan Public Service Commission, the petitioner can at the most be held entitled to the payment of dues and salary in the grade of Additional Director (Extension), Agriculture for the period he held the said post i.e., from 13.7.81 till the date of his retirement i.e. 31.7.1988. 16. In the result the writ petition is partly allowed and the respondents are directed to pay the petitioner the salary dues as admissible in the grade meant for Addl. Director (Extension), Agriculture for the aforesaid period along with the arrears of salary as admissible to the petitioner on the principle of 'equal pay for equal work'. The respondents are further directed to pay interest at the rate of 12% per annum on the amount due to the petitioner from due date. The amount of the salary and arrears etc. Director (Extension), Agriculture for the aforesaid period along with the arrears of salary as admissible to the petitioner on the principle of 'equal pay for equal work'. The respondents are further directed to pay interest at the rate of 12% per annum on the amount due to the petitioner from due date. The amount of the salary and arrears etc. shall be paid to the petitioner within a period of 3 months from today. However, the prayer made by the petitioner for the relief of promotion from the post of Joint Director to the post of Additional Director is rejected being not tenable in law since the petitioner was holding the post of Additional Director only by way of stop-gap-arrangement on ad-hoc basis and no promotion was granted to the petitioner after selection by the D.P.C. in accordance with the Rules of 1960 as referred to above. The parties are left to bear their own costs. 17. Before parting with this case, I would like to leave a note of caution for the Agriculture Department of the State for compliance and future guidance. The process of selection for the next higher and promotional post by a duly constituted D.P.C. as against the substantive post which an incumbent is holding must commence before the expiry of one year period as provided in the Rules and in any event the concurrence of State Public Service Commission must be obtained before the expiry of the said year since otherwise any promotion made by the Department on ad-hoc basis shall stand automatically regularised and confirmed if continued by the Department beyond the expiry of one year w.e.f. the date said ad-hoc promotion has been made.Petition partly allowed. *******