JUDGMENT : 1. By way of present writ petition, the petitioners have challenged the order dated 08.07.2017 (Annex.8), whereby constables have been sent for Promotion Cadre Course for the post of Head Constable (Motor Transport). 2. Mr. Jangid, learned counsel for the petitioners while apprising the Court about the requisite facts submitted that all the three petitioners were appointed on the post of Constable (Driver) in Jaisalmer by way of common order dated 31.03.1998. Names of petitioner No.1, 2 and 3 were shown at Serial No.3, 20 and 45 with their merit position shown as 2, 11 and 30 respectively in General Category. 3. The petitioners and the candidates who were appointed with the petitioners and many other became eligible for promotion as per the norms fixed for promotion under the Rajasthan Police Subordinate Service Rules, 1989 (hereinafter referred to as ‘the Rules of 1989). 4. The respondents No.3 issued a list of eligible candidates entitled to appear for qualifying examination for promotion to the post of Head Constable (Motor Transport) for the year 2013-14 for Jodhpur Range. The said list was issued in order of their age candidate with earlier date of birth was shown higher in the list while the younger one was shown in the lower position. 5. However, as the petitioners’ date of appointment order was shown as 01.04.1998, they moved representation before the respondents in pursuance whereof their date of appointment was changed to 31.03.1998 and revised seniority numbers were allotted to them. 6. The result of written examination was declared by the respondents on 06.07.2017, showing the names of candidates who have qualified the written examinations. The petitioners names found mention at Sl.No.22, 43 and 23 respectively. Thereafter, vide communication dated 06.07.2017, all the candidates who have cleared the written examination were sent for out-door test and interview; the petitioners’ names were reflected at Sl.No.6, 7 and 13 in the said list. 7. By way of office order dated 08.07.2017, as many as 29 Constables have been sent for promotion cadre course for the post of Head Constable (Motor Transport), but the petitioners were not sent. Feeling aggrieved of such action, the present petition has been preferred. 8. By way of interim order dated 14.07.2017, three posts were ordered to be kept vacant. By way of office order dated 08.07.2017, as many as 29 Constables have been sent for promotion cadre course for the post of Head Constable (Motor Transport), but the petitioners were not sent. Feeling aggrieved of such action, the present petition has been preferred. 8. By way of interim order dated 14.07.2017, three posts were ordered to be kept vacant. During the pendency of the present petition, leaving three posts vacant in petitioners’ category (General) by way of order dated 14.12.2017, promotions to the post of Head Constable (Motor Transport) have been made. 9. Learned counsel for the petitioners argued that the respondents have illegally granted promotion ignoring the seniority of the petitioners and violating the mandate of Rules 23, 29 and 31 of the Rules of 1989. He highlighted that 21 candidates exactly in order of the Roll Numbers have been picked for promotion out of the list that was prepared before the written examinations were held. He argued that all the General Category candidates have been given promotion on the basis of Roll Numbers only which was prepared on the basis of date of birth and not seniority. He argued that such list, if treated as seniority list, is contrary to circular dated 10.01.2008 passed by the Director General of Police, Jaipur. 10. Learned counsel for the petitioners navigated the Court through the above referred list and the list of the candidates given promotion and highlighted that even Constables from Jaisalmer District (in the same Range) appointed with the petitioners have been given promotion, ignoring petitioners’ rights who were higher in merit list, when the initial appointment order was issued (being at merit no. General-02, General-11 and General-30). He submitted that names of constables from Jaisalmer District who have been promoted were mentioned at Sl.No.14, 16, 17, 20 and 22 respectively whereas in the original order of appointment dated 31.03.1998 they were holding merit position No.18, 42, 5, 6 and 3 respectively. 11. It was argued by learned counsel for the petitioners that the candidates appointed by one common order should be given seniority in order of the merit position they held, whereas the respondents have promoted the intervenors such as Shiv Prakash, Rajendra Singh etc. ignoring such basic principle. 12. Mr. 11. It was argued by learned counsel for the petitioners that the candidates appointed by one common order should be given seniority in order of the merit position they held, whereas the respondents have promoted the intervenors such as Shiv Prakash, Rajendra Singh etc. ignoring such basic principle. 12. Mr. Anil Bissa, learned Additional Government Counsel appearing on behalf of the respondents on the basis of the reply submitted that the seniority lists of technical posts which includes Constable (Motor Transport) are maintained at the Range Level and therefore, promotions have been correctly made. 13. During the course of proceedings finding apparent incongruity in the promotional exercise, this Court passed following order on 04.09.2023:- “1. On perusal of the record, particularly (Annex.6) the result of the written examination held during the course of promotion exercise for the year 2013-14 and the list of candidates given promotion vide impugned order dated 08.07.2017 (Annex.8), this Court finds that the persons mentioned at serial Nos.1 to 21 (General Candidates) in the impugned order dated 08.07.2017 are exactly identical (and in the same order) to the list of candidates who have been declared successful in the written examination. 2. Mr. Jangid, learned counsel for the petitioner invited Court’s attention towards the appointment order dated 31.03.1998 and highlighted that many candidates who were below to the petitioner in merit at the time of recruitment have been given promotion ignoring the petitioner’s seniority. 3. Mr. Bissa, learned counsel appearing for the State prays for and is granted a week’s time to complete his instructions. 4. List this Case on 11.09.2023.” 14. In response to the Court query, Mr. Bissa, learned counsel for the respondents submitted that as per the Circular dated 14.03.2000 issued by the Inspector General of Police, seniority of personnel working on technical posts is reckoned range wise and on the basis of recruitment year/date and not on the basis of date of appointment (sic joining) and therefore, the seniority of all the candidates was reckoned from the date of appointment order and seniority of petitioners was reckoned from 31.03.1998. He added that all the constables appointed on 31.03.1998 were accorded seniority on the basis of their date of birth -‘the person who was older in age was treated senior’. 15. He added that all the constables appointed on 31.03.1998 were accorded seniority on the basis of their date of birth -‘the person who was older in age was treated senior’. 15. He also submitted that such exercise has been done by the respondents in light of proviso (1) to Rule 36 of the Rules of 1989. 16. Heard learned counsel for the parties and perused the record. 17. Before adverting to the rival contentions, this Court deems it appropriate to surf through the relevant provisions, viz. Rules 23, 29, 30 and 36 of the Rules of 1989. For the sake of convenience, the same are being reproduced herein:- “Rule 23. Recommendations of the Board/Commission:-The Board/Commission shall prepare a list of the candidates, whom they consider suitable for appointment to the post concerned, arranged in order of merit, and forward the same to the Director General-cum-Inspector General of Police, who shall in his turn intimate to the Appointing Authority concerned, the name of the candidates in order of merit as mentioned in the list, up to the number of vacancies available. The Board/Commission shall not recommend candidates, who have secured less than 36% marks in 45% marks in the aggregate: Provided that the Recruitment Board/Commission may recommend “Women candidates”, candidates belonging to, “Backward Classes, More Backward Classes, Economically Backward Classes and Economically Weaker Sections” the Scheduled Casts and Scheduled Tribes, who though failing to obtain to minimum marks, are declared by the Board to be suitable for the appointment to the service with due regard to the maintain of efficiency of administration if the candidates secure 30% marks in interview and 40% marks in the aggregate. Rule 29. Qualifying Examination for “Promotion”:- (1) Qualifying examination for promotion means and includes:- Part-I : Written, Practical, Parade and other out-door tests. Part-II: Interview and Examination of service record, including Annual Confidential Reports. (2) The syllabus for Part-I examination and general instructions in respect of Part-II shall be determined and issued by the Director General-cum-Inspector General of Police from time to time. (3) The various Boards referred to in Sub -rule (3) of Rule 27 shall fix the dates and places of examinations. (2) The syllabus for Part-I examination and general instructions in respect of Part-II shall be determined and issued by the Director General-cum-Inspector General of Police from time to time. (3) The various Boards referred to in Sub -rule (3) of Rule 27 shall fix the dates and places of examinations. The names of candidates who have been found fit to undergo promotion cadre course, shall be announced by the Chairman of the Board after finalization of the results and a list containing the name of such candidates shall be forwarded to the Appointing Authority as well. Rule 30. Promotion Cadre Course:-(1) The Promotion Cadre Course for various ranks shall be conducted at the training institutions as may be decided by the Director General-cum-Inspector General of Police from time to time. (2) The promotion Cadre Course shall be of such duration and shall have such syllabus as may be approved by the Director General-cum-Inspector General of Police from time to time. In the Promotion Cadre Course due emphasis shall be laid down for indoor and outdoor work. (3) The Promotion Cadre Course examination shall be conducted by such Board as may be constituted by the Director General-cum-Inspector General of Police for the purpose. Rule 36. Seniority:-“Seniority of persons appointed to the post encadred in the service shall be determined from the date of appointment on the post after regular selection in accordance with the provision of these rules. Appointment on ad-hoc or urgent temporary basis shall not be deemed to be appointment after regular selection.” Provided that:- (1) The seniority inter-se of the persons appointed to the service before the commencement of these rules and/or in the process of integration of the service of the Pre-reorganization of the State of Rajasthan or the services of the new State of Rajasthan established by the State Re Organisation Act,1956, shall be determined, modified or altered by the Appointing Authority on an ad-hoc basis but where date of appointment of two or more persons in a particular section is same, the persons senior in age shall be placed higher where two or more persons in a particular section have same date of appointment and birth, the person having higher educational qualifications will be placed higher. (2) If two or more persons are appointed to a post in a particular section in the same year, a person appointed by promotion shall be senior to a person appointed by direct recruitment. (3) The seniority inter se of persons appointed to a post in a particular section by direct recruitment on the basis of one and the same selection, except those who do not join service, when a post is offered to them, shall follow the order in which their names have been placed in the list prepared under rule 23. (4) that the persons appointed to the posts of Sub-Inspector/Platoon Commander included in 91"Sections-I, II, IV, V and VI" of Schedule-I in accordance with the provisions contained in proviso (a) to sub rule (2) of Rule 17 shall rank junior to the persons appointed by direct recruitment in the same year under rule 25. (5) the seniority inter se of persons appointed to a post in particular section by promotion shall follow the order in which their names have been placed in the list prepared under sub-rule (6) of Rule 27 subject to the provisions of rule and the seniority inter se of persons appointed by promotion in particular class of posts will be same as in the next below grade. (6) No person shall be entitled for higher seniority on basis of officiation on a higher post. (7) In case a person is allowed to move from one section to another under rule-4, on his request he shall rank junior most in the particular rank in the section to which he is transferred. (8) Deleted. (9) Withdrawn. (9) the inter-se seniority of the persons screened under proviso added by these amendment rules in rule relating to method of recruitment, shall be determined according to the length of continuous service after their irregular appointment. These persons shall rank junior to the persons appointed regularly before the commencement of these amendment rules. (10) Provided that reservation for Scheduled Castes and Scheduled Tribes employees, with consequential seniority, shall continue till the roster points are exhausted; and adequacy of promotion is achieved. Once the roster points are complete the theory of replacement shall thereafter be exercised in promotion whenever vacancies earmarked for Scheduled Castes/ Scheduled Tribes employees occur. (10) Provided that reservation for Scheduled Castes and Scheduled Tribes employees, with consequential seniority, shall continue till the roster points are exhausted; and adequacy of promotion is achieved. Once the roster points are complete the theory of replacement shall thereafter be exercised in promotion whenever vacancies earmarked for Scheduled Castes/ Scheduled Tribes employees occur. If on the application of these provisions the Scheduled Castes/Scheduled Tribes employees who had been promoted earlier and are found in excess of the adequacy level, shall not be reverted and shall continue on ad-hoc basis, and also any employee who had been promoted in pursuance to Notification No. F.7(1)DOP/A-II/96 dated 01-04-1997 shall not be reverted. Notification No. F. 7(1)DOP/A-II/96 dated 01-04-1997 shall be deemed to have been repealed w.e.f. 01-04-1997. Explanation:-Adequate representation means 16%representation of the Scheduled Castes and 12% representation of the Scheduled Tribes in accordance with the roster point. (11) After the merger of the post of various wings of Police Tele-Communications, the inter-se-seniority of the persons shall be determined from the date of their regular selection on the post in respective wing, if the date of regular selection of such persons is same then the inter-se-seniority shall be determined on the basis of length of service after regular selection in their respective wing. In case where the date of selection of two or more persons is same in direct recruitment, the person elder in age shall be senior.” 18. A perusal of Rule 23 reveals that the Board or the Commission while recommending the names of the persons suitable for appointment shall recommend the names in order of merit as mentioned in the list. 19. Rule 36(3) of the Rules of 1989 in unequivocal terms provides that the seniority of the candidates inter-se appointed on the post by direct recruitment from the same selection shall be on the basis of the order in which their names have been placed in the list prepared under Rule 23. 20. A close and conjoint reading of Rules 23 and 36 of the Rules of 1989 leaves no room for ambiguity that seniority on a post shall be determined or seniority list is required to be prepared on the basis of date of appointment and in case the date of appointment is same or common, then, as per the respective merit position. Whereas, the respondents have promoted the candidates in order of the seniority in age. Whereas, the respondents have promoted the candidates in order of the seniority in age. The entire exercise has been done as per the list of candidates eligible for appearing in the qualifying examination for promotional post of Head Constable (Motor Transport), which was issued in order of date of birth. 21. There is no dispute on the issue that all the three petitioners so also the intervenors have cleared the qualifying examination including the written examination, out-door test and interview. 22. A perusal of Rule 29, more particularly sub-rule (3) shows that the names of candidates who have been found fit to undergo promotion cadre course shall be announced by the Chairman of the Board and the list containing the names of such candidates shall be forwarded to the appointing authority. 23. It is therefore, clear that the qualifying examination is only for the purpose of ascertaining the competence and suitability of the candidates and merit position in such examination is of hardly any relevance. And all the candidates who have cleared the qualifying examinations, regardless of their merit in the qualifying examinations are required to be sent to the promotion cadre course subject of course to the availability of the posts and their seniority. 24. The dispute in the present case is not in relation to merit position in the qualifying examination but in relation to the seniority. Not only as a normal or routine procedure, even as per Rule 36(3) of the Rules of 1989, the respondents ought to have prepared a list of candidates to be sent for promotion cadre course who have cleared the qualifying examination in order of their seniority. The seniority they thought of is, the seniority list they prepared while issuing roll numbers. Said seniority list is based on complete misreading of the circulars dated 10.01.2008 and 14.03.2000 so also provisions contained in Rule 36 of the Rules of 1989. 25. During the course of hearing, photocopy of a communication dated 25.05.2017 was placed for perusal of the Court, the same is taken on record. A perusal thereof reveals that the seniority list was prepared on the basis of date of appointment and in the event of the date of appointment of two or more persons being the same, the person older in age has been shown to be senior or has been given higher seniority. A perusal thereof reveals that the seniority list was prepared on the basis of date of appointment and in the event of the date of appointment of two or more persons being the same, the person older in age has been shown to be senior or has been given higher seniority. 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What has been done by the respondents, as is evident from the record and what has transpired from Mr. Bissa’s submission is, that they have resorted to proviso (1) to Rule 36 and have taken the date of birth into consideration while completely ignoring the seniority or the merit position on the date of appointment. 27. The State’s stand that as per proviso (1) to Rule 36, seniority list is required to be prepared on the basis of date of appointment and person senior in age is required to be placed higher, is absolutely untenable. 28. Firstly, proviso (1) to Rule 36, which has been resorted to by the respondents is an exception to the main provision contained in Rule 36, which in unequivocal terms postulates that seniority on the post en-cadred in the service shall be determined from the date of appointment on the post coupled with the provisions of these Rules. 29. That apart, a careful reading of proviso (1) to Rule 36 of the Rules of 1989 suggests that the same was meant to undertake one time exercise, before the commencement of these rules and/or in the process of integration of the service of the Pre-re-organization of the State of Rajasthan and the same is not meant for the present purpose, when the petitioners and the private respondents were appointed in the year 1998. 30. The respondents have thus wrongly resorted to proviso (1) to Rule 36 while giving a complete go-bye to the mandate of the Rules of 1989 and general principles governing the seniority and promotion. 31. As per proviso (3) to Rule 36, if the seniority is to be maintained, the respondents were required to take into account Rule 23, which expressly provides that the recommendation of the names shall be in order of merit. 32. The exercise undertaken by the respondents apart from being contrary to the rules, if allowed to continue, would be violative of Article 14 of the Constitution of India being irrational and discriminatory. Two persons appointed on the same date cannot be discriminated on the fortuitous event namely, their date of birth, in complete derogation of their merit position. Date of birth becomes relevant and can be resorted to, only if two persons secure same merit position. 33. Two persons appointed on the same date cannot be discriminated on the fortuitous event namely, their date of birth, in complete derogation of their merit position. Date of birth becomes relevant and can be resorted to, only if two persons secure same merit position. 33. It may be noted that two constables namely Hajari Ram and Moolchand had filed impleadment applications dated 05.01.2018 averting that their names were mentioned in the list dated 25.05.2017 at serial numbers 23 & 24 and they were sent for Promotion Cadre Course and are thus, entitled for promotion. A Coordinate Bench of this Court by way of order dated 08.01.2018 disposed of their application while permitting them to intervene. Similarly another application came to be filed by 20 persons on 05.04.2018, who have been promoted by order dated 14.12.2017, apprehending that any order passed herein may prejudice their rights. Said application too was disposed of by this Court during the proceedings of 20.04.2018 and they too were allowed to intervene and make submissions during the course of arguments. 34. Admittedly, all the three petitioners were higher in merit on the date of appointment than the intervenors (Hazari Ram & Moolchand) and some of the other intervenors who have been promoted by the respondents. All of them have been heard through their counsel. Hence, there is no procedural impediment in quashing the order of promotion dated 14.12.2017, which is apparently illegal and contrary to law. 35. The petitioners had approached this Court immediately on issuance of order dated 08.07.2017 whereby, the candidates were sent for Promotion Cadre Course. By way of order dated 14.07.2017, three posts were ordered to be kept reserved, during the pendency of the writ petition leaving three posts, the respondents have issued order of promotion on 14.12.2017. 36. The writ petition is, therefore allowed; order of promotion dated 14.12.2017, (which is based upon the list of candidates sent for promotion cadre course dated 08.07.2017) is hereby quashed. 37. The respondents are directed to prepare a fresh seniority list in accordance with law on the basis of initial date of appointment vis-a-vis their merit position. If the candidates, who have cleared the qualifying examination, were appointed on the same date, their merit position in the order of appointment shall be taken into account and the person having secured higher merit position shall be given precedence over the persons lower in merit. If the candidates, who have cleared the qualifying examination, were appointed on the same date, their merit position in the order of appointment shall be taken into account and the person having secured higher merit position shall be given precedence over the persons lower in merit. While doing this exercise, the respondents shall take into account the mandate of Rules 23 and 36(3) of the Rules of 1989 and also whatever has been held hereinabove. 38. Requisite exercise be completed within a period of two months from today. 39. After preparation of fresh seniority list pursuant to the adjudication made hereinabove, in case any candidate(s) is/are reverted, no recovery shall be effected from him/them. 40. Stay application stands disposed of.