BHAGIRATHDAN Vs. STATE OF RAJASTHAN
HIGH COURT OF RAJASTHAN
STATE OF RAJASTHAN
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S.S.BYAS, J. -
(1.)SINCE these two writ Petitions under Article 226 of the Constitution are based on identical grounds and raise common questions of Saw, they were heard together and are decided by a single judgment. The matter relates to the promotion of the petitioners.
(2.)AS per aver nents disclosed in the petition, the petitioners hold the Bachelor's Degree in Mechenical Engineering. Petitioner Bhagirathdan was appointed as Assistant Engineer in the State Woollen Mills, Bikaner on Julv 18, 1972 and subsequently when declared surplus, he was appointed as Assistant Mechanical Engineer on December 12, 1975 in the Department of Mines and Geology. The other petitioner Himmatsingh was appointed as Assistant Mechanical Engineer on September 25, 1973 in the department of Mines and Geology. Both the petitioners are holding these posts with clean and untainted record of service at their credit. The next post of promotion in the cadre is that of Deputy Drilling Engineer. The appointment to these posts are made cent per cent by promotion from amongst Assistant Mechancial Engineers and Assistant Drilling Engineers. Two posts of Deputy Drilling Engineers fell vacant on September 30, 1977. Under the Rajasthan Mines and Geological Service Rules, 1960 (briefly referred to as 'the Rules' hereafter), the Appointing Authority viz. the State Government is to determine the vacancies and make promotions as laid down in Part IV of the Rules. Both the petitioners are qualified to be promoted to the post of Deputy Drilling Engineers but the State Government did not make the promotion and charge of the vacant posts of Deputy Drilling Engineers was got delivered to respondents Sagatsingh and Mahendrasingh Chouhan, who are much junior to the petitioners and are even rot qualified to work as Deputy Drilling Engineers. It was done so a device to withhold the promotion to the petitioners. It was averred that it was incumbent on the appointing authority to determine each year the number of vacancies anticipated during the following twelve months and thereafter to take steps for promotion. Rule 9 of the Rules is very specific in this regard. Rule 9 of the Rules is parallel and analogous to rule 9 of the Rajasthan Medical and health Service Rules, 1963 and rule 9 of the Rajasthan Service of Engineers (Irrigation Branch) Rules, 1954. Rule 9 of these Rules has been held mandatory by this Court in two cases. The State Government thereafter amended Rule 24 A of the Rules and inserted sub -rule (11 A) therein, giving effect to the two decisions of this Court. Despite that, the State Government did not follow these mandatory provisions of the rules and the matter of promotion was not taken into consideration. The petitioners approached the State Government to redress their grievances but the attempt proved abortive. The reliefs claimed are; (1) the State Government be directed to consider the case of petitioners for promotion to the posts of Deputy Drilling Engineer as and when the vacancies arose in the relevant year and (2) in case, both the petitioners are thereafter found suitable, they be promoted to the posts of Deputy Drilling Engineer with effect from the date, the vacancies occurred with all consequential benefits.
The petitions were resisted by the respondents. The factual aspect as alleged by the petitioners was not denied. The petitions were contested on the ground that the matter of re -organization of the Drilling Wing was under active consideration of the State Government. As such, the question of promotion was not considered. During the pendency of the writ petitions, amendment was intioduced in Schedule 'I' appended to the Rules wherein the post of Deputy Drilling Engineer was to be filled by promotion only from amonst the Assistant Drilling Engineers. The provision of Assistant Mechnical Engineer for promotion to the post of Deputy Drilling Engineer was deleted. Due to this amendment, it was contended by the respondents, that the petitioners are no more eligible for promotion to the posts of Deputy Drilling Engineer.
(3.)IT would be proper to briefly notice the relevant rules. Rule 9 of the Rules as it now stands after 6 -10 -1979 reads as under:
DETERMINATION OF VACANCIES: - (1) (a.) Subject to the provisions of these rules, the Appointing Authority shall determine every year the number of existing vacancies and those anticipated during the following twelve months and the number of persons likely to be appointed to the service by each method. The next determination of vacancies shall be done just before the expiry of twelve months of the lasts determination of vacancies. (b) In calculating the actual number of vacancies to be filled in by each method on the basis of percentage prescribed in the Schedule, the Appointing Authority shall adopt an appropriate continuous cycle order to correspond with the proportion laid down in the Schedule by giving precedence to promotion quota. (2) The Appointing Authority shall determine every year the number of existing vacancies and those anticipated in next twelve months which are to be filled by promotion of person already in the service. (3) The Appointing Authority shall also determine the corresponding vacancies of earlier year, if any, 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 ware required td be filled in accordance with sub -rule (2).
Amended Sub -rule (HA) of Rule 24A of the Rules runs as under:
(II A) If in any subsequent year, after promulgation of these rules, vacancies relating to any earlier year are determined under Sub -rule (3) of rule mentioned in Column 3 of the Schedule which are required to be filled by promotion, the Departmental promotion Committee shall consider the case 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 rule in force at the time, the meeting of the Departmental Promotion Committee is held. The person who has been so promoted shall not be entitled to claim any arrears of pay or re -fixation of his pay or to count his service experience for promotion to higher post for any period during which he has not actually performed the duties of the post to which he Has been promoted.
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