PANWAR, J. - (1.) THE instant writ petition has been filed seeking directions to the respondent-authorities to fill-up the upgraded posts from amongst seniormost Assistant Engineer and restraining them to hold Departmental Promotion Committee to fill up these posts by applying reservation and roster policy with a further prayer that if during pendency of the writ petition any DPC is held and promotions are made to Scheduled Castes/scheduled Tribes candidates against the upgraded posts, then the same may be quashed.
(2.) WITH the consent of the parties, the writ petition is finally heard at the orders stage. The facts and circumstances giving rise to the instant petition are that after due selection through Rajasthan Public Service Commission, petitioners were appointed on the posts of Assistant Engineers and their names appeared at Serial Nos. 558, 554, 479 and 539, respectively, in the seniority list. The State Government has provided reservation in favour of SC/st candidates for promotion to the tune of 16% and 12% respectively and 100- Point Roster System has been introduced to implement the reservation policy. In order to bring about equilibrium between the great financial stringency on the one hand and dire need of higher posts on the other, on being recommended by the Committee comprising of Secretaries of PHED, PWD and Irrigation Department, the State Government ultimately decided to abolish 101 newly created posts of Assistant Engineers vide impugned order Annex. 2 dated 13-12-2002. Simultaneously, while abolishing 101 newly created posts of Assistant Engineer, the Government has upgraded 89 posts of Executive Engineers, eleven posts of Superintending Engineer and one post of Additional Chief Engineer. In continuation of the impugned order Annex. 2 dated 13-12-2002, the Government has further issued the order Annex. 3 dated 3-1-2003 detailing the posts to be abolished and created consequent to the impugned order Annex. 2 dated 13-12-2002. In this way, according to the petitioner, no new post has come into existence but the posts which were already in existence, have been upgraded with a view that the upgradation should not fasten huge financial liability on the Government, which is further clear from the conditions mentioned in the impugned order Annex. 2 dated 13-12- 2002 showing that no additional budget, staff or other facilities were provided for these posts. The further case of the petitioner is that since it is not a case of creation of the posts, these upgraded posts can be filled up by promoting the seniormost Assistant Engineers and no reservation and roster system can be applied to man these posts but the respondents are bent upon to apply reservation and roster system to fill up these posts. Hence this writ petition. Refusing the averments made in the writ petition and taking preliminary objections regarding non-infringement of any legal right of the petitioners and availability of alternative remedy, respondent-State has filed a detailed reply. An Objection regarding maintainability of joint writ petition has also been raised. The crux of reply is that the reservation for SC/st candidates is not only in case of direct recruitment but as per the Constitutional mandate, the same can also be made applicable in case of promotion. The promotions are required to be made in accordance with the Engineers (Irrigation Branch) Rules, 1954 and financial burden is of no consequence while applying constitutional imperative of reservation for SC/st candidates. It has further been stated that as per the Rules, 1954, the posts of Executive Engineers can be filled up 100% by promotion after applying reservation which is a constitutional mandate. The Nodel Committee was constituted by the Government to mitigate the problem of stagnation in all category of engineers. Lastly, it has been stated that though minimum five years experience on the post of Assistant Engineer is required for promotion to the post of Executive Engineer but the Government is well within its competence to relax the same for SC/st candidates. It has further been submitted that the total strength of Executive Engineers in the Irrigation Department is 296 and only two persons of reserved category are holding the posts of Executive Engineers and there is shortfall of 82 posts of SC/st candidates in the cadre of Executive Engineer. Placing reliance on the Notification No. F. 7 (4) DOP/a-II/2002 (32/02) dated 10-10-2002 issued by the State Government, by which rule 8 of the Rules, 1954 has been amended, whereby it has been provided that no vacancy reserved for SC/st shall be filled by promotion as well as by direct recruitment from the general category candidates except in extraordinary circumstances and after following the due procedure, from occupying any post of reserved category. The Notification dated 10-10-2002 provides that the vacancies so reserved for SC/st shall be carried forward until the suitable SC/st candidates are available and it further provides that in any circumstances, no vacancy reserved for SC/st candidates shall be filled by promotion as well as by direct recruitment from general category candidates. It has further been stated that the cadre of Executive Engineers has been enhanced from 207 to 296 and as such it is a clear cut case of creation of 89 additional posts in the cadre of Executive Engineers, 11 posts of Superintending Engineer and one post of Additional Chief Engineer and the said additional posts, being created permanently, are required to be filled up as per the amended provisions of the Rules, 1954. The further stand taken by the respondent-State is that as per the Rules, 1954, the posts of Executive Engineers, Superintending Engineer and the Additional Chief Engineer are only to be filled 100% by promotion and as such, as per the Constitutional mandate, the reservation is applicable. These 89 additional posts of Executive Engineers were created vide order dated 13-12-2002 as per the recommendations of the Nodal Committee constituted by the Government to mitigate the problem of stagnation in all categories of engineers. It is not only confined to the general category but the Nodal Committee considered overall problem and suggested that ratio between the Assistant Engineers to other higher posts should be enhanced and on that basis, the ratio of Assistant Engineer to other higher posts was enhanced as 70:30 instead of 80:20 and, therefore, as per the Nodal Committee's recommendations, the Government has created 89 additional posts in the cadre of Executive Engineer, 11 posts of Superintending Engineer and one post of Additional Chief Engineer and, thus, the reservation is applicable as per the provisions of the Rules, 1954. Respondent No. 4 Rajasthan Public Service Commission has also filed its reply stating that it has no role in determination of the vacancies. Private respondents No. 5 and 6 controverting the stand taken by the petitioners have filed an application under Article 226 (3) of the Constitution of India for vacation of the interim order passed by this Court on 3-2-2003. Likewise, respondent No. 7 has also filed an application under Article 226 (3) of the Constitution of India stating therein that they are members of scheduled caste. It was further stated that the answering respondents, who belong to SC/st categories, have been deprived of their right to be considered for promotion to the post of Executive Engineer against the newly created posts; in Irrigation Department, the backlog vacancies of reserved category in the cadre of Executive Engineer is 82 and presently the Executive Engineer of reserved category, i. e. SC/st are holding only 2 posts in this cadre and as such they are entitled to be considered for promotion to the newly created posts of Executive Engineers on the basis of reservation and roster system. Stressing the averments made in the writ petition, answering the preliminary objections and denying the averments made in the reply, petitioners have stated that upgradation cannot be treated at par with the creation of post and no reservation can be applied in case of upgradation of posts; stagnation in case of Assistant Engineers is writ large and the Nodal Committee has appreciated this fact but its report has not been placed on record; reservation to the upgraded post will further make the problem of stagnation bad to worse; upgradation was made vide order dated 13-12-2002 and as such upgradation is of the year 2002-2003 and relevant law existing on that day should have been applied; the zone of consideration has been extended for oblique purpose to uplift the SC/st candidates who are much below in the seniority list; when experienced persons are available then there is no need to relax the minimum experience for the SC/st candidates etc. etc.
(3.) I have heard learned counsel for the parties and perused the record of the case. The nub of the arguments raised by the learned counsel for the petitioners is that it is a case of upgradation of the post and as such the reservation and roster system cannot be applied for giving benefit to the SC/st candidate by relaxing the minimum experience of five years for It has further been contended that there is already stagnation faced by the persons like petitioners and this fact has been appreciated even by the Nodal Committee but ignoring its report, the State Government is bent upon to make the pinching situation of stagnation bad to worse. Lastly, it has been contended by the learned counsel for petitioners that Government cannot amend or substitute statutory rules by administrative instructions. Per contra, the stand taken by the learned counsel appearing for the respondent State and private respondents is that it is not a case of upgradation of posts rather it is a case of creation of the posts and as such the reservation and roster system can well be applied which is otherwise too the mandate of the Constitution of India. It has further been contended that the State Government is well within its competence to relax the experience clause to pay regard to the Constitutional mandate of uplifting the candidates of reserved category. Further, stagnation is not qua the Assistant Engineers like the petitioners but this problem is being faced by the incumbents of so many posts. It has further been submitted by learned counsel for respondents that the concept of financial burden does not dilute the language of rights and, therefore, this does not give a lever to the petitioners to challenge the just interpretation of the rules and the same also does not come while applying constitutional imperative of reservation for SC/st candidates. ;