BHANWAR DAN DETHA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS special appeal is directed against the judgment of the learned Single Judge dated 1. 9. 1997 dismissing the writ petition.

(2.) THE facts giving rise to this special appeal are that in the year 1984, Rajasthan Public Service Commission made advertisement for recruitment on the post of Deputy Superintendent of Jails. THE appellants Bhanwar Dan Detha and Surendra Singh Shekhawat also applied and appeared at the examination. THE process of selection commenced in October, 1985 and concluded in June, 1987. THE names of the writ petitioners were recommended by the Rajasthan Public Service Commission to the State Government for appointment on the post of Deputy Superintendent of Jails. THE factual appointment was delayed because of some litigation. Ultimately, both the petitioners were appointed on the post of Deputy Superintendent of Jails by order dated 23. 6. 1987. THE private respondents namely Smt. Rajendra Kumari and Shankar Singh were promoted to the post of Deputy Superintendent of Prisons by order dated 6. 3. 1988. As the appellants-writ petitioners and the private respondents were appointed by two different sources in the same category and in the same year in accordance with the provisions of sub-rule (3) of Rule 27 of the Rajasthan Jail Service Rules, 1959 (hereinafter referred to as the "rules") the private respondents were placed above the writ petitioners in spite of the fact that they were appointed by way of promotion on the post of Deputy Superintendent of Prisons subsequent to them. THE petitioners claimed seniority above the promotees private respondents on the ground that they were to be given appointment against the direct recruitment quota of 1983-84 and the seniority was to recount taking them to be an appointee of 1983-84. It was contended before the learned Single Judge that the appointment of the writ petitioners was delayed on account of writ petitions being filed and stay being granted which was later on vacated and the writ petitions were dismissed. In view of this fact, the appellants cannot be denied the fruits of their selection by not considering their appointments in the direct recruitment quota of 1983-84. THE contention was rejected by the learned Single Judge on the ground that no employ can be given a date of appointment prior to the date of his factual appointment by any fiction of law. THE learned Single Judge also held that the private respondents were appointed as Deputy Superintendent of Prisons by way of promotions in the same year and as such in view of the provisions of Rule 27 (3) of the Rules, they have been rightly placed above the writ petitioners.

(3.) RULE 21 envisages that the Government shall appoint candidates who stand highest in the order of merit in the list prepared by the commission under RULE 20. The RULE 21 reads as follows:- " 21. Selection by Government.- Subject to the provisions of RULE 8 Government shall select the candidate who stand highest in order of merit in the list prepared by the commission under RULE 20 provided that it is satisfied after such enquiry as may be considered necessary, that such candidates are suitable in all other respects for appointment to the service. "