- (1.) THIS special appeal under Section 18 of the Rajasthan High Court Ordinance is directed against the judgment and order dated 26.3.96 passed by the Learned Single Judge whereby the petitioner's writ petition against the order of the Rajasthan Civil Services Appellate Tribunal was dismissed.
(2.) THERE are two sets of Rules namely, the Rajasthan Agriculture Subordinate Service Rules, 1978 (for short `the Rules of 1978') and the Rajasthan Agriculture Service Rules, 1960 (for short `the Rules of 1960'). The post of Assistant Agriculture Engineer included at S.No. 14 of the Schedule appended to the Rules of 1960 is the lowest post under Section III i.e. Agricultural Engineering. This post is required to be filled 50% by promotion and 50% by recruitment as mentioned in Col.III and Col.IV against it respectively. The promotions on this post of Assistant Agriculture Engineer are required to be made from amongst the holders of the post of Junior Engineer and equivalent post in Raj. Agriculture Subordinate Service of Engineering Section. THEREfore, the post of Junior Engineer or any post equivalent thereto belonging to the Rajasthan Agriculture Subordinate Service is the feeder post for the purpose of promotion to the post of Assistant Agriculture Engineer included at S.No. 14 of the Schedule appended to the Rules of 1960 under Section III of the Agricultural Engineering as mentioned herein above. The appellant herein, a member of the Rajasthan Agriculture Subordinate Service, was an aspirant for promotion to the post of Assistant Agriculture Engineer in the State Service. The selections were held for promotion to the post of Assistant Agriculture Engineer in the year 1980 on two different dates for the vacancies available against the years 1976 and 1979. When the selections were held for according promotions on the aforesaid post, the petitioner was not selected for the year 1979. Aggrieved from this, he preferred an appeal before the Rajasthan Civil Services Appellate Tribunal claiming that he should have been selected against the vacancies available in the year 1979 and prayed before the Tribunal that the order dated 17.5.80 be quashed and set aside and that the selections of the respondents No.2 to 8 who are also the respondents No.2 to 8 in this appeal before us may be set aside and that the experience gained by them on the post of Assistant Agriculture Engineer on the basis of the order dated 17.5.80 may be declared to be illegal and that it may not be of any avail to them for any purpose whatsoever. It may be clarified that the order dated 17.5.80 which had been passed with regard to the promotion of these respondents No. 2 to 8 was for the vacancies which were for the year 1979 and it appears that so far as the year 1976 is concerned, the selections were held on 21.1.1980 and for the vacancies of the year 1979, the selections were held on 22.1.80 and on that basis, the order dated 17.5.80 was passed promoting the respondents as Assistant Agriculture Engineer. To the appeal filed by the present appellant before the Tribunal, a reply was filed on behalf of the State of Rajasthan. In para 3 of this reply, it was stated that for the vacancies of the years 1976 and 1979, the D.P.C. was held on 21.1.80 and 22.1.80 : 5 persons were selected for the vacancies of year 1976 and 13 persons were selected for the vacancies of year 1979; in the year 1976, 3 persons were selected on the basis of seniority cum merit and 2 persons were selected on the basis of merit alone ; no person junior to the appellant was selected against the vacancies of 1976. Thus, there is no controversy before us so far as the selections which were made against the vacancies of the year 1976 are concerned and the controversy which is to be considered by us is only for the year 1979. As per the reply filed by the Government that in the year 1979, there were 13 vacancies in all, out of which 6 persons were selected on the basis of seniority-cum-merit. No person junior to the appellant was selected on seniority-cum-merit but 7 persons junior to the appellant were selected on the basis of merit. It is at this juncture that the appellant seeks to join issues with the respondents by saying that when there are 13 vacancies, the D.P.C. should have started with the first vacancy to be available by seniority-cum-merit and had it been so done, there would have been 7 vacancies for seniority-cum-merit and only 6 for merit in the year 1979 and in that case, the appellant would have been certainly selected on the basis of seniority-cum-merit and would not have been made to suffer the loss of promotion to the higher post and the consequential loss of seniority as Assistant Agriculture Engineer. The Tribunal took the view that whereas in the year 1976, the last person who was promoted out of 5 vacancies was a promotee based on seniority-cum-merit, the first vacancy in the year 1979 has to be filled by merit because the proportion of 50:50 is required to be maintained amongst the promotees on the basis of merit and seniority-cum-merit and the cycle is required to be repeated. It appears that no selec- tions were held for the vacancies of the year 1978 as there may not have been any vacancies in the year 1978. It is admitted position before us that there were 5 vacancies in the year 1976 and 13 vacancies in the year 1979. Against the dismissal of the appeal of the appellant by the Tribunal by its judgment and order dated 8.11.83, the appellant preferred a writ petition before this Court challenging the order passed by the Tribunal but the learned Single Judge upheld the order passed by the Tribunal and rejected the writ petition filed by the appellant by order dated 26.3.96. Aggrieved from the order dated 26.3.96 passed by the learned Single Judge in S.B.C.W. No. 177/84 read with the order passed by the Tribunal on 8.11.83, the present appellant has filed this appeal.
(3.) WE have heard learned counsel for the parties, have gone through the impugned orders and the material available on the record and we have also gone through the relevant Rules. The Rules of 1978 were notified vide notification dated 29.6.78 and thereafter an omnibus amendment in various Service Rules in State of Rajasthan was issued vide notification No. F7(10)DOP/A-II/77 dated 17.8.78 w.e.f. 12.5.78 whereby an explanation was inserted in various services Rules and so far as the Rules of 1960 are concerned, this explanation was added after Sub-rule 6 of Rule 25-A. The word, `after' in the amending notification is very significant. It is not under sub rule 6 but after sub rule 6 and therefore the `explanation' applies to all the posts for which selection is required to be made by merit as well as seniority-cum-merit. In the scheme of rules there is a clear demarcation of criteria to be applied to posts up to sub- rule 6 and those under sub-rule 7. This explanation as was introduced vide notification dated 17.8.78 w.e.f. 12.5.78 is reproduced as under :- "Explanation : If in a Service, in any category of post, 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-merit; The subsequent vacancy by merit; The cycle to be repeated." We find that Rule 25-A provides for revised criteria, eligibility and procedure for promotion to Junior, Senior and other posts encadred in the service and up to Sub-Rule 6 thereof, it covers the posts which are to be filled on the basis of seniority-cum-merit and merit in the proportion of 50:50 and after Sub- rule 6, the aforesaid omnibus amendmed explanation was included at the end of sub-rule 6 and just above sub-rule 7. It is very clear from the scheme of Rules that the posts which were required to be filled by both the methods i.e. merit as well as seniority- cum-merit have been dealt with up to sub-rule 6 and thereafter, the posts about which the reference is made in Sub-rule 7 and proviso thereto are the posts which are required to be filled up on the basis of merit alone. The explanation is thus an explanation added after sub-rule 6 of Rule 25-A and it seems to govern the posts which are required to be filled by merit as well as seniority-cum-merit ofcourse in the ratio of 50:50. ;