VERMA, J. - (1.) THE petitioner was appointed in the Rajasthan Administrative Service (here-in-after called RAS) on 17. 10. 1974 vide Annexure-1 as having been selected by the Rajasthan Public Service Commission. He was promoted to the senior scale on urgent temporary basis on 29. 2. 1979, but later on the recommendations of the selection committee, was put on senior scale vide letter dated 11. 10. 1984 (Annex.-2) against the quote of 1980 and again promoted to the post of selection scale on urgent temporary basis vide order Annexure-3 dated 7. 2. 1987. Because of the reason that certain other persons had been promoted to the selection scale regularly vide order dated 6. 12. 1986, but the petitioner was not considered and, therefore, being aggrieved the petitioner filed an appeal before the Rajasthan Civil Services Appellate Tribunal which appeals as decided on 22. 7. 1987 and a direction was given to the respondent to convene a meeting of the DPC for promotion of the petitioner to selection scale relating to the year 1983-83 and on the basis of that judgment, the petitioner was substantively promoted to the selection scale against the quota of 1983-84 vide Annexure-4, meaning thereby, that he was deemed to have been promoted on the selection scale on 1. 4. 1983 regularly in view of Rule 28-B (11-A) of the Rajasthan Administrative of vacancies for the Scheduled Castes and the Scheduled Tribes. Rule 9 lays down that there shall be determination of vacancies yearwise. Rule 28-B deals with revised criteria, eligibility and procedure for promotion to Junior, Senior and other posts encadred in the service.
(2.) RULE 28-B provides that as soon as the appointing authority determines the number of vacancies u/rule 9 and decides that a certain number of posts are required to be filled in by promotion, it shall, prepare a correct and complete list of senior most persons who are eligible and qualified under the rules and on the basis of seniority-cum-merit or on the basis of merit to class of posts concerned and only those persons who are included in the list are to be considered. Only confirmed persons on the lowest post of service were to be considered. It was further mentioned that first post for promotion in the service is to be made on the basis of seniority cum merit and second promotional post is to be filled up on the basis of merit in the proportion of 50:50. For one vacancy five eligible persons were to be considered; for two vacancies eight eligible persons were to be considered, for three vacancies ten eligible persons were to be considered and for for or more vacancies, three times the number of vacancies are to be put in zone of consideration. Rule 11 (a) provides that the committee shall consider the cases of all senior most persons who are eligible and qualified for promotion to the class of posts concerned and shall prepare a list containing names of the persons found suitable. Sub-rule (b) of Rule 11 provides that the committee shall also prepare a separate list on the basis of seniority cum merit and/or on the basis of merit as the case may be, as per the criteria for promotion laid down in these rules. Rule 11-A provides that if in any subsequent year, after promulgation of these Rules, vacancies relating to any earlier year are determined under sub-Rule (2) of rule relating to determination of vacancies which were required to be filled by promotion, the DPC shall consider cases 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 DPC is held and such promotions shall be governed by the criteria and procedure for promotion as was applicable in a particular year. Vide Annexure-5, an amendment in Rule 32 was made on 17. 7. 1987 wherein for the existing expression `senior scale and selection grade post' occurring in between the words `laid down in Rule 9, appointment to' and" shall be made by Government" the expression "senior scale, selection scale and super time scale" was substituted in the ratio of 1:2. In pursuance of the said amendment vide Annexure-6 dated 30. 4. 1988, Annex. 7 dated 23. 2. 1989 and Annex. 8 dated 16. 10. 1989 certain officers were appointed in super time scale on temporary promotions. Vide order Annexure-9 dated 21. 10. 1988, the government had issued instructions to the effect that the supertime scale shall only be granted to those officers who had three years of experience having been regularly selected in the selection grade and who have put in 20 years of experience in service w. e. f. 1. 4. 1988. This amendment in the rules was added by substituting it vide notification dated 12. 12. 1989 as published on 18. 1. 1990, copy of which is attached as Annex. 10. The notification is reproduced as under:- "amendment The existing proviso (ia) of Rule 31 of the said rules shall be substituted with effect from 1. 4. 1988 by the following, namely:- (ia) No member of the service who has not completed 3 years service on the selection scale posts and 20 years service in all on the posts included in the service shall be eligible for appointment on the super time scale posts. " Seniority list was prepared of super time scale candidates, and selection scale candidates as it existed on 1. 6. 1989 and circulated vide Annexure-11 on 1. 8. 1989, wherein 25 person have been shown in the supper time scale. The name of the petitioner was appearing at No. 65 in the list of selection scale candidates. However, two senior persons out of the seniority list of selection scale, on G. P. Nagar and Askaran Agrawal had already been promoted to IAS. The petitioner's name was not considered because of the circular dated 21. 10. 1988 (Annexure-9) which had ultimately culminated in the amendment in the rule as mentioned above. It is stated that against 17 vacancies filed up of the quota of 1989-90, the zone of consideration would have been 85 for the members of Scheduled Castes and Scheduled Tribe and, therefore, the petitioner who belongs to reserve class, his name ought to have been considered in the zone of consideration specially when his record was outstanding. It is stated that Annexure-9 dated 21. 10. 1988 cannot be made applicable retrospectively as to add the qualification for the purpose of determination of eligibility for promotion and thus the petitioner challenges the circular Annex. 9 being of no effect. He also challenges the amendment dated 12. 12. 1989 stating, therein that the selection scale officers of RAS have been divided into two categories namely those who have completed three years service in the selection scale, but have not completed 20 years service in RAS and those who have completed three years service in selection scale and have also completed 20 years of service. It is stated that the qualifications for putting on senior scale and selection scale was only 5 years experience in each cadre and further submits that the requirement of total service of 20 years has no rationale or nexus with the object of selection scale and thus a part of amendment Annex-11 so far it provides 20 years total service is violative of Articles 14 and 16 of the Constitution of India. He also challenges the retrospective operation given to the amendment dated 12. 12. 1989 in depriving the petitioner from super time scale. it is the submission that he was eligible for such promotion under existing rules as on 1. 4. 1988 against the vacancies of 1988-89 and on 1. 4. 1989against the vacancies of 1989-90 and thus the retrospective amendment in the rules attending the vested right of the petitioner is arbitrary Prayer has been made to quash the order dated 16. 10. 1989 and with the direction to the respondent to consider the case of the petitioner in super time scale of RAS w. e. f. 1. 4. 1989 with all consequential benefits. Further prayer has been made to quash the amendment dated 12. 12. 1989 as mentioned above.
(3.) IN the reply, it is stated that the circular dated 31. 10. 1988 was issued by the government in anticipation of the proposed amendment in the rules. It is further submitted that the powers of the executive cannot be denied to issue circular in anticipation of amendment in the rules and that the provision had been made with a view to rationalise the scheme of promotion to the higher grades with the purpose to confer the eligibility only on such selection scale officers who have completed minimum of three years service and to have the experienced persons with 20 years of experience in total service. It is also stated in the written statement that the petitioner was not possessing the requisite experience on the post of selection scale on 1. 4. 1988 as per circular dated 21. 10. 1988 and as such he was not entitled for consideration for promotion and primarily for that reason there was no question of inclusion of his name in the zone of consideration even though for reserved candidates five persons are to be considered for one vacancy. By an additional affidavit, the petitioner has stated that because of the aforesaid anamoly, the junior persons in the seniority list i. e. P. C. Agrawal at No. 69, V. P. Goyal at No. 70 and C. D. Deval at No. 71 (the petitioner's name finds place at No. 65 in the seniority list) have since been promoted to senior scale of RAS and were further promoted in IAS Cadre on 24. 7. 1992 as per Annex. A,b and C attached to the additional affidavit and thus he has been rendered junior to his juniors who were placed lower than him in the selection scale. ;