- (1.) AN important question which arises for determination in this writ petition is about the right of a temporary appointee to continue in service against the vacancies which remain available after regular selections for substantive appointment has been made.
(2.) THE factual metrix of this case lies in the very narrow compass. THE petitioner is a Graduate in Civil Engineering. In pursuance of a short term advertisement issued by the Director, Technical Education Directorate, Rajasthan, Jodhpur, on 4. 1. 90, the petitioner made an application for being considered for appointment as Superintendent in the Industrial Training Institute. He was called for interview alongwith other eligible persons and was selected for the purpose of temporary appointment. He was appointed as Superintendent, Industrial Training Institute and was posted at Khetri against a vacant post by order dated, 29. 6. 1990 issued by the State Government under Rule 26 of the Rajasthan Technical Education Service Rules, 1975 (hereinafter to be referred to as the Rules of 1975 ). This appointment was for a period of four months or till the availability of the candidates selected by the Rajasthan Public Service Commission, whichever was earlier. THE term of temporary appointment of the petitioner was continued from time to time by different orders passed by the Government. THE last order for extension in the term of appointment of the petitioner was passed on 15. 5. 1991. THE date of extension mentioned in this order was 31. 8. 1991 or till the availability of the candidate selected by the Rajasthan Public Service Commission, whichever was earlier. THE service of the petitioner has however, been terminated by an order of the Government dated, 2. 8. 1991. The petitioner has stated in Para-7 of his writ petition that atleast 10 clear vacancies in the cadre of Superintendents are available in the Department. These vacancies have become available on account of promotion of ten persons by order dated, 2. 8. 1991 against the promotion quota of the years 1989-1990 and 1990-1991. He has further stated that as per the provisions contained in the Rules of 1975, the post of Superintendent is required to be filled by promotion and by direct recruitment in the ratio of 50-50. Since, the vacancies have become available there can be no justification of termination of his service. The case of the petitioner is that even if the candidates selected by the Rajasthan Public Service Commission have become available, the petitioner cannot be removed from service till the availability of the vacancies which have remained unfilled even after appointment of all persons who have been selected by the Rajasthan Public Service Commission. After admission of the writ petition and grant of interim order when the matter was taken up on 18. 1. 1991, learned Dy. Government Advocate sought time to file reply. No reply was however filed. On 4. 10. 1991 the Court felt that it will be proper to finally dispose of the matter in view of the mature of controversy involved in the writ petition and it was made clear that the parties should come prepared for final hearing. On 31. 10. 1991 time was again sought by the parties to advance their arguments and the case was fixed for 28. 11. 1991. On that day arguments were heard. Learned Deputy Government Advocate who was present on behalf of the Government was directed to furnish information regarding the year of vacancies for which regular selection has been made through the agency of the Rajasthan Public Service Commission, year-wise determined vacancies for direct recruitment as well as promotion between the years 1986-87 to 1991-92 and, whether short term advertisement has been issued for the purpose of making fresh selections in order to make appointment by direct recruitment on temporary basis. These informations have, however, not been furnished by the respondents. Rule 9 (1) (a) of 1975 Rules imposes an obligation on the appointing authority to determine on 1st April every year actual number of vacancies occurring during the financial year. Rule 9 (1) (c) provides that, where a post is to be filled in by more than one methods as prescribed under 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 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. Part-IV of 1975 Rules contains the procedure for direct recruitment, whereas, Part-V contains the procedure for recruitment by promotion. Part-VI deals with the appointments, probation and confirmation. Rule 25 provides that, appointment to the post by direct recruitment or by promotion shall be made by the appointing authority on occurrence of substantive vacancies by selection of persons in the manner indicated in rule 22 or from the list prepared under rule 24. Rule 26 empowers the Government or the appointing authority to make urgent temporary appointments. This rule is quite relevant for the purpose of decision of the controversy involved in this writ petition and, therefore, it is proper to reproduce it. This rule is as under: - "r. 26. Urgent Temporary appointment - (1) A vacancy in the service which cannot be filled in immediately either by direct recruitment or by promotion under the rules may be filled in by the Appointing Authority by appointing in an officiating capacity thereto an officer eligible for appointment to the post by promotion or by appointing temporarily thereto a person eligible for direct recruitment to the Service, where such direct recruitment has been provided under the provisions of these Rules: Provided that such an appointment will not be continued beyond a period of one year without referring the case to the Commission for concurrence where such concurrence is necessary and shall be terminated immediately on its refusal to concur: Provided further that in respect of a post in the Service for which both the methods of recruitment have been prescribed, the Appointing Authority, or the authority competent to make appointment, as the case may be, shall not, save with the specific permission of the Government in the Department of Personnel, fill the temporary vacancy against the direct recruitment quota by a whole time appointment for a period exceeding three months, otherwise than out of persons eligible for direct recruitment and after a short term advertisement. "
(3.) THE obligation to make year-wise determination of the vacancies has been held by this Court to be mandatory in Dr. M. P. Agrawal vs. State of Rajasthan (1), H. K. Hingorani vs. State of Rajasthan and Others In Prakash Chand vs. State of Rajasthan and Another (3), the Division Bench had the occasion to examine the scope of Rule 9 of Rajasthan Police Subordinate Service Rules, 1974 and Rajasthan Police Subordinate Service Rules, 1989, which are pari-materia with rule-9 of the 1975 Rules. After examining the Rules the Division Bench observed as under : - "it is thus clear from a perusal of rule 9 of 1974 Rules as well as Rule 10 of 1989 Rules that the rule making authority has intentionally laid strong emphasis on year-wise determination of vacancies and regular recruitment by the prescribed mode against yearly determined vacancies. Regarding promotion quota vacancies, a further mandate has been given that the appointing authority shall also determine the vacancies of earlier year year-wise, which are 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. Rule 9 (1) (c) contains a solutary provision intended to maintain balance of quota between the direct recruitment and promotion. It is borne out by this rule that with reference to the posts already filled in, prescribed promotion specified in the rules has to be maintained. This rule lays down that where a post is to be filled by more than one method, apportionment of vacancies determined under clause (a) to each such method shall be done maintaining prescribed proportion for the over all number of posts already filled in. This means that if direct recruitment has been made in excess of the quota prescribed for direct recruitment, efforts have to be made to bring about a balance by making promotions. Similarly, if the promotion quota has been filled in excess, more direct recruitment posts have to be filled to bring about a balance. " This decision has been quoted with approval on the question of determination of vacancies by another Division Bench in, Rajasthan Council of Diploma Engineers vs. State of Rajasthan and Another (4), decided on 3rd may 1991 at Jodhpur and by making reference to the decision of another Division Bench in L. N. Maheshwari vs. State of Rajasthan (5), decided on 28. 9. 1988, it has been held that the provisions of rule-9 are mandatory and not directory. It is, thus, evident from the various decisions that it is the obligation of the State Government or the appointing authority to make year-wise determination of vacancies meant to be filled by direct recruitment as well as by promotion. This leads to further logical extension that selection for direct recruitment and promotions must be made with reference to the vacancies of every year as determined under Rule-9. However, at times even after the determination of vacancies regular selections are not made. Likewise, Departmental Promotion Committees do not meet for making recommendations for the purpose of regular promotions. Such situations necessitate use of the power by the appointing authority for making urgent temporary appointment. Therefore, most of the service rules including 1975 Rules contain provision for urgent temporary appointment. A perusal of Rule-26 which has been quoted hereinabove, shows that vacancies in the service which cannot be filled in immediately either by direct recruitment or promotion may be filled in by the Government or the authority competent to make appointment, as the case may be, by appointing in officiating capacity thereto an officer eligible for appointment to the post or by appointing temporarily thereto a person eligible for direct recruitment to the service. Such appointment cannot be continued beyond a period of one year without referring the case to the Commission for concurrence, where such concurrence is necessary, and shall be terminated immediately on its refusal to concur. Further more, appointment against the direct recruitment vacancy cannot be made for a period exceeding three months except after considering persons eligible for direct recruitment and after a short term advertisements. This rule can be used by the appointing authority where inspite of determination of vacancies, it is not possible to make appointment by direct recruitment or by promotion in immediate future or where the vacancies become available by new creation of posts or on account of death of existing employee or where the existing employee leaves the service for good. While giving power to make appointment on urgent temporary basis to meet with the contingencies as specified above, rule making authority has intentionally put restrictions on the power of appointing authority. The first restriction is that against the direct recruitment quota vacancy if an appointment is required to be made for more than three months, the appointing authority has to issue a short term advertisement and consider the cases of persons who are eligible. The second restriction is that the appointment cannot be continued beyond a period of one year without concurrence of the Commission, where the post falls within the purview of the Commission and such urgent temporary appointment is to be terminated immediately in case the Commission refuses to concur. ;