DWARKA PRASAD, J. - (1.) THIS writ petition discloses the deplorable conditions in which low paid employees of the Medical and Health Department of the State Government are placed, inspite of the promulgation of the Rajasthan Medical and Health Subordinate Service Rules, 1955 (hereinafter referred as to 'the Rules' ).
(2.) THE petitioner was initially appointed as a Mechanic Grade II on December 22, 1954. He was there after promoted as Mechanic Grade I on March 1, 1956. On March 7, 1975 the petitioner was further promoted as a Foreman Grade I, purely on the temporary basis for a period of 4 months or until a person selected by the Departmental Promotion Committee was available, whichever was earlier. THE petitioner's grievance is that inspite of the promulgation of the Rules in the year 1965, the number of vacancies in the cadre of Foreman Grade I have not so far been determined nor any substantive appointments have been made but ever since the promulgation of the Rules in 1965, persons have been continuing to hold the posts of Foreman Grade 1 in an ad hoc or temporary capacity. THE petitioner's further grievance is that persons junior to him namely, respondent Nos. 3 and 4 were promoted earlier to him to the post of Foreman Grade I and they are still continuing as such although their apppoint-ment on the post of Foreman Grade I was illegal and they should be ousted from such posts. However, as regards the appointment of respondents No. 3 and 4 is concerned, the petitioner's case cannot be considered now as the said respondents have been holding the posts of Foreman Grade I, although in a temporary capacity, but for a very long period. Respondent No. 3 Prem Singh was appointed as a Foreman Grade I on May 25, 1961 in a temporary capacity, while respondent No. 4 Gheesalal was appointed as a Foreman Grade I in a temporary capacity on May 3, 1966. Thus, respondent Nos. 3 and 4 have been holding the posts of Foreman Grade I since 1961 and 1966 respectively and the petitioner cannot challenge the validity of their appointment on the post of Foreman Grade I, in an ad hoc or temporary capacity, by means of a writ petition filed in the year 1975. As regards respondent No. 5 the petitioner has no case inasmuch as the respondent No. 5 was appointed as Foreman Grade II on August 19, 1972 and he has not been promoted as Foreman Grade I. Moreover, according to the reply filed by the respondents, respondent No. 5 has already been declared surplus and services have been surrendered to the General Administration Department for absorption in another department. Thus, the said respondent no longer remains even as a member of the Rajasthan Medical and Health Subordinate Service and he is not working on the post of Foreman Grade I. As regards the main grievance of the petitioner that the vacancies in the cadre of Foreman Grade I have not been determined according to the provisions of Rule 9 and substantive appointments have not been made since 1965, it must be observed that the State Government has paid scant regards to the provisions of Rule 9, since it has failed to determine the number of vacancies as envisaged in the said provision. It is surprising to note that any promotions or appointments have not been made in the category of Foreman Grade I in a substantive capacity ever since the Rules were promulgated in the year 1965 although several years have passed since then. Rule 9 (1), as it stood at the time when the writ petition was filed in the year 1975, read as under:- "9. Determination of vacancies.- (1) Subject to the provisions of these rules, the Appointing Authority shall determine each year the number of vacancies anticipated during the following twelve months and the number of persons likely to be recruited by each method. Such vacancies shall be determined again before the expiry of twelve months of the last determination of such vacancies. " It was incumbent upon the State Government, in accordance with the aforesaid provisions, to determine each year the number of vacancies anticipated during the following twelve months. Prior to October 16, 1973 the number of vacancies anticipated during each calender year were required to be determined by the appointing authority at the commencement of each year, but after the amendment made by the notification dated October 16, 1973, the appointing authority is called upon to determine each year the number of vacancies anticipated during the following 12 months. Such determination of vacancies has to be repeated before the expiry of 12 months of the last determination of such vacancies. However, the petitioner contends and which fact has not been denied by the respondents that ever since the Rules were promulgated in the year 1965, the number of vacancies anticipated either during the calender year or during the next 12 months have not been determined at all. Rule 24 provides that as soon as the number of vacancies is determined and it is decided that a number of posts shall be filled in by promotion, a correct and complete list should be prepared containing the names, not exceeding five times of the number of vacancies, out of the senior most persons qualified for promotion to the class of posts concerned. Thereafter a Departmental Promotion Committee should be constituted, consisting of the Director, the Deputy Secretary to the Government in the Department of Personnel and the Deputy Secretary to the Government in the Medical and Health Department, for the posts falling within the purview of the Appointing Authority and the Committee should consider the cases of all eligible persons and select suitable candidates upto twice the number of posts vacant to be filled in by promotion. According to the Schedule annexed to the Rules, the post of Foreman Grade I is required to be filled in 100% by promotion from amomgst Mechanic Grade I/foreman Grade II/ Fitter Grade I, with five years experience. The reply filed by the respondents in this respect provides an indication about the casual manner in which the mind of the respondents has been working in respect of the rightful claims of the poor and low paid employees of the Medical and Health Department of the State. The respondents have stated as under in their reply dated November 19, 1975:- "in reply to the contents of para 9-A (ii) of the amemded writ petition, it is submitted that the vacancies could not be determined due to administrative difficulties. It is however, submitted that steps are being taken for making the substantive appointments on the post of Foreman Grade II. At that time all the eligible persons will be considered for making substantive appointments. "
(3.) THE learned Deputy Govt. Advocate was unable to submit before this Court as to what administrative difficulties were experienced by the respondent, the Director, Medical and Health Services, who is the appointing authority, in determining the number of vacancies, in accordance with the provisions of Rule 9. It may be pointed out that the provisions of Rule 9 embodies a direction requiring the appointing authority to determine each year the number of vacancies anticipated during the following twelve months. In the case of Rajasthan Public Service Commission, Ajmer vs. Dr. (Miss) Damyanti Dadhich (1), a Division Bench of this Court, while dealing with a similar rule contained in the Educational Service (Collegiate Branch) Rules, 197! observed that Rule 9 is in the nature of a statutory instruction to and for the guidance of the appointing authority and further that if the appointing authority fails to comply with it, his failure in that behalf may create administrative difficulties and he would certainly be answerable to his superiors for his failure in that behalf Thus, a statutory duty has been cast upon the appointing authority under Rule 9 to determine the number of vacancies every year and as the appointing authority has failed to discharge its statutory duty for over 10 years, such failure on his part is likely to adversely affect the legal rights of the petitioner. Unless the number of vacancies are determined under Rue 9, the further process of making substantive appointments under Rule 24 cannot be undertaken and thus the entire process of making substantive appointments in the department on the junior posts of Foreman Grade I are at a stand-still because of the noncompliance of the provisions of rule 9 by the appointing authority. In the face of the axistance of Rule 9, it is not permissible to the appointing authority to club together the vacancies occurring during a long period of time and thereafter to make selections for promotions on all these vacancies together, on the basis of eligibility of all candidates on the date of making such selections. The provisions of Rule 9 have been specifically inserted in the Rules so that the vacancies which had occurred in the previous years may not be clubbed together over a number of years, as it is likely to prejudicially affect the rights of the persons who are entitled to be considered for promotion in the earlier years, according to the eligibility clause. As a matter of illustration, I may refer to the question of promotion to the post of Foreman Grade I. According to the Rules, five years experience on the post of Mechanic Grade I/fitter Grade I/foreman Grade II is required to make a person, working, on any one of the aforesaid posts eligible for promotion to the post of Foreman Grade I. If the vacancies are determined year after year, persons who do not possess the requisite five years, experience would not be eligible for promotion to the post of Foreman Grade I. But if for a number of years the vacancies are not determined, as they occurred from year to year, but ad hoc or temporary promotions are given to a large number of employees without any consideration of seniority and after a number of years the total number of vacancies existing at that time are determined and persons eligible at the time of selection are considered for promotion, then persons who became eligible for promotion in the earlier years are likely to be prejudiced in the matter of selection and seniority. In MP. Agarwal vs The State of Rajasthan (2), Agrawal J. , while dealing with a similar provision contained in Rule 9 of the Rajasthan Medical and Health Service Rules, 1963 observed as under :- "if the Government has the discretion not to fill the vacancies occurring in a particular year in that year the result would be that a vacancy which arises in a particular year against the merit quota and is not filled in that year would be lumped up with a vacancy of seniority- cum-merit quota which arises in a subsequent year and both the appointments will to treated to be made at the same time and thereby the person selected by merit will be deprived of his seniority which he would have got if the selection to the post in the merit quota had been made in the year in which the post fell vacant. Such a consequence would be avoided if Sub-Rule (1) of Rule 9 is construed as imposing a mandatory obligation on the Government to determine, at the commencement of each year the number of vacancies anticipated during the calender year and the number of persons likely to be recruited by each method of recruitment as laid down in Rule 6 and make appointments on that basis only. This does not mean that the Government cannot fill the vacancies occurring in a particular year in a subsequent year. It would be open to the Government to make appointment on a vacancy which occurred in a particular year in a subsequent year also but the said appointments will have to be treated as appointments of the year in which the appointment is made, had accured. This necessarily implies that while making appointments on vacancies which arose in an earlier year, the Government will take into consideration the qualifications and other conditions of eligibility as were present in the year in which the vacancies arose and treat the said appointments as appertaining to the year or years in which the vacancies arose for the purpose of seniority. " The same view was taken by Jain J. in N. K. Hingorani vs. The State of Rajasthan (3) and it was observed in that case that the underlying purpose of the provisions of rule 9 is that after the determination of vacancies, they should be filled up yearly on the then existing eligibility conditions. It was also observed that if the rules are not construed in this manner, they may be open to abuse and just claims may be defeated by clubbing of vacancies of earlier years. If the vacancies are not determined as contemplated by Rule 9 and the vacancies occurring for a number of years are clubbed together, then the selection for such a large number of vacancies would be open to a large number of employees, according to the eligibility conditions existing at the time of selection and it would result in grave prejudice being caused to those employees who could have been selected earlier for promotion if the vacancies would have been determined year after year, as provided in rule 9 and their case for promotion would have been considered according to the eligibility conditions then existing. It appears that the rationals of these decisions has also been recognised by the State Government, inasmuch as rule 9 has been further amended by the notification dated October 6, 1979 published in the Rajasthan Gazette of the same date and was also amended by the notification dated December 21, 1981 published in the Rajasthan Gazette dated July 1, 1982. A new sub-rule 11-A was introduced in rule 24 by the notification dated October 6, 1979, which was substituted by the notification dated October 18, 1982 published in the Rajasthan Gazette dated October 21, 1982. The existing sub-rule 11-A of the rule 24-A runs as under : - "if in any subsequent year after promulgation of these rules, vacancies relating to any earlier year are determined under sub-rule (2) of rule relating to determination of vacancies, which were required to be filled by promotion, the Departmental Promotion Committee shall consider the cases of all such persons who would have been eligible in the year to which the vacancies relate irrespective of the year in which the meeting of the Departmental Promotion Committee is held and such promotions shall be governed by the criteria and procedure for promotion as was applicable in the particular year to which the vacancies relate, and the service/experience of an incumbent who has been so promoted, for promotion to higher post for any period during which he has not actually performed the duties of the post to which he would have been promoted, shall be counted. The pay of a person who has been so promoted shall be re-fixed at the pay which he would have derived at the time of his promotion but no arrears of pay shall be allowed to him. " ;