TATIA, J. - (1.) THIS special appeal is against the judgment of the learned Single Judge dated 6. 2. 2004 by which the learned counsel Single Judge allowed the writ petition filed by respondent No. 1 and set aside order dated 8. 8. 1989 (Annex. 3) by which the appellant-non-petitioner 2 was promoted to the post of Senior Personal Assistant in the office of the District Judge, Jodhpur and also set aside the order dated 9. 8. 1991 (Annex. 5) by which the High Court, in administrative side, rejected the appeal of the respondent No. 1 petitioner. The learned Single Judge further directed respondent No. 3 (non-petitioner No. 2) the District Judge, Jodhpur to consider the question of giving appointment to the petitioner to the post of Senior Personal Assistant by considering the comparative merit of the petitioner and non-petitioner no. 3 and in case very one being found equal then to give weightage of seniority to the petitioner after excluding the weightage of experience gained by the appellant non-petitioner on the post for consideration. The learned Single Judge further held that in case the petitioner is found suitable and appointed in place of respondent No. 3, the consequential benefits should be awarded to the petitioner except cash benefits until actual promotion is made.
(2.) BRIE facts of the case are that the respondent No. 1 petitioner (hereinafter referred as the petitioner) was appointed as Stenographer Gr. II vide order dated 7. 5. 1977 (Annex. 1) by the District Judge, Jodhpur. The petitioner was promoted to the post of Stenographer Gr. I cum Personal Assistant vide order dated 22. 7. 1985, however, the promotion was made with effect from 18. 7. 1985. Copy of the order is Annexure 2. A post of Senior Personal Assistant was created in the office of the District Judge, Jodhpur and the appellant (non-petitioner No. 3 in the writ petition (hereinafter referred as non-petitioner No. 3), was promoted to the said post vide order dated 8. 8. 1989 (Annex. 3 ). The petitioner being aggrieved against the order of promotion of non-petitioner No. 3, preferred appeal before he High Court in administrative side which was rejected by the appellate authority vide order dated 9. 8. 1991 in the administrative side. Copy of this order is placed on record as Annexure -5 and has been challenged by the petitioner. The petitioner in the writ petition submitted that non- petitioner No. 3 was initially appointed in Udaipur judgeship and was transferred on his own request in the year 1984 to Jodhpur and he joined in the office of District Judge, Jodhpur on 4. 8. 1984. He was promoted as Stenographer Gr. I cum Personal Assistant on 7. 12. 1986. According to petitioner, the service conditions of the petitioner are governed by the provisions contained in the Rajasthan Subordinate Courts Ministerial Establishment Rules, 1986. The post of Senior Personal Assistant is not covered by the Rules of 1986 and since there being no criteria, the post of Senior Personal Assistant is required to be filed up by seniority alone. it is submitted that since the petitioner rank senior, therefore, she was entitled to be promoted to the post in question. It is also submitted that even as per the merit, the performance of the petitioner is outstanding and very good during her entire service carrier. She never gave any occasion for complaint or displeasure. it is submitted that neither of the authority below nor the appellate authority properly evaluated the merit of the petitioner vies-a- vis, the appellant non-petitioner No. 3 and wrongly rejected the candidatures of the petitioner respondent No. 1 and further wrongly rejected her appeal. Reply was filed on behalf of writ non-petitioners No. 1 and 2 and in appeal respondents No. 2 and 3 High Court and the learned District Judge, Jodhpur jointly and respondent Nos. 2 and 3 seriously objected against petitioner respondent No. 1's projecting that predominant consideration in passing the orders Annexures-3 and 5, was that the petitioner is female and, therefore, cannot be promoted, which is clearly a distorted version inasmuch as a bare reading of Annexure-5 makes it clear that it has positively been passed by the appellate authority that while making the appointment vide Annexure-3, comparative merit of all the three candidates were dispassionately considered and without any gender bias or influence, the non-petitioner no. 3 appellant was found most meritorious. It is also submitted that the petitioner has suppressed facts which had a long bearing for adjudging the comparative merit and that, according to the non- petitioner availed such leaves which were though legally admissible to her but the petitioner was in the habit of remaining absent without getting the leave sanctioned or at times, even without applying for the same. However, respondents No. 2 and 3, High Court and the District Judge, Jodhpur admitted that on moving applications by the petitioner respondents No. 1 ex post facto leave was sanctioned. According to the respondents, this was the negative point while adjudging the merit of the petitioner respondent No. 1. So far as facts mentioned in para Nos. 1 to 8 in the writ petition are concerned, non-petitioners No. 1 and 2 (respondents No. 2 and 3), substantially not disputed the facts and submitted that the post of Senior Personal Assistant was not one of the cadred post under the Rules and it was a newly created post after enactment of the Rules. It is also submitted that an objective decision was taken by non-petitioner, District Judge, Jodhpur that the post in question should be filled in by making selection on the basis of merit and since the post was to be filled on the basis of merit, the question of seniority of petitioner/respondent No. 1 vis-a-vis non-petitioner No. 2- appellant are of no relevance. However, the thrust of the argument was that non-petitioner No. 3-appellant was given promotion after holding that petitioner-respondent No. 1 cannot perform duties of Senior Personal Assistant with efficiency and devotion whereas the appellant non-petitioner No. 3 has better merit. Therefore, the decision taken to promote non-petitioner No. 3-appellant, on the said post is, in all fairness, just, proper and legal. The contesting non-petitioner No. 3-appellant also filed reply and it was submitted that since the post of Senior Personal Assistant was created in accordance with law and since there were no specific rules for filling the post, therefore, necessary guidance was sought from the High Court and Hon'ble the High Court directed the learned District Judge to use his discretion to evolve and decide to fill up that post by way of applying criteria of merit. The learned District Judge, Jodhpur considered the merit and, thereafter, passed the order to promote non- petitioner No. 3-appellant. The criteria of merit was never challenged by the petitioner respondent No. 1.
(3.) A detailed rejoinder was filed by the petitioner respondent no. 1 to the reply filed by the High Court and the District Judge. The learned Single Judge, after examining the record, the ACTs of all the three candidates as well as record of the appointing authority and the appellate authority, including the representation made by the petitioner-respondent No. 1, observed that the comparative merit examined by the learned District Judge does not show any where any comparison of the ACRs and on what basis one is found to be superior to another. After rejecting the plea on the ground of limited scope of judicial review in such matter, the learned Single Judge allowed the writ petition vide impugned order dated 6. 2. 2004. The learned counsel for the appellant vehemently submitted that the learned Single Judge exceeded his jurisdiction and travelled beyond the permissible limits for interference in the impugned order Annexure-3 and Annexure-5. It is also submitted that Hon'ble the Apex Court, in a catena of authorities, laid down the parameters within which the court can interfere in the matter of order of promotion. According to the learned counsel for the appellant, admittedly, the post was newly created and in the Rules, there was no criteria laid down for promotion, the appointing authority decided to fill in the post on the basis of merit after getting approval to take decision from the High Court and, therefore, decided to fill in the post by selecting the candidate on the basis of merit. In the case of Santram Sharma vs. The State of Rajasthan and Another (1), an argument was raised that in case executive government may have power to make appointment and laid down the conditions of service without making rules, in that behalf under the proviso to Article 309 of the Constitution, there will be violation of Article 14 and 16 of the Constitution because appointment would be arbitrary and capricious. Such argument was not accepted by the Hon'ble Apex Court and the Hon'ble Apex Court held in that case that if the State of Rajasthan had considered the case of petitioner along with other eligible candidates before appointment to the selection post, there would be no breach of the provisions of Articles 14 and 16 of the Constitution because every one who was eligible in view of the conditions of service and was entitled to consideration, was actually considered before promotion to those selection posts, were actually made. Therefore, according to the learned counsel for the appellant, if promotion was even on the basis of merit, to the appellant after taking a decision to fill in the post on the basis of the merit and the appointing authority considered the candidatures of respondent No. 1 petitioner also along with other eligible candidates, then there is no flaw in the procedure adopted and the petitioner cannot have any grievance. The learned counsel for the appellant before the challenged the judgment of the learned Single Judge vehemently on the ground of limitations of jurisdiction of the High Court in interfering in the matter of promotion. The learned counsel for the appellant relied upon the following judgment of the Hon'ble Apex Court: (1) National Institute of Mental Health & Neuro Sciences vs. Dr. K. Kalyana Raman and Others (2), Dalpat Abasaheb Solunke and Others vs. Dr. B. S. Mahajan & Ors (3), Indian Airlines Corporation vs. Capt. K. C. Shukla and Others (4), Durga Devi and Another vs. State of H. P. and Others (5), Union of India and Another vs. G. Ganayutham (6), Kuldip Chand vs. State of H. P. And Others (7), Badrinath vs. Government of Tamil Nadu & Ors (8), Central Council for Research in Ayurveda & Siddha and Another (9), and (9) AIR Vice Marshal S. L. Chhabra, VSM (Retd.) vs. Union of India (10), including Division Bench judgment of this Court delivered in the case of Parmatma Sharan and Anothers vs. Hon'ble the Chief Justice, Rajasthan High Court and Others ;