M.R.CALLA, J. - (1.) THESE three cases involve common questions of law and facts and hence we propose to decide all these three cases by this common judgment.
(2.) THE facts of these cases present a typical lis between the in-serving Engineers seeking appointments to the post of Assistant Engineer by direct recruitment and the Engineer graduates in the open market who are also seeking appointments to the post of Assistant Engineer by direct recruitment. This lis between the candidates of two different types both seeking direct recruitment to the post of Assistant Engineers has engaged the attention of this Court because of the dismal fact that although the scheme of the Rules, namely, the Rajasthan Service Engineers (Buildings and Roads Branch) Rules 1954 (hereinafter to be referred to the Rules of 1954) provides for both the modes of recruitment on the post of Assistant Engineer i. e. by direct recruitment as well as promotion, there has been no direct recruitment on the post of Assistant Engineer in this service since 1983 and, therefore, the in-service Engineers who are holders of the post of Junior/engineers/sub-Engineers and who have been working against the post of the Assistant Engineers by way of what is called as working arrangement or otherwise could not be considered against the vacancies of various years on year-wise basis from 1983 on wards and now the direct recruitment is being held against the clubbed vacancies of all these years for which the fresh Engineering graduates available now in the open market who may have acquired the eligibility later than 1983 or even recently have also entered the race against the in-service candidates for the purpose of direct recruitment to the post of Assistant Engineer. Thus whether the selection and appointments even by direct recruitment are required to be held on year-wise basis keeping the consideration confined to only those candidates who were eligible for such direct recruitment in the particular earlier year only and as to whether the direct recruitment against the vacancies of a particular earlier year should be kept confined to only those who were so eligible in that particular year to the exclusion of such Engineering graduates who did not possess the eligibility in that particular year; as to whether the requirement of eligibility for direct recruitment as were in force in the particular year should only be applied for the purpose of vacancies of that year, as to whether the vacancies of various earliest years in which the direct recruitment was not held can be allowed to be clubbed or not on the premise that r. 9 of the Rules of 1954 is mandatory or directory, as to whether the selection through direct recruitment can be allowed to be held solely on the basis of interviews and as to whether r. 20 of the aforesaid Rules of 1954 is valid or not are the pivotal question on which the adjudication of these cases hinges. In 2 of the three cases before us the Association in the name of Rajasthan Council of Diploma Holders and Association of Graduate Engineers have come to challenge the selections seeking to protect the interest of their respective members who are already in service as Junior Engineers/sub Engineers or Engineering subordinates and in the third case, the three petitioners who are Engineering Graduates of 1979 and 1980 who were appointed as Junior Engineers and claims to have been working as Assistant Engineers under order dated 21. 12. 87 and 7. 3. 88 have challenged the selections through direct recruitment for the post of Assistant Engineers against the vacancies of the year 1983 and on wards. The case of the petitioners is that a notice inviting applications was issued by the Rajasthan Public Service Commission, Ajmer through Advertise- ment No. 11 of 89-90 inviting applications for appointment to the post of Assistant Engineers (Civil) against 1 !5 vacancies in the Public Works Department of the Government of Rajasthan & 7 vacancies of Assistant Engineers (Mechanical ). On behalf of the petitioners it has been submitted that the appointment to the post of Assistant Engineers are required to be made 50% of direct recruitment and 50% by promotion from amongst Junior Engineers/sub Engineers. The appointments have been made by promotion, but ever since 1983 no appointments have been made by direct recruitment and the vacancies for which the notice inviting applications, was issued vide Advertisement No. 11/89-90 dated 15. 02. 1990 refers to the 115 vacancies of AEN (Civil) and 7 vacancies of AEN (Mechanical) and these/vacancies are clubbed vacancies for the various earlier years from the year 1983 on wards. The Rajasthan Council of Diploma Engineers has challenged the selections to be held on the basis of the aforesaid Advertisement on the basis that its members i. e. Diploma Holders were eligible for direct recruitment as Assistant Engineers between the period 7. 12 85 to 21. 7. 88. Their case is that an amendment in the aforesaid Rules of 1954 was issued on 7. 12. 1985 whereby the Diploma Holders were made eligible for direct recruitment as Assistant Engineers; whereas by a notification dated 21. 7. 88 such eligibility in respect of Diploma Holders for appointment by direct recruitment on the post of Assistant 'engineer was taken away and, therefore, they have challenged the validity of the notification dated 21. 7. 88 and have further submitted that a serious prejudice has been caused to them on account of non-holding of the selection by direct recruitment in the quota prescribed for direct recruitment during the period 7. 12. 85 i. e. the date of the notification and amendment in the Rules enclosed as Anx. 2 in writ petition No. 1641 of 1990 and 21. 7. 88 i. e. the date of the notification with regard to the amendment to the Rules which has been placed on record as Anx. 3 in the same writ petition No. 1641 of 1990. It has been submitted on behalf of the Rajasthan Council of Diploma Holders by Shri N. N. Mathur that had the direct recruitment been held during this period of 7. 12. 85 to 21. 7. 88 against the vacancies which had become available during that period, the members of the Rajasthan Council of Diploma Holders could have also competed against such vacancies of Assistant Engineers for appointment as Assistant Engineers by direct recruitment; whereas they do not even have a right of consideration now, for appointment as Assistant Engineers by direct recruitment and those candidates who were not eligible during the period of 7. 12. 85 to 21. 7. 88 and who have acquired the eligibility later on cannot be considered against the vacancies which had become available during the aforesaid period. Their grievance is that the vacancies which have been not tied vide Advertisement dated 15. 2. 90 include the vacancies which had become available between 7. 12. 85 to 22 7. 88 and, therefore, they have been wronglie deprived of their right of consideration against these vacancies merely becaus-no selections through direct recruitment was held during the relevanl period. Shri N. N. Mathur has also challenged the amendment dated 21. 7. 88 on the ground that the) provision with regard to the eligibility of diploma holders for appointment as Assistant Engineer by direct recruitment was wrongly deleted from schedule I of the Rules of 1954 as the exclusion of the Diploma Holders for appointment as Assistant Engineer by direct recruitment, is unlawful and unconstitutional and hence the notification dated 21. 7. 88 is invalid. It has also been submitted by Shri N. N. Mathur that this amendment dated 21. 7. 88 is not retrospective and, therefore, there is no basis to deprive them and their right of consideration against the vacancies of Assistant Engineers which had become-available during the period when they were eligible cannot be denied merely be cause the selections were not held at that time while they eligible under the Rules because under the amendment dated 7. 12. 85 the Diploma holders with 10 years' experience as Junior Engineer were eligible and such eligibility under the Rules continued up to 21. 7. 88. In the other two writ petitions Nos. 1696 of 1990 and 4243 of 1990 a direction has been sought that the selection by direct recruitment against 115 vacancies should be held on year-wise basis limiting the consideration of the candidature of the candidates who were eligible for appointment by direct recruitment in the respective earlier years against the vacancies falling in the quota of direct recruitment for such year. An alternative prayer has been made in writ petition No. 1696 of 1990 that a direction be issued to fill in the 115 vacancies by promotion and not by direct recruitment by taking resort to proviso (i) of r. 7 (1) of the Rules and a prayer has also been made that r. 20 of the Rules may be declared to be invalid and consequential direction be given and in the meanwhile the Public Service Commission may be restrained from proceeding with the selection to fill up the 115 vacancies and further that the respondent State Government may be directed not to revert the petitioners from the post of Assistant Engineers which they are holding at present. In reply to the writ petition the respondents have stated that they were always vigilant to fill up all these vacancies regularly through P. S. C. but the same could not be filled up in the year such vacancies occurred due to the following reasons:- "1) In November, 1984 requisition for 31 posts was sent to RPSC but one post was filled in against direct recruitment quota by appointing a dependent of a deceased Govt. servant and, therefore, revised requisition for 30 posts of AEN (Civil) was sent to the RPSC 2) Meanwhile Notification dated 7. 12. 85 was issued amending the Rules of 1954 and RPSC advertised the posts inviting applications and conducted examinations for selection to the post of Asstt. Engineers (Civil ). 3) The said process of selection was under progress but number of writ petitions No. 318/86, 321/86, 1019/86 and 556/86 were filled challenging the validity of the said amending Notification dated 7. 12. 1985 before the Hon' ble High Court and the Hon'ble High Court passed stay order on 1. 4. 86 issuing direction not to make any regular appointment on the post of AEN. The RPSC ultimately withdrew their advertisement and therefore no regular appointment could have been made. 4) The above writ petitions were dismissed by the Hon'ble High Court on 18. 12. 87 and the Answering Respondents started process for the filling up the posts of AEN (Civil) born on direct recruitment quota. 5) Subsequently, the matter regarding the eligibility of diploma-holders against the post of AEN born on direct recruitment quota was reconsidered and issued the amending Notification dated 21. 7. 88 according to which the diploma-holders Engineers were no more eligible for the post of AEN bron on direct recruitment quota. 6) There were again some representations received from the Diploma-holders Association against the amending Notification dated 21. 7. 88 which was under consideration of the State Govt. and finally, it was decided to fill up the vacancies of the posts of Asstt. Engineers, Civil, Electrical and Mechanical and to send requisition to the RPSC and was directed to select the candidates as per existing Rules in force. The requisition was sent to RPSC for 115 posts of AEN (Civil) and the RPSC has advertised these posts, invited applications, screening test held and has started interviews. " The case of the respondents is that merely because the vacancies filling in the quota of direct recruitment could not be filled for reasons beyond their control and on account of the lis between the diploma holders and the degree- holders and the stay order passed by the High Court, the candidates who are eligible at the time of holding the actual recruitment cannot be deprived of their right of consideration, there is no question of invoking proviso (i) to r. 7 (1) in favour of such in-service Engineers who may have been working against the post of Assistant Engineers by working arrangement or otherwise and the provisions in para materia to r. 20 has already been held to be valid by this Court and so far as the question of eligibility of diploma holders and the validity of the notification dated 21st July 1988 is concerned, it is open for the Rule M-aking Authority to prescribe the minimum qualification for appointment on a particular post and such a rule prescribing the qualification is not open to challenge. Under the Advertisement dated 15. 02. 1990 the last date for application was 15th February 1990 and these writ petitions were filed before this Court on 4. 04. 1990, 9. 04. 1990 and 6. 10. 1990. Shri J. P. Joshi learned Additional Advocate General has submitted that 4940 applications were received in response to the aforesaid notice inviting applications out of which 4659 applications were of the candidates belonging to general category, 196 of scheduled caste and 85 of scheduled tribes. Looking to the number of applications received it became necessary to screen the candidates to be called for interview and after scrutiny of the application the Commission was to decide the number of candidates desirable to be called for interview as provided in r. 20 of the Rules and accordingly a screening test was held in September 1990 the result of which was declared on 22nd of November 1990 and after holding the interviews when the select list was about to be issued, on 6. 03. 1991 an interim order was passed by this Court in D. B. Civil Writ Petition No. 4243 /90 that the result of the interview will not be declared by the RPSC Ajmer. However, Shri J. P. Joshi Additional Advocate General submitted that the Public Service Commission did not come to know of this order and the select list was affixed on the notice Board of the Public Service Commission on 7. 03. 1991 and thereafter when the matter came before the court on 16th of April 1991 it was recorded that by notice dated i. 4. 1991 issued by R. P. S. C. Ajmer the result which has been declared on 7. 03. 1991 was kept in abeyance and the select list declared by the RPSC was not in force.
(3.) THE first contention raised by Shri M. Mridul is with reference to r. 9 and he has submitted that the provisions under r. 9 are mandatory and the requirement of holding year-wise selections without clubbing the vacancies and by considering only such candidates who are eligible in a particular year applies with equal force even in the case of direct recruitment as it applies in the case of promotion. R. 9. of the Rules of 1954 as was amended by notification No. F. 7 (1) DDP/a-II/81 dated 21. 12. 81 which amendment was made effective from 1. 4. 81 is reproduced as under:- "9. Determination of vacancies: (l) (a) Subject to the provisions of these rules, the Appointing Authority shall determine on 1. 04. 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 of 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 methods as prescribed in the rules of Schedule, the apportionment of vacancies, determined under clause (a) above, to each such method shall be done maintaining the prescribed proportion for the 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 cycle order giving precedence to the promotion quota. (2) THE appointing Authority shall also determine the vacancies of earlier years, 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 were required to be filled in. " THE submission of Shri Mridul is that this rule is mandatory and accordingly the vacancies falling in the quota of direct recruitment and promotion are to be determined on 1st April every year and since the requirement of prescribed quota is mandatory, the requirement of maintaining the prescribed quota cannot be achieved unless the vacancies falling in the direct recruitment quota are also determined every year and the same are filled in/on year-wise basis. He has submitted that it is a case of not holding the selection at all by direct recruitment since 1983 and thus r. 9 has been flouted for all these years. Since it has been repeatedly held by the Supreme Court that the eligibility has to be seen as against the year in which the vacancies became available, it is all the more necessary to hold the selections on year-wise basis keeping the consideration confined to only those candidates who are eligible in that particular year, lest, it will result in discrimination because the candidates who acquired the eligibility later on would enter the race vis a vis those who were duly eligible in the earlier years and thus it will be a case of treating unequals in an equal manner. He has relied upon P. Mahendran v. State of Karnataka (1), NTDevinkatti v. Karnataka P. S. C. (2),p. Ganeshwar Rao Vs. State of A. P. (3) and Y. V. Rangaiah Vs. J. Sreenivasa Rao (4)In P. Mahendra's case (supra)an amendment was made in the Rules after the commencement of the process of selection and by such amendment the eligibility criteria was changed. THE Supreme Court ruled that the amendment had no retrospective effect and the selection of the candidates already made earlier is not effected. So far as the case before us is concerned, it is no body's case that any amendment has been made changing the eligibility criterion after the commencement of the process of selection and as such this judgment is of no help to the point involved in the present case. In N. T. Devinkatti's case (supra) also there was an amendment in the Rules subsequent to the commencement of the process of selection and the Supreme Court held that right to be considered has to be determined in accordance with the existing rules or order in terms of the advertisement inviting applications. P. Ganeshwar Rao's case (supra)is also a case in which the vacancies arose prior to the amendment and the Supreme Court observed in the end of para 8 of the judgment that had it been the intention of the State Government, while promulgating the amendment that the amendment should be applicable to the vacancies which had arisen prior to the date of the amendment, simultaneously the State Government would have addressed a letter to the P. S. C. to make recruitment in accordance with the special Rules as amended on 28. 4. 80 but no such action was taken by the State Government in the case and the Supreme Court while referring to its earlier decisions, followed that the vacancies which occurred prier to the amended rules would be governed by the old rules and not by the amended rules and that the post which fell vacant prior to the amended rules would be governed by the old rules and not by the new Rules. THE effect of these observations we will separately examine while considering the submission of Shri N. N. Mathur made on behalf of the Rajasthan Council of Diploma Engineers but so far as the reliance placed by Shri Mridul on this judgment is concerned, it will be sufficient to say that there is no amendment in the scheme of fules after the issue of the advertisement dated 15th of February 1990 and as such this judgment is of no avail on this point. Y. V. Rangaiah's case (supra)has already been considered and taken note of in P. Ganeshwar Rao's case (supra) referred hereinabove. Thus there is no quarrel with the proposition that in case any amendment in the Rules is issued after the commencement of the process of selection, such amendment will not have any effect on the eligibility criteria in respect of the vacancies which had become available prior to the date of amendment unless the amendment is given the retrospective effect, nevertheless, none of these decisions can be said to be any authority for the proposition that the scheme of the rules remaining the same, if certain vacancies falling in a particular quota are not filled up in that very year, as and when such vacancies are filled up in future, by way of direct recruitment, the consideration should be kept confined to only such candidates who were eligible in such particular earlier year. No doubt the r. 9 and the requirement of determination of the vacancies there under cannot be read in isolation to the requirement of quota rule and for the purpose of adhering to the quota rule, all vacancies falling in the quota should be determined every year and all possible efforts must be made to adhere to the requirement of year wise vacancies selections from amongst the eligible candidates of such year, but on that basis it cannot be said that if vacancies falling in the quota of direct recruitment are not filled up in that very year, the candidates who are eligible at the time of holding the actual recruitment now should not be considered against those vacancies. However, the question posed is as to whether in the situation like this, the persons who were not qualified in a particular year and who could not be considered against the vacancies of that year falling in the direct recruit-ment quota, had the selection been held in the year in which the vacancies become available, should also be considered against such vacancies, merely because the vacancies of various years are clubbed together by not holding selec-tions by direct recruitment for various years in the past. This is the question which has to be answered in accordance with the scheme of the rules under consi-deration. In this regard it has been argued by the counsel for the petitioners that r. 9 is mandatory and if that be so, the selections by direct recruitment must be held on year-wise basis from amongst the candidates eligible in the respective years. Reliance has been placed on certain observations made in the recent Division Bench decision dated 14. 09. 1990 in Parkash Chandra vs. State of Rajasthan (D. B. C. W. No. 3710/89 and 2 other connected writ petitions decided at Jaipur Bench ). Stress has been laid on the following observations at page 15 and 16 of the aforesaid decision of Jaipur Bench. "however, once we have held that there is an obligation to make year wise determination of vacancies for direct recruitment as well as promotion, the competent authority cannot avoid this responsibility by sheer inaction or omission and failure on the part of the competent authority cannot be used as a basis for denying eligibility to those who are eligible in a particular year but becomes ineligible on account of absence of determination of vacancies on yearly basis. We are of the view that the vacancies for direct recruitment must also be determined on yearly basis and efforts should be made to fill those vacancies during the course of the year. After determination of vacancies, the same shall be advertised immediately or within reasonable time, so that the candidates who are eligible, can apply. THE process of selection may be completed at a subsequent point of time. In that event, the disputes relating to eligibility with reference to age and qualifications would be obviated. For the subsequent years, the same very process can be repeated. After the vacancies of different years are advertised the process of selection shall be held separately and panel shall be drawn separately, so that the charge of clubbing the vacancies may also not be levelled against the appoin-ting authority. " In Prakash Chandra's case (supra) by the Division Bench at Jaipur the dispute was regarding the age and the question of qualifications was not directory involved and therefore it was submitted by Shri J. P. Joshi Additional Advocate General that this decision is not a direct authority on the question of eligibility with reference to qualifications and this decision has to be treated as authority only for such cases in which the persons are rendered overage on account of the inaction/omission or failure on the part of the competent authority to hold the selection yearwise and the candidates who are rendered over age have to be given the benefit of eligibility with regard to the requirement of age but this principle cannot be applied, for the purpose of denying the right of consideration to those candidates who have become eligible by the time the recruitment is actually held, nor the requirement of holding the selection on yearwise basis can be pressed even for the purpose of the appointment through direct recruitment. Shri Joshi has placed reliance on para 20 of the Supreme Court decision reported in Krishan Kumar vs. Union of India (5) and has submitted that the ratio decidendi of a decision has to be ascertained by an analysis of the facts of the case and the process of reasoning involved the major premises. THE para 20 of the aforesaid decision in which the words of Halsbury (4th edn. Vol. 26 para 573) have been quoted is reproduced as under: - "20. In other words, the enunciation of the reason or principle upon which a question before a court has been decided is alone binding as a precedent. THE ratio decidendi is the underlying principle, namely, the general reasons or the general grounds upon which the decision is based on the test or abstract from the specific pecularities of the particular case which gives rise to the decision. THE ratio decidendi has to be ascertained by an analysis of the facts of the case and the process of reasoning involving the major premise consisting of a pre-existing rule of law either statutory or judgment, and a minor premise consisting of the material facts of the case under immediate consideration. If it is not clear, it is not the duty of the court to spell it out with difficulty in order to be bound by it. In the words of Halsbury (4th edn. Vol. 26 Para 573) - THE concrete decision alone is binding between the parties to it but it is the abstract ratio decidendi, as ascertained on a consideration of the judgment in relation to the subject matter of the decision, which alone has the force of law and which when it is clear it is not part of a tribunal's duty to spell out with difficulty a ratio decidendi in order to bound by it, and it is always dangerous to take one or two observations out of a long judgment and treat them as if they gave the ratio decidendi of the case. If more reasons than one are given by a tribunal for its judgment, all are taken as forming the ratio decidendi. " 8. I have gone through Prakash Chandra's case decided by the Division Bench at Jaipur and it does appear that the ratio decidendi of aforesaid decision is that if on account of administrative difficulties vacancies of direct recruitment cannot be filled in for a particular year, the candidates who are within the age limit with reference to the vacancies of particular year must be treated as elligible even if the selection is held subsequently and, therefore, this decision cannot be extended on the basis of the reference to the word, 'qualification' on the basis of the part of the observations made therein and on that basis when direct recruitment is held in a latter year against the vacancies of the various years in past, exclusion of the candidates who have acquired qualification later on cannot be inferred. Much argument was made on the basis that r. 9 of the Rules under consideration is mandatory or directory. Shri Mridul, Shri Mathur and Shri Trivedi appearing on behalf of the petitioners have argued that r. 9 is mandatory and Shri J. P. Joshi, Shri D. S. Shishodia and Shri Mahendra Singh has submitted that r. 9 is only directory. On behalf of the respondents, strong reliance was placed on R. P. S. C. vs. Dr. (Miss) Dayamanti Dadhich etc. etc. (6) a Division Bench decision of Jaipur Bench and my attention was invited to para 16 of this judgment which reads as under : "turning now to the question as to whether rule 9 of the Rules is directory or mandatory, the learned single Judge has held that it is directory and that the direction contained therein must be taken to have been complied with in the instant case as soon as the vacancies anticipated to occur in 1980 were determined in the year 1979. Rule 9 has been reproduced by the learned single Judge in his judgment under appeal. We agree with the learned Judge that this rule embodies a direction requiring the Appointing Authority to determine ; each year the number of vacancies anticipated during the following 12 months. This rule is in the nature of a statutory instruction to or guidance for the Appointing Authority. If the Appointing Authority fails to comply with it his failure in that behalf may create administrative difficulties and he would certainly be answerable to his superiors for his failure in that behalf. THE failure of the Appointing Authority to comply with this rule in any particular year cannot invalidate the process of selection for making appointments to the vacancies already determined for a previous year. Rule 9 has indeed no application whatever to a process of selection pending with the Commission for making requirement to the vacant posts for which the Appointing Authority has already sent requisition to it. This rule addresses itself to the Appointing Authority and not to the Commission. If the appointing Authority has failed to discharge its statutory duty and such failure adversely affects the legal rights of the petitioner, they may if so advised, seek redress for compelling the Appointing Authority to perform its duty but they cannot on that ground alone be allowed to obstruct the process of selection in respect of the vacancies for a previous year which may remain pending with the Commission for reasons beyond its control. We would therefore endorse the finding of the learned single Judge that rule 9 is directory and not mandatory. In any case the alleged non-compliance with the rule by the Appointing Authority in the year 1980 and 1981 cannot adversely afreet the process of selection pending with the Commission for making recruitment to the vacancies already determined in the year 1979 for the year 1980. " According to this Division Bench decision rule 9 has been held to be directory and the counsel for the respondents have submitted that once rule 9 has been held to be directory the whole edifice on the basis of which the case has been built up by the petitioners fails and collapses. It is of course true that in Dr. (Miss) Dayamanti Dadheech's case (supra) which was a case in the matter of direct recruitment r. 9 was held to be directory in categorical terms, but this decision in Dr. (Miss) Dayamanti Dadheech's case (supra) has been considered and explained in yet another latter judgment of the Division Bench at Jaipur in L. N. Maheshwari vs. State of Rajasthan (D. B. Civil Special Appeal (writ) No. 136/85 decided on 28th September 1988 ). This is a latter decision of the Division Bench and after considering the question of determination of vacancies under r. 9 and the various other decisions of this court the Division Bench has observed as under :- "we have carefully gone through the various judgments referred to above and we are of the view that the view taken by this court in M. P. Agrawal, H. K. Hingorani, Daleep Singh, Maqbool Ahmed and Bhagirathan and J. P. Acharya (supra) is quite justified and does not require any reconsideration or interference as we are also of the view that the provisions of Rule 9 (1) are mandatory and not directory and, therefore, we do not think it necessary to burden this judgment with the reasoning given in those judgments over again. THE view expressed by the Division Bench of this court in Miss Dayamanti Dadhich's case relied by appellant (supra) is quite distinguishable. In that case, the division bench was considering a case of direct recruitment through the R. P. S. C. THE case of the petitioner in that case was that the vacancies which had been determined in the year 1977 for direct recruitment had not in fact, been filled and the R. P. S. C. continued the process beyond the period of 12 months. THE petitioner in that case was not eligible in the year 1977 but became eligible in 1978 and therefore, her contention was that she should have been considered eligible and that the R. P. S. C. could not have rejected her claim. It was in this background that the Bench had stated that Rule 9 is directory and not mandatory. THE point involved in the present case was not before the division bench in Dayamanti's case (supra) and that division bench did not take into consideration the earlier view of this court holding Rule 9 as mandatory. " Thus in this decision of L. N. Maheshwari's case the Division Bench has categorically held that provisions of R. 9 are mandatory and not directory. No doubt the language of the rule 9 as it was under consideration in L. N. Maheshwari's case (supra) has undergone certain changes by subsequent amendment but we are also of the opinion that the r. 9 as has been placed for our conside-ration even after the amendment of 1981 as it was made applicable from 1. 4. 1981 is mandatory and the appointing authority is certainly under an obligation to hold the recruitment every year, but r. 9 imposing the obligation to determine the vacancies every year and to hold the recruitment accordingly cannot be read in isolation to the other provisions contained in the Rules. We have gone through the language of r. 9 again and again & we find that while r. 9 (l) (a) imposed an obligation on the appointing authority to determine the vacancies, occurring during the financial year on 1st of April of every year. So far as the question of vacancies of earlier years are concerned, the rule making authority has not treated the vacancies of promotion quota at part with those meant for direct recruitment. R. 9 (2) takes care with regard to the vacancies of the earlier years and which are required to be filled by promotion and takes care of a situation on which the vacancies for the earlier years were not determined and filled in the year in which they were required to be filled in and provides that the appointing authority shall also determine the vacancies of earlier years yearwise which were required to be filled in by promotion. It cannot be said that the rule making authority was not aware that such a situation may also crop up in respect of the vacancies meant for direct recruitment and yet the specific provision has been made with regard to the vacancies of the earlier years in respect of the promotion quota and the scheme of the rules is conspicuously silent and makes no such analogous or identical provision with regard to the vacancies of earlier years which may remain unfilled, in the quota of direct recruitment. THEre being no challenge before us to the validity of rule 9 as it stands, we have to consider that even if R. 9 is held to be mandatory and even if it is found that the appointing authority failed to comply with the requirement of filling up the vacancies falling in the quota of direct recruitment, in the earlier years whether the principle of holding yearwise selection against the vacancies which were available in the various earlier years on the basis of the eligibility qualifications pertaining to that year should be invoked and applied in the same manner as in the case of such vacancies falling in promotion quota. Having given our thoughtful consideration on this question we find that the rule mak-ing authority has not made any provisions with regard to the unfilled vacancies of the earlier years falling in direct recruitment quota as has been done in the case of such vacancies falling in promotion quota despite full awareness of the entire scheme of all rules including the provisions of r. 9 and the quota prescribed for direct recruitment and promotion. It may be observed that the direct recruitment, is held through Public Services Commission, whereas the question of promotion is decided by the Departmental Promotion Committee. No doubt the Public Service Commission is also represented in the Departmental Promotion Committee, but in case of the vacancies falling in the quota of direct recruitment the Public Service Commission is the sole recruiting agency and all can be done at the level of the Government is to send the requisition. Once the requisition is sent it is for the Public Service Commission to complete the process of recruitment and for that purpose neither any time schedule has been prescribed, nor such a time schedule can possibly be prescribed as the Public Service Commission has to make recruitment for various services and for various posts. In such a situation unless and until any time schedule is prescribed by rules in which the process of recruitment is to be completed by the Public Service Commission, the requirement of holding yearwise selection cannot be pressed in the matter of appointments by direct recruitment in the same manner as it is applied in the matter of appointments in promotion quota. THE language of r. 9 (l) (c) also contemplates the apportionment of the vacancies determined under cl. (a) of r. 9 (1) to each such method maintaining the prescribed proportion for the over all number of posts already filled. Thus it is clearly discernible from the scheme of the rules as a whole that, r. 9 (1) and r. 9 (2) read with the quota rule, that so far as the number of vacancies falling in the quota of direct recruitment and promotion is concerned, it has to be strictly followed with airthmetical exactitute and in case there are any vacancies of earlier years which could not be filled, the provisions are there to take care of such vacancies falling in promotion quota, but there is no analogous provision with regard to the vacancies of earlier years falling in the quota of direct recruitment if they remained unfilled. In such a situation when we have not been called upon to decide the validity of r. 9 as it stands and there is a total absence of any provision with regard to the unfilled vacancies of earlier years falling in direct recruitment quota, r. 9 even if mandatory we do not find any justification to apply it with the same rigour in the case of the unfilled vacancies of earlier years in the quota of direct recruitment as it is to be applied in the case of the vacancies falling under promotion quota. Shri Mridul has submitted that the equality of an apportunity in matters relating to appointment means an effective opportunity, a timely opportunity and, therefore, in case such opportunity is not afforded to any in-service candidate at the appropriate time and such opportunity is given to him at stage when other persons from the open market also join the race, who could not have otherwise entered the race, is not effective opportunity in the eye of law. It is not a real opportunity as the scope of competition stands enlarged and is also made open to those who could not be the competitors in the relevant year when the vacancies in fact became available. This argument made by Shri Mridul certainly appears to be attractive but is not worth accepting, for the simple reason that the right of consideration does not stand denied to any in-service candidate against any vacancy of any year falling in the quota of direct recruitment and hence it cannot be said that the right of consideration which is essence of Article 16 of the Constitution of India is being denied to any in-service candidate. So far as the question of entry of the candidates who could not be considered had the selections been timely held, it will be sufficient to say that the right of consideration cannot be denied to the candidates who are eligible at the time when the actual recruitment is being held. If the argument of Shri Mridul is accepted, it may certainly be beneficial to the in-service candidates or those who were eligible in the respective earlier years, but that course of action would be more vulnerable in the sense that in the first type of cases it only seeks to enlarge the scope of competition keeping the right of consideration intact whereas in the latter case it would mean the absolute denial of the right of consideration to the candidates who are eligible at the time of holding the actual recruitment. We are quite conscious of the counter argument which may be raised against the aforesaid proposition that the candidates who have acquired eligibility later on had no right of consideration in respect of the vacancies of the earlier years and for such vacancies only those candidates could be considered who were eligible in the respective earlier year. But the fact situation is that neither, there is any provision under the Rules to keep the consideration against such vacancies confined to the candidates who were eligible in that year in the matter of direct recruitment to the exclusion of the candidates who acquired eligibility later on, nor the absence of such a provision in the scheme of rules like the one as has been made in the matter of promotion quota for earlier years has been made a subject matter of challenge. Moreover at this stage if the consideration against the vacancies of earlier years is kept confined to only those who were eligible in such earlier years for direct recruitment, it will be impossible to identify the eligible candidate because many of the candidates who were so eligible in the respective earlier years may have been appointed elsewhere and it is difficult to identify all such eligible candidates who could enter the race at that time and on a comparison of the advancement of the object sought to be achieved by Art. 14 and Art. 16 in the two cases we find that the object of Art 16/14 will be advanced to a greater extent in case all the candidates eligible at the time of holding the recruitment are considered against all the vacancies rather than Kee-ping the consideration confined to the candidates who are eligible in the respective earlier years only, as by very nature of the terms 'exclusion' of the eligible candidates at the time of recruitment is more discriminatory in comparison to the 'restriction' on consideration of the candidates who were eligible in the respective earlier years. The next argument of Mr. Mridul is that the in-service Engineers were not given an opportunity in the respective earlier years for direct recruitment & had such opportunity been given to them at tie relevant time they could have been considered and selected against such vacancies in those years itself, but equally true it is that such candidates or the bodies who seek to represent and protect the interest and rights of such parties were fully aware with the scope of r. 9 and they could have sought a mandamus for holding the recruitment in the year in which the vacancies were available. But no such relief was asked from the Court as no such writ petition was filed for each of the respective earlier years. It has been brought to my notice that a writ petition was filed in the year 1988 at Jaipur Branch in the name of Association of Graduate Engineers as S. B. C. W. No. 3257/88 decided in July 1989 seeking the relief that appointment should be made as per r. 27 and the ratio of 70-30 should be maintained in the case of degree holders. The Court directed as under:- "no ad hoc or stop gap working arrangements made so far shall be continued after four months. Such ad hoc appointments made shall automatically come to an end and the State Government is allowed to make appointments as per rules within a period of four months by determining the vacancy. In future also the appointment should be made on stop gap arrangement or ad hoc arrangement as per rules. " ;