- (1.) THESE are four Special Appeals arising out of the order dated February 1,1993 of the learned Single Judge of this Court. Out of the afore said four special appeals, three arise out of the three writ petitions which had been filed before the learned Single Judge by Sarva Shri Alauddin Azad (S. B. Civil Writ Petition No. 6089/92), Keshari Singh (S. B. Civil Writ Petition No. 5837/1992) and K. P. Singhal (S. B. Civil Writ Petition No. 4828/1992 ). The appellant in the aforesaid three special appeals is Mahendra Surana who was not the respondent in any of the three writ petitions before the learned Single Judge but has preferred the special appeals and under our order dated February 8, 1993, we had granted leave to Shri Surana to file the special appeals. The said order dated February 8, 1993 may be read as a part of this order in so far as the right of Shri Surana to file special appeals is concerned. The last of the four special appeals (No. 84/1993) has been filed by the State of Rajasthan. This Special Appeal is confined to only against a part of the order of the learned Single Judge in the case of S. B. Civil Writ Petition No. 4828/1992 K. P. Singhal V. State of Rajasthan under which the learned Single Judge has ordered that the services of Shri K. P. Singhal should be counted from April 1, 1972 and not from November 19, 1973.
(2.) IN these special appeals two questions have been agitated at the Bar and they are - (i) whether Sarva Shri Alauddin Azad, Keshari Singh and K. P. Singhal who are the recruits and appointees under the Rajasthan Administrative Service (Emergency Recruitment) Rules, 1976 (for short, Emergency Recruitment Rules) are eligible for consideration for promotion to the Supertime Scale post in the Rajasthan Administrative Service (RAS)?. IN other words, the question is as to whether the above three recruits and appointees have completed 20 years' service on the post included in the Rajasthan Administrative Service ?. Yet in other words the question is as the whether the legal fiction created by rule 25 of the Emergency Recruitment Rules for the purposes of seniority also extends to the service in the RAS? and (ii) the other question is about the date of appointment of Shri K. P. Singhal, whether as held by the learned Single Judge it should be taken as April 1, 1972 or November 19, 1973 ?. The recruitment and appointment to the posts in Rajasthan Administrative Service are governed by the Rajasthan Administrative Service Rules, 1954 (for short, the Original Rules ). Rule 4 (j) of the said Rules defines 'member of Service' which means a person appointed in a substantive capacity to a post in the cadre of the Service under the provisions of rules or of any rules or orders superseded by rule 2. Under clause (1) of rule 4 'service' means the Rajasthan Administrative Service (RAS ). Rule 4 (0) defines 'service' or 'experience' and whenever the aforesaid expressions are prescribed in those rules as a condition for promotion from one Service to another or within the Service from one category to another or to senior posts, in the case of a person holding a lower post eligible for promotion to higher post shall include the period for which the person has continuously worked on such lower post after regular selection in accordance with Rules promulgated under the proviso to Article 309 of the Constitution of India. Part II deals with Cadre and its rule 6 provides that the strength of posts in each grade of the service shall be such as may be determined by the Government from time to time. Part III of the Original Rules is in respect of recruitment and rule 7 gives the sources of recruitment which are (i) by direct recruitment through combined competitive examination and (ii) by promotion of Tehsildars. Besides the recruitment under the Original Rules from time to time in exercise of the powers conferred by proviso to Article 309 of the Constitution of India, the Governor of Rajasthan framed the Rajasthan Administrative Service (Emergency Recruitment) Rules, 1959 which were published in the Rajasthan Rajpatra dated December 4, 1959 Part IV-C (Extra-ordinary) page- 879-885. Yet another set of Rules, namely Rajasthan Civil Services (Recruitment of Released Emergency Commissioned and Short Service Regular Commissioned Officers) Rules, 1968 (for short, the Rules of 1968) were framed which were published in the Rajasthan Gazette (Extra-ordinary) dated June 22, 1968. Part II of those rules deals with reservation and recruitment. A perusal of those rules will show that they were to remain in force for a period of five years from the date of their coming into force. Rule 5 provides the method of recruitment and age limit for entry into service. A reading of rule 6 will show that so far as RAS is concerned 20% of the cacancies were to be reserved for Released commissioned Officers for five years. The vacancies were also reserved for other services in the proportion mentioned therein. Part HI is in respect of seniority and pay. Yet another set of rules, namely Emergency Recruitment Rules were framed in the year 1976 which were published in the Rajasthan Rajpatra, Extraordinary, Part V (C) Sub-section (1) dated September 29, 1976. There were amendments in the aforesaid Emergency Recruitment Rules and the first amendment was made by notification dated December 15, 1976 which was published in the Rajasthan Gazette, Extra-ordinary of that date. It will be seen from a perusal of the aforesaid amendment that though in the Emergency Recruitment Rules, the year of the Rules was mentioned as 1976, but there were amendments in various rules and in rule 4, and 7, the expressions, 'year 1976' and the expression 'during 1976' were substituted by expressions 'year 1977' and 'during 1977' respectively. Similarly, for the expression 'year of allotment 1976' and the expression '1976' wherever occurring in sub- rule (1) of rule 25 the expressions 'year of allotment 1977' and the expression '1977' were substituted, respectively. The expression '1. 1. 1976' occurring in sub-rule (2) of rule 26 was substituted by the expression '1. 1. 1977'. We will deal later on with the Emergency Recruitment Rules, but for the present suffice it to say that '1977' was substituted in various rules for expression '1976'. After coming into force of Emergency Recruitment Rules, the recruitments to the vacancies in various services were held in 1977-78 and we are presently concerned with the RAS. Sarva Shri Alauddin Azad, Keshari Singh and K. P. Singhal were selected under the Emergency Recruitment Rules and in the RAS each of them was appointed in the year 1978 under order dated November 6, 1978 and the names of Sarva Shri Alauddin Azad, Keshari Singh and K. P. Singhal appear at S. No. 11, 40 and 15 respectively. In accordance with rule 25 (1) Sarva Shri Alauddin Azad, Keshari Singh and K. P. Singhal were alloted the years 1970, 1971 and 1972 respectively and as required by sub-rule (2) of rule 25 of the Emergency Recruitment Rules, they were placed in the seniority list below the direct recruits of the year of allotment. There was direct recruitment to the RAS under the Original Rules in the year 1972. The result was declared, but the process of selection took time and the appointments were made in the year 1973 and the direct recruits of 1972 were appointed in the year 1973 and they joined the service on November 19, 1973. So far as K. P. Singhal is concerned, having been alloted the year of 1972 as per rule 25 (2) of the Emergency Recruitment Rules, he was placed below the direct recruits and thus was placed below Shri Mahendra Surana who too was recruited and appointed under the Original Rules to the RAS as a result of the competitive examination held in the year 1972.
(3.) AS per rule 6 of the Original Rules the strength of posts in each grade of the service shall be such as may be determined by the Government from time to time. Schedule-I to the Original Rules contained the strength of the service and the name of the posts in it, and it will be seen from its perusal that they are (i) selection scale post, (ii) posts in the senior scale and (iii) posts in the original time scale. Earlier there were no posts in the Super Time Scale and they were only created later on. The scheme of rule 28-B of the Original Rules which prescribes the revised criterian, eligibility and procedure for promotion to junior, senior and other posts encadred in the Service will show that whereas the selection for first promotion in the State Service is on the basis of seniority-cum-merit of such of the persons who have put in atleast five years' service, the selection for promotion to all other higher categories of posts in the State Service has to be on the basis of merit and on the basis of seniority-cum-merit in the proportion of 50: 50, except to the highest post/posts in the State Service which has to be on the basis of merit alone. Even in case of selection for promotion to the highest post/posts in the State Service on the satisfaction of the committee the suitable persons are not available for selection by promotion strictly on the basis of merit, the selection by promotion to that post on the basis of seniority-cum-merit can be made in the same manner as prescribed in the rules. It will further be seen by a reading of sub-rule (8) of rule 28-B that if a person has been selected/appointed on the basis of merit he becomes eligible for promotion to the next higher post or category of posts to be filled in on the basis of merit as and when he has put in after regular selection atleast five years of service unless a higher period of service is prescribed elsewhere in the rules on the first day of the month of April of the year of selection on the post or category of post from which selection is to be made. The condition of five years' service shall not be applicable to a person, if any person junior to him is eligible for consideration for promotion on the basis of merit. Rule 32 of the Original Rules deals with appointment to senior post and sub-rule (3) of rule 32 is relevant for the present purpose which reads as under : - " (3) No member of the service who has not completed 3 years service on the selection scale posts and 20 years service in all on the posts included in the service shall be eligible for appointment on the super time scale posts. " By virtue of rule 27 of the Emergency Recruitment Rules except as provided in those rules, probation pay, allowances, pension, leave and any other condition of service of a person appointed to the Service by Emergency Recruitment under the Emergency Recruitment Rules shall be regulated by the provisions of the Original Rules as amended from time to time. Mahendra Surana, as said earlier, was appointed in the year 1973 and each of the three respondents (Petitioners in the aforesaid three writ petitions) namely Sarva Shri Alauddin Azad, Keshari Singh and K. P. Singhal, were appointed in the year 1978 under the Emergency Recruitment Rules. Shri Surana was given senior scale of RAS in the year 1979 and was also given selection in the year 1987-88. Alauddin Azad was given senior scale of RAS on ad hoc basis against the vacancy of 1981-82. Keshari Singh and K. P. Singhal were also promoted to senior scale of RAS in the year 1981-82 under different orders. These three persons were further promoted in the selection scale of RAS against the vacancies of the years 1988-89. A seniority list of the selection scale officers of RAS was issued on February 1, 1983. In the said seniority list, K. P. Singhal was placed at No. 40. Some other persons actually appointed in the year 1973 in the RAS consequent to the examinations held in 1972 by the RPSC were placed higher than Shri Singhal. Representations were filed. One Kashri Singh Rathore filed an appeal (No. 958/1984 before the Rajasthan Civil Services (Appellate) Tribunal, Jaipur (for short, the Tribunal ). The said appeal was dismissed and a view was taken by the Tribunal that once a person is appointed to the RAS under the Emergency Recruitment Rules and is awarded seniority under rule 25 of those rules then it is necessary corollary that he derives the benefit. of service with reference to the assigned notional year of allotment. ;