Jagdish Prasad vs State Of Rajasthan & Ors

State of Rajasthan & Ors. ... Respondents

J U D G M E N T

Swatanter Kumar J.

Leave granted.

These appeals are directed against the common

judgment of the High Court of Judicature of Rajasthan,

Jaipur Bench, at Jaipur dated 17th April, 2009 whereby the

High Court in substance upheld the order of the Rajasthan

Civil Services Appellate Tribunal, Jaipur (in short the

`Tribunal') dated 8th February,1999 and issued certain

further directions to the respondents to undertake fresh

2

exercise for promotion to the post of District Transport

Officer (in short the `DTO') from the post of Motor

Vehicle Inspectors. At the very outset we may refer to

the relevant part of the Division Bench judgment dealing

with the subject in question and issuing the directions

which reads as under:

"There cannot be any dispute and as has been decided by the Apex Court that clubbing of

vacancies could be made only for the purpose of direct recruitment. However, promotions have to be made on the basis of year wise determination of vacancies to the candidates eligible for the particular year who come in the zone of consideration for the particular year as also been referred above. In the present case, it appears that State Government had given a complete go-bye to the provisions of the relevant Rules and while clubbing the vacancies from 1983- 84 fill 1993-94, the promotions have been made accordingly. The clubbing of vacancies for more than 10 years have not only created complications so far as reservation of the posts as per relevant roster are concerned, but entire

3

procedure of zone of consideration for each hear have been disturbed. Merely deletion of the condition of qualifying examination in the year 1992 will not justify the action of the State government in clubbing all the vacancies of more than 10 years and give promotions to persons making a new zone of consideration and reservation also accordingly. On the face of it the whole action of the State Government cannot be sustained in the eyes of law. More so when it is also not a case of one time promotion which also require a special notification and amendment in the Rules.

Having considered entire facts and circumstances, since after due consideration proper discretion has been used by the learned Tribunal as also learned Single Judge, we find no ground for any further interference. The appellant State may now make a complete fresh exercise as per directions of the Tribunal as early as possible preferably within four months. It is further made clear that persons already promoted shall not be demoted till the exercise is made and fresh orders of promotions on the basis of yearwise determination of vacancies are passed. In case any person is not found suitable for the particular year and have already been given benefit of promotion, in case of reversion or change of year of promotion,

4

the salary already paid, may not be recovered, however, pay fixation has to be made accordingly. If any person has retired during the intervening period, his retiral benefits already paid on the basis of last pay drawn may also not be recovered except for revision of pension if required.

With the above observations and direction, the appeals are disposed of accordingly."

In order to examine the challenge to the impugned judgment

in its proper perspective, it will be useful for us to refer to

the basic facts giving rise to the present appeal. The

appellant

belongs

to a

Scheduled

Caste and

was

initially

appointed

as a

Motor

Vehicle Sub-Inspector vide order dated 23rd August, 1980. He was

confirmed in this post on 3rd May, 1983 whereafter, he was

promoted upon his satisfactory performance of his duties to the

post of Motor Vehicle Sub Inspector through Departmental

Promotion Committee (in short the `DPC') on the principle of

seniority-cum-merit vide order dated 20th January, 1987. He was

thereafter regularized in the said post on 15th October, 1988.

On 13th April, 1992, a notification was issued by the respondents

5

amending the Rajasthan Transport Service Rules, 1979 (in short

the `1979 Rules') (marked as annexure P-5 to the Petition). By

this amendment, Schedule 1 and Schedule 2 of the 1979 Rules to

the existing Rules were amended. The Notification read as

under:

"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 amendments with immediate effect in the Rajasthan Transport Service Rules, 1979m namely:

AMENDMENT

In the said rules:-

1. Amendment of Schedule-1:

1. the existing entries at item

2. occurring in column 6 against to S.No. 4 shall be deleted.

1. The existing Schedule II shall be deleted."

As is evident from the above Schedule, earlier the

candidates were required to pass the qualifying examination for

the post of District Transport Officer. However, by this

6

amendment, the said requirement was deleted under Schedule 1 and

syllabus for the same was deleted from Schedule 2. In other

words, promotion would be possible without holding the said

examination for the higher post.

On 27th May, 1994 a seniority list of Motor Vehicle

Inspectors was issued. On the basis of this seniority list, a

number of persons, including the appellant, were promoted to the

post of District Transport Officer vide order dated 8th July,

1994.

One Shri

Pooran

Singh,

respondent No.2 belonging to the General Category, who was

holding the post of Motor Vehicle Inspector in the Transport

Department, preferred an appeal before the Tribunal against the

order dated 8th July, 1994. According to him, he was senior to

the persons who were promoted by that order and this was a

supercession, contrary to the 1979 Rules. Therefore, it was to

be declared as illegal and unjustifiable. He also prayed for

consequential reliefs.

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Another contention raised before the Tribunal was that the State

of Rajasthan violated Rules 10 & 24 of the 1979 Rules and hence,

the exercise of the State was arbitrary and discriminatory. The

clubbing of the vacancies from the years 1983-84 to 1993-94 was

for the total 21 vacancies, which was improper as the

respondents were obliged to consider the vacancies in each given

year in terms of Rule 10. According to the challenge raised

before the Tribunal, out of the 17 promotees from the Motor

Vehicle

Inspector

cadre, 10

from

general

category

were

actually

senior to

Pooran

Singh but

the candidates at serial nos.12 to 17 belonging to the Scheduled

Castes, were junior to him. He was at serial No.23 of the

seniority list and as such was entitled to promotion in

preference to those candidates. The State filed a reply before

the Tribunal and stated that though the vacancies had been

determined year wise no one had passed the qualifying

examination and nobody had been found eligible for promotion

8

upto 1st April, 1994 as per Schedule II of the 1979 Rules.

Thereafter, for administrative reasons including the

representation made by Rajasthan Transport Inspector's Union,

the qualifying examination was done away with, as already

referred, and appointment/promotion to the post of DTO was made

simply by promotion. 21 vacancies became available and out of

that 4 persons have already been promoted, leaving a balance of

17 vacancies. Out of these 17 vacancies, 5 vacancies were

reserved

for

Scheduled

Castes, 3

for

Scheduled

Tribes

candidates and the remaining vacancies were clubbed and

promotions were made on the basis of seniority cum merit. The

detail of the yearwise vacancies are as follows:

Year

Vacancies

1983-84 2 1984-85 2 1985-86 1 1986-87 2 1987-88 2 9 1988-89 1 1989-90 1 1990-91 1 1991-92 2 1992-93 1 1993-94 2

It was further the case of the State that the vacancies have to

be carried forward from year to year and in want of eligible

candidates, vacancies could not be filled in accordance with

rules.

It was

further

urged by

the State

that the

vacancies

in the

post of

DTOs

could not be filled for want of eligible candidates and,

therefore, the vacancies were carried forward for consideration

to the subsequent years. It is also averred in the petition

that the High Court had passed a judgment on 7th April, 1997 in

SBCW No. 3423 of 1995 titled Hiral Lal Joshi v. State directing

that Review DPC be held with regard to vacancies for the year

1993-94 to 1996-97 and then the appointments were made, however,

averments with regard to supercession of Pooran Singh was

10

denied.

Vide order dated 8th February, 1999, the appeal filed by Pooran

Singh was set aside by the Tribunal, and the operative part of

the judgment reads as under:

"In the light of the above discussion, Annexure-6 dated 8.7.1994 is quashed and the State Government is directed to hold review DPC within two months to determine yearwise vacancies afresh. The State Government has already indicated yearwise vacancies in page 2 of its reply. The review DPC should be convened year

wise and the promotion be done on the basis of year wise vacancies only. Since the departmental examinations were not organized by State Government from time (sic) and then that provision was deleted therefore, no candidate for any particular year should be treated to be unqualified on account of not clearing the departmental examination. Ideally the notification dated 13.4.1992 should be amended retrospectively but even if it is not done so, the State Government cannot circumscribe or dilute the provision regarding "year-wise"

filling up of vacancies.

In the net result this appeal succeeds and is

11

accepted. The State Government would pay the cost to the Appellant which is determined at Rs.1000/-."

This order of the Tribunal dated 8th February, 1999 was

challenged by the State Government before the High Court. The

High Court vide its order dated 18th July, 2005 passed in Civil

Writ Petition No. 2111 of 1999, dismissed the Writ Petition and

maintained the direction to the State Government to hold review

DPC.

Another

writ

petition

was also

filed by

private

persons

being

Writ

Petition

No. 1025 of 1999 which was also dismissed vide order dated 23rd

July, 2008. It may be noticed here that reversion of Pooran

Singh-petitioner was stayed by an interim order. Later he sought

voluntary retirement and retired. However, appellant Jagdish

Prasad was promoted as Assistant Transport Commissioner vide

order dated 24th January, 2003.

Against the order passed by the learned Single Judge, as

afore-noticed, the appellant preferred an appeal before the

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Division Bench of that High Court. All these appeals came to be

dismissed by the Division Bench vide its order dated 17th April,

2009, the relevant portion of which has already been reproduced

above.

The judgment of the Division Bench is impugned in the

present appeal. Before we proceed to discuss the contentions in

relation to the factual matrix of the case, it will be useful to

examine the scheme of the 1979 Rules. The 1979 Rules had been

notified

vide

notification of December, 1979. In terms of Rule 2(e) of the

1979 Rules, `Direct Recruitment' means recruitment made in

accordance with Part IV of the 1979 Rules.

Rule 2(k) of the 1979 Rules contemplates that `Service' or

`Experience', wherever prescribed in these Rules, as a condition

for promotion from one service to another, or within the service

from one category to another, or to senior posts in the case of

a person holding a lower post eligible for promotion to higher

13

post, shall include the period for which the person has

continuously worked on such lower post after regular selection

in accordance with Rules promulgated under proviso to Article

309 of the Constitution of India.

Rule 7 of the 1979 Rules deals with Reservation of vacancies

for the Scheduled Castes and the Scheduled Tribes. Such

reservation has to be made in accordance with the orders of the

Government for such reservation in force at the time of

recruitment i.e. by direct recruitment and by promotion.

Furthermore Rule 7(4) of the 1979 Rules requires that

appointments shall be made strictly in accordance with the

rosters prescribed separately for direct recruitment and

promotion. In the event of non-availability of the eligible and

suitable candidates amongst the Scheduled Castes and the

Scheduled Tribes, as the case may be, in a particular year, the

vacancies so reserved for them shall be filled in accordance

14

with the normal procedure and an equivalent number of additional

vacancies shall be reserved in the subsequent year. Such of the

vacancies which remain so unfilled shall be carried forward to

the subsequent three recruitment years in total and thereafter

such reservation would lapse, provided that there shall be no

carry forward of the vacancies in the post or

class/category/group of posts in any cadre of service to which

promotions are made on the basis of both by merit and by

seniority-cum-merit under these Rules.

The proviso to Rule 7(4) of the 1979 Rules obviously restricts

the application of carry forward. How the vacancies are to be

determined has been specified in Rule 10 of the 1979 Rules and

the same reads as under:

"10. "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

15

vacancies occurring 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 overall 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 as 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."

Procedure for Direct recruitment is dealt with in Part -IV

of the 1979 Rules, which requires inviting of applications,

16

scrutiny of applications, recommendations of the Commission,

disqualifications for appointment and selection by the

Appointing Authority.

Part-V of the 1979 Rules deals with `Procedure for

Recruitment by Promotion' with which we are primarily concerned

in the present case.

Rule 24 of the 1979 Rules provides Criteria, Eligibility

and

Procedure

for

Promotion

to

Junior,

Senior

and other

posts

encadred

in the

Service.

It is not necessary for us to re-produce the entire Rule 24

of the 1979 Rules. It would suffice to refer to the relevant

part of the said Rule 24 of the 1979 Rules which is as follows:

"24. Criteria, Eligibility and Procedure for Promotion to Junior, Senior and other posts encadred in the service:- (1) As soon as the Appointing Authority determines the number of

17

vacancies under rule 10 and decides that a certain number of posts are required to be filled in by promotion, the Appointing Authority shall, subject to provisions of sub-rule (9), prepare a correct and complete list of the senior-most persons who are eligible and qualified under these Rules for promotion on the basis of seniority cum-merit or on the basis of merit to the class of posts concerned.

(2) The persons enumerated in Column 5 of Schedule-1 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.

XXX XXX XXX

(6)Selection for promotion to all other higher posts or higher categories of posts in the Service shall be made on the basis of merit and on the basis on seniority-cum-merit in the proportion of 50:50.

Provided that if the Committee is satisfied that suitable persons are not available for selection by promotion strictly on the basis of merit in a particular year, selection by promotion on the basis of seniority-cum-merit may be made in the

18

same manner as specified in these Rules.

XXX XXX XXX

(11) If in any subsequent year, after promulgation of these Rules, vacancies relating to any earlier year are determined under sub-rule (2) of rule relating to determination of vacancies which were required to be filled by promotion, the Departmental Promotion Committee shall consider the cases of all such persons who would have been eligible in the year to which the vacancies relate irrespective of the year in which the meeting of the Departmental Promotion Committee is held and such promotions shall be governed by the criteria and procedure for promotion as was applicable in

the particular year to which the vacancies relate and the service/experience of an incumbent who has been so promoted, for promotion to higher post for any period during which he has not actually performed the duties of the post to which he would have been promoted, shall be counted. The pay of a person who has been so promoted shall be re-fixed at the pay which he would have derived at the time of his promotion but no arrears of pay shall be allowed to him.

(11A) The Government or the Appointing Authority may order for the review of the proceedings of the D.P.C. held earlier on account of some mistake or error apparent on the face of record, or on account

19

of a factual error substantially affecting the decision of the D.P.C. or for any other sufficient reasons e.g. change in seniority, wrong determination of vacancies, judgment/direction of any Court or Tribunal, or where adverse entries in the Confidential Reports of an individual are expunged or toned down or a punishment inflicted on him is set aside or reduced. The concurrence of the Department of Personnel and the Commission (where Commission is associated) shall always be obtained before holding the meeting of the review D.P.C."

Schedule I of the 1979 Rules provided for Post, Sources of

recruitment, Qualification for Direct recruitment and Post from

which promotion is to be made. Clause 4 of Schedule I of the

1979 Rules deals with the Post of DTO which reads as under,

after amendment:

S N S Minimu P Q Remarks a o o ual . m m u s ifi N e r qualif t cat O c f ion o icatio f e r s s n for o and

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t direct m exp h o w eri recrui e f h enc p tment i e o r c for s e h pro t c p mot r r ion u o i m t o m t e i n o t n

w i t h

p e r c e n t a g e

i s t o b e m a d e 4 D 5 Degree M (i)Service i 0 in o rendered . s % Scienc t against the t e o post of Sales r b Commer r Tax Inspector

21

i y ce, v (i) or Inspector c Arts e 5 Excise and t d or h yea Taxation i Engine i rs' prior to T r ering c exp posting in r e from a l eri the Transport a c recogn e enc Department or n t ized I e Motor Vehicle s Univer n in Inspector p r sity s the shall count o e establ p pos in computing r c ished e t the period of t r by law c men 5 years' u in t tio service as O i India o ned Motor Vehicle f t f m i e c n e t r a n d

5 0 %

b y

p r o m o or r in Inspector. t declar Col (ii)Till i ed umn directly o equiva 5. recruited n lent + candidates theret (ii are not o by ) available the Del posts may be Govern ete filled up ment. d from amongst the Rajasthan Administrativ e officers or Officers of any other

22

State Service or Rajasthan Tehsildar Service.

As it is evident prior to the amendment, the expression used in

the Schedule was "in addition to the above must have passed

qualifying examination as prescribed in Schedule -II" This was

notified to be deleted from the Rules vide Notification dated 13

April, 1992. Consequentially, Schedule II of the 1979 Rules was

also

amended

and the

syllabus

provided

for this

qualifying examination was deleted in its entirety. If we

analyse the above Rules in their correct perspective, it becomes

evident that the Rules clearly postulate merit to be the

criterion for promotion to higher posts. The vacancies have to

be determined as per Rule 10 of the 1979 Rules, on the 1st April

of every year. If any fraction of vacancies is left over, after

the apportionment of vacancies in the manner prescribed, the

same shall be appointed through the quota of various methods

23

prescribed in continuous cyclic order, giving precedence to the

promotion quota. Appointing authority has to determine yearwise

vacancies of earlier years, which were required to be filled in

by promotion if such vacancies were not determined and filled

earlier in the year they were required to be filled in, in the

subsequent years. In other words, the emphasis of the language

of these rules is on yearly vacancies and they are required to

be filled in with reference to each particular year. The

vacancies

are

required

to be

determined and filled in as on 1st April of every year, for the

vacancies occurring during the financial year, in terms of Rule

10(1)(a). Under Rule 7(1), the requisite vacancies are to be

reserved for Scheduled Castes and Scheduled Tribes in accordance

with the order of the Government in force at the time of

recruitment that is by direct recruitment or by promotion.

These vacancies are to be filled by seniority-cum-merit and

merit. If the vacancies, for the reasons stated, remained

24

unfilled they can be carried forward only for a limited period

of three recruitment years in total, and thereafter such

reservation would lapse, in terms of Rule 7(4) of the 1979

Rules.

Another very important aspect of the Rules is that merit and

seniority-cum-merit are the only relevant criteria for promotion

to various posts. The language of Rule 24(1) of the 1979 Rules

does not allow for any ambiguity and clearly says that a list of

senior

most

persons,

who are

eligible

and

qualified

under the

1979

Rules,

will be

prepared and from that list, promotion on the basis of

seniority-cum-merit or on the basis of merit to the concerned

class of posts will be made. Rule 24(6) of the 1979 Rules

further postulates that all other higher posts or higher

categories of posts in the Service shall

be made on the basis of merit and on the basis on seniority-cum-

merit in the proportion of 50:50. If upon merit alone

25

candidates are not available then selection by promotion on the

basis of seniority cum merit may be made in the same manner as

is specified in the 1979 Rules. On reading of Rule 24 (6),

24(11) and 24 (11A) of the 1979 Rules conjointly, it is clear

that promotions have to be made by the DPC by the criteria and

procedure for promotion as applicable in that particular year,

to which the vacancies relate. The service experience of an

incumbent who has been so promoted, for promotion to higher

posts for

any

period

during

which he

has not

actually

performed

the

duties of

the post

to which he would have been promoted, shall be counted. It also

requires that pay of a person who has been so promoted shall be

re-fixed at the pay scale which he would have derived at the

time of his promotion, but no arrears of pay shall be allowed to

him. The Government or the appointing authority has the power

to order for the review of the proceedings of DPC held earlier

on account of some mistake apparent on the face of the record or

26

on account of substantial error affecting the decision of the

DPC or even for any other sufficient reason like change in

seniority, wrong determination of vacancies etc.

The first and the foremost question that arises for

consideration by this Court is whether merely by the amendment

to Schedule I and the deletion of Schedule II of the 1979 Rules

the effect of the statutory provisions like Rules 6,10, 24 of

the 1979 Rules read in their plain language would stand diluted.

Can it be

argued

that

amendment

to these

schedules

renders

the

statutory

provisions ineffective and inoperative?

It is a settled principle of law that the Schedule of the 1979

Rules has to be in conformity with, and is required to advance

the object of the primary statutory provision. Thus, a schedule

cannot in any way wipe out the statutory provisions of the Act

in effect and spirit. It is nobody's case, and in fact, nothing

has been brought to our notice, that Rules 6, 10, 11 and 24 of

the 1979 Rules have been subjected to any amendment by the

27

competent authority. Once these provisions stand in the statute

book, then respondents cannot escape from complying with them in

the appropriate manner and without defeating the object of these

Rules. We have already discussed the scheme of the Act, which

shows that the services of the Transport Department in all

relevant posts is covered under the provisions of the 1979 Rules

and their purpose is to make promotions on merit or merit-cum-

seniority. Their prescribed proportion of 50:50 has to be

maintained. When Schedule 1 of the 1979 Rules is read along

with the above indicated provisions, it is obvious that under

Clause 4 of Schedule 1 of the 1979 Rules, 50% posts of DTO are

to be filled up by direct recruitment and 50% posts by

promotion. Now, the question is how the 50% promotions are to

be filled up by the respondents. Rule 24(6) of the 1979 Rules

mandates that selection for promotion to all other higher posts

or higher categories of posts in the Service shall be made on

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the basis of merit and on the basis of seniority-cum-merit in

the proportion of 50:50. In other words, 50% vacancies are to

be filled up on the basis of merit while the remaining 50%

vacancies in the promotion quota are to be filled up by

seniority-cum-merit. The persons have to be within the

appropriate position in the seniority list before they can be

considered for promotion under the latter category. Eligibility

requirements have been specified under the 1979 Rules, which

candidates must satisfy to be considered under the seniority-

cum-merit category. The other persons who are to be promoted to

the post of DTO are on the basis of merit alone. Even if

Schedule II of the 1979 Rules does not exist, it is obligatory

on the part of the respondent to evolve a methodology to make

promotions purely on merit. Once the framers of the Rules have

intended to provide merit as the sole criteria of promotion, the

appointing authority is not vested with the jurisdiction to

29

waive the same or completely wipe out the same, on a flimsy

excuse such as the one proposed in the present case.

In light of this, we now come to the conduct of the Government

which we cannot but help to comment upon. Right from 1983-84

till 1993-94 no examination has been conducted by the

appropriate authority despite the fact that they also issued

notifications for holding exams on a few of these occasions. If

there was a representation from the Rajasthan Transport

Inspector's Union, it cannot be considered as a sufficient cause

or reason for not holding the examinations for more than ten

years and causing serious prejudice to the candidates who might

have been sufficiently meritorious to qualify in the exams and

be considered for promotion to 50% of the posts under the

promotion quota. It is a matter of regret that a Government can

take such a stand before a Court of law and expects the Court to

accept such a submission. It is ex facie untenable. Once the

30

rules stand clear, the Authority concerned is expected to act in

accordance with law and not to defeat the law. One who defeats

the law by his unjustifiable and unsustainable acts is liable

for the consequences of such default. We fail to understand why

the Government and its entire hierarchy had shut its eyes to

this gross violation of statutory rules over such a long period.

It is a matter of concern that any rule of good governance that

an obligation is imposed upon the State to select the best

candidates to higher posts and not to frustrate rules which

prescribe merit as this is essential to the process of

selection. It is painful to note that the Government has put

forward such a flimsy excuse for its inaction and unfortunately

the same has weighed with the High Court to some extent, though

it has dismissed the appeal of the State. We have no hesitation

in observing that the Government has no justification whatsoever

in not holding the qualifying test for a long period of ten

31

years and this is a matter which the hierarchy of the State

Government needs to examine and fix responsibility.

Even after 1993-94, the process of selection adopted by the

State Government cannot be accepted. The preparation of

seniority list, method of selection and clubbing of vacancies

are apparently in violation of the statutory Rules as afore-

noticed. The Tribunal, in its judgment, has noticed Rule 24(ii)

of the 1979 Rules and observed that even if the DPC held

together

vacancies

of

several

years,

yet the

vacancy

of each

year

should be

determined and also filled up separately. In this regard the

reference was also made to the judgment of this Court in the

case of Vinod Kumar Sangal v. Union of India [(1995) 4 SCC 246].

We do approve of the observations made by the Tribunal that on

the one hand the department has treated the rules as sacrosanct

and on the other hand, right from introduction of the 1979 Rules

not even a single examination was held. The fallaciousness in

the stand of the Government, to our mind, is clear from the fact

32

that the representations against the procedure started after 8

to 9 years, but right from the first year i.e. from 1983, there

can be no justification for not holding the examination in

accordance with the Rules. It appears that the attempt was

intended to suppress the rule of selection by merit. The

Tribunal failed to notice other provisions of the relevant

rules. While referring to the judgment of this Court in the

case of B.L. Gupta v. M.C.D. [(1998) 9 SCC 223], it finally

quashed

the order

dated 8th

July,

1994 and

issued

direction

to hold

review

DPC

within

the specified time by filling yearwise vacancies. One direction

of the Tribunal, as is appearing from its order, certainly

cannot be sustained. The Tribunal could not have directed that

`ideally the notification dated 13.4.1992 should be amended

retrospectively'. It is not clear whether the Tribunal meant

that this notification should be given effect to

retrospectively, in relation to the vacancies from of 1983-84,

33

or that the said notification itself should be amended. This

ambiguity was entirely uncalled for.

The Division Bench, while dealing with the judgment of the

learned Single Judge and the Tribunal, referred to the Rules to

some extent and to the fact that for one vacancy, 5 eligible

persons are required to be considered and for 2 vacancies, 8

eligible persons should be considered; and that such proportion

in accordance with the zone of consideration as specified under

Rule

24(6) of

the 1979

Rules

should be

maintained. The High Court also referred to the judgment of

this Court in coming to the conclusion that clubbing of

vacancies was not proper, and that such a course could be

adopted only in the case of direct recruitment. The High Court

directed the making a completely fresh exercise and directed

that the persons already promoted were not be demoted but

promotion be made yearwise. Though for somewhat different

reasons, partially accepting the findings recorded by the

34

Tribunal, which we have discussed above, we would accept some of

the findings of the Tribunal and the High Court; but the

conclusions arrived at cannot be accepted in their entirety. We

are not only concerned with promotion or otherwise of any relief

to the appellants or any persons in service but we must also

ensure that Rules are implemented and selection is made strictly

in accordance with such Rules. We also cannot ignore the fact

that a Government servant gets a right, (though not indefeasible

right),

to be

considered for promotion to the appropriate post to which he is

eligible and entitled, in accordance with law. In the case of

Union of India and Another v. Hemraj Singh Chauhan and others

[(2010) 4 SCC 290] this Court while dealing with somewhat

similar situation held as under:

"35. The Court must keep in mind the constitutional obligation of both the appellants/Central Government as also the State Government. Both the Central Government and the State Government are to act as

35

model employers, which is consistent with their role in a welfare State.

36. It is an accepted legal position that the right of eligible employees to be considered for promotion is virtually a part of their fundamental right guaranteed under Article 16 of the Constitution. The guarantee of a fair consideration in matters of promotion under Article 16 virtually flows from guarantee of equality under Article 14 of the Constitution."

It is equally true that the rule of fairness in

Government action is an essential feature. However, such

fairness

has to be

founded

on

reasons.

Usually,

the

providing

of

Reasons

demonstrates the concept of reasonableness but where the

statutory rules provide the circumstances and criteria, ambit

and methods by which the selection should be governed, they

would become the yardstick of fairness. In the case of Manager

Government Branch Press and Anr. v. D.B. Belliappa [(1979) 1 SCC

477], this Court held that the essence of the guarantee under

Articles 14 and 16 of the Constitution is `fairness founded on

reasons'.

36

Having discussed in detail the infirmities and illegalities from

which the selection process suffers, we, though for different

reasons, have come to the same conclusion as the High Court

while also issuing directions. Therefore, while setting aside

the selection/promotion order dated 8th July, 1994, we further

issue the following directions for strict compliance by all the

authorities concerned and without any further delay:

1. Fresh process of selection shall be held by the

competent authority in accordance with Rules, as

expeditiously as possible and in any case not

later than three months from today;

2. The selection by promotion for the yearwise

vacancies shall be filled in by compliance to

Rule 24(6) of the 1979 Rules. The authorities

37

shall fill 50% of the promotion vacancies purely

by merit, for which it will evolve a methodology,

either by holding a qualifying examination as was

being conducted prior to 1992, or by any other

examination which would satisfy the basic

criteria of selection by merit.

3. Remaining 50% of the promotion posts shall be filled

by seniority-cum-merit for which the departmental

DPC shall meet within the stipulated time as

afore-directed.

4. The Secretary (Transport), Government of Rajasthan

is hereby directed to conduct an enquiry

personally and fix responsibility on all the

officers/officials responsible for not conducting

qualifying examination in accordance with Rules

from 1983 to 1994 and subsequent thereto in

38

accordance with law. In other words, the

officers must be held responsible for their

lapses and be punished in accordance with law.

5. The vacancies would be clubbed only for the purposes

of calculating an arithmetical figure but, will

be filled in accordance with yearwise vacancies

and considering the officers eligible for

promotion to the post of DTO in accordance with

seniority cum merit rule for 50% of the promotion

post.

6. All remaining 50% posts shall be filled up purely on

merit and by holding an examination.

7. The persons who have already been promoted would not

be reverted and none of them would be entitled to

claim any financial benefits, if they have

already retired from the post of DTO.

39 8. The candidates now selected in furtherance to the

directions contained in the judgment shall not be

entitled to any arrears of pay because though their

promotion may be relatable to a previous year, such

promotion shall be notional without any

consequential benefits.

The appeals are partially accepted and are disposed of,

with no order as to costs, with the directions afore-indicated.

All the

authorities concerned shall comply with these directions without

default and submit their compliance report to the Registry of

the High Court within 16 weeks from today.

.....................................J. [Dr. B.S. Chauhan]

.....................................J.

40

[Swatanter Kumar]

New Delhi;

July 7, 2011