Fazlur Rehman Khan v. State of Rajasthan — 1995 DIGILAW 81 (RAJ)

Honble KOCHHAR, J. — The petitioner, Fazlur Rehman Khan, was originally appointed as a Computer in the Regional Transport Survey Authority on 13.10.1965, and on his being declared surplus on the said post, was absorbed in the Evaluation Department on 1.10.1967. He was promoted to the posts of Investigator and Research Assistant on 14.10.1968 and on 28.01.1975, respectively, and was confirmed on the latter post on 15.09.1982. The Rajasthan Evaluation Service Rules, 1979 (for short, "the Rules") came into force with effect from 15.02.1979, and in term of Rule-26 of the Rules, the petitioner was given an urgent temporary appointment on the post of Evaluation Officer vide the order dated 25.09.1979. The Rules provided that the post of Evaluation Officer was to be filled in to the extent of 66.2/3 per cent by direct recruitment and 33.1/3 per cent by promotion from amongst the Research Assistants having experience of three years. The Rules further provided that a direct recruit to the post of Evaluation Officer should have the qualification of Second Class Post-Graduate degree in Economics/Sociology/Statistics/Mathematics/ Commerce/Public Administration from an Indian or Foreign University, candidates with a Post-Graduate degree in Mathematics or Statistics or Public Administration should have had Economics or Sociology as one of the subjects in degree course and should have, one year experience of handling important statistical records on the post of Statistical/Research Assistant or on an equivalent post in a Government Department or University or Research Organisation and one years experience of conducting Socio-Economic Sample Surveys, designing of schedules, supervising the field work and drafting memoranda and reports. On receipt of a request from the State Government (the respondent No.l), the Rajasthan Public Service Commission (the respondent No.2) invited applications for filling in six posts of Evaluation Officers and thereafter selected the respondents Nos. 3 to 8 and recommended their names for being appointed on the said posts vide the letter dated 31.05.1986. The petitioner filed this writ petition on 23.06.1986, challenging the selections of the respondents Nos. 3 to 8 on the ground that they were not eligible for being selected for the posts of Evaluation Officers and also contending that the vacancies for direct recruitment and for promotees, had not been correctly calculated by the respondent No.l and claiming to be entitled to be regularly appointed on the post of Evaluation Officer. He pleaded that the respondents Nos. He pleaded that the respondents Nos. 3 to 5 had been working as Statistical Assistants and the respondents Nos.6 to 8 were working as Research Assistants before their selections and that the nature of their duties was such that they could not acquire the experience required for filling in the posts of Evaluation Officers by direct recruitment. It was also pleaded that if the vacancies had been correctly calculated, it would have been found that there were only three vacancies available for direct recruitment to the post of Evaluation Officer and that in these circumstances, the selections of the respondents Nos. 3 to 8, were not proper and he was entitled to be given regular appointment on that post,after making the correct calculation of the vacancies for the promotee officers. On receipt of notice, the writ petition has been contested. (2). I have heard the learned counsel for the parties and have also perused the record of the case. (3). Shri AK Sharma, the learned counsel for the petitioner, has contended that taking into account the duties and work chart of the respondents Nos. 3 to 8, it was not possible for them to have acquired exeperience as required in the Rules and that as such, their selections and appointments by direct recruitment to the posts of Evaluation Officers, were illegal. (4). It has not been disputed that the respondents Nos. 3 to 5 were working as Statistical Assistants and the respondents Nos. 6 to 8 were working as Research Assistants, before their selections for the posts of Evaluation Officers, by the respondent No.2 and their appointments (during the pendency of the writ petition) on the said posts. The petitioner has quoted the job-chart of the Statistical Assistants, as prescribed by the Department of Economics and statistics and has pleaded that a person working as a Statistical Assistant by discharging the functions, mentioned in the job-chart, cannot acquire the experience of drafting work of reports with regard to the socio-economic sample survey and designing of schedules and that as such, the respondents Nos. 3 to 5 were ineligible to be considered for the posts in question. 3 to 5 were ineligible to be considered for the posts in question. In para-17 of the writ petition, the petitioner has quoted the job-chart, prescribed by the Evaluation Department for the posts of Research Assistants, and has pleaded that which working as Research Assistants, it could not have been possible to acquire experience of drafting of memoranda and reports with reference to socio-economic sample survey and designing of schedules and as such, the respondents Nos.5 to 8 were ineligible for being considered for the posts of Evaluation Officers by direct recruitment. (5). In the reply, filed on behalf of the respondent No.l, it has been pleaded that the respondents Nos. 3 to 8 had the prescribed requisite experience and had produced certificates of experience from their respective offices, showing that the relevant work was being taken from them. It has also been pleaded that the prescribed chart for the post of Statistical Assistant, as quoted by the petitioner, shows that the duties of the Statistical Assistants include assisting in research work and assisting in assessing the impact of various developmental activities schemes and projects and preparation of reports and reviews and that while performing such duties,one can have easily the experience of drafting work of reports with regard to the socio-economic sample survey and designing of schedules. In reply to para-17 of the writ petition, it has been pleaded that the job-chart, mentioned by the petitioner himself, shows that the Research Assistants were making correspondence with the Field Officers, regarding progress at various stages of the study draft and that while making correspondence with the Field Officers in respect of study reports, the Research Assistants have to draft the memoranda and reports and that similarly, while making scrutiny of reports, received from the field, the Research Assistants acquire the experience of drafting memoranda and reports and that moreover, the respondents Nos. 3 to 8 had worked on the posts of Investigation for more than one year, which posts provided that they would submit observation-notes and other related information, desired by the office/headquarters and that preparation of obser-vation-notes gives sufficient experience of drafting of memoranda and reports. (6). The contention of the learned counsel , for Respondents, is that while performing the works and duties, the respondents Nos. (6). The contention of the learned counsel , for Respondents, is that while performing the works and duties, the respondents Nos. 3 to 8 could acquire the requisite experience and that experience-certificates (Ex.3 to 8), issued by the competent authorities, show that they acquired the said experience and further that the genuineness or correctness of the certificates, have not been challenged by the petitioner at any time. (7). Confronted with this position, the learned counsel for the petitioner, did not press the point any further. (8). In this view of the matter, I hold that the respondents Nos. 3 to 8 were having the requisite experience and were eligible for being considered for the posts of Evaluation Officers and that their selections on this count, cannot be challenged. (9). The next contention, raised by the learned counsel for the petitioner, is that the available vacancies had been wrongly calculated for the purposes of determining the vacancies to be filled in by promotion. (10). Although, along with the writ petition, a chart (Schedule-I) was annexed by the petitioner, but the correctness of the chart, mentioned in para-10 at page 4 of the reply to the writ petition, has not been disputed at the time of arguments at the Bar, and the same reads as under : — "Year Total No. Vacancies determined. To be Direct filed by Promotion Actually Direct filled Promotion 1980 11 7 4 5 4 1981 5 3 2 - 2 1982-83 2 1 1 2 1 1983-84 3 2 1 - 1 1984-85 2 2 - - - Total: 23 15 8 7 8 In the Year 1985-86 posts abolished 2 - - - - 21 15 8 7 8" (11). The position coming out of the above-said chart, is that in the year 1980,11 vacancies were determined : 7 for direct recruitment, and 4 for promotion; in the year 1981, 5 vacancies were determined ; 3, by direct recruitment and 2, by promotion; in the year 1982-83, 2 vacancies were determined : 1 to be filled in by direct recruitment, and one by promotion ; in the year 1983-84, 3 vacancies were determined : 2 to be filled in by direct recruitment and x 1 by promotion; and 2 vacancies were determined in the year 1985 and both of them were to be filled in by direct recruitment, and in this way, 23 total vacancies were determined for the period from 1980 to 1984-85, out of which, 15 were to be filled in by direct recruitment and 8 by promotion. The above - said chart further shows that 5 vacancies in the year 1980 and 2 vacancies in the year 1982-83, were filled in by direct recruitment. It is the Common case of the parties that out of the five persons, appointed as Evaluation Officers in the year 1980, one was Shri K.P.Ghiya, who was also eligible for being promoted to the post of Evaluation Officer and on being selected by the Departmental Promotion Committee (DPC), he opted for being promoted against the quota of the year 1980. In other words, only four vacancies were filled in by direct recruitment in the year 1980 and two were filled in by the source in the year 1982-83 and, as such, during the above-said period, only six vacancies out of the 15 available for direct recruitment, had been filled in. It is also the common case of the parties that two posts of Evaluation Officers, were abolished in the year 1985-86 and in this way, one vacancy from the quota of the direct recruits had to be excluded out of the vacancies already available. This being the position, the total number of vacancies available for direct recruitment for the period from 1980 to 1984-85, was 14, out of which, 6 vacancies had been filled in : 4 in the year 1980, and 2 in the year 1982-83, and 8 vacancies of the direct recruits, were still available, when the requisition was sent by the respondent No.l, to the respondent No.2, for selecting six persons for appointments on the posts of Evaluation Officers. (12). It has been contended by the learned counsel for the petitioner that out of the 11 vacancies of the year 1980, 5 having been filled in by direct recruitment and 4 by promotion, the two unfilled in vacancies were to be carried over to the year 1981, to be added in the 5 vacancies of the year 1981, and the quota had to be calculated on the said basis, and similarly, no vacancy having been filled in by direct recruitment in 1981 and only 2 having been filled in by promotion, the remaining 5 vacancies ought to have been carried over to the year 1982-83, and in this way, 7 vacancies were available in the year 1982-83, out of which,5 were to go to quota of direct recruits and 2, to the quota of promotees and, in fact, 2 vacancies having been filled in by direct recruitment and 1 by promotion, the remaining 4 vacancies of the year 1982-83, ought to have been added in the vacancies of the year 1983-84, and in this way, there were 7 vacancies, out of which , 1 was filled in by promotion and the remaining vacancies available in the year 1984-85, were 6 and the direct recruitment and promotion quota ought to have been calculated on the basis of the said vacancies, and in this way, 6 posts were not available for direct recruitment at the relevant time. . (13). This contention is not only not supported by any authority, but is contrary to Rule 10 of the Rules, which provides that 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 and that such vacancies shall be determined before the expiry of twelve months of the last determination of such vacancies, and that in calculating the actual number to be filled in by each method on the basis of the percentage, prescribed in Column-3 of the Schedule, the Government shall adopt an appropriate cyclic order to correspond with the proportion laid down in the rules. The contention of the learned counsel for the petitioner, in this regard, being without any force, is rejected. (14). The contention of the learned counsel for the petitioner, in this regard, being without any force, is rejected. (14). It has next been contended by the learned counsel for the petitioner that vide the notification dated 18.08.1989 (Ex.23), Column-3 of the Schedule, has been amended with retrospective effect from 1.04.1981, and it has been provided that 50 per cent of the posts of the Evaluation Officers would be filled in by direct recruitment and 50 per cent, by promotion and that the judgment dated 16th April,1991 (Ex.24), passed by this court, striking out the retrospective operation of the amendment, having been stayed by the Apex Court, the quota should be determined on the basis of the new rule. (15). It is not disputed before me that even the unamended rule cannot affect the vacancies of the year 1980 and the quota determined for the said year. Even if it be taken that the vacancies for the year 1981 were determined after 15.04.1981, it has to be taken that 5 vacancies of the said year were to be taken into consideration for filling in the posts by direct recruitment and by promotion. The above-said chart shows that 5 vacancies were determined for the year 1981; 2 were determined for the year 1982-83 and 3 were determined for the year 1983-84 and, as such, for the period from 1981 to 1983-84, 10 vacancies were available, out of which, 5 were to be filled in by direct recruitment and 5, by promotion upto the year 1984. The vacancies for the year 1984-85, may not be taken into consideration for deciding this point, in view of the fact that 2 posts had been abolished in the year 1985-86. The total number of vacancies thus available for direct recruitment upto the year 1984, was 12 : 7 of the year 1980 and 5 of the period from 1981 to 1983-84. Out of the 5 vacancies, filled in by direct recruitment, in the year 1981, Shri K.P.Ghiya having opted for the promotion-vacancy, in fact, only 4 vacancies were filled in by direct recruitment in the year 1980 and thereafter in the year 1982-83, only 2 vacancies were filled in by the same source. In this way, out of the 12, only 6 vacancies were filled in and 6 were available for being filled in by direct recruitment, at the relevant time. (16). In this way, out of the 12, only 6 vacancies were filled in and 6 were available for being filled in by direct recruitment, at the relevant time. (16). In this view of the matter, even if it be taken that the amended rule would affect the persons, who had already been selected and appointed on the basis of the rules then existing, it cannot be said that the case of the petitioner improves in any way, as far as the challenge to the appointments of the respondents Nos.3 to 8, on the ground of non-availability of vacancies for the direct recruitment, is concerned. (17). No other point has been raised before me. (18). Finding the writ petition meritless, I dismiss it with costs.