- (1.) In both the Writ Petition under Article 32 and the Civil, by special leave, common questions that arise for consideration relate to the validity of Rules 28-B and 32 of the Rajastlian Administrative Service Rules, 1954 (herenafter to be referred as the Rules) and the Circular No. F. 1. (6) Applts. D/50, dated August 27, 1066, issued by the Chief secretary. to the government of Rajasthan as well as the Order of the government of Rajasthan No. F. 2 (24) Apptts. (A-IV) /66, dated 4/01/1967. In the two writ petition-, the Order No. F. 2 (24) Appits. ' (A-IV) /66, dated, 22/01/1970, and in Writ Petition No. 139 of 1070 a further Order of the State government No. F. 27 (24) A (A-4) /66, dated February 21, 1970, are also challenged. the nature of' the various Orders, as well as therules and the Circular that are challenged will be referred to later at the appropriate stage.
(2.) Civil No. 1815 of 1970 arises out of the division bench Judgment of the Rajasthan High court, dated 20/01/1970, in D. B. Special Appeal No. 57 of 1968. The facts leading up to the Civil may be stated : The appellant is an Arts Graduate having taken his degree in 1947. He took his Law degree in the year 1961 having been placed in the First Division. He joined the service of the former Jaipur State as Inspector, Customs and Excise, in 1948. On the formation of the United State of Rajasthan, he was appointed in the service of the State of Rajasthan as Inspector, Customs and Excise. In 1950 the Rajasthan Administrative Service was constituted for the State of Rajasthan and the Rules governing the conditions of service of the members, therein were framed in 1954 by the Rajapramukh under the proviso to Article 309 of the Constitution. Under the Rules the Administrative Service Cadre has three cadres of pay, namely, Ordinary Time Scale, Senior Scale and Selection Grade. The appointment to the service cadre was by direct recruitment as well as by promotion from other subordinate services in the State of Rajasthan. The appointment to the Senior Scale and Selection Grade was by promotion from amongst the members of the service. According to the appellant Rules 27 and 32 of the Rules, as they stood originally provided for promotion to be made only on the basis of seniority-cum-merit and that sub-rule (2) of Rule 27 laid down various criteria to be taken into account in the matter of selection of candidates for promotion. It was his further case that Rule 28, as it originally stood, laid down the procedure for recruitment by promotion to the service oil the basis of seniority-cum-merit. The appellant was appointed in the year 1957 as a member of the Rajasthan Administrative Service as a result of the open competitive examination held by the State public service commission under the provisions of the Rajasthan Administrative Service (Emergency) Rules, 1956. The appellant claimed that his seniority was higher than that of Respondents 2 to 5 as is evident from the seniority list published on 1/07/1964. At this stage it may be mentioned that though under the Order, dated 4/01/1967, of the State government fifteen officers in the union scale were promoted and appointed on an officiating basis to the senior scale of the service, the appellant has made only four of them Respondents 2 to 5 as parties in these proceedings on the ground that though they were juniors to him, promotion has been given to them superseding his claims. The other officers so promoted, even according to the appellant were senior to him in service. We may also mention that respondent No. 5 is since dead, but for Convenience he will be referred to by the rank occupied by him as respondent.
(3.) In 1965 the State decided to introduce the system of making promotions to the service on the basis of merit alone in addition to the existing system of making promotions on the basis of seniority-cum-merit. With (his end ill view there were various amendments made to the Rules by which certain additions were made and certain oilier provisions deleted. On 14/12/1965, Rule 28-B was incorporated providing for appointment by promotion to polls in the service on the basis of merit :and on the basis of seniority ummerit in the proportion of 50: 50 and the number of eligible candidates to be considered for promotion is to be 10 times the total number of vacancies to be filled up on the basis of merit as well as seniority-cum-merit. On the same date when Rule 28-B was incorporated sub-rule (2) of Rule 27 was deleted. On January 7, 1966. sub-rules (2) to (6) of Rule 28 were also deleted. On 14/12/1965 a Circular was issued by the Chief secretaryto the government of Rajasthan. According to the appellant the said Circular was a secret one issued without any authority directing the Selection and Promotion Committees and the Appointing authorities to follow the instructions given therein when making selection, promotion or appointment in the service. The said circular prescribed "merit formula for making selection of persons to be appointed on the basis of merit alone and the seniority-cum-merit formula for making selection of persons to be appointed on the basis of seniority-cum-merit". The basis for both the types of promotions was the marking system indicated in the circular. We do not think it necessary to go more elaborately into the details of this circular or the authority under which it was issued because it is seen that this circular was superseded by the circular, dated 27/08/1966, which is under severe attack in all these proceedings. The contents of the latter Circular as well as the authority under which it is purported to have been issued will be dealt with by us in due course in the latter part of the judgement. On. August 26, 1966, Rule 28-B was further amended by providing that the proportion of promotion to be made by selection on the basis of merit and seniority-cum-merit is to be 1:2 instead of 50 ; 50. On the same day a proviso was also added to sub-rule (2) of Rule 28-B providing that only officers who have been in service for not less than six years in the lower grade of the cadre will be eligible for being considered for the first promotion in the cadre. On 27/08/1966 the impugned. circular was issued by the Chief secretary to the State government. It is the case of the appellant that this circular was issued without any authority and it was again a secret circular giving directions in the matter of selection, promotion and appointment to the service to the Committees or the Authorities incharge of the game. The circular again dealt with the merit formula and the seniority-cummerit formula on the basis of making system indicated therein. On 8/09/1966 the State decided to extend the principles of making selections on the basis of merit alone to appointments to. senior posts also. For this purpose the original Rule 32 was substituted by a new rule providing for appointments to senior scale and selection grade posts on the basis of merit and seniority-cum-merit in the ratio of 1:2 on the recommendation of the Committee constituted under the said rule.;