- (1.) THE instant State appeal is directed against the judgment of the learned Single Judge dated 15.12.99 whereby allowed the writ petition of the respondent herein and directed the appellant to grant him refixation in accordance with the order dated 22.08.1981 and grant him terminal and retiral benefits in accordance with the order dated 22.08.1981.
(2.) THE relevant facts giving rise to this appeal are that the respondent herein entered in the government service as Lower Division Clerk. He became Accounts Officer in the year 1975 by way of promotion. He was awaiting for promotion on the post of Sr. Accounts Officer and the Chief Accounts Officer but against the vacancies of the year 1980. However, the D.P.C. was convened because of interim order of the Tribunal and he retired on 1.6.80. A.D.P.C. was convened for promotion on the post of Sr. Accounts Officer against the vacancies of year 1980 in the year 1981. In pursuance of the recommendations of the D.P.C., against the vacancies of year 1980 by order dated 22.8.1981 appointed officers of Accounts services named therein the Senior Scale, with effect from 31.12.1980., THE name of respondent appeared at S.No.9. On the basis of the order dated 1.1.80 he claimed notional promotion on the post of Sr. Accounts Officer w.e.f. 1.1.80. It was further prayed that the order dated 22.08.1981 be amended to the extent of substituting the date of promotion from 31.12.80 to 1.1.80. It was contended that as per Rule 9 f the Rajasthan Accounts Service Rules, 1958 (hereinafter referred to as the Rules of 1958) the State was under an obligation to determine the vacancies for each year at the commencement of the year. Thus, the vacancies of year 1980 were to be determined in the month of January, 1980. If the State Government did not determine the vacancies in the month of January for the year 1980 and convene the the D.P.C. the respondent herein cannot be made to suffer. In counter filed by the State it was averred that in accordance with Rule 9 of the Rules of 1958 the vacancies for the year 1980 of Sr. Accountant were determined and the eligible persons were considered for promotion by the D.P.C. THE name of respondent appeared at S.No. 10. However as one Shri S.C. Agarwal was not found fit for promotion, he was placed at S.No.9 in the panel. THEre existed only 8 vacancies till the date of superannuation of the respondent. THE next vacancies were made available on 30.09.1980 and 31.10.1980. by the time the vacancies became available the respondent stood superannuated. It was further averred that ten persons who were directly recruited in the batch of 1977 had filed a petition before the Rajasthan Service Appellate Tribunal. In the said appeal the Tribunal and directed to keep one post vacant in all the ten petitions. This delayed to convene the D.P.C. in the year 1980 itself. THE learned Single Judge rejected the contention of the appellant for the reason that the respondent's name had appeared in the order dated 22.08.1981. THE learned Judge observed that on that date the State knew that the respondent herein had superannuated from service on 31.05.1980 inspite of that the promotion was given w.e.f. 31.12.1980. Thus, according to the learned Judge all the benefits were to be conferred on the respondent. It is contended by Mr. K..R. Bishnoi learned Additional Government Advocate that the learned Single Judge has failed to appreciate the stand of the appellant. It is submitted that as the name of respondent was considered for promotion against the vacancies of 1980, he was placed in the panel, but he could not be given promotion as no vacancy occurred before his retirement in May, 1980, there was no question of giving him promotion even on notional basis. On the other hand it is submitted by Mr.M.R. Singhvi learned counsel appearing for the respondent that the controversy is concluded by the judgment of this Court dated 15.01.1991 in Ramji Lal vs. State (1) wherein it is held that a person who has been promoted against a vacancy of a particular year on the recommendation of the D.P.C. he is entitled to have his pay fixed on the higher post i.e. promoted post, notwithstanding the fact that in the meantime he retired from the service. We have considered the rival contentions. It emerges from the pleadings that the State in accordance with the Rule 9 of the Rules of 1958 determined the vacancies for promotion on the post of Senior Accountant for the year 1980 in January, 1980. It is not in dispute that when a vacancy is determined for a particular year the anticipated vacancies are also taken into account. Because of the order of the Tribunal the D.P.C. could not be convened in the year 1980 an it was convened in the year 1981. The name of the respondent herein was placed at S.No.9 in the panel. Till the respondent retired on 31.05.1980, no vacancy occurred against which respondent could be promoted on the post of Senior Accountant. A person found fit for promotion and placed in the panel as per the vacancies determined which also include anticipated vacancies, can be given appointment only from the date the vacancy occurred in that year. In the instant case irrespective of the fact that the respondent herein was placed in the panel of selected candidates for promotion but no vacancy occurred till he retired and as such he cannot claim promotion on notional basis simply on the basis that his name is appearing in the panel of selected candidates. It appears that the main cause of confusion is the erroneous drafting of the order dated 22.08.1981 which reads as follows:- ********* As the respondent herein stood superannuated on 31.05.1980 there was no question of giving him promotion w.e.f. 31.12.1980 i.e. after retirement. His name ought not to have been included in the order dated 22nd August 1981. The erroneous inclusion of the name of the respondent in the order dated 22.08.1981 will not give him a right of notional promotion on 31.12.1980 i.e. after the date of retirement. He cannot also claim promotion w.e.f. 31st 1980 as on that date there existed no vacancy on the promotional post of Senior Accountant. Thus, the learned Single Judge has committed error in granting relief to the petitioner simply on reading of the order dated 22.08.1981 (Annex.1) without appreciating the fact that there existed no vacancy for appointment of the respondent herein on the promotional post until he retired on 31.05.1980. The order dated 25.10.91 being perfectly legal ought not to have interfered. Consequently, the special appeal is allowed the judgment of the learned Single Judge dated 15.12.99 is set aside. The writ petition stands dismissed. ;