JUDGMENT 1. - All the above writ petitions have been directed against the Rajasthan Financial Corporation (here-in-after called as RFC). For the purpose of disposal of all the above writ petitions, the facts in the case of I.S. Rathore v. RFC-S.13. Civil Writ Petition No. 362/91 are being taken into consideration. 2. The petitioner is aggrieved against the seniority list Annexure-12, the promotion policy adopted by the RFC and further challenges Regulation 19 of the Rajasthan Financial Corporation Staff Regulations, 1958 (here-in-after called as 'Regulations') so far it fixes the seniority on the basis of confirmation and further challenges the promotion of the respondents as mentioned in Annexure-15 to the post of Manager with the prayer that these promotions be declared un-constitutional and illegal. The petitioner is also aggrieved against seniority list and the promotion of respondent No.12 Shri H.C. Bairathi and respondent Nos. 3 and 4 Shri M.K. Jain and Shri R.D. Mutha. 3. The regulations governing the seniority and promotions as applicable to the petitioner have been framed by the RFC in the shape of regulations as mentioned above and certain instructions have been issued by Annexure-1 and wherein a procedure has been prescribed for effecting the promotions. 4. It is stated that vide Annexure-1 the instructions, the post of Deputy Manager in the financial group. technical group and law groups are to pe filled up 50% by way of promotion from the post of Assistant Manager and 50% by direct recruitment. At the time of filing of the writ petition, the petitioner was aggrieved by a decision of the Departmental Promotion Committee held on 20.12.1982 wherein 19 persons were directly selected for appointment to the post of Deputy Manager against the substantive vacancies but the DPC had selected only 16 persons in substantive vacancies so far as promotional quota was concerned. It is stated that the petitioner was at Sr. No. 1 in the list. The direct appointees were appointed against the quota of the year 1982-83 as per Annexure-3 numbering 19 over the respondents in the writ petitions. It is the case of the petitioner that because of the reason that the correct number of vacancies were not communicated to the DPC and, therefore, because of the conspiracy held by the vested interest and for obvious reasons instead of promoting equal number of promotees, the number of direct promotees was increased in the DPC. It is the case of the petitioner that because of the reason that the correct number of vacancies were not communicated to the DPC and, therefore, because of the conspiracy held by the vested interest and for obvious reasons instead of promoting equal number of promotees, the number of direct promotees was increased in the DPC. It is stated that he could have been appointed on 30.10.1982 in the substantive capacity, however, he was promoted in the officiating capacity on 11.1.1983 and was made substantive on 17.11.1987 vide Annexure-5. The promotion order of 16 Deputy Managers is attached as Annexure-4. It is stated that right from 11.1.1983 even though the petitioner is said to have been appointed on officiating post whereas he should have been appointed on substantive basis, which post the petitioner still continues to hold at the time of filing of the writ petition. 5. The petitioner was aggrieved against the promotion of Shri R.D. Mutha, respondent No.4, to the rank of Deputy Manager who is said to have been promoted against the quota of 1984-85 vide Annexure-6 on 21.11.1986. Similarly, M.K. Jain, respondent No.3, was also promoted on 5.1.1990 vide Annexure-8 against the quota of 1988-89. 6. The petitioner submits that the tentative seniority list (Annexure-9) was prepared wherein 19 persons directly appointed have been shown senior to the petitioner and he has been placed at Sr. No.46. Shri R.D. Mutha has been shown at Sr. No.69 and the name of Shri M.K. Jain has not been mentioned as he was promoted in the year 1990. The petitioner represented against the said seniority list with the grievance that he should be allotted the year 1982-83. The representations are attached as Annexures 10 and 11. The final seniority list is said to have been circulated on 26.7.1990 as on 1.1.1988 vide Annexure-12 in regard to Deputy Managers. The petitioner has been brought down at No.49 and the respondent No.4 Shri Mutha at Sr. No.48 and Shri M.K. Jain at Sr. No.47, i.e. the persons who were junior to the petitioner in the tentative seniority list have been made senior to the petitioner despite the fact that Shri Mutha had been promoted in the year 1984-85 and Shri M.K. Jain in the year 1988-89. No.48 and Shri M.K. Jain at Sr. No.47, i.e. the persons who were junior to the petitioner in the tentative seniority list have been made senior to the petitioner despite the fact that Shri Mutha had been promoted in the year 1984-85 and Shri M.K. Jain in the year 1988-89. It is the grievance of the petitioner that when the case/respondent of the petitioner for allotting proper year of allocation was pending, the respondents with ulterior motive hurriedly held a meeting of the DPC on 24.9.1990 and promoted certain Deputy Managers to the post of Manager vide promotion order dated 10.10.1990 (Annexure-15) by promoting respondent Nos. 2, 6, 7, 11, 12, 14, 18, 19, 21, 22 and 23. The petitioner is aggrieved that had his seniority been corrected properly, he would have been promoted as Manager. It is also the grievance of the petitioner that in any case on the seniority list of the Deputy Managers the direct recruitee could not have been made senior to the petitioner in view of Regulation 19 of the Regulations of 1958, wherein it has been mentioned that during same year if promoted, the promotees shall be senior to the direct recruitees of the same year. 7. The petitioner also submits that Rule 19 so far fixing the seniority as per the date of confirmation in regard to promotees is concerned is un-constitutional in view of the Supreme Court judgment in AIR 1977 SC 2051 as observed in para 39 of the said judgment. It is also the case of the petitioner that Shri H.C. Berathi who had joined on 4.5.1983 could not have been considered senior to the petitioner and specially when he was assinged the seniority No. 68 in the tentative seniority of the quota of 1983-84, but had been brought within the zone of consideration by bringing his name at Sr. No. 41 in the final select list by allotting the quota of 1982-83. The petitioner also challenges the Regulation 20 on the ground of vagueness to the effect that it is not clear in the regulation that if the promotions are to be made on seniority cum suitability basis or on merit basis and the matter has been left to the total sweetwill of the authorities. The petitioner also challenges the Regulation 20 on the ground of vagueness to the effect that it is not clear in the regulation that if the promotions are to be made on seniority cum suitability basis or on merit basis and the matter has been left to the total sweetwill of the authorities. It is further submitted that many of the persons promoted as Managers have not to their credit seven years outstanding or very good reports whereas the petitioner who has got outstanding and very good reports has been ignored. A specific mention has been made by Shri H.C. Berathi. 8. Reply has been filed to the writ petitions. It is stated that many of the grievances as pointed out in the writ petitions have been remedied during the pendency of the writ petition i.e. that the grievance of the petitioners was considered and he has been regularly promoted as Deputy Manager against the quota of 1982-83 and his seniority has also bee revised in the cadre of Deputy Managers and his name has been placed vide order dated 5.7.1991 below the name of Shri Onkar Mal (SC) promoted as Deputy Manager on 30.10.1992 and, therefore, in the seniority list of Deputy Managers issued on 16.11.1991, the petitioner's name has been shown at Sr. No.12 below the name of Shri R.C. Gujar Deputy Manager. The promotion of the petitioner has been made against the quota of 1982-83 as Annexures R-1/1 and, therefore, it is submitted that the petitioner has been shown below the name of Onkar Mal and the respondent Nos. 3, 4 and 12 i.e. M.K. Jain, R.D. Mutha and H.C. Berathi had been rendered junior to the petitioner in the cadre of Deputy Manager. The part of the written statement which is accompnied by the affidavit filed by Shri N.K. Ajmera working as Dy. Manager (Personnel), reads as under: "So far as the grievance of the petitioner is concerned, the same was considered by the Corporation and he has been regularly promoted as Dy. Manager against the quota of 1982-83 and further in view of his promotion in the cadre of Dy. Manager against the quota of 1982-83 his seniority has also been revised in the Cadre of Dy. Manager and his name has been placed vide order dated 5th July 1991 below the name of Sh. Onkar Mal (S.C.) promoted as Dy. Manager against the quota of 1982-83 and further in view of his promotion in the cadre of Dy. Manager against the quota of 1982-83 his seniority has also been revised in the Cadre of Dy. Manager and his name has been placed vide order dated 5th July 1991 below the name of Sh. Onkar Mal (S.C.) promoted as Dy. Manager vide order dated 30.10.1982. Accordingly, in the seniority list of Dy. Managers issued vide circular No. RFC/PA- 4(4)12244 dated 16.11.1991 name of Shri I.S. Rathore has been shown at No.12 below the name of Shri R.C. Gurjar, Dy. Manager. A photo-stat copy of the order dated 5th July, 1991 whereby Shri Rathore has been assigned seniority in the cadre of Deputy Manager against the quota of 1982-83 is annexed hereto and marked as ANNEXURE-Rl/1. Thus, the relief which has been prayed for by the petitioner has been accepted by the Corporation. As such by virtue of his placement in the seniority list below the name of Shri Onkar Mal vide order dated 5th July, 1991 the respondent No.3, 4 and 12 has now become junior to him in the cadre of Dy. Manager. Thus, the grievance raised by the petitioner by filing the present writ petition does not survive." "The case of the petitioner was reconsidered by the review DPC held on 2nd July, 1991 and he has been found suitable for promotion by the review D.P.C. in the cadre of Dy. Manager against the quota of 1982-83, thus, he become entitled for all consequential benefits in view of his revised seniority in the cadre of Dy. Manager." "A review D.P.C. met on 7th December, 1993 to consider the case of the petitioner for promotion to the post of Manager against the quota of 1990-91. No person junior to the petitioner was promoted on the basis of seniority cum suitability, except the persons of the S.C./S.T. community and so far as the promotion on the basis of merit is concerned he was not found suitable by the review D.P.C. met on 7th December 1993. It is further submitted that for the quot f 1991-92 there are three vacancies and the petitioner's name find place at S. N.12 in the list of eligible persons who are within the zone of consideration." 9. The petitioner has filed rejoinder to the written statement, material facts of which have been reproduced above. It is further submitted that for the quot f 1991-92 there are three vacancies and the petitioner's name find place at S. N.12 in the list of eligible persons who are within the zone of consideration." 9. The petitioner has filed rejoinder to the written statement, material facts of which have been reproduced above. Even though the petitioner has been allowed the seniority below the name of Shri R.C. Gujar in between the seniority No. 31 and 32 and placing the name below Onkar Mal is not correct according to the petitioner. It is stated that the petitioner's name stood at serial No.17 in the seniority list of Assistant Managers and the name of Shri Onkar Mal was at Sr.No. 38 and, therefore, his name should appear below Shri R.C. Gujar in between Sr. No. 31 and 32 in the seniority list. For the reason that he stands promoted retrospectively w.e.f. 30.10.1982 in the substantive capacity and is entitled to all consequential benefits. 10. It is also stated in the rejoinder that during the period 1990-91 there were 20 posts of Managers available out of which 50% were required to be filled in by seniority cum suitability and remaining 50% to be filled in on the basis of merit. It is stated that in making promotions in Annexure-15 if a roster system would have been followed the post of merit quota would have been reduced and the post in the quota of seniority cum suitability would have been increased. It is stated that seven persons belonging to SC/ST were promoted to the post of Managers and thus leaving only three posts to be filled on the basis of seniority subject to suitability. 11. The petitioner has attached Annexures-17, 18, 19 and 20. Sarvashri P.R. Chotia, R.D. Malpani, N.K. Jain, L.L. Khunteta, R.C. Gujar, P.C. jain, Madhukar Chaturvedi and H.C. Khunteta to the post of Managers vide orders dated 5.7.1991, 30.6.1994, 29.12.1995 and 24.2.1995 respectively. 12. Mr. Mutha respondent No.4 has also filed a written statement controverting the averments made by the petitioner. Facts Of Civil Writ Petition No. 1690/91 N.K. Jain v. R.F.C. 13. The prayer of the petitioner is to quash the impugned order dated 10.10.1990 (Annexure-15 of I.S.Rathore's case), whereby the promotion has been made to the post of Managers from amongst the Deputy Managers. Facts Of Civil Writ Petition No. 1690/91 N.K. Jain v. R.F.C. 13. The prayer of the petitioner is to quash the impugned order dated 10.10.1990 (Annexure-15 of I.S.Rathore's case), whereby the promotion has been made to the post of Managers from amongst the Deputy Managers. It has also been prayed that Shri N.M. Daga and Shri R.K. Jain did not fall within the zone of consideration for promoting them to the post of Manager. He has also challenged the seniority of Shri H.C. Berathi in the cadre of Deputy Managers to the effect that he could not have been allotted the year of 1983-84. The petitioner has also stated that the word 'merit' has not been defined in the promotion policy by the RFC or the Staff Regulations. It is stated that there are no instructions for promoting on the basis of merit. It is stated that except the present promotions made to the post of Managers all other previous promotions have been made only on seniority cum merit/suitability, right from 1983 to 1990. The petitioner has attached Annexures 2 and 3 showing that about 40 persons were promoted on seniority cum merit basis. 14. A reply has been filed. 15. It is stated in the reply filed in the present writ petition that Shri H.C. Berathi was recruited in the year 1982-83 however, he had asked for extension for joining his duties. His request was considered. Initially he was placed at Sr. No.68, but the same was rectified by bringing him at higher place at 41 as per list published on 26.7.1990. For the reason that his name was under the zone of consideration, he was promoted in the post of Manager. It is stated that while considering the case of promotion on the basis of seniority cum suitability as well as on the basis of merit, the rules as applicable to the State Government and cited by the petitioner are not at all applicable to the Corporation. It is stated that the promotions are to be made on the basis of seniority cum merit and on merit on the ratio of 50:50 and if the persons are not available on merit, the vacancies are to be filled up on the basis of seniority cum suitability. It is stated that the promotions are to be made on the basis of seniority cum merit and on merit on the ratio of 50:50 and if the persons are not available on merit, the vacancies are to be filled up on the basis of seniority cum suitability. It is submitted in para 20 that there were in all 20 vacancies which were to be considered for promotion to the post of Manager in the year 1990-91 as determined on 1.4.1990 and out of which one vacancy of back-log of ST and four posts in the category of SC with two posts of ST. It is stated that 10 vacancies were to be filled up on seniority cum suitability and 10 according to merit. 9 posts have been filled up by way of promotion on seniority cum merit and 10 on merit and one vacancy was not filled up of the reserved category of the pendency of inquiry. It is stated that the DPC took into consideration the service record of the employee including the ACRs and other record and after due scrutiny of the same persons are selected on the basis of seniority subject to suitability and on the basis of merit. It is stated that the eligible persons were considered and promoted in accordance with law. It is further submitted that separate determination of vacancies for general category and reserved category were not required in the present case as the zone of consideration is made on the basis of all the vacancies determined as on 1st April of the year. 16. A joint representation has been filed as alleged in the present writ petition stating therein, that so far the rules of the Corporation are concerned, they are silent in regard to procedure and, therefore, the procedure being adopted by the State Government if at all promotion on merit quota is available to the respondent, those promotions could be made from amongst the officers having outstanding and very-good record. 17. It is alleged in the application Annexure-8 attached with the application dated 3.4.1997 to the effect that the persons mentioned at Sr. Nos. 17. It is alleged in the application Annexure-8 attached with the application dated 3.4.1997 to the effect that the persons mentioned at Sr. Nos. 6, 14 and 15 of the impugned order of promotion to the post of Manager could not have been promoted because of the reason that they did not fulfill the minimum qualification of experience i.e. Shri H.N. Sharma, Shri N.M. Daga and Shri R.K. Jain who were promoted as Dy. Manager on 7.11.1986 and on the date 10.10.1990 when the impugned order was passed these persons had no experience of five years as per the promotion policy dated 19.9.1986 wherein it is mentioned that for the promotion to the post of Manager minimum qualifications of graduate with five years experience is required.FACTS OF Civil Writ Petition No. 1691/91 L.L. Gupta v. R.F.C. , Civil Writ Petition No. 1692/91 Babulal Gupta v. R.F.C. And Civil Writ Petition No. 1693/91 L.L. Khuteta And Civil Writ Petition No. 1694/91 P.R. Chotia v. R.F.C. 18. The complete written statement have been filed in the civil writ petition No. 1690/91 and short written statements have been filed in I.S. Rathore's case. 19. It is stated by the parties that because of identical pleadings and the points involved the written statement filed in the abovesaid two writ petitions are sufficient to decide all the above writ petitions. 20. It is the contention of the respondents that in view of the law laid down by the Supreme Court in (1) 1995(1) SLR 246, (2) JT 1996(9) SC 558, (3) 1995(2) SLR 760 , (4) 1992(2) SCC 481, (5) 1995(3) SCC 383 , and (6) 1997(1) SCC 280 , the selections made by the Selection Committee on merit cannot be interfered by the court. 21. In Sarat Kumar Dash v. Biswajit Patnaik 1995(1) SLR 246 the Supreme Court observed as under: "The next question is whether omission to record reasons amounts to violation of the principles of natural justice. The principle of audi alterim partem is a basic concept of the principle of natural justice. The omnipotency inherent in the doctrine is that no one should be condemned without being heard or given an opportunity to the person effected to present his case before taking the decision or action. In the field of administrative action, this principle has been applied to ensure fair play and justice to the effected person. The omnipotency inherent in the doctrine is that no one should be condemned without being heard or given an opportunity to the person effected to present his case before taking the decision or action. In the field of administrative action, this principle has been applied to ensure fair play and justice to the effected person. However, the doctrine is not a cure to all the ills in the process. Its application depends upon the factual matrix to improve administrative efficiency and expediency and to meet out justice. The procedure adopted would be just and fair. The reasons are links between maker of the order or that author of the decision and the order itself. The record is called to consider whether he has given due consideration to the facts placed before him before he arrives at the decision. Therefore, the reasons in the order or found from the record bridges the link between the maker of the order and the order itself of decision. Therefore, the natural justice is not a rigid nor an inflexible rule. It should be applied to a given fact situation, depending upon the background of the statutory provisions, nature of the right which may be effected and the consequences that may entail. It is already seen that the tribunal evolved are objective criteria in awarding marks to the given grading of the candidates and on its basis recommended their cases for promotion. In R.S. Dass case, this Court held that the grading itself is a reason and no separate reasons in that behalf in arranging the order of merit need be given. The grading is to obviate the need to record reasons. The finding of the Tribunal that the selection by PSC without recording reasons or need to record separately the reasons for evolving the criteria for selection is also clearly illegal." 22. In the case of Sara Kumar Dash (supra) the Selection Committee had graded the ACRs i.e. 10 marks for outstanding, 9 marks for very good, 8 marks for good, 7 marks for satisfactory and 6 marks for average. Adverse remarks were not given any marks nor any minus marks were given. For final grading the categories of A, B, C, D and E were adopted. Adverse remarks were not given any marks nor any minus marks were given. For final grading the categories of A, B, C, D and E were adopted. Outstanding was considered as A Category, Very good was considered as category B, Satisfactory was considered as Category C and Average was considered as Category D and marks as given against each of the category were 9.8 and above, 7.8 to 9.79, 6.8 to 7.79 and 6 to 6.79 respectively. It was held that the service record was with the authorities and grading was made by the Selection Committee and thus the Tribunal had evolved objective criteria in awarding the marks to give grading to the candidates and on its basis recommended their cases for promotion. It was further held that in case of merit cum suitability, the seniority should have no role to play when the candidates were found to be meritorious and suitable for higher posts. Ever a junior most man may steal a march over his seniors and jump the queue for accelarated promotion. It was observed that the PSC had objectively evolved the criteria as mentioned above and thus the Tribunal was not right by saying that the seniority had been ignored. 23. In S.L. Soni v. State of M.P. & anr. 1995(2) SLR 760 where the selection was based on merit as due record of seniority and merit was assessed on the basis of recorded ACRs of the officers of the previous five years to the year of consideration i.e. ACR should be good, integrity should be beyond doubt etc. The Supreme Court held that the committee had considered the matter and found the appellant not eligible for promotion. 24. In State of Rajasthan v. Sriram Verma and anor. JT 1996(9) SC 558 it was observed by the Supreme Court as under: "But having regard to the nature of function of selection and taking into consideration the fact that the only right of the Government servant is a right to be considered and not a right to promotion - we do not think it possible to infer the requirement of recording reasons in all situations. At the same time, we think that it is always desirable that procedure adopted by the selecting body should be fair and such as to lend credence to the process; it should be such as to inspire confidence, in all concerned within the practicable limits. From this point of view, it would be a wholesome step for the Government of Rajasthan- for that matter, all governments - to provide either by amendment of Rules or by general instructions that in the matter of promotions on the basis of merit or merit-cum-seniority/ merit-cum- suitability, the selecting authority should follow the method of grading all the candidates appearing before them. This requirement we are suggesting in cases where the Rules do not provide for grading or for awarding marks or for recording of reason for over-looking a senior; where, however, the Rules already provide for awarding of marks or any other appropriate method, our suggestion may not be applicable. It must also be understood clearly that ours is a suggestion to avoid complaints to arbitrariness and primarily with a view to make the process credible. The governments shall keep this underlying object in mind and cause appropriate amendments or issue appropriate instructions. It is obvious that any such amendments/instructions shall have only prospective operation." 25. In National Institute of Mental Health and Neuro Sciences v. Dr. K. Kalyana Raman and others 1992 Supp.(2) SCC 481 it was held that the procedural fairness is the main requirement in the administrative action. The 'fairness' and 'fair procedure' in the administrative action ought to be observed. The selection committee cannot be an exception to this principle. It must take a decision reasonably without being guided extraneous or irrelevant consideration. The Supreme Court observed as under: 'As to the first point we may state at the outset that giving of reasons for decision is different from, and in principle distinct from, the requirements of procedural fairness. The procedural fairness is the main requirement in the administrative action. The 'fairness' or 'fair procedure' in the administrative action ought to be observed. The Selection Committee cannot be an exception to this principle. It must take a decision reasonably without being guided by extraneous or irrelevant consideration. But there is nothing on record to suggest that the Selection Committee did anything to the contrary.' 26. The 'fairness' or 'fair procedure' in the administrative action ought to be observed. The Selection Committee cannot be an exception to this principle. It must take a decision reasonably without being guided by extraneous or irrelevant consideration. But there is nothing on record to suggest that the Selection Committee did anything to the contrary.' 26. In Major General I.P.S. Dewan v. Union of India and others (1995)3 SCC 383 it was observed as under: "Shri Ramaswamy relied upon the decision in Union of India v. H.P. Chothia (1978) 2 SCC 586 in support of his yet another submission that where allegations of arbitrariness are made against a Selection Board/Selection Committee, one of the members of the Board/ Committee should file a counter-affidavit explaining the circumstances in which the petitioner was not selected. We are unable to find any such proposition flowing from such decision. That was a case where neither the relevant record was produced nor did any responsible person swear to an affidavit with respect to reasons for which the petitioner therein was not included in the Select List. That is not the situation here, apart from the fact that there is no specific allegation of arbitrary conduct on the part of the Selection Board. The respondents have also produced all the relevant records which we have perused. Shri Ramaswamy then relied upon the decision in Manager, Government Branch Press v. D.B. Belliappa (1979)1 SCC 477 in support of his submission that administrative orders affecting the rights of citizens should contain reasons therefor. We are afraid, the said principle cannot be extended to matters of selection. Unless the rules so require, the Selection Committee/Selection Board is not obliged to record reasons why they are not selecting a particular person and/ or why they are selecting a particular person, as the case may be. If the said decision is sought to be relied upon with respect to the adverse remarks made against the appellant, the attack should fail for the reasons that the memo containing adverse remarks in this case does set out the particulars in support of the same. It is equally relevant to note that no allegation of mala fides or arbitrariness has been levelled against the Chief of the Army Staff who made the said remarks." 27. It is equally relevant to note that no allegation of mala fides or arbitrariness has been levelled against the Chief of the Army Staff who made the said remarks." 27. In Anil Katiyar (Mrs.) v. Union of India and others (1997)1 SCC 280 it was held as under: "Having regard to the confidential procedure which is followed by the Union Public Service Commission, it is not possible to hold that the decision of the DPC in grading the appellant as "very good" instead of "outstanding" was arbitrary. No ground is, therefore, made out for interference with the selection of Respondent 4 by the DPC on the basis of which he has been appointed as Deputy Government Advocate. But, at the same time, it has to be held that the Tribunal was in error in going into the question whether the appellant had been rightly graded as "outstanding" in the ACRs for the years 1990-91 and 1991-92. The observations of the Tribunal that out of the two "outstanding" gradings given to the appellant one "outstanding" grading does not flow from various parameteres given and the reports entered therein, cannot, therefore, be upheld and are accordingly set aside." 28. The consistent law laid down by the Hon'ble Supreme Court is that in normal circumstances the selection made by the Selection Committee on merit if the selection is based on the record is not to be interfered. The selection committee is not state (sic ?) to give any reasons for selecting or rejecting the candidates and if the procedure as adopted by the selection committee is fair and not arbitrary, which should be borne out from the record. The criteria laid down by the selection committee should be fair while promoting on merit-cum-suitability. It has also been held that for promoting on merit cum suitability, the merit is the prime factor to be considered and not the seniority even the junior most could be promoted by ignoring the seniority. However, while promoting on seniority cum suitability, seniority is the main consideration if there is nothing against the offical. 29. As per Annexure-15, from amongst the seniority of Deputy Mangers, the candidates appearing at Seniority No. 9 Rajeev Kumar, Seniority No. 13 (lateron changed to seniority No.1 by Annexure 13) of V.K. Shah and Seniority No.15 (lateron changed to seniority No.3) of V.M. Pandey. 29. As per Annexure-15, from amongst the seniority of Deputy Mangers, the candidates appearing at Seniority No. 9 Rajeev Kumar, Seniority No. 13 (lateron changed to seniority No.1 by Annexure 13) of V.K. Shah and Seniority No.15 (lateron changed to seniority No.3) of V.M. Pandey. These three persons promoted on the basis of seniority subject to suitability were admittedly senior and belonging to the batch of 1981-82. All other persons promoted on seniority basis incidently belong to either Scheduled Caste or Scheduled Tribe i.e. Shri P.D. Arya, Shri R.P. Meena, Shri B.L. Meena, Shri M.R. Chinnal, Shri S.L. Oswal and Shri Kaluram Meena wre at the seniority list at Serial No. 43, 45, 49, 69, 71 and 93 respectively. 30. The other persons Shri S.K. Jain, Ashutosh Prasad, H.N. Sharma, N.K. Purohit appearing at seniority No. 18, 23, 29 and 30 and belonging to the batch of 1982-83 were promoted on merit and similarly Kamal Mehta, N.P. Gupta appearing at serial No. 35 and 36 belonging to the batch of 1982-83 and H.C. Bairathi belonging to the batch of 1984-85, N.M. Daga and R.K. Jain seniority No. 56 and 57 belonging to the batch of 1983-84 were promoted as Managers. Out of the total 19 promotions made vide Annexure-15, which are under challenge, nine persons were promoted on seniority cum suitability out of which as many as six persons were belonging to SC/ST and three to General. There is no dispute that all the three persons promoted from general category were senior to the petitioner, however, all the Scheduled Caste persons so promoted even though promoted on seniority subject to suitability were junior to the petitioner. 31. As per promotion policy Annexure-1 dated 29.10.1982 and Annexure-2 dated 19.9.1986, the candidates to be considered for promotion were four times if the number of vacancies were upto 5, three times if the number of vacancies were from 6 to 10 and above 10, two times if the vacancies were above ten but atleast 30 eligible persons were to be considered. In the present case there were 20 vacancies and persons to be considered upto seniority No.40, but the candidates appearing below the seniority list 40 have been considered i.e. the candidates appearing at seniority No. 41 Shri H.C. Bairathi and N.M. Daga do R.K. Jain on seniority Nos. In the present case there were 20 vacancies and persons to be considered upto seniority No.40, but the candidates appearing below the seniority list 40 have been considered i.e. the candidates appearing at seniority No. 41 Shri H.C. Bairathi and N.M. Daga do R.K. Jain on seniority Nos. 56 and 57 whereas all other Scheduled Caste persons called and considered vide seniority No. 43, 45, 59, 69, 71 and 93. It is not known from the order of promotion whether the Scheduled caste candidates were selected against the roster posts. The relevant portion of the policy as produced as Annexure-1 and 2 for zone of consideration is reproduced as under:"The zone of consideration of persons eligible for promotion will be as under: No.of vacancies No. of eligible persons to be considered 1 to 5, 4 times the number of vacancies 6 to 10 3 times but atleast 20 eligible persons to be considered. Above 10 2 times but atleast 30 eligible persons to be considered." 32. The department has produced the record and the proceedings of the DPC which includes the revised DPC. There is list attached as Annexure-1 to the DPC proceedings wherein 40 persons were considered for promotion to the post of Managers, however, 8 persons of SC and ST were added as showing them extended zone of consideration (under what rules and under what instructions, the zone of consideration was extended by 8 persons is not on record, however 40+8 were considered for promotion). The name of Shri I.S. Rathore appears at Sr. No.32 according to the seniority as prevailing at the time in the seniority as prevailing at the time in the year 1990. Three members have signed the proceedings. The DPC proceedings containing about one page reads that out of total 20 vacancies 50%, of the posts are to be filled up through promotion on the basis of seniority subject to suitability and remaining 50% posts are to be filled tip on the basis of merit alone from amongst the Deputy Managers possessing five years of experience. It is also mentioned that the zone of consideration shall be two times of the number of vacancies however, in the case of SC/ST the zone of consideration has to be extended upto five times of the vacancies. It is also mentioned that the zone of consideration shall be two times of the number of vacancies however, in the case of SC/ST the zone of consideration has to be extended upto five times of the vacancies. It was mentioned that there is a back log of one post of ST and six posts are to he filled up from amongst the reserve classes i.e. four from SC. 2 from ST and thus four posts were to be filled up from amongsts the SC and three from STs. The committee just observed that after considering the APARs and service record and all connected papers it recommends the persons as mentioned in Annexure-15 to be fit for promotion to the post of Managers. First three senior most persons as per Annexure-15 were promoted on seniority/suitability basis. The next 8 persons were on merit and again two SCs and Sts on seniority and again Shri N.M. Daga and R.K. Jain on merit and remaining four persons on seniority cum suitability. 33. In the mean time the seniority had been changed of Shri I.S. Rathore petitioner from Sr. No.32 to 18 and the reviewed DPC was held on 7.12.1993. A reviewed DPC observed that seniority of Shri I.S. Rathore has been changed from 32 to 18. There were in all 20 vacancies out of which 50% were to be promoted on the basis of seniority subject to suitability and remaining 50% to be filled in on the basis of merit alone. It was observed that Shri I.S. Rathore did not fall within the candidates selected on seniority subject to suitability. Only candidates senior to him have been selected on the basis of seniority subject to suitability except SC/ST candidates. Thus Shri I.S. Rathore was not eligible for promotion under seniority subject to suitability. It is stated that his name was also considered in merit quota and he did not fulfil the requisite qualifications laid down for the promotion on the basis of merit and thus a reviewed DPC reiterated the selections made by earlier DPC in the year 1990. The minutes of reviewed DPC are as under: "Shri IS. It is stated that his name was also considered in merit quota and he did not fulfil the requisite qualifications laid down for the promotion on the basis of merit and thus a reviewed DPC reiterated the selections made by earlier DPC in the year 1990. The minutes of reviewed DPC are as under: "Shri IS. Rathore has represented for consideration of his name for promotion to the post of Manager in the DPC held on 24th September, 1990 as his seniority has changed from S. No.32 to 18 as per the minutes of teh DPC 1990 was reviewed by the DPC. It observed that seniority of Shri I.S. Rathore was changed from S.No.32 to 18. There were in all 20 vacancies, out of which 50% of the post have to be filled in through promotion on the basis of seniority subject to suitability and the remaining 50% posts have to be filled in on the basis of merit alone. Shri Rathore does not fall within the candidates selected on seniority subject to suitability. Only candidates senior to him have been selected on the basis of seniority subject to suitability except SC/ST candidates. Thus Shri I.S. Rathore was not eligible for promotion under seniority subject to suitablity. His name was also considered for promotion under merit quota. It was observed by the DPC that he does not fulfill the requisite criteria laid down for promotion on the basis of merit. Thus Shri I.S. Rathore could not be selected as Manager.' 34. It is the contention of the counsel for the petitioner that the case of the petitioner has not been considered as per the requisite criteria laid down for promotion on the basis of merit. Even though the DPC has observed that Shri I.S. Rathore does not fulfill the requisite criteria laid down for promotion, but nowhere it has been mentioned as to what was the criteria prescribed. Even in the I)PC held on 24.9.1990 it had been observed as under: "In accordance with the promotion policy of the Corporation issued vide order No. PA-23(9) 2536 dated 19.9.1986, promotion to the posts of Manager are to be made by 100% promotion from Dy. Managers (all groups). Even in the I)PC held on 24.9.1990 it had been observed as under: "In accordance with the promotion policy of the Corporation issued vide order No. PA-23(9) 2536 dated 19.9.1986, promotion to the posts of Manager are to be made by 100% promotion from Dy. Managers (all groups). 50% of the posts have to be filled in through promotion on the basis of seniority subject to suitability and the remaining 50% posts have to be filled in on the basis of merit alone. For promotion to the post of Manager, Dy. Managers possessing 5 years experience are eligible. As per norms, the zone of consideration shall be two times the number of vacancies. However, in the case of SC/ST, the zone of consideration has to be extended upto 5 times the number of vacancies." "A list of eligible officers considered by the DPC is enclosed. After careful consideration of the Annual Confidential Reports, personal files, entire service record and all other connected papers, the Committee found the following officers fit for promotion to the post of Managers and recommends accordingly." (Ultimately as per Annexure-15 the names have been mentioned of the selected persons.) 35. Admittedly, 7 persons as per 100 point roster were to be filled up from out of SC and ST. Remaining 13 vacancies were to be filled up on the basis of seniority and also on the basis of merit. One post has not been filled up and thus out of 19 posts if 7 persons have been promoted out of SC candidates which were bound to be filled up on the roster and out of remaining 12, six were to be promoted on the basis of seniority and remaining six on the basis of merit and thus Shri S.K. lain, Shri Ashutosh Kumar and Shri H.N. Sharma were on the seniority,list as per seniority list Annexure 12 at Sr. No. 18, 23 and 29. The petitioner's seniority number had been changed to 18 from 32 as per order dated 22.7.1991 and in that situation it could not be said that the petitioner Shri I.S. Rathore was not on seniority. The DPC had committed an error by promoting the senior persons on merit instead of considering them on seniority. Six posts are bound to go on the basis of seniority cum merit and the remaining six posts on merit alone. The DPC had committed an error by promoting the senior persons on merit instead of considering them on seniority. Six posts are bound to go on the basis of seniority cum merit and the remaining six posts on merit alone. In no case Shri S.K. Jain, Ashotosh Kumar and Shri H.N. Sharma could have been promoted n merit amongst the first six as six persons on seniority, if their record is not bad they were to be promoted on 50% quota meant for seniority cum merit. The reviewed DPC held on 7.12.1993 had ignored this fact and mechanically passed the order that the petitioner is not on seniority. 36. The reviewed DPC has also erred in law in holding that even on merit the petitioner Shri I.S. Rathore did not fulfill the criteria as prescribed. What is the criteria prescribed is not known nor had been brought on record by the respondents. Whatever is placed on record has been reproduced above. The DPC has not even considered the merits even though no reasons are to be given by the DPC, but the DPC is bound to consider the respective merits of the candidates and to come to its own conclusion. 37. Apart from above, seven posts meant for SC/ST are said to have been promoted on the basis of seniority cum merit, may be on roster point. 38. As per the promotion policy, for 13 vacancies of general quota, the DPC was supposed to call only 30 persons and not 40 and similarly for seven vacancies of SC, the DPC was supposed to consider three times or atleast 20 persons if not five times of SC candidates as per DPC proceedings. It is not known as to how and under what rules or instructions 40 persons were considered from the general candidates for 12 posts whereas it should have been 30 and similarly from amongst the SC candidates should have been considered separately as per roster policy. Thus whole of the selections made by the DPC either in the year 1990 or even ignoring the case of the petitioner Shri I.S. Rathore in the reviewed DPC cannot be sustained in the eyes of law and Annexure-15 as such is to be quashed with a direction to reconstitute the DPC and to consider the case of eligible persons as per the policy and the seniority list and discussion made above. CHALLENGE OF SHRI H.C. BAIRATHI RESPONDENT: 39. Shri H.C. Bairathi though had been selected in the year 1982-83, but had only joined on 4.5.1983. The challenge has been made by the petitioner in all the writ petitions that he should not have been allocated the year of 1982-83 when he had not joined in the said year. As per Annexure-9, he was initially allotted the seniority amongst the Deputy Managers and was placed at Sr. No. 88 by allotting the recruitment year 1984-85 whereas the petitioner Shri I.S. Rathore was allotted the year 1983-84 and his tentative seniority was 46 vide Annexure-12 as the final seniority of Shri Bairathi was brought at No.41 and was allotted the year of 1982-83 and thus definitely Shri Berathi has been favoured. The change of seniority in his favour allotting him the seniority has been requested to be quashed with a direction that his seniority is to be refixed. 40. Re-allotting the seniority of the petitioner after accepting the representation of Shri I.S. Rathore: Admittedly, in the reply filed in S.B. Civil Writ Petition No. 362/91 it has been admitted that on reconsideation of the case petitioner Shri I.S. Rathore has been allotted the seniority over and above Shri H.C. Bairathi, M.K. Jain and R.D. Mutha and has been allotted the year of 1982-83 and vide order dated 5.7.1991 his name has been placed below Shri Onkarmal. It has also been mentioned that according to the seniority list of Deputy Managers issued vide circular No. RFC/PA- 4(4)/2244/16.11.91, the name of the petitioner has been shown at Sr. No.12 below the name of Shri R.C. Gujar. 41. In the written statement it has been admitted that his name has been placed below Shri R.C. Gujar, but still in the order it has been mentioned that his name shall be shown below Shri Onkarmal. Because of the admission in the written statement that name of Shri I.S. Rathore has been shown at Sr. No.12 below the name of Shri R.C. Gujar as per circular dated 16.11.1991 (copy has not been attached by the department for the reasons best known to it), the seniority of Shri I.S. Rathore petitioner is to be fixed below Shri R.C. Gujar.CHALLENGE TO PROMOTIONS OF SHRI N.M. DAGA AND SHRI R.K. JAIN. 42. No.12 below the name of Shri R.C. Gujar as per circular dated 16.11.1991 (copy has not been attached by the department for the reasons best known to it), the seniority of Shri I.S. Rathore petitioner is to be fixed below Shri R.C. Gujar.CHALLENGE TO PROMOTIONS OF SHRI N.M. DAGA AND SHRI R.K. JAIN. 42. Apart from the fact that whole of the promotion list (Annexure-15) has been quashed above, but it is admitted that Shri Daga and Shri R.K. Jain should not have been brought within the zone of consideration because of the reason that as per the policy of 1986 they were much below on the seniority list to be considered. Even as per the seniority list as prevailing at the relevant time Shri Daga was in seniority no.56 and Shri R.K. Jain at No.57 and they did not and could not fall within the zone of consideration. Promotions of these two persons are also likely to be quashed for this reason.CHALLENGE TO THE PROMOTION OF SHRI H.N. SHARMA AND SHRI N.M. DAGA AND SHRI R.K. JAIN ON THE GROUND THAT THEY WERE NOT FULFILLING THE QUALIFICATION AND EXPERIENCE. 43. Admittedly, experience required for promotion to the post of Manager is five years as the Deputy Manager. Even though the allegation has been made that the above said persons had not completed five years at the time of promotion as Manager, but there is no specific denial in this regard nor any promotion orders on the post of Deputy Managers have been placed on record. In case any of the candidate does not complete five years of experinece as required, such candidate is not eligible for consideration and to be brought within the zone of consideration. No definite finding can be given by this court in regard to above said persons to the effect whether they had completed five years of service or not because of no specific reply in this regard filed by the respondent, however, if any of the candidate had not completed five years of service on the post of Deputy Manager at the time of consideration by the DPC, consideration of such candidate was definitely in violation of policy of promotion of 1986 (Annexure-2).CHALLENGE TO REGULATION 19 TO THE FACT THAT FIXING UP SENIORITY WHEN THE CANDIDATE IS CONFIRMED ON THE POST IS ILLEGAL: 44. Regulation 19 of the Regulations of 1958 provides that the seniority of the employees shall be fixed in his grade according to his date of confirmation in the grade and employees on probation according to length of the probationary service. 45. The regulation reads as under: 19. Seniority: An employee confirmed in the Corporation service shall rank for seniority in his grade according to his date of confirmation in the grade and employee on probation according to the length of his probationery service.' 46. Challenge has been made by the petitioner with the submission that the provisions in the regulations to fix the seniority in the service as per the date of confirmation cannot be upheld in the eyes of law in view of the Supreme Court judgment reported in AIR 1977 SC 2051 and a prayer has been made that the seniority should be fixed from the length of service in the scale and not from the date of confirmation for the reason that the confirmation is not in the hand of the employee and the provision can be used abritrarily and the persons can be discriminated against. 47. The Hon'ble Supreme Court had struck down the rules which provide seniority to be fixed on the basis of date of confirmation. The Supreme Court observed as under: "39. If officiating Deputy Engineers belong to Class II cadre as much as direct rectuits do and if the quota system cannot operate upon their respective confirmation in that cadre, is there any valid basis for applying different standards to the members of the two groups for determining their seniority ? Though drawn from two different sources, the direct recruits and promotees constitute in the instant case a single integrated cadre. They discharge identical functions, bear similar responsibilities and acquire an equal amount of experinece in their respective assignments. And yet Clause (iii) of Rule 7 provides that probationers recruited during any year shall in a bunch be treated as senior to promotees confirmed in that year. The plain arithmetic of this formula is that a direct recruit appointed on probation, say in 1966, is to be regarded as senior to a promotee who was appointed as an officiating Deputy Engineer, say in 1956, but was confirmed in 1966 after continuous officiation till then. The plain arithmetic of this formula is that a direct recruit appointed on probation, say in 1966, is to be regarded as senior to a promotee who was appointed as an officiating Deputy Engineer, say in 1956, but was confirmed in 1966 after continuous officiation till then. This formula gives to the direct recruit even the benefit of his one year's period of training and another year's period of probation for the purposes of seniority and denies to promotee the benefit of the long and valuable experience. If there was some intelligible ground for this differentiation bearing nexus with efficiency in public services, it might perhaps have been possible to sustain such a classification. It is interesting that time and again the State Government found it difficult to justify the hostile treatment accorded to the promotees. In various affidavits filed on their behalf, entirely contradictory contentions were taken, sometimes in favour of the promotees and sometimes in favour of direct recruits. Instead of adopting an intelligible differentia, Rule (iii) leaves seniority to be determined on the sole touch-stone of confirmation which seems to us indefensible. Confirmation is one of the inglorious uncertainties of Government service depending neither on efficiency of the incumbent nor on the availability of substantive vacancies. A glaring instance widely known in a part of our country is of a distinguished member of the judiciary who was confirmed as a District Judge years after he was confirmed as a Judge of the High Court. It is on the record of these writ petitions that officiating Deputy Engineers were not confirmed even though substantive vacancies were available in which they could have been confirmed. It shows that confirmation does not have to conform to any set rules and whether an employee should be confirmed or not depends on the sweet will and pleasure of the government." 48. For the reasons mentioned above, it is to be held that the fixation of the seniority in the respective cadres of the service by the respondents basing it to be under Regulation 19 i.e. from the date of confirmation is to be set aside and direction is to be issued to the respondents to re-fix the seniority of the employees from the date of joining the cadre. 49. For the reasons mentioned above, the writ petitions are allowed. 49. For the reasons mentioned above, the writ petitions are allowed. Regulation 19 of the R.F.C. Regulations, 1958 so far relates to the seniority to be fixed on the basis of confirmation is declared to be ultravires. The proceedings of the DPC so far it relates to the promotions of the persons mentioned in Annexure-15 in I.S. Rathore's case except the promotion of Rajeev Kumar, V.K. Shah, B.M. Pandey who have been promoted being senior most on seniority subject to suitability are held to be ultravires and is quashed with a direction that the DPC would review the promotions as per the seniority of the candidates to be fixed, by placing Deputy Managers on the seniority list from the date of their posting in the scale/grade and not from the date of confirmation. 50. The seniority of Shri I.S.Rathore shall be fixed below the name of Shri R.C. Gujar, as per admission in the written statement filed in the .ase of I.S. Rathore. 51. The writ petitions are allowed as per directions given above. No order as to cost.Petition allowed. *******