JUDGMENT
Verma, J.
1. Rule 4 of the Rajasthan Excise Service (General Branch) Rules, 1974 (here-in-after referred to as the Rules) provides that the strength of posts in each category of service is to be determined by the Government from time to time; the Government may create any post, permanent or temporary from time to lime, as may be found necessary, and may abolish any such post in the like manner without thereby entitled any person to any compensation; the Government may leave unfilled or hold in abeyance or abolish or allow to lapse any post permanent or temporary from time to time. Sub-clause (c) of Rule 4 says that such number of posts of District Excise Officers as may be determined by the Government, shall be encadred in the service except that not less than 4 posts of District Excise Officers shall be in the service.
2. Rule 13 of the rules provides that subject to the provisions of rule 8, appointment to senior posts encadred in the Service shall be made by the Government on the basis of merit alone in accordance with the procedure laid down in Rule 11-A and appointments to such senior posts not encadred in the Service may be made by the Government from amongst the members of the Indian Administrative Service, Rajasthan Administrative Service or the Rajasthan Excise (Prevention Officers) Service on deputation for a period not exceeding two years, Rule 4 and Rule 13 are reproduced as under:-
4. Compostion and Strength of the Service-(1) The nature of posts included in each category of the Service shall be as specified in column 2 of Schedule 1.
(2) The strength of posts in each category of service is shall be such as may be determined by Government from time to time:-
(a) the Government may create any post, permanent or temporary from time to time, as may be found necessary, and may abolish any such post in the like manner without thereby entitling any person to any compensation;
(b) that the Government any leave unfilled or hold in abeyance or abolish or allow to lapse any post permanent or temporary from time to time without thereby entitling any person to any compensation.
(c) Such number of posts of District Excise Officers as may be determined by the Government, shall be encadred in the service except that not less than 4 posts of District Excise Officers shall be in the service.
13. Appointment to Senior Posts Subject to the provisions of rule 8, appointment to senior posts encadred in the Service shall be made by the Government on the basis of merit alone in accordance with the procedure laid down in Rule 11-A. Appointments to such senior posts not encadred in the Service may be made by the Government from amongst the members of the Indian Administrative Service, Rajasthan Administrative Service or the Rajasthan Excise (Preventive Officer) Service on deputation for a period not exceeding two years.
3. The petitioner No.1 who is an association pf the staff of Excise Department has come up in this writ petition for declaring Rule 13 of the Rules in so far it permits the State Government to make appointment of the members of 1AS and RAS etc. on deputation and sub-clause (c) of Sub-Rule (2) of Rule 4 of the aforesaid rules as unconstitutional and violative of Article 14 and 16 of the Constitution of India.
4. Alternative prayer has also been made that the appointment of RAS officers as District Excise Officer exceeding 3 in number to be against the notification dated 12.1.1988 may be declared to be as usurpers of the posts of District Excise Officers and further that the respondents be directed to fill up the post of District Excise Officers 100% by promotion.
5. The petitioner stales that as per the Rajasthan Administrative Service Rules (here-in-after referred to RAS Rules) and under Rule 6 of the said rules and as per the notification dated 12.1.1988; copy of which is attached as Annexure-1, only three posts of District Excise Officers have been included in the senior scale posts and at the most if the excadred posts can be filled up on deputation, it Is the submission of the petitions that more than three posts in any case could not be filled up on deputation from RAS but the Government had appointed 7 RAS officers against the 17 posts of District Excise Officers against the 17 posts of District Excise Officers as detailed in para 9 of the writ petition and thus the rights of the members of the petitioner association i.e. the officers working in the cadre who might have been promoted as District Excise Officers stood prejudiced, specially when according to the petitioners as many as 13 posts of District Excise Officers were being manned from departmental service personnel who were so appointed on the recommendations of the Department Promotion Committee. It is also one of the argument of the officers that the posts of District Excise Officers requires a technical expertise and experience acquired by the departmental officers of the posts of Senior Excise Officers should be the consideration for manning the said posts through the Departmental officers instead on deputation from Administrative Services. The challenge is being made on the arbitrariness of fixing the minimum post in the cadre.
6. In reply to the writ petition, it is submitted that the rules provide four posts of district Excise Officers to be the minimum posts which are to be encadred in service and all the remaining posts are excadred posts, in regard to the notification dated 12.1.1988 (Annexure-1) it is stated that there were 7 categories mentioned therein i.e. RAS Super time Scale, Selection Scale post, Senior Scale post and Junior Scale post. The post of District Excise Officer falls in the category of Senior Scale Post. Total number of four categories aforesaid comes to 483 and the 5th category 20% posts have been reserved for deputation for holding excadred posts i.e. total 97 posts. It is further slated in the written statement that it shall be misnomour to state that the notification dated 12.1.1988 only restrict the right of the State Government to appoint upto three posts only on deputation. As per the rules, the Government can post any person on excadred post. It is also stated in the written statement by the Government that the State Government has not yet determined the number of posts of District Excise Officers for encadering in service and, therefore, only four posts as per Rule 4(2)(c) are deemed to have been encadred. In para 9 of the reply filed by the State, it is stated that at the time of filing of the written statement there were 20 posts of District Excise Officers in the State of Rajasthan and out of these 13 persons were from the Excise Service and 7 from the Rajasthan Adminislrative Service. Apart from above, three more posts have been created which have also been filled up from Rajasthan Excise Officer to officiate as District Excise Officers and, therefore, sufficient opportunities are being availed for promotion to the post of District Excise Officer to Service personnel. It is stated that apart from three posts of District Excise Officer, Jaipur, Jodhpur and Udaipur, four other excadred posts were filled up from RAS Officers as per the notification dated 12.1.1988, which empowers the department to fill up 20%of the total posts on deputation and reserved for excadred posts on the request made by the Finance Department i.e. in the cities of Ajmer, Kota, Ganganagar and Alwar. It was the Finance Department being Administrative Department of Excise, had asked for such posting of four additional persons on deputation. As per additional reply filed by the department, supported by affidavit in April 1995, it is stated that at present as many as 17 posts of District Excise Officers are being handled by the department personnel, even though the rule limits is to four posts only, out of which 17 posts 16 have been appointed by way of promotion and one Assistant Excise Officer has been appointed on working arrangement basis.
7. From the above-said narration of facts and the point involved and after hearing learned counsel for the parties, it is clear that under Rule 4(1) and (2) of the rules, the Government is required to determine the strength of posts in each category of service and had absolute power to create permanent or temporary post from lime to time and also is competent to leave any post unfilled or hold in abeyance or abolish any post. Sub- rule (c) of Rule 4(2) mandates that the post of District Excise Officers may be determined by the Government from time to time for the purpose of encadering in the service, but in no case the cadre of District Excise Officer shall be less than 4. Rule 11-A of the rules prescribes the procedure of promotion to senior post. The post of District Excise Officers have been defined as senior post in the Schedule I which is to be filled up by way of 100% by promotion i.e. from the post of Assistant Excise Officers. When framing Rule 4 and Rule 13, the Government while formatting the subordinate legislation under Article 309 of the Constitution of India was of the opinion that the minimum number of cadred posts of District Excise Officers shall always remain 4 which may be increased if the circumstances so warrant. The provision had been made for the cadre and excadred post. It is settled law that the excadred post can be filled up by the Government on deputation, but so far the encadred posts are concerned, they are to be filled up in accordance with rules and in the present case, the encadred posts are being filled up by way of promotion which is not denied and thus there is 100% filling up the posts of District Excise Officers cadre so far the encadred posts are concerned. Even out of excadred post as per the written statement, it is stated that the Governmenl has already promoted 16 persons and only 7 posts are
being offered on deputation to RAS officers. It is true that as per notification Annexure-1 attached to the writ petition, while determining the excadred post for RAS only 3 posts were reserved to be filled up by way of deputation from RAS personnel, but vide another notification dated 7.12.1995 which has been placed on record, issued by the Government of Rajasthan, Personnel Administrative & Reforms Department and under Rule 6 of the RAS Rules under Sr. No.11 from category III i.e. senior scale posts, the number has been increased to 7. The power to issue such notificalion under Rule 6 of the RAS Rules has been challenged, nor it could be challenged. Under category 5 of such notificalion the total posts for deputation and reservation for holding excadred posts is 1 : 1 : 3.
8. Nothing has been brought out as to how the power of the Government to determine the vacancies and also to prescribe the minimum encadred posts can be held to be arbitrary under Article 14 and 16 of the Constitution of India viz. a viz. the officers of the Excise Department. It is the prerogative of the Government to create, reduce or abolish and to provide cadre strength and procedure for appointment on encadred posts and excadred posts; whether they are appointed on deputation from RAS, IAS or other source has been left to the Government under the rules. The petitioners have no right to say that the rules should be framed or constituted or modified or substituted to suit them for enhancing the chances of promotion of inservice candidates nor the State Government can be compelled to increase the cadred posts. Filling up the post has been left to the authority of the Government and as such it cannot be said that Rule 4(2)(c) or Rule 13 are un-constitutional being violative of either of Article 14 or 16 of the Constitution of India and there is not merit in the submission of the petitioners. The contention of the petitioner cannot be accepted and the writ petition is to be dismissed.
9. Before parting with the judgment, the court expresses its anxiety for non-action of the respondent State so far the determination of strength of the service is concerned. Sub-rule (2) of Rule 4 states that the strength of the post in each of the cadre is to be determined by the Government from time to time with minimum of 4 posts of District Excise Officers to be encadred under Sub-rule (c). It is admitted in the written statement that the Government has not so far determined the strength which according to me is not justified for the Government to say so, specially when the officers from the department are concerned about their future promotions etc. Even though as per the written statement as many as 16 or 17 Assistant Excise Officers are said to have been promoted to the post of Senior post i.e. District Excise Officer but the duty is cast by the rules on the Government to determine the strength from time to time. It cannot be said to have been accomplished only by making promotions without determining the strength. It is upto the State Government to determine the strength as per requirement; it can be 4 or more but to remove the ambiguity, it shall be appropriate that the State Government determines the strength now within six months of the cadre of the District Excise Officer so that mandate of Rule 4(2) is complied with.
10. For the reason that the writ petition is being dismissed and, therefore, is hardly any necessity to go into the preliminary objection raised by the respondent about the locus standi of the petitioners who filed the writ petition.
11. Writ the above-said observation, the writ petition is dismissed.