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2025 DIGILAW 1023 (RAJ)

Sudharshan Mundra S/o Suresh Kumar Mundra v. Goverdhan Kumar S/o Masaru Ram

2025-04-04

PUSHPENDRA SINGH BHATI, SUNIL BENIWAL

body2025
JUDGMENT : 1. The instant appeal has been preferred under Rule 134 of the Rajasthan High Court Rules, read with Article 225 of the Constitution of India, seeking the following reliefs: “It is, therefore, humbly prayed that this Special Appeal may kindly be allowed and by an appropriate order or direction: [1] the impugned Judgment dated 23.09.2024 passed by the learned Single Judge may kindly be quashed and set aside. [2] The Respondent authority may kindly be directed to prepare the seniority list for promotion from LDC to UDC based on the date of confirmation in accordance with the provisions of the Rajasthan Panchayati Raj Rules, 1996 and grant the promotion to the appellants accordingly; [3] Any other order or direction which the Hon’ble Court may deem just and proper in the facts and circumstances of the case, may also kindly be issued in favour of the appellant.” 2. The appellants, in the instant appeal, have assailed the legality and correctness of the order dated 23.09.2024 passed by the learned Single Judge of this Hon’ble Court, whereby Writ Petition No. 13204/2024 filed by the Respondents No.1 to 5 (writ petitioners) against the Respondents No.6 to 9 (respondent authorities) herein was allowed, and the respondent authorities were directed to re-frame the seniority list for promotion to the post of Upper Division Clerk (Senior Assistant) by taking into account their position in the merit list, prepared by the District Establishment Committee (in short, “DEC”) at the time of their appointment, and not their date of joining/appointment. 3. Brief facts of the case, as noticed by this Court, are that a direct recruitment process i.e. Lower Division Clerk Direct Recruitment, 2013 was conducted by the Zila Parishad, Udaipur through DEC, in which eligible candidates applied. Subsequently, a merit list dated 25.06.2013 was prepared by the DEC, and the candidates selected for the post of Lower Division Clerk (Junior Assistant) (in short, “LDC”) pursuant to said recruitment were allotted different Panchayat Samities vide order dated 28.06.2013. Upon the allotment, the selected candidates were appointed to various Zila Parishads and Panchayat Samities vide order dated 01.07.2013. After the said Appointment/Joining the candidates were to serve a probation period of two years. After successful completion of the probation period, they were to be confirmed in service, and work at their respective postings. 3.1. Upon the allotment, the selected candidates were appointed to various Zila Parishads and Panchayat Samities vide order dated 01.07.2013. After the said Appointment/Joining the candidates were to serve a probation period of two years. After successful completion of the probation period, they were to be confirmed in service, and work at their respective postings. 3.1. Subsequently, while the seniority among these direct recruits was under consideration, the Rural Development and Panchayati Raj Department issued a letter dated 15.11.2022 containing directions for determination of the seniority of LDCs. It was clarified therein that in cases where two or more persons were appointed in the same grade or category under the same order, or were appointed pursuant to orders of the same date, then the seniority of such candidates shall be determined as per date of joining and if date of joining is same then it shall be determined in the same order in which their names appear in the merit list prepared by the DEC. Further clarifications and guidelines on the same subject were issued by the respondent authority vide letters dated 25.11.2022 and 17.02.2023. 3.2. A provisional seniority list was published by the Zila Parishad, Udaipur on 11.01.2023, as per information received from Panchayat Samities and record available as on 01.04.2022, and the Objections were duly invited by the said authority. Thereafter, the final seniority list was issued on 27.02.2023 for LDCs posted in various Panchayat Samities and Zila Parishads. 3.3. Due to variations in the method adopted by different Zila Parishads in determining the seniority, a clarification was again issued by the Rural Development and Panchayati Raj Department on 07.07.2023, stating therein that determination of seniority vide an earlier letter dated 17.02.2023, was directed to be ascertained as per Rule 285 of the Rajasthan Panchayati Raj Rules, 1996 (hereinafter referred to as ‘Rules of 1996’). The department in the said letter further stated that, a few Zila Parishads while providing an erroneous interpretation of Rule 285 have determined the seniority of persons, selected through LDC recruitment 2013, however, appointed on different dates as per the list prepared by DEC. It was also highlighted that a few Zila Parishads, despite the appointment of persons by same order or order passed on same date, have determined the seniority on the basis of date of their joining. It was also highlighted that a few Zila Parishads, despite the appointment of persons by same order or order passed on same date, have determined the seniority on the basis of date of their joining. Thus, the letter dated 07.07.2023 clarified that the seniority of the LDCs was to be determined firstly on the basis of date of confirmation as per Rule 285, and if the date of confirmation was same, in that scenario, the seniority was to be determined as per proviso (i) to Rule 285 of the Rules of 1996. 3.4. Consequently, consent for review was granted by the Departmental Promotion Committee (DPC) vide order dated 10.06.2024, as the promotions earlier made by the Zila Parishad were not in accordance with Rule 285 of the Rules of 1996. In pursuance of the order dated 07.07.2023, a final seniority list was issued by the Zila Parishad on 22.07.2024. 3.5. The dispute arose over the preparation of the seniority list for promotion from LDC (Junior Assistant) to UDC (Senior Assistant) in the Panchayat Samities. The writ petitioners challenged the said seniority list in the writ petition mentioned above, contending that the respondent authority wrongly considered the date of appointment/joining rather than the merit position in the DEC- prepared list. The learned Single Judge accepted this contention and passed the impugned order. 3.6. In pursuance of the impugned order, the respondent authority issued a provisional seniority list for promotion from the post of LDC to that of UDC and subsequently finalized the same, taking into account the merit positions of the candidates instead of their dates of appointment/joining. 3.7. The appellants herein though were not party in the writ petition wherein impugned order has been passed by the learned Single Judge, but as per the appellants, the provisional seniority list so prepared, is contrary to the clarifications issued by the respondents themselves on 07.07.2023 and that they have also raised objections to the said list. Hence, feeling aggrieved, the instant appeal has been preferred claiming the afore-quoted reliefs. 4. Mr Muktesh Maheshwari with Mr. Hence, feeling aggrieved, the instant appeal has been preferred claiming the afore-quoted reliefs. 4. Mr Muktesh Maheshwari with Mr. Gaurav Ranka, Learned counsel appearing on behalf of the appellants submits that the seniority list prepared in pursuance of impugned order does not align with the guidelines and instructions provided in the clarification issued by the respondent authority on 07.07.2023, and as a consequence, despite the fact that appellants joined earlier to the persons whose names were included in the seniority list, their name was missing from the said list. 4.1. Learned counsel further submits that the learned Single Judge while passing the impugned order has misinterpreted Rule 285 of the Rules of 1996, which stipulated that the seniority in the lowest grade or category is to be determined on the basis of the date of confirmation. He also submits that the direction as contained in the impugned order speaking of determination of seniority on the basis of merit rather than confirmation date overlooks the statutory provision, which is the guiding principle for determining seniority within the Panchayati Raj System. 4.2. Learned counsel further submits that the impugned order was passed without taking into due consideration the fact that the respondent-authority in determining seniority based on date of appointment or confirmation was acting within the scope of legislative framework established by the Rajasthan Panchayati Raj Act, 1994 (hereinafter referred to as ‘Act of 1994’) and its corresponding Rules, including Rule 285 of the Rules of 1996, and that the interpretation of relevant provisions as made under the impugned order contravenes the legislative intent behind such enactment. 4.3. Learned counsel also submits that the date of confirmation is an essential element in establishing a fair and consistent seniority process. By adhering to the date of confirmation, the respondent authority ensured that seniority was determined based on the actual service rendered by the candidates. This principle ensures fairness in the promotion process, as it reflects the continuous and an unbroken service of a candidate in a particular role. The impugned order places undue emphasis on merit alone, without considering the candidates actual tenure in service, thereby compromising the fairness and consistency of the seniority system. 4.4. Learned counsel further submits that as per the clarification dated 07.07.2023, the seniority was required to be determined by considering the date of confirmation, as opposed to the merit. The impugned order places undue emphasis on merit alone, without considering the candidates actual tenure in service, thereby compromising the fairness and consistency of the seniority system. 4.4. Learned counsel further submits that as per the clarification dated 07.07.2023, the seniority was required to be determined by considering the date of confirmation, as opposed to the merit. It was contended that the provisional seniority list does not adhere to the clarification issued by the respondents themselves. It was argued that the seniority list, if is solely based upon the merit list prepared by DEC, without factoring the tenure and confirmation of service, leaves room for subjectivity, which could result in discrepancies and unfair treatment to the candidates concerned. 5. Heard learned counsel for the appellants as well as perused the record of the case. 6. For the order, to be passed, it is not considered necessary to issue formal notice to the respondents. 7. This Court observes that the core question involved in the writ petition pertained to the criteria of preparing the seniority list of the LDCs (Junior Assistants) appointed in the Panchayat Samities under the provisions of the Act of 1994 and the Rules of 1996. The determination so made by the learned Single Judge in the impugned order, was that while preparing the seniority list of LDCs for promotion to the post of UDC (Senior Assistant), provision of Rule 285 of the Rules of 1996 is required to be adhered to, and further, merit position of a candidate is also required to be taken into consideration, while undertaking such an exercise. In the first instance, it is considered appropriate to have a look at the provisions of law applicable in the present case and the legislative intent behind such enactment. 7.1. Section 90 of the Act of 1994 pertains to constitution of the DEC and also provides for functions thereof. The functions of the DEC include making selection on the posts in different grades and categories (apart from the exceptions stated therein) existing in the service in the Panchayat Samities and the Zila Parishad in the district as per the rules made by the state government; it is also required, amongst others, to prepare lists of persons for promotion in the prescribed manner. 7.2. 7.2. Rule 259 of the Rules of 1996 provides for method of recruitment, and Rules 270, 274, 276 & 280 of the Rules of 1996 pertains to the Procedure for Direct Recruitment. The procedure provided under these provisions is such that in the first place applications are invited for direct recruitment, after which process of recruitment is conducted, on the basis of which a merit list of the candidates considered suitable for appointment is prepared by the DEC. It is according to this merit list, on receipt of requisition from the Panchayat Samities or Zila Parishads candidates are allotted by DEC, in the same order in which their names occur in the list. Rule 276 puts a mandate upon the Panchayat Samiti or Zila Parishad to appoint the candidates allotted by the committee in the same order in which their names are forwarded by the committee. As per Rule 280, after receipt of allotment from the DEC, the Panchayat Samities or Zila Parishads, as the case may be, shall appoint the persons so allotted to the respective posts. 7.3. It is pertinent to be note herein that in the whole process of the direct recruitment i.e. from selection to appointment, merit list prepared by the DEC plays a pivotal role, and this clearly reflects the intent of legislature to give primacy to the candidates who are higher in the merit. However, the procedural variations and administrative delays in appointment may affect the actual date of appointment/joining of candidates, which may as a consequence affect their seniority. 7.4. This Court observes that Rule 285 of the Rules of 1996, the provision around which present controversy revolves, prescribes the criteria for determining seniority. The relevant portion of the said Rule is reproduced as hereunder: “ Rule 285. Seniority – Seniority in lowest grade or category of the service s hall be determined by the date of confirmation and in other higher posts filled by promotion shall be determined from the date of regular selection: Provided :- (i) that if two or more persons are appointed to posts in the same grade or category under the same order in the same grade or category under the same order or orders of the same date, their seniority shall be in the same order in which their names appear in the list prepared by the committee” 7.5. Thus, as per the main provision of Rule 285 of the Rules of 1996, the seniority in lowest grade or category is to be made on the basis of the date of confirmation. The date of confirmation, as per Rule 288 of the Rules of 1996, is the date on which a probationer is confirmed in his appointment at the end of the period of his probation, if the Panchayat Samiti or Zila Parishad is satisfied that his integrity is unquestionable, his work is satisfactory and that he is otherwise fit for confirmation. Thus, the date of confirmation is different from the date of initial appointment which is done in pursuance of the allotment of candidates by the Committee under Rule 280. The appointment/joining is made in the order in which their names are forwarded by the committee, as mentioned under Rule 276, on the other hand, confirmation to appointment is to be done in accordance with Rule 288. 8. The lack of comprehension in regard to the distinction between the date of confirmation and date of joining/appointment on the part of a few Zila Parisad and Panchayat Samities created a state of confusion, and with an object to put an end to this confusion, the Rural Development and Panchayati Raj Department, on multiple occasions, i.e., vide letters dated 15.11.2022, 25.11.2022, 17.02.2023 and 07.07.2023 issued clarifications and directives to the concerned authorities to follow the mandate of Rule 285 of the Rules of 1996. 9. This Court observes that The clarification dated 07.07.2023 issued by the respondent department, clearly points out that there were anomalies in interpretation of Rule 285 as made by the Zila Parishads and Panchayat Samities. The anomalies pointed out were of two-fold. Firstly, the determination of seniority of persons, appointed by the orders of different dates, was being done as per the merit list issued by the DEC. Thus, the instances requiring the application of the main provision of Rule 285, whereby determination of seniority was to be done on the basis of the date of confirmation to service was not being done. Secondly, the determination of seniority of persons, appointed by same order or orders of the same date was being done by their date of joining. Thus, the Proviso (i) to Rule 285 of the Rule of 1996 was not adhered to, in the instances falling under the criteria given in the said proviso. Secondly, the determination of seniority of persons, appointed by same order or orders of the same date was being done by their date of joining. Thus, the Proviso (i) to Rule 285 of the Rule of 1996 was not adhered to, in the instances falling under the criteria given in the said proviso. 10. At this juncture, it is pertinent to highlight as to when the main provision of Rule 285 and the proviso (i) thereto would be applicable. The main provision is the general law applicable in all instances, except the instances covered by the provisos to Rule 285, and the main provision provides for the criteria of date of confirmation for the purpose of determination of seniority. The general criteria applies to all instances where seniority is to be determined between the persons confirmed to a service, which is after serving the probation period as per Rule 288. The legislative intent behind the said provision is to ensure that seniority is determined based upon the actual service rendered by the candidates. The seniority in such cases is reflective of the continuous and unbroken service of the candidate in a particular role. 10.1. However, Proviso (i) to the Rule 285 carves out an exception to the general rule of determining seniority on the basis of confirmation to the service, and as per the said proviso, the seniority is required to be determined not on the basis of the date of confirmation to service, but on the basis of their position in the merit list prepared by the DEC. The intent behind carving out this exception is to address the particular instances where two or more persons are appointed to posts in same grade or category under the same order or orders of the same date, however difference arises in their seniority for the reasons beyond his/her control such as administrative delays or procedural variation for making appointment between Panchayat Samitis. In such situations, as pointed out by learned Single Judge, a person who stood higher in merit may be placed below in the seniority list to a person lower in merit for no fault of his own, rather on count of early joining of such less meritorious person. Thus, the legislature in its wisdom inserted proviso (i) to the Rule 285 in order to maintain transparency and smooth functioning of Panchayati Raj Department. 11. Thus, the legislature in its wisdom inserted proviso (i) to the Rule 285 in order to maintain transparency and smooth functioning of Panchayati Raj Department. 11. This Court further observes that Rule 285 of the Rules of 1996, must be interpreted in light of the overall scheme of recruitment and promotion under the Act of 1994. The merit list prepared by the DEC is reflective of the comparative merit of the candidates at the time of selection, and forms a valid and justifiable basis for determining seniority in the instances covered under proviso (i) to the Rule 285, particularly where appointments have been made simultaneously through the same selection process and by the same order or orders of the same date. 12. This Court observes that where multiple candidates have been appointed by the same order pursuant to the same recruitment, seniority must be determined based on their position in the merit list prepared by , and the criteria to determine seniority from the date of joining/appointment is contrary to administrative norms and lacks justification, especially when the merit list was duly prepared and acted upon. 13. In the backdrop of the legal provisions and the judicial pronouncement rendered in the case of Bimla v. State of Rajasthan & Ors. (S.B. Civil Writ Petition No. 472/2023 decided by this Hon’ble Court on 21.08.2024), this Court is of the considered opinion that while preparing the seniority list of LDCs (Junior Assistants), the respondents are required to strictly adhere to Rule 285 of the Rules of 1996. The Rule mandates that in the lowest grade or category, seniority is to be determined from the date of confirmation. However, a combined reading of Rules 274, 276, 280 and 285 indicates that the merit list prepared by the DEC forms the foundation for initial appointment and consequently has a bearing on seniority where appointments are made simultaneously and confirmation occurs thereafter. Hence, in instances where the appointment is simultaneous and thus, covered by proviso (i) of Rule 285 of the Rules of 1996, then seniority list should be prepared as per merit list prepared by DEC. Any deviation from this settled principle would frustrate the transparent recruitment mechanism envisioned under the Act of 1994 and the Rules of 1996. Furthermore, for instances falling under proviso (i) of Rule. 14. Any deviation from this settled principle would frustrate the transparent recruitment mechanism envisioned under the Act of 1994 and the Rules of 1996. Furthermore, for instances falling under proviso (i) of Rule. 14. The argument advanced on behalf of the appellants, that the date of joining/appointment should be the sole basis for determining seniority, overlooks the fact that joining/ appointment itself is often contingent upon factors beyond a candidate’s control, such as administrative delay or procedural variation between Panchayat Samitis. Using date of appointment/joining as the sole criteria would result in arbitrariness and inconsistency, and would unfairly penalize candidates who were higher in merit but were appointed/joined later for reasons beyond their control. 15. At this juncture, it is considered appropriate to reproduce the relevant portion of the judgment rendered by the Hon’ble Supreme Court in the case of Sudhir Kumar Atrey vs. Union of India and Ors., (2022) 1 SCC 352 , as hereunder: “18. We are also of the view that in the matter of adjudging seniority of the candidates selected in one and the same selection, placement in the order of merit can be adopted as a principle for determination of seniority but where the selections are held separately by different recruiting authorities, the principle of initial date of appointment/continuous officiation may be the valid principle to be considered for adjudging inter-se seniority of the officers in the absence of any rule or guidelines in determining seniority to the contrary.” 15.1 Thus, when appointments are made through a common recruitment process and a common order, inter-se seniority should ordinarily be determined in accordance with the merit list, and the same is envisaged under proviso (i) to Rule 285 of the Rules of 1996, as it ensures fairness and avoids anomalous situations where less meritorious candidates are placed above more meritorious ones, due to no fault on their part. This Court observes that the instant controversy calls for application of proviso (i) of the Rules of 1996 as the appointments were made simultaneously. 16. In view of the above, this Court finds no legal infirmity in the impugned order dated 23.09.2024 passed by the learned Single Judge, so as to warrant any interference therein by this Court. 17. Consequently, the present appeal is dismissed . All pending applications stand disposed of.