ORDER : 1. This writ petition has been filed by the petitioners seeking direction to the respondents to determine the vacancies on the post of Selection Scale in the respondent – Department as on 01.04.2021, considering the petitioners for conferment of promotion on the post of Selection Scale from the post of Senior Scale w.e.f. 01.04.2021, take into account the posts for consideration of promotion in the cadre of Selection Scale, which became vacant by virtue of promotions made on 3.11.2021 and grant promotion to the petitioners on the post of Selection Scale w.e.f. 01.04.2021 with consequential benefits. 2. The petitioners, who are officers of Rajasthan Police Service, were selected by orders dated 10.8.2011 and 11.8.2011 and accorded postings as Additional Superintendent of Police (Junior Scale). 3. It is inter alia indicated that channel of promotion under the Rajasthan Police Service is governed by the Rajasthan Police Service Rules, 1954 (‘the Rules’), wherein, appointment to senior posts i.e. Senior Scale, Selection Scale and Supertime Scale are made in terms of Rule 32 of the Rules on the basis of merit and seniority-cum-merit. 4. The petitioners were accorded promotion on the post of Senior Scale by orders dated 31.7.2018 and 12.12.2018 against vacancies of the year 2018-19 w.e.f. 1.4.2018. It is then contended that respondents issued seniority list on 4.6.2021 as on 1.4.2021 (Annex.6). The said seniority list was followed by order dated 29.7.2021 (Annex.7), wherein, 125 posts were determined in the cadre of Selection Scale. 5. On 15.9.2021, a notification under the Rajasthan Various Service Rules (Second Amendment) Rules, 2021 was notified inter alia amending the Rules and providing that ‘no member of service, who has been appointed on Senior Scale post and not completed 10 years service in all as a member of service, shall not be eligible for appointment on the Selection Scale post’. 6. The respondents whereafter issued orders of promotion on recommendation of the Departmental Promotion Committee (‘DPC’) for conferring promotion to Supertime Scale to the persons working on the post of Selection Scale against the vacancies of the year 2021-22 on seniority-cum-merit basis and simultaneously, issued order whereby persons working on the post of Senior Scale were conferred promotion on the post of Selection Scale against the vacancies of the year 2021-22 on seniority-cum-merit basis (Annex. 10 and 11 respectively). 7. 10 and 11 respectively). 7. It is inter alia contended by learned counsel for the petitioners that the promotions from Selection Scale to Supertime Scale have been conferred w.e.f. 01.04.2021, based on determination of vacancies under Rule 9 of the Rules i.e. as on 1st April of the year. It is then contended that as by order dated 03.11.2021 (Annex.10) as many as 23 promotions were made from Selection Scale to Supertime Scale, wherein, 20 posts were in general category, the said posts became vacant in Selection Scale w.e.f. 01.04.2021. 8. It is submitted that petitioners being eligible were awaiting their promotions on the post of Selection Scale w.e.f. 01.04.2021, however, the same were not conferred on the petitioners indicating that only those candidates, who had completed at least 10 years’ service in all as a member of service in terms of amendment dated 15.9.2021 (Annex.9), were eligible and as the petitioners had not completed 10 years in service as on 01.04.2021, they were not eligible. 9. It is contended that the notification dated 15.9.2021 (Annex.9) cannot subvert the right of the petitioners for consideration for promotion as on 01.04.2021 by giving retrospective effect to the notification. 10. Submissions were made with reference to provisions of Rule 28A(11) of the Rules that the DPC was required to consider the cases of all the eligible and qualified senior most persons for promotion equal to the number of vacancies determined under the Rules and as the vacancies relating to 2021-22 were determined, and as the same were required to be filled by promotion, DPC was required to consider all such persons, who would have been eligible in the year, to which, the vacancies relate irrespective of the time, at which, the meeting of the Department DPC was held and such promotions should have been governed by criteria and procedure for promotion as was applicable as on 01.04.2021, when the vacancies arose. 11. It is submitted that with the promotions of 20 incumbents from Selection Scale to Supertime Scale w.e.f. 01.04.2021, on the same date, the said vacancies occurred in Selection Scale i.e. as on 01.04.2021, when there was no minimum service criteria for promotion to Selection Scale and, therefore, the denial of promotion to the petitioners w.e.f. 01.04.2021, is not justified and, therefore, the respondents be directed to consider the cases of the petitioners for promotion w.e.f. 01.04.2021 with consequential reliefs. 12. 12. Reliance has been placed on State of Rajasthan v. R. Dayal & Ors.: (1997)10 SCC 419 , Shanker Lal Verma & Ors. v. The Rajasthan State Electricity Board: (1999) 1 WLC 1 and Gajendra Singh v. Ajay Singh & Ors.: (2010) 2 WLC 21 . 13. Learned Additional Advocate General appearing for the respondents opposed the submissions made. While the factual aspect was not disputed, it was inter alia claimed that DPC was convened on 27.10.2021, wherein, promotions to the vacant posts on Selection Scale from Senior Scale were considered, however, as per Sub-Rule (2A) of Rule 32 of the Rules inserted through notification dated 15.9.2021 (Annex.9), as employees having 10 years’ service only were eligible for promotion on Selection Scale, for lack of eligible candidates, all the vacant posts could not be filled and 47 posts remained vacant. 14. Submissions were also made that mere determination of vacancies as on 1st April of the year does not confer any right on the petitioners for promotion, as Circular dated 04.06.2008 (Annex.R/1) issued by the Department of Personnel providing for guidelines for completing promotions, provided under para 6.2 that though the vacancies are to be determined on 1st April, however, the DPC can be held at any time during the year and same can be held for administrative reasons in subsequent years also and as per para 6.3 of the Circular, vacancies are required to be determined once in a year and the variation arrived at from 1st April to the date of meeting can be accounted for at the time of meeting. 15. It was claimed that as per para 8.2 of the Circular, if any post was not included in the Rules, for which, promotion is to be made or if the amendment in the Rules is under process then first process of such amendment or inclusion of the post in the Rules will be done and after the amendment in the Rules is carried out then only, the proposal for DPC should be prepared and as such on the date of DPC, as the Rules stood amended, based on which, the petitioners were not eligible, they were rightly denied the promotion. It was prayed that the writ petition be dismissed. 16. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 17. It was prayed that the writ petition be dismissed. 16. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 17. There is no factual dispute in the matter. The petitioners entered the service by orders dated 10.8.2011 and 11.8.2011 and were conferred Senior Scale in due course. The DPC meeting was held on 27.10.2021 to consider promotions from Selection Scale to Supertime Scale and Senior Scale to Selection Scale for the vacancies of the year 2021-22 and conferred promotions to 20 incumbents in general category from Selection Scale to Supertime Scale w.e.f. 01.04.2021, resulting in, creation of those vacancies in the Selection Scale as on 01.04.2021, however, the availability of vacancy in the Selection Scale is not disputed, inasmuch as, the State in its reply, as noticed hereinbefore, has indicated that as on 01.04.2021, 47 posts remained vacant. The petitioners despite being in seniority were not conferred promotion from Senior Scale to Selection Scale relying on the amendment to the Rules inserted by notification dated 15.9.2021 requiring a minimum of 10 years service as a member of the service. 18. The submission made by the respondents is that based on the amendment dated 15.9.2021, as the meeting of the DPC was held on 27.10.2021, the petitioners were not eligible as on 01.04.2021 as vide Annex.1 and 2, they had entered the services w.e.f. 10.8.2011/11.8.2011 and had not completed 10 years service on 1.4.2021. The plea raised, based on the amendment dated 15.9.2021 (Annex.9) and Circular dated 04.06.2008 (Annex.R/1), apparently has no substance. 19. A bare look at the notification dated 15.9.2021 (Annex.9) would reveal that by the said notification Rajasthan Various Services (Second Amendment) Rules, 2021 were notified, which under Rule 1(2) ‘came into force with immediate effect’ providing for minimum 10 years’ service as a member of the service for appointment on the Selection Scale post. 20. A perusal of the above would reveal that by the very nature and the language employed for commencement under Rule 1(2), the provision inserted is not retrospective. 21. Rule 9 of the Rules, which deals with determination of vacancies provides that appointing authority shall determine on 1st April every year, the actual number of vacancies occurring during the financial year and shall also determine the vacancies of earlier years year-wise, which are required to be filled by promotion. 22. 21. Rule 9 of the Rules, which deals with determination of vacancies provides that appointing authority shall determine on 1st April every year, the actual number of vacancies occurring during the financial year and shall also determine the vacancies of earlier years year-wise, which are required to be filled by promotion. 22. The revised criteria, eligibility and procedure for promotion to Junior, Senior and other posts and cadred in the service has been provided in Rule 28A, relevant provision being sub-Rule (11) for the present purposes, reads as under:- “(11) If in any subsequent year, after promulgation of these Rules, vacancies relating to any earlier year are determined under these rules which were required to be filled by promotion, the Committee shall consider the cases of all such persons who would have been eligible in the year to which the vacancies relate irrespective of the year in which the meeting of the Committee is held and such promotions shall be governed by the criteria and procedure for promotion as was applicable in the particular year to which the vacancies relate, and the service/experience of an incumbent who has been so promoted, for promotion to higher post for any period during which he has not actually performed the duties of the post to which he would have been promoted, shall be counted. The pay of a person who has been so promoted shall be refixed at the pay which he would have derived at the time of his promotion but no arrears of pay shall be allowed to him.” 23. A bare perusal of the above provision would reveal that the DPC is required to consider the cases of all eligible and qualified persons for promotion as per the criteria for promotion laid down in the Rules. Obviously the determination has to take place in relation to the year/date on which the vacancy has occurred. Further, sub-Rule(11) specifically provides that the DPC is required to consider the cases of all persons, who would have been eligible in the year, to which, the vacancies relate irrespective of the year, in which, the meeting of the DPC is held and such promotions shall be governed by the criteria and procedure for promotion as was applicable in the particular year, to which, the vacancy relate. 24. 24. The provisions are in most categorical terms, wherein, the DPC has been mandated to be governed by the criteria, procedure for promotion as is applicable in the particular year, to which, the vacancies relate. 25. Admittedly, the vacancies in the present case occurred as on 01.04.2021 and as such the DPC was bound to take into consideration the criteria and eligibility as it existed on 01.04.2021 and as the amendment in Rule 32 was introduced/notified on 15.9.2021 providing for 10 years’ service, the same would have no application to the cases of the petitioners, whose eligibility was required to be considered as on 01.04.2021 and as such exclusion of petitioners from consideration based on the amendment dated 15.9.2021, cannot be justified/countenanced. 26. The reliance placed by the respondents on the Circular dated 04.06.2008 (Annex.R/1), is wholly misplaced as by bare reading of the Clauses relied on by the respondents, it cannot be deciphered that the criteria/eligibility for promotion would be determined on the date the meeting of DPC is held. Besides the fact that even if such stipulation has been made, the same would be ex facie contrary to provisions of the Rule 28A(11) as well as the law laid down in various judgments, as would be noticed hereinafter. 27. Besides the fact that even if such stipulation has been made, the same would be ex facie contrary to provisions of the Rule 28A(11) as well as the law laid down in various judgments, as would be noticed hereinafter. 27. The clauses from Circular dated 04.06.2008 as relied on by the respondents reads as under:- ^^6-2 fjfDr;ksa dk vo/kkj.k gkykafd ,d vizSy dh fLFkfr esa djuk gS fdUrq bls ,d vizSy vFkok foHkkxh; inksUufr lfefr o"kZ esa fdlh Hkh le; dj ldrs gSA iz'kklfud dkj.kksa ls bls vkxkeh o"kksZa ds fy, Vkyk Hkh tk ldrk gSA 6-3 iwjs foHkkxh; inksUufr lfefr o"kZ dh fjfDr;ksa dk vo/kkj.kk o"kZ esa dsoy ,d ckj gh fd;k tk,A fjfDr;ksa esa gksus okys ,sls vUrj dks tks fjfDr;ksa ds vo/kkj.kk ds i'pkr~ ,oa foHkkxh; inksUufr lfefr dh cSBd ds iwoZ izkIr gksrh gS] mldh x.kuk foHkkxh; inksUufr lfefr }kjk cSBd ds le; dh tk;sxh (variation to be accounted for at the time of meeting) 8-1 fdlh in fo'ks"k ds fy, foHkkxh; inksUufr lfefr dh cSBd dh tkuh gS] dk ;fn lEcfU/kr lsok fu;eksa esa lekos'k ugha gwvk gS vFkok fu;eksa ds fo|eku izko/kku esa fdlh izdkj dk la'kks/ku izfØ;k/khu gS rks loZizFke bl izdkj ds la'kks/ku vFkok fu;eksa esa in ds lekos'k dh izfØ;k dks iwjk fd;k tk, rFkk fu;eksa esa la'kks/ku gksus ds i'pkr~ gh foHkkxh; inksUufr lfefr dh cSBd vk;ksftr djus ds izLRkko rS;kj fd;s tk,A^^ 28. A perusal of the above clauses would reveal that the same under Clause 6.2 simply provides that the determination of vacancies have to take place as on 1st April, however, the meeting of DPC can be held at any point of time and the same can also be held in subsequent year. Clause 6.3 deals with requirement of determination of vacancies once a year only and that variation can be accounted for at the time of meeting of the DPC. Clause 8.1, on which, too much stress was laid by counsel for the respondents, is essentially procedural requiring that if for a specific post the meeting of DPC is to be convened and the same has not been incorporated in the service Rules or the Rules are under amendment, then the procedure of inclusion and amendment should be completed first and, therefore, the proposal for the meeting be prepared. 29. 29. As already noticed hereinbefore, mere providing for holding of the DPC meeting after the pending amendment has been incorporated, by itself cannot change the requirements of the Rule as the action of the DPC would be governed by what is provided in the Rules/amended Rules and as the amended Rule, as noticed hereinbefore, is not retrospective, the same cannot affect the criteria and eligibility as on 01.04.2021. 30. On the above aspect, Hon’ble Supreme Court in the case of R. Dayal (supra) inter alia observed as under:- “This Court has specifically laid that the vacancies which occurred prior to the amendment of the Rules would be governed by the original Rules and not by the amended rules. Accordingly, this Court had held that the posts which fell vacant prior to the amendment of the Rules would be governed by the original Rules and not the amended Rules. As a necessary corollary, the vacancies that arose subsequent to the amendment of the rules are required to be filled in accordance with the law existing as on the date when the vacancies arose. Undoubtedly, the selection came to be made prior to the amendment of the Rules in accordance with law then amendment of the rules in accordance with law then existing since the anticipated vacancies also must have been taken into consideration in the light of Rule 9 of the rules. But after the amended Rules came into force, necessarily the amended Rules would be required to be applied for and given effect to. But, unfortunately, that has not been done in the present case. The two courses are open to the Government or the appointing authority, viz., either to make temporary promotions for the ensuing financial year until the DPC meets or in exercise of the power under rule 24-A(11-B), they can revise the panel already prepared in accordance with the Rules and make appointments in accordance therewith.” (emphasis supplied) 31. Similarly, in the case of Shanker Lal Verma (supra), a Full Bench of this Court came to the conclusion, in a case of recruitment, that the amended qualifications shall not be applicable to vacancies, which had occurred prior to the enforcement of the amended Rules and such vacancies can be filled in accordance with qualifications as on date of occurrence of vacancies. 32. 32. Similarly, in the case of Gajendra Singh (supra), the Division Bench of this Court after referring to judgment in the case of R. Dayal & Shanker Lal Verma (supra), came to the conclusion that minimum requisite qualifications and experience for promotion specified in the relief column should be taken into consideration against the vacancies exists as on 1st April of the year of selection and that vacancies, which occurred prior to the amendment of Rules, would be governed by the original Rules and not by the amended Rules. 33. In view of the above discussion, the action of the respondents in not considering the cases of the petitioners for promotion to the post of Selection Scale as on 01.04.2021, based on the amendment made in the Rules on 15.9.2021, cannot be sustained. 34. Consequently, the writ petition filed by the petitioners is allowed. Non-consideration of petitioners’ cases by DPC for promotion to the post of Selection Scale in its meeting dated 27.10.2021 is quashed and set aside. 35. The respondents are directed to convene a review DPC and consider the case of the petitioners for promotion on the post of Selection Scale w.e.f. 01.04.2021, based on the criteria as it existed prior to amendment dated 15.9.2021, and in case, the petitioners are found eligible for promotion, they be promoted. The petitioners would be entitled to all consequential reliefs as available to those promoted by order dated 3.11.2021 (Annex.11), in accordance with law. 36. Needful may be done by the respondents within a period of six weeks from the date of this order. 37. No order as to costs.