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2009 DIGILAW 672 (RAJ)

Ajay Singh v. State of Rajasthan

2009-03-04

K.S.RATHORE

body2009
Honble RATHORE, J.—Since all these writ petitions are similar in nature, therefore, the same are being decided by this common order. 2. In S.B. Civil Writ Petition No. 3355/2004- Hanuman Singh Bhati & Ors. vs. State of Rajasthan & Ors., the petitioners have prayed for following reliefs:- “(i) by an appropriate writ, order or direction, the impugned seniority list dated 4.5.2004 (Annexure-12 & 13) as on 1.4.1993 and 1.4.1994 may kindly be quashed and set aside. (ii) by further appropriate writ, order or direction, the respondents be directed to hold the review board only after the seniority list of RAS officers is finalised as per the directions of this Honble Court given vide orders dated 30.5.2001 and 12.9.2001 and only after it has been made public. (iii) by further appropriate writ, order or direction, the respondents be directed to convene the regular board for promotion from RAS to IAS from years 1995-96 and onwards simultaneously holding the review board for the years 1993-94 and 1994- 95. (iv) Or any other prejudicial order, if passed during the pendency of the writ petition, against the rights and interest of the petitioners, the same may kindly be taken on record and be also quashed and set aside. (v) Or any other appropriate relief may kindly be granted to the petitioners which this Honble Court may deem fit and proper in the facts and circumstances of the present case. (vi) The cost of the litigation may kindly be awarded to the petitioners.” 3. In another writ petition i.e. S.B. Civil Writ Petition No. 1742/2008- Ajay Singh vs. State of Rajasthan & Ors., the petitioner has prayed for following reliefs:- “(i) by an appropriate writ, order or direction, the respondents be directed to include the name of the merit promotees (1991-92) including the petitioner in the list to be sent to UPSC for convening IAS Board (1996-97 to 2007-08) over and above the reserved categories candidates as had been shown in the seniority list issued by the respondents on 26.6.2000 as per the decision of the Honble Division Bench dated 12.9.2001 following the decision of the Honble Apex Court in SLP No. 1078-1081/2005 (case of Shivnath Prasad). In the alternative if the names are not sent as mentioned above, then the respondents be directed not to convene the IAS Board till the seniority lists are prepared finally in the light of the decision dated 12.9.2001 passed by the Honble Division Bench following the decision of the Honble Apex Court in Shivnath Prasad case. (ii) Or any other appropriate order or direction, which this Honble Court deem fit and proper in the facts and circumstances of the present case, may kindly be passed in favour of the petitioner. (iii) The cost of the litigation may kindly be allowed to the petitioner.” 4. In yet another writ petition i.e. S.B. Civil Writ Petition No. 4866/2008- Ajay Singh vs. State of Rajasthan & Ors., the petitioner is seeking following reliefs:- “(i) By an appropriate writ, order or direction the impugned order dated 12.5.2008 (Annexure-2) issued by the Deputy Secretary to Government, Department of Personnel (A-4) Government of Rajasthan, Secretariat, Jaipur may kindly be quashed and set aside. (iA) by further appropriate writ, order or direction, the impugned final seniority list dated 24.6.2008 (Annexure-3), issued by the Department of Personnel, Government of Rajasthan, Jaipur may kindly be quashed and set aside. (ii) By an appropriate writ, order or direction, the respondents be directed to include the name of the petitioner in the list to be sent to UPSC for convening IAS Board (1996-97 to 2007-08) over and above the reserve categories candidates as had been shown in the seniority list issued by the respondents on 23.2.1996 and as per the decision of the Honble Division Bench dated 12.9.2001. (iii) Or any other appropriate order or direction, which this Honble Court deem fit and proper in the facts and circumstances of the present case, may kindly be passed in favour of the petitioner. (iv) The cost of the litigation may kindly be allowed to the petitioner.” 5. The facts of S.B. Civil Writ Petition No. 4866/2008 are taken as leading case. 6. The petitioner was appointed as RAS officer in junior scale of RAS on 15.10.79. He was promoted in the senior scale of RAS in the month of February, 1987 and was promoted in selection scale of RAS in the year 1992 subject to review/revision on the basis of 5 out of 7 APARs as against the vacancies of 1992-93. 6. The petitioner was appointed as RAS officer in junior scale of RAS on 15.10.79. He was promoted in the senior scale of RAS in the month of February, 1987 and was promoted in selection scale of RAS in the year 1992 subject to review/revision on the basis of 5 out of 7 APARs as against the vacancies of 1992-93. The criteria of merit promotion on the basis of 5 out of 7 APARs was for the first time amended and notified vide notification dated 30.11.1991. Earlier to this notification, for merit promotion there was a requirement of having 7 out of 7 consistently outstanding/ very good APARs vide notification dated 11.04.1979. 7. As per the petitioner, in the case of Shambhu Singh Meena And Others vs. State of Rajasthan And Others, decided on 19.04.1995 and reported in 1995 Supp (2) SCC 431, Honble the Supreme Court has held that the notification dated 30.11.1991 is to be applied prospectively. In this view of the matter, a review DPC was held on 23.02.1996 and the petitioner was found to have been entitled for merit promotion in selection scale of RAS as against the vacancies of 1991-92 having been found consistently 7 out of 7 outstanding/very good APARs. The name of the petitioner is appearing at No.5 in the order dated 23.02.1996 as against the merit promotion/selection scale and 12 vacancies were filled for the merit promotees in the year 1991-92 and in the above 12 persons, the petitioners name is at No.5. 8. Further the petitioner was again shown to have been promoted in the selection scale of RAS against the merit quota of 1991-92 vacancies in the provisional seniority list issued on 01.04.1998. The aforesaid seniority list was changed by the State Government by issuing another provisional seniority list dated 26.06.2000 showing it to be drawn on the basis of the case of Ajit Singh And Others (II) vs. State of Punjab And Others, decided by the Honble Supreme Court and reported in (1999) 7 SCC 209 . In the aforesaid seniority list the petitioners seniority position was changed by placing the superseded officers of the general category who were promoted later in the year 1992-93 and 1993-94 above the petitioner. In the aforesaid seniority list the petitioners seniority position was changed by placing the superseded officers of the general category who were promoted later in the year 1992-93 and 1993-94 above the petitioner. The officers to whom the petitioner superseded while he had been given merit promotion in the year 1992-92 in merit are Sarva Shri Keval Kumar Gupta, Satish Chander Mehra, Manmath Kumar, Radhey Shyam Gupta, Krishan Gopal Agarwal, Chothmal Khatri, Hement Sess, Smt. Parmila Surana, Dungardan Charan, Ahasan Ahmed Chhipa, Suneel Dhariwal, Hastimal Chandalia, R.C. Dharmani and Mohammed Farooq-I. 9. It is further submitted that the petitioner had filed a writ petition which was registered as S.B. Civil Writ Petition No. 2968/2000 challenging the placing of superseded officers over and above him and the same was allowed by this Court vide order dated 30.05.2001. Against the said judgment, the State Government filed special appeal but the same came to be dismissed by this Court vide its judgment dated 12.09.2001. It is also submitted that reserve category officers have also filed various writ petitions challenging their placement below their senior batch-mates on the ground of consequential seniority and the aforesaid writ petitions were also dismissed vide aforesaid common judgment dated 30.05.2001. Special Appeals preferred by the reserve category officers were also dismissed by the Division Bench vide common judgment dated 12.09.2001. So far as reserve category officers are concerned, it attained finality as the reserve category officers did not file any special leave petition before the Honble Supreme Court. 10. Further as per the judgment dated 30.05.2001 passed by this Court and upheld by the Division Bench of this Court vide judgment dated 12.09.2001, the State Government was directed to prepare a provisional seniority list keeping the superseded officers below the petitioner and keeping the reserve categories below their senior batchmates. It was also directed that on the said list objections will be obtained and the same will be decided by the three member committee headed by the Chief Secretary. The aforesaid judgments have not been complied with notwithstanding the fact that in the SLP preferred by the State Government relating to placing of superseded officers below the petitioner no stay had been granted in regard to the judgment passed by this Court. The aforesaid judgments have not been complied with notwithstanding the fact that in the SLP preferred by the State Government relating to placing of superseded officers below the petitioner no stay had been granted in regard to the judgment passed by this Court. However, a list was issued on 27.11.2003 wherein the judgment passed by this Court was partly implemented to the extent that superseded officers had been rightly placed below the petitioner, but so far as the reserve categories are concerned, it was violated by the State Government by keeping them in the seniority list over and above their batch-mates by giving them accelerated seniority/ consequential seniority in violation of the ratio of the case of Ajit Singh-II even when the decision of the Division Bench dated 12.09.2001 had come much before the said 85th Constitutional Amendment which came in the month of January, 2002. 11. It is further contended that on the basis of the aforesaid provisional seniority list dated 27.11.2003, the State Government sent a list for consideration for promotion from RAS to IAS for Review Board of 1993-94 and 1994-95 to UPSC. The petitioner challenged the same by filing a writ petition bearing No. 3355/2004, wherein this Court passed stay order on 01.06.2004 directing the Chief Secretary to explain the delay in compliance of the order of the Division Bench of this Court dated 12.09.2001 but no explanation has come forward from the Chief Secretary. Another application was moved by the State Government for seeking vacation of the stay order and this Court vide order dated 09.02.2005 directed that they may approach to the Honble Supreme Court or before the Division Bench for clarification. The State Government preferred an application before the Honble Supreme Court for clarification in SLP preferred by it and the same was decided as No orders vide order dated 18.08.2006. 12. Subsequently, the State Government passed order of review DPC for selection scale and supertime scale of RAS on 12.05.2008 for the years 1986-87 to 1993-94 for selection scale and for the years 1993-94 to 2007-08 for supertime scale. The provisional seniority list was also issued by inviting objections on the same day i.e. 12.05.2008. Both the orders of the provisional seniority list and the final DPC order were issued simultaneously on 12.05.2008, the same cannot stand together. The provisional seniority list was also issued by inviting objections on the same day i.e. 12.05.2008. Both the orders of the provisional seniority list and the final DPC order were issued simultaneously on 12.05.2008, the same cannot stand together. In one order objections have been invited within 15 days time and simultaneously final seniority list has also been issued, which appears more grievous when seeing in the light that on the same date i.e. 12.05.2008, this list was forwarded to UPSC for consideration for promotion to IAS for the year 1997-98 to 2007-08 and the list was shown as final seniority list. Thus, the entire exercise of inviting objections was an eye wash and under these circumstances, the petitioner had to file third writ petition registered as S.B. Civil Writ Petition No. 4866/2008. During pendency of the aforesaid three writ petitions, the respondents issued a final seniority list on 24.06.2008. The petitioner amended the writ petition No. 4866/2008 and the same has been allowed wherein seniority list dated 24.06.2008 has also been challenged. 13. Learned counsel Mr. Garg, appearing on behalf of the petitioners has submitted that superseded officers cannot be placed over and above the petitioner, as decided by this Court vide judgments dated 30.05.2001 and 12.09.2001 that the merit cannot be allowed to be diluted for the reason that “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.” 14. He further submits that so far as consequential seniority before 17.06.1995 to the reserve categories is concerned, the provisions in the Constitution existed as under:- “16(4)- Nothing in this Article shall prevent the State from making any provision for reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.” 15. Mr. Mr. Garg also referred Article 16(1) which mandatorily provides that “there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.” 16. He further submits that such a mandatory provision could be applied only when it is applied to equals but when the question of un-equals comes, an extended provision is made under Article 16(4) of the Constitution that those who are backward class of citizens in the opinion of the State, is not adequately represented in the services under the State. This provision of Article 16(4) r/w Article 16(1) has been dealt with by the Constitutional Bench in Indira Sahnis case and held that it is an extended provision of Article 16(1) and not an exception. It has also been held in the said judgment that it does not give right to the State Government for making provision for reserve categories for reservation in the promotion. In Indira Sahnis case, it had been decided that the State Government may provide the reservation for promotion by making law. In this view of the matter, the Constitution was amended on 17.06.1995 by 77th amendment, whereby Article 16(4A) was inserted giving reservation in the promotions to reserve categories. It is further submitted that in Indira Sahnis case, it has also been held that backward class includes those which were notified as SC/ST. The position as existed before 17.06.1995 in the service rules is as under:- “In Sub Rule(1) of Rule 4 of the Rules of 1954, definition of service is given as “Service” means the Rajasthan Administrative Service.” 17. Rule 8 as substituted in the year 1973 provides inter-alia that the reservation of vacancies for the Scheduled Castes and Scheduled Tribes shall be in accordance with the orders of the Government for such reservation in force at the time of recruitment i.e. by direct recruitment and by promotion. 18. Thus, whatever reservations had to be given they were to be given as per the orders passed by the Central Government in the services but there is no provision for consequential seniority. The provision of consequential seniority was inserted by 85th Constitutional Amendment dated 04.01.2002 made effective from 17.06.1995 giving consequential seniority. Thus, before 17.06.1995 there was no provision by which it could be said that the consequential seniority would be given to the reserve categories. The provision of consequential seniority was inserted by 85th Constitutional Amendment dated 04.01.2002 made effective from 17.06.1995 giving consequential seniority. Thus, before 17.06.1995 there was no provision by which it could be said that the consequential seniority would be given to the reserve categories. Rather when this question came up before the Honble Supreme Court as to whether reserve categories are entitled for consequential seniority or accelerated seniority, the Honble Supreme Court in the cases of (1) Veerpal Singh Chauhan, (2) Ajit Singh-I and (3) Ajit Singh-II, has categorically held that they are not entitled to consequential seniority, rather principle of regaining seniority would be applied. 19. It is also submitted that looking to the law laid down by the Honble Supreme Court which was declaratory and judgment in rem, the relevant provision namely Article 16(4A) of the Constitution amended by 85th Constitutional Amendment on 04.01.2002 giving consequential seniority permitting the State Government to make law in that regard in case the reserve categories are not adequately represented in the State service. The aforesaid provision was an enabling provision. The State Government was to amend its rule on account of Ajit Singh-I and II cases by adding explanation in Rule 33 relating to the seniority in order to give effect to the aforesaid judgments rendered by the Honble Supreme Court by substituting new proviso at the end of the proviso to Rule 33 as under:- “That if a candidate belonging to the 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 late 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 post/grade.” 20. The said amendment was acted upon for the first time after 85th Constitutional Amendment, the State Government vide its notification dated 28.12.2002 ordered for deletion of the aforesaid amendment and instead a new provision was directed to be added w.e.f. 01.04.1997 and substituted a new proviso w.e.f. the date of the notification dated 28.12.2002. The said new proviso inter-alia provides that the benefit has already been given on account of the earlier notification dated 01.04.1997, the seniority thus given to the senior batch-mates shall remain unaffected. The said new proviso inter-alia provides that the benefit has already been given on account of the earlier notification dated 01.04.1997, the seniority thus given to the senior batch-mates shall remain unaffected. However, the said proviso ordered to be subject to the final decision of the Honble Supreme Court in SLP (Civil) No. 234/2002- All India Equality Forum vs. Union of India & Others. 21. Another notification has been issued on 25.04.2008 by which the earlier proviso added vide notification dated 28.12.2002 has been ordered to be deleted and the Rajasthan Administrative Service Rules, 1954 were amended to that effect. 22. Be that as it may even if the proviso added by notification dated 28.12.2002 is deleted w.e.f. the said date, the earlier notification dated 01.04.1997 which had been repealed by notification dated 28.12.2002 immediately get revived and comes into operation. Even if for the argument sake it does not restore then in that case whatever had taken place w.e.f. 01.04.1997 till 28.12.2002 under the proviso existed in the Rules or Notification dated 01.04.1997 has not been nullified by subsequent notification dated 28.12.2002 and 25.04.2008. In both the cases as mentioned above, regaining formula in any case would apply upto 28.12.2002 and with respect would still apply for the reason that the proviso added by notification dated 28.12.2002 by which the amended proviso of regaining seniority was deleted, has been taken back. Otherwise also, this notification dated 25.04.2008 has been stayed by the Division Bench of this Court vide order dated 22.08.2008 passed in D.B. Civil Writ Petition No. 8104/2008 and the same is still in force. 23. It is also contended that the consequential seniority after 17.06.1995 cannot be given for the reason that the Honble Supreme Court in its stay order dated 11.11.2002 directed that the seniority of the general category candidates shall not be adversely affected who have already been given benefit of regaining of their seniority. In the same manner the notification dated 28.12.2002 gave benefit to the general category employees who had already been given benefit of regaining of seniority. The notification dated 25.04.2008 deleting the proviso added by the notification dated 28.12.2002 has been stayed by this Court and, therefore, the total effect is this that the employees of the general category who have already been given benefit of their seniority will affect if they have already taken benefit of the regaining of seniority. The notification dated 25.04.2008 deleting the proviso added by the notification dated 28.12.2002 has been stayed by this Court and, therefore, the total effect is this that the employees of the general category who have already been given benefit of their seniority will affect if they have already taken benefit of the regaining of seniority. 24. Mr. Garg further submits that Shambhu Singh Meenas case came to be decided by the Honble Supreme Court arising out of RAS services. In the said decision, it has been categorically held that the notification dated 30.11.1991 is prospectively applicable. The notification dated 30.11.1991 provides that for merit promotion 5 out of 7 outstanding/very good APARs would be a necessity, whereas as per the earlier notification dated 11.07.1979 the requirement for RAS officers to get merit promotion having 7 out of 7 consistently outstanding/very good APARs. As per the provisions of the Rules, the determination of the vacancies take place in the beginning of the year i.e. 1st April of that year. There was no notification of 01.04.1991. The vacancies had already been determined and filled. Thereafter the notification dated 30.11.1991 was issued/published in the month of January, 1992. The said notification was not applicable for filling the vacancies of the year 1991-92. It may be submitted that for earlier years the vacancies had been filled by the State of Rajasthan including 1991-92 under the merit quota by applying 5 out of 7 APARs, whereas it ought to have been 7 out of 7 APARs. When the matter was decided by the Honble Supreme Court in the case of Shambhu Singh Meena, the State Government in compliance of the said decision and the principles laid down therein held the review DPC on 23.02.1996 and considered all the officers for merit promotion upto 1991-92 by seeing 7 out of 7 outstanding/very good APARs. The petitioners name was found to be satisfied the said criteria and given merit promotion as against the vacancy of the year 1991- 92. After a lapse of a period of about 12 years, the review DPC has been held and his promotion given as against 1991-92 has been lowered down to 1992-93 annulling the judgment of Shambhu Singh Meenas case and misconstruing the notification dated 30.11.1991. 25. After a lapse of a period of about 12 years, the review DPC has been held and his promotion given as against 1991-92 has been lowered down to 1992-93 annulling the judgment of Shambhu Singh Meenas case and misconstruing the notification dated 30.11.1991. 25. It is further contended on behalf of the petitioner that the State Government is not having any authority to hold review DPC dated 12.05.2008 annulling the judgment rendered by the Honble Supreme Court in the case of Shambhu Singh Meena. In support of his submissions, learned counsel Mr. Garg placed reliance on the judgment rendered by the Honble Supreme Court in the case of S.R. Bhagwat And Others vs. State of Mysore, (1995) 6 SCC 16 and in the case of S.S. Bola And Others vs. B.D. Sardana And Others, (1997) 8 SCC 522 . 26. It is also submitted that the order of review DPC dated 12.05.2008 is without any reason and as such it is vitiated and to this effect, reliance has been placed on the judgment passed by the Honble Supreme Court in Mohinder Singh Gill And Another vs. The Chief Election Commissioner, New Delhi And Others, (1978) 1 SCC 405 . 27. Mr. Garg has further contended that in the judgment given by the Jodhpur High Court in Prabha Taks case, the petitioner was not a party. The judgment is still under challenge before the Division Bench and this judgment is not binding on the petitioner. Neither the petitioner was made party in the said writ petition nor similarly situated officer had been impleaded therein. In the aforesaid judgment the respondents who had been impleaded were those who were promoted against the year 1991-92 in merit quota on the basis of the Courts decision and it was subsequent to the order dated 23.02.1996. In the judgment it has been ordered that such officers who had been promoted subsequent to 23.02.1996, their cases have to be reviewed after seeing their individual APARs. The case in no manner covers the case of the petitioner for the reasons that the petitioner had already been granted merit promotion as against the vacancies of the year 1991-92 appeared at No.5 out of 12 and, therefore, his case is not covered by the aforesaid judgment. 28. The case in no manner covers the case of the petitioner for the reasons that the petitioner had already been granted merit promotion as against the vacancies of the year 1991-92 appeared at No.5 out of 12 and, therefore, his case is not covered by the aforesaid judgment. 28. It is further contended that the judgment rendered in the case of Prabha Tak is not in rem and it is still under challenge before the Division Bench and relying upon such a decision is bad in law. The decision which had been given in the case of the petitioner long back on 12.09.2001 has not been implemented, whereas the judgment given in Prabha Taks case is sought to be implemented notwithstanding the fact that the said decision is under challenge before the Division Bench. Otherwise also, the judgment is not in rem and in absence of having been attained finality, the same cannot be acted upon. Under the garb of the judgment passed in the case of Prabha Tak, the State Government has reviewed all earlier years and subsequent years DPC, whereas in the judgment it has been specifically ordered that the officers who had been promoted subsequent to 23.02.1996 by Courts decision, their cases have to be reviewed by seeing their individual record. 29. It is also contended on behalf of the petitioner that the notification dated 30.11.1991 has been misconstrued for the reason that already the State Government has held review DPC in the light of the judgment rendered by the Honble Supreme Court in the case of Shambhu Singh Meena. The State Government misconstrued the notification dated 30.11.1991 to the effect that after 30.11.1991 whatever vacancies accrued the said notification would be applicable. Though the said construction is misapplied and misconceived for the reason that the notification would apply to the determination of the vacancies of 01.04.1992. The State Government misconstrued the notification dated 30.11.1991 to the effect that after 30.11.1991 whatever vacancies accrued the said notification would be applicable. Though the said construction is misapplied and misconceived for the reason that the notification would apply to the determination of the vacancies of 01.04.1992. The notification dated 30.11.1991 was published in official Gazette in January, 1992 and as per the law contained in Article 13 of the Constitution of India, the date when the notification is published would be the effective date from which it would be applied then in that case the State Government has to give details of occurring the vacancies after publication of the notification dated 30.11.1991 subsequently in January, 1992 to find out that how many officers lower in line would be considered for merit promotion on the basis of 5 out of 7 outstanding/ very good APARs and it appears that the State Government has applied the notification for whole of the year. Not only this, it has applied notification even for earlier years. The State Government may call to give explanation as to how and in what manner this notification has been applied. 30. Further the petitioners promotion given on 23.02.1996 cannot be annulled by holding review DPC after a period of about 17 years and the settled position cannot be allowed to be unsettled. It has been decided in number of cases by this Court as well as by the Honble Supreme Court that the position which has been settled cannot be annulled in regard to the seniority for a long period, as held by the Honble Supreme Court in the case of B.S. Bajwa And Another vs. State of Punjab And Others, reported in (1998) 2 SCC 523 . It is also bad on account of and for the reason that the order dated 12.05.2008 is without giving any reason and is a non-speaking order and it is passed without giving opportunity of hearing to the petitioner. It is in the nature of lowering down the position of the petitioner from the year 1991-92 to 1992-93 bringing as many as 32-35 junior officers above him who had lost their cases before this Court vide judgment dated 30.05.2001 and 12.09.2001 rendered by the Single Bench and Division Bench respectively. 31. Per contra, learned Additional Advocate General Mr. It is in the nature of lowering down the position of the petitioner from the year 1991-92 to 1992-93 bringing as many as 32-35 junior officers above him who had lost their cases before this Court vide judgment dated 30.05.2001 and 12.09.2001 rendered by the Single Bench and Division Bench respectively. 31. Per contra, learned Additional Advocate General Mr. Kumawat appearing on behalf of the State has raised preliminary objection regarding maintainability of the writ petition as the petitioner has challenged the order dated 12.05.2008 which is a provisional seniority list of RAS officers and also challenged the final seniority list dated 24.06.2008 issued by the Department of Personnel, against which the petitioner has alternative efficacious remedy of filing appeal before the Rajasthan Civil Services Appellate Tribunal. Thus, as the petitioner without availing alternative efficacious remedy has preferred the instant writ petition, therefore, the same is not maintainable on this count alone. 32. It is further contended by the learned Addl. Advocate General that the petitioner in prayer No.(ii) has prayed that his name should be included in the list to be sent to UPSC for convening IAS Board (1996-97 to 2007-08) over and above the reserved category candidates as had been shown in the order dated 23.02.1996. 33. To this effect, it is submitted on behalf of the respondents that any dispute relating to appointment in All India Services can be a subject-matter of challenge before the Central Administrative Tribunal and if the petitioner has any grievance in relation to inclusion of his name for selection in IAS cadre, he can file appeal before the Central Administrative Tribunal. To this effect, it is submitted on behalf of the respondents that any dispute relating to appointment in All India Services can be a subject-matter of challenge before the Central Administrative Tribunal and if the petitioner has any grievance in relation to inclusion of his name for selection in IAS cadre, he can file appeal before the Central Administrative Tribunal. It is also challenged on the ground that the petitioner has not impleaded necessary party as party respondents and the petitioner ought to have impleaded all those persons whose seniority has been challenged and no prejudicial order in absence of the affected person without impleading them as party respondent can be passed and, therefore, the writ petition deserves to be dismissed on account of non-joinder of the necessary parties, as held by the Honble Supreme Court in the case of K.H. Siraj vs. High Court of Kerala & Ors., reported in 2006(6) SCC 395 , wherein the Honble Supreme Court has held as under:- “Constitution of India- Art. 226- Maintainability- Parties- Non-joinder of necessary parties- Petitioners challenging select list- If contention of petitioners accepted, it would result in total rearrangement of select list- In this view, held, all candidates of select list should have been impleaded parties to writ petition- Defect of not impleading all candidates could not be cured by publication in newspaper- where there were specified definite number of candidates who had to be impleaded (i.e. 70), resort could not be made to the said rule as it was not applicable herein- Civil Procedure Code, 1908, Or. 1 Rr. 3, 9 & 13.” 34. Similar view has been taken by the Honble Supreme Court in the case of Suresh vs. Yetomal Dist. Central Co-operative Bank Ltd. & Anr., AIR 2008 SC 2432 , wherein it has been held as under:- “Respondent No.1 is a cooperative society. It has its own rules and bye-laws. The service rules framed by the respondent No.1 stand approved by the Registrar. We have noticed hereinabove that in the seniority-list published in the year 1995, the position of the appellant was at Sl. No.4. Those candidates whose names appeared at Sl. Nos. 2 and 3 were not impleaded as parties in the said proceeding. In their absence, the dispute could not have been effectively adjudicated upon.” 35. We have noticed hereinabove that in the seniority-list published in the year 1995, the position of the appellant was at Sl. No.4. Those candidates whose names appeared at Sl. Nos. 2 and 3 were not impleaded as parties in the said proceeding. In their absence, the dispute could not have been effectively adjudicated upon.” 35. Further in the case of Surinder Shukla vs. Union of India And Others, reported in (2008) 2 SCC 649 , the Honble Supreme Court has observed as under:- “The said Col. A.P.S. Panwar and Col. V.K. Sinha were furthermore not impleaded as parties in the writ petition. In their absence, the writ petition could not have been effectively adjudicated upon.” 36. Similar preliminary objections have been raised by the learned counsel appearing on behalf of the respondent No.5. 37. In reply to preliminary objection raised on behalf of the respondents, the learned counsel appearing for the petitioner submits that since the matter has already been decided by this Court on 12.09.2001 and since the said matter is said to have become redundant, the question raised in aforesaid writ petition can only be decided by this Court. The alternative remedy relates to the seniority question which is not the only question which is to be decided but many other questions emerges from the malafide action on the part of the State Government and there is no alternative remedy to redress his grievance against such malafide action and, therefore, the writ petition is maintainable. 38. It is further contended that in a case where intricate question of law are involved which are pending before this Court for so many years and in which violative decisions taken by the State Government and constitutional amendments are relied upon for adversely affecting the petitioners seniority position and there being no lis between individuals, the question of impleadment of all the officers is not necessary. 39. In support of his submissions, the learned counsel for the petitioner placed reliance on the judgment rendered by the Honble Supreme Court in the case of Dr. Suresh Chandra Verma and others vs. The Chancellor, Nagpur University and others, reported in AIR 1990 SC 2023 , wherein it has been held as under:- “Personal hearing to each appointee not necessary as termination was due to change of law and not because of individual misdemeanour.” 40. Suresh Chandra Verma and others vs. The Chancellor, Nagpur University and others, reported in AIR 1990 SC 2023 , wherein it has been held as under:- “Personal hearing to each appointee not necessary as termination was due to change of law and not because of individual misdemeanour.” 40. He further placed reliance on the judgment rendered by the Honble Supreme Court in the case of Biswa Ranjan Sahoo and others vs. Sushanta Kumar and others, reported in AIR 1996 SC 2552 , wherein it has been held by the Honble Supreme Court as under:- “Notice to persons affected and whose selection was not in accordance with law not required.” 41. Reliance has further been placed on the judgment rendered in the case of Miss Kamlesh Bhardwaj etc. etc. vs. State of Rajasthan & anr., reported in 1982 RLR 638 , wherein it has been observed as under:- “The policy decision covers the very big canvas, because all those who applied to Pub. Service Commission and who appeared in the screening examination are guided by this policy decision. This policy decision being challenged on the ground of constitutionality under Article 14 and 16 of the Constitution, and further on the ground of legal and logical meaning which should be given to the proviso, covers the entire range and need not be confined to individual cases. In view of this the objection that the petitioners must fail on non-joinder of adversely affected parties fails.” 42. Further in the case of Naresh Kumar Joshi and others vs. The State of Punjab and others, reported in 1982(1) SLR 15, it has been held that “necessary party- Mode and manner of selection challenged but not selection of candidates- Not necessary to make the selected candidates as party.” 43. It is also submitted that in order dated 24.06.2008, the reasons have been given that the judgment given by the Honble Supreme Court and this Court have become redundant in view of the 85th Constitutional Amendment. The judgment given by this Court cannot be annulled by any administrative order. 44. It is also submitted that in order dated 24.06.2008, the reasons have been given that the judgment given by the Honble Supreme Court and this Court have become redundant in view of the 85th Constitutional Amendment. The judgment given by this Court cannot be annulled by any administrative order. 44. In support of his submissions, the learned counsel for the petitioner placed reliance on the judgment rendered by the Honble Supreme Court in the case of S.R. Bhagwat And Others vs. State of Mysore, reported in (1995) 6 SCC 16 , wherein it has been held that “Judgment- Attaining finality and binding against the State- Held, cannot be overruled by any legislative measure.” 45. Further in the case of S.S. Bola and others vs. B.D. Sardana and others, reported in (1997) 8 SCC 522 , the Honble Supreme Court has observed as under:- “legislature can validly enact a fresh legislation within its legislative field by retrospectively changing the character of the earlier statute or statutory rules so that the court would not have rendered its decision had the changed situation prevailed at that time- But legislature cannot merely declare a judicial decision to be ineffective as that would amount to usurpation of judicial power by legislature.” 46. In Anil Ratan Sarkar And Others vs. State of W.B. And Others, reported in 2001(5) SCC 327 , it has been held by the Honble Supreme Court that administrative ipse Dixie cannot infiltrate to an arena which stands covered by judicial orders. 47. Learned counsel also referred the judgment rendered in the case of Mohinder Singh and another vs. The State of Haryana and others, reported in 1992(3) SLR 304, wherein it has been held that “Constitution of India Article 16- seniority- change of seniority without giving affected persons any opportunity of hearing- order not sustainable. “ 48. Per contra, on the merits of the case learned AAG Mr. Kumawat submits that the petitioner claimed that he should be placed above reserved category candidates on the basis of the judgments rendered by the Single Bench and upheld by the Division Bench of this Court, wherein it has been held that the reserved category candidates are not to be placed above the general category candidates, even if, general category candidates are promoted subsequently than reserved category candidates. Although against the judgment passed by the Division Bench, SLP has been preferred by the State and the same is pending consideration before the Honble Supreme Court. 49. Learned AAG as well as learned counsel appearing on behalf of the respondent No.5 have stated that the claim of the petitioner above reserved category candidates is wholly misconceived. The earlier judgments passed by the Division Bench had not taken into account the 77th Amendment, which was made effective w.e.f. 17.06.1995 and 85th Amendment which was also made effective w.e.f. 17.06.1995. These amendments have not only granted right of promotion to reserved category candidates in the matter of promotion but also conferred right of seniority to reserved category if they are promoted earlier than the general category candidates. 50. It is also contended that constitutional validity of 77th, 81st, 82nd and 85th Amendments have been upheld by the Honble Apex Court in the case of M. Nagraj And Others vs. Union of India And Others, reported in (2006)8 SCC 212 . Thus, in view of the subsequent judgment of the Honble Supreme Court, the earlier judgment passed by the Division Bench will not hold the field and the same is under challenge before the Honble Apex Court and as such the matter is still sub-judice. 51. It is further submitted on behalf of the respondents that prior to 23.02.1996, the petitioner was assigned year 1992-93 on the recommendation of the DPC and he continued to have this position up till order dated 23.02.1996. 85th amendment had been made effective from 17.06.1995 and the promotion exercise was carried out later on by issuance of an order dated 23.02.1996. The reserved category candidates whose promotions were made by the State Government, from time to time in consonance of decision which was taken as back as on 03.10.1973 and the State Government had provided reservation for SC/ST for appointment by promotion to each class/category/group as well as senior posts under the State/Subordinate/Ministerial and Class-IV services in the State to the tune of 16(SC):12(ST) respectively. The promotions even before amendment in the Constitution were provided by the State Government as per different Government orders issued from time to time and in catena of cases, it has been held by the Honble Apex Court that the word “appointment” includes “promotion” and as such the promotions which were accorded to reserved category were absolutely as per law and Constitution. 52. Further, the petitioner has pleaded that in the writ petition filed by Prabha Tak i.e. S.B. Civil Writ Petition No. 5392/2003 decided by the Jodhpur High Court on 07.04.2007, he was not party and the appeal has been preferred against the judgment dated 04.07.2007 before the Division Bench which is still pending and during pendency of the appeal, Smt. Prabha Tak has already retired from service on attaining the age of superannuation. Vide judgment dated 04.07.2007 passed by this Court, the respondent State was directed to hold review DPC to make promotion to the Selection Grade for the vacancies relating to the year 1991-92 against merit quota in accordance with Rules, 1954 by taking into consideration the candidature of all the persons coming within the zone of consideration. 53. It is further contended on behalf of the respondents that the judgment passed by the Jodhpur High Court in the case of Prabha Tak is a judgment in rem not judgment in persona and the judgment in rem is applicable to all the persons whether they were parties or not and filing of the appeal does not invalidate the judgment passed by the Single Bench and the interim application for staying the operation of the order has already been rejected by the Division Bench. 54. The review DPC was convened on the basis of the direction issued by this Court in the case of Prabha Tak and the contempt petition was also filed by Prabha Tak, wherein notices were issued and, therefore, the order passed in the case of Prabha Tak was complied with. 55. 54. The review DPC was convened on the basis of the direction issued by this Court in the case of Prabha Tak and the contempt petition was also filed by Prabha Tak, wherein notices were issued and, therefore, the order passed in the case of Prabha Tak was complied with. 55. Learned counsel referred sub-clause 12 of Rule 28 of RAS Rules, which provides that the Government has power of review of the proceedings of the committee held earlier on account of some mistake or error apparent on the face of the record, or on account of factual error substantially affecting the decision of the Committee or for any other sufficient reasons e.g. change in seniority, wrong determination of vacancies judgment/direction of any Court or Tribunal etc. 56. It is not disputed by the learned counsel appearing for the respondents that earlier promotions which were made by the order dated 23.02.1996 had taken into account the old criteria relating to merit quota as 7 out of 7 ACRs were considered and valid reasons have been shown before this Court by the State Government of convening review DPC and as such the petitioner cannot have any grievance. 57. It is again submitted that the petitioner has pleaded that the Notification dated 30.11.1991 will not apply for the year 1991-92 as there cannot be selection/bifurcation of vacancies and as such this notification was to apply for the year 1992-93. 58. Further, the vacancies which were existing from 01.04.1991 to 29.11.1991 were required to be considered for promotion in ratio of 50 percent by seniority-cum-merit and 50 percent by merit and in merit quota 7 out of 7 outstanding/very good ACRs were to be seen. However, the vacancies which were to accrue from 30.11.1991 to 31.03.1992 were to be filled on the basis of revised merit criteria where 5 outstanding/very good ACRs out of 7 years were required to be considered. 59. It is also contended on behalf of the respondents that a bare perusal of the order dated 23.02.1996 clearly reveals that there was a compliance of the order passed in different appeals including Appeal No. 116/1992. 59. It is also contended on behalf of the respondents that a bare perusal of the order dated 23.02.1996 clearly reveals that there was a compliance of the order passed in different appeals including Appeal No. 116/1992. The said appeal was filed by Shri K.G. Agarwal which was decided on 29.03.1994 and the directions were given that criteria of 7 outstanding/very good ACRs to be considered and the State Government has committed mistake by giving promotion by misinterpreting the judgment of Shambhu Singh Meenas case by not following the criteria of vacancies accruing from 01.04.1991 to 29.11.1991 and vacancies accruing from 30.11.1991 to 31.03.1992. 60. Learned counsel for the respondents also tried to distinguish the judgment rendered by the Honble Supreme Court in the case of Mohinder Singh Gill (supra), referred by the petitioner and submits that the said authority is not relevant and it does not deal with the controversy involved in the present writ petition. The petitioner placed reliance on the aforesaid judgment for the purpose of judging administrative action in judicial review, is nowhere concerned with the present writ petition. 61. Similarly the petitioner placed reliance on the judgment rendered by the Punjab & Haryana High Court in the case of N.S. Chauhan vs. PSEB, reported in 2003(3) SLR 674, wherein it has been held by the Punjab & Haryana High Court that 85th Amendment does not confer any fundamental right of reservation and no person can claim accelerated seniority merely on the strength of Article 16(4-A). 62. Learned counsel for the respondents submits that the ratio decided by the Punjab & Haryana High Court is not applicable to the instant case in view of the ratio decided by the Honble Supreme Court in the case of M. Nagraj (supra) as the judgment rendered by the Honble Supreme Court in the case of Ajit Singh II (supra) has been considered by the Honble Supreme Court in the case of M. Nagraj (supra) 63. So far as the judgment passed by the Honble Supreme Court in the case of Shambhu Singh Meena (supra) is concerned, it is submitted on behalf of the respondents that the said judgment nowhere helps the petitioner, on the contrary the Honble Supreme Court has held that the subsequent Notification dated 30.11.1991 was not to relate to the vacancies which were under consideration at the relevant time i.e. 1981-82 to 1986-87. 64. 64. The judgment rendered by the Honble Supreme Court in the case of Shiv Nath Prasad vs. Saran Pal Jeet Singh Tulsi & Ors. (Appeal {Civil} 1078-1081 of 2005), decided on 10.01.2008, is not applicable to the present case as the Honble Supreme Court in the aforesaid case has held that there was no provision in Madhya Pradesh Engineering Service Rules that reservation in promotion was provided at the relevant time and it was held that the Constitutional Amendment i.e. 77th and 85th cannot be made applicable as was made applicable from 17.06.1995, which reveals that no relevant provision of law was available protecting the seniority of general category candidates over reserved category candidates, on the contrary in the Rajasthan Administrative Service Rules, there is a specific Rule 8 regarding reservation in the matter of promotion and further there is a protection of seniority in Rule 33 and as such, all the promotions which have been made from time to time are well protected and recognised as per the Rules of 1954. 65. I have heard rival submissions of the respective parties and carefully gone through the material available on the record as also the averments made in the writ petitions. 66. I have also gone through the provisions of Rajasthan Administrative Service Rules, 1954 as well as the judgments referred by the respective parties in support of their submissions. 67. It is not disputed that vide notification dated 11.04.1979, the criteria of merit promotion was on the basis of 7 out of 7 consistently outstanding/very good APARs and the criteria was amended vide notification dated 30.11.1991 and as per the amendment, the criteria of merit promotion was made on the basis of 5 out of 7 APARs. 68. 67. It is not disputed that vide notification dated 11.04.1979, the criteria of merit promotion was on the basis of 7 out of 7 consistently outstanding/very good APARs and the criteria was amended vide notification dated 30.11.1991 and as per the amendment, the criteria of merit promotion was made on the basis of 5 out of 7 APARs. 68. Learned counsel for the respondents as well as the learned counsel appearing for the State have given much emphasize that the ratio decided by the Honble Supreme Court in the case of Shambhu Singh Meena (supra), wherein the subsequent notification dated 30.11.1991 was under challenge, whereby the criteria of merit promotion was made on the basis of 5 out of 7 APARs, the Honble Supreme Court having considered the same has held that the notification is having prospective effect and in view of the ratio decided by the Honble Supreme Court in the case of Shambhu Singh Meena (supra), the petitioner was found to have entitlement for merit promotion in selection scale of RAS as against the vacancies of 1991-92 having been found consistently 7 out of 7 outstanding/very good APARs. 69. I have carefully gone through the judgment rendered by the Honble Supreme Court in the case of Shambhu Singh Meena (supra), wherein the Honble Supreme Court has considered that Rule 28-B of the Rajasthan Administrative Services Rules, 1954 lays down the criteria, eligibility and procedure for promotion to junior, senior and other posts at cadre in the Service. Sub-rule(11) of that Rule provides the Committee shall prepare a list on the basis of merit and as per the criteria for promotion laid down by the Rules and as per the Explanation to that sub-rule- “For 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.” 70. In the aforesaid case, Honble the Supreme Court has also considered the judgments passed by the Tribunal and the Rajasthan High Court and in the judgment delivered by the Tribunal dated 11.11.1983, it has been observed: “We have been consistently holding that the ACRs/APARs of the Officers pertaining to 7 (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. After the passing of the said order the DPC again met and did not select those who did not possess the “Outstanding” or “Very Good” record for a period of 7 years. This selection was again challenged before the Rajasthan High Court by Mahesh Prasad Mathur and Suresh Chander Tayal but the High Court dismissed the petitions while holding that the view taken by the Tribunal was correct. The judgment delivered by a Division Bench of the Rajasthan High Court in Civil Writ Petition No. 4204 of 1990 also indicates that in the year 1984 the DPC had selected only those officers whose confidential reports were “Outstanding” or consistently “Very Good” for all the 7 years. 71. It has been further held that the rule requires that the record of the officer should be outstanding or consistently very good and that would imply that it should be so for the entire period under consideration. 72. Having considered the submissions made on behalf of the respective parties, the Honble Supreme Court has held as under:- “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 promotions which are challenged in these cases, obviously, cannot apply to these cases.” 73. I have minutely gone through the Notification dated 30.11.1991, by which criteria of selection on merit has been amended and the amendment has been incorporated while exercising powers conferred by the proviso to Article 309 of the Constitution of India. The amendment which has been made, is as under:- “For the existing “Explanation” below sub-rule (5), (6), (9), (10) or sub-rule (11), as the case may be, under rule as mentioned in Column 3 against each of the Service Rules mentioned in Column 2 of the Schedule appended hereto, shall be substituted by the following, namely:- “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 in at least five out of 7 years preceeding the year for which D.P.C. is held.” 74. Vide Notification dated 30.11.1991, Explanation to the rules has been amended and for the purpose of selection for promotion on the basis of merit, 7 out of 7 is changed to at least 5 out of 7 years preceding the year for which D.P.C. is held. 75. It is not disputed that the petitioner filed S.B.C.W. Petition No. 2968/2000 challenging placing of superseded officers over and above him and the same was allowed by this Court vide order dated 30.05.2001. Against the aforesaid judgment, the State Government also filed special appeal but the same came to be dismissed by the Division Bench of this Court vide judgment dated 12.09.2001. Further the special appeals preferred by the reserved category officers before the Division Bench were also dismissed vide common judgment dated 12.09.2001. Since the judgment of the Division Bench dated 12.09.2001 was not challenged by the reserved category officers, therefore, the same becomes final so far as reserved category officers are concerned. 76. Vide judgment dated 12.09.2001 passed by the Division Bench, the State Government was directed to prepare a provisional seniority list keeping the superseded officers below the persons who were selected on merit basis considering 7 out of 7 outstanding/very good ACRs and the objections so filed by the aggrieved persons were considered by the three member committee headed by the Chief Secretary. 77. It is also not disputed that SLP has been preferred before the Honble Supreme Court by the State Government relating to placing of superseded officers below the petitioner and the same is pending consideration and it is also not disputed that no interim order has been passed by the Honble Supreme Court. 78. The controversy arose when the State Government passed the order of review DPC for selection scale and supertime scale of RAS on 12.05.2008 for the years 1986-87 to 1993-94 for selection scale and for the years 1993-94 to 2007-08 for supertime scale. 79. Much emphasize has been given by the learned counsel appearing for the respondents that in view of the decision given by the Honble Supreme Court in the case of Shambhu Singh Meena (supra), the judgment passed by the Division Bench will not hold the field and the Division Benchs judgment itself is under challenge before the Honble Supreme Court and as such the matter is still sub-judice. 80. 80. It is contended by the respondents that the State Government has wrongly interpreted the judgment passed by the Honble Supreme Court in the case of Shambhu Singh Meena (supra) in view of the 85th amendment brought into force w.e.f. 17.06.1995. 81. In the case of Shambhu Singh Meena (supra), Honble the Supreme Court has considered Rule 28-B of the Rajasthan Administrative Services Rules, 1954, which lays down the criteria, eligibility and procedure for promotion to junior, senior and other posts and cadre in the Service. Sub-rule (11) of that Rule provides that the Committee shall prepare a list on the basis of merit and as per the criteria for promotion laid down by the Rules. Explanation to that sub-rule has also been considered by the Honble Supreme Court, which reads as under:- “Explanation:- For 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.” 82. Honble the Supreme Court has further observed that in the year 1984 the DPC had selected only those officers whose confidential reports were outstanding or consistently very good for all the 7 years. Further the Rule requires that the record of the officer should be outstanding or consistently very good and that would imply that it should be so for the entire period under consideration. 83. Thus, the State Government has rightly interpreted the ratio decided by the Division Bench of this Court and the Honble Supreme Court in the case of Shambhu Singh Meena (supra) and has rightly selected the meritorious officers on merit basis considering their 7 out of 7 outstanding/ very good ACRs, but the State Government has taken advantage of the notification dated 30.11.1991, whereby selection criteria on the basis of merit has been changed from 7 out of 7 to 5 out of 7 outstanding/ very good ACRs, which does not apply to those officers who were already considered on the basis of 7 out of 7 outstanding/very good ACRs cannot be changed in view of the notification dated 30.11.1991 as this notification is having prospective effect not retrospective effect. 84. I have carefully gone through the judgment rendered by the Honble Supreme Court in the case of Shiv Nath Prasad vs. Saran Pal Jeet Singh Tulsi & Ors. 84. I have carefully gone through the judgment rendered by the Honble Supreme Court in the case of Shiv Nath Prasad vs. Saran Pal Jeet Singh Tulsi & Ors. (supra), wherein the Honble Supreme Court has considered the submissions advanced on behalf of the appellant as well as the respondents, which read as under:- “5. Learned counsel for the appellant submitted that since the petitioner/appellant was promoted on the post of Executive Engineer in 1980 and respondents were promoted in 1985, therefore, petitioner/appellant had already had a march over the respondent and he also submitted that by virtue of the 77th and 85th constitutional amendment of Article 16(4A), the promotion of these persons shall be deemed to be validly made, therefore, the petitioners are entitled to that higher seniority and consequential benefit of earlier promotion to the post of Executive Engineer, Superintending Engineer and likewise to the post of Chief Engineer. It was submitted that this was a constitutional mandate and Court cannot ignore the constitutional mandate. Therefore, the learned counsel submitted that the view taken by the High Court cannot be sustained. He also submitted that the ratio laid down in the case of Ajit Singh I and Ajit Singh II (Supra) does not hold good anymore in view of the 77th and 85th constitutional amendment and that shall deem to be come into force retrospectively. Consequently, all the benefit given by the petitioner is correct. As against this, the learned counsel for the respondent strenuously argued before us that the constitutional amendments i.e. 77th and 85th were retrospective with effect from 17.06.1995 and it cannot go beyond that. Therefore, present case has to be decided on the basis of legal position obtaining at the relevant time. The retrospectivity cannot be given to constitutional mandate beyond that Parliament has already given.” 85. Honble the Supreme Court having considered rival submissions of the respective parties has observed as under:- “in the present case, the issue triggered in the year 1985 and these rules at that time were not in force. Neither the constitutional amendments had come into force nor were the rules. Neither the 77th constitutional amendment nor the 85th constitutional amendment had been made retrospective from 1985. It has been made retrospective with effect from 17.06.1995 only. Neither the constitutional amendments had come into force nor were the rules. Neither the 77th constitutional amendment nor the 85th constitutional amendment had been made retrospective from 1985. It has been made retrospective with effect from 17.06.1995 only. The controversy dates back to 1985 when the general quota candidates were promoted in 1985 on the post of Executive Engineer and the appellant respondent was promoted in 1980. at that time, the circular of the Government of 1975 was in force and as per that circular of the Government, incumbent was not entitled to the seniority on account of his accelerated promotion against the reserved quota, as per the circular of 1975 as quoted above, he was only entitled to the accelerated promotion but not the seniority; therefore, in this view of the matter, we are of the opinion that the view taken by the Division Bench of High Court is correct and no interference is warranted in the present case. Consequently, all the appeals are dismissed. No order as to costs.” 86. I have also considered the preliminary objections raised on behalf of the respondents regarding maintainability of the writ petition. So far as efficacious remedy available to the petitioners before the Rajasthan Civil Services Appellate Authority is concerned, as the petitioners only challenged the action of the respondents by which the respondents prepared a seniority list placing the petitioner below the reserved category candidates, therefore, writ jurisdiction is the only remedy available to the petitioner as the DPC was held pursuant to the direction issued by the Honble Supreme Court in the case of Shambhu Singh Meena (supra) and the petitioner along with other meritorious persons were selected considering their 7 out of 7 outstanding/very good ACRs. 87. Thus, this Court find no substance in the preliminary objection raised on behalf of the respondents. 88. In view of the discussions made herein above, the impugned final seniority list dated 24.06.2008 (Annexure-3) issued by the Department of Personnel, Govt. 87. Thus, this Court find no substance in the preliminary objection raised on behalf of the respondents. 88. In view of the discussions made herein above, the impugned final seniority list dated 24.06.2008 (Annexure-3) issued by the Department of Personnel, Govt. of Rajasthan, Jaipur is hereby quashed and set-aside so far as the merit promotees whose selection was made against the vacancies of the year 1991-92 considering 7 out of 7 outstanding/very good APARs are concerned, and the respondents are directed to show the names of merit promotees for the year 1991-92 over and above the reserved category candidates as had been shown in the seniority list issued by the respondents on 23.02.1996 as per the decision of the Division Bench dated 12.09.2001 following the decision of the Honble Apex Court rendered in the case of Shivnath Prasad (supra) and shall prepare final seniority list in the light of the judgment dated 12.09.2001 rendered by the Division Bench of this Court and the judgment rendered by the Honble Supreme Court in the case of Shivnath Prasad (supra) and the merit promotees, thus, are also entitled for consideration on the post of I.A.S. as per their merit. 89. Consequently, all the writ petitions stand allowed in the terms as indicted herein above.