- (1.) AS identical questions of fact and law are involved in all the above writ petitions as such the same are disposed of by one common judgment.
(2.) IN all the above writ petitions validity of Rule 25 of the Rajasthan Administrative Service (Emergency Recruitment) Rules, 1976 (hereinafter referred to as "the Emergency Rules"), has been challenged. All the petitioners are the members of the Rajasthan Administrative Service Rules, 1954 (hereinafter referred to as the "r. A. S. Rules" ). Part III of R. A. S. Rules deals with recruitment to the service. Rule 7 of the R. A. S. Rules provides sources of recruitment. There are four sources of recruitment to the service after the commencement of these rules (a) by a competitive examination; (b) by promotion of administrative subordinate; (c) by selection from among the extension officers out of the categories mentioned therein; (d) by special selection, from among persons other than administrative subordinates and persons governed by item (c) above serving in connection with the affairs of the State. Under sub-rule (2) of Rule 7 of the R. A. S. Rules recruitment by competitive examination, promotion, selection from amongst extension officers and special selection shall be made in the ratio of 16:6:2:1. The petitioner in writ petition No. 589 of 1981 is a direct recruit of 1972, in writ petition No. 1211 of 1981 a direct recruit of 1974, in writ petition No. 635 of 1981 a direct recruit of 1976. The petitioner in writ petition No. 1334 of 1981 is a special selectee of 1974 and the petitioner in writ petition No. 1368 of 1981 is a promotee of 1976. Except the petitioner in writ petition No. 589 of 1981, all other petitioners were already in Government service for a number of years ranging from 5 to 25 years before their appointment to the Rajasthan Administrative Service either by direct recruitment or by promotion or by special selection. Rule 33 of the R. A. S. Rules provides for seniority as under : - "r. 33 (l)-Seniority of persons appointed to the lowest post of the service or lowest categories of post in each of the group/section of the service, as the case may be, shall be determined from the date of confirmation of such persons to the said post but in respect of persons appointed by promotion to other higher posts in the service or other categories of posts in each of the group/section in the service, as the case may be, shall be determined from the date of their regular selections to such posts : Provided : - (i) that the seniority inter se of the persons appointed to the service before the commencement of these Rules shall be such as may have been determined or as hereinafter be determined by the State Government in accordance with the principles and instructions set out in Schedule V; (ii) that subject to proviso, (iii) among persons appointed to the service during the same year from the five sources specified in rule 7, persons appointed by promotion shall be senior to those appointed by special selection and persons appointed by special selection shall be senior to those by direct recruitment; (iii) that the persons appointed to the services by selection this year from amongst the non R. A. S. V. A. in the manner prescribed in sub-clause (3) to Rule 7 shall be senior to those appointed by direct recruitment in 1960 but below those to be appointed by Emergency Recruitment of 1960, i. e. persons appointed by promotion, special selection and Emergency Recruitment of 1960 shall be senior to the above officers; (iv) the persons appointed to the service by selection from the categories referred to in rule 7 (ii) (c) shall be junior to those appointed by special selection but senior to those appointed by direct recruitment in the same year; (v) that the seniority of a person appointed to the service by special selection, if he had been appointed Assistant Secretary to Government in a substantive capacity before the promulgation of these Rules shall be calculated according to the formula by which the seniority of persons appointed to the service before the promulgation of these Rules is calculated namely Schedule V; (vi) that the persons selected and appointed as a result of a selection, which is not subject to review and revision, shall rank senior to the persons who are selected and appointed as a result of subsequent selection. Seniority inter se of persons selected on the basis of seniority-eum-merit and on the basis of merit in the same selection shall be the same as in the next below grade. (vii) that the seniority inter se of the persons appointed to the service on the result of one and the same examination, except those who do not join the service when a vacancy is offerred to them, shall follow the order in which they have been placed in the list prepared by the Commission under rule 25 : (2) In determining senority of persons appointed to the service in accordance with the provisions of sub-rule (1) Government, if satisfied of any error or omission having been made in the seniority list (in consequence of incorrect data supplied by the persons appointed to the service or otherwise) shall have the power - (i) to fit in and adjust any person so appointed at such position therein as it may deem just and proper, and (ii) to alter the position for the time being of any such person in the said list; Provided - that changes in the seniority list of persons covered by proviso (i) of Sub-rule- (1) will not be made by Government after 31-12-58. 2. This will have effect from the 9th day of July, 1954". Part IV of the R. A. S. Rules deals with procedure for direct recruitment which is done by a competitive examination for recruitment to the service conducted by the Rajasthan Public Service Commission. Part iv deals with procedure for recruitment by promotion. Part VI deals with procedure for recruitment by special selection According to the petitioners R. A. S. Rules of 1954 deal with every matter relating to the persons belonging to the Rajasthan Administrative Service. These Rules provide right from the point of determination of vacancies, to the point of appointment, promotion, confirmation, seniority, pay, discipline and conduct etc. The procedure prescribed for recruitment by R. A. S. Rules has been in vogue for last 20 years and several recruitments have been made by the Govt. from time to time, through the agency of the Rajasthan Public Service Commission. However, in the years 1956, 1959 and 1976, the Governor of Rajasthan promulgated the Rajasthan Administrative Service (Emergency Recruitment) Rules Rule 2 (g) of the Emergency Rules, 1976 defines service which means the Rajasthan Administrative Service. Rule 6 relates to the source of recruitment. Rule 10 relates to age, while Rule 11 relates to qualifications. Procedure for recruitment is prescribed in part IV. Rule 25 deals with the seniority of the employees appointed under the Emergency Recruitment Rules which has been challenged in these writ petitions. Rules 6, 11 and 25 of the Emergency Rules, 1976 are reproduced hereunder, as their reference would be necessary while dealing with the arguments advanced by learned counsel for both the parties : "r. 6 - Source of Recruitment - (1) Upto 25% of the vacancies shall be filled up from amongst employees of the Government of Rajasthan who on 31-12-1975 either held in a substantive capacity or have been working for a period of three years on 31-12-1975 in an officiating/adboc/temporary capacity, on the following posts : - (i) Tehsildar; (ii) Grade I Inspector of Devasthan Department; (iii) Assistant Commercial Taxes Officer; (iv) Assistant Regional Transport Officer; and (v) Assistant Excise officer. The names of the candidates selected against the vacancies reserved under this sub-rule shall be arranged in the order of merit irrespective of the service to which they belong. (2) The remaining vacancies shall be filled - up from amongst other persons ( hereinafter referred to as "other persons") in profession, business or any Government or semi Government or Private employment having total monthly emoluments of Rs. 450/ -. " "r. 11 - Qualifications - (1) A candidate must hold a degree in Arts, Science, Engineering, Agriculture or Commerce of a University established by law in India or of a Foreign University declared by a Government to be equivalent to a degree of a University established by law in India or a degree or diploma recognised by the Government as equivalent thereof. (2) In respect of persons referred to in sub-rule (2) of rule 6, a candidate must have acquired by the 1st of the month in which notice is issued by the Commission inviting applications for emergency recruitment to the service any of the following experience, - (a) continuous service for three years in any department of the Government of Rajasthan or any other State Government or the Govt. of India or Commercial firm or with a private employer on the monthly emoluments of Rs. 450/- or above; (b) experience at the Bar for three years continuously as a Registered Legal Practitioner after obtaining degree of Bachelor of law or equivalent degree: Provided that the condition of the monthly emoluments of Rs. 450/-as provided in clause (a) above shall not apply in case of candidates belonging to the Scheduled Caste and the Scheduled Tribes and women candidates. In case of women candidates the condition of three years continuous service shall also not apply : Provided further that in case of Ex-service men the condition of the monthly emoluments of Rs. 450/- as provided in clause (a) above shall not apply if their monthly emoluments at the time of application is a less than Rs. 450/- provided monthly emoluments at the time of honourable discharge/ retirement from the armed forces were Rs. 450/- or above. Explanation-Persons other than the Government servants who are eligible under clauses (a) and (b) above shall furnish such proof as may be required by the Commission and an affidavit in respect of their income. " "r. 25 - Seniority - (1) Notwithstanding anything contained in rule 33 of the Rajasthan Administrative Service Rules, 1954, seniority of persons appointed to the service under these rules shall be on the basis of a notional year of allotment determined as follows : - Year of allotment-1976 (NI + Half of N 2) where - N 1 means + completed years, including broken period, after the age of 28 years of employment or practice of profession as on 1. 4. 76, with regular monthly emoluments therefrom amounting to at least Rs. 625/ -. N 2 means + completed years, after the age of 28 years of employment or practice of profession as on 1. 4. 76 with regular monthly emoluments therefrom amounting to less than Rs. 625/ -. (2) After assignment of years of allotment under sub-rule (1), a person shall be placed in the list of Rajasthan Administrative Service Officers immediately below the junior most Rajasthan Administrative Service Officer appointed by direct recruitment in that year. (3) Among persons appointed to the grade under these rules who are assigned the same year of allotment, inter se seniority shall be determined on the basis of age. " According to the petitioners the persons selected under the Emergency Recruitment Rules become members of the Rajasthan Administrative Service and Rule 27 of the Emergency Rules further lays down that except as provided in these rules, probation, pay, allowances, pension, leave and any other condition of service of a person appointed to the service by Emergency Recruitment under these rules shall be regulated by the provisions of the Rajasthan Administrative Service Rules, 1954, as amended from time to time. The case of the petitioners is that the persons selected under the Emergency Rules become members of the Rajasthan Administrative Service and are regulated by the same condition of service as a member of the Rajasthan Administrative Service except in the matter of determination of seniority which has been provided under Rule 25 of the Emergency Rules. It is further pointed out that Rule 23 of the Emergency Recruitment Rules of 1956 which laid down a provision for determination of seniority came to be challenged by a writ petition No. 175 of 1973 filed by Shri Praveen Chand Jain. That writ petition was allowed by a learned single Judge of this Court whereby Rule 23 of the Emergency Rules was struck down and the seniority-list prepared on that basis was also declared invalid and quashed. Special appeals were preferred by four aggrieved parties being special appeal Nos. 43/80, 151/80 and 152/80 and 165/80 and the same were dismissed by a Division Bench of this Court by judgment, dated August 14, 1980. Thus the Division Bench upheld the decision of the single Bench whereby Rule 23 of the Emergency Recruitment Rules, 1956 had been struck down. It is further submitted that the State of Rajasthan also accepted the principles laid down by this Hon'ble Court in the decision referred to above and for that reason notifications have been issued on June 12, 1981. ( Annexures 6 and 7 in writ petition No 589/81) by which Rule 23 of the Emergency Recruitment Rules of 1956 and 1959 has been amended. This amendment has been given retrospective effect from June 4, 1956 and December 4, 1959 respectively (the dates on which the Rules of 1956 and 1959 were promulgated ). Rule 23 as it stands now in the aforesaid two rules reads as under: - "r. 23 - Seniority - The persons appointed to the service by Emergency Recruitment shall rank junior to the persons appointed by the special selection and senior to the persons appointed by direct recruitment, during the same year. " Mr. Singhvi, learned counsel for the petitioners, has challenged the rule of seniority contained in Rule 25 of the Emergency Rules. It is contended that for emergency recruits of 1956 and 1959 there was one set of rule as contained in notifications issued on June 12, 1981 as reproduced above and for the emergency recruits of 1976, a different rule has been provided under Rule 25 of the Emergency Rules for the purpose of determination of seniority. The emergency recruits under the Rules of 1956 and 1959 have been assigned seniority only above the direct recruits of that particular year but below the special selectees, selectees and promotees of that year. However, the emergency recruits under the Rules of 1976 are shown to be assigned seniority by giving them the benefit of a notional year of allotment as determined according to the formula under Rule 25 of the Emergency Rules. It was also contended that a number of persons who had appeared in the competitive examination by direct recruitment held under the Rajasthan Administrative Service Rules of 1954 were not selected, while the petitioners and persons similarly placed were selected in the years 1972, 1973, 1974 and 1976. Thus the persons who could not compete by way of direct recruitment were subsequently selected under the Emergency Recruitment Rules of 1976. Though the persons who were already in Govt, service and were appointed by direct recruitment under the R. A. S. Rules of 1954 have not been given a day's benefit for the purpose of assignment of year of allotment, yet the Emergency Recruits have been given such a benefit with the help of formula N. 1+n. 2. It is also contended that the petitioner, K. D. Khan, in writ petition No. 1334 of 1981 and petitioner Baloo Ram in writ petition No. 1368 of 1981 had long years of Government service to their credit. Baloo Ram had entered Govt. service in 1951 and was substantively appointed as Tehsildar in 1960 K. D. Khan entered Govt. service in 1958 and came to be appointed as Record Officer in 1975. Baloo Ram was promoted to Rajasthan Administrative Service on December 8, 1973. Inspite of that neither of them has been given any weight age of their past service or experience except that they were entitled to rank senior to the direct recruits of the year in which they were recruited by promotion or special selection. As against this Balooram Kamlesh whose name appears at item No. 86 had entered Govt. service in 1972 as Naib Tehsildar and had been recruited under the Emergency Rules, 1976 and has been assigned seniority over Baloo Ram, who had 19 years more service than Baloo Ram Kamlesh. Likewise Shri Jagdish Narain who was appointed in the service in 1962 and promoted as Tehsildar much after Balooram had been assigned seniority at No. 22. Belaram Madhup who had now been assigned seniority at No. 93 had entered Government service on October 7, 1971.
(3.) IT is next contended that actual method of recruitment under the Emergency Rules is the same and once they are appointed to Rajasthan Administrative Service, they merge with the general cadre of Rajasthan Administrative Service and no distinction remains with reference to the source of recruitment. Once all Rajasthan Administrative Service Officers become member of the service, no distinction can be made with reference to their source of recruitment for the purpose of assignment of seniority Reliance in this regard is placed on the following rulings in Roshan Lal Tandon vs. Union of India (1 ). The General Manager, South Central Railway, Secunderabad vs. A. V. R. Siddh-anti (2) and Mohammad Shujat Ali vs. Union of India (3 ). On the basis of the above rulings it is contended that rule regarding seniority must have a co-relation with the object sought to be achieved by it and with the distinction sought to be made between the persons recruited under the R. A. S. Rules of 1954 and under the Emergency Rules, 1976. IT is submitted that Rule 25 of the Emergency Rules fails in both the tests, ft makes an absolute artificial classification of persons recruited under the Emergency Rules, 1976 from the larger class of persons who constitute Rajasthan Administrative Service. It is also contended that when the direct recruits under the R. A. S. Rules and Emergency recruits under the Emergency Rules are appointed to the Rajasthan Administrative Service with the similar academic qualifications, there is absolutely no justification for making a distinction between these two classes. That apart so far as the promotees, selectees and special selectees are concerned, they are all Government servant and have vast administrative experience on subordinate and other posts. Now if the rule making authority has considered their past service etc only for the purpose of giving them seniority over the direct recruits of that particular year, there cannot be any justification for giving weight age by way of notional year of allotment to those recruits under the Emergency Rules on the ground that these persons were experienced persons. It was further submitted that Rules 6 (2) and 11 of the Emergency Rules envisaged that in the emergency recruitment a person who fulfilled the requisite academic qualifications need not be in a Government service. He could be in a private employment or may be in a gainful employment in any business or corporation. For the purpose of eligibility under Rule 11 (2) (b) even there was no requirement of particular monthly emoluments. This rule has not been enacted necessarily with the object of having experienced hands only. A broad object of the rule was only to recruit persons to Rajasthan Administrative Service necessitated by immediate requirement of officers and nothing more than that. That being so, it was absolutely irrational to give benefit of so called notional year of allotment with reference to one year's period after 28 years taking into consideration the emoluments of Rs. 625/- p. m. or less than Rs. 625/ -. It is further argued that the pay scale of the R. A. S. Officers with effect from September 1, 1976 is in the grade of Rs. 750-1350 being the basic pay and approximate emoluments of a person who entered Rajasthan Administrative Service on September 1, 1976 by direct recruitment was about Rs. 1,000/. That being so the fixing of Rs. 625/- cannot have any justification for the purpose of determination of seniority. ;