Dau Dayal and Another vs Director, Rajasthan Oriental Research Institute and Another

Kan Singh, J.—This is a writ petition for a wait of quo warranto for pusting the respondent No. 2 Shri Onkarlal Manaria from the post of a Senior Research Assistant in the Rajasthan Oriental Research Institute, Jodhpur.

The question raised appeared to be a simple one to start with, but it is not free from its own complications. The respondent Shri Manaria came to be first appointed as Senior Research Assistant in the scale of Rs 250-18-400 EB 25,600 by Government order dated 2.8.61, which ran as follows:

Government of Rajasthan Education (B) Department.

From:

The Asstt. Secretary to the Govt. of Rajasthan, Jaipur.

To

The Hony. Director, Rajasthan Oriental Research Institute Jodhpur.

Sub :Appointmect of a Research Assistant.

Ref : Your memo No. F.3/Astt/RORT/61/Jp/150 dated 28.7.1961.

I am directed to convey sanction of the Governor to the temporary appointment of Shri Onkarlal Manaria, M.A, against the post of Senior Research Assistant in the scale of 250-15-400 EB-25-600, created under item II(1) of this Department order No. F.2(19) Blu/C/61 Cr I dated 23.5.61, for a period of six months in the first instance or till a candidate selected by the Rajasthan Public Service Commission joins, whichever is earlier.

Sdl-

Assistant Secretary to Government.

The petitioner''s case in reeking a writ of quo warranto, in short, is that after the expiry of the period of six months in terms of the above order there was no valid order of further appointment in favour of Shri Manaria or for that matter extending the period of his appointment. The petitioner further took the stand that when Sori Manaria was appointed he did not fulfil the qualifications for the post The position continued like this even till the Governor constituted the Rajasthan Oriental Research Institute Service in 1967 and the Rajasthan Oriental Research Institute Service Rules, 1960 hereinafter to be referred as "the Rules, were first published in the Rajasthan Rajpatra on on 24.1.67 The petitioner further avers that the post of Director, Oriental Research was abolished by the Government on 24-3-70 and when the Screening Committed met to consider the cases of such of the employees who would be fixed up in accordance with the Rules it included the Director of Sanskrit Education instead of the Director of Oriental Research with the result that the proceedings of the Selection Committee stood vitiated. The respondent come to be appointed on 19-7-71 at Senior Research Assistant on the recommendation of a Committee which was not properly constituted. The order of appointment dated 19-7-71 runs as follows:

vkKk

Jh vksdkj yky eukfj;k dh jktLFkku izkP; fo);k izfr"Bku tks/kiqj es ofj"B ''kks/k lgktd in gsrq Ldzhfuax desVh dh flQkfj''k ds vuqlkj p;u djus ds lEcU/k es] jktLFkku yksd lsok vk;ksx ds i= la0 ,Q 5�15� tu Mh0ih0lh0 A 68 244 fnukad 8&7&71 }kjk vuqeksnu izkIr gksus ij mudh izFke vLFkk;h fo;qfDr dks fu;eu djrs gq, mUgs ofj"B ''kks/k lgk;d in ij fu;qDr fd;k tkrk gSA

jkT;iky dh vksj ls

i0

�txUukFkflag esgrk�

According to the petitioner, therefore, respondent Shri Manatra had no valid title to hold the post of Senior Research Assitant both when he was first appointed in temporary capacity of till the rules came to be made or hereafter in accordance with the rules. By way of parethesis I may add here that when the writ petition was first filed in 1958 the petitioner had challenged the first appointment of Shri Manaria as well as his continuance on the post of Senior Research Assistant, but subsequently when the respondents produced certain orders as well as pleaded certain amendments in the Rules the petitioner amended his writ petition with the leave of the Court and it is the amended writ petition that I am dealing with.

The writ petition has been opposed by the Director as well as Shri Manaria. They denied that the first appointment of Shri Manaria in temporary capacity was in alid or that subsequently there was no order for continuing Shri Manaria on the post. It is also denied that the Screening Committee was not properly constituted for the reason that there was no Director in the Oriental Research Department. The respondents look the stand that with the merger of the Institute with the Directorate of Sanskrit Education, the Director of Sanskrit Education ipso facto became the Director of Oriental Research, as by the mercer the identity of the Oriental Research was not lost altogether. It is farther pointed out that by virtue of proviso (c) to Rule 6 of the Rulte, Shri Manaria continued as Senior Research Assistant and thereafter he was validly appointed on the recommendation of the Screening Committee 1 may first deal with the various orders in the light of which the matter falte to be censiderd and may then notice the relevant rules.

I have already reproduced the first order of appointment of Shri Manaria as also the last order of his appointment dated 19-7-71 made on the recommendations of the Screening Committee. Order Ex 4/1 deted 23.5.61 contains the Governor''s sanction to the creation of the post of Senior Research Assistant and other posts in the Department of Oriental Research. I may read this order, as it will have to be considered whether Shri Manaria fulfilled the qualification:

Government of Rajasthan Education (C) Department

ORDER

No. F.2(19) Edu/C/61/Cr.1. Dated Jaipur, 23rd May/61. Sub : Creation of posts. The Governor has been pleased to accord sanction to the creation of the following posts faom 1st March 1961 or from the date the Dew posts are filled in whichever is later in the pay scale noted against them with the usual allowances in connection with the following schemes to be run under the Rajasthan Oriental Research Institute Jodhpur upto end of February, 1962.

S No. Name of Scheme No. of posts Remarks 1. Scheme for preservation and publication of rare manuscripts of national importance lying in the Bhandan of Jain Templet at Jaisalmer

i) Research Atttt (Senior i) Tnta grades (260-15 400 EB-25. 600) will be admissible to parsons possessing qualification as 2nd ii) Claw IV servants (25-1-40) Class M.A. in History with papers in ancient of Medieval Indian History having. Hindi in B.A. or with research experience to be given preference

Other combined Schemes for Surveyd Purchase sod Preservation of Mas. Research in old Rnjas- thani Literature etc

i) Research Asstt (Senior This grade will be (250 16 430-EB 25-600) admissible to persons possessing qualification ii) Surveyors as 2nd class MA in (150-10 220EB 10-12 1/2 History with paper in 300) Ancient or Medieval iii) Copyists (90-5-130) Indian History. Hindi iv) Class IV servants in B.A. of with rese- (25-1-40) arch experience to be given preference.

Note: The posts of 8 Surveyors & 8 Class IV servants are for branch Offices at Jaipur, Chitter, Bikaner & Sirohi (Abu) Udaipur, Kotah, Tonk, Alwar, and will be filled when the number of manuscripts collected at each of the above places reaches 5,000.

The expenditure will be charged to the head 37 Education-D Surb-VI(ii) Rajasthan Oriental Research Institute and 56--Printing & Stationary (Plan exp) respectively.

This issues with the concurrence of F.D. vide. U.O.I.D 2180 FD dated 10-5 61.

By order,

Asst. Secretary to Govt.

By order dated 5-3-62 the above order was modified. The qualifications prescribea for the post of Senior Research Assistant under Scheme No. 1 were modified and it was provided that the qualification would be M.A. Second Cass in Sansk it, Hindi or both with three vears experience of work in a Research Institute, or Acharya Jaipur, Benaras) and B.A. with experience as above - Further egarding the qualifications against item (ii) in Order Ex.4/1, the word ''preferably" was to be inserted between the word ''History'' and "with in the fourth line of the paragraph of qualifications of Research Assistant under Scheme No. II namely, other combined Schemes for Survey'' Purchase and Preservation of miscellaneous research in old Rajasthan Literature. The amendment was made with the concurrence of the Finance Department. Therefore, as a result of this modification the qualifications stood as Second Class M.A. in History preferably with papers in ancient or medieval Indian History. In other wordas, the requirement of having a paper in ancient and medieval History no longer remained a necessary qualification though it would be a matter for preference By order dated 27-7-62 (Ex.A/7) the Governor sanctioned the payment of salary on provisional basis upto 30.6.62 to Shri Manaria and others who were appointed temporarily By orders Ex. A/8, Ex A/9 Ex. A/10, Ex A/11. Ex A/12, Ex A/13, Ex A/14, Ex A/15. Ex A/16, Ex A/19, Ex A/20, Ex.A/21, Ex. A22, Ex A/23, Ex A/24, Ex A/25 and Ex A/26 sanction for payment of salary was accorded from time to time. I may read the last order Ex.A/26.

funs''kkuqlkj Hkstk gS fd jktLFkku izkP; fo|k izfr"Bku tks/kiqj ds fuEufyf[kr vf/kdkjh;ks dks fnukad 1&1&1971 ls 30-6-1971 rd vufUre vk/kkj ij osru dh Lohd`fr iznku dh tkrh gS%

1-Jh ine/kj ikBd] ofj"B ''kks/k lgk;d

2-Jh vksadkjyky eukfj;k] ofj"B ''kks/k lgk;d

3-Jh y{ehukjk;.k xksLokeh] ofj"B ''kks/k lgk;d

;g izekf.kr fd;k tkrk gS fd Jh y{ehukjk;.k xksLokeh dks lniZ :i ls foHkkxh; inksUufr lfefr dh cSBd gksus rd fu;fer i)fr ls Bhd uhps Js.kh ls inksUufr fd;k x;k gS A

;g Hkh izekf.kr fd;k tkrk gS fd Jh ine/kj ikBd o Jh vksdkj yky eSukfj;k dh lh/kh HkrhZ nokj rnFkZ :i ls fu;qfDr dh xbZ Fkh vksSj mudk in jktLFkku yksd lsok vk;skx }kjk gh Hkjk tkukA lsok fu;eks ds vuqlkj vc bu vf/kdkjh;ks dh lgk;rk ds lEcU/k es inksUufr lfefr }kjk Ldzhfux fd;k tkdj lfefr dh flQkfj''k yksd lsok vk;skx dks Hksth tk pqdh gSA

;g Lohd`fr foRr foHkkx �O;;&fu;e� 65] fnukad 7&7&70 rFkk Jh ikBd o eSufj;k ds laca/k es muds vuqeksnu la0 2864 fn 23@25&9&70 2 ds vk/kkj ij tkjh dh xbZ gS^^A

It is mentioned in the above order that Shri Manaria had already been selected by the Screening Committee and his case has to be sent to the Public Service Commission. As regards the merger of the Directorate of Oriental Research with the Directorate of Sanskrit Education as also for the abolition of the post of Direct r the Government passed the order Ex. M on 24-3-70 This order runs as follows:

F.7(17) Edu/Cell-I/69

Government of Rajasthan

Education (Cell-I) Department

Dated Jaipur, the 24th March, 1970

ORDER

Sub : Economy in expenditure 1969-70 measures,

In order to effect economy in expenditure, the Governor has been pleased to order that the posts noted against the various Departments be abolished with immediate effect.

Nama of Deptt Name of Post and Scale No. of Pests abolished

The Directorate of Raj OR. I., Jodhpur ic aholisoed and merged with the Directorate of Sanskrit Education. The office of the Institute will continue at Jodhpur and the Dy Diractor will work under the Director of Sanskrit Education

Rajasthatt (i) Director (26) one Director Oriental (ii) Four sub-office at Tonk, Chittorgarh, Institute Alwar & Kota are to be closed and records Iying there be shifted to the offices at Udaipur and Jaipur (a) Surveyots (13) Four (b) Class IV servants (1) Four As a result of abolition of the above noted posts the incumbents working against them who are in permanent employment may be reverted to their substantive posts and temporory ones may be declared surplus and action taken in accordance with the Absorption Rules.

A new unit under the name of "State Council of Educational Research Training" will be formed under the Director of State Institute of Education at Udaipur. The remaining staff of the existing four units will be transferred to this unit.

The officer staff brought under reduction will hand over charge to their next aubordinate available.

Necessary orders may please be issued immediately from your department for posting / declaring surplus etc. under intimation to this Department. The B Es. 1970-71 have already been finalised. It is, therefore, requested that the actual economy likely to be affected under each bead may also please be intimated immediately to this Department in the proforma enclosed.

The issues with the concurrence of the Finance Department vide their No. ID.746/FU(Ex-I)/70 dated 10-3-70.

Sd/-

Secretary to the Govt.

I may here make a mention of the fact that the Government passed an order 29-3-73 (Ex.C/1) ordering that the order Ex A/2 shall be deemed to have come into force with effect from 23-5-61, that is when the order Ex A/1 was passed. On 29-3-73, Government passed another order by which they made centarn additions to the order dated 24-3-70 (Ex M), this order runs as follow:

Government of Rajasthan

Education (Group IV) Department

No. F.6(3) Edu-4/67 Dated 29th March, 1973, ADENDA

The following may be added to in the last Para of item No. a1 of order No. F.7(17) Edu/Cell-I/69 dated the 24th March, 1970:

The Director of Sanskrit Education will perform the duties of the Director, Rajasthan Oriental Research Institute, Rajasthan till the post of Director. Rajasthan Oriental Research Institute, is revived and filled up.''''

The above addition shall be deemed to have come into force with effect from 24th March, 1970.

By order of the Governor

Sd/-

(Mohinder Singh)

Commissioner & Secretary to Govt.

Now I may turn to the Rules. To start with I any notice that when the respondent Shri Manaria was first appointed there were no statutory rules and the matter was dealt with Under executive orders of the Government. Rule 2 is the definition clause and I may here notice the (sic) of the term "Director", as it will have to be considered in dealing with the composition of the Selection Committee. The term "Director" means the Director, Oriental Rescarch Institute, Rajasthan. Part II of the Rules deals with the Cadre. Rule 4 thereunder provides that the nature of posts included in each category of the service shall be as specified in column 2 of the Schedule and further the strength of posts in each, category shall be such, as may be determined by the Government, from time to time, provided that Government may (a) create any post, permanent or temporary, from time to time, as may be found necessary; and (b) 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 be any compensation. Rule 5 is about the Initial Constitution of the Service and this I may read in full:

Rule 5 Initial Constitution of the Service : The service shall consist of:

(a) persons holding substantively the posts specified in the Schedule ;

(b) persona recruited to the service before the commencement of these rules ; and

(c) persons recruited to the Service in accordance with the provisions of these rules.

Rule 6 is about the methods of recruitment and as the proviso (c) which was subsequently inserted in 1968 falls to be considered, I may read Rule 6 including all the three provisos:

Rule 6. Methods of Recruitment : Recruitment to the Service after the commencement of these rules shall be by the following methods, namely:

(1) direct recruitment in accordance with Part IV of these rule ; and

(2) promotion in accordance with Part V of these rules ; Provided:

(a) that if Government is satisfied, in consultation with the Commission, that suitable persons are not available for appointment by other method of recruitment in a particular year, appointment by the other method in relaxation of the prescribed proportion, may be made in the same manner as specified in these rules; NOTE- The proviso (a) shall no, apply to the post of Director, Rajatshan Oriental Research Institute, Rajasthan.

(b) that nothing in these rules shall preclude Government from appointing officers, previously in the employment of pre-reorganisation State of Ajmer, Bombay and Madhya Bharat to suitable posts in the Schedule in accordance with the rules governing the integration of their service.

(c) That persons who have for a period of one year as on 11 1963 continuously hold the post in relevant groups included in the Service in an ad hoc, officiating/temporary capacity shall be screened by a Committee referred to in Rule 24(2)(a) of these rules for their suitability to be appointed to :

(1) posts hold in the above capacity on 1.1963 or any other equivalent posts or lower posts if the incumbent desires to be selected for such lower posts.

(2) for the purpose of such selection, these persons may be required to possess the qualifications prescribed in the rules for either direct recruitment of promotions or the prescribed qualifications on the basis of which these persons were selected for ad hoc, officiating/temporary appointment.

Rule 11 prescribes academic qualifications and experience for a candidate for direct recruitment to the posts specified in the Schedule. It is mentioned therein that the candidate shall possess the prescribed qualifications given in column 4 of the Schedule and working knowledge of Hindi written in Devnagri script and one of Rajasthani dialects Direct recruitment is through the Public Service Commission Part v deals with the procedure for recruitment by promotion. I may read Rule 24, as the selection committee contemplated under Rule 6(c) has to proceed in the manner laid down by Rule 24 :

Rule 24: Procedure for selection (1) As soon as it is decided that a certain number of posts shall be filled by promotion, the Director shall prepare (sic) and complete list containing names not exceeding five times the number of vacancies out of the sen or most officer as may mentioned in (sic) 5 of the Schedule who are qualified under the rules for promot on to the class of posts concerned. He shall forward this list along with their Confidential Rolls and Personal Files to the Secretery to the Government in the Education Department.

(2)(a) A Committee (sic) of the Chairman of the Commission or when the Chairman is unable to attend, any other member thereof nominated by him, the Secretary to the Government in the Education Department and the Special Secretary to the Government in the Appointments Department or his representative not b low the rank of Deputy Secretary, the Director as members and the Deputy Secretary to Government in the Education Department as Non Member Secretary, shall consider the cases of all persons included in the list, interviewing such of them as they may deem necessary and shall prepare a list containing names of suitable candidates upto twice the number of such posts as are indicated in Sub-rule (1). In the case of promotion to the post of Director, he shall not be the member of the Committee.

(b The Chairman or the Member of the Commission shall preside at all meetings of the Committee at which he is present.

(3) The Committee shall prepare a separate list contarning names of persons who may be selected to fill officiating vacancies already existing or are likely to occur till the next meeting of the Committee.

(a) the list so prepared shall be reviewed and revised every year ;

(b) the list shall ordinarily be in force until it is reviewed or revised in accordance with Clause (a) of Sub-rule (3).

(4) The Committee may co-opt a suitable expert from outside to assist the Committee for selection of candidates for such posts as are to be filled by promotion

(5) The names of the candidates selected as suitable, shall he arranged in the order of seniority

(6) The list prepared by the Committee shall be sent to Government together with the Confidential Rolls and Personal Files of the candidates included in them as also of those superseded, if any.

(7) Where consultation with the Commission is necessary the lists prepared in accordance with Sub-rule (2) and (3) shall be forwarded to the Commission by the Government along with (a) Confidential Rolls and Personal Files of ail officers whose names are included in the lists (b) Confidential Rolls and personal files of all officers who are proposed to be superseded by the recommendations made by the Committee. The Commission shall consider the list prepared by the Committee along with the other documents received from Government and unless they consider any changes necessary, shall approve the lists and it the Commission shall consider it necessary to make any change in the list received from the Government, the Commission shall inform the Government of the changes proposed and after taking into account the comments, if any, Government may approve the lists finally, with such modifications, as may, in their opinion, be just and proper.

Rule 28 is for temporary or officiating appointments and this I may read :

Rule 28. Temporary or officiating appointment:

(1) A temporary vacancy in a senior post may be filled by Government by appointing thereto in an officiating capacity an officer whose name is included in the list prepared under Rule 20 or in the list prepared under Rules 24 and 25:

Provided that, till the preparation of the first list or in case in the list is exhausted, a vacant post may be filled by Government by appointing thereto, a member of the Service eligible for appointment to the post by promotion or by appointing thereto, temporarily a person eligible for appointment by direct recruitment to the Service under the previsions of these rules, but no such appointment made shall be continued beyond a period of six months without referring it to the Commission for their concurrence and shall be terminated immediately on their refusal to concur.

There are two categories of posts namely, senior posts and junior posts as per the Schedule. Since the question as to whether there was a Director of Oriental Research who could sit on the Selection Committee has arisen for consideration, I may notice that the post of Director is a senior post and is 100% by election. There are posts of Deputy Directors which are also senior posts. Senior Research Assistants are shown under the junior posts; these posts are to be filled up 50% by direct recruitment and 50% by promotion. The qualifications prescribed which are dealt with in column 4 of the schedule are as follows:

Second Class Master''s degree in (a) Sanskrit or (b) (sic) (c) Prakarit or (d) Persian or (e) Hindi or History "preferably" with special papers in ancient and Medieval Indian History from a University established by law in India or a degree of a foreign University recognised as equivalent thereto.

Preference will be given to persons with (1) working knowledge of Rajasthani language and literature and (2) experience in a research institute and/or study of old manuscripts.

It may be observed that the word ''preferably'', which is put in inverted commas, was added subsequently. It is in the light of the above that the validity of the appointment of respondent Shri Manaria talls to be determined.

Before proceeding further I may deal with certain preliminary objections that were raised by learned counsel for Shri Manaria. In the first instance, he submitted that this was a petty post not being an independent one and, therefore, a writ of quo warranto should not be issued, secondly, the writ petition has been filed after considerable delay; the first appointment of Shri Manaria being of the year 1960, thirdly, the State was not made a party to the writ petition & therefore, the writ petition is (sic), and lastly, irrespective of the validity or otherwise of the earlier orders at present Shri Manaria is functioning as Senior Research Assistant on account of a valid order. The fourth preliminary objection has a bearing on the merits and, therefore, strictly speaking it is not a preliminary objection As regards the first objection learned counsel placed reliance on the following passage at page 147 of the Halsbury''s Laws of England, Third Edition, Volume 2 :

Substantive nature of office : An information is the nature of quo warranto lay only if the office was substantive in character, that is, an office independent in title, and if the holder of the office was an independent official, not one discharging the functions of a deputy or servant at the will and pleasure of others. An information in the nature of a quo warranto lay in respect of an office held at plea-sure, provided the office was one of a public and substantive character.

He further cited AIR 1952 330 (Nagpur) The appointment, however, that fell to be considered in the AIR 1952 330 (Nagpur) was of Shri T L. Shevde, a retired Judge of the High Court who was subsequently appointed as Advocate General The Office held by Shri Shevde was, by no means, one of petty nature. The passages do pot disclose that any office created by a statute came up for consideration The Rajasthan Oriental Research Institute came to be constituted by The Rules. The post of Senior Research Assistant is, of course, a junior post, but it is include in the Service. According in the Scheduh the posts are to be filled up 50% by direct recruitmept and 50% by promotion One has to be a Second Class M A. in (a) Sanskrit or (b) Pallor (c) Prakarit or (d) Persian or (e) Hindi or History preferably with special papers in Ancient and (sic) Indian History from a University established by law in India or a degree of a foreign University, recognised as equivalent thereto I am unable to hold that such a post governed by the statute is not of a substantive character or that it is not an office independept in character. Further it cannot be said that the (sic) is a servant at, the will and pleasure of others. In my view, therefore, holder of such a post is amenable to a writ of quo warranto.

It is true, the initial appointment of the petitioner was made in 1961 & thereafter he was continuing on the basis of fresh orders passed from time to time. Then he has been (sic) with according to the rules and orders of his appointment were passed during the pendency of the writ petition. The writ petition was allowed to be amended by the Court so as to bring in the orders passed in 1971. In such a case, therefore, the writ petition cannot be thrown away on the ground of delay. The writ of quo warranto is directed primarily at the holder of the post and, therefore, though the State would be a proper party, by no means, can it be predicated that it is a necessary party in the writ petition. Therefore, I over rule all the three preliminary objections.

Now turning to the merits the case falls to be examined in two compartments: firstly, for the period preceding the rules when the matter was governed by executive orders and then secondly, the position has to be examined for the period after the commencement of the Rules. Learned counsel for the petitioner contended that after the first order of appointment, reproduced already, there was no valid order for appointing the petitioner as Senior Research Assistant I have already referred to the series of orders passed by the Governor from time to time right from Ex A/7 to Ex A/26 Learned counsel for the petitioner contends that thereby the period of petitioner''s appointment was not extended though sanction was accorded to the payment of salary to him I a n afraid, this is toomarrow an interpretation of these orders It appears that to start with the (sic) in connection with which some posts were created was thought to be of (sic) direction and that is why it became necessary to obtain the (sic) for of the Governor to the payment of salary to the staff including the respondent Shri Manaria However, it is clearly implied that the appointments were (sic) from time to time. It is inconceivade that salary will be paid to (sic) not (sic) in service. I am, therefore, of the opinion that the respondent Shri Manaria was continued in temporary service by Government orders passed from time to time Learned counsel for the petitioner then raised the objection that Shri Manaria was not fulfilling the prescribed qualifications for the post of Sea or Research Assistant Ex. A/1 is the order by which the posts were created and the qualifications for the holder of the post were laid down therein. The qualifications were modified, as already noticed, vide Ex. Al'' and this order Ex A/2 was made retrospective by an order Ex A/1 dated 29-3-73. The argument of the learned counsel for the petitioner is that by an executive order the Government could not have changed the qualifications for the holders of the post with retrospective effect. The further argument by was of corollary from this, that the learned counsel advanced, was that the respondent Shri Manaria who was thus not qualified to hold the post at the time he was appointed could not be said to have continuously held the post for a period of one year preceding 1.1.63, the date mentioned in proviso (c) to Rule 6 of the Rules. I need not enter into this question whether an administrative order could be amended with retrospective effect or not on account of the view that I am taking regarding the meaning of proviso (c) to Rule 6 of the Rules However, I may begin by referring to Rule 5 once again (sic) Constitution of the service is dealt with by this rule which shall consist of (a) persons holding substantively the posts specified in the Schedule, (b) persons recruited to the service before (sic) commencement of these rules, and (c) persons recruited to the Service in accordance with the provisions of these rules. The first category of persons automatically become substantive in the service. The (sic) category of persons are those who are either recruited by direct recruitment or by promotion on lower posts according to the procedure laid down in the Rules. The second category consists of persons who were recruited to the service before the commencement of the Rules, but were not substantive on those posts. It is the second category of persons who are dealt with by proviso (c) to Rule 6 Persons who have held the posts included in the service from 1.1 63 continuously for a period of one year on an ad hoc, officiating or temporary capacity shall be screened by a committee referred to in Rule 24(2)(a) of the Rules for their suitability. They shall be considered for appointment to posts held by them or any other equivalent post, but an incumbent could be considered for a lower post as well, it he desires to be selected for such post Now, was it really intended that the incumbent should have fu filled all the qualif cations prescribed for appointment when he wars first appointed before (sic) Clause (2) of proviso (c), in my view clinches the issue. As regards the qualifications the words used are "may be required to possess the qualifications prescribed in the rules for either direct (sic) for promotions or the prescribed qualifications on the basis of which these persons were selected for ad hoc, officiating or temporary appointment. This clearly (sic) that it a certaintincumbent who has put in the reqursite length of service was not possessing any of the prescribed qualifications then he was reqoired to possess those qualifications. This means that some reasonable time was to be allowed to him to acquire the necessary qualifications, (sic) he did not already pos ess, them. The necessary qualifications may be any of the three namely, (1) those prescribed for candidates for direct recruitment. (2) those prescribed for persons to be promoted and (3) those prescribed for ad hog, officiating or temporary appointments. Therefore, in the light of what is contemplated by Clause (2) of proviso (c) it means that the person concerned must have held the post on 1-1-63 for a period of one year or more Once he had held the post on the crucial date and had acquired the qualifications by the time he came to be sereened by the Selection Committee then it cannot be said that the incumtent did not fulfil the qualifications prescribed for appointment, In this view of the import of proviso (c) to Rule 6, I should think that I am relleved of considering the broad question argued before me whether eligibility or qualifications laid down by an executive order can be revised by a subsequent executive order with retrospective effect A provision analogous to proviso (c) to Rule 6 does not find place in many of the other service rules governing integration or fixation of personnel on the making of the statutory rules for the service. The rule making authority has made the provision flexible with a view to taking in any persons who made may not have strictly fulfilled the prescribed qualifications in the beginning though they may have acquired them by the time they came to be screened by a Selection Cominittee. Therefore, respondent Shri Manaria was entitled to hold the post he was holding at the commencement of the rules till his screening by as Selection Committee under Rule 24 of the Rules. Here (sic) the question whether Shri Manaria was screened by a duly constituted Selection Committee. Learned counsel for the petitioner urges that Shri Sita Sahai, Director of Sanskrit Education, who sat on the Committee, was not the Director, Oriental Research Institute, Rajasthan, and therefore, the Committee was not properly constituted. Learned counsel for the respondent endeavourer to draw support from the terms of order Ex. M already extracted. He submitted that the Directorate of Rajasthan Oriental Research was not altogether abolished, but it was merged with the Directorate of Sanskrit Education with the result that the Director of Sanskrit Education could exercise the functions of the Director, Oriental Research Institute for all purposes, I am unable to agree. Not only the Directorate orate of Oriental Research was merged with the Directorate of Sanskrit Education, but according to the order Ex M. the post of Director, Oriental Research Institute was abolised. Rule 4 of the Rules empowered the State Government. to abolish any permanent or temporary post or leave it unfilled or hold it in abeyance The pointed question before me is whether the statutory functions of the Director of Oriental Research Institute could be exercised by the Director, Sanskrit Education. The term ''Director'' is defined in the Rules as the Director, Oriental Research Institute and this post had been abolished. Apart from everything the rules lay down the procedure for filling the post of a Director, Oriental Research Institute It is a senior post and appointment to this post is by selection vide Rule 55 of the Rules and item I of the Schedule shows that the post is 100% by selection. There is no provision in the Rules for appointing anyone by transfer as Director, Oriental Research Institute. In other words, a Director can be appointed by direct recruitment only. That being so, the Director, Sanskrit Education could not have exercised the statutory functions of the Director, Oriental Research Institute under the rules

Now, if Shri Sita Sahai had not sat on the Selection Committee, the consideration for examining the validity of the selection could have been on the footing that out of several members of the Committee a post held by one of the members being abolished and there being no person as Director for the time being, the other members could have functioned as the Selection Committee, but in the present case Shri Sita Sahai who was not the Director, Oriental Research for the purposes of the rules and was thus not a member of the Selection Committee, had sat on that Committee along with others. Therefore, the Selection Committee, in my view, was not properly constituted and its proceedings were null and void.

12 In the result, therefore, I hold : (1) that Shri Manaria is entitled to continue as Senior Research Assistant on ad hoc basis in accordance with proviso (c) to Rule 6 of the Rules till he is screened by a properly constituted Selection Committee under Rule 24 of the Rules (2) order of the substantive appointment in pursuance of the recommendations of the so-called Selection Committee which included Shri Sita Sahai was of no effect and has to be set aside.

Accordingly, I allow the writ petition in part and quash the order of appointment of Shri Manaria dated 19.7.71 for substantively appointing him as Senior Research Assistant, but I decline to issue any writ in the nature of quo warranto and hold that he will be entitled to continue as Senior Research Assistant till he is screened by a properly constituted Selection Committee in accordance with Rule 24 of the Rules.

The parties are left to bear their own costs.