JUDGMENT 1. - By this petition, the petitioners who directly recruited as Deputy Superintendent of Prisons have challenged their placement in the seniority list. in that list published on 23-9-91 as on 1-4-91, the petitioners are shown junior to the respondents who are promoted to the post of Deputy Superintendent of Prisons. The controversy in this petition, therefore, centres around the matter of grant of seniority between directly recruited and promoted Deputy Superintendent of Prisons. 2. Rules which govern parties undisputedly are the Rajasthan Jail Service Rules, 1959 (hereinafter referred to as the 'Rules'). The petitioners were recruited directly through the Rajasthan Public Service Commission after they were successfully recommended by the Commission. In pursuance to the examination for the year 1984, factual appointment orders were issued on 23-6-1987. The respondents were promoted on 6th March, 1988 to the post of Deputy Superintendent of Prisons and were assigned seniority in the vacancies of 1987-88. Consequently, they were considered senior to the petitioners, this aspect is challenged in this petition. 3. The governing Rules may conveniently be considered here. "9. 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 of schedule, the vacancies so determined shall be filled in by that method. (c) Where a post is to be filled-in by more than one method as prescribed in the rules, or schedule, the appointment of vacancies, determined under clause (a) above, to each such method shall be done maintaining the prescribed proportion for the overall number of posts already filled-in. If any fraction of vacancies is left over, after apportionment of the vacancies in the manner prescribed above, the same shall be apportioned to the quota of various methods prescribed in a continuous cyclic order giving precedence to the promotion quota. (2) The Appointing Authority shall also determine the vacancies of earlier years, year wise which were required to be filled-in by promotion, if such vacancies were not determined and fill earlier in the year in which they were required to be filled in." Rule 27 which provides that fiction of seniority reads as under : "27. (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 fill earlier in the year in which they were required to be filled in." Rule 27 which provides that fiction of seniority reads as under : "27. "Seniority" : Seniority of persons appointed to the lowest post of the service or lowest categories of posts in each of the Group/Section of the service as the case may be, shall be determined from the date of confirmation of such persons to the said post but in respect of persons appointed by promotion to the other higher posts in the service or other categories of posts in each of the Group/Section in the service, as the case may be, shall be determined from the date of their regular selection to such posts. (Vide DOP Notification dated 20-7-79): Provided (1) that the seniority inter se of persons appointed to the Service before the commencement of these Rules or who may be appointed to the service as a result of the Re-organisation of State, shall continue as already fixed by Government or as may in future be fixed ad hoc by Government subject to any modification, correction or revisions which Government may, future (sic) consider necessary. (2) That the persons selected and appointed as a result of a selection which is not subject to review and revision shall rank senior to the persons who are selected and appointed as a result of subsequent selection. (3) That if two or more persons are appointed to posts in the same category in the year, a person appointed by promotion shall be senior to a person appointed by direct recruitment ; (4) That the seniority inter se of persons appointed to a particular category by direct recruitment on the basis of one and the same selection, except those who do not join service when a post is offered to them, shall follow the order in which they have been placed in the list prepared by the Commission under Rule 20." 4. It is undisputed position that the question of seniority concerned in this case revolves around applications of interpretation of these Rules. It is undisputed position that the question of seniority concerned in this case revolves around applications of interpretation of these Rules. Shri M. Mridul, learned senior counsel for the petitioner contends that : (1) the petitioners having been appointed on 23-6-1987 are by nature of things and application of Rule 27 senior to the respondents who were promoted on 9-3-88. (2) Assignment of 1987-88 as the deemed date of promotion to the respondents is incorrect and unsustainable in law. Relying on several judgments, it was argued that the petitioners should be deemed to have been appointed in the year 1984 as that was the year they were recruited. Delay caused in factual appointment was due to reason beyond the control of the petitioners and hence, they could not be made to suffer in the matter of seniority. It was, therefore, contended that in this view of the matter the fixation of seniority by Annex. 8 is unsustainable in law. 5. Rebutting the contentions raised by the learned counsel for the petitioners, Shri L.S. Udawat, learned Additional Advocate General submitted that each of the contentions is baseless and liable to the rejected. According to the learned Additional Advocate General, the seniority has been fixed in accordance with the provisions of Rule 27 of the Rules. The respondents were in service of the State on 9-3-88 when they were promoted and also in 1987-88 when deemed seniority is granted to them whereas the petitioners came into existence as employee of the State for the first time on 23-6-87 till date they were not born on the cadre of the State Government and therefore, cannot, by application of any law or legal fiction, be entitled to a deemed date of appointment prior to their factual date of appointment. The learned counsel submitted that seniority list is prepared in accordance with Rule 27 and needs no interference. 6. What has been argued by the learned counsel, Shri Mridul in effect is that because the petitioners were considered for recruitment in the year 1984 they must be recruited in that year because the Rules of recruitment pertaining to the post of Deputy Superintendent of Prisons, Rajasthan provide for recruitment to that post by two modes; (i) by direct recruitment, and (ii) by promotion, the quota is fifty-fifty. According to the learned counsel, therefore, the vacancies filled - in being of the year 1984, the petitioners are entitled to a grant to deemed date from 1984 or in the alternate submissions of the learned counsel that the petitioners have been factually appointed prior to the respondents, the respondents are liable to be considered junior to the petitioners by the date of appointment. Reliance is placed on the decision of the Supreme Court where it is held by the Supreme Court of India that in case of quota rule where there is excessive appointment that the prescribed quota either by direct recruitment or by promotion, the excess cannot be awarded seniority if it is in the promotion quota they will have to be pushed down in seniority as to the prevent supersession of direct recruits in the matter of seniority. I will consider the propositions laid down by the Supreme Court of India at a later stage. In the present case, the undisputed facts demonstrate that there is no reason for interference with the seniority of the petitioners and the respondents. There is no averment in the petition that posts allocated for direct recruitment for the year 1984 were filled in by excessive promotion in that year from the promotion quota. There is no averment that at any point of time the promotion quota exceeded the quota of direct recruitment requiring application of the law of "punishing Down". Admittedly the petitioners were appointed on 23-6-1987 and the respondents on 9.3.1988 going by the date of the appointment alone, it may appear at the first blush that the contention of the petitioner claiming seniority has some substance. However, the scrutiny and application of the Rules of the facts of the present case will show the hollowness of this contention. The claim of the petitioner can never be granted in law, no employee can claim a date of appointment prior to the date of his factual appointment by any fiction of law as will see from the decision of the Supreme Court. This is not the dicta of the Supreme Court of India. It has been well established principles of law that even after receiving the recommendations of the Public Service Commission, the State is not bound to make appointment. This is not the dicta of the Supreme Court of India. It has been well established principles of law that even after receiving the recommendations of the Public Service Commission, the State is not bound to make appointment. The prerogative of making of recruitment is exclusively with the State and, therefore, no fiction of law can be brought into existence whereby, the State will be deemed to have made appointments on date prior to the making of factual appointments. 7. The petitioners were not been on the cadre of the State prior to 23-6-87 whereas the respondents were already on the cadre of the State and were existing as employees of the State in the year 1987-88 for the vacancies of which they were assigned (sic) of seniority, this makes the basic difference and consequently the petitioners cannot claim., successfully, seniority over the respondents as will be seen from Rule 9 as quoted above. Determination of vacancies is to be undertaken every year on 1st April for that year. Consequently, the year involved in this case is 1987-88. The petitioners were appointed in June 1987 and the respondents were promoted in March, 1988 i.e. all have been recruited by direct recruitment or promotion to the Deputy Superintendent of Prisons in Rajasthan in the financial year 1987-88. 8. Rule 27 which governs the seniority provides that (sic) the seniority by sub-rule (3); "That if two or more persons are appointed to posts in the same category in the year, a person appointed by promotion shall be senior to a person appointed by direct recruitment." 9. It cannot be disputed that the petitioners as also the respondents have been appointed in the year 1987-88 and consequently, by application of Rule 27(3), the respondents have been rightly assigned seniority over the petitioners. it is only by deemed fiction of law that the petitioners seek seniority over the respondents, they claim that had they been appointed immediately after recommendations were made in 1984, they would automatically rank senior to the respondents. Failure on the part of the State was attributable to nothing done by the petitioners and consequently the petitioners cannot he made to suffer in seniority for such lapse on the part of the State. As already stated reliance was placed on the several decisions of the Supreme Court claiming, in the circumstances, pushing down of the promoted officers. Failure on the part of the State was attributable to nothing done by the petitioners and consequently the petitioners cannot he made to suffer in seniority for such lapse on the part of the State. As already stated reliance was placed on the several decisions of the Supreme Court claiming, in the circumstances, pushing down of the promoted officers. I do not agree with this submission as the facts of this case do not warrant any pushing down of the respondents in the matter of seniority. It is specifically averred by the respondents that of all the 26 posts in the cadre of Deputy Superintendent of Prisons, Rajasthan 14 are to be filled in by promotion and 12 by direct appointment. It is specifically averred that these 26 posts are not filled up and number of posts remained vacant for direct recruitment as well as for promotee. It is further categorically averred that in the year 1987-88 a total number of 18 Deputy Superintendents of Prisons were working in the State of Rajasthan out of which 9 were against the direct-recruitment quota and 9 were against the promotion quota and consequently , in that year there was no question of quota Rules have been broken or any person promoted in excess of the quota available for promotees and consequently, all the authorities of the Supreme Court have no application in the present case. 10. The several contentions and arguments made on behalf of the parties have been reduced to written submission and have been filed in Court. The same can be perused to verify the fact that beyond what is submitted by the written arguments nothing else was argued. The question of validity of Art. 27 pertaining to seniority was not argued and seniority claim was based only on the facts pleaded in the case. It is also a matter worth noting that it is nowhere pleaded that the recruitment for the year 1987-88 was in any manner excessive in the quota of promotees. Conversely, it is specifically submitted in the written submissions by the respondents that there was no such excessive appointment. In the circumstances, in my opinion, the contention raised by the petitioners for pushing down the respondents or for showing the petitioners above the respondents are unacceptable . Conversely, it is specifically submitted in the written submissions by the respondents that there was no such excessive appointment. In the circumstances, in my opinion, the contention raised by the petitioners for pushing down the respondents or for showing the petitioners above the respondents are unacceptable . Learned counsel for the petitioner has averred in pars 16 of the written submissions that in AIR 1987 SC 1353 , it has come to be mechanically laid down that the seniority should be as per quota, the case reported in AIR 1987 SC 1333 , is the Division Bench judgment of the Supreme Court under section 5 of the Limitation Act and has nothing to do with seniority or law of seniority. It appears that the learned counsel has wrongly quoted this judgment. However, there appears a decision of the Supreme Court at page 2359 (sic) of the same issue where, the Supreme Court has laid down that: "The Scheme in force relating to the services for fixing inter se seniority takes into account the filling up of the vacancies in the service from the two sources on the basis of the quota and therefore, fixation of inter se seniority in the Gradation List has to be worked out on the basis of quota." 11. The Supreme Court has followed its earlier decision reported in AIR 1980 SC 1561 . A scrutiny of the facts of the present case will demonstrate that this decision is not applicable in the instance case. The petitioners as also the respondents were recruited in the year 1987-88. There was no excessive appointment from the promotion quota, there was no occasion for pushing down the promotees in that year. 'this decision is, therefore, of no help to the petitioner. 12. The next judgment on which reliance is placed in pars 16 of the written submissions is 1980 Suppl SCC 225 to report at this page pertains to a decision of the Supreme Court reported in a case arising out of the Indian Penal Code pertaining to Sections 34 and 302 of the IPC. It cannot by any stretch of imagination have any application to the facts of the present case. It cannot by any stretch of imagination have any application to the facts of the present case. A perusal of the subject index of that volume under the head of seniority and promotion at page 825 mentions some cases at pages 562, 559, 170, 341, 370, 449 and 206, none of the cases apply to the facts of the present case, none of it relates to fixation of seniority between promotees and direct recruitments in ascertained and determined quota without there being excessive appointment from quota. This citation is also, therefore, inappropriate. 13. Reliance was then placed on the judgment of the Supreme Court reported in 1993(6) SC 854 (sic). The Vol. (6) of Judgment Today for the year 1993 has only 696 pages and perusal of the index did not disclose any other decision of the Supreme Court in that volume. Having direct bearing on the facts of the present case, this citation is also, therefore, inappropriate. 14. The next citation appearing in pars 15 of the written submission is 1994 (1) JT 29 . This judgment pertains to counting of temporary posts likely to be continued for long time. It has no bearing on the facts of the present case, it is therefore, inappropriate. 15. The next case cited is 1996(6) SCC 342 . The report on this page pertains to rent control and eviction and cannot have any application to the facts of the present case. The citation is, therefore, inappropriate. Perusal of index also does not disclose any decision of the Supreme Court reported in this volume pertaining to seniority-or fixation. 16. The next decision on which reliance is placed is reported in AIR 1997 SC 250 . In this decision, it has been laid down that since the petitioner was recruited by direct recruitment, he was entitled to be appointed according to the Rule. The facts of the case are entirely different and have no bearing comparison on the facts of the present case. The order of which the original petitioner. Assistant Engineer was given seniority was not the subject matter of the special leave appeal. It is further seen from the decision the contention was that the promotee was not qualified as he is not completed 8 years' required service for promotion. The order of which the original petitioner. Assistant Engineer was given seniority was not the subject matter of the special leave appeal. It is further seen from the decision the contention was that the promotee was not qualified as he is not completed 8 years' required service for promotion. Negativing this contention, it was held that he was not qualified because his promotion was made later or his appointment was made later and such delay was not attributable to the petitioner. There the question involved was length of qualify (qualified) service and in that case, it was held by the Supreme Court of India that there was no fault of the petitioner, the delay could not be attributed to him. It was not a case of assignment of seniority to a direct recruit. It was a case of consideration of direct recruitment for further promotion which was denied to him because he has completed given number of years in the service to entitle him for consideration to the promotion and, therefore, it was held by the Supreme Court that delay in appointment not being fault of the petitioner, his entire service is liable to be computed for calculating the required year of service to qualify for promotion. This decision, therefore, has no hearing on the facts of the present case where the question was assignment of seniority on direct recruit of officers when both are recruited in the financial year. The decision also does not help the petitioner. 17. Shri L.S. Udawat, learned Additional Advocate General in support of his contentions placed reliance on a decision of this Court reported in 1991(1) RLR 727 where, it has been held by this Court that though the Rule of determination of yearwise vacancies is mandatory, in view of absence of any provision regarding unfilled vacancies of earlier years falling in direct recruitment quota it cannot be applied for yearwise selection in case of direct recruitment with the same rigor as it is to be applied in the case of vacancies of earlier year in respect of promotion quota. The learned Members of the Division Bench then recommended framing of appropriate Rules to recover such contingency. I am in respectful agreement with the views expressed by the Division Bench following the same in the absence of any averment that there was excessive appointment in the promotion quota. The learned Members of the Division Bench then recommended framing of appropriate Rules to recover such contingency. I am in respectful agreement with the views expressed by the Division Bench following the same in the absence of any averment that there was excessive appointment in the promotion quota. There is no question of the petitioners being given seniority in the instant case. Another judgment on which reliance is placed is reported in 1996(11) SCC 361 , where it has been held that omission to make direct recruitment due to inaction on the part of the Government would not amount to breaking down of the quota Rule. In the absence of any application the quota Rule was broken, the appointments in excess of the promotional quota were made and, therefore, injuries caused to the petitioners. It cannot be held that any error is committed by the State in granting seniority to the respondents. 18. The judgment of this Court rendered on 7.10.92 in S.B. Civil Writ Petition No. 3170/87, Dhanraj Sharma v. State of Rajasthan , was later on affirmed by the Division Bench judgment reported in 1995 (3) WLC 369. Even this judgment as affirmed by the Division Bench does not apply to the facts of the present case, the ratio is entirely different. No other decision was cited at the bar. I can only observe that learned counsel for the parties should verify the cases cited to help this Court in better way. 19. In the result, the petition fails and is dismissed with costs. The petitioners are not entitled to assignment of any seniority as the assignment of seniority has been legally and properly done by Annexure 8 which calls for no interference (sic).Petition dismissed. *******