JUDGMENT 1. 1. The reliefs claimed by the petitioner in this petition , under Article 226 of the Constitution, are as under : (i) The order dated 23.9.95 (Ex.P.16) may be declared to be illegal and the same may be quashed and set aside qua the respondents 2 and 3. (ii) The respondent No.1 be directed to promote the petitioner on the post of COA w.e.f. 1.7.94 on the basis that he was adjudged eligible and suitable on 17.6.94 alongwith Shri Ashok Kumar Jain and Shri Prahlad Sharma. (iii) The explanation below Regulation 24 (5) substituted by amendment dated 24.6.94 (Ex.P.12) be declared to be ultra vires of Article 14 and 16 of the Constitution of India and be struck down. (iv) Provision of filling the post of COA (Controller of Accounts) 100% on the basis of merit alone as per entry No. 4 in the Schedule attached to the Regulations be declared to be arbitrary and ultra vires of Article 14 and 16 of the Constitution of India and the same may be struck down. (v) The respondent No.1 be directed to fill the post of Controller of Accounts in the ratio of 50 : 50 by way of merit and by way of seniority respectively or in any other reasonable manner." 2. In order to appreciate the arguments advanced by the learned counsel on both sides necessary facts of the case may be stated, in brief which are thus:- The petitioner was initially appointed on the post of Accounts Officer by the process of direct recruitment vide order dated, June 30, 1977 and he joined in Rajasthan State Electricity Board (for short the Board), on July 1, 1977. Thereafter, he was promoted on ad hoc and temporary basis on the post of Sr. Accounts Officer by order dated, May 27, 1989. According to the petitioner, the respondents No.3 and 4, namely, S/Shri G.K. Sharma and O.P. Maheshwari were juniors to him as is revealed by the final seniority list of Accounts Officers issued on October 31, 1984. They were also promoted as Sr. Accounts Officer on ad-hoc/temporary basis, subsequent to the petitioner vide orders dated, 30.7.90 and 10.3.92 respectively. It is stated by the petitioner that three vacancies of Controller of Accounts (for short COA) were available for the year 1994 to be filled in by promotion from Sr. Accounts Officers and three candidates viz. They were also promoted as Sr. Accounts Officer on ad-hoc/temporary basis, subsequent to the petitioner vide orders dated, 30.7.90 and 10.3.92 respectively. It is stated by the petitioner that three vacancies of Controller of Accounts (for short COA) were available for the year 1994 to be filled in by promotion from Sr. Accounts Officers and three candidates viz. Shri Ashok Kumar Jain, Shri Prahlad Sharma and the petitioner were selected by the Board for ad-hoc appointment for the same, but only two posts were filled in by orders dated 27.6.94 vide Annexure-6 and 7 respectively. The third vacancy was not filled in as it was available after June 30, 1994 when Shri Anand Prakash Joshi was promoted on the post of Cheif Accounts Officer. The grievance of the petitioner is that he has a right to be promoted on the post of COA w.e.f. 1.7.94 and he has been declined the same inspite of representations made by him. Another grievance is that vide order dated, 23rd September, 1995 (Annexure-16), respondents No. 2 and 3, who are juniors to the petitioner, came to be promoted to the post of COA on temporary and in officiating capacity for a period of one year or till candidates selected by the Board on the recommendation of the Selection Committee become available, whichever is earlier. 3. The factual aspect with regard to appointment of the petitioner as Accounts Officer, his promotion to the post of Sr. Accounts Officer on ad hoc basis and promotion of respondent No. 2 and 3 as Senior Accounts Officer on ad hoc basis has not been denied by the Board in its return. According to the Board, regular promotions in the cadre could not be made on account of orders passed by this Court in S.B. Civil Writ Petition No. 6/85 and S.B. Civil Writ Petition No. 5136/90, filed by Shri R.K. Baj and Shri Omprakash respectively. However, factual aspects averred in para Nos. 8, 9 and 10 of the petition are denied by the Board. It is stated by the Board that three vacancies of COA fell vacant in the year 1994, out of which two were available on 3.4.94, while third vacancy became available on 30.6.94. That the post of COA is a Selection post to be filled on the basis of merit alone. It is stated by the Board that three vacancies of COA fell vacant in the year 1994, out of which two were available on 3.4.94, while third vacancy became available on 30.6.94. That the post of COA is a Selection post to be filled on the basis of merit alone. The Board has maintained that appointments in the posts of COA have been made on the basis of merit alone as defined by way of Explanation below Regulation 24(5) of the Officers Service (Recruitment, Promotion and Seniority) Regulations, 1974 (for short, the Regulations of 1974), which requires at least 5 out of 7 A.C.Rs. as outstanding or very good for promotion to the post of COA. That the petitioner was in the zone of consideration and his candidature was also considered for the post, but none of his A.C.Rs. under consideration being outstanding or very good, he could not be selected. That respondent No.2, Shri G.K. Sharma possessed all six A.C.Rs. which were available, to be 'very good'. While respondent No.3 had five A.C.Rs. 'very good' and one of them was outstanding, hence both the respondents were falling in the merit as per the Explanation. They were found to be eligible for promotion and consequently promoted against the selection posts of COA. 4. Before I advert to the respective submissions made on both sides, it would be fruitful to refer to the relevant provisions of the Regulations of 1974, which regulate recruitment, appointment and promotion of Officers in the Board (Except Engineers) and the same have been made by the Board in exercise of powers conferred under Section 79 (c) of the Electricity (Supply) Act, 1948. The list of the Appointing Authorities, method of recruitment etc. are given in the Schedule attached to the Regulations. As per item 4 (b) in the Schedule, the post of Controller of Accounts (COA) is a selection post to be filled in by promotion/selection of a departmental officer from amongst the Dy. Controller of Accounts/Dy. Director (I.A.)/Sr. Accounts Officers with a minimum service of five years as Dy. Controller of Accounts/Sr. Accounts Officer/Dy. Director (I. A.).Part-V of the Regulations provides the procedure for recruitment by promotion. Regulation-24 states the procedure for promotion to junior, Senior and other posts encadred in the service. Controller of Accounts/Dy. Director (I.A.)/Sr. Accounts Officers with a minimum service of five years as Dy. Controller of Accounts/Sr. Accounts Officer/Dy. Director (I. A.).Part-V of the Regulations provides the procedure for recruitment by promotion. Regulation-24 states the procedure for promotion to junior, Senior and other posts encadred in the service. As per sub-Regulation (1) selection for promotion to posts in the service which are to be filled by selection as per Schedule shall be made strictly on the basis of merit. Explanation below Sub-Regulation (5) defines merit, as under: "Explanation : 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 in atleast 5 (five) out of the 7 (seven) years preceding the year for which the meeting of committee is held." Part-VI of the Regulations makes provisions for appointment/ promotion/confirmation and seniority and Regulation 25 (b), which deals with appointment by promotion, provides that appointment by promotion to the post mentioned in the Schedule shall be made by the Appointing Authority from the list prepared under Regulation-24 strictly in the order as recommended by the Selection Committee and as approved by Board. Then, Regulation-26 provides procedure for temporary or officiating appointment as under:- "26. Temporary or Officiating Appointment : (1) Notwithstanding anything contained in Regulation 25, the Chairman may fill a vacancy in the posts mentioned in the schedule append to these regulations temporarily by appointing thereto in an officiating capacity any person eligible for such appointment by promotion under these regulations for a period not exceeding one year. A report of such appointment shall be made to the Board. (2) In the event of non-availability of suitable persons, fulfilling the requirements of eligibility for promotion, the whole-time Members may, notwithstanding the condition of eligibility for promotion required under sub-regulation (1) above, fill the vacancies in the exigencies of work, by relaxing the condition of minimum experience required for promotion/appointment to the higher post subject to such conditions and restrictions regarding pay and other allowances as may be directed. (3) In making all such appointment, due regard shall be kept of the seniority of the officer to be so appointed. In special circumstances appointment can also be made without prejudice to the seniority of others." 5. (3) In making all such appointment, due regard shall be kept of the seniority of the officer to be so appointed. In special circumstances appointment can also be made without prejudice to the seniority of others." 5. Shri R.C. Joshi, learned counsel appearing for the petitioner has made the following contentions: (i) The amendment made in the Explanation on 24.6.94 providing fresh criteria of merit has no application for promotion to the vacancies of the year 1994 and promotion of the petitioner to the post of COA is to be governed by unamended provision. (ii) The provision contained in the Regulations providing the post of COA as a selection post to be filled in by promotion on merit basis alone is arbitrary as it curtails reasonable prospects of advancement of officials and it is not in the public interest also that all the posts of COA be filled in by promotion on merit basis alone. According to the learned counsel, the provision violates the right guaranteed under Articles 14 and 16 of the Constitution. (iii) That respondent No.3, namely, Shri O.P. Maheshwari, was not eligible for promotion to the post of C.O.A. on 23rd September, 1995 as he had not completed minimum service of five years as Senior Accounts Officer. Hence his promotion as COA is bad in law. (iv) That the respondent Shri O.P. Maheshwari has attained the age of superannuation on his completion of 58 years on July 31, 19% and his further extension for the period of three months upto 31st October, 1996 vide order dated 31st July, 19% (Annexure-18) is illegal and he cannot be retained in service after his retirement without sanction of the Board. 6. Regarding first contention, the facts may be re-capitulated. As borne out from reply of the Board, three vacancies of COA were available for the year 1994 to be filled in by promotion. Out of them, two vacancies were available on 3.4.94 and they were filled up by promoting Shri Ashok Kumar Jain and Shri Prahlad Sharma on ad hoc/temporary basis under Regulation-26 (1) and admittedly they were senior to the petitioner. For their promotion, the petitioner has no grievance. The third vacancy was available on 30.6.94 as it fell vacant on promotion of Shri Anand Prakash Joshi to the post of Chief Accounts Officer on June 30, 1994. For their promotion, the petitioner has no grievance. The third vacancy was available on 30.6.94 as it fell vacant on promotion of Shri Anand Prakash Joshi to the post of Chief Accounts Officer on June 30, 1994. Before this vacancy was available amendment was made on June 24, 1994 in the Explanation below Regulation 24 (5) to make it pari materia to the rules of the State Government relating to the promotions on merit system. Hence, after June 24, 1994, all promotions to higher grade on merit basis have to be made after applying the criteria for determination of merit as per the amended Explanation. I need not be detained further on this point, as this question has exhaustively and authoritatively been considered and decided by the full Bench of this Court in R. Dayal and others Vs. State of Rajasthan and others (D.B. Writ Petition No. 3759/95) decided on 30.8.96 . The decision of the Full Bench squarely covers the first contention made by Shri Joshi, to be rejected and I have no hesitation in rejecting the same. 7. Elaborating second contention Mr. Joshi urged that both seniority and merit should have a part in promotions to higher ranks for maintaining movable of the whole organisation. Mr. Joshi contended that public interest can also be better served if higher posts and ranks except the post of Head of the Department, are filled up both by seniority-cum-merit and merit-cum-seniority in the ratio of 50 : 50. Mr. Joshi maintained that by restricting promotion to the posts of COA purely on merit basis would amount a cloak on the rights of the employees to get future promotions and stagnation would kill the desire to serve properly. Reliance is placed on the decisions in All India Reserve Bank Employees Association and another V. Reserve Bank of India and another, AIR 1966 Supreme Court 305 , Raghunath Prasad Singh Vs. Secretary, Home (Police Department), Government of Bhihar and others, AIR 1968 Supreme Court 1033 and Guman Singh Vs. State of Rajasthan and others, (1971)2 SCC 452 . The general promotion laid down in these decisions that seniority and merit both should ordinarily have a part in promotion of the higher cadre is not in dispute. Secretary, Home (Police Department), Government of Bhihar and others, AIR 1968 Supreme Court 1033 and Guman Singh Vs. State of Rajasthan and others, (1971)2 SCC 452 . The general promotion laid down in these decisions that seniority and merit both should ordinarily have a part in promotion of the higher cadre is not in dispute. But it is also a settled principle of service jurisprudence that it is a dangerous guide that seniority should be made the sole determining factor for all higher ranks, as it may have a great strain on the efficient handling of public business and may hamper public interest. The post of COA is stated to be the highest second rank in the hierarchy of administration. The Board is an autonomous body and primarily it is for the Board to decide the method of recruitment to a particular post/rank keeping in view the required efficiency and responsibility attached to the post. As a general rule the promotion policy for higher post/rank on merit system can not faulted to be discriminatory or arbitrary and violative of Articles 14 and 16 of the Constitution. It would be fruitful to quote the following observations of Leonard D. White in his Introduction to the Study of Public Administration, 4th Edn. (Pp. 383) which has been approved by the Apex Court in Sant Ram Sharma Vs. State of Rajasthan and another, (1968) 1 SCR 111 . "Employees often prefer the rule of seniority, by which the eligible longest in service is automatically awarded the promotion. Within limits, seniority is entitled to consideration as one criterion of selection. It tends to eliminate favouritism or the suspicion thereof; and experience is certainly a factor in the making of a successful employee. Seniority is given most weight in promotion from the lowest to other subordinate positions. As employees move up the ladder of responsibility, it is entitled to less and less weight. When seniority is made the sole determining factor, at any level, it is a dangerous guide. Seniority is given most weight in promotion from the lowest to other subordinate positions. As employees move up the ladder of responsibility, it is entitled to less and less weight. When seniority is made the sole determining factor, at any level, it is a dangerous guide. It does not follow that the employee longest in service in a particular grade is best suited for promotion to a higher grade, the very opposite may be true." (Emphasis supplied) In Sant Ram's case (supra), the Apex Court rejected the argument that introduction of the idea of merit in the procedure of promotion brings in an element of personal evaluation and that personal evaluation opens the door of nepotism and favoritism and so there is a violation of the Constitutional guarantee under Articles 14 and 16 of the Constitution. Their Lordships observed thus : (at page 122) : "Mr. N.C. Chatterjee argued that the introduction of the idea of merit into the procedure of promotion brings in an element of personal evaluation and that personal evaluation opens the door to the abuses of nepotism and favoritism, and so, there was a violation of the constitutional guarantee tinder Articles 14 and 16 of the Constitution. We are unable to accept this argument as well founded. The question of a proper promotion policy depends on various conflicting factors. It is obvious that the only method in which absolute objectivity can be ensured is for all promotions to be made entirely on grounds of seniority. That means that if a post falls vacant it is filled by the person who has served longest in the post immediately below. But the trouble with the seniority system is that it is so objective that it fails to take any account of personal merit. As a system it is fair to every official except the best ones; an official has nothing to win or lose provided he does not actually become so inefficient that disciplinary action has to be taken against him. But, though the system is fair to the officials concerned, it is a heavy burden on the public and a great strain on the efficient handling of public business. The problem therefore, is how to ensure reasonable prospect of advancement to all officials and at the same time to protect the public interest in having posts filled by the most able men ? The problem therefore, is how to ensure reasonable prospect of advancement to all officials and at the same time to protect the public interest in having posts filled by the most able men ? In other words, the question is how to find a correct balance between seniority and merit in a proper promotion policy." 8. The argument is abstract, without any thing more and in absence of factual datas, that promotion policy for the post of COA on merit basis alone is arbitrary and violates Articles 14 and 16 of the Constitution, cannot be accepted. I am also not in agreement with the argument that by adopting the above promotion policy stagnation is caused to the promotional prospects of the petitioner and other employees and it runs counter to the public interest. In view of this, second contention made by Shri Joshi also deserves rejection. 9. While assailing ad hoc and temporary appointments of respondents No.3 and 4 in the posts of COA, Mr. Joshi emphatically contended that the petitioner being senior to them had a right to be promoted on the said post under Regulation 26(1). According to the learned counsel, the criteria of merit, applicable for regular promotion, cannot be made applicable for ad hoc and temporary promotions to the posts. In reply to this, Mr. Rastogi contended that suitability for these appointments has been adjudged by the Chairman as per provisions of the Regulations and no appointment in the post of COA even on ad-hoc and temporary basis has been made in violation to the suitability clause contained in the Explanation referred to above. Mr. Rastogi also contended that application of seniority basis for ad hoc/temporary promotion even would be against the criteria for judging suitability on merit basis and in that situation ineligible and unsuitable persons would get appointment. In my view, if the suitability criteria as contained in the Regulation, is adopted for promotion on ad hoc/temporary basis also, it cannot be said to be arbitrary or discriminatory. 10. Mr. Joshi, then, contended that respondent No.3, Shri O.P. Maheshwari, was not eligible for promotion to the post of COA, as he had not put in minimum service of five years as Senior Accounts Officer. 10. Mr. Joshi, then, contended that respondent No.3, Shri O.P. Maheshwari, was not eligible for promotion to the post of COA, as he had not put in minimum service of five years as Senior Accounts Officer. So far the factual aspect is concerned, it is not in dispute that Shri O.P. Maheshwari was promoted to the post of Senior Accounts Officer vide order dated, 10th March, 1992 and he had not put in five years service on the post of Senior Accounts Officer when he was promoted as COA on 23rd September, 1995. A bare perusal of Regulation 26(1) makes it clear that the Chairman of the Board may fill a vacancy in the post mentioned in the Schedule temporarily by appointing thereto in an officiating capacity any person eligible for such appointment by promotion under the Regulation. The appointment letter dated, 23rd September, 1995 (Annex. 16) also makes it clear that the appointment was made by the Chairman in exercise of powers conferred under Regulation-26 (1). The petitioner has taken a specific ground (b) in his petition that the Chairman was not competent to appoint by promotion to Shri O.P. Maheshwari as COA as he was not eligible for promotion as per the service Regulations. 11. Confronted with this situation, Mr. Rastogi contended that when eligible person having minimum experience in the category of Senior Accounts Officer is not available for promotion, recourse of sub-Regulation (2) of Regulation 26 can be taken for making appointment on ad hoc/temporary basis. At the cost of repetition sub-Regulation (2) of Regulation 26 is reproduced which reads as under : "(2) In the event of non-availability of suitable persons, fulfilling the requirements of eligibility for promotion, the whole time Members may, notwithstanding the condition of eligibility for promotion required under sub-regulation (1) above, fill the vacancies in the exigencies of work, by relaxing the condition of minimum experience required for promotion/appointment to the higher post subject to such conditions and restrictions regarding pay and other allowances as may be directed." No doubt, this provision empowers whole-time Members of the Board to fill the vacancies in the exigencies of work by relaxing condition of minimum experience required for promotion/appointment to the higher post subject to such conditions and restrictions regarding pay and allowances as may be directed in the event of non-availability of suitable persons fulfilling requirement of eligibility for promotion. For applicability of Sub-Regulation (2) the following requirements are necessary. (i) There should be non-availability of suitable person fulfilling the requirement of eligibility for promotion; (ii) The power to fill the vacancies in the exigencies of work lies with whole-time Members of the Board and only they can relax the condition of minimum experience required for promotion/appointment to the higher post; (iii) Such promotion/appointment can be subjected to such conditions and restrictions regarding pay and other allowances as may be directed. In the instant case, the impugned order dated 23rd September, 1995 (Annex. 16) makes it abundantly clear that recourse has not been taken under Sub-Regulation (2) and the vacancies in the post have not been filled in by whole-time Members of the Board. On the contrary, the promotions have been made by the Chairman in exercise of powers conferred under Regulation 26(i). By no stretch of imagination, the promotion of respondent.O.P. Maheshwari can be said to have been made by having recourse to Sub-Regulation (2). The respondent Board has not pleaded in its reply that promotion of Shri O.P. Maheshwari was made by whole-time Members of the Board and not by the Chairman. No document or any material has been placed on record to satisfy the Court that power was exercised by whole time Members under sub-clause (2). 12. Mr. Rastogi realising his weak wicket on this point ventured to make a futile attempt to take the plea that promotion of Shri O.P. Maheshwari has been ratified in the meeting of the Board held on 18.1.96. Mr. Rastogi, for perusal of this Court, produced photostat copies of the decision of the Board taken in its meeting dated 18.1.96. Firstly, no such plea of ratification has been taken by the Board in its reply. Even the documents placed before me do not say about such ratification or relaxation of the condition of minimum experience required for promotion in the case of O.P. Maheshwari. Then, the requirement of Sub-Rule (2) is that the vacancy should be filled in by whole-time Members of the Board and that too by relaxing the condition of minimum experience required for promotion/appointment. Then, the requirement of Sub-Rule (2) is that the vacancy should be filled in by whole-time Members of the Board and that too by relaxing the condition of minimum experience required for promotion/appointment. No material has been produced by the Board to show that at any point of time whole-time Members applied their mind and relaxed the condition of minimum experience in the case of Shri O.P. Maheshwari, who was undisputedly not eligible for promotion on the post of COA. The power of the Chairman to fill the vacancy by making appointment temporarily is under Sub-Regulation (1) and this power can be exercised in favour of a person who is eligible for the said post. When eligible person is not available for appointment/promotion, then, power to fill the vacancies can be exercised only by whole-time Members of the Board if they feel that such appointment is necessary in the exigencies of work. In view of this promotion of Shri O.P. Maheshwari on the post of COA vide order dated 23rd September, 1995 is illegal being in contravention of Regulation-26(2). 13. During pendency of the writ petition, Shri O.P. Maheshwari has retired on 31st July, 19% on attaining the age of superannuation. After his retirement, he was granted extension for a period of three months upto 31st October, 1996. This period has also expired. Mr. Rastogi contended that after retirement, an employee of the Board can be retained in service with sanction of the Board, in the case of employees of Class-I and II posts. There is no such sanction of the Board in the case of Shri O.P. Maheshwari so far his extension for three months from July, 1996 to October, 1996 is concerned. For this, Mr. Rastogi contended that powers of the Board have been delegated to the Chairman in its 63rd meeting held on 28th August, 1964. However, I need not examine this aspect as to whether such powers could be delegated or not, or whether such delegation, in fact, has been made in favour of the Chairman as the period of extension granted to Shri O.P. Maheshwari has also expired on 31st October, 1996. If any further extension is made, the petitioner shall be free to challenge the same in accordance with law. If any further extension is made, the petitioner shall be free to challenge the same in accordance with law. I need not examine the question, whether Shri O.P. Maheshwari can be retained on the post of COA after his retirement when his promotion to the said post vide order dated 23rd September, 1995 is held to be illegal, being in contravention of Regulation 26, as it is not the subject matter for decision in the present writ petition, though the contention of Shri R.C. Joshi on this point can not be lightly ignored. 14. The net result of the above discussion is that the promotion of Shri O.P. Maheshwari to the post of COA vide order dated 23rd September, 1995 is held to be illegal and in contravention of Regulation-26(2) of the Regulations of 1974. Since, he has retired from service, hence, no further direction is required to be given in this petition except the above declaration. The writ petition stands disposed of as indicated above. The petitioner shall be entitled to get costs from the respondent Board which is quantified as Rs. 2,000/-.Petition partly allowed. *******