JUDGMENT 1. - The petitioner who is an employee of Public Health Engineering Department (for short "PHED"), Jaipur, by way of this writ petition has challenged the impugned order dated 20.6.1989 of the Rajasthan Civil Services Appellate Tribunal, Jaipur (hereinafter referred to as "the Tribunal") passed in Appeal No. 561/1987 which was preferred by the petitioner, the then Asstt. Engineer, PHED, Leave & Training Reservation, City Division No. 2, Jaipur against the order dated 3.9.1987 of the Department whereby the respondents had not correctly determined the seniority of the petitioner against the year for which it was due. 2. Briefly stated the facts of this case are that the petitioner was initially appointed as junior engineer/overseer in the PHED, Jaipur w.e.f. 31.12.1954 after due selection by the Rajasthan Public Service Commission (for short the "commission"). The petitioner possessed the academic qualification of diploma in civil engineering in 1954 from BIT College, Ajmer. One Shri Dhanraj who is a retired Executive Engineer, PHED, Jaipur and who has been arrayed as respondent No. 4 in this writ petition, has also passed diploma in civil engineering from Jaipur in 1953. The said qualifications were not recognised at that time. Respondent No. 4 joined as junior Engineer/Overseer in PHED w.e.f. 4.1.1954. In the seniority list of engineering subordinate officials belonging to the PHED which was issued by the then Chief Engineer, Health, vide order dated 6.10.1966, the name of the petitioner appeared at serial No. 1 and vide order dated 12.10.1970, 13 employees of subordinate engineering services had been promoted as Asstt. Engineers w.e.f. 2.6.1970 which included respondent No. 4. The petitioner was also promoted as officiating Asstt. Engineer on ad hoc basis by the same order which the petitioner challenged before his department on the ground that out of the officials placed at serial No. 1 to 4 in the order dated 2.6.1970 including respondent No. 3, had never been selected by the Commissioner and that the other officials in that list were though junior to the petitioner, but their placement had been made above the petitioner in terms of seniority. The petitioner had consequently represented to the department that he should have been assigned the seniority of the year 1965 as Asstt. Engineer and the last representation which he made before approaching the learned Tribunal, was submitted on 10.4.1985 but with no result. The petitioner had consequently represented to the department that he should have been assigned the seniority of the year 1965 as Asstt. Engineer and the last representation which he made before approaching the learned Tribunal, was submitted on 10.4.1985 but with no result. He has further contended that in the Provisional seniority list of Asstt. Engineers issued on 3.9.1987 (Annexure 8) the petitioner was placed at serial No. 20 against the seniority of the year 1971. Perusal of provisional seniority list dated 30.7.1963 issued by the office of the Chief Engineer, PHED, Jaipur (Annexure 2) reveals that the petitioner was placed at serial No. 11 in order of seniority and was assigned seniority of the year 1956 on selection by the Commission w.e.f. 29.3.1956. In Column 5 of the said list Annexure-2, the date of joining i.e. the first appointment in service, has been indicated as 23.2.1955. In the said seniority list first 10 candidates which includes Dhanraj (Respondent No. 4) are those who were not selected by the Commission.The petitioner submitted his objections vide Annexure-3 dated 6.10.1966 to the seniority list Annexure-2. His objections were accepted and the names of all 10 persons were deleted from the final seniority list dated 6.10.1966. In the said list the name of the petitioner was placed at serial No. 1. The date of first appointment has been shown as 23.2.1955 on selection by commission vide No. CE(B&R) dated 29.3.1956. 3. The petitioner was confirmed as Junior Engineer/Overseer w.e.f. 10.11.1966. After that he was selected by the Departmental Promotion Committee (for short "DPC") for the post of Asstt. Engineer vide order dated 12.10.1970 vide Annexure-4. Other persons who were promoted as Asstt. Engineers included respondent-4. However, allotment year was not assigned to any of them at that time and it was only on 16.1.1975 that a notification came to be issued by the State Government with its copy endorsed to the Chief Engineer, PHED, Jaipur vide Annexure-5 wherein it has been mentioned that consequent upon assignment of the year of appointment to persons promoted on the recommendations of the DPC 1970 as reviewed in 1973 in accordance with rule 7 of the Rajasthan Service Rules vide order dated 11.1.1975, assignment of seniority to surplus lecturers absorbed in PHED vide order of the said date, the seniority list of Asst. Engineers (Civil) working in PHED as obtaining on 1.1.1973, was notified under the Rajasthan Service of Engineers (Public Health Branch), Rules, 1968. The said list indicates the names of 73 candidates out of which first 11 are indicated as appointees of 1965, candidates placed at serial No. 12 to 14 (promotees) who have been assigned the year of appointment as 1965, the candidate from serial No. 15 to 21 (direct recruits) of 1965, candidates from serial No. 20 to 29 (promotees) who have been assigned the year of appointment as 1967, candidates from serial No. 30 and 31 (substantive) surplus lecturers who have been assigned seniority according to rule 15(i) of the Absorption rules, candidates from serial No. 32 to 53 (direct recruits) of the year 1965, candidates from serial No. 54 to 55 (promotees) who were assigned the year of appointment as 1970, candidates from serial No. 56 to 60 (surplus) lecturers who have been assigned seniority according to rule 15(2) of the Absorption Rules, candidates from serial No. 61 to 63 (promotees) who have been assigned the year of appointment as 1970, while candidates from serial No. 54 to 73 were the direct recruits of the year 1970. 4. Since the petitioner was not allotted any year of the appointment in the aforesaid impugned notification dated 22.1.1975 (Annexure-5) and since his name also does not find mention anywhere in the aforesaid notification, the petitioner submitted his representation to the department requesting that he should also be assigned the year 1956 for the purpose of seniority on the post of Asstt. Engineer though he was promoted on the said post of Asstt. Engineer w.e.f. 12.10.1970 vide Annexure-4 as referred to above. It has been contended by the petitioner that while his representation was pending, his allotment year was changed to 1972 vide order dated 20.3.1985 (Annexure-2) and he was placed at serial No. 1 against the allotment year 1972. The petitioner represented to the department against change of his allotment year from 1970 to 1972 on the ground that he was entitled to be considered as promoted to Asstt. Engineer (Civil) from the year 1965 and should have been accorded similar placement as given to Dhanraj (respondent No. 4) who was allotted the same year though he was a candidate not selected by the Commission. Engineer (Civil) from the year 1965 and should have been accorded similar placement as given to Dhanraj (respondent No. 4) who was allotted the same year though he was a candidate not selected by the Commission. The said representation was virtually decided vide order dated 3.9.1987 (Annexure-8) by which instead of assigning the seniority of the year 1965, the petitioner was assigned seniority of the year 1971. 5. Being aggrieved by the aforesaid, the petitioner preferred an appeal before the Tribunal wherein he challenged his wrong placement in the order of seniority. It was contended by the petitioner before the Tribunal that he should have been assigned the seniority of the year 1965 as Asstt. Engineer and he further stated that he possessed the requisite diploma in civil engineering of the year 1954, while respondent No. 4 had passed diploma in civil engineering in 1953. In the seniority list of Asstt. Engineers which was issued on 3.9.1987 (Annexure-9) as per the provisions of rule 5 of the Rajasthan Services (Recruitment by Promotion Against Vacancies of Earlier Years) Rules, 1974, petitioner had been assigned the seniority of 1971 as his year of promotion as Asstt. Engineer (Civil) instead of allotting the year 1965 which has been assigned to respondent No. 4 who was junior to the petitioner. The petitioner consequently challenged the impugned order dated 3.9.1987 with a prayer to the Tribunal that he should be assigned the seniority of 1965 with all consequential benefits. 6. In support of his above contentions advanced at the bar, learned counsel for the petitioner placed reliance upon the judgments of the Orissa High Court in the matter of Inspector-General of Police, Bhubaneswar and another v. Sukanta Kumar Nayak, 1993(3) SLR 547, P. Sriramaiah v. P. Purushothama Rao and another, 1974(1) SLR 54 and the judgment of Patna High court in the matter of the Managing Committee, T.K. Ghosh Academy and another v. The State of Bihar and others, 1974(1) SLR 203. 7. In the matter of Inspector-General of Police v. Sukanta Kumar (supra) the question at issue before the Orissa High Court was challenge to disciplinary proceedings initiated against the delinquent employee on the allegations of misconduct. 7. In the matter of Inspector-General of Police v. Sukanta Kumar (supra) the question at issue before the Orissa High Court was challenge to disciplinary proceedings initiated against the delinquent employee on the allegations of misconduct. The employee had challenged the same on the ground that since defence assistance had not been provided to him, it amounted to violation of principles of natural justice.In the matter of P. Sriramaiah v. P. Purushothama Rao (supra) the question at issue before the Andhra Pradesh High Court was whether the statutes can be construed to have retrospective operation unless language "so employed" is so clear that it will admit no other construction. It was held by the High Court that it is clearly settled that statutes are prospective and cannot be construed to have retrospective operation unless the language employed in the enactment is so clear that it will admit no other construction. 8. In the matter of the Managing Committee v. State of Bihar and others (supra) the rules pertaining to the appointment, discharge, dismissal and appeal of teachers of non-government secondary schools were under challenge before the Patna High Court by way of a writ petition under Article 226 of the Constitution of India. On interpretation of the relevant provisions of the statute it was held by the High Court that legal proceedings started under the old rules have got to be continued and brought to conclusion in accordance with them. On interpretation of the relevant provisions of the statute it was held by the High Court that legal proceedings started under the old rules have got to be continued and brought to conclusion in accordance with them. While I am in respectful agreement with the proposition of law in the aforesaid decisions, and am of the considered opinion that the ratio of the aforesaid decisions do not help in advancing the case of the petitioner in any manner because what is under challenge before this court is not continuance of the proceedings under the old Rules nor there is any violation of the principles of natural justice because the petitioner had availed the liberty of not only filing his objections but also of making his representations before the appropriate authority and it is not for this court to go into these questions in view of settled law that the departmental remedies, if not exhausted by the employee, are not open to challenge that he had not exhausted the said remedies and rather he had made adequate representations and which were suitably dealt with and decided by the respondents and this fact is well apparent to this court from the perusal of the impugned order, dated 3.9.1987 (Annexure 8) which is an order passed by PHED as per which it is not only the petitioner who has been extended the benefit of seniority against the year 1971 but also 32 other candidates of the same department who have been assigned relevant seniority of the particular years against which they were found eligible for promotion and were accordingly given the benefit of seniority of the relevant years against which they were found due by the DPC. 9. The respondents controverted the aforesaid contentions of the petitioner on the ground that when the order dated 12.10.1970 was issued, the petitioner had not challenged the orders dated 12.1.1975 and 26.9.1981 and the petitioner had further failed to challenge the order dated 20.3.1985 when he was assigned seniority of 1972 and vide impugned order dated 3.9.1987 the position of the petitioner was not eligible for promotion to the post of Asstt. Engineer before 1971, since he did not possess recognised diploma, whereas respondent No. 4 had been regularly appointed w.e.f. 1.6.1954 after obtaining recognised diploma from MBM Engineering College, Jodhpur and under the Rules he was eligible after 10 years of experience to be promoted and he was rightly promoted and assigned the promotional quota of the year 1965 as Asstt. Engineer (Civil). 10. I have perused the impugned order dated 20.6.1989 of the learned Tribunal (Annexure-11). In the said order the learned Tribunal while repelling the aforesaid contentions of the petitioner, has specifically observed that his contentions were not based on the order dated 3.9.1987 but in fact he tried to challenge the orders dated 12.10.1970 and 16.1.1975. No convincing reasons were advanced by the petitioner for inordinate delay in preferring the appeal and the appeal was consequently held as not having been filed within limitation of 60 days in accordance with section 9 of the Act, 1976.On merits the learned Tribunal held that the appeal of the petitioner was not maintainable on the grounds that since he had not seriously contested the objections of the respondents that his diploma was not recognised, neither he could explain the order giving due recognition to his diploma nor he could dispute this fact that respondent No. 4 had passed the diploma in the year 1953 much ahead of the petitioner had been appointed in service on selection by the Commission on 1.6.1954, while the petitioner obtained the diploma in the year 1954 and was given regular appointment w.e.f. 29.3.1956 hence he could not claim seniority over and above respondent No. 4. Hence the petitioner by any stretch of imagination, could not be given seniority over and above respondent No. 4 retrospectively. 11. On merits, the learned Tribunal has observed in the impugned order that since the petitioner did not fulfil the eligibility criteria mentioned in the schedule attached to the Rules of 1954, the petitioner having been appointed in the Engineering subordinate service on regular selection by the Commission in March, 1956, consequently he had become eligible for promotion to the post of Asstt. Engineer (Civil) in the year 1971 only and, therefore, he could not have been considered for promotion to the said post earlier than 1971 and which has been correctly assigned to him vide impugned order dated 3.9.1987. 12. Engineer (Civil) in the year 1971 only and, therefore, he could not have been considered for promotion to the said post earlier than 1971 and which has been correctly assigned to him vide impugned order dated 3.9.1987. 12. The criteria with regard to the appointment, promotion and confirmation in the Rajasthan Service of Engineers (Building and Roads Branch) Rules, 1954 has been provided in part VI of the said Rules. Rule 7 of the Rules deals with the method of recruitment which is two-fold:- (a) direct recruitment in accordance with part IV of the Rules; (b) promotion of substantive Junior Engineer in accordance with part V of the Rules in proportion indicated in column 3 of Schedule 1. The term "Junior Engineers" was substituted by the term "engineering subordinates" vide Notification dated 5.4.1976 which became effective from 1.4.1975. Such appointments are to be made in consultation with the Commission subject to availability of the suitable candidates for appointment by either method of recruitment in a particular year as aforesaid. Rule 9 provides that the appointing authority shall determine actual number of vacancies during the financial year on 1st April of every corresponding year and that where a post is to be filled in by single method as prescribed, the vacancies so determined shall be filled in by that method only. Where a post is to be filled by more than one method as referred to above, it shall be done in accordance with such methods maintaining the prescribed proportion for over all number of posts already filled in. The appointing authority shall also determine the vacancies of the earlier years if such vacancies were not determined and filled in the earlier year. Rule 23 provides criteria for selection of the persons enumerated in column 4 of schedule 1 on the basis of seniority-cum-merit for promotion to posts specified in column 2 subject to their possessing minimum qualification and experience. 13. During the course of hearing learned counsel for the petitioner placed reliance upon the order dated 26.9.1981 (Annexure-6) which is an order passed by the Department of Medical & Public Health by which promotions to the post of Asstt. Engineer (Civil) in the said Department were made on the recommendations of the DPC convened on 19/20.1.1973 in accordance with the provisions of Rules of 1968 read with Rules of 1972. Engineer (Civil) in the said Department were made on the recommendations of the DPC convened on 19/20.1.1973 in accordance with the provisions of Rules of 1968 read with Rules of 1972. Since the said order was passed on a representation of one Radhey Shyam Sharma who was selected and appointed by promotion to the post of Asstt. Engineer (Civil) on the recommendations of duly convened DPC against the promotional quota of the year 1970 and in which the name of the petitioner also finds mention at Serial No. 6 as a candidate who was also considered for appointment along with other candidates and whose relative merits were examined by duly convened DPC and thereafter promotions given to the respective candidates, I am of the view that it is not open to the petitioner to assail the said order on the ground that his seniority was ignored qua other candidates whose names find mention in the order dated 26.9.1981 as aforesaid. The findings of DPC are rather binding on the petitioner and are not open to challenge before this court. 14. I have examined the contentions advanced by the learned counsel for the parties and also the contentions as stated in reply to show cause notice filed on behalf of respondent Nos. 1 to 3. When the petitioner joined the services of the PHED as on 23.2.1995, the Rajasthan Service of Engineers (Building and Road Branch) Rules, 1954 were in force. The criteria for determining the eligibility of the candidates to be considered for promotion by the DPC from the post of Junior Engineer (Civil) to the post of Asstt. Engineer (Civil) as laid down in column 6 of schedule 1 of the Rules of 1954 was that a candidate in order to be eligible for being considered for promotion must hold a degree in Civil Engineering of a University established by law in India or a degree or Diploma of Foreign University or an Institution declared by the Government equivalent to degree in Civil Engineering of a University established by law in India or qualifications declared equivalent thereto by the Government. When the petitioner was promoted to the post of Asstt. When the petitioner was promoted to the post of Asstt. Engineer vide promotional order, dated 12.10.1970 (Annexure-4) the Rajasthan Service of Engineers (Public Health Branch) Rules, 1968 were already in existence and had already come into force w.e.f. the date of their publication in Rajasthan Gazette Extraordinary dated 19.7.1968 vide notification dated 11.7.1968. It is these Rules which are applicable to the Public Health Branch and which were governing the service conditions of the petitioner in the said department ever since then. The petitioner was promoted from the post of Junior Engineer (Civil) to that of Asstt. Engineer in terms of the promotional order under the Rules of 1968 and hence the petitioner cannot have resort to the earlier Rules of 1954 when the question of promotion of the petitioner had not arisen for consideration at all. At this stage it shall be appropriate to refer column 6 of Schedule 1 appended to Rules of 1968 which reads as under:- "B.E. (Civil) or 4 years V.J.T.I. Bombay L.S.E. diploma or qualification declared equivalent by Government with 3 years service as X Junior Engineer (Civil) or if diploma holder (Civil) from a recognised institution with 10 years requisite experience as % Sub Engineer (Civil) or others with 15 years requisite experience as % Sub Engineer (Civil) and must possess a high school certificate." 15. When the petitioner was promoted from Junior Engineer to Asstt. Engineer as referred to above Rules of 1968 had already come into force and as per the requirement of the Rules the academic qualification which was prescribed in Column 6 of the schedule 1 of the said rules, the eligibility criteria for promotion of Sub Engineer/Junior Engineer to the post of Asstt. Engineer (Civil), those candidates who were possessing B.E. degree (Civil) they should have 4 years experience in service; whereas in case of Junior Engineers (Civil) with diploma should have 10 years requisite experience as Sub Engineers (Civil), while the candidates who were possessing High School/Secondary/Matriculation certificate should have minimum 15 years of requisite service experience as Sub Engineer (Civil) with High School/Secondary/Matriculation certificate. If 15 years are reckoned from the date of his joining services, i.e. 22.2.1955 the period of 15 years of requisite experience shall obviously be construed w.e.f. 23.2.1970. The promotion order of petitioner by which he was promoted from Junior Engineer to Asstt. Engineer is dated 12.10.1970 (Annexure-4). If 15 years are reckoned from the date of his joining services, i.e. 22.2.1955 the period of 15 years of requisite experience shall obviously be construed w.e.f. 23.2.1970. The promotion order of petitioner by which he was promoted from Junior Engineer to Asstt. Engineer is dated 12.10.1970 (Annexure-4). The said promotion was given to the petitioner on ad hoc basis on the recommendation of DPC w.e.f. 12.10.1970. Hence the seniority of the petitioner was rightly determined w.e.f. the year 1971, i.e. when the vacancies arose for determining the eligibility of the candidates in the cadre of Asstt. Engineers. Prima facie I am of the view that when the eligibility of the petitioner in the context of the experience which he did not possess prior to his being considered for promotion, it is not open to the petitioner to say that his seniority vis-a- vis respondent No. 4 including other candidates had not been correctly determined particularly when he did not fulfil terms and conditions of eligibility, how could the seniority of the petitioner be determined retrospectively under the Rules of 1954 when he was not eligible to be considered for promotion the Rules of 1968 had already come into force and hence it is not open to the petitioner to contend that Rules of 1954 were applicable to him. I am further of the view that it is not open to the petitioner to challenge the placement of respondent No. 4 in the seniority list of Junior Engineer/Sub Engineers/Overseers who were appointed and promoted earlier in point of time than the petitioner on concurrence and approval by the Commission and further it is not open to the petitioner to challenge the action of the respondent at such belated stage when the said respondent had already retired from service on attaining the age of superannuation. 16. There is not an iota of evidence on record which would substantiate the submissions of the petitioner that he was bonafide in his approach for that he made any representation/objection to the concerned authorities when the seniority list was issued and if the petitioner was bonafide in approach, then nothing prevented him from approaching the concerned authorities or to have filed his objections within the stipulated period under the Rules with the said authorities. I am further of the view that under Article 226 of the Constitution of India, the petitioner does not have any right to challenge factual aspects of the matter which he has not been able to controvert by any documentary evidence on the record. I am further of the opinion that findings of the learned Tribunal are neither contrary to law nor the facts existing on the record and the order passed by the learned Tribunal is perfectly legal and just in accordance with the provisions of the law and within the ambit of the Rules as referred to above. Even on merits the petitioner does not have any case for interference by this court because when he does not fulfil the requisite eligibility criteria mentioned in Schedule I of Rules 1968 as on 23.2.1965 when he had not completed 15 years of qualifying service as Junior Engineer, the question of determining his eligibility for promotion on the post of Asstt. Engineer retrospectively from the said date would not arise and since he had completed 15 years of qualifying service as on 23.2.1970 his eligibility was rightly determined in accordance with Rules of 1968. Hence the placement of the petitioner in terms of the seniority has rightly been done and the impugned order dated 3.9.1987 (Annexure-8) by which the placement of the petitioner has been done in the seniority list of the year 1971 in accordance with the Rajasthan Services (Recruitment Against Vacancies of Early Years) Rules, 1971 has been correctly determined and the same is consequently upheld being not open to challenge by the petitioner before this court with regard to the placement of the petitioner in the seniority list of Asstt. engineers of 1971, I am of the view that since it is settled proposition of law that the competent authority should assign the year of allotment to a particular candidate on the recommendations of the DPC as and when the vacancies in the said cadre are made available, hence it is not open to the petitioner to claim the allotment year at his own whims and fancies in absence of vacancies in the particular cadre and since in the cadre of Asstt. Engineers (Civil), the vacancies had become available only in the year 1971 as against the quota of 1970 and the placement of the petitioner having rightly been done along with other candidates on the recommendations of duly convened DPC, it is not open for this court to substitute its own judgment over well- reasoned findings of the DPC. I am further of the view that all the above aspects have already been looked into by the learned Tribunal both on merits as well as on the point of limitation and are consequently not open to challenge before this court. 17. In the light of the above observations, I find no merit in this writ petition and the same is consequently dismissed with no order as to costs.Petition dismissed. *******