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Rajasthan High Court · body

2009 DIGILAW 1068 (RAJ)

State v. R. C. S. A. T.

2009-04-17

ASHOK PARIHAR, K.S.CHAUDHARI

body2009
Hon'ble PARIHAR, J.—The controversy is in regard to promotion to the post of District Transport Officer from the post of Motor Vehicle Inspectors. The promotions are made under the Rajasthan Transport Service Rules, 1979. As per Schedule to the above rules, 1979, promotions to the post of District Transport Officer is to be made 50% by direct recruitment and 50% by promotion. So far as promotions are concerned, the same can be made from the post of Motor Vehicle Inspector. Apart from the requisite qualifications the experience for promotion required is 5 years experience on the post of Motor Vehicle Inspector. Service rendered against the post of Sales Tax Inspector or Inspector Excise and Taxation prior to posting in the Transport Department or Motor Vehicles Inspector shall be counted in computing the period of 5 years service as Motor Vehicle Inspector. Earlier there was a condition of passing qualifying examination for promotion to the post of District Transport Officer. However, the condition was deleted from the schedule vide Notification dated 13.4.92. 2. As per Rule 10 of the above Rules, determination of vacancies have to be made on first April every year, for the actual number of vacancies in the occurring financial year. Rule 10 reads as under:- Determination of vacancies.-(1)(a) Subject to the provisions of these Rules, the Appointing Authority shall determine on 1st April every year, the actual number of vacancies occurring during the financial year. (b) Where a post is to filled in by a single method as prescribed in the rule or Schedule, the vacancies so determined shall be filled in by that method. (c) Where a post is to be filled in by more than one method as prescribed in the rules or Schedule, the appointment of vacancies, determined under clause (a) above, to each such method shall be done maintaining the prescribed proportion for the over all number of post already filled in. If any fraction of vacancies is left over, after apportionment of the vacancies in the manner prescribed above, the same shall be apportioned to the quota of various method prescribed in a continuous cyclic order giving precedence to the promotion quota. If any fraction of vacancies is left over, after apportionment of the vacancies in the manner prescribed above, the same shall be apportioned to the quota of various method prescribed in a continuous cyclic order giving precedence to the promotion quota. (2) The Appointing Authority shall also determine the vacancies of earlier years, yearwise which were required to be filled in by promotion, if such vacancies were not determined and filled earlier in the year in which they were required to be filled in." 3. Procedure for recruitment by promotion have been provided under Part V of the Rules. Relevant portion of Part V is reproduced as under:- Rules 24. Criteria, Eligibility, and Procedure for Promotion to Junior Senior and other posts encadred in the Service.-(1) As soon as the Appointing Authority determines the number of vacancies under rule 10 and decides that a certain number of posts are requires to be filled in by promotion, the Appointing Authority shall, subject to provisions of sub-rule (9), prepare a correct and complete list of the senior-most persons who are eligible and qualified under these Rules for promotion on the basis of seniority cum-merit or on the basis of merit to the class of posts concerned. (2) The persons encumbered in Column 5 of Schedule-I shall be eligible for promotion to posts of specified against them in Column 2 thereof to the extent indicated in Column 3 subject to their possessing minimum qualifications and experience on the first day of the month of April of the year of selection as specified in Column 6. (6) Selection for promotion to all other higher posts or higher categories of posts in the Service shall be made on the basis of merit and on the basis on 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. 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.-If in the service, in any category of post, number of posts available for promotion is an old number then for purpose of determining the vacancies for selection by promotion on the basis of seniority-cum-merit and merit in the proportion of 50:50, the following cyclic order shall be followed: The subsequent vacancy by merit; The cyclic to be repeated. (9) The Zone of consideration of persons eligible for promotion shall be as under:- (i) Number of vacancies Number of eligible persons. (a) for one vacancy Five eligible persons. (b) for two vacancies Eight eligible persons. (c) for three vacancies Ten eligible persons. (d) for four or more vacancies Three times the number of vacancies. (ii) Where, the number of eligible persons for promotion to higher post is less than the number specified above, all the persons so eligible shall be considered. (iii) Where, adequate number of the candidates belonging to the Schedule Castes or the Scheduled Tribes, as the case may be, above, the zone of consideration may be extended to five time the number of vacancies and the candidates belonging to the Schedule castes or the Scheduled Tribes, as the case may be (and not any other) coming within the extended zone of consideration shall also be considered against the vacancies reserved for them. (iv) For the higher post in the State Service:- (a) if promotion is from one category of post, eligible person up to five number shall be considered for promotion; (b) if promotion is from different categories of the post in the same pay scale, eligible persons up to two in number from each category of posts in the same pay scale shall be considered for promotion. (c) If promotion is from different categories of posts carrying different pay scales, eligible persons in the higher pay scale shall be considered for promotion on the merit in the higher pay scale then only the eligible persons of other categories of posts in lower pay scales shall be considered for promotion and so on and so forth. (c) If promotion is from different categories of posts carrying different pay scales, eligible persons in the higher pay scale shall be considered for promotion on the merit in the higher pay scale then only the eligible persons of other categories of posts in lower pay scales shall be considered for promotion and so on and so forth. The zone of consideration for eligibility in this case shall be limited to five senior most eligible persons in also." (10)(b) The Committee shall also prepare a separate list on the basis of seniority-cum-merit and/or on the basis of merit, as the case may be, as per criteria for promotion laid down in the rules, containing names of persons equal to the number of persons selected in the list prepared under (a) above to fill temporary or permanent vacancies, which may occur subsequently. The list so prepared on the basis of seniority cum-merit and/or on the basis of merit, as the case may be, shall be arranged in the order of the seniority in the category of posts from which selection shall be made. Such a list shall be reviewed and revised by the Departmental Promotion Committee that meet in the subsequent year and that such list shall remain in force till the end of the last day of the next year or till the Departmental Promotion Committee meets, whichever is earlier." 4. Reservation for Scheduled Castes and Scheduled Tribes as also other backward class have also been provided under the Rules. 5. As has come on record, the promotions from the year 1983-84 till 93-94 were not made. It is also not in dispute that qualifying examinations as provided in the schedule for promotion to the post of Motor Vehicle Inspector were not held and even if applications invited for the same, the examinations were cancelled for the one reason or the other. It was only as per representation made by the Association of the Officers concerned, the condition of qualifying examination was waived in the year 1992. Be that as it may, other conditions for promotion as referred above remained the same. There can not be any dispute and as has been decided by the Apex Court that clubbing of vacancies could be made only for the purpose of direct recruitment. Be that as it may, other conditions for promotion as referred above remained the same. There can not be any dispute and as has been decided by the Apex Court that clubbing of vacancies could be made only for the purpose of direct recruitment. However, promotions have to be made on the basis of yearwise determination of vacancies to the candidates eligible for the particular year who come in the zone of consideration for the particular year as also been referred above. In the present case, it appears that State Government had given a complete go-bye to the provisions of the relevant Rules and while clubbing the vacancies from 1983-84 till 1993-94, the promotions have been made accordingly. The clubbing of vacancies for more than 10 years have not only created complications so far as reservation of the posts as per relevant roster are concerned, but entire procedure of zone of consideration for each year have been disturbed. Merely deletion of the condition of qualifying examination in the year 1992 will not justify the action of the State Government in clubbing all the vacancies of more than 10 years and give promotions to persons making a new zone of consideration and reservation also accordingly. On the face of it the whole action of the State Government cannot be sustained in the eyes of law. More so, when it is also not a case of one time promotion which also require a special notification and amendment in the Rules. 6. Having considered entire facts and circumstances, since after due consideration proper discretion has been used by the learned Tribunal as also learned Single Judge, we find no ground for any further interference. The appellant State may now make a complete fresh exercise as per directions of the Tribunal as early as possible preferably within four months. It is further made clear that persons already promoted shall not be demoted till the exercise is made and fresh orders of promotions on the basis of yearwise determination of vacancies are passed. In case any person is not found suitable for the particular year and have already been given benefit of promotion, in case of reversion or change of year of promotion, the salary already paid, may not be recovered, however, pay fixation has to be made accordingly. In case any person is not found suitable for the particular year and have already been given benefit of promotion, in case of reversion or change of year of promotion, the salary already paid, may not be recovered, however, pay fixation has to be made accordingly. If any person have retired during the intervening period, his retiral benefits already paid on the basis of last pay drawn may also not be recovered except for revision of pension if required. 7. With the above observations and direction, the appeals are disposed of, accordingly.