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2018 DIGILAW 410 (RAJ)

State of Rajasthan v. Mukesh Goyal

2018-02-02

PRADEEP NANDRAJOG, RAMCHANDRA SINGH JHALA

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JUDGMENT : Pradeep Nandrajog, J. 1. As per the Rajasthan Service of Engineers and Allied Posts (Public Health Branch) Rules, 1968, the post of Assistant Engineer was to be filled up 50% by promotion and 50% by direct recruitment. Feeder cadre was the post of Junior Engineer. In the 50% promotion quota there was further allocation between degree holders and diploma holders. 2. On 3.10.1994 RPSC issued an advertisement to fill up the number of posts indicated in the advertisement of Assistant Engineer by direct recruitment. The private appellants in the above captioned appeals applied for being inducted as Assistant Engineers (Civil) and (Mechanical) pursuant to the advertisement. Process of selection continued till August 1996. The appellants were appointed in August 1996 as direct recruit Assistant Engineers. 3. The Junior Engineers had made representation of stagnation. On 22.1.1996 a letter was addressed by the Dy. Secretary, Government of Rajasthan to the Chief Engineer (HQ), PHED sanctioning up gradation of 204 posts of Junior Engineer to that of Assistant Engineer. Since the Rules of 1968 did not provide to fill up the post of Assistant Engineer 100% by promotion, on 31.10.1996, Dy. Secretary, Government of Rajasthan informed the Chief Engineer (HQ), PHED that the letter dated 22.1.1996 was withdrawn. 4. Pertaining to the available posts of Assistant Engineer in the 50% promotion quota a DPC was held on 6.11.1996 for the vacancies of the year 1996-97 and 34 Assistant Engineers (Civil) and 10 Assistant Engineers (Mechanical) were appointed by promotion from amongst the Junior Engineers on 4.12.1996. 5. On 9.12.1996 an amendment was made to the Rules of 1968. Rule 6D was inserted in the statute book to give one time promotion to the upgraded post of Assistant Engineer (Civil/Mechanical/Electrical) by 100% promotion. As per the Rule, notwithstanding anything to the contrary contained in rules or the schedule, upon the up gradation of the existing posts of Junior Engineer to the posts of Assistant Engineer, the posts of Assistant Engineer so upgraded were to be filled up 100% by promotion in accordance with the procedure and quota laid down in the Rules. The DPC met on 31.7.1997 to consider eligible Junior Engineers to be promoted as A.En. for the vacancy year 1997-98 which included the upgraded posts of A.En. and promotion order was issued on 13.8.1997. 6. The DPC met on 31.7.1997 to consider eligible Junior Engineers to be promoted as A.En. for the vacancy year 1997-98 which included the upgraded posts of A.En. and promotion order was issued on 13.8.1997. 6. The respondents in the appeals who were the writ petitioners were promoted as Assistant Engineers with respect to the upgraded posts and these vacancies were treated as of the year 1997-1998. As per the Rules of 1968, vide Rule 9 the actual number of vacancies occurring during the financial year have to be determined on the first day of April every year and as per Rule 25 the eligibility has to be determined for purposes of filling up of the vacancies as of the first day of April of the year of selection. Rule 9 reads as under:- "9. 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 be 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 apportionment of vacancies, determined under clause (a) above, to each such method shall be done maintaining the prescribed proportion for the over all number of posts 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 methods prescribed in a continuous cyclic order giving precedence to the promotion quota. (2) The Appointing Authority shall also determine the vacancies of earlier years year wise which were required to be filled in by promotion, if such vacancies were determined and filled earlier in the year in which they were required to be filled in." 7. (2) The Appointing Authority shall also determine the vacancies of earlier years year wise which were required to be filled in by promotion, if such vacancies were determined and filled earlier in the year in which they were required to be filled in." 7. In view of the fact that vacancies for direct recruitment were determined as of the year 1994-95 and the appellants were appointed as direct recruits in August, 1996 and the writ petitioners were treated as promotes for the vacancy year 1997-98 for the reason the upgraded posts were created when the Rules were amended on 9.12.1996, a final seniority list was issued on 20.4.2000 showing the appellants senior to the writ petitioners. Based on the said seniority list the appellants were further promoted to the posts of Executive Engineer, Superintending Engineer and Additional Chief Engineer on various dates, being 29.9.2008, 8.6.2010, 14.2.2012 and 4.10.2013. 8. On a dispute of seniority between degree holders and diploma holders including diploma holders who had acquired degrees, pertaining to the post of Junior Engineer, the dispute came to be settled in the year 2011 and this necessitated the fresh drawing up of a seniority list of Assistant Engineers on 21.12.2011. In said seniority list the appellants were shown as senior to the writ petitioners, who filed writ petitions in the years 2012 and 2014 claiming that their promotion as Assistant Engineer be reckoned for the vacancy year 1996-97. 9. Vide impugned orders in the appeals the writ petitions have been allowed and the reasoning of the learned Single Judge is that as per the order dated 22.1.1996 (wrongly mentioned as 9.1.1996) Junior Engineers became automatically upgraded as Assistant Engineers. 10. Relevant would it be to note that the appellants were impleaded as respondents in the writ petitions filed by the writ petitioners. 11. The appellants have challenged the impugned decision on three grounds:- the first is that seniority list of Assistant Engineers was finalized on 20.4.2000 in which year of vacancy for promotion of the writ petitioners was treated as 1997-98. They did challenge the said seniority list. 11. The appellants have challenged the impugned decision on three grounds:- the first is that seniority list of Assistant Engineers was finalized on 20.4.2000 in which year of vacancy for promotion of the writ petitioners was treated as 1997-98. They did challenge the said seniority list. The revised seniority list dated 21.12.2011 concerned the dispute between the degree holder and diploma holder Junior Engineers and thus said list on being published could afford a cause of action to sue pertaining to the grievance raised in the writ petitions for the reason the cause of action had accrued when the seniority list dated 20.4.2000 was published. 12. The second contention urged is that the writ petitions were liable to be dismissed on account of non-joinder of necessary parties i.e. the direct recruits. 13. Lastly it was urged that it was a case of up gradation of 204 posts of Junior Engineers with simultaneous placement of senior most Junior Engineers as Assistant Engineers. Rule 6D clearly contemplated that existing posts of Junior Engineers were upgraded and were to be filled up 100% by promotion in accordance with the procedure and quota laid down in the Rules. Rule in question reads as under:- "(6-D) One time promotion to the upgraded post of Assistant Engineer (Civil/Mechanical/Electrical).- Notwithstanding anything to the contrary contained in these rules or the Schedule, upon the up gradation of the existing posts of Junior Engineer (Civil/Electrical/Mechanical) to the posts of Assistant Engineer (Civil/Electrical/Mechanical), the posts of Assistant Engineer so upgraded shall be filled 100% by promotion in accordance with the procedure and quota laid down in these rules." 14. Per contra learned counsel for the writ petitioners urged that the view taken by the learned Single Judge that it was a case of up gradation of the posts with the holders of the posts being promoted by way of up gradation is correct. On the issue of delay learned counsel for the writ petitioners urged that when the final seniority list dated 21.12.2011 was published a fresh cause of action accrued to sue. 15. Having considered the rival submissions we find merit in the three contentions advanced by the appellants. 16. Needless to state the appellants were vitally affected by any decision taken by the learned Single Judge for the reason it affected their seniority and thus they were necessary parties. 15. Having considered the rival submissions we find merit in the three contentions advanced by the appellants. 16. Needless to state the appellants were vitally affected by any decision taken by the learned Single Judge for the reason it affected their seniority and thus they were necessary parties. The writ petitions filed were liable to be dismissed on account of nonjoinder of necessary parties. 17. The learned Single Judge has noted the fact that as per Rule 9 of the Rules of 1968 the vacancies had to be determined on the first day of April every year and as per Rule 25 of the Rules of 1968 the vacancies had to be filled up in the year of the vacancy. The letter dated 22.1.1996 merely conveyed a sanction for up gradation of 204 posts of Junior Engineers to the posts of Assistant Engineer, but was withdrawn on 31.10.1996 because the Government realized that unless the Rules of 1968 were amended this was possible. It was only on 9.12.1996 that the Rules were amended by insertion of Rule 6D which provided for one time filling up of the 204 upgraded posts of Assistant Engineers by promotion. Thus, these vacancies came to be in existence after 1st April, 1996. As per the Rules, the year of the vacancy being 1996-97, required the vacancies to be determined as of first April 1996. The DPC met on 31.7.1997 to consider eligible Junior Engineers to be promoted as A.En. for the vacancy year 1997-98 which included the upgraded posts of A.En. and promotion order was issued on 13.8.1997. 18. Rule 37 of the Rules of 1968 requires that if any dispute arises relating to application and scope of the Rules it shall be referred to the Government in the Department of Personnel, whose decision shall be final. Concededly, on 18.2.1984 while exercising power under Rule 37, the Department of Personnel in the State of Rajasthan had issued a clarification to the effect that vacancies shall be determined only once a year and the vacancies occurring after the meeting of DPC shall be treated as the vacancies of the next year. Concededly, on 18.2.1984 while exercising power under Rule 37, the Department of Personnel in the State of Rajasthan had issued a clarification to the effect that vacancies shall be determined only once a year and the vacancies occurring after the meeting of DPC shall be treated as the vacancies of the next year. Thus, 204 vacancies to the post of Assistant Engineer upon up gradation of 204 posts of Junior Engineer obviously came into existence when the Rules were amended on 9.12.1996 and we highlight that much before the appellants were appointed as Assistant Engineers in the month of August, 1996 by direct recruitment. 19. There is another aspect of the matter which the learned Single Judge has over-looked. That much before the writ petitions were filed the appellants earned further promotion to the posts of Executive Engineer, Superintending Engineer and Additional Chief Engineer on 29.9.2008, 8.6.2010 and 4.10.2013 respectively. 20. Under the circumstances the appeals are allowed. Impugned judgment and order dated 8.3.2016 is set aside. S.B. Civil Writ Petition No. 8655/2012 and S.B. Civil Writ Petition No. 5196/2014 are dismissed.