IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR JUDGMENT 1. DB Civil Special Appeal (Writ) No. 189/2002 in SB Civil Writ Petition No. 3345/2000 Professor KB Agarwal Vs The State of Rajasthan & ors 2. DB Civil Special Appeal (Writ) No. 192/2002 in SB Civil Writ Petition No. 2396/2000 Professor KB Agarwal Vs The State of Rajasthan DB Civil Special Appeals under section 18 of the Rajasthan High Court Ordinance, 1949 against order dated 8.1.2002 passed by the learned Single Judge of this Court. 25.3.2010 Hon'ble the Chief Justice Mr Jagdish Bhalla Hon'ble Mr Justice MN Bhandari Mr Ashok Gaur for appellant Mr NA Naqvi, Addl Advocate General for respondent-State BY THE COURT:
By these appeals, a challenge has been made to the judgment dated 8.1.2002 whereby SB Civil Writ Petition No.3345/2000 filed by the State of Rajasthan was allowed and the SB Civil Writ Petition No.2396/2000 filed by the petitioner-appellant herein was dismissed. The appellant approached Rajasthan Civil Services Appellate Tribunal for seeking direction for consideration of his case for promotion to the post of Director, College Education against vacancy year 1991-92. As per rule 27 of the Rajasthan Educational Service (Collegiate Branch) Rules, 1986 (for short ‘the Rules’) promotion to the post of Director, College Education is on the basis of merit, in absence of meritorious candidate, by seniority cum merit. The post was filled on seniority cum merit basis since none of the candidates was found to be meritorious for vacancy year 1991-92. Mr PN Gupta, being senior person, was given promotion to the post of Director. Petitioner-appellant has no grievance to the promotion of Mr PN Gupta however Mr PN Gupta stood retired on 31.8.1991. Contention of petitioner-appellant is that aforesaid post having fallen vacant in the same recruitment year 1991-92, he was entitled to get promotion against the vacant post. The Rajasthan Civil Services Appellate Tribunal had given directions to the State Government for consideration of candidature of petitioner-appellant against the vacancy of the recruitment year 1991-92. The learned Single Judge interfered with the order mainly on the ground that it is not necessary or obligatory on the part of the State Government to fill up the vacancy rather they may keep the post vacant.
Learned counsel for petitioner-appellant, referring to the judgment of Hon’ble Supreme Court in the case of AP Aggarwal Vs Government of NCT of Delhi and another reported as (2000) 1 SCC 600, submits that a promotional post cannot be kept vacant if eligible candidates are available. In view of aforesaid, learned counsel for petitioner-appellant prayed that the judgments impugned herein may be set aside and to maintain the judgment of the learned Tribunal with further direction for its implementation.
Learned Additional Advocate General, on the other hand, submits that as per rules, vacancy is determined on the first day of April of the year and in this case recruitment year 1991-92 and 1992-93 are relevant. Pursuant to the directions of the High Court passed in SB Civil Writ Petition No. 5981/1990 KB Aggarwal Vs State of Rajasthan, decided on 13.10.1995, review DPC was held on 7.7.1997. Candidature of petitioner-appellant was considered along with others for the recruitment year 1991-92 however none was not found meritorious thus keeping in mind provisions of rule 27 of the Rules promotion was given on the basis of seniority cum merit. Mr PN Gupta was given promotion accordingly. Once the vacancy is determined followed by promotion, if the post again become vacant in the same recruitment year due to retirement or otherwise, it is treated to be vacancy of next recruitment year. One and the same vacancy cannot be determined twice for the same recruitment year and at the same time DPC cannot take place twice in the same year for one and the same vacancy. Reference of the circular issued by the Government of Rajasthan has been given where the aforesaid issue has been considered. The issue formulated therein was whether vacancies can be determined more than once in a year? It was examined and clarified in the administrative side that one and the same vacancy cannot be determined twice. Outcome of the aforesaid is that on determination of vacancy, promotion is made then even if person promoted retires in the same year, aforesaid vacancy cannot be counted to be vacancy of the same year. In view of aforesaid, learned Additional Advocate General submits that judgment of the learned Single Judge be maintained.
We have considered rival submissions of learned counsel for the parties and have scanned the matter carefully.
As per rule 27 of the Rules, the post of Director is to be filled on the basis of merit from amongst eligible persons. Proviso to above rule provides that if a meritorious person is not available for promotion on the basis of merit, then promotion may be made on seniority cum merit basis. For ready reference rule 27 is quoted hereunder.
27. Eligibility and procedure for selection; to the post of Director : – (1) The post of Director shall always be filled on the basis of merit from amongst the persons specified in column 5 against item No.1 of the Schedule subject to their possessing minimum academic qualifications and experience on the first day of the month of April of the year of selection as specified in column 6 against item No.1 of the Schedule.
Provided that if the committee is satisfied that suitable persons are not available for selection by promotion strictly on the basis of merit in a particular year, selection by promotion on the basis of seniority-cum-merit be made in the same manner as specified in these Rules.
(2) Procedure for selection : – As soon as it is decided that the post of the Director is likely to fell vacant, the Appointing authority shall prepare a correct and complete list of persons who are eligible for selection to the post of Director up to five in number.
(3) (i) The Selection Committee consisting of : –
(a) Chairman of the Commission or when the Chairman is unable to attend, any other Member thereto nominated by him.
(b) Secretary to the Government in the Education Department.
(c ) Special Secretary to Government(1), Department of Personnel and Administrative Reforms shall consider the case of all persons included in the list, interviewing such of them as they may deem necessary and shall select person for the post of Director.
(ii) The Chairman or Member of the Commission shall preside over the meeting of the Committee and Secretary to the Government in the Education Department will act as Member-Secretary of the Committee.
(iii) The Committee shall also prepare a separate list containing names of persons equal to the number of persons selected in the list prepared under sub-rule 3 above to fill temporary or permanent vacancies which may occur subsequently. Such list shall be reviewed and revised by the DPC, that meets in subsequent year and that such list shall remain in force till the end of the last day of the next year or till the DPC meets whichever is earlier.
(iv) Names of the candidates selected as suitable shall be arranged in order of seniority.
Perusal of rule 27 of the Rules shows that post of Director is the highest post under the Rules of 1986 and it is to be filled on the basis of merit. If suitable person is not available then the said post can be filled on the basis of seniority cum merit. In the present matter, candidature of the petitioner appellant was considered along with other for the recruitment year 1991-92 but none was found meritorious and the post was filled on the basis of seniority cum merit. According to learned counsel for appellant, as per sub-rule 3 of rule 27 a reserve list was required to be kept so as to use it under the arrangement given therein. The grievance of the appellant is that reserve list was not prepared which should have been equal to the number of persons selected. If the reserve list would have been prepared the appellant was likely to be promoted on retirement of Mr Gupta on 31.8.1991.
This argument was not raised before the Tribunal or the learned Single Judge. If we go through rule 27 of the Rules, it comes out that the post of Director is to be filled on the basis of merit and if suitable person is not available then on the basis of seniority cum merit. In view of aforesaid, it cannot be said that reserve list has to be prepared even if suitable candidate is not available on merit criteria, in any case, reserve list can be used till 1st day of next year. Hence, appellant cannot get regular promotion.
Now question comes as to whether government is having discretion not to fill vacancy, even if it exists. We largely accept the proposition given by the learned counsel for the appellant, however, aforesaid proposition does not apply to this. In this case, not only vacancy was determined but DPC considered candidature of eligible person and promotion was given thereafter.
Outcome of the exercise undertaken by the DPC resulted in promotion of Mr PN Gupta thus it is not a case where vacancy was kept unfilled, thus judgment referred by learned counsel for appellant has no application to this case. This case has peculiar fact as the person promoted retired in the same vacancy year. As per circular No. F.7(2)DOP/A-II/81/Pt. File dated 18.2.1984(10/84), vacancies shall be determined only once in a year. For ready reference, clarification given on the point Whether vacancies can be determined more than once in a year? is quoted below:-
(3) Whether vacancies can be determined more than once in a year.
Vacancies shall be determined only once in a year. Vacancies occurring after the Departmental Promotion committee meeting has been held shall be treated as the vacancies of the next year. Variation in the vacancies that may crop up between the date of requisitioning the Departmental Promotion Committee meeting and the date of Departmental Promotion Committee meeting held shall be taken into account at the Departmental Promotion committee meeting.
4. It is also clarified that in view of the provisions of clause (c ) of Sub-Rule (1) of rule relating to determination of vacancies incorporated in all the Service Rules, vide DOP Notification No.F.7(2) DOP/A-II/81 dated 21st December, 1981, for determining the vacancies of promotion quota and direct recruitment quota, a continuous cycle order given precedence to promotion quota shall be followed. This cycle order shall be continuous from year to year for determination of vacancies.
Perusal of the aforesaid makes it clear that vacancy can be determined once in a year. This is otherwise goes in consonance to the Rules also as it provides for determination of vacancy on 1st April of the year and while determining the vacancy, one year has to be taken in block. In view of the above, for the recruitment year 1991-92, vacancy of the only post of Director was determined and filled up by Mr PN Gupta and if he retired in the same year, then it would be taken as vacancy of the next year. This has been done by the non-appellants. For the year 1992-93, since meritorious candidate was available, hence promotion was made accordingly. Appellant herein retired in the year 1993. Taking overall circumstances of the case, we are unable to accept the arguments raised by the learned counsel for the appellant.
Accordingly, we do not find any merit in both the appeals and same are hereby dismissed. No order as to costs.
(MN Bhandari) J. (Jagdish Bhalla) CJ bnsharma