Surendra Kumar Bhandari vs The State of Rajasthan and Others

D.P. Gupta, J.—The petitioner was appointed as an Upper Division Clerk in the Secretariat in the former State of Mawar prior to April 7, 1949. After the (sic) of the erstwhile State of Mewar to form the State of Rajasthan the petitioner was absorbed as a Lower Division Clerk, However, he was promoted at an Upper Division Clerk with effect from July 21, 1954 and was later confirmed as such by the order dated July 15, 1956. A seniority list of Ministerial Staff of the Secretariat, including Upper Division Clerks as on October, 1963 was published by the State Government on October 23/24, 1963. The petitioner''s name appeared at No 99 in the aforesaid seniority list.

The petitioner was thereafter promoted as an Assistant in the Secretariat on ad-hoc basis by the order dated June 30, 1967. In May, 1970 a Departmental Promotion Committed was constituted under Rule 25 of the Rajasthan Sceretarial Ministrial Staff Rules, 1970 (hereinafter referred to as ''the 1970 Rules'') and the said Committee selected respondents Nos. 4 to 44 for promotion to the posts of Assistants in a substantive capacity. The very same Committee selected the petitioner for promotion to the post of an Assistant in an officiating capacity in accordance with the provisions of Sub-rule (4) of Rule 25 of the 1970 Rules The State Government accepted the recommendation of the Departmental Promotion Cammittee and on May 12, 1970 three orders were issued by the Sate Government By one of such orders respondents Nos. 4 to 35 and 43 and 44 were promoted as Assistants in a substantive capacity with immediate effect. By a second order issued on the same day, respondents Nos. 36 to 38 were promoted as Assistants in a provisional substantive capacity and by a third order issued on that very day, 15 persons including the petitioner were promoted as Assistants in an officiating capacity. By a subsequent order dated June 5, 1970, in accordance with the recommendation of the same Departmental Promotion Committee, respondent Nos. 39 to 42 were also promoted as Assistants (sic) a provisional substantive capacity. The respondents Nos. 4 to 28 and 43 and 44 were promoted on the posts of Assistants on the basis of seniority-cum-merit, while the respondents Nos. 29 to 42 were promoted as Assistants on the basis of merit, It is not disputed by the petitioner that respondents Nos. 4 to 28 as well as Nos. 29 to 31 and 43 and 44 were senior to him in the category of substantive Upper division Clarks, in accordance with the seniority list dated October 23/24 1963 (Ex. 1).

The writ petition was amended in the year 1971 with the permission of the Court and the amended writ petition was filed by the petitioner on March 18, 1971. Subsequently, the name of respondent No. 43 was struck off, on the (sic) petitioner as he had retired from service The respondents have stated in their reply that the petitioner has since been promoted to the post of Section Officer, which is a higher post than that of an Assistant. Learned Deputy Government Advocate has today submitted copies of two orders showing that the petitioner was promoted as a Section Officer in an ad-hoc capacity by the order of the State Government dated July 28, 1971 and he joined the aforesaid post on the next day and further that thereafter the Departmental Promotion Committee, constituted under Rule 25 of the 1970 Rules, selected the petitioner for promotion the post of a Section Officer and as a result thereof, by the order of the State Government dated January 7, 1974 the petitioner was promoted as a Section Officer in a substantive capacity on seniority cum merit basis with immediate effect. In view of the aforesaid facts, it appears that the petitioner must have been made substantive on the post of an Assistant, prior to his further promotion on the post of a Section Officer in a substantive capacity. However, the petitioner has not cared to disclose this fact in the writ petition inspite of his obtaining permission of this Court to amend the same. As the petitioner has already been promoted to the post of a Section Officer in a substantive capacity by the order of the State Government dated January 7, 1974, it does not appear that any grievance subsists to the petitioner now, because the post of a Section Officer is the senior most post specified in group ''A'' of Scheduled of the 1970 Rules.

As regards the merits of the case, learned Counsel for the petitioner made three submissions before me. His first submission was that prior to the promulgation of the 1970 Rules, the ministerial posts in the Rajasthan Secretariat were governed by the Rajasthan Secretariat Ministerial Service Rules, 1956 (hereinafter called ''the 1956 Rules'') & that in accordance with Rule 9 of the said Rules vacancies on the posts of Assistants should have been determined period wise and that thereafter selection selection have been made under Sub-rule (2) of Rule 25, in respect of 50% of such vacancies by selection Learned Counsel submitted the appointments sere made on the posts of Assistants under Sub-rule (1) of Rule 25 by promotion on the basis of seniority cum-merit but no appointments were made during the period from 1956 to 1969 under the selection quota, which was 50% of the total number of vacancies existing in any period, as provided in Sub-rule (2) of Rule 25 of 1956 Rules. However, a proviso was added to the aforsaid surb-rule (2) of Rule 25 which provided that the provisions of the aforesaid Sub-rule (2) for filling up 50% of the vacancies by selection through a departmental examination or an examination conducted through the Rajasthan Public Service Commission would remain suspended during the period from 1959 to December 31, 1966 The case of the petitioner is that from 1956 to 1965, 24 parsons were appointed as (sic) Assistants by promotion and as such an equal number of parsons should have been appointed to the posts of Assistants by selection under Sub-rule (2) of Rule 25 of the 1956 Rules. The State Government in its reply has stated that by the order dated September 18, 1953 three persons who were declared successful in the competitive examination held by the Rajasthan Public Service Commission, were appointed as Assistants in the merit quota and that thereafter from 1959 upto December 31, 1966 the provision regarding making of appointments on merit basis remained suspended. Thus the only question which survives in this respect is as to whether the State Government committed any illegality in not making any appointments on the merit basis during the period from 1966 to 1969. The petitioner has not stated that any substantive appointments were made during that period even by the promotion under Sub-rule (1) of Rule 25 and, therefore, no illegality appears to have been committed, if no appointments were made during that very period on the basis of merit. But then learned Counsel contended that she Appointing Authority failed to perform its duty in not determining the number of vacancies during the period from 1966 to 1969 under Rule 9 of the 1956 Rules. Rule 9 provides that Chief Secretary shall, subject to the provisions of the Rules and the directions of the Government, if any, determine, from time to time, the number of vacancies in such cadre anticipated during a particular period of recruitment and the number of persons likely to be recruited by each method. However, period of recruit merit has not teen specified and it has not been shown by the petitioner as to during which period the Chief Secretary tailed to determine the number of vacancies in accordance with Rule 9. Rule 9 allows the determination of number of vacancies from time to time and the petitioner''s own case is that the process of selection had actually started according to the 1956 Rules before they were repealed by the 1970 Rules As a matter of fact, the order of State Govt. dated March 7, 1970, reproduced by the petitioner in para 5, of the writ petition, shows that a departmental Promotion Comminute had been constituted under Rule 25 of the 1956 Rules for making selection for promotion of the ministerial staff in the Secretariat and a meeting of the Committee was called for on March 12, 1970 & the determination of vacancies must have been preceded the calling of a meeting of the Departmental Promotion Committee. Thus the grievance of the petitioner has no force, as the process of selection had already started but it appears that the same could not be completed, because the 1956 Rules were in the meanwhile repealed by the 1970 Rules with effect from May 5, 1970. It cannot, therefore, be contended that there was any violation of Rule 9 of the 1956 Rules in the present case.

The second submission made by the learned Counsel for the petitioner is that since the processes of selection started under the 1956 Rules, the same should have been completed and appointment ought to have been made on the basis of promotion and selection as envisaged under Rule 25 of the 1956 Rules and 50% of the vacancies should have been filled in by promotion, while 50% should have been filled in by selection. This contention of he learned Counsel has also no substance, inasmuch as although the process of promotion appears to have started at the time when the 1956 Rules were in force & by an older dated March 7, 1970 a meeting of the Departmental Promotion Committee was convened for March 12, 1970, yet it appears that the process could not be completed until the 1956 Rules were repealed by the 1970 Rules on May 5, 1970. Rule 38 of the 1970 Rules, while repealing the earlier Rules, provides that any action taken under the Rules so repealed shall be deemed to have been taken under the corresponding provisions of the 1970 Rules Rule 26 of the 1970 Rules provider that appointments on the posts of Upper Division Clerks and higher posts, including those of Assistants, shall be made by selection strictly on the basis of merit and by promotion on the basis of seniority-cum-merit in the proportion of the 1:2. Thus after the promulgation of the 1970 Rules, only one third of the vacancies could be filled in by selection on tee basis of merit, while two third of such vacancies were filled in by promotion on the basis of seniority-cum-merit By the order Ex. 4, Ex. 5 and Ex. 6, 41 persons were appointed on the poses of Assistants, out of which 27 appear to have been promoted on the basis of seniority-cum-merit, while the remaining 14 appear to have been selected on the bash of merit and such appointments are in consonance with the proportion fixed by Rule 21 of the 1970 Rules.

The third submission of the learned Counsel for the petitioner is that 16 more vacancies should have been anticipated during the year 1970-71 in accordance with the provisions of the 1970 Rules and out of them ten should have been filled in by promotion while 6 should have been filled in by selection and this would have been done, the petitioner stood a chance of being selected and appointed as Assistant on May 12, 1970. This submission of the learned Counsel is also without any substance Rule 8 of the 1970 Rules provides for determination of vacancies anticipated during the year and the number of persons likely to be recruited by each method and Sub-rule (k) of Rule 2 of the 1970 Rules defines the ''year'' as the financial year commencing from the first April every year. Thus the number of vacancies were to be determined for he period from April 1, 1970 to March 31, 1971. It is not disputed by the petitioner that 41 vacancies in the cadre of Assistants existed when the Departmental Promotion Committee met in May, 1970 and that the number of vacancies determined was also 41. However, learned Counsel contends that as 16 temporary posts of Assistants were converted into permanent ones by an order of the State Government dated December 23, 1970, such posts should have been anticipated for the purpose of making selections by the Departmental Promotion Committee, which met, in May, 1970. It may be mentioned here that although the matter of conversion of temporary posts into permanent ones was under consideration of the State Government for same time, yet on final decision had been taken by the Government and at any rate the actual number of temporary posts to be converted into permanent ones had not been worked out until the in the year I was only on December 23, 1970 that an order converting 16 temporary posts of Assistants into permanent posts came to be passed in view of these circumstances, it cannot be said that in March, 1970 or even in May, 1970 it could be anticipated or it could be said to be imminent at such time that a specified number of temporary posts of Assistants in the Secretariat would be converted into permanent posts within the financial year 1970. At least as the quantification of the temporary posts to be converted into permanent posts had not at all taken place, such posts could not then be anticipated Nobody could have foretold at the time when the Departmental Promotion Committee met in May, 1970 as to how many temporary posts of Assistants in the Secretariat would be converted into permanent posts and as to whether a final order in that respect would come to be passed by the Governor within the financial year 1970-71. It is, therefore, absolutely futile to suggest that 16 temporary posts, which ultimately came to be converted into permanent ones by the order dated December 23, 1970 could have been anticipated in the beginning of the financial year 1970-71, or even in May 1970, within the meaning of Rule 8 of the 1970 Rules.

No other argument was advanced by the learned Counsel for the petitioner before me.

The writ petition has, therefore, no substance and the same is dismissed. However, in the circumstances of the case, the parties are left to bear their own costs.