JUDGMENT 1. - In Ajit Singh II (1997) 7 SCC 209, Five Judge Bench of Hon'ble Supreme Court indicated that the senior general candidates at the lower level, if he reaches the promotional level later, but before the further promotion of the reserved candidate-he will have to be treated as senior, at s the promotional level, to the reserved candidate even if the reserved candidate was earlier promoted to that level.It was further held in para 83 that where after the roster point promotee (reserved candidate) reaches, the promotional level, there is direct recruitment or recruitment by transfer at the promotional level and senior to general candidate is thereafter promoted and placed above the reserved candidate, senior general candidate shall become senior to the direct recruit or transferee as the direct recruit or transferee has no grievance against the reserved candidate, who was 'already there, he can have no grievance against a senior general candidate, who has a superior claim, in law, against the reserved candidate.But can a merit promotee, who has entered the promotional level after superseding the senior general candidate on merits be equated with direct recruit or transferee at the promotional level?Can such a superseded senior general candidate, who has a superior claim in law, against the reserved candidate, be placed, over the merit promotee, who once superseded him on merits and entered the promotional level?These meaningful questions need our answer in the instant appeals that have been preferred against the order dated May 30, 2001 of the learned Single Judge. 2. As many as five writ petitions were submitted before the Single Bench assailing the provisional seniority list dated June 26, 2000 of Officers in Selection Scale of Rajasthan Administrative Service (for short RAS). Writ Petitions No. 2968/2000 (Hanuman Singh Bhati and others v. State of Rajasthan) , and 3176/2000 (Vinod Ajmera and ors. v. State of Rajasthan) were instituted by the officers of RAS from General caste category, who were promoted in Selection Scale of RAS on the basis of merit-cum-seniority. Writ Petitions No. 3373/2000 (R.K. Meena and ors. v. State of Rajasthan) , 3385/2000 (Ram Niwas Meena and another v. State of Rajasthan) and 3413/2000 (Ram Prasad and others v. State of Rajasthan) were filed by the officers of RAS from reserved caste category. 3. Writ Petitions No. 3373/2000 (R.K. Meena and ors. v. State of Rajasthan) , 3385/2000 (Ram Niwas Meena and another v. State of Rajasthan) and 3413/2000 (Ram Prasad and others v. State of Rajasthan) were filed by the officers of RAS from reserved caste category. 3. The impugned provisional seniority list was already drawn and notified as per directions of the Hon'ble Supreme Court issued in Ram Prasad and others v. D.K. Vijay (1997) 7 SCC 251 . Before we refer to the ratio of Ram Prasad v. D.K. Vijay , we deem it necessary to consider the scheme of the Rajasthan Administrative Service Rules 1954 (for short RAS Rules). The RAS Rules were framed under proviso to Article 309 of the Constitution of India and are applicable to the members of the RAS. These rules relate to different service candidates, such as composition of service, cadre strength, recruitment, probation, seniority, confirmation and promotion etc. 4. Rule 33 of the RAS Rules relate to determination of seniority. In order to give effect to the judgment rendered by the Hon'ble Supreme Court in Ajit Singh I, (1996) 2 SCC 715 , State of Rajasthan made an amendment on April 1, 1997 appending following new proviso at the end of proviso (iv) to Rule 33 "That if a candidate belonging to Scheduled Caste/Scheduled Tribe is promoted to an immediate higher post grade against a reserved vacancy earlier than his senior general/OBC candidate who is promoted later to the said immediate higher post/grade, the general/OBC candidate will regain his seniority over such earlier promoted candidate of the Scheduled Caste/Scheduled Tribe in the immediate higher category." 5. Following four grades/scales exist in RAS- (i) Ordinarj Scale. (ii) Senior Scale. (iii) Selection Scale. (iv) Super Time Scale. A member of the service is appointed in the ordinary scale and thereafter such member is entitled to get promotion in the higher scales/grades in accordance with criteria provided under the RAS Rules. Rule 28 A of RAS Rules relate to criteria, eligibility and procedure for promotion to Junior, Senior and other posts encadred in the service. Promotion to super time scale is given on the basis of merit being promotion on the highest grade in the service. 6. Rule 28 A of RAS Rules relate to criteria, eligibility and procedure for promotion to Junior, Senior and other posts encadred in the service. Promotion to super time scale is given on the basis of merit being promotion on the highest grade in the service. 6. The writ petitioners assailed the provisional seniority list dated June 26, 2000 mainly on the grounds that (a) since they were promoted in the Selection Scale prior to General category candidates, who were senior to them originally but were promoted later in the selection scale, can not be placed above them, (b) the seniority already assigned to them could not have been altered without reconvening the D.P.C. as the D.P.C. alone can decide the seniority of promoted officers and (c) the judgments of the Apex Court in Ajit Singh I and Ajit Singh II do not deal with the inter-se seniority of General caste category candidates. 7. In the written statement State of Rajasthan averred that (a) writ petitions were not maintainable against the provisional seniority list, (b) the said list was issued in compliance to the judgments of the Supreme Court for giving effect to the principle of 'Regaining of seniority' (c) it is incidential that general caste category officers promoted to selection scale on merit have been affected. (d) provisions contained in Article 16(4) of the Constitution of India and Rule 33 of RAS Rules were construed harmoniously and the senior general candidates have been placed on top, reserved caste category candidates have been placed just below them and thereafter general caste category candidates promoted to Selection Grade on merit have been placed. 8. Learned Single Judge in the impugned judgment held thus (i) petitions against provisional seniority list are maintainable as final policy decision to interpret and implement the Supreme Court Judgments has been taken by the State Government and the said policy decision was not open to challenge by the affected members of RAS, (ii) the entrants to the provisional post are not direct recruits or transferees at promotional level, they are merit promotees who have entered the promotional level after surpassing the seniority promotees on merits. As such they have a superior claim over the seniority promotees and they can not be put below the seniority promotees under any circumstances; (iii) When once the seniority of reserved category candidates is kept in abeyance or made tentatives till their seniors in the lower level are promoted, they can not claim any final right to be reckoned senior to merit promotees whose promotions were not subject to loss of seniority on 'seniority promotees' senior to them at lower level, getting promotions; (iv) Upholding the decision of the State Government would result in putting premium on demerit rather than on merit. The decision of the State Government to place the merit promotees below the seniority promotees and provisional seniority list drawn on the basis of said decision is arbitrary and violative of Article 14 and 16 of the Constitution of India. 9. Assailing the impugned judgment learned counsel appearing for 'the appellants canvassed that the reserved category officers could not have been placed below the general category officers promoted to Selection Grade on I merit for the reason that the reserved category persons placed above them are originally senior to them, as they were appointed earlier in service and were also promoted to Selection Grade, prior to them. The principle of 'Regaining of seniority' is not available to the merit promotees vis-a-vis reserved category persons placed above them. The amendment made in Rule 33 of RAS Rules on April 1, 1997 was made with purpose to give effect the judgment of the Hon'ble Supreme Court and the State of Rajasthan while preparing the provisional seniority list had tried to make statute effective and workable and saved it from reducing to futility. The circular dated Feb. 11, 2000 was issued to give effect the judgment of Ajit Singh I and Ajit Singh II. In the said circular the principles laid down by the Hon'ble Supreme Court were explained and directions were issued to all the administrative departments. Thus there was no reasonable basis for quashing the same. Earlier promotion on merit at one point does not give any right to merit promotee. 10. Learned counsel next contended that inter personal comparison of merit between the officers from General category and reserved category is not made because of the separate quota. Thus there was no reasonable basis for quashing the same. Earlier promotion on merit at one point does not give any right to merit promotee. 10. Learned counsel next contended that inter personal comparison of merit between the officers from General category and reserved category is not made because of the separate quota. Such comparison among general category merit promotees and general category seniority cum merit promotees is also not made because of division of quota between merit and seniority cum merit slot. It is further urged that the writ petitioners had no legal right to challenge the circular issued in compliance of the judgments of the Supreme Court by filing writ petitions, they could instead seek guidance from the Supreme Court in the matter. It is lastly contended by the learned counsel that the writ petitions suffer from non-joinder of necessary parties and they ought to have been rejected on this count alone. 11. Supporting the impugned judgment, learned counsel for the respondent urged that in Ajit Singh II, their Lordships of the Supreme Court have dealt with a limited question relating mainly to seniority of the reserved candidates promoted at roster points, it is not applicable to the inter se seniority of the general candidates. The State of Rajasthan has mechanically interpreted the relevant provisions and placed superseded general candidates above the merit promotees, thereby lowered down the higher seniority position of the merit promotees. 12. We have reflected over the rival submissions and scanned the material placed before us. 13. In view of the Rules 28 B read with Rule 33 of RAS Rules, for the purpose of merit promotion, the senior officers are considered first and if not found suitable, the next in the order of seniority is considered. The person found suitable finds place in the promotion list. Regular promotion to Senior Scale is made 100% on the basis of seniority and promotion to Selection Scale is by way of merit and seniority in the ratio of 50:50. In pursuance to directions of the Hon'ble Supreme Court in Shambhu Singh Meena v. State of Rajasthan (1995) Supp. (2) SCC 431 , review DPC was held and revised promotion order dated June 23, 1996 was issued. The respondents (direct recruits of the year 1979) were promoted against the merit vacancies of the year 1991-92 after superseding many officers of the year 1977, 1978 and 1979. (2) SCC 431 , review DPC was held and revised promotion order dated June 23, 1996 was issued. The respondents (direct recruits of the year 1979) were promoted against the merit vacancies of the year 1991-92 after superseding many officers of the year 1977, 1978 and 1979. A provisional seniority list was published on May 15, 1998 in which the respondents were shown senior to the officers promoted against the subsequent years. Thereafter the State of Rajasthan issued circular on Feb. 11, 2000 pursuant to the directions of Ajit Singh I, Ajit Singh II and Ram Prasad v. D.K. Vijay and published the impugned provisional seniority list on June 26, 2000.14-15. A close look at Ajit Singh II demonstrates that their Lordships of the Supreme Court had also considered the aspect of merit promotion. It was indicated in para 23 that "23. Where promotional avenues are available, seniority becomes closely interlinked with promotion provided such a promotion is made after complying with the principle of equal opportunity stated in Article 16(1). For example, if the promotion is by rule of 'seniority- cum-suitability' the eligible seniors at the basic level as per seniority fixed at that level and who are within the zone of consideration must be first considered for promotion and be promoted if found suitable. In the promoted category they would have to count their seniority from the date of such promotion because they get promotion through a process of equal opportunity. Similarly, if the promotion from the basic level is by selection or merit or by any rule involving consideration of merit, the senior who is eligible at the basic level has to be considered and if found meritorious in comparison with others, he will have to be promoted first. If he is not found so meritorious, the next in order of seniority is to be considered and if found eligible and more meritorious than the first person in the seniority list, he should be promoted. In either case, the person who is first promoted will normally count his seniority from the date of such promotion. If he is not found so meritorious, the next in order of seniority is to be considered and if found eligible and more meritorious than the first person in the seniority list, he should be promoted. In either case, the person who is first promoted will normally count his seniority from the date of such promotion. (There are minor modifications in various services in the matter of counting of seniority of such promotees but in all cases the senior most person at the basic level is to be considered first and then the others in the line of seniority.) That is how right to be considered for promotion and the `seniority' attached to such promotion become important facets of the fundamental right guaranteed in Article 16(1). Right to be considered for promotion is not a mere statutory right." 45. It is thus evident that a candidate who is found meritorious and gets promotion through a process of equal opportunity, his seniority will be counted from the date of such promotion. In paras 46 and 47 of Virpal Singh, (1995) 6 SCC 684 and para 63 of Ajit Singh II, it was indicated that in case of promotion on the basis of merit, separate panel for each selection is to be prepared and members of earlier panel would take precedence over members of later panels. 16. A merit promotee officer, who has superseded senior general candidates by competing with them, can not be equated with the direct recruit or transferee. The term 'recruitment' (directly or by transfer) denotes appointment of fresh or new person whereas the term 'promotion' does not have any concern with fresh or new person. 17. Their Lordships of the Supreme Court in State of U.P. v. Onkar Nath Tondon 1993 (Supp.) 3 SCC 202 indicated that where a junior supersedes a senior on merit basis, his senior cannot claim seniority in the higher cadre on his being promoted at a subsequent dates unless it is shown that he was left out from consideration on the earlier occasion when he ought to have been considered. 18. In Ram Prasad v. D.K. Vijay (1999) 7 SCC 251 their Lordships of the Supreme Court observed as follows-(Paras 20, 21 & 22) "20. 18. In Ram Prasad v. D.K. Vijay (1999) 7 SCC 251 their Lordships of the Supreme Court observed as follows-(Paras 20, 21 & 22) "20. It was urged for the State of Rajasthan that on the peculiar factual situation concerning the RPS and RAS officers, the judgment of this I Court in Ajit Singh Januja v. State of Punjab (called Ajit Singh I), could not be implemented forthwith and hence a few more promotions of the reserved candidates took place up to 1.4.1997. It was pointed out that as per Ajit Singh I those reserved candidates who were promoted before 1.3.1996 were not to be reverted, though their seniority in the promoted cadre, even if made before 1.3.1996 would be governed by Ajit Singh I. It was submitted that this concession of non-reversion could be extended to those reserved candidates who were promoted before 1.4.1997. 21. In view of the peculiar facts of these cases, we are inclined to accede to this contention. The result is that officers from the reserved category who were promoted at the roster points before 1.4.1997 shall not be reverted but their seniority in the promoted category shall be governed by the principles enumerated under Points 1 to 3 in Ajit Singh I and Ajit Singh II, the prospectivity of Sabharwal, (1995) 2 SCC 745 , as explained under Point 4 in Ajit Singh II is not discussed. So far as prospectivity of Ajit Singh I is concerned, the principles in Ajit Singh II in point will apply but subject to postponement of 1.3.1996 to 1.4.1997. 22. In other words we agree that there is no need to revert those reserved category officers, it they were promoted even beyond 1.3.1996 but before 1.4.1997. To give an example-in the case of two rosters from Level 1 to Level 2 and Level 2 to Level 3, if the reserved candidate was promoted before 1.4.1997 to Level 4, such reserved candidate need not be reverted. If by the date of promotion of the reserved candidate before 1.4.1977 from Level 3, the senior general candidate at Level 2 has reached Level 3, he has to be considered as senior at Level 3 to the reserved candidate because the latter was still at Level 3 on that date. If by the date of promotion of the reserved candidate before 1.4.1977 from Level 3, the senior general candidate at Level 2 has reached Level 3, he has to be considered as senior at Level 3 to the reserved candidate because the latter was still at Level 3 on that date. But if such a general candidate's seniority was ignored and the reserved candidate was treated as senior at Level 3 and promoted to Level 4, this has to be rectified after 1.3.1996 by following Ajit Singh I, as explained in Ajit Singh II. In other words, if a reserved candidate was promoted to Level 4 before #.4-997, without considering the case of the senior general candidate who had reached Level 3 before such promotion, such reserved candidate need not be reverted but the said promotion to Level 4 is to be reviewed and seniority at Level 3 and Level 4 (as and when the general candidate is promoted to Level 4) is to be refixed." 19. In State of Rajasthan v. Fateh Chand Soni (1996) 1 SCC 562 it was held by the Hon'ble Supreme Court that (para 13) "13. It must, therefore be concluded that. appointment to the selection scale of an officer in the senior scale in the service constitutes promotion and seniority in the selection scale has to be fixed in accordance with Rule 33 of the Rules on the basis of the date of selection and a person selected and appointed as a result of an earlier selection would rank senior to a person who is selected and appointed as a result of a subsequent selection." 20. In para 83 of Ajit Singh II their Lordship of the Supreme court were considering a situation where after the reserved candidate reaches the promotional level, there is direct recruitment or recruitment by transfer at the promotional level and senior general candidate is there after promoted and placed above the reserved candidate, senior general candidate shall become senior to the direct recruit or transferee, as the direct recruit or transferee has no grievance against the reserved candidate, who was already there, he can have no grievance against a senior general candidate, who has a superior claim in law, against the reserved candidate. (Emphasis supplied) In the cases on hand, the merit promotees got promotion through a process of equal opportunity and entered the promotional level after superseding the senior general candidates on merits as such they have right to be placed over the senior general candidates and they definitely have grievance against senior general candidates who regain seniority over the reserved candidates at promotional level. We are in agreement with the view expressed by the learned Single Judge that the merit promotees have a superior claim over the seniority promotees and they cannot be put below the seniority promotees under any circumstances. The direct recruit or a transferee, when joins a cadre, he has to be alive to the prospect of his seniority being affected by senior general candidate through principle of `regain seniority'. On the other hand a merit promotee, who once superseded a senior general candidate in a merit competition cannot think even in dream, that the said superseded candidate would be placed above him in seniority at a subsequent stage. 21. Reserved candidate is expected to know that a senior general candidate is to be treated as senior at the promotional level if he reaches that level before the reserved candidate goes further up. The reserved candidates, thus should have no grievance against those merit promotees who have a superior claim over senior general candidates, being promoted on merit through a process of equal opportunity after surpassing the senior general candidates. 22. We therefore are of the view that the merit promotees, who has entered the promotional level after superseding the senior general candidate on merit can not be equated with direct recruit or transferee at the promotional level and such a superseded senior general candidate, who has a superior claim in law, against the reserved candidate, can not be placed over the merit promotee who once superseded him on merits and entered the promotional level. We are unable to pursuade ourselves to agree with the submissions advanced before us by the learned counsel for the appellants. The writ petitions against the provisional seniority list are maintainable as it is based on the final policy decision of the State of Rajasthan. 23. For the reason aforementioned we confirm the impugned order of learned Single Judge with slight modification. The writ petitions against the provisional seniority list are maintainable as it is based on the final policy decision of the State of Rajasthan. 23. For the reason aforementioned we confirm the impugned order of learned Single Judge with slight modification. We make it clear that no finality shall be attached to the provisional seniority list drawn in pursuance to the order of learned Single Judge. It would be open to challenge by the affected members of RAS. The objections so raised shall be reasonably considered by the three member committee headed by the Chief Secretary and thereafter final seniority list shall be published. 24. All the appeals stand disposed off as indicated above. No costs.Appeals Disposed of by Modifying order of Single Judge-Open to Affected persons to Challenge Seniority list not held to be final. *******