JUDGMENT 1. - By way of this writ petition, the petitioners have challenged the validity of promotion to the post of Assistant Excise Officer (Prevention) having been given to the respondent No. 4 vide order dated 10-6-1993 of the respondent No. 3. on the recommendations of the Departmental Promotion Committee in Its meeting convened on 4-6-1993 for the period 1993-94. 2. The case of the petitioners is that on the basis of seniority list having been provisionally Issued by the Excise Commissioner on 16-11-1991. for the post of Patrolling Officer (Excise) Prevention Officers, as on 1-4-1991 wherein their names stand at S. Nos. 3 (petitioner No. 1) and 4 (petitioner No. 2) whereas name of respondent No. 4 stands at S. No. 5. and the persons whose names stand at Nos. 1 and 2 were already JQ/LQ/R509/99/ABD/RTI' promoted to the post of Assistant Exercise Officer, therefore, they (petitioners) being senior to the respondent No. 4 were entitled to be promoted to the post in question on the basis of their seniority-cum-merit particularly when their work performance was to utmost satisfaction of their superior officers and always appreciated by them which is evident from the award of cash rewards and appreciation certificates in the year 1989-90. Shri B.L. Sharma, learned Senior Advocate appearing on behalf of the petitioners contended that as per Rule 17 of the Rajasthan Excise (Preventive Officers) Service Rules. 1967 (for short, 'the Rules 1967'), the selection for promotion to the post in question has to be done strictly on the basis of merit and seniority-cum- merit in the proportion of 50 : 50. But, the respondents have violated the aforesaid rules while considering the matter for the post in question which stood vacant for the period 1993-94. 3. In reply to the contentions advanced on behalf of the petitioners, the learned Additional Advocate General contended that there was only one post in question lying vacant for the period 1993-94 and as per the Service Rules, 1967, the posts of Assistant Excise Officers (Preventive) are to be filled up in the ratio of 50% by seniority-cum-merit and 50% by merit and according to this cycle of promotion under the Rules. 1967. since the last post was filled up on the basis of seniority-cum-merit. 1967. since the last post was filled up on the basis of seniority-cum-merit. therefore, the vacancy for 1993- 94 was to be filled up on the basis of merit and in this view of the matter, for this one post in question five persons holding the posts of Patrolling Officers (Preventive) including the two petitioners and respondent No. 4 besides two others were considered by the departmental promotion committee in its meeting convened on 4-6-1993 and after examination of the Annual Performance Appraisal Reports besides other service records of the officers who were withing zone of consideration, the DPC found suitable and recommended respondent No. 4 for being selected and promoted to the post in question and pursuant thereto vide order dated 10-6- 1993 the respondent No. 4 was promoted on the post in question and consequently he joined on 11-6-1993. In these circumstances, Shri Rathore contended that there was no violation of any of the provisions contained in the Rules, 1967 for promotion to the post in question and since, the petitioners have no case on merit, therefore, their writ petition deserves to be dismissed. 4. Having considered the rival contentions advanced at the bar and examined the relevant service records of the petitioners qua respondent No. 4 and relevant rules with reference to their contentions. I find that the sole question to be decided in this writ petition is as to whether the departmental promotion committee. In its meeting convened on 4-6-1993 for consideration of promotion to the post of Assistant Excise Officer (Preventive) under the Rules, 1967 for the year 1993-94 has committed any violation of the provisions envisaged under the Rules, 1967 while recommending the respondent No. 4 qua the petitioners for being promoted for the post in question. 5. Upon careful perusal of the proceedings of the departmental promotion committee and other service records as well as the Rules on the subject it is crystal clear that undoubtedly the petitioners were senior to the respondent No. 4 because as per zone of consideration out of five officers, petitioners' were placed at S. No. 1 and 2 respectively as against respondent No. 4 who stood at S. No. 3 in the list of candidates in their respective order of merit annexed to the minutes of the DPC meeting convened on 4-6-1993, wherein the DPC found that as per its preceding meeting convened on 14-2-1992. The last post was filled upon on the basis of criteria of 'merit' since as per the cycle of promotion to the post in question envisaged in the Rules, 1967, the posts of Assistant Excise Officers (Preventive) are to be filled up in the ratio of 50% by seniority-cum-merit and 50% by merit. The DPC had considered the candidature of following officers who were eligible having come within the zone of consideration (1) Shri Nenu Ram (petitioner), (2) Shri Gyan Shanker Sharma (petitioner), (3) Rishi Raj Singh (respondent No. 4), (4) Shri Narendra Singh and (5) Shri Zorawar Singh. 6. In my considered view, the DPC while doing the above exercise has rightly found that since the last post was filled up on the basis of seniority-cum-merit, the vacancy for 1993-94 was to be filled up on the basis of 'merit' in view of the ratio of 50% by seniority cum merit and 50% by merit as envisaged in the Rules, 1967 and, therefore, the DPC has not at all violated any of the provisions contained in the Rules 1967 in this regard. Thus, in my considered opinion, the post in question was rightly filled up on by recommending respondent No. 4 on the basis of merit and hence no fault, imperfection or arbitrariness can be attributed to the recommendations of the DPC for the period in question. 7. It is not the case of the petitioners that the respondent No. 4 was not eligible for being considered for promotion to the post in question. Their case is that they are senior to the respondent No. 4 and are more meritorious than him, and , therefore, on the basis of seniority cum merit they could have been recommended by the DPC for being promoted to the post in question. I find no merit in their contention because since the service Rules, 1967 postulates that posts of Assistant Excise Officers (Preventive) are to be filed up in the ratio of 50% by seniority-cum-merit and 50% by merit and the last post was filed up on the basis of seniority cum merit, the vacancy for 1993-94 for the post in question to which the respondent No. 4 was recommended and promoted, was rightly to be filled up on the basis of merit. 8. 8. Now, the question remains to be considered is whether the respondent No. 4 was more meritorious than the petitioners for being promoted to the post in question on the basis of merit in view of comparative Annual Performance Appraisal Reports (for short "APARs") and other relevant service records. 9. Part II of the Rules to be followed by the Departmental Promotion Committee deals with procedure, eligibility and criteria of promotion and merit formula. Sub-clause (4) of clause I of the Part II of the aforesaid DPC Rules provides that selection for promotion in the regular line of promotion from the post/ posts not included in service to the lowest post or category of post in the service shall be made strictly on the basis of merit and on the basis of seniority-cum-merit in the proportion of 50 :50 provided that if the Committee is satisfied that suitable persons are not available for selection by promotion strictly on the basis of merit in a particular year. selection by promotion on the basis of seniority-cum-merit may be made in the same manner as specified in these rules. Explanation to sub-clause (11) to clause 1 of the Part II of the aforesaid DPC Rules makes it patently clear that for the purpose of selection for promotion on the basis of merit officers with "Outstanding " or consistently "very good" record shall only be selected and their names arranged in the order of seniority. 10. Consequent upon persual of the minutes of proceedings of the meeting of the DPC convened on 4-6-1993, wherein Chairman, RPSC, Secretary Finance (Revenue), Deputy Secretary of the Department of Personnel and the Excise Commissioner of Rajasthan were the members present, it is borne out that the afore named five persons including the petitioners and respondent No. 4 were found eligible having come within the zone of consideration and the member of the DPC after having looked into the annual performance appraisal reports and other relevant service records of all those eligible candidates coming within the zone of consideration, came to the conclusion that Shri Rishi Raj Singh (respondent No. 4) is most suitable to be promoted on the basis of merit to the post in question for the period 1993- 94. On the basis of these recommendations and selection made by the DPC, the respondent State authority issued an order dated 10-6-1993 promoting the respondent No. 4 to the post in question and accordingly he joined as such on 11-6-1993. 11. Pursuant to the direction of this Court issued in the order dated 23-4-1998, the learned Additional Advocate General produced the relevant service record and comparative chart showing entries in the APARs of the petitioners as well as respondent No. 4 for the period preceding seven years i.e. for the period from 1986-87 to 1993-94. I have perused and taken into consideration the relevant service record and the comparative chart produced by the respondent State authority and a careful perusal thereof shows that the respondent No. 1 who has more outstanding and very good remarks in his APARs for the period of seven years preceding 1993-94 (i.e. 1985-86 to 1993-94) as against the petitioners who had no outstanding remarks and only one outstanding remarks for 1991-92 before which also he had remarks stating as "Good" for the period from 1987- 88 to 1990-91. The respondent No. 4 had outstanding remarks for the years 1985-86 and 1987-88 and then very good remarks for the years 1988-89 to 1990-91. In this view of the matter. In my considered view, the respondent No. 4 being more meritorious than the petitioners was rightly found suitable and selected for being promoted to the post in question for the year 1993-94 on the basis of merit as he had acquired "Oustanding" or consistently "very good" record in his APARs. 12. In Shambhu Singh Meena v. State of Rajasthan 1995 Supp (2) SCC 431 : (1995 Lab IC 1774) , dealing with the matter of promotion on merit basis in Rajasthan Administrative Service has taken note of the Explanation to sub-rule (11) which prescribes that for purpose of selection for promotion on the basis of merit, officers with "outstanding" or seniority 'very good' record shall only be selected and their names arranged in the order of seniority. In Shambhu Singh's case (supra), on behalf of the petitioner, it was stated that prior to the judgment of the Rajasthan High Court in Randhir Singh's case (in the year 1990) (D.B. Civil Writ Petition No. 3273/87 Randhir Singh v. State decided on 9-4-1990) , it was never contemplated or held as a matter of practice that all the APARs must be consistenty outstanding or very good and that for the purpose of selection for promotion on merit basis a person having 5 or 7 outstanding or very good was considered fit. It was observed by the Apex Court that in earlier case the State of Rajasthan had taken similar stand, as could be seen from the decision in the matter of State of Rajasthan v. Rajendra Kumar Godika 1993 Supp (3) SCC 150: (1993 Lab IC 964) though that case related to promotion in Rajasthan Education Service. The Apex Court took note of the observations made in the impugned judgments of the Tribunal and the Rajasthan High Court wherein it had been observed thus:- "We have been consistently holding that the ACRs/APARs of the officers pertaining to seven years including the year of selection should either be "Very Good" or "outstanding" if they have to be selected on the basis of merit as per the notification dated 11-4-1979. In the ultimate analysis, the Apex Court held that, "in our opinion, the Tribunal and the High Court have correctly construed the explanation and no interference is called for. The amendment made on 30-11-1991 being subsequent to the orders of promotion which are challenged in these cases, obviously cannot apply to these cases. Therefore, all these SLPs are dismissed." 13. The amendment dated 30-11-1991 referre to above in Shambhu Meena's case (1995 Lab IC 1774) (SC) (supra), was made substituting Explanation below sub-rule (5), (6), (9) or (10) or sub-rule (11) in the respective service rules (stated in the notification dated 30-11-1991 filed as Annexure C/1 during the course of hearing before this Court in this writ petition) in the following manner:- "Explanation:- For the purpose of selection for promotion on the basis of merit no person shall be selected if he does not have 'outstanding" or "very good" record atleast five out of the 7 years preceding the year for which UPC is held". 14. 14. Keeping in view of the afore quoted explanation which came into effect by virtue of aforesaid notification dated 30-11-1991 (Annexure C/1) it is obviously clear that for the purpose of selection for promotion on the basis of merit, no person shall be selected if he does not have "outstanding or very good" record atleast five out of seven years preceding the year for which the DPC is held 15. In the instant case, as already observed above since the petitioners did not have outstanding or very good record atleast five out of seven years preceding the year, i.e. 1993-94, In my considered view, the DPC has rightly not found the petitioners suitable for being selected for promotion to the post in question and it has rightly found respondent No. 4 suitable and selected him for promotion to the post in question for the period 1993- 94. 16. It is also not the case of the petitioners that the DPC has recommended the persons from among five coming within zons of consideration, having lower merit qua the respondent No. 4 or the petitioners, whereas already observed and found above, the respondent No. 4 having two outstanding and three very good remarks in his APARs out of seven years' APARs preceding the period 1993- 94 for which DPC was held, was found more meritorious qua other eligible persons coming within zone of consideration, rightly by the DPC. Consequently, I find no merit in the contentions of the petitioners in any aspect of the matter. 17. As a result of the above discussion. Writ petition being devoid of any merit is accordingly dismissed with no order as to costs. Summoned record be returned back to the concerned officer.Petition dismissed. *******