- (1.) IN this writ petition, under Article 226 of the Constitution of INdia, filed against the High Court of Judicature for Rajasthan (respondent No. l) and Shri Sankal Chand (respondent No. 2), the petitioner, Shri Ramesh Chand Paliwal, has challenged the order No. Estt/hc/92/116 dated 28. 2. 1992 (Annexure-2), issued by the Registrar of the respondent No. l under the authority of the Hon'ble Chief Justice, amending the order No. Estt/hc/90/250 dated 11-5-1990 (Annexure-1) and the appointment on promotion of the respondent No. 2 to the post of Dy. Registrar vide order No. Estt/hc/92/130 dated 6-3-1992 (Annexure-6 ). The brief facts are as under : -
(2.) ORIGINALLY, there was a single post of Dy. Registrar (non RJS) on the establishment of the High Court and rule 9 of the Rajasthan High Court (Conditions of Service of Staff) Rules, 1953 (the Rules) specified it under the category of the posts carrying special responsibility or requiring special qualifications and appointment/promotion to this post was to be made by selection. In the year 1975, one more post of Dy Registrar was created vide Government Order No. F. 19 (49) Judl/75 dated 8-9-1975. Upto the year 1980 promotion to both the posts of Dy. Registrars (non RJS) was made by selection from amongst the Assistant Registrars. However, considering the demands made by the Stenographers' cadre, order No. Estt/hc/80/3 dated 2-1-1980 was issued by the Hon'ble Chief Justice providing that appointments to the posts of Dy. Registrars (Administration) shall be made by selection from amongst the Assistant Registrars or Super time Scale Private Secretaries-cum-Judgment Writers (hereinafter to be referred to as the Private Secretaries ). There used to be a post of Weeding Officer, which was abolished and, in lieu thereof, one post of Dy. Registrar (Records) was created vide Government Order No. F. 20 (30) Judl/76 dated 26. 7. 1984 and, in this way, the number of posts of Dy. Registrars was raised from two to three and, vide Government order No. F. 20 (3) Judl/86 dated 9. 7. 1987, two posts of Dy. Registrars (Protocol) were created raising the number of posts of Dy. Registrars from three to five. Since the feeder posts for promotion to the posts of Dy. Registrars (non RJS) were Assistant Registrars and Private Secretaries and these feeder posts were from different cadres but no interlaced seniority was fixed for being considered for promotion to the posts of Dy. Registrars and since the rules did not provide for any guidelines for promotion by selection from amongst these feeder posts and an Assistant Registrar had been promoted to the post of the Dy. Registrar, in the year 1988, Shri Laxmi Narain Mathur, a Private Secretary, filed a writ petition in this High Court (D. B. Civil Writ Petition No. 545/88) and, while deciding the said writ petition, the Division Bench observed that though the court would not like to interfere with the appointment of the officer already promoted to the post of Dy. Registrar as he was to retire shortly, but in future, whenever a post of Dy. Registrar fell vacant, the same should be filled in after amending the rules or by making the order by the Chief Justice by virtue of the powers vested in him under the Rules and that either the principles/guidelines should be fixed for fixing interlaced seniority of Assistant Registrars and Private Secretaries or a ratio or proportion for filling the posts of Dy. Registrars from amongst the two cadres or any other alternative should be adopted by the Hon'ble Chief Justice so that cases of the officers of both the cadres are fairly considered for promotion as Dy. Registrar. Since three posts of Dy. Registrars were lying vacant and were to be filled in, the matter was put up before the Hon'ble Chief Justice and, thereupon, order No. . Estt/hc/88/422 dated 15-11-1988 (Annexure-5) was issued specifying that the appointment/promotion to the posts of Dy. Registrars (Administration/records/protocol) shall be made by selection by the Hon'ble Chief Justice from amongst the Assistant Registrars and the Private Secretaries as under : - 1. Assistant Registrar 2. Private Secretary-cum-Judgment Writer 3. Assistant Registrar 4. Private Secretary-cum-Judgment Writer 5. Assistant Registrar It was further provided in the order that the above principle would apply for filling the existing three vacancies as well as the two vacancies occurring thereafter; and that, thereafter, the vacancy would be filled from the same source to which the retiring officer belonged. It was further provided that a Court Officer (who, normally, was appointed as such either from amongst the Assistant Registrars or from amongst the Private Secretaries), when considered for promotion as Dy. Registrar, would be treated as belonging to his parent cadre of Assistant Registrars or Private Secretaries, as the case may be, to which he belonged, and that his seniority would be the same as in his parent cadre and the appointment of any Assistant Registrar or Private Secretary as Court Officer would not affect his seniority either way in his parent cadre for the purpose of his promotion as Dy. Registrar and he would be considered for promotion as Dy. Registrar against the vacancy meant for his parent cadre and according to his seniority therein. Vide order No. Estt/hc/90/250 dated 11. 5. 1990 (Annexure-1), the above said rule for promotion to the posts of Dy. Registrars was amended and it was provided that the appointment/promotion to the five posts of Dy. Registrars (Administratioin/records/protocol) shall be made by selection by the Hon'ble Chief Justice from amongst the Assistant Registrars/court Officer and the Private Secretaries as under : - " 1. Assistant Registrar/court Officer 2. Private Secretary-cum-Judgment Writer 3. Assistant Registrar/court Officer 4. Private Secretary-cum-Judgment Writer 5. Assistant Registrar/court Officer It was further provided that the said principle would apply for filling the then existing vacancies as also the vacancies occurring thereafter. This order further abolished the eligibility condition for consideration of a Court Officer for the post of Dy. Registrar and even the provision that after filling the five vacancies the vacancy falling vacant would be filled in from the same source to which the retiring officer belonged, was omitted. In this way, the roster system was followed for filling in the vacancies of Dy. Registrars in the sense that if one vacancy was filled in from the cadre of Assistant Registrars the vacancy falling thereafter was filled in from the cadre of Private Secretaries and so on without caring for the effect on the quota in the vacancies so filled. Another post of Dy. Registrar was created thus raising the number of posts of Dy. Registrars from five to six and, following the above said roster system, Shri Raja Babu Jain was appointed on promotion to the said post from the cadre of Assistant Registrars on 24. 4. 1991, Since some representations were received from the staff against the rule framed vide order dated 11-5-1990 (Annx. l), the Hon'ble Chief Justice heard the representatives of the staff as also of the Private Secretaries and passed necessary orders amending the rule (Annexure-1) and, thereafter, order No. Estt/hc/92/116 dated 28. 2. 1992 (Annexure-2) was issued which omitted the words that the principle of filling in the existing vacancies of Dy. Registrars would be followed for filling in the vacancies occurring thereafter and also provided that the vacancies occurring later would be filled from the same source to which the retiring officer belonged. On the basis of the rule so amended, respondent No. 2 was selected and promoted to the post of Dy. Registrar vide order No. Estt/hc/92/130 dated 6-3-1992 (Annexure-6 ). The petitioner, who belongs to the cadre of the Private Secretaries, has felt aggrieved and has filed this writ petition on 11-3-1992 contending that the rule as amended vide Annexure-2 has resulted in fixing the quota of Private Secretaries and Assistant Registrars as 2:4 for promotion to the post of Dy. Registrars and that the rule has been made arbitrarily without application of mind and is liable to be struck down. It has further been pleaded that in any case the vacancy against which the respondent No. 2 has been promoted occurred on 1-2-1992 and was to be filled in, in accordance with the rule mentioned in Annexure-1 and Annexure- 2 not being retrospective could not be applied for filling in the vacancy occurring prior thereto and, as such, the appointment on promotion of the respondent No. 2 to the post of Dy. Registrar from the cadre of Assistant Registrars was illegal. He has pleaded that his number in the seniority in the cadre of the Private Secretaries is three and he is eligible to be considered for the post of Dy. Registrar to be filled in from his cadre and has prayed that the rule contained in Annexure-2 be struck down, the order of appointment by promotion of the respondent No. 2 (Annexure-6) be quashed and the respondent No. l be directed to prepare an interlaced seniority list of the Assistant Registrars and the Private Secretaries for the purpose of promotion to the posts of Dy. Registrars (non RJS) and to consider the petitioner for promotion in terms of the order dated 11-5-1990 (Annexure-1 ). The writ petition has been opposed by both the respondents on the ground that the rule has been validly made in exercise of the powers vested in the Hon'ble Chief Justice and that the appointment on promotion of the respondent No. 2 has been legally made to the post of Dy. Registrar from amongst the cadre of Assistant Registrars.
(3.) WE have heard the learned counsel for the parties and have also perused the record of the writ petition as also the relevant records of the High Court, produced before us. It has been contended by the learned counsel for the petitioner that firstly the vacancy against which the respondent No. 2 has been appointed occurred on 1. 2. 1992 because of the retirement of Shri Shambhu Chand Mehta on 31-1-1992 and, as such, the said vacancy was to be filled in, in accordance with the rules as were prevailing on the date of occurring of the vacancy i. e. 1. 2. 1992 and the respondent No. 2 having been appointed on promotion to the post of Dy. Registrar in accordance with the rule as amended vide order dated 28. 2. 1992 (Annexure-2) his appointment is not legal. In the alternative, it has been contended that the rule as amended vide Annexure-2 is liable to be struck down on the ground that the order amending the rule had been passed arbitrarily and without application of mind inasmuch as whereas the purpose of the amendment, as contended by the learned counsel for the respondent No. l was to see that the ratio fixed for filling in the vacancies is not disturbed by following the rule of rotation and giving all the vacancies to the Private Secretaries during the course of time; they being younger in age coming to occupy the feeder posts; as against the Assistant Registrars, who get promoted to the said posts at a very late age; the result of amendment is that the ratio of the posts reserved for being filled in from the cadre of Private Secretaries as against those to be filled in from the cadre of Assistant Registrars has been reduced. The learned counsel for the respondents have not disputed that after the order (Annexure-1) was issued and before the amendment in the rule was made vide order dated 28. 2. 1992 (Annexure-2), while giving promotion to the post of Dy. Registrar the cyclic order was being followed and was to be followed inasmuch as if one vacancy was filled from amongst the officers belonging to the cadre of the Assistant Registrars/court Officer, the vacancy occurring subsequent thereto, would be filled in from amongst the officers belonging to the cadre of the Private Secretaries and, in this way, the vacancy occurring on 1. 2. 1992, due to the retirement of Shri Shambhu Chand Mehta on 31. 1. 1992, would have been filled in from amongst the officers belonging to the cadre of Private Secretaries, as the earlier vacancy had been occupied by an officer belonging to the cadre of the Assistant Registrars/court Officer. It is further not disputed that the respondent No. 2, who belonged to the cadre of Assistant Registrars could not be considered for appointment against the vacancy that occurred on 1-2-1992 in absence of the rule as amended on 28. 2. 1992 vide Annex. 2. In view of the decision of the Apex Court in case "y. V. Rangaiah & Others vs. J. Sreenivasa Rao & Others (1) and of this court in case "m. P. Agarwal vs. The State of Rajasthan & Another" (2), the learned counsel for the respondents have not been able to dispute the proposition that in case a vacancy is to be filled in by promotion and the eligible officers in the feeder posts are available, the vacancy has to be filled in, in accordance with the rules that prevail on the date that the vacancy occurs. ;