LAKSHMANAN, CJ. - (1.) D. B. Civil Special Appeal No. 506/98 is directed against the judgment dated 4. 5. 98 passed by a learned Single Judge of this Court in S. B. Civil Writ Petition No. 4195/96 whereby the appellant's writ petition has been dismissed. The appellant in this appeal is Dr. Jaswant C. Gandhi.
(2.) D. B. Civil Special Appeal No. 679/98 is filed by one Dr. Y. K. Tiwari against the judgment dated 4. 5. 98 passed in Writ Petition No. 4214/96 by a learned Single Judge of this Court. By consent of both the parties both the special appeals were taken up for final hearing. The appellant in D. B. Civil Special Appeal No 506/98 filed Writ Petition No. 4195/96 for a mandamus directing the State of Rajasthan respondent No. 1 to create ex-cadre post in the Faculty of Commerce of respondent No. 2 Jai Narain Vyas University, Jodhpur under Section 11 (1) and/or 11 (14) of the Rajasthan Universities Teachers and Officers (Selection for Appointment) Act, 1974 against the year 1992 or in the alternative and without prejudice against the year 1993. A further prayer to direct the University to promote the appellant petitioner on the post with retrospective effect with all consequential benefits was also prayed for. Likewise, Dr. Y. K. Tiwari, the appellant in D. B. Civil Special Appeal No. 679/98 filed Writ Petition No. 4214/96 with a prayer to direct the respondents State of Rajasthan and the University to count services rendered by the appellant petitioner as selected Reader in Punjab University from 3. 5. 1983 to 1. 1. 1985 and after counting service to grant promotion benefit under the ex-cadre Scheme under Section 11 of the Act of 1974 and for other consequential prayers. According to the appellant in Special Appeal No. 506/98, under the provisions of Rajasthan Universities Teachers and Officers (Special Conditions of Service) Act, 1974 (hereinafter called the Act) Lecturers, Readers and Professors of the Universities in Rajasthan were appointed by direct recruitment on the recommendations of Selection Committee constituted under Section 4 of the Act. The Lecturers and Readers appointed in the Universities did not have promotion avenues despite the fact that they were otherwise deserving for promotion and majority of Lecturers and Readers get stagnated in the post against which they had been initially appointed without getting any promotion throughout their service. In order to provide incentive and promotional opportunities to the deserving Lecturers and Readers it was decided by the State Government to create ex-cadre posts of Professors and Readers in each Faculty of the University so as to give relief, the Governor of Rajasthan promulgated the Rajasthan Universities Teachers and Officers (Special Condition of Service) Amendment Ordinance 1983 on 3. 10. 1983. This Ordinance was promulgated to amend the Rajasthan Universities Teachers and Officers (Special Condition of Service) Act, 1974. By this Ordinance the citation of the principal Act was amended as Rajasthan Universities Teachers and Officers (Selection for Appointment) Act, 1974. New section No. 11 was inserted to carry out the above said object. The Ordinance was later on made the Act No. 19 of 1984 and the personal promotion against ex-cadre posts were provided by Sec. 11 of the Act of 1974. The relevant portion of Sec. 11 is reproduced hereunder:- " 11. (1) Notwithstanding anything contained in the relevant law or in this Act, State Government may, in order to provide promotional opportunities to stagnant deserving teachers, create ex-cadre posts of Professors or Readers in each faculty of a University to the extent of one third of eligible persons as on 1st January of each year; (2) A Lecturer or a Reader in a University shall be entitled to only one personal promotion under this section during his service in any of the Universities subject to his being eligible for such promotion under this section; (3) When ex-cadre posts are created by the State Government in a faculty of a University, the distribution of such posts within the various departments of the University in a particular faculty would be made by a committee consisting of the Vice- Chancellor, Dean of the Faculty concerned and the Education Secretary; (4) The ex-cadre posts of Professors created in a year shall be filled in by personal promotion in the basis of merit alone from amongst Readers who: (a) have been regularly selected to the post of a Reader; (b) have, after regular selection put in continuous ten years' service as Reader as on the 1st day to January of the year in which such promotion is to be considered; and (c) possess the qualification laid down in the relevant law of the University concerned for appointment to the post of Professor. xxxx xxxxx xxxx xxxxxx xxx (13) Notwithstanding anything contained in this section, where as teacher, due to retire during the year in which the cases for personal promotion are being considered or during the year next following inspite of his being eligible for such promotion, is not likely to get such promotion because of the want of sufficient number of ex-cadre posts, he may, one year before the date of his retirement, be promoted to such an ex-cadre post of a Professor or, as the case may be, a Reader as may be created by the State Government over and above the number of posts created under sub-section (1 ). 14 Notwithstanding anything contained in this section, an ex-cadre post of a Professor or, as the case may be, a Reader over and above the number of posts created under sub-section (1) may be created also where the State Government is satisfied that such a creation is necessary to cover an exceptionally hard case of stagnancy. " On coming into force of this Personal Promotion Scheme the appellant petitioner was asked to opt for it. The appellant opted for this personal promotion scheme. After taking options, the University decided to implement the personal promotion scheme and so ex-cadre posts were prayed to the State Government for the eligible incumbents as on 1. 1. 1988 and thereafter continuously the University is carrying out the process and asking for ex- cadre posts against each year. For the first time, the State Government implemented the scheme by order dated 23. 11. 1992 and in all 21 ex-cadre posts were created allotting against each year from 1988. these 21 posts were created under Section 11 (1) of the Act. Three posts of Professors were created under Section 11 (13) and 11 (14) of the Act. It may be noted here that one Shri Bhagwat Swaroop was allotted one ex-cadre post of Professor in Faculty of Arts under Sec. 11 (13) He was appointed as Reader on 30. 9. 1980 but since he retired on 20. 9. 1988 his case was considered under Sec. 11 (13) of the Act of 1974 as a fit case in September 1992 when he had not even completed 10 years of service. Shri G. L. Gehlot was also allotted one ex-cadre post under Sec. 11 (13) of the Act against the year 1989 as he retired on 21. 5. 1989. One D. S. Bhandari was allotted one ex-cadre post of Professor in Engineering Faculty under Sec. 11 (14) of the Act against the year 1988. It is thus clear that though the matter was considered in the year 1992 the benefit under the provisions of Sec. 11 was given year wise from 1988 and the ex cadre posts against all the five years i. e. 1988 to 1992 were created as per provisions of Sec. 11. It is the case of the appellant petitioner Dr. Jaswant C. Gandhi that he also completed 10 years of his service as a Reader in the Faculty of Commerce and the University had recommended his case for promotion against an ex-cadre post to be created under Sec. 11 as on 1. 1. 1991 and thereafter his case is being regularly sent to the State Government against each year. It is stated that his name was being recommended for the years 1991, 1992, 1993, 1994, 1995 and 1996 but the matter remained pending. Again, for the second time the scheme for promotion to ex-cadre posts had been implemented by creating 11 posts by the State Government vide communication dated 15. 11. 1996. This time also Dr. M. R. D. Mehta had been given benefit under Sec. 11 (13) of the Act against the year 1995 and Dr. K. C. Mathur against the year 1996 but the appellant petitioner had been denied his right of promotion on ex-cadre post in a arbitrary manner. The University vide communication dated 16. 1. 1996 requested the State Government for creation of ex-cadre posts of Professors for the years 1993, 1994, 1995 and 1996. A photostat copy of the approval of the Syndicate in pursuance of Section 11 of the Act dated 25. 1. 1993 is filed and marked as Ex. 4. In the year 1991 the University recommended to the State Government for creation of ex-cadre post under Section 11 (1) and shown one Dr. P. N. Saxena and the appellant as eligible candidates. However, P. N. Saxena was given promotion. Since then in the Faculty of Commerce the appellant petitioner alone is eligible for personal promotion scheme and though the University has regularly recommended his case, his case has not been considered under Sec. 11 (1) on a wrong premise that since he is the only eligible candidate in all these years. 1/3rd post of one candidate cannot be created. It is because of this logic that the University in his communication dated 16. 1. 1996 recommended and represented the case of the appellant for personal promotion against ex-cadre post to be created either under Sec. 11 (1) or under Sec. 11 (14) but without any result. The Government finally communicated the creation of ex-cadre posts against the years 1993, 1994, 1995, and 1996 denying legitimate right of the petitioner appellant. The petitioner has filed the above writ petition in this Court for the reliefs above extracted. This writ petition was opposed by the respondent no. 2 by filing a reply. It is stated in the reply that the case of the appellant petitioner Dr. Jaswant C. Gandhi is not covered by Section 11 (14) of the Act of 1974 and provisions of this Sub- section deals with such cases where the State Government is satisfied that such a creation is necessary to cover exceptionally hard case of stagnancy. The Government has not given the benefit of Section 11 (14) to the appellant petitioner. In such circumstances the case of the appellant is not covered by the provisions of Sec. 11 (14) of the Act of 1974. It is further submitted that in the Faculty of Commerce only the appellant is eligible to get the promotion under the provisions of Sec. 11 (1) and hence by virtue of the above provisions he cannot get the benefit of Sec. 11 (1) and 11 (14) of the Act. It is also submitted that the provisions of Sec. 11 (1) of the Act of 1974 are not at all applicable in the case of the appellant since the appellant is not going to retire during the year in question or even the next year. It is submitted that a perusal of Sec. 11 (14) envisage that it is only the satisfaction of the State Government for giving the benefits to the Readers under these provisions and the appellant petitioner has not given any sound and convincing reasons to prove his case to be an exceptionally hard case of stagnancy.
(3.) THE State Government also filed its reply. According to the State the promotions are to be made as per the law as it obtains on the date when promotions are to be made and there is no accrued or acquired right in favour of the appellant petitioner and thus the things are to be given effect to in accordance with existing law and as per Sec. 11 as it stands, the appellant is not entitled to any relief as prayed. Shethna, J. dismissed the writ petition holding that no relief can be granted by this Court in view of the fact that Sec. 11 does not remain in the Statute any more and that a mandamus cannot be issued since the appellant is not able to satisfy this Court that his fundamental rights guaranteed under the provisions of the Constitution have been violated. The learned Judge has also held that since the provisions of Sec. 11 of the Act have already been deleted from the Statute, no writ of mandamus can be issued, particularly when Sec. 11 under which a relief has been prayed, stands deleted. Being aggrieved and dissatisfied the appellant petitioner filed Special Appeal No. 506/98 urging the same grounds. It is mentioned in the memo of appeal and also argued by Mr. M. C. Bhoot that the learned Single Judge has committed error in holding that the relief as prayed cannot be granted because Sec. 11 of the Act under which the relief was prayed, stood deleted during the pendency of the writ petition. In this connection it is submitted that the lis is decided as per the law applicable on the date of start of the lis unless the amendment is retrospective and in the present case the learned Single Judge without going into the provisions of the Rajasthan General Clauses Act has committed an error in dismissing the writ petition. ;