IN THE HIGH COURT OF JUDICATURE FOR RAJALSTHAN AT JAIPUR BENCH, JAIPUR
J U D G M E N T
(1) D.B.CIVIL SPECIAL APPEAL(WRIT) NO.206/2009
(Gajendra Singh vs. Ajay Singh & Ors.)
(2) D.B.CIVIL SPECIAL APPEAL(WRIT) NO.307/2009
(State of Raj. & Anr. vs. Ajay Singh & Ors.)
(3) D.B.CIVIL SPECIAL APPEAL(WRIT) NO.1063/2009
(State of Raj. & Anr. vs. Ajay Singh & Ors.)
(4) D.B.CIVIL SPECIAL APPEAL(WRIT) NO.375/2009
(Smt.Prabha Tak vs. Ajay Singh & Ors.)
(5) D.B.CIVIL SPECIAL APPEAL(WRIT) NO.1020/2009
(State of Raj. & Anr. vs. Hanuman Singh Bhati
& Ors.)
DATE OF JUDGMENT ::: FEBRUARY 5, 2010
P R E S E N T
HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN
HON'BLE MR. JUSTICE RAGHUVENDRA S.RATHORE
Mr.Ashok Gaur for appellants in SAW No.206/2009
Mr.S.N.Kumawat,Addl.Advocate General for appellants in SAW No.s 307/2009, 1063/2009 & 1020/2009
Mr.Virendra Lodha, for appellant in SAW No.375/2009
Mr.Gopal Garg, for the respondents in all the special appeals
BY THE COURT:(Per Hon'ble Mr.N.K.Jain J.)
REPORTABLE/-
1. Since all the special appeals are directed against common order of learned Single Judge dated 4th March, 2009, therefore, all the special appeals are being disposed of by this common order.
2. The respondent Ajay Singh, an officer of Rajasthan Administrative Service, (hereinafter referred to as petitioner) preferred three writ petitions under Article 226 of the Constitution, which were disposed of by the learned Single Judge by a common order as all the writ petitions were similar in nature. The writ petition No.3355/2004 was preferred by three persons namely Hanuman Singh Bhati, Rajesh Yadav and Ajay Singh, but during the pendency of the writ petition, the petitioners Hanuman Singh Bhati and Rajesh Yadav both withdrew their writ petitions. Therefore, Ajay Singh remained as petitioner in writ petition No.3355/2004.
3. The learned Single Judge in its impugned order dated 4th March, 2009 has quoted the relief clause of all the three writ petitions, and the facts of S.B.Civil Writ Petition No.4866/2008 have been given as leading case.
4. The petitioner in writ petition No.3355/2004 challenged the impugned seniority list dated 4.5.2004 as on 1.4.1993 & 1.4.1994 (Annexures 12 & 13) in addition to other prayers.
5. In writ petition No.1742/2008, the petitioner prayed that by an appropriate writ, order or direction, the respondents be directed to include the name of the merit promotees (1991-92) including the petitioner in the list to be sent to UPSC for convening IAS Board (1996-97 to 2007-08) over and above the reserved categories candidates as had been shown in the seniority list issued by the respondents on 26.6.2000 as per the decision of the Hon’ble Division Bench dated 12.9.2001.
6. In addition to other prayers, the petitioner in writ petition No.4866/2008 initially challenged the order dated 12th May, 2008 and by way of amendment in the writ petition he also challenged the final seniority list dated 24th June, 2008 (Annex.3).
7. The learned Single Judge vide its impugned common order quashed and set aside the final seniority list dated 24th June, 2008 issued by the Department of Personnel, Government of Rajasthan, Jaipur in part as mentioned in the order. Para No.s 88 & 89 of the impugned judgment are reproduced as under:-
88. In view of the discussions made herein above, the impugned final seniority list dated 24.06.2008 (Annexure-3) issued by the Department of Personnel, Govt. of Rajasthan, Jaipur is hereby quashed and set-aside so far as the merit promotees whose selection was made against the vacancies for the year 1991-92 considering 7 out of 7 outstanding/very good APARs are concerned, and the respondents are directed to show the names of merit promotees for the year 1991-92 over and above the reserved category candidates as had been shown in the seniority list issued by the respondents on 23.02.1996 as per the decision of the Division Bench dated 12.09.2001 following the decision of the Hon’ble Apex Court rendered in the case of Shivnath Prasad (supra) and shall prepare final seniority list in the light of the judgment dated 12.09.2001 rendered by the Division Bench of this Court and the judgment rendered by the Hon’ble Supreme Court in the case of Shivnath Prasad (supra) and the merit promotees, thus, are also entitled for consideration on the post of I.A.S. as per their merit.
89. Consequently, all the writ petitions stand allowed in the terms as indicated herein above.
8. Being aggrieved with the aforesaid judgment, the State of Rajasthan has preferred three special appeals in all the three writ petitions filed by petitioner Ajay Singh. The appellant Gajendra Singh and Smt.Prabha Tak have also challenged the impugned order of learned Single Judge by way of two separate special appeals.
9. The petitioner in his writ petition No.4866/2008 pleaded that he was appointed as Rajasthan Administrative Service Officer in junior scale of RAS on 15th October, 1979. He was promoted in the senior scale of RAS in the month of February, 1987 and was promoted in selection scale of RAS in the year 1992 subject to review/revision on the basis of 5 out of 7 APARs as against the vacancies of 1992-93. The criteria of merit promotion on the basis of 5 out of 7 APARs was for the first time amended and notified vide notification dated 30th November, 1991. Earlier to this notification, for merit promotion there was a requirement of having 7 out of 7 consistently outstanding/very good APARs vide notification dated 11th April, 1979. The Hon’ble Apex Court in Shambhu Singh Meena & Ors vs. State of Raj. & Ors (1995 Supp(2) SCC 431) held that the notification dated 30th November, 1991 is to be applied prospectively. Thereafter, a review DPC was convened on 23rd February, 1996 and the petitioner was selected against merit quota for the vacancies of 1991-92 having 7 out of 7 outstanding/very good APARs. The name of petitioner is appearing at No.5 in the order dated 23rd February, 1996. The name of petitioner was shown in the provisional seniority list dated 1st April, 1998 in the selection scale of RAS against the merit quota of 1991-92. However, his position was changed by the State Government in subsequent provisional seniority list dated 26th June, 2000 on the basis of decision rendered in Ajit Singh & Ors. (II) vs. State of Punjab & Ors (1999 (7) SCC 209). The seniority promotees were placed above the merit promotees. Therefore, petitioner filed a writ petition No.2968/2000 and the writ petition was allowed by Single Bench of this Court vide its judgment dated 30.5.2001, whereby it was held that merit promotees will be placed above the seniority promotees. The State Government preferred a special appeal against the said judgment, but the same was dismissed by Division Bench vide order dated 12th September, 2001. The Single Bench as well as the Division Bench both held that merit promotees will be kept above the superseded officers of general category and thereafter the roster point promotees. The reserve category officers also filed writ petition challenging their placement below their senior batch mates of general category on the ground that they are entitled for consequential seniority on promotion post, but their writ petitions were also dismissed vide common order dated 30th May, 2001. The special appeals preferred by them were also dismissed by the Division Bench on 12th September, 2001. The reserve category officers did not challenge the order of Division Bench, thereafter, therefore, the matter with regard to them has attained finality. The seniority promotees preferred SLP before the Hon’ble Supreme Court, which is pending but up till now no interim order has been passed staying the operation of order of Hon’ble Division Bench. In these circumstances, the State Government ought to have framed seniority list showing merit promotees above the seniority promotees and reserve promotees. Subsequently, a seniority list dated 23rd November, 2003 was issued, wherein judgment of Single Bench and Division Bench was partly complied with by showing seniority promotees below the merit promotees. But the order of Single Bench and Division Bench was not complied with so far as reserved promotees are concerned. The State Government thereafter sent a list for consideration for promotion from RAS to IAS on the basis of provisional seniority list dated 27th November, 2003. Being aggrieved with the same, the petitioner preferred S.B.Civil Writ Petition No.3355/2004. The State Government has now issued a provisional seniority list dated 12th May, 2008 of RAS Officers and on that basis forwarded a list to UPSC for consideration for promotion from RAS to IAS for the year 1997-98 to 2007-08. The petitioner thereafter preferred S.B.Civil Writ Petition No.4866/2008. During the pendency of above writ petition, The respondent State issued a final seniority list on 24th June, 2008. The petitioner by way of an application for amendment, amended his writ petition and also challenged the final seniority list dated 24th June, 2008.
10. Mr.Ashok Gaur, the learned counsel appearing in a representative capacity of reserved class submitted that the learned Single Judge has committed an illegality in saying that the notification dated 30th November, 1991, whereby selection criteria on the basis of merit, which has been changed from 7 out of 7 to 5 out of 7 outstanding/very good APARs, will not apply to those officers who were already considered on the basis of 7 out of 7 outstanding/very good APARs.
11. So far as other submissions regarding regaining of seniority of general category candidates are concerned, he contended that this Court has already heard the said point in Writ Petition No.8104/2008 (Bajrang Lal Sharma vs. State of Raj.), therefore, the said point may be considered and decided finally in that case.
12. He contended that the circular dated 30th November, 1991 is prospective as held by the Hon’ble Supreme Court in Shambhu Singh Meena vs. State of Rajasthan (supra). Therefore, the State Government was right in holding the DPC for the year 1991-92 and bifurcating the vacancies of 1991-92 in two parts i.e. vacancies arose before 30th November, 1991 and after 30th November, 1991. He relied upon judgment of Apex Court in the case of Shambhu Singh Meena vs. State of Rajasthan (supra), wherein the same circular dated 30th November, 1991 was considered. He also relied upon judgment of larger Bench of this Court in Shankar Lal Verma & 13 Ors. vs. The Raj. State Electricity Board (1999(1) WLC (Raj.) page 1. He contended that the finding of the learned Single Judge in Para 83 of the impugned judgment is contrary to the law laid down by Hon’ble Apex Court in the case of State of Rajasthan vs. R.Dayal & Ors. (1997 (10) SCC page 419 and on that basis he contended that all vacancies occurred after amendment made in the rule will be considered as per amended rule and the same has been made basis by the State Government while considering the cases of concerned officers in review DPC.
13. Mr.S.N.Kumawat the learned Additional Advocate General for the State of Rajasthan challenged the impugned order on the ground that earlier the petitioner was granted selection scale against the vacant post of year 1991-92 but as per directions given by the learned Single Judge, while deciding the writ petition No. 5392/2003 (Smt.Prabha Tak vs. State of Raj.) at principal seat of this Court at Jodhpur on 4.7.2007, a review DPC was convened and while considering the cases of all the concerned officers particularly while filling the posts of selection scale of Rajasthan Administrative Service for the year 1991-92, the amended rule dated 30th November, 1991 was taken into consideration.
14. He contended that there were total 34 vacancies of selection scale for the year 1991-92, out of which 12 posts were to be filled by merit, 12 posts by seniority cum merit and 10 posts from reserved category. Twenty one posts were available upto the period 30th November, 1991 when the notification dated 30th November, 1991 was issued substituting the explanation below Rule 11 of Rule 28-B of the Rajasthan Administrative Service Rules, 1954 and 13 vacancies were relating to the period after 30th November 1991 till 31st March, 1992. Therefore, 21 vacancies were considered as per old rule and due to it the position of petitioner was changed and he has now been granted selection scale of RAS against the year 1992-93. Therefore, they have done all this exercise because of direction of Single Bench of this Court at Principal Seat at Jodhpur in Prabha Tak’s case.
15. He further contended that no junior to petitioner Ajay Singh, having 7 out of 7 outstanding or very good APARs, has been granted selection scale against the vacant post of year 1991-92 (prior to 30th November, 1991). He frankly admitted that earlier a mistake was committed by the State in interpreting the notification dated 30th November, 1991, which has now been correctly interpreted in view of judgment of Hon’ble Supreme Court in the cases of Shambhu Singh Meena vs. State of Raj.(supra), State of Rajasthan vs. R.Dayal (supra) and judgment of Tribunal in the case of Anil Chaplot vs. State of Rajasthan. He referred to Rule 28 (11)(B) and contended that State Government has powers to hold review DPC on the grounds mentioned in the rule. He narrated four grounds for holding the review DPC i.e. (i) a notification dated 30th November, 1991 amending the elegibility criteria for promotion; (ii) judgment of Hon’ble Supreme Court in Shambhu Singh Meena(supra) holding that notification dated 30th November, 1991 is prospective; (iii) directions issued by Single Bench at Principal Seat at Jodhpur in Smt.Prabha Tak vs. State of Raj. and (iv) directions of Rajasthan Civil Services Appellate Tribunal in Anil Chaplot vs. State of Rajasthan for bifurcating all the vacancies prior to amendment on 30th November, 1991 and after the amendment made in Rule on 30th November, 1991.
16. Mr.Virendra Lodha, the learned counsel appearing for Smt.Prabha Tak and Tara Chand Saharan contended that from the letters dated 20th September, 2007 and 25th February, 2008, which have been supplied by the State Government to appellants under the provisions of Right to Information Act, it is clear that there were total 34 vacancies for selection scale in Rajasthan Administrative Services for the year 1991-92. Twenty four posts for general category, 6 posts for scheduled caste and 4 posts for scheduled tribe, whereas 43 persons have been selected for selection scale of RAS for the year 1991-92 i.e. 32 officers from general category, 8 persons from scheduled caste and 3 officers from scheduled tribe category. He contended that although there were 34 posts available for selection scale in the year 1991-92 but remaining 9 officers were appointed in the year 1991-92 because of the direction of the Tribunal or the High Court and whose cases have attained finality.
17. He also submitted that 11 persons were promoted from Selection Scale to Super Time Scale vide order dated 10th February, 1992 out of total 34 available posts for the year 1991-92 in selection scale and result of two persons were kept in sealed cover. Therefore, it is clear that 13 posts became available for selection scale after amendment of Rule relating to criteria vide notification dated 30th November, 1991, wherein it was provided that for merit promotion 5 out of 7 outstanding/very good APARs will be considered. The review DPC took place on 3rd and 4th May, 2008, wherein 21 vacancies were filled as per old rule and 13 vacancies were filled as per new rule. He, therefore, contended that there is no illegality in the order of the State Government relating to DPC dated 3rd and 4th May, 2008. The learned Additional Advocate General also referred order dated 10th February, 1992, whereby 9 general category officers and 2 reserved category officers were promoted in Super Time Scale of RAS from selection scale.
18. He also referred the minutes of the Departmental Promotion Committee held on 13th December, 1991 for promotions of selection scale RAS officers to the Super Time Scale of the services against the vacancies of the year 1991-92 to satisfy this Court that 11 persons of general category candidates and 2 persons from reserved category candidates were promoted in the Super Time Scale of RAS out of 13 recommended officers, 11 were promoted vide order dated 10th February, 1992 and result of DPC of 2 officers was kept in sealed cover.
19. Mr.Gopal Garg, the learned counsel appearing on behalf of petitioner Ajay Singh (respondent in all the appeals) first of all raised a preliminary objection in respect of appeal filed by Smt.Prabha Tak and Tara Chand Saharan on the ground that Smt.Prabha Tak has already retired in June, 2008 and Shri Tara Chand Saharan has been appointed in the Board of Revenue. Therefore, there is no purpose now in hearing their appeals.
20. On merits he contended that Smt.Prabha Tak and Shri Tara Chand Saharan both were junior to petitioner in the seniority list dated 23rd February, 1996. Still they have been shown junior from the petitioner. Both were not impleaded party in the writ petition but they themselves moved an application under Order 1 Rule 10 CPC, which was allowed. He, therefore, contended that appeal of Smt.Prabha Tak and Shri Tara Chand Saharan is liable to be dismissed.
21. He contended that petitioner was selected against merit quota on the basis of 7 out of 7 consistently outstanding/very good APARs as required vide notification dated 11th April, 1979 against the vacancies of year 1991-92 in selection scale of RAS vide order dated 23rd February, 1996. In provisional seniority list dated 1st April, 1998, the name of petitioner was shown against vacancies of 1991-92 in merit quota. The State Government issued provisional seniority list dated 26th June, 2000 in the light of Ajit Singh-II’s(supra) case decided by Supreme Court as well as notification dated 1st April, 1997 issued by the State Government whereby proviso was added below all proviso of Rule 33 of the Rajasthan Administrative Service Rules, 1954 relating to regaining of seniority rule by general category candidates. However, in the said list, the position of petitioner was changed and he was shown below the superseded promotees i.e. seniority promotees. He, therefore, filed a writ petition before this Court, which was allowed by Single Bench of this Court vide judgment 30th May, 2001 and it was directed that merit promotees will be kept above the seniority promotees and also reserved category promotees. The State Government and the reserve promotees both preferred special appeal before Division Bench, but the same was dismissed vide judgment dated 12th September, 2001. No SLP was preferred with regard to reserve promotees by the State against order of Division Bench and the same has attained finality. The State preferred SLP against the judgment of the Division Bench against general category candidates, which is pending in the Supreme Court but no stay has been passed on the operation of the judgment of the Division Bench as well as the Single Bench. He, therefore, contended that his name should have been shown above the seniority promotees in pursuance of directions of the Division Bench dated 12th September, 2001. He also contended that in the order dated 23rd February, 1996 his name was shown at S.No.5 against merit quota of 1991-92, whereas now he has been assigned selection scale against the merit quota of 1992-93, which could not have been done after lapse of so many years and further that circular dated 30th November, 1991 has wrongly been interpreted by the State Government.
22. He contended that as per Rule 9, the vacancies are determined as on 1st April for ensuing period. Therefore, all the 34 posts of the year 1991-92 for the selection scale of RAS were determined on or before 1.4.1991 and same ought to have been filled as per old rule i.e. on the basis of 7 out of 7 outstanding or very good APARs and not as per amended rule dated 30th November, 1991, whereby criteria was changed and it was provided that merit quota will be considered on the basis of 5 out of 7 outstanding or very good APARs.
23. He also contended that no specific date was given in the notification dated 30th November, 1991 as to when it will come into force. The said notification was published in the Rajasthan Gazette on 16th January, 1992. Therefore, the date of publication of notification in the gazette should have been treated as the date of coming into force of the new rule. In support of his submissions he referred to decisions in S.K.Shukla & Ors. vs. State of U.P. & Ors. (2006 (1) SCC 314).
24. He contended that in the case of M.M.Joshi the stand of the State Government before Tribunal was that notification dated 30th November, 1991 will be applicable on the posts determined as on 1.4.1991. Therefore, the State Government has now estopped from changing the said stand and bifurcating the posts of 1991-92 into two parts i.e. before 30th November, 1991 and after 30th November, 1991 when rule was amended.
25. He also contended that process in the present case started on 13th December, 1991 and once process is commenced, the rule which was applicable on the day, when process started, will be applied. He further argued that the decision of Hon’ble Apex Court in State of Rajasthan vs. R.Dayal (supra) is not applicable. Similarly the judgment of Full Bench of this Court in Shanker Lal Verma vs. State (supra) is also not applicable.
26. We have considered the submissions of learned counsel for the parties and perused the relevant record. So far as submissions of respondents with regard to estoppel is concerned, it is mentioned that this is a matter of interpretation of notification dated 30.11.1991, therefore, in case any wrong submission was made earlier by State, the same will not be binding as there can not be any estoppel against statute. With regard to other submission that the rule applicable on the day when process started should be applied, it needs a clarification that it is not a case of selection through direct recruit, but it is a case of promotion, where rule applicable on the day when seat became available or vacant, will apply. So far as submissions regarding regaining of seniority etc. are concerned, the learned counsel for all the parties suggested and agreed that the arguments have already been heard in this regard in connected writ petition No.8104/2004 (Bajrang Lal Sharma vs. State of Raj.) and the same may be decided in that writ petition. The said writ petition and other connected matters are also being decided by us today by separate judgment.
27. From the submissions of the learned counsel for the parties, the main questions emerge for our decision are:
(i) When notification dated 30th November, 1991 came into force;
(ii) Whether notification dated 30.11.1991 is prospective or not? and
(iii) Whether 34 vacancies of selection scale of RAS of the Year 1991-92 will be filled as per old notification dated 11th April, 1979 or new rule amended vide notification dated 30th November, 1991.
28. So far as facts of the case are concerned, there is no dispute between both the parties that there were total 34 posts of selection scale for RAS in the year 1991-92, 24 posts were belonging to general category candidates, 6 posts for scheduled caste candidates and 4 posts for scheduled tribe candidates. As per minutes of the meeting of Departmental Promotion Committee held on 13th December, 1991 for promotion of selection scale RAS Officers to the Super Time Scale of the service against vacancies of the year 1991-92, it is also clear that 14 officers were recommended for promotion to the Super Time Scale of Rajasthan Administrative Service, out of which 11 persons belonging to general category and 3 officers belonging to reserve category. The result of DPC in respect of Shri G.P.Nagar and Shri D.R.Meena was kept in sealed cover. Out of remaining 12 officers, 11 officers, except one Shri A.S.Singhvi, were promoted in Super Time Scale of RAS for the year 1991-92 vide order dated 10th February, 1992. Therefore, 11 vacancies of the persons, who were promoted in Super Time Scale and 2 vacancies of the officers whose cases were considered and their result was kept under sealed cover, total 13 vacancies became vacant or available on 10th February, 1992 in Selection Scale of RAS.
29. As per earlier notification dated 11th April, 1979, the criteria of selection for promotion on the basis of merit was that an officer should have 7 out of 7 outstanding or very good APARs. The existing explanation below sub-rule 11 of Rule 28-B of RAS Rules was substituted vide notification dated 30th November, 1991 and it was provided that for the purpose of selection for promotion on the basis of merit, no person shall be selected if he does not have outstanding or very good record in at least 5 out of 7 years in the preceding year for which the DPC is held.
QUESTION NO.(i)
30. The notification dated 30th November, 1991 was published in Rajasthan Gazette dated 16th January, 1992. The notification dated 16th January, 1992 is reproduced as under:-
Regd. No.RJ.2539
RAJASTHAN GAZETTE
Published by Authority
Pausa 26,Thursday,Saka 1913 January 16,1992
Hindi version
DEPARTMENT OF PERSONNEL & ADMINISTRATIVE REFORMS
(Department of Personnel-A-II)
NOTIFICATION
Jaipur, November 30,1991
G.S.R.84-In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Rajasthan hereby makes the following amendment in the various Service Rules as specified in the Schedule appended hereto, namely:-
AMENDMENT
For the existing Explanation below sub-rule (5), (6), (9), (10) or sub-rule (11), as the case may be, under rule as mentioned in Column 3 against each of the Service Rules mentioned in Column 2 of the Schedule appended hereto shall be substituted by the following, namely :-
Explanation:- For the purpose of selection for promotion on the basis of merit no person shall be selected if he does not have Outstanding or Very Good record in at least five out of the 7 years preceding the year for which D.P.C. Is held.
SCHEDULE _____________________________________________________________ S.No. Name of the Service Rules Number of rule 1 2 3 ____________________________________________________________ 1. The Rajasthan Administrative Service Rules,1954 28 B 2. The Rajasthan Police Service Rules,1954 28 A 3. The Rajasthan Accounts Service Rules,1954 28 A 4. The Rajasthan Secretariat Service Rules,1954 11 B 5. The Rajasthan Service of Engineers(B & R Branch) Rules, 1954 24 A 6. The Rajasthan Service of Engineers (Irrigation Branch) Rules, 1954 24 A 7. The Rajasthan Co-operative Service Rules,1954 24 B 8. The Rajasthan Service of Inspectors of Factories & Boilers Rules, 1958 23 A 9. The Rajasthan Labour Welfare Service Rules,1958 23 A 10. The Rajasthan Economics & Statistical Service Rules, 1958 25 A 11. The Rajasthan Jails Service Rules, 1959 23 A 12. The Rajasthan State Insurance Service Rules, 1959 24 A 13. The Rajasthan Government Presses Service Rules, 1960 25 A 14. The Rajasthan Employment Exchange Service Rules, 1960 24 A 15. The Rajasthan Mines and Geological Service Rules, 1960 23 A 16. The Rajasthan Agriculture Service Rules, 1960 25 A 17. The Rajasthan Industries Service Rules, 1960 23 A 18. The Rajasthan Horticulture Service Rules, 1962 23 A 19. The Rajasthan Archaeological & Museums Service Rules, 24 A 20. The Rajasthan Medical Services (Collegiate Branch) Rules, 1962 24 A 21. The Rajasthan Forest Service Rules, 1962. 31 A 22. The Rajasthan Animal Husbandry Service Rules,1963 23 A 23. The Rajasthan Social Welfare Service Rules, 1963 24 A 24. The Rajasthan Medical and Health Service Rules, 1963 24 A 25. The Rajasthan Public Relations Service Rules,1966 25 26. The Rajasthan Town Planning Service Rules, 1966 25 27. The Rajasthan Oriental and Research Institute Service Rules, 1967 25 28. The Rajasthan Excise (Preventive Officers) Service Rules, 1967 17 29. The Rajasthan Service of Engineers (Public Health Branch) Rules, 1968 25 30. The Rajasthan Ground Water Service Rules, 1969 25 31. The Rajasthan Educational Service Rules, 1970. 25 32. The Rajasthan Commercial Taxes Service Rules, 1971 18 33. The Rajasthan Technical Education Service Rules, 1973 25 34. The Rajasthan Architectural (P.W.D.B&R) Branch, Service Rules, 1973. 25 35. The Rajasthan Ayurvedic, Unani, Homeopathy & Naturopathy Service Rules, 1973. 25 36. The Rajasthan Technical Training Service Rules, 1975 24 A 37. The Rajasthan Excise Service (General Branch) Rules, 1974 11 A 38. The Rajasthan Archives Service Rules, 1975 24 A 39 The Rajasthan Engineering Service (Electrical Inspectorate Branch) Rules, 1975. 24 A 40. The Rajasthan Sheep & Wool Service Rules, 1975 24 A 41. The Rajasthan Food & Civil Supplies Service Rules, 1976 23 A 42. The Rajasthan Home Guards & Civil Defence Service Rules, 1976. 23 A 43. The Rajasthan Sanskrit Education Service Rules, 1977. 23 A 44. The Rajasthan Tourism Service Rules, 1976 23 A 45. The Rajasthan Prosecution Service Rules, 1978 9 46. The Rajasthan Evaluation Service Rules, 1979 24 47. The Rajasthan Transport Service Rules, 1979 24 48. The Rajasthan Police Forensic Science Service Rules, 1979 24 49. The Rajasthan State Enterprises Service Rules, 1979 24 50. The Rajasthan District Gazetters Service Rules, 1980 24 51. The Rajasthan Librarian & P.T.I. (Collegiate Branch) Service Rules, 1980 9 52. The Rajasthan Legal (State & Subordinate) Service Rules, 1981 28 53. The Rajasthan Vidhi Rachna (State & Subordinate) Service Rules, 1981. 28 54. The Rajasthan HCM RIPA Service Rules, 1990 9 55. The Rajasthan State Agriculture Marketing Service Rules, 1986 24 56. The Rajasthan Devasthan Service Rules, 1991. 9 (No.F.7(10)DOP/A-II/77) By Order and in the name of the Governor, Sd/- Special Secretary to the Government.
31. The above notification dated 30th November, 1991 makes it clear that no specific date has been mentioned in it as to when this notification will come into force. According to submission of the learned counsel for the appellants, the notification came into force immediately i.e. 30th November, 1991 the date of notification, whereas according to writ petitioner (respondent in the special appeals), it came into force on the date of its publication in the Rajasthan Gazette dated 16th January, 1992.
32. In this regard, we may first refer to Section 5 of the Rajasthan General Clauses Act, 1955, which provides as to when the Rajasthan law will come into operation. It provides that (a) if it is an Act of the State Legislative Assembly, on the day on which the assent thereto of the Governor or the President, as the case may require, it will first publish in the Rajasthan Gazette and (b) if it is an Act or Ordinance of the Governor or the President on the day on which it is first published as such Act or Ordinance in the Rajasthan Gazette. 33. For ready reference Section 5 of the Rajasthan General Clauses Act, 1955 is reproduced as under:-
5. Coming into operation of Rajasthan Laws :- (1) Where any Rajasthan law made after the {first day of November, 1956} is not expressed to come into operation on a particular day, then it shall come into operation-
(a) if it is an Act of the State Legislative Assembly, on the day on which the assent thereto of the [Governor] or the President, as the case may require, is first published in the Rajasthan Gazette, and
(b) if it is an Act or Ordinance of the [Governor] or the President, on the day on which it is first published as such Act or Ordinance in the Rajasthan Gazette.
(2) Unless the contrary is expressed, a Rajasthan Law shall be construed as coming into operation immediately on the expiration of the day preceding its commencement.
34. The Hon’ble Apex Court in S.K.Shukla & Ors. vs. State of U.P. & Ors.(2006(1) SCC 314) considered the notification dated 23rd January, 2003 issued by State of Uttar Pradesh under the provisions of Prevention of Terrorism Act, 2002 and considered that a decision on the note-sheet was taken on 22.1.2003 and a communication was sent to the Government Press for publication of it on 23rd January, 2003, but in fact it was published as per record of the Government Press on 29th January, 2009 though it was notification dated 23rd January, 2003. The arms and ammunition were recovered from the house of Udai Pratap Singh on 23rd January, 2003 but review committee discussed the matter in detail and it was found that the notification under section 4(a) was not issued prior to the recovery of the arms and ammunition at the house of Udai Pratap Singh on 23rd January, 2003. The Hon’ble Apex Court opined that the view taken by the review committee to this extent is correct. The whole area was notified on 29th January, 2003 and not on 23rd January, 2003 the date of the notification. The Apex Court observed that the publication in the Gazette is essential as it affects the rights of the public. Para 18 of the judgment is reproduced as under:-
So far as Section 4(a) is concerned, the Review Committee had discussed the matter in great detail and it was found that the notification under Section 4(a) was not issued prior to the recovery of the arms and ammunition at the house of Udai Pratap Singh on 23-1-2003. It was submitted that the raid on the house of Raghuraj Pratap Singh alias Raja Bhaiya, Udai Pratap Singh and Akshay Pratap Singh alias Gopalji was politically motivated as these persons did not support the Government of Mayawati, the raid was conducted and POTA cases were launched against them. When the new Government came, headed by Chief Minister Mulayam Singh Yadav then this order was revoked under POTA as Raghuraj Pratap Singh supported this Government. We are not concerned with the political overtones of the matter. We are examining the matter purely from the legal point of view. The question before us is that on the relevant date whether the whole area of Uttar Pradesh was notified area or not under Section 4(a) of the Act. Much argument was addressed in this case and the original records of the Secretariat and of the Government Press were placed before us for our perusal. It may also be relevant to mention here that a Committee was appointed on the complaint made by some of the legislators that the raid at the house of Udai Pratap Singh was made prior to the issue of the notification of the notified area. The Committee after considering a full enquiry found that the notification of the notified area was promulgated on 29-1-2003 and it was communicated to all the District Magistrates on 31-3-2003 and it reached them thereafter. Since this finding was seriously debated before us also, therefore we perused the report of the Committee as well, we called the original record to satisfy ourselves, when exactly was the notification issued. After going through the note-sheet of the secretarial file as well as the record of the Government Printing Press, Lucknow, we are satisfied that in fact the notification declaring the whole of the State of Uttar Pradesh as a notified area was not published on 23-1-2003. But the decision on the note-sheet was taken on 22-1-2003 and a communication was sent to the Government Press for publication of it on 23-1-2003 but in fact it was published as per the record of the Government Press on 29-1-2003 though it was a dated notification dated 23-1-2003. Therefore, after close scrutiny of the records of the government secretariat’s files as well as the original registers of the Government Press, we are of the opinion that the view taken by the Review Committee to this extent is correct that the whole area was notified on 29-1-2003 only and not on 23-1-2003, the date of the notification. The requisition reached the Government Press for publication at 5.30 on 27-1-2003 and it was published and ready for dispatch on 29-1-2003 and accordingly it was dispatched to the Home Department on 29-1-2003. Therefore, from these facts it is clear that the finding accorded by the Review Committee that the notification notifying the State of U.P. as a notified area under Section 4(a) was published in the Extraordinary Gazette of U.P. on 29-1-2003 and it was dispatched thereafter to all the District Magistrates. Therefore, it became effective from the date of its publication. Normally under the State General Clauses Act an Act comes into force on the date with the assent of the Governor or the President, as the case may be, in the gazette is essential as it affects the rights of the public. Since this prohibitory notification notifying that the possession of certain kinds of arms in the notified area is prohibited, therefore, it would come into effect from the date when it was published in the Official Gazette.
35. The similar controversies were also considered by various High Courts in the following cases:-
(1) Munnalal Lachhiram vs. Manakchand (AIR (37) 1950 Madhya Bharat 119;
(2) Messrs, Adarsh Bhandar vs. Sales Tax Officer, Alighar (AIR 1957 Allahabad 475 (Full Bench);
(3) Girjashanker vs. Lalu (AIR 1955 Raj. 151) (Full Bench)
(4) Pritpal Singh Ratan Singh vs. The Chief Commissioner of Delhi & Anr. (AIR 1966 Punjab 4) (Full Bench).
36. The above discussion makes it clear that in absence of any specific date of commencement of amended rule, the date of its publication in Gazette will be treated as date when amended rule came into force. There is no dispute in the parties that notification dated 30.11.1991 does not bear any specific date of its commencement and it was published in Rajasthan Gazette on 16.1.1992, therefore, in our view this amended rule vide notification dated 30.11.1991 will be deemed to have come into force on 16.1.1992 and not on 30.11.1991.
QUESTION NO.(ii)
37. So far as another question, as to whether this notification dated 30th November, 1991 is prospective or not, it is relevant to mention that the same notification was considered by the Hon’ble Supreme Court in Shambhu Singh Meena & Ors. vs. State of Raj. (supra), wherein Departmental Promotion Committee selected the persons on merit basis who were appointed by promotion as per Rajasthan Administrative Service Rules against the vacancies of 1981-82 to 1986-87. These promotions were challenged by the contesting respondent by filing appeals in the Rajasthan Appellate Service Tribunal on the ground that they were not in accordance with the Rules inasmuch as those promotees did not have 7 outstanding or very good APARs in 7 preceding years. The Tribunal upheld the challenge and set aside the orders of promotions. Therefore, the petitioner filed writ petitions before the Rajasthan High Court challenging the orders passed by the Tribunal but did not succeed and thereafter they preferred SLP. The Hon’ble Apex Court considered the sub-rule (11) of Rule 28 B of the Rajasthan Administrative Service Rules laying down the criteria of eligibility and procedure for promotion to junior, senior and other posts encadre in service. The explanation before amendment vide notification dated 30th November, 1991 and the judgment of the Tribunal dated 11th November, 1983 and the judgment of the Rajasthan High Court as per notification dated 11th April, 1979 were considered and it was held that at the relevant time 7 out of 7 outstanding or very good APARs were required for selection on the basis of merit as per notification dated 11th April, 1979. Since this was the case relating to the year 1981-82 and 1986-87, therefore, the Apex Court took a view that the amendment made in the year 1991 cannot apply to these cases. Paras 7 to 9 of the judgment are reproduced as under:-
7. The learned counsel for the contesting respondents drew our attention to the judgments of the Tribunal and the Rajasthan High Court annexed with their affidavits. In the judgment delivered by the Tribunal on 11.11.1983 it has been observed : We have been consistently holding that the ACRs/APARS of the officers pertaining to 7 (seven years) including the year of selection should either be Very Good or Outstanding if they have to be selected on the basis of merit as per the notification dated 11.4.1979. After the passing of the said order the DPC again met and did not select those who did not possess the Outstanding or Very Good record for a period of 7 years. This selection was again challenged before the Rajasthan High Court by Mahesh Prasad Mathur and Suresh Chander Tayal but the High Court dismissed the petitions while holding that the view taken by the Tribunal was correct. The judgment delivered by a Division Bench of the Rajasthan High Court in Civil Writ Petition No. 4204 of 1990 also indicates that in the year 1984 the DPC had selected only those officers whose confidential reports were Outstanding or consistently Very Good for all the 7 years. In view of this material on record it is not correct to say that the DPCs had always understood the rule as contended by the learned counsel for th petitioners.
8.The rule requires that the record of the officer should be outstanding or consistently very good and what would imply that it should be so for the entire period under consideration.
9. In our opinion, the Tribunal and the High Court have correctly construed the Explanation and no interference is called for. The amendment made on 30.11.1991, being subsequent to the orders of promotions which are challenged in these cases, obviously, cannot apply to these cases. Therefore, all these SLPs are dismissed.
38. The judgment delivered by Apex Court in Shambhu Singh Meena’s case (supra) makes it clear that notification dated 30th November, 1991 was prospective. In these circumstances, there is no need to discuss the notification any more in this regard and we hold that notification dated 30th November,1991 which came into force from the date of its publication in Rajasthan Gazette i.e. 16.1.1992 is prospective.
QUESTION NO.(iii)
39. ` Now, the last question remains for adjudication, i.e. whether 34 posts of selection scale of RAS of the year 1991-92 will be governed by old rule dated 11th April, 1979 or new rule amended vide notification dated 30th November, 1991.
40. The submissions of learned cousnel for writ petitioner is that the vacancies are determined as on 1st April of ensuing year under Rule 9 and process for promotion has been laid down under Rule 28. From the proceedings of DPC he argued that DPC took place on 13th December, 1991 and all the 34 posts were filled earlier as per old rule. He contended that there were only 24 posts, which should have been filled 50% by merit and 50% by seniority cum merit. The learned Additional Advocate General admitted this position but contended that in addition to it there were 10 more posts for reserved category candidates, therefore, there were 34 posts. Rule 9 of Rajasthan Administrative Service Rules, 1954 relates to determination of vacancies and it provides that subject to the provisions of these Rules, the Appointing Authority shall determine on 1st April every year, the actual number of vacancies occurring during the financial year. For ready reference Rule 9 of the Rajasthan Administrative Service Rules, 1954 is reproduced as under:-
9. Determination of vacancies:- (1) (a) Subject to the provisions of these Rules, the Appointing Authority shall determine on 1st April every year, the actual number of vacancies occuring during the financial year.
(b) Where a post is to be filled in by a single method as prescribed in the rule or Schedule, the vacancies so determined shall be filled in by that method.
(c) Where a post is to be filled in by more than one method as prescribed in the rules or Schedule, the apportionment of Vacancies, determined under clause (a) above, to each such method shall be done maintaining the prescribed proportion for the over-all number of posts already filled in. If any fraction of vacancies is left over, after apportionment of the vacancies in the manner prescribed above, the same shall be apportioned to the quota of various methods prescribed in a continuous cyclic order giving precedence to the promotion quota.
(2) The Appointing Authority shall also determine the vacancies of earlier years, yearwise which were required to be filled in by promotion, if such vacancies were not determined and filled earlier in the year in which they were required to be filled in.
41. According to petitioners(respondents herein) when vacancies are determined as on 1st April then rule prevailing on that day should be applied on all the posts of ensuing years irrespective of vacancies whether they were available on 1st April or were made available during ensuing year. According to learned Additional Advocate General and other counsels appearing on behalf of the appellants, the old rule will apply on all the vacancies, which were available till the date of amendment of the rule and new rule will come into force and will be applied on the vacancies occurred after the amendment of the rule.
42. From the letter of the State Government dated 10th February, 1992 and the minutes of meeting of the Departmental Promotion Committee dated 13th December, 1991, it is clear that 11 persons were promoted from selection scale to Super Time Scale of RAS and sealed cover envelopes were kept in respect of two person. Therefore, 13 posts of selection scale falling vacant and were available on 10th February, 1992.
43. The new rule about criteria for eligibility was amended vide notification dated 30th November, 1991, which was published on 16th January, 1992 in the Rajasthan Gazette. In this regard, it will be appropriate to refer the decision of the larger Bench of this Court in Shanker Lal Verma & 13 Ors. vs. The RSEB (1999(1) WLC (Raj.) page 59). The larger Bench of this Court in Shanker Lal Verma’s case (supra) considered the similar controversy and in Para 33 held as under:-
33. In the result, we conclude that there is no force in the contention of the petitioners that the amended qualifications shall not apply to them because they had acquired the equivalent qualifications prior to the amendment of the rules. In our opinion, the amended rule and the qualifications will apply even to the candidates who have obtained the equivalent qualifications prior to the date of enforcement of amended rule. However, the amended qualifications shall not be applicable to the vacancies which had occurred prior to the date of enforcement of the amended rule and such vacancies shall be filled-in in accordance with the qualifications prescribed as on the date of occurrence of vacancies. We, therefore, answer the reference accordingly. The petitions shall now be listed before appropriate Bench for decision in accordance with law in the light of this decision.
44. In State of Rajasthan vs. R.Dayal & Ors (1997) 10 SCC 419 the Honble Apex Court considered a case where Rule 23 A and Rule 24 A of the Rajasthan Service of Engineers (Building & Roads Branch) Rules, 1954 were introduced by statutory amendment w.e.f. 24.7.1995. Similar arguments were raised that rule which was applicable as on 1st April, 1995 when the vacancies were determined for the ensuing year should be applied. The Supreme Court rejected the arguments and held that the vacancies which occurred prior to the amendment of the Rules will be governed by the original rules and not by the amended rules and the vacancies that arose subsequent to the amendment of the rule are required to be filled in in accordance with the law existing as on the date when the vacancies arose. Paras 7 to 10 of the said judgment are reproduced as under:-
7. The question, therefore, is: whether the view taken by the High Court in the impugned judgment is correct in law. It is true, as contended by Shri Aruneshwar Gupta, that the determination of vacancies is required to be done under Rule 9 of the Rules and the selection has to be made in accordance with the criteria prescribed under Rule 23 of the Rules. Even Rule 23-A of the Rules prescribes the same procedure and the criteria thereunder was also followed. The revised criteria of eligibility and procedure for promotion of the officers has been prescribed under Rule 24-A of the Rules. Sub-rule (2) of Rules 12 envisages as under:
12.(2) The persons enumerated in Column 5 or the relevant Column regarding `posts from which promotion is to be made.’ as the case may be of the relevant Schedule shall be eligible for promotion to posts specified against them in Column 2 thereof to the extent indicated in Column 3 subject to their possessing minimum qualifications and experience on the first day of the month of April of the year of selection as specified in Column 6 or in the relevant Column regarding “minimum qualification and experience for promotion”, as the case may be.”
8. Therefore, it is not in dispute and cannot be disputed that while selecting officers, minimum requisite qualifications and experience for promotion specified in the relevant column, should be taken into consideration against vacancies existing as on 1st April of the year of selection. But since the Rules came to be amended and the amendment became effective with immediate effect and clause (11-B) of Rule 24-A indicates that options have been given to the Government or the appointing Authority, as the case may be, to revise the select list as existing as per the law as on the date of the appointment or as may be directed by a competent court, selection is required to be made by the concerned DPC. An appointment made, after selection as per the procedure, to the vacancies existing prior to the amendment, is valid. But the question is whether selection would be made, in the case of appointment to the vacancies which admittedly arose after the amendment of the Rules came into force, according to the amended Rules or in terms of Rule 9 read with Rules 23 and 24-A, as mentioned hereinbefore. This Court has considered the similar question in para 9 of the judgment above cited. 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 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 existing since the anticipated vacancies also must have been taken into consideration in the light of Rules 9 of the Rules. But after the amended Rules came into force, necessarily 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.
9. It is contended by Shri Das that one of the persons, namely, H.L. Meena was appointed against a carried- forward post as per the existing Rules and, therefore, his appointment cannot be challenged. We find it difficult to give acceptance to the contention. Even a carried-forward vacancy is required to be considered in accordance with the law existing unless suitable relaxation is made by the Government. As on that date, when the appointment came to be made, the selection was required to be made on the basis of the Rules as existing on the date the vacancy arose. Since, admittedly, that has not been done, the appointment of Shri Bhatnagar and H.L. Meena must be treated to be only temporary appointments pending consideration of the claims of all the eligible persons belonging to General and Reserved quota separately as per Rules.
10. Equally, one B.L.Kankas (Scheduled Tribe) was appointed by promotion on 28-7-1995, after the amended Rules came into force, and retired from service on 31-7-1995, Since he has already retired, his appointment has not been challenged, though direction to the contra was given by the Division Bench. To that extent, the judgment of the High Court stands set aside and his promotion is ordered to remain undisturbed. As regards others, the Government is required to constitute the DPC which would consider the claims of eligible candidates as per Rules. It would make fresh selection and appointments in accordance with law. Whatever benefits have been given under the impugned order cannot be taken away although the orders are being hereby quashed. But seniority and other criteria would be subject to the decision that would be taken by the Government. The Government is directed to constitute the DPC within a period of eight weeks from the date of the receipts of the order and take speedy action accordingly.
45. The judgment of the Apex Court in State of Rajasthan vs. R.Dayal (supra) makes it clear 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 in accordance with the law existing as on the date when the vacancies arose.
46. In these circumstances, we are of the view that the vacancies, which were available during the period from 1st April, 1991 till 16th January, 1992 (when notification dated 30th November, 1991 came into force) will be filled as per notification dated 11th April, 1979 and the remaining vacancies will be filled as per new amendment dated 30th November, 1991. Since there is no dispute that there were total 34 vacant posts of selection scale in RAS in the year 1991-92, out of which 21 posts were available prior to 16th January, 1992 and 13 posts were available as on 10th February, 1992 i.e. after 16th January, 1992 when amended rule came into force. Therefore, the State Government was right in filling 21 posts of selection scale of RAS of the year 1991-92 as per old rule and 13 vacancies as per amended rule.
47. Consequently, all the special appeals are allowed. The impugned judgment passed by the learned Single Judge is set aside.
The parties will bear their own costs.
(Raghuvendra S.Rathore) j. (Narendra Kumar Jain) J.
BKS/