MATHUR, J. - (1.) THIS special appeal is directed against the judgment of the learned Single Judge dated 1. 9. 1997 dismissing the writ petition.
(2.) THE facts giving rise to this special appeal are that in the year 1984, Rajasthan Public Service Commission made advertisement for recruitment on the post of Deputy Superintendent of Jails. THE appellants Bhanwar Dan Detha and Surendra Singh Shekhawat also applied and appeared at the examination. THE process of selection commenced in October, 1985 and concluded in June, 1987. THE names of the writ petitioners were recommended by the Rajasthan Public Service Commission to the State Government for appointment on the post of Deputy Superintendent of Jails. THE factual appointment was delayed because of some litigation. Ultimately, both the petitioners were appointed on the post of Deputy Superintendent of Jails by order dated 23. 6. 1987. THE private respondents namely Smt. Rajendra Kumari and Shankar Singh were promoted to the post of Deputy Superintendent of Prisons by order dated 6. 3. 1988. As the appellants-writ petitioners and the private respondents were appointed by two different sources in the same category and in the same year in accordance with the provisions of sub-rule (3) of Rule 27 of the Rajasthan Jail Service Rules, 1959 (hereinafter referred to as the "rules") the private respondents were placed above the writ petitioners in spite of the fact that they were appointed by way of promotion on the post of Deputy Superintendent of Prisons subsequent to them. THE petitioners claimed seniority above the promotees private respondents on the ground that they were to be given appointment against the direct recruitment quota of 1983-84 and the seniority was to recount taking them to be an appointee of 1983-84. It was contended before the learned Single Judge that the appointment of the writ petitioners was delayed on account of writ petitions being filed and stay being granted which was later on vacated and the writ petitions were dismissed. In view of this fact, the appellants cannot be denied the fruits of their selection by not considering their appointments in the direct recruitment quota of 1983-84. THE contention was rejected by the learned Single Judge on the ground that no employ can be given a date of appointment prior to the date of his factual appointment by any fiction of law. THE learned Single Judge also held that the private respondents were appointed as Deputy Superintendent of Prisons by way of promotions in the same year and as such in view of the provisions of Rule 27 (3) of the Rules, they have been rightly placed above the writ petitioners. It is contended by Mr. R. N. Upadhyay, learned counsel that the subject vacancies of 1983-84 were determined in accordance with the provisions of Rule 9 and advertisement was issued in the same year but the vacancies could not be filled in because of the stay granted by the court which was later on vacated and as such the appellants are entitled to be assigned seniority by taking them to be the appointees of 1983-84. It is also submitted that the rights of the appellants cannot be prejudiced on account of action of the court and they cannot be denied the fruits of their selection by not taking their appointment to be in direct recruitment quota of 1983-84. In support of the contention, learned counsel has placed reliance on a decision of the Apex Court rendered in the case of Pilla Sitaram Patrudu and Others vs. Union of India & Ors. (1 ). In order to appreciate the contention, it will be convenient to acquaint with some of the provisions of Rajasthan Jail Service Rules, 1959. The said rules have been framed in exercise of powers of His Excellency the Governor of Rajasthan conferred by proviso (2) to Article 309 of Constitution of India to regulate the recruitment to the post in and conditions of service persons appointed in the Rajasthan Jail Services. Thus, it is evident that by Rule, 1959 the conditions of service of such persons who have been appointed in the jail services are governed. Rule 4 provides definition. The definition of "direct recruitment" under sub-clause (b) and `members of the service" under sub- clause (f)" reads as follows:- " (b) "director recruitment" means recruitment by the method prescribed by rule 7 (a ). (f) "member of the Service" means a person appointed substantively to a post in the service under provisions of these rules or of rules or orders superseded by rule 2. " Rule 7 provides the source of recruitment i. e. , by direct recruitment through the agency of the commission and by promotion. Rule 9 provides for determination of vacancies which reads as follows:- " 9. `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 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 method as prescribed in the rules, or schedule, the appointment of vacancies, determinated 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 cyclic order giving precedence to the promotion quota. (2) That Appointing Authority shall also determined the vacancies of earlier years, yearwise which were required to be filled in by promotion, if such vacancies were not determined and fill earlier in the year in which they were required to filled in. " Chapter IV provides for procedure for direct recruitment. Rule 20 provides the recommendation of the commission in case of direct recruitment. Sub-clause (2) of Rule 20 reads as follows:- " (2) In the case of direct recruitment to the post of Deputy Superintendent of Jails, the Commission shall prepare a list of the candidates recommended by them for direct recruitment in order of their proficiency as disclosed by their aggregate marks. If two or more of such candidates obtain equal marks in the aggregate, the Commission shall arrange them in order of merit on the basis of their general suitability for Services. "
(3.) RULE 21 envisages that the Government shall appoint candidates who stand highest in the order of merit in the list prepared by the commission under RULE 20. The RULE 21 reads as follows:- " 21. Selection by Government.- Subject to the provisions of RULE 8 Government shall select the candidate who stand highest in order of merit in the list prepared by the commission under RULE 20 provided that it is satisfied after such enquiry as may be considered necessary, that such candidates are suitable in all other respects for appointment to the service. " Part V of Rules deals with the procedure for recruitment by promotion. Rule 24 provides appointment to the service. The rule provides that appointment to the service shall be made by the Government on the occurrence of substantive vacancy in the cadre of the service by selection of candidates in the manner prescribed in Rules 21 and 23 (4) from the lists prepared by the Commission under Rules 20 and 23 (3) Sub-rule (3) of Rule 23 provides for procedure of selection and appointment reads as follows:- " 23 (3) The lists prepared by the Committee shall after approval by the State Government, be forwarded to the Commission together with the Confidential Rolls, Personal Files and other particulars of the candidates included in the lists and also of those superseded, if any, and the Commission shall be requested to advise on their suitability for appointment to the Service. " Rule 27 deals with the seniority in service. The rule provides that seniority in the service shall be determined in the each category of the service by the year of substantive appointment. The rule reads as follows:- " 27. "seniority" : Seniority of persons appointed to the lowest post of the service or lowest categories of posts in each of the Group/section of the service as the case may be, shall be determined from the date of confirmation of such persons to the said post but in respect of persons appointed by promotion to the other categories of posts in each of the Group/section in the service, as the case may be, shall be determined from the date of their regular selection to such posts. (Vide DOP Notification dt. 20. 7. 79 ). Provided (1) that the seniority inter se of persons appointed to the Service before the commencement of these Rules or who may be appointed to the service as a result of the Re- organisation of State, shall continue as already fixed by Government, or as may in future be fixed ad-hoc by Government subject to any modification, correction or revisions which Government may, future consider necessary. (2) That the persons selected and appointed as a result of a selection which is not subject to review and revision shall rank senior to the persons who are selected and appointed as a result of subsequent selection. (3) That if two or more persons are appointed to posts in the same category in the year, a person appointed by promotion shall be senior to a person appointed by direct recruitment; (4) That the seniority inter se of persons appointed to a particular category by direct recruitment on the basis of one and the same selection, except those who do not join service when a post is offered to them, shall follow the order in which they have been placed in the list prepared by the Commission under Rule 20. " ;