JUDGMENT 1. - The service conditions including the promotions of the employees of the Rajasthan Housing Board (here-in-after referred to as the Board) are govered by the Regulations framed by the Board. The Board itself is constituted under the Rajasthan Housing Board Act, 1970 (Act No.4 of 1970) (here-in-after referred to as the Act). Section 53 of the Act empowers the Board to frame, with the previous sanction of the State Government, the regulations and the ruler consistent with the Act. Section 53(1)(c) empowers the Board to frame regulations and the remuneration and conditions of service of the Housing Commissioner and other officers and servants of the Board under Section 15. Section 15 prescribes that the service conditions of the officers of the Board shall be such as may be determined by the regulations. 2. The regulations were framed in the year 1976 called the Rajasthan Housing Board Employees Conditions of Recruitment and Promotion Regulations, 1976. Under Regulation 7 it is provided that the ratio of direct recruitment and promotion of the employees in the service of the Board and qualifications and experience required for various posts will be in accordance with the 'Schedule' appended to the Regulations. Direct recruitment has been defined under Regulation 8. Regulation 10 provides that the first promotion to the Higher post shall be made on the basis of seniority-cum-merit and seniority list of each category of employees shall be prepared and maintained. 3. It is stated by the petitioner who is holding the post of junior Engineer, that as per the regulations the post of Project Engineer is to be filled up 50% by direct recruitment and 50% by promotion. There is again bifurcation in the promotion category to the effect that out of 50% posts meant for promotion 30% posts are to be filled from diploma holders and 20% from degree holders. The petitioner is a diploma holder. The schedule has been reproduced at page 12 of the petition which is reproduced as under:- S.No. Name of Post Method of recruitment with percentage Qualification for direct recruitment Post from is to be made Qualification for promotion Remarks 1 Project Enginner (Senior) 50% by direct recruitment and 30% by promotion from Project Engineer. B.E. (Civil) or qualification declared equivalent thereto by State Govt. 1. Project Engineer (Junior) degree holders. 2. Project Engineer (Junior) diploma holders & 20% degree. B.E. (Civil) or qualification declared equivalent thereto by State Govt. 1. Project Engineer (Junior) degree holders. 2. Project Engineer (Junior) diploma holders & 20% degree. B.E. (Civil) or equivalent thereto with 3 years exp. SCHEDULE4. As admitted in the written statement in view of the decision taken by the Government vide order dated 28.8.93 in regard to its own employees i.e. that the Junior Engineers in the department would be promoted as one time promotion as Assistant Engineers against the direct recruitment quota for the reason that no recruitment could be made and the work was suffering and, therefore, decision was taken by the Government that in the department of the Engineering in the State to the fact that one time promotion is to be made and for that reason a notification was issued on 28.8.1993 whereby the rules of the State Government i.e. Rajasthan Engineering Service (Direct Recruitment) Rules, 1991 were amended by adding new rule 7-C and 6-C. The notification of the State Government reads as under:- GOVERNMENT OF RAJASTHAN DEPARTMENT OF PERSONNEL (A-GR.II) No.F.1(1) DOP/A-11/92 Jaipur Dated 28.8.93. NOTIFICATION In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Rajasthan hereby makes the following amendment in various Service Rules specified in the Schedule appended hereto, namely:- AMENDMENT After the existing rule mentioned in Column 3 against each of the Service Rules mentioned in Column 2 of the Schedule appended hereto, the following new rule as mentioned in Column 4 of the said Schedule shall be added, namely:- "Limited direct recruitment to the posts of Assistant Engineers:- Notwithstanding anything contained in these rules or the Rajasthan State Engineering Services (Direct Recruitment by Combined Competitive Examination) Rules, 1991, the posts of Assistant Engineer in direct recruitment quota lying vacant on 31.03.1991 and continuously so lying vacant till the date of this amendment shall be filled in from amongst the persons who were possessing the qualifications for direct recruitment to the posts of Assistant Engineer and holding the posts of Junior Engineer in the Department on 31.03.1991 through a one time selection to be made by the Commission in accordance with the procedure prescribed in part-IV of these Rules limited for such persons if they were otherwise eligible for direct recruitment to the post of Assistant Engineers on that date without any age limit." S.No. Name of the service rules No. of existing rule New Rule 1 The Rajasthan Service of Engineers and Research Officers (Irrigation Branch) Rules, 1954. 7-B 7-C 2 The Rajasthan Service of Engineers and Allied Posts (Public Health Engineering Branch) Rules, 1968. 6-B 6-C SCHEDULE5. The Board had also followed the said notification and took a decision vide Annexure-2 by passing a resolution being resolution No.168.48, copy of which is attached as Annexure-2 to the writ petition to the effect that in view of the notification issued by the Government dated 28.8.93 (which has been reproduced above) the junior Engineers eligible to be appointed and working in the department shall be promoted to the post of Project Engineers (Senior), however, a condition was imposed that only those engineers shall be promoted who possess the B.E. Degree and also have five years experience on the lower cadre and if some posts remain still lying vacant, those vacant posts shall be filled up by the Junior Engineers of diploma holders having experience of 12 to 15 years. In pursuance of the resolution 168.48 as many as 54 Junior Engineers were promoted to the cadre of Project Engineers (Senior) on 15.3.1995 (Annexure-4) and term was extended vide letter Annexure-5 dated 8.4.1996. In the mean time notification dated 28.8.93 issued by the Government which was made the basis of the resolution in the said case was challenged before this court in numerous writ petitions and the learned Single Judge of this court in the case of Kedar Sharma & ors. v. State of Rajasthan & ors. S.B. Civil Writ Petition No.4100/94 decided on 16.4.1996 (Annexure-3) had set aside the vires of Rule 6-C and Rule 7-C of the Rules which had amended the rules vide notification dated 28.8.93. The provisions of the rules challenged and set aside were identical to that of the regulations framed by the Board. The contention of the writ petitioner, in the case of Kedar Sharma (referred to above) was that there was no justification for the Government in filling up the vacancies of direct recruitment quota lying vacant for decades together. The Single Judge of this court had set aside the amendment.6. This very judgment had come up for consideration in appeal filed against it before the Division Bench of this court in the case of Anand Kumar Gairola and others v. Kedar Sharma and others, D.B. Civil Special Appeal No.985/96 decided on 1.4.1998 and was upheld. The Division Bench in the case of Anand Kumar Gairola (supra) had also an occasion to go in another judgment in the case of O.P. Gupta and others v. State of Rajasthan D.B. Civil Writ Petition No.682/93 decided on 24.2.1994 . It was held by the Division Bench that the in service candidates cannot be said to have acquired any benefit or acquired any vested right under Rule 7-C or 6-C of the Rules as amended in the year 1993 and deleted lateron in the year 1996. The Division Bench observed as under:- "Insertion of Rule 7C and 6C was dearly an encroachment upon the posts reserved under direct recruitment quota by diverting the posts to be filled in from amongst JEns in service of the Departments. Admittedly, it is not the case of the petitioners/appellants even, that suitable persons were not available for appointment by direct recruitment from open market by competitive examination. Admittedly, it is not the case of the petitioners/appellants even, that suitable persons were not available for appointment by direct recruitment from open market by competitive examination. The insertion of Rule 7C and 6C adversely effected rights of unemployed Graduate Engineers. On the face, they were unfair and unreasonable having no nexus. The contention that Rules 7-C and 6-C were intended to remove stagnation amongst in-service JEns is fallacious. Firstly, the in-service JEns had a right to be considered for promotion towards 50% promotional posts of AEn. Secondly, for the posts of direct recruitment quota also, eligible in service candidates could participate and in fact, eligible in-service candidates, including the petitioner had participated in the selections process made in pursuance of advertisement dated 18.1.1997." "We are in agreement with the view taken by the learned Single Judge that Rule 7C and 6C, inserted in the Rules of 1954 and Rules of 1968 respectively are arbitrary, unreasonable and discriminatory and also violative of Articles 14 and 16 of the Constitution of India." 7. However, before parting with the judgment' in Anand Kumar's case the Division Bench also took a notice of O.P. Gupta's case (supra) wherein the argument of challenging the vires of the notification being invalid on the ground of violation of Article 14 of the Constitution as such it was observed by the Division Bench as under:- "Before we conclude, we may also deal with the contention urged by Shri Mahendra Singh challenging the order of the learned Single Judge, which is to the effect that earlier a Division Bench of this Court, in the case of O.P. Gupta and others v. State of Rajasthan, (DB Civil Writ Petition No.682/93) decided on 24.2.94 , had repelled the challenge to the Notification as being invalid on the ground of violation of Article 14 of the Constitution on a different ground is not permissible in view of the decision of the Supreme Court in 1997(4) SCC 415. This contention can be rejected straightway by observing that in the case of O.P. Gupta (supra), the writ petition was filed by in-service Diploma Holder Engineers claiming their right for consideration to the posts of AEN of direct recruitment quota along with Degree-holder engineers. This contention can be rejected straightway by observing that in the case of O.P. Gupta (supra), the writ petition was filed by in-service Diploma Holder Engineers claiming their right for consideration to the posts of AEN of direct recruitment quota along with Degree-holder engineers. Hence, the said challenge cannot preclude the right of the unemployed Graduates engineers to challenge the Notification inserting Rule 7C and 6C whereby the posts reserved for them were diverted to in-service Degree-holder Junior Engineers.' 8. Without discussing any further on the import of the judgment in O.P. Gupta's case (supra) where the amendment in the notification dated 28.8.93 was held to be bad and in the case of Anand Kumar Gairola v. Kedar Sharma and others (supra) wherein the Division Bench of this court had upheld the judgment of the learned Single Judge who had quashed the vires and the amendment notification dated 28.8.93, may be because of the reason that this very amendment, the rules have been deleted from the Statute in the year 1996 which has been so observed by the later Division Bench, there was hardly any necessity to proceed the matter any further.9. But in the present case the resolution No.168.48 (Annexure-2) is not sustainable in the eyes of law for the reason that it has nowhere been mentioned that the Regulation in regard to the promotions to be made to the ratio of 50% to junior Engineers out of which 30% quota is allotted to diploma holder Junior Engineers and 20% to the Degree holder junior Engineers had been framed with the prior approval of the Government. Admittedly, this resolution seems to have been passed on the reason that the Government had amended its own rules in the year 1993 as mentioned aforesaid and a necessity was felt by the Board to pass a resolution in the similar manner. However, it was incument and obligatory on the part of the respondent Board to have sought the prior approval of the Government before passing any such resolution which amounted to amendment of the regulations of 1976. Therefore, the resolution has no legal entity and is contrary to the provisions of Section 53 of the Housing Board Act itself.10. However, it was incument and obligatory on the part of the respondent Board to have sought the prior approval of the Government before passing any such resolution which amounted to amendment of the regulations of 1976. Therefore, the resolution has no legal entity and is contrary to the provisions of Section 53 of the Housing Board Act itself.10. The respondent has taken a plea in para 12 of the written statement that the Board is an autonomous body and can frame its own regulations and decisions taken by the Rajasthan Government in amending its own rules vide notification dated 28.8.93 has no bearing and was not made basis for passing such a resolution has no merit. The resolution itself speaks that the decision is being taken because the Government had amended the rules of its junior Engineers for one time promotion.11. The petitioner has prayed for quashing the orders Annexures 4 and 5 whereby certain promotions have been made in pursuance of the resolution mentioned above. A preliminary objection has been taken by the respondent that neither of the orders Annexures 4 and 5 could be quashed for the reason that all those persons promoted as Assistant Engineers shall be affected even though the resolution No. 168.48 has not been framed in accordance with law. The appointments made in view of the resolution and against the regulations cannot be held valid, but for the reason that the persons who are to be reverted had not been made party, I shall be hesitating to pass order of quashing the orders Annexures 4 and 5. However, it shall be appropriate that the respondent Housing Board shall issue notice to the persons promoted in violation of the regulations and after giving them proper opportunity, action be taken in accordance with law, within six months from the date of receipt of this order. For the reasons mentioned above, the writ petition is partly allowed at admission stage. No order as to costs. Petition partly allowed. *******