M. B. SHARMA, J. - (1.) THE petitioner seeks a declaration that the selections held by the 1982 Departmental Promotion Committee (for short, DPC) for the post of Additional Chief Engineers in the Public Works Department (Buildings and Roads) under the Rajasthan Services of Engineers (Building and Roads Branch) Rules, 1954 (for short, the Rules) be declared to be illegal, null and void. THE petitioner also claimed that in case the Court does not hold the aforesaid selections by the 1982 DPC as illegal, null and void then it may be declared that the claim for appointment as Additional Chief Engineer amongst the selected candidates vis a vis any one or all of his juniors is illegal. It will be proper at the very out set to state the points which need examination in this writ petition. THEy are these; I. Whether the determination of vacancies under rule 9 of the Rules has to be on 1st April every year or the anticipated vacancies during the year are also to be considered for determination of vacancies as aforesaid? II. Whether under sub-rule (6) of Rule 24a of the Rules the cycle of promotion on the basis of merit and seniority-cum-merit has to be alternating one after another?
(2.) BEFORE I take up the above points, some relevant facts need be stated, which are these. After joining the services in the Government of Rajasthan in the year 1955 as Assistant Engineer, the petitioner was selected by the 27th May 1978 DPC for the post of Superintending Engineer and was appointed as such on that basis i. e. apost which he was holding on urgent/temporary basis. He was later on confirmed as superintending Engineer on September 16, 1981. As the petitioner was confirmed as aforesaid under order dated September 16, 1981, he is senior to the Sarva Shri S. S. Vyas, R. C. Panchariya, S. E. Baxi, Harbinder Singh, S. K. Mukerjee, S. L. Joshi and Bhagwatilal Mathur, each of whom was confirmed as Superintending Engineer under order dated August 3, 1982. The promotion to the post of Additional Chief Engineers are required to be made 100% by promotion under rule 24a of the Rules and more so its sub-rule (6 ). The promotions to this category of posts are to be made on the basis of merit and on the basis of seniority-cum-merit in proportion of 50 : 50. The said rule 24 A (6) may now be read as under :- " (6) Selection for promotion to all other higher posts or higher categories of posts in the State Service shall be made on the basis of merit and on the basis of seniority-cum-merit in the proportion of 50: 50. Provided that if the Committee is satisfied that suitable persons are not available 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 same manner as specified in these rules. Explanation-If in a service, in any category of posts, number of posts available for promotion is an odd number then for purpose of determining the vacancies for selection by promotion on the basis of seniority-cum-merit and merit in the proportion of 50 :50, the following cyclic order shall be followed: The first vacancy by seniority-cum-merits; The subsequent vacancy by merit; The cycle to be repeated. " The said Explanation was added by Notification No. F. 7 (10) DOP A- II/77 dated August 17, 1978. Under rule 23-A of the Rules no officer shall be considered for promotion unless he is substantively appointed and confirmed on the next lower post. All the appointments (including in an officiating/temporary capacity) to senior posts including the post of Addl. Chief Engineer under rule 26 (1) of the Rules can only be made by the Government from amongst the members of the Service in accordance with the selection having been made on the basis of merit and seniority- cum-merit in the ratio of 1 : 2 on the recommendation of a Committee consisting of the persons mentioned there. Only if the vacancies in the Service cannot be filled in immediately by promotion, urgent temporary appointment under rule 27 (1) of the Rules can be made. P. K. Lauriya, who admittedly was and is senior to the petitioner as Superintending Engineer had also been promoted as, Addl. Chief Engineer and at the relevant time i. e. in the year 1982-83, he was on deputation as Additional" Chief Engineer in the Rajasthan State Bridge Construction Corporation (RSBCC) an Ex- cadre post. The case of the petitioner is that the determination of the vacancies for the DPC to be held in the years 1981-82 and 1982-83 was not in accordance with rule 9 of the Rules because unless a person holding the post is either promoted substantively on the next higher post or is otherwise not to come back there is no question for holding DPC for the post held by him. The respondents in their reply have come out with the case that holding of DPC in the year 1981-82 and 1982-83 was in accordance with the practice which was being followed for last so many years and the Government issued circular for providing mode of determination of vacancies and that circular was followed in the DPC of 1979-80. The State has not admitted the clubbing of the vacancies for the aforesaid two years and has stated that K. S. Mehta was selected for the year 1981-82 on the basis of seniority-cum-merit. Shri D. K. Gupta was selected on the basis of seniority cum merit in the year 1982-83 and at the same time Harbinder Singh and R. C. Panchariya were selected on the basis of merit for the year 1982-83. It may be stated that R. C. Panchariya and Harbinder Singh were not originally made party respondents to the writ petition but on their application they were allowed to intervene by the Court. Reply was also filed by Shri Harbinder Singh in which the same case has been set up as has been set up by the State. I will now take up the two points which have been stated at the beginning of this order : Re; I. The vacancies are determined under rule 9 of the Rules. The said rule has undergone change vide Notification No. F. 7 (2) DOP-A-11/81 dated February 21, 1981, RG Pt. IV- (I) dated July 1, 1982 P 225. It reads as under :- "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 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 over all 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 in a continuous cyclic order giving precedence to the promotion quota. (2) The Appointing Authority shall also determine the Vacancies of earlier years, year wise 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. "
(3.) BEFORE the aforesaid change the said rule 9 which again was inserted vide Notification No. 7 (1) DOP A-II)/73 dated October 16, 1973 reads as under: "determination of vacancies:- (l) Subject to the provisions of these rules, the Appointing Authority shall determine each year the number of vacancies anticipated during the following twelve months and the number of persons likely to be recruited by each method. Such vacancies shall be determined again before the expiry of twelve months of the last determination of such vacancies. (2) In calculating the actual number to be filled by each method on the basis of the percentage prescribed in column 3 of the schedule, appended with relevant Service Rules, each Appointing Authority shall adopt an appropriate cyclic order to correspond with the proportion laid down in each of the Service Rules by giving precedence to promotion quota over direct recruitment and promotion is in the percentage of 75 and 25, respectively the cycle shall run as follows :- 1. By promotion2. By direct recruitment,3. By direct recruitment,4. By direct recruitment,5. By promotion,6. By direct recruitment,7. By direct recruitment,8. By direct recruitment,9. By promotion, and so on" The Government has issued instructions for determination of vacancies longterm vacancies published vide Notification dated December 13, 1973 which are contained in a Book-let"departmental Promotion Committee" published by Sachivalaya Sandesh Co- operative Society Ltd, Sachivalaya Jaipur, which reads as under :- "provision exists in various Service Rules laying down the procedure for making promotions to vacancies which are either existing or likely or anticipated ones through Departmental Promotion Committee. The list drawn by the Departmental Promotion Committee for anticipated vacancies is also called a select list. So far as long term vacancies are concerned, the selections by the Departmental Promotion Committee serve the same purpose as for the officers selected against existing vacancies. This list is however Distinct from the provision which is contained in certain Service Rules providing for drawing of list by the Departmental Promotion Committee for officiating promotions which are liable to review and revision every year. So far as list (select list) of the first nature mentioned above is concerned, a question has arisen about the basis on which it should be prepared and whether it should be based on seniority-cum-merit alone or the proportion of merit and seniority-cum-merit in the ratio of 1 : 2 should be applied for selection for anticipated vacancies also i. e. the select list. Since no separate criterion for filling anticipated vacancies has been laid down in the Rules, it has been held that after introduction of the merit formula it is neither valid nor the rules envisage to make promotions to anticipated vacancies solely on the basis of seniority-cum-merit as was envisaged in the Department circular of even number dated 31. 8. 1967. This matter came for examination in connection with certain promotions made in the Rajasthan Administrative Service and while at one time it was held that such select list be based on seniority-cum-merit alone but the matter was reconsidered by the Government on 21. 2. 1970 it was decided that criterion for preparing select list for regular promotions to anticipated vacancies during the same year should be prepared on the same basis as laid down for existing vacancies. In other words, the Select list should not only be prepared on the basis of seniority-cum- merit but such anticipated vacancies of long term nature should also be included for determining the vacancies against which promotions are to be made and the normal criteria of merit and seniority-cum-merit, introduced vide this Department notification No. F. 1 (6) Apptts. (D)/60 dated 13/14. 12. 1966 should also be applied to such vacancies. From the point of view of personnel planning as well as to avoid adhoc appointments, it is necessary that long term vacancies anticipated during the course of the year should also be taken into account and selections should be made in advance and that a uniform basis should be adopted for making selections to the existing as well as vacancies occurring after the meeting of the Departmental Promotion Committee but upto the end of the same year. It may be reiterated that the select list is to be treated as quite distinct from the list which is subject to review and prepared for purely officiating vacancies under certain Service Rules which is to be based on the seniority-cum-merit only and subject to review and revision every year. I am therefore, to request that this may kindly be kept into view while making promotions in future. The Department circular of even number dated 31. 8. 1967 may therefore be deemed to have been annulled and withdrawn. " A perusal of the aforesaid circular/ instructions will show that in preparing the select list as aforesaid for consideration by the DPC not only the existing vacancies but anticipated vacancies during the same year should be taken into consideration and in determining the vacancies for which promotions are to be made, the normal criteria of merit and seniority cum merit introduced by notification No. F. 1 (6) Apptts. (D)/60 dated 13/14. 12. 66 should also be applied to such vacancies. The DOP issued yet another office memo No. F. 10 (1) Karmik/kaii/76 dated July 31, 1976 (56/76) in respect of determination of vacancies and long term vacancies and it was reiterated that the intention of the rule is clear that long term, existing and anticipated vacancies should be taken into account in determining the vacancies so that there is as little possibility of adhoc/urgent temporary appointments as possible after the meeting of the Departmental Promotion Committee has been held during the year. A question was also examined whether the vacancies which arise on account of the permanent incumbent of a post having been appointed to higher post in the cadre or in another cadre or one who is on deputation etc. should be determined as normal vacancy for making regular recruitment. Such vacancies have also been nicknamed as 'lien vacancies' although no such term exists in the Service Rules. As stated above, the object of the rule is to fill all term vacancies in a regular manner and even temporary posts which are likely to continue for more than one year are thus to be taken into account for determination of vacancies. It was said that the essence of reckoning of a vacy is can therefore, whether it is likely to last indefinitely or atleast for more than a year irrespective of the post being temporary or due to permanent incumbent of the post working on higher posts or outside the cadre etc. As such there is no justification for not taking into account the so-called Lien vacancies' if the same are likely to be available for recruitment on a long term basis and in due course such vacancies are likely to find way in other regular cadre vacancies. It was also said that in a number of local bodies, Corperations Government controlled undertakings or under the Government of India there is regular arrangement whereby the posts are filled by officers taken on deputation from the State Government and in such cases, ir-respective, of the change of persons, a number of officers are always likely to be on deputation etc. In such cases it would be un-realistic not to take into account such vacancies which continue as a regular systems. But emphasis was laid down on the existing post and it was said that at the same time no vacancy should be anticipated merely because of expression of intention to create a post, in Government or in Local Bodies, Corporations etc. There should be a sanctioned post already held or proposed to be held by an officer on deputation from the Service concerned. Doubts arose whether the vacancies arising after 1st April could be taken into account, and circular No. F. 7 (2) DOP/a-II/81 Pt. file dated February 18, 1984 (10/84) was issued. Three points were taken for determination and they were as under : i. whether the Appointing Authorities can determine the vacancies even after 1st April of the year? ii. Whether vacancies occurring during the year besides including vacancies due to retirement, could include posts created during the financial year and lien vacancies due to long term deputation? iii. Whether vacancies can be determined more than once in a year? The Government after considering the question clarified that the Appointing Authority may determine vacancies on 1st of April or at the earliest thereafter any time during the financial year. It was also clarified that clear vacancies of the Department as exist on 1st April of the year of selection irrespective of adhoc or urgent temporary appointments made against such vacancies can be included while determining vacancies. Newly created posts, if any, included in the Budget or as may have been agreed to by the finance Department upto the date of the vacancies are determined can also be included. Vacancies occurring on account of retirements during the year in question can also be included. Vacancies which shall occur consequent to promotion to higher posts against clear vacancies as exist on 1st of April of the year can also be included. Deputation posts exceeding one year only those deputation posts would be taken in which persons have already proceeded on deputation on the date of determination of the vacancies can also be included. Long term vacancies exceeding a period of one year can also be included. It was also provided that the vacancies shall be determined only once a year. Vacancies occurring after the Departmental Promotion Committee meeting has been held shall be treated as the vacancies of the next year. Variation in the vacancies that may crop up between the dale of requisitioning the Departmental Promotion Committee meeting and the date of Departmental Promotion Committee meeting held shall be taken into account at the Departmental Promotion Committee meeting. 8. It is well settled that any government circular/order/notification in respect of rules arc supplement to the rules and form part of them. They are infact issued and have to be issued to fill in lacunas because at the time when the Service Rules are so framed all eventualities are not likely to be fore-seen and when the implementation of the Rules takes place such lacunas are likely to come to the notice of the Government which is competent to make the rules under Article 309 of the Constitution of India till such time as the service conditions of the government employees are laid down by the Parliament in the case of Central Government employees and by the Legislature in the case of State Government employees as the case may be. While determining the vacancies under rule 9 of the Rules, the appointing authority is not confined to the vacancies as they exist on 1st April every but even long term and anticipated vacancies can be taken into account, but in no case the vacancies which may occur after the meeting of the DPC can be taken into account in that financial year and they would have to be treated as the vacancies of the next financial year. So far as any vacancies which may have arisen as a result of the incumbent holding the post substantively having one on deputation which deputation is likely to continue for more than a year, such vacancies can also be considered while determining the vacancies under rule 9 of the Rules, but only such deputation post can be taken into consideration while determining the vacancies as aforesaid, in which the person has already proceeded on deputation on the date of determination of vacancies. Thus, so far as the aforesaid vacancy/vacancies is/are concerned, which vacancy/vacancies have earned the nickname 'lien vacancies', it or they can only be taken into Consideration, if the person holding substantive appointment has already proceeded on deputation on the date of determination of vacancies and not otherwise. It has already been said earlier that the DPC for the year 1982-83 met sometime in the year 1982 and to be more precise, the DPC for the post of Addl. Chief Engineers, PWD B&r, met on November 29, 1982. The vacancies which were considered by the said DPC were four in number, one for the year 1981-82 and three for the year 1982-83. There can be no dispute so far as the determination of the year 1981-82 is concerned and further it was to go by seniority-cum-merit in accordance with rule 24a of the Rules and it went to Mr. H. B. Mehta. The dispute is in respect of determination of vacancies under rule 9 of the Rules for the post of Addl. Chief Engineer (B&r) for the financial year 1982-83. There is no dispute that three vacancies were determined for consideration by the DPC for the financial year (from 1st April 1982 to 31. 03. 1983 ). The vacancies determined on October 12, 1982 for the financial year 1982-83 were as under :- (i) Resultant vacancy due to promotion of Shri M. M. Mathur, (ii) Resultant vacancy due to promotion of Shri M. C. Sharma. (iii) Resultant vacancy due to promotion of Shri P. K. Lauriya. Each of the above named persons were holding the posts of Addl. Chief Engineer, PWD (B&r ). It was clearly mentioned while determining the aforesaid vacancies under item (iii) so far as resultant vacancy due to promotion of Shri Lauriye is concerned that 'his promotion is under approval. ' Said Shri P. K. Lauriya was then on deputation to Rajasthan State Bridge Construction Corporation since November 2, 1981 and continued there till August 3, 1983. No doubt a post of Chief Engineer (Civil) had been created in RSEB and the question of sending Shri Lauriya on deputation was pending Consideration. August 3, 1983 and Shri Lauriya joined as Chief Engineer (Civil) on deputation in the RSEB on August 3, 1983. It can therefore be said that so far as factual position is concerned, there is no manner of doubt and there can be hardly any doubt that neither during the financial year 1982-83 nor till November 29, 1982 when the DPC for consideration of cases for promotion to the post of Addl. Chief Engineer PWD (B&r) met, Shri Lauriya had not proceeded on deputation and rather a decision had not been taken to send him on deputation and he had joined as Chief Engineer (Civil) on August 3, 1983. It has already been said earlier that the said deputation posts could be taken into consideration while determining the vacancies under rule 9 in which persons have proceeded on deputation on the date of determination of vacancies and even if the vacancy not only existing on April 1, 1982, but even those vacancies including 'lien vacancies' if any, which occurred upto the date of meeting of the DPC could have been taken into consideration in so far as one post out of the three as a result of expected proceeding on deputation of Shri Lariat to RSEB as Chief Engineer (Civil) could not be taken into consideration. Thus, in my opinion the DPC was wrong and the Government was wrong when it determined the three vacancies instead of two vacancies of the post of Addl. Chief Engineers for the years 1982-83. In fact only two vacancies could be taken into consideration and not three. What is the effect of this, will be taken into consideration at the later stage of this order. Re; II ;