Shrawan Sawney v. State of Rajasthan — 1999 DIGILAW 1258 (RAJ)

Honble SHARMA, J.–The petitioners have a common grievance against the decision taken by the State of Rajasthan to promote persons junior to them affecting prejudicially their service career for all times to come. The petitioners were selected by the Rajasthan Public Service Commission (for short the RPSC) for direct recruitment to the Rajasthan Administrative Service (Ordinary Scale. On the recommendation of the RPSC the Government issued order of appointment on November 23, 1982. The petitioners were initially appointed as probationers for a period of two years. They became entitled to be confirmed in the ordinary scale of RAS after completion of two years of service successfully i.e. on November 23, 1984 but order of confirmation was delayed and it was made on Feb. 19, 1987. The vacancies against which the petitioners had been appointed pertain to the year 1980 or earlier than that. Prior to the recruitment of the petitioners, the appointments to the RAS (Ordinary Scale) had been made in the year 1980 against the vacancies of 1978 or 1979 and the batch was known as `1979 direct recruits whereas the petitioners batch was known as `1980 direct recruits. A seniority list of the officers of the RAS was issued on December 22, 1986 showing the position as on December 8, 1986 in the selection scale, senior scale and ordinary scale. Names of the petitioners appeared at Nos. 51 to 75 in that list as direct recruits of 1980. Below them have been shown the direct recruits of 1981-82, 1983 and thereafter, promotees have been placed. After completion of five years of service all the petitioners had become eligible for promotion to the Senior Scale of RAS as all of them fulfilled all the conditions of eligibility. (2). But the chances of promotion of the petitioners had been stultified by the decision taken by the Government to treat the petitioners as juniors to the promotees of 1981-82 and 1982-83. According to the petitioners the action of the State of Rajasthan in seeking to deny seniority to the petitioners vis-a-vis the promotees to the 1981-82 and 1982-83 and also denying them promotion to the senior scale of RAS on this premises, is wholly arbitrary. According to the petitioners the action of the State of Rajasthan in seeking to deny seniority to the petitioners vis-a-vis the promotees to the 1981-82 and 1982-83 and also denying them promotion to the senior scale of RAS on this premises, is wholly arbitrary. The petitioners have therefore approached this court by filing the instant writ petition with the following prayers - (i) the provisions of Rule 9(2) read with Rule 28-B (11-A) and Rule 33(1) and proviso (ii) to Rule 33 of the Rajasthan Administrative Service Rules 1954 be declared unconstitutional and struck down. The respondent State be directed to maintain the quota between the direct recruits and the promotees in the matter of determination of their seniority and promotion to the Senior Scale of RAS be given with all consequential be benefits on the basis of such seniority. (ii) The petitioners by declared confirmed w.e.f. November 22, 1984 i.e. after the expiry of two years period of probation. (3). The respondent State of Rajasthan filed reply to the writ petition and averred that the joint writ petition filed by certain persons having different cause of action from different dates and with different relief is not maintainable and Rule 375-A of the Rajasthan High Court Rules do not apply on such joint writ petition. The respondent State admitted the confirmation orders of direct recruits appointed by order dated November 23, 1982 were issued on 19.2.1987 with effect from the date they had completed the probation period. It has been averred that the year of vacancy is the relevant for the purpose of direct recruits but they cannot get service benefit from the year of vacancy and will get all service benefits from the date they have joined service on substantive basis. It has been further submitted that the seniority and confirmation of direct recruits is to be determined with effect from the date they have been confirmed after completion of their probation period satisfactorily and are not entitled to get their seniority from the date when the vacancy arose. It is absolute discretion of the State Government to create, abolish, or to keep a post in abeyance. If no selection is made then this will not give any grievance for the selectees of later years. The respondents submitted that the petitioners have withheld the information from this Honble Court. It is absolute discretion of the State Government to create, abolish, or to keep a post in abeyance. If no selection is made then this will not give any grievance for the selectees of later years. The respondents submitted that the petitioners have withheld the information from this Honble Court. The seniority list of Junior Scale of RAS Officers was issued on 22.12.1986 which has been revised and the revised seniority list was published and circulated on January 30, 1989, which has not been challenged by the petitioners. The petitioners though eligible for promotion to the Senior Scale of RAS from the date of their acquiring eligibility according to the rules but promotion on Senior Scale are subject to the rules of seniority, merit and availability of vacancy in the cadre of senior scale of RAS. The petitioners are having alternative efficacious remedy of appeal against the order of the Government and the writ petition is not maintainable. The petitioners have not put in correct constructions of rules before this Honble Court regarding determination of vacancies. The vacancies have been determined in accordance with the quota prescribed for the relevant year under the rules. On the basis of quota prescribed for each mode of appointment, exact number of vacancies were determined and the promotion of junior scale RAS to senior scale RAS were made on the basis of total cadre strength of the service. The RPSC has not been arrayed as respondent in the instant case and no averment can be made and adjudicated upon against the Commission in the writ petition in the absence of RPSC. The seniority list dated 30.1.1989 has been published in pursuance of the courts order passed in D.B. Civil Writ Petition No. 3719/1988 B.L. Kandoi vs. State and Niranjan Prasad Sharma vs. State in (D.B. Civil Writ Petition No. 376/89) filed in the High Court at Jodhpur. Therefore the seniority list dated January 30, 1989 cannot be said to be illegal, arbitrary unreasonable and unjustified. The petitioners have also challenged the validity of Rule 9(1) of rule 2 and also rule 6A of the Rules of 1972 as well as Rule 28(B) and proviso to Rule 3 of the Rules of 1954 but they have not been able to show how these provisions are unconstitutional and violative of Articles 14 and 16 of the Constitution. The petitioners have also challenged the validity of Rule 9(1) of rule 2 and also rule 6A of the Rules of 1972 as well as Rule 28(B) and proviso to Rule 3 of the Rules of 1954 but they have not been able to show how these provisions are unconstitutional and violative of Articles 14 and 16 of the Constitution. No reason has been assigned as to why these provisions of the rules are ultravires and grounds of ultravires rules have been taken malafidely to create jurisdiction of the writ petition. (4). Mr. R.D. Rastogi, learned counsel appearing for the petitioners contended that the posts of RAS were advertised in pursuance of the Rajasthan State and Subordinate Combined Competitive Service Rules, 1962 in the year 1980 and the vacancies also related to the year 1980 and written examination was held in the year 1981 and final recommendations for appointment were made by the RPSC to the Government in the year 1982 and vide letter dated November 23, 1982 (Annexure-1) the petitioners were appointed in the Junior Scale of RAS and were put on probation for a period of two years which expired on January 22, 1984. Rule 34-A provides for confirmation of the services which clearly prescribes that if after the expiry of the period of probation employee is not confirmed within a period of six months then he or she shall be entitled to be treated as confirmed subject to fulfillment of certain conditions. The learned counsel submitted that it is a case of deemed confirmation as per the provisions of the Rules. Therefore the confirmation order should have been on January 22, 1984 itself but for the sole inaction on the part of the respondent State, this confirmation was delayed and without any justification the petitioners were confirmed on February 19, 1987. The learned counsel submitted that after successful completion of probation period followed by confirmation, the services of the petitioners should be counted for all the purposes like seniority etc. from the date of initial joining. Reliance has been placed on H.N. Sehgal vs. Union of India (1) and Baleshwar Das vs. State of Uttar Pradesh (2). (5). The learned counsel submitted that after successful completion of probation period followed by confirmation, the services of the petitioners should be counted for all the purposes like seniority etc. from the date of initial joining. Reliance has been placed on H.N. Sehgal vs. Union of India (1) and Baleshwar Das vs. State of Uttar Pradesh (2). (5). The learned counsel for the petitioner canvassed that Rule 9(2) of the Rules of 1954 is discriminatory as this rule makes provision for the protection of interest of only promotees but does not at all make such provision for direct recruits whereas rule 9(1)(a) & (c) of the Rules of 1954 are quite clear that where a post is to be filled in by more than one method as prescribed in the rules then the apportionment of vacancies should be done maintaining the prescribed proportion. It is submitted that Junior Scale posts of RAS are to be filled in 75% by direct recruitment and 25% by way of promotion. Rule 7 of the Rules of 1954 makes it incumbent upon the employer to maintain the quota between the direct recruits and promotees but rule 9(2) of the Rules of 1954 takes care of the interest of promotees only. The learned counsel also canvassed that Rule 28(B) (11-A) of the Rules of 1954 is discriminatory and arbitrary, since it also does not take care of the interest of direct recruits. Mr. Rastogi canvassed that the State Government wants to save the rule on the premise the Rule 5 of the Rajasthan Service (Recruitment by Promotion against vacancies of earlier years) Rules 1972 (in short Rules of 1972) gives power to accord seniority to the promotees for the year for which they were entitled to be promoted but could not be promoted for not holding of DPC. The benefit of Rules of 1972 could have been given to the promotees only if in a particular year direct recruitment was made but promotions could not be made. The learned counsel submitted that when no direct recruitment was made in the Junior Scale of RAS in the year 1980-81 then there was no occasion to give benefit to the promotees of the rules of 1972. Thus the State Government illegally oversubscribed the promotion quota. The learned counsel submitted that when no direct recruitment was made in the Junior Scale of RAS in the year 1980-81 then there was no occasion to give benefit to the promotees of the rules of 1972. Thus the State Government illegally oversubscribed the promotion quota. Reliance has been placed on Narendra Kumar Sen vs. State of Rajasthan (3) which has been affirmed by the Division Bench in 1993 WLC page 765 (4). (6). Mr. Rastogi canvassed that the counting of seniority from the date of confirmation is arbitrary as the respondents delayed the confirmation placing reliance on S.B. Patvardhan vs. State of Maharashtra (5), M.S.L. Patil vs. State of Maharashtra (6) and Mohan Lal vs. State of Himachal Pradesh (7). (7). Mr. Rastogi submitted graphic presentation of the vacancies in order to show the excess promotion given to the promotees in preference to direct recruits. Promotees of the years 1980-81, 1981-82, 1982-83 and 1983-84 have been accorded higher seniority than the petitioners simply on the premise that the petitioners were confirmed on Feb. 19, 1987. Reliance in this connection has been placed on S.K. Agrawal and others vs. State of Rajasthan (8) and Keshav Chandra Joshi vs. Union of India (9) and M.S. Patil vs. State of Maharashtra (supra). (8). Mr. R.N. Mathur, learned Addl. Advocate General appearing for the State canvassed that Rule 9(2) read with Rule 28-B (11-A) and Rule 33(1) and proviso (ii) to Rule 33 of the Rules of 1954 are not ultravires of the Constitution of India because they do not violate any fundamental rights guaranteed by the Constitution of India. The learned Additional Advocate General submitted that the total cadre strength in the years 1981-82 and 1982-83 in Ordinary Scale of RAS was 234 and the quota for direct recruitment and promotion and special selection/E.C. was correctly maintained. Mr. Mathur submitted that promotion if in excess quota does not prejudice direct recruits as has been held in by the Honble Apex Court in 1998(6) SCC 630 (10). In support of his contention that confirmation can be the basis for reckoning seniority Mr. Mathur placed reliance on M.P Chandolia vs. State of Madhya Pradesh (11) and Mohan Lal vs. State of Himachal Pradesh (supra) and the case of H.M. Doshi vs. R.F.C. (S.B. Civil Writ Petition No. 1827/1982, decided on 23.11.1995). (9). In support of his contention that confirmation can be the basis for reckoning seniority Mr. Mathur placed reliance on M.P Chandolia vs. State of Madhya Pradesh (11) and Mohan Lal vs. State of Himachal Pradesh (supra) and the case of H.M. Doshi vs. R.F.C. (S.B. Civil Writ Petition No. 1827/1982, decided on 23.11.1995). (9). I have pondered over the rival submissions and carefully weighed the material on record as well as the case law cited before me. (10). It is necessary to have a look into the Rajasthan Administrative Service 1954 (for short the Rules). There is a mandatory obligation cast on the competent authority to make year wise determination of the vacancies to be filled by direct recruitment as well as by promotion. Rule 9(1)(c) postulates that the determination must be made year wise and if in the past any particular quota has been filled in excess, attempt should be made to arrive at a equilibrium. Rule 17 says that competitive examination should be held every year unless the Government decided not to hold examination in a particular year in consultation with the RPSC. Rules 28 and 28-B provide for initiation of procedure for promotion after determination of vacancies and the decision of the Government to fill the vacancies by promotions. Rule 28-B(3) states that for promotion from one post to the other in the service a person must be appointed substantively and confirmed on the lowest post in the service. Rule 33 provides determination of seniority and on the lowest post the seniority is to be determined from the date of confirmation. The provisions of Rule 28-B (11-A) read with Rule 9(2) of the Rules make it obligatory for the appointing authority to make year-wise selection after year-wise determination of vacancies so far as promotion quota is concerned. It implies that if the determination of vacancies for the promotion quota is done in a subsequent year and the departmental promotion committee meets after many years, such promotions are to be dated back and the promotees are to be given the benefit of experience and other service benefits except the actual monetary benefits. So far as the direct recruits are concerned, they are not given the benefit of previous service or experience but at the same time the promotees are given the benefit of previous years for the purpose of seniority, pay fixation, experience etc. So far as the direct recruits are concerned, they are not given the benefit of previous service or experience but at the same time the promotees are given the benefit of previous years for the purpose of seniority, pay fixation, experience etc. In so far as main provision of Rule 33 of the Rules is concerned, as per that rule, seniority cannot be assigned to the promotees above the direct recruits. There is a requirement of the date of confirmation for the purpose of assignment of seniority. Rule 33(2) of the Rules refers to the provisions of the Rules of 1972 and says that the persons appointed by promotion or special selection under the Rules of 1972 shall rank senior to those appointed by direct recruitment during the year. (11). In Mohan Lal and others vs. State of H.P (supra), the candidates who passed the examinations within two years and were confirmed after passing the tests, would get seniority from the respective dates of their joining the post and the date of passing the departmental test relates back to the date of appointment. Those who passed the examination after two years, would get seniority from the date of passing and rank junior to those who passed the examination within two years. (12). In A.N. Sehgal and others vs. Raja Ram Sheoram and others (supra), it was held by their Lordships of the Supreme Court that mere officiating appointment by promotion in a cadre post outside the quota, continuous officiation therein and declaration of probation would not clothe the promotee with any right to claim seniority over the direct recruits. The direct recruit shall get his seniority with effect from the date of the year of the allotment, whereas the promotee would get his seniority w.e.f. the date of the availability of the posts within 50% quota of the promotees. The year of the allotment is variable and the seniority shall be reckoned accordingly. (13). In S.K. Agrawal and others vs. State of Rajasthan and others (supra), this Honble Court propounded thus : (1) Under the scheme of the Rajasthan Agriculture Service Rules, 1960 recruitment is required to be made to the post of Agriculture Research Officer by promotion and by direct recruitment in the ratio 60 : 40. (13). In S.K. Agrawal and others vs. State of Rajasthan and others (supra), this Honble Court propounded thus : (1) Under the scheme of the Rajasthan Agriculture Service Rules, 1960 recruitment is required to be made to the post of Agriculture Research Officer by promotion and by direct recruitment in the ratio 60 : 40. The Government and its functionaries are under a statutory obligation to strictly maintain the quota between the promotees and direct recruits and if any imbalance has occurred in the past it has to be remedied according to Rule 10(1)(c) of the Rules. (2) Where sources of recruitment to a particular cadre or posts are more than one, promotion quota vacancies of earlier years can be filled only with reference to vacancies, already filled by direct recruitment and if direct recruitment has not been made in the earlier years promotion quota vacancies cannot be filled. (3) The Rajasthan Public Service Commission or any other selecting body can prepare the reserve list of suitable candidates only to the extent of 50% of the advertised vacancies, intimation regarding additional vacancies has been sent by the government/appointing authority or not. (4) The vacancies occurring after the determination of vacancies cannot be treated as additional vacancies for the purposes of Rule 18 or similar rule in other service Rules. Such vacancies will have to be taken into consideration for determination of vacancies of subsequent year. (14). In S.B. Patwardhan and another vs. State of Maharashtra and Others (supra), their Lordships of the Supreme Court propounded thus ``48. Rule 33, in so far as it makes seniority dependent upon the fortuitous circumstance of confirmation, is open to same objection as Rule 8(iii) of the 1960 Rules and must be struck down for identical reasons. ``51. We are not unmindful of the administrative difficulties in evolving a code of seniority which will satisfy all conflicting claims. But care ought to be taken to avoid a clear transgression of the equality clauses of the Constitution. The rules framed by the State Governments were constitutionally so vulnerable that the administration was compelled to adopt inconsistent postures from time to time leaving the employees no option save to resort to courts for vindication of their rights. In this process, courts, high and low had to discharge functions which are best left to the expertise of the appropriate departments of the Government. In this process, courts, high and low had to discharge functions which are best left to the expertise of the appropriate departments of the Government. Having struck down certain rules, we do not want to take upon ourselves the task of framing rules of seniority. This is not the function of this court and frankly it lacks the expertise and the data to do so. We however hope that the Government will bear in mind the basic principle that if a cadre consists of both permanent and temporary employees, the accident of confirmation cannot be an intelligible criterion for determining seniority as between direct recruits and promotees. All other factors being equal, continuous officiation in a non fortuitous vacancy ought to receive due recognition in determining rules of seniority as between persons recruited from different sources, so long as they belong to the same cadre, discharge similar functions and bear similar responsibilities. Saying anything beyond this will be trespassing on a field which does not belong to the courts. (15). In Keshav Chandra Joshi and others vs. Union of India and others (supra) their Lordships of the Supreme Court propounded thus : ``It is notorious that confirmation of an employee in a substantive post would take place long years after the retirement. An employee is entitled to be considered for promotion on regular basic to a higher post if he/she is an approved probationer in the substantive lower post. An officer appointed by promotion in accordance with Rules and within quota and on declaration of probation is entitled to reckon his seniority from the date of promotion and the entire length of service, though initially temporary shall be counted for seniority. Ad hoc or fortuitous appointments on a temporary or stop gap basis cannot be taken into account for the purpose of seniority, even if the appointee was subsequently qualified to hold the post on a regular basis. To give benefit of such service would be contrary to equality enshrined in Article 14 read with Article 16(1) of the Constitution as unequals would be treated equals. When promotion is outside the quota, the seniority would be reckoned from the date of the vacancy within the quota, rendering the previous service fortuitous. To give benefit of such service would be contrary to equality enshrined in Article 14 read with Article 16(1) of the Constitution as unequals would be treated equals. When promotion is outside the quota, the seniority would be reckoned from the date of the vacancy within the quota, rendering the previous service fortuitous. The previous promotion would be regular only from the date of the vacancy within the quota and seniority shall be counted from that date and not from the date of his earlier promotion or subsequent confirmation. In order to do justice to the promotees it would not be proper to do injustice to the direct recruits. The rule of quota being a statutory one it must be strictly implemented and it is impermissible for the authorities concerned to deviate from the rule due to administrative exigencies or expediency. The result of pushing down the promotees appointed in excess of the quota may work out hardship but it is unavoidable and any construction otherwise would be illegal, nullifying the force of statutory rules and would offence Articles 14 and 16(1). Therefore the rules must be carefully applied in such a manner as not to violate the rules or equality assured under Article 14 of the Constitution. (16). Ajit Singh Januja and others vs. State of Punjab and others (12), this case relates to accelerated promotions to the members of SC and Backward Classes and it was held that when the general category candidate is promoted later from the lower grade to the higher grade, he will be considered senior to a candidate belonging to the scheduled caste/tribe who had been given accelerated promotion against the post reserved for him. (17). But in C.K. Antony vs. B. Muraleedharan and others (13), their Lordships of the Supreme Court observed thus : ``12. We have already noticed that the appellants were appointed on the relevant dates in excess of their quota. Therefore, any appointments in excess of the quota prescribed for the promotees cannot prejudice the rights of the direct recruits. The common judgment under appeal is quite in accord with the law settled by this court and the same does not call for any interference. (18). In Pilla Sitaram Patrudu and others. Therefore, any appointments in excess of the quota prescribed for the promotees cannot prejudice the rights of the direct recruits. The common judgment under appeal is quite in accord with the law settled by this court and the same does not call for any interference. (18). In Pilla Sitaram Patrudu and others. vs. Union of India (14), direct recruit whose appointment was for no fault on his part but due to laches on the part of the department held entitled to ranking given to him in the select list. (19). In C.K. Antony case (supra) their Lordships of the Supreme Court considered the cases of M.S.L. Patils case (supra), in which A.N. Sehgals case (supra) and Keshav Chandra Joshis case (supra) were considered. (20). Thus it is clear that even if any appointments in excess of the quota prescribed for the promotees have been made, cannot prejudice the rights of the direct recruits. (21). It appears from the record that the total cadre strength in the years 1981-82 and 1982-83 in Ordinary Scale of RAS was 324 and the quota for direct recruitment and promotion and special selection/E.C. was correctly maintained. As rights of the direct recruits have not been prejudiced, I hold that the Rule 9(2) read with Rule 28B (11-A) and Rule 33(1) and proviso to Rule 33 of the Rules of 1954 are not ultravires of the Constitution as they do not violate any fundamental rights of the direct recruits guaranteed by the Constitution of India. It is not possible to agree with the submissions advanced by Mr. R.D. Rastogi, learned counsel appearing for the petitioner. (22). The writ petition has no merit and is accordingly dismissed. Costs easy.