GARG, J. - (1.) THIS writ petition under Article 226 of the Constitution of India has been filed by the petitioners on 21. 11. 1988 against the respondents with the prayer that by an appropriate writ, order or direction, the impugned orders Annex. 9 and Annex. 10 dated 10. 10. 1988 qua the respondents No. 3 to 7 by which the respondent No. 2 the Excise Commissioner, Rajasthan, Udaipur re-determined the seniority amongst the petitioners and the respondents No. 3 to 7 and placed the respondents No. 3 to 7 above the petitioners, be quashed and set aside.
(2.) THE case of the petitioners as put forward by them in this writ petition is as follows :- THE petitioners were duly recruited and selected for the posts of Excise Inspectors Gr. II vide order Annex. 1 dated 24. 10. 1973 against the substantive posts. THE case of the petitioners is that the respondents No. 3 to 7 were appointed on the posts of Excise Inspectors Gr. II in the year 1970 vide orders dated 22. 9. 1970 (Annex. R/6) and 2. 11. 1970 without complying with the procedure prescribed for recruitment under the Rajasthan Subordinate Service (Recruitment and other Service Conditions) Rules, 1960 (hereinafter referred to as "the Rules of 1960") and their appointments were made temporary under Rule 19 of the Rules of 1960. THE further case of the petitioners is that since the respondents No. 3 to 7 were not appointed regularly, therefore, after coming into force of the Rajasthan Excise Subordinate Service (General Branch) Rules, 1974 (hereinafter referred to as "the Rules of 1974"), the cases of the respondents No. 3 to 7 were considered by the Screening Committee and in pursuance of the recommendations of the Screening Committee under proviso (iii) of Rule 6 of the Rules of 1974, the respondents No. 3 to 7 were appointed regularly as Excise Inspectors Gr. II vide order dated 23. 11. 1974 (Annex. 2 ). According to the petitioners, a tentative seniority list of the Excise Inspectors Gr. II was issued on 30. 11. 1974 and in that seniority list, the petitioners were shown senior to the respondents No. 3 to 7. Another tentative seniority list was issued on 1. 6. 1977 in which also, the petitioners were shown senior to the respondents No. 3 to 7. However, objections were always invited against the seniority lists issued from time to time. Again, a tentative seniority list dated 15. 9. 1979 of Excise Inspectors Gr. II was issued and in that seniority list also, the petitioners were also shown senior to the respondents No. 3 to 7. THEreafter, a final seniority list Annex. 4 dated 21. 6. 1980 was issued and in that also, the petitioners were shown senior to the respondents No. 3 to 7. THEreafter, another final seniority list dated 12. 4. 1985 (Annex. 5) was issued in which also the petitioners were shown senior to the respondents No. 3 to 7. Even in the seniority list dated 28. 11. 1987 (Annex. 6), the petitioners were shown senior to the respondents No. 3 to 7. But, a tentative seniority list dated 18. 8. 1988 (Annex. 7) was again issued in which the petitioners names have been shown at serial Nos. 52 and 53 respectively whereas for the first time, the names of the respondents No. 3 to 7 have been shown at serial Nos. 37, 39 to 42 respectively. Aggrieved from the said seniority list Annex. 7 dated 18. 8. 1988, the petitioners made a representation Annex. 8 dated 25. 8. 1988 and after giving due consideration to the representation Annex. 8 of the petitioners, the impugned seniority lists Annex. 9 and Annex. 10 dated 10. 10. 1988 were issued in which the names of the respondents No. 3 to 7 have been shown at serial Nos. 38, 40 to 43 respectively while the petitioners' names were shown at serial Nos. 53 and 54 respectively and in these seniority lists, the respondents No. 3 to 7 were shown senior to the petitioners treating them to be confirmed with effect from the date of their initial temporary appointments. In this writ petition, the seniority lists Annex. 9 and Annex. 10 dated 10. 10. 1988 have been challenged by the petitioners on various grounds and the main ground is that the appointments of the respondents No. 3 to 7 in temporary capacity were made under Rule 19 of the Rules of 1960 and therefore, since their appointments were made on temporary basis, they had to clear the screening test by the Screening Committee under proviso (iii) of Rule 6 of the Rules of 1974 and after its clearance, the respondents No. 3 to 7 should have been treated as substantively appointed and prior to that, no seniority could be conferred on them. Hence, this writ petition with the prayers as stated above. A reply to the writ petition was filed by the respondents No. 1 and 2 and it has been submitted by them that the appointments of the respondents No. 3 to 7 were made in accordance with Rule 17 of the Rules of 1960 and not under Rule 19 of the Rules of 1960, as alleged by the petitioners. The further reply of the respondents No. 1 and 2 is that before making the appointments of the respondents No. 3 to 7, an advertisement (Annex. R/1) dated 3. 6. 1970 was issued inviting applications for the posts of Excise Inspectors Gr. II and a requisition (Annex. R/2) alongwith proforma (Annex. R/3) for recruitment of candidates to the posts of Excise Inspectors Gr. II was sent to all the Employment Officers with a request to sent the names of five suitable candidates for interview and, thereafter, the respondents No. 3 to 7 and others were called for interview through call letters and copies of call letters issued to the respondent No. 5 Duleh Singh dated 24. 7. 1970 and 20. 8. 1970 are marked as Annex. R/4 and Annex. R/5 respectively and their interviews were taken by the Committee as provided under Rule 17 of the Rules of 1960 and, thereafter, they were given appointments as Excise Inspectors Gr. II through orders Annex. R/6 dated 22. 9. 1970 and 2. 11. 1970. Thus, according to the respondents No. 1 and 2, the respondents No. 3 to 7 though appointed on temporary basis, but according to the procedure prescribed in Rule 17 of the Rules of 1960 and not appointed under Rule 19 of the Rules of 1960 and when they were not appointed under Rule 19 of the Rules of 1960, they were not required to pass the screening test by the Screening Committee under the proviso (iii) of Rule 6 of the Rules of 1974 and that exercise was wrongly done in the cases of the respondents No. 3 to 7 and since they have made representations also against the seniority lists in which they were shown junior to the petitioners, therefore, impugned seniority lists Annex. 9 and Annex. 10 were issued and the same were rightly issued. Hence, the writ petition filed by the petitioners be dismissed. I have heard the learned counsel appearing for the petitioners and the learned counsel appearing for the respondents and gone through the materials available on record. The case of the petitioners is that the respondents No. 3 to 7 were appointed under Rule 19 of the Rules of 1960, while the case of the respondents is that the respondents No. 3 to 7 were appointed under Rule 17 of the Rules of 1960.
(3.) THUS, the question for consideration is whether the respondents No. 3 to 7 were appointed under Rule 17 of the Rules of 1960 as alleged by the respondents or under Rule 19 of the Rules of 1960, as alleged by the petitioners. Before giving answer to the above question, factual position of the case may be summarised in the following manner :- (i) That on 3. 6. 1970 through advertisement Annex. R/1 the respondent No. 2 advertised five vacancies of Excise Inspectors Gr. II. (ii) That thereafter, a requisition (Annex. R/2) dt. 3. 6. 1970 alongwith proforma (Annex. R/3) was sent by the respondent No. 2 to all the Employment Officers with a request to send the names of five suitable candidates for interview to the posts of Excise Inspectors Gr. II. (iii) That thereafter, interview letters were issued to the respondents No. 3 to 7 in the shape of call letter Annex. R/4 dated 24. 7. 1970. (iv) That through orders dated 22. 9. 1970 (Annex. R/6) and 2. 11. 1970, the respondents No. 3 to 7 were given appointments on the posts of Excise Inspectors Gr. II on temporary basis. (v) That in the appointment orders of the respondents No. 3 to 7, neither it was mentioned that they were given appointments on adhoc basis nor it was mentioned that they were put on probation. (vi) That the petitioners were appointed on the posts of Excise Inspectors Gr. II through order Annex. 1 dated 24. 10. 1973 meaning thereby the petitioners were appointed later on and prior to them, the respondents No. 3 to 7 were appointed through orders dated 22. 9. 1970 (Annex. R/6) and 2. 11. 1970. (vii) That on the date when the appointments of the respondents No. 3 to 7 as well as the petitioners were made, the Rules of 1960 were in force and the Rules of 1974 came into force with effect from 30. 5. 74. (viii) That after coming into the force of the Rules of 1974, no doubt the respondents No. 3 to 7 were screened by the Screening Committee under proviso (iii) of Rule 6 of the Rules of 1974 and thereafter they were treated regularly appointed after their screening with effect from the order dated 23. 11. 1974 (Annex. 2 ). (ix) That in the seniority lists published earlier, the petitioners were shown senior to the respondents No. 3 to 7 on the ground that screening test was cleared by the respondents No. 3 to 7 in the year 1974, while the petitioners were appointed in the year 1973. (x) That seniority lists of the petitioners as well as the respondents No. 3 to 7 were published by the respondents No. 1 to 2 from time to time and objections were raised from time to time by the petitioners and the respondents No. 3 to 7 and ultimately, the respondents came to the conclusion that the appointments of the respondents No. 3 to 7, which were made in 1970, were in substantive capacity and since the respondents No. 3 to 7, which were made in 1970, were in substantive capacity and since the respondents No. 3 to 7 were appointed prior to the petitioners, therefore, they treated them senior to the petitioners. To appreciate the contentions of the parties, the contents of Rules 17 and 19 of the Rules of 1960 have to be seen. ;