KAN SINGH, J - (1.) THIS is a writ petition under Art. 226 of the Constitution by one Dr. Ratanlal raises a question about the relative seniority of the petitioner vis a vis respondent Dr. L. K. Kothari. They are both Readers in the Department of Physiology in the State of Rajasthan.
(2.) THE petitioner Dr. Ratanlal was M. B. B. S. and M. Sc. (Medicine ). He was appointed as a Demonstrator in Physiology in the year 1960. In January, 1962 he came to be appointed as an officiating Lecturer. In June, 1963 he was appointed to officiate as Reader. THEn through the Rajasthan Public Service Commission he came to be appointed as Reader on 21-8-64 as a direct recruit. By order dated 31-8-67 (Annexure-2) he was confirmed as a Reader with effect from 4-2 66 Dr. L. K. Kothari is M. B. B. S. and M. Sc (Physiology ). He was appointed as a Senior Demonstrator in Physiology on 18-1-56 in the State of Rajasthan. On 7 9-59 he came to be appointed as a Lecturer in Physiology and from 1-7 60 he was appointed to officiate as Reader in Physiology. By order dated 31-12-64 (Annexure-l) on the recommendation of the Departmental Promotion Committee under R. 24 of the Rajasthan Medical Service (Collegiate Branch) Rules, 1962, hereinafter to be referred as "the Rules", he came to be appointed as a Reader in Physiology. A provisional seniority list was prepared in respect of the non-clinical wing on 21-3-70. This list is available at page 43 of the record. Dr. L. K Kothari was shown at No. 1 in the list of Substantive Readers and Dr. Ratanlal was shown at No. 2. After the objections filed against the provisional seniority list were disposed of, the Government issued a final seniority list on 7-8 70 (Annexure-l3) whereby the relative seniority of the petitioner vis-a-vis Dr. Kothari was finalised as per the provisional list. It appears that after the order Annexure - 1 was passed appointing Dr. Kothari as Reader on 31-12 64, the Government had Subsquently passed some other orders of which I may make a mention here. On 20 10-65, the Government passed the following order: - "in partial modification to this Department order of even number dated 31st December, 1964, the Government has been pleased to order that Dr. L. K. Kothari may be appointed as Reader in Physiology on an ad hoc basis till the next meeting of the D. P. C. THE order of his appointment on probation may be treated as withdrawn. " THE effect of this order obviously was to treat Dr. Kothari to have been appointed as a Reader on an ad hoc basis till the next meeting of the Departmental Promotion Committee. THEn on 26-11-65 the Government passed the following order: - "government of Rajasthan Medical & Public Health Department No. F. 13 (i) (48) MPH/57/gr. I Dated Jaipur, the 26th Nov. , 1965 Order THE following doctors appointed on probation vide Govt. Order No. F. 17 (256) MPH/64/gr. I dated 31-12-1964 are hereby confirmed in their appointments after completion of their probation period with effect from 26-3-1965 - S. No. Name of Officers Post of which selected 1. Dr. K. P. Khuteta Reader in Physiology 2. Dr. L. K. Kothari Reader in Physiology 3. Dr. K. P Singh Reader in Pharmacology 4. Dr. D. P. Gupta Reader in Pathology 5. Dr. Karan Singh Lecturer in Anatomy 6. Dr. P. N. Nag Lecturer in Physiology 7. Dr. R. K. Sogani Lecturer in Pharmacology THE above order clearly laid down that Dr. Kothari was being confirmed as Reader in Physiology with effect from 26 3-65. It appears that there was then again a meeting of the Departmental Promotion Committee and on its recommendation Dr. Kothari was appointed as Reader by Government order dated 22-1-68 with effect from 3-6-67. THE matter did not rest there, but agains on 27-2-68 the Government passed the following order withdrawing the order dated 20-10-65 regarding the appointment of Dr. L. K. Kothari, as Reader in Physiology on ad hoc basis: - "dr. D. K. Kothari, Reader in Physiology, S. M. S. Medical College, Jaipur is hereby appointed as Officiating Professor of Physiology. R. N. T. Medical College, Udaipur. Dr. R. L. Ajmera, Officiating Professor of Physiology, R. N. T. Medical College, Udaipur is reverted as Reader in Physiology-and is posted at S. M. S. Medical College, Jaipur. On the same day the following corrigendum was issued regarding the Government order dated 22-1-68: - "government of Rajasthan Medical and Public Health Department No. F. 13 (l) (80) MPH/59/gr. I Dated the 27th Feb. , 1968. Corrigendum Please delete the name Dr. L. K. Kothari at Serial No. 1 under Reader, Physiology and renumber Dr. P. N. Nag as at S. No. 1 in this Department order No. F. 17 (88) MPH/67 dated 22-1-1968. The petitioner contends that while he was a direct recruit having been appointed in the year 1964, Dr. Kothari was appointed by promotion after 1964. Regarding the order dated 31-12-64 it is submitted that there was only one vacancy available for appointment against the promotion quota at that time and the Departmental Promotion Committee was in error in recommending two names instead of one for appointment by promotion. The petitioner relies on the various orders to which I have already made a reference for showing that Dr. Kothari was rightly treated as an ad hoc appointee and was consequently not entitled to rank senior to the petitioner. Apart from this reliance was placed on the fact that Dr. Kothari had been given only officiating salary as Reader from 1965 to 1968 which goes to support the contention of the petitioner that Dr. Kothari cannot be taken to have been appointed a Reader on 31-12-64. As regards the order dated 20-11-65, the petitioner contends that this was a mechanical order as the position arising out of the order dated 20-10-65 was disregarded. Lastly, the petitioner contended that the principles of natural justice have been violated inasmuch as the petitioner was not afforded an opportunity of having his say before the orders that the Government had passed were reversed to the prejudice of the petitioner by the order dated 27-2-68. The writ petition has been opposed by the State of Rajasthan and Dr. Kothari. It is denied that the order assigning seniority to Dr. Kothari above the petitioner was invalid on any of the grounds taken by the petitioner. It is submitted that there were five vacancies available in the beginning of year 1964 and against those vacancies two persons were appointed by direct recruitment; one was the petitioner, and the other was Dr. G. L. Pathak, and as against the remaining vacancies two could be appointed by promotion against the promotion quota. Dr. Khuteta and Dr. Kothari were appointed through the Departmental Promotion Committee. It is pointed out that according to R 41 of the Rules persons appointed by promotion will rank senior to those appointed by direct recruitment in the same year and accordingly the Government's stand is that by no stretch of imagination could the petitioner claim seniority over Dr. Kothari. As regards the various Government orders which have been attacked by the petitioner, the Government's reply is that there was correspondence between the Government and the Public Service Commission, as the latter thought that there was only one vacancy available for the promotion quota in the year 1964. The Government maintained that in the year 1964 itself Dr. Gupta, who was Reader in Physiology, had been promoted through the Departmental Promotion Committee as Professor in Physiology and that created one more vacancy and accordingly the Depart mental at Promotion Committee could make recommendations for appointment of two persons against the promotion quota and likewise the Government too were within their powers in appointing two persons namely, Dr. Khuteta and Dr. Kothari as Readers in Physiology in accordance with the quota rule between direct recruits and the promotees. The Government had placed on record the order dated 31-10-64 by which Dr. S N. Gupta was appointed as Professor of Physiology on the recommendation of the Promotion Committee under R. 24 of the Rules. I may read this order: - "government of Rajasthan Medical & Public Health Department No. F. 17 (256) MPH/gr. 1/63 Dated the 31st Dec. 1964. Order On the recommendation of the Promotion Committee provided by R. 24 of the Rajasthan Medical Service (Collegiate Branch) Rules 1962, the following appointments are ordered - Anatomy 1. Dr. Z. S. Ujwal, Professor of Anatomy, 2. Dr. I. J. Jerath, Additional Professor of Anatomy. Physiology 1. Dr. Som Nath Gupta, Professor of Physiology. Pharmacology 1. Dr. P. C. Dendiya, Additional Professor of Pharmacology. Social Preventive Medicine 1. Dr. Rameshwar Sharma, Professor of Social Preventive Medicine. The above doctors shall be on probation for six months with effect from 28th September, 1964. These appointments are made without prejudice to the seniority of those persons whose cases have been recommended by the same Departmental Promotion Committee and are under active consideration of the Government and for which orders are to issue shortly in continuation of these orders. The main question that emerges for consideration out of the rival contentions is whether a vacancy in the promotion quota was available in the year 1964 against which the Departmental Promotion Committee could have recommended the name of Dr. Kothari and accordingly the Government could have appointed him. I may read the relevant rules. The Rules were framed by the Governor in exercise of his powers under Art. 309 of the Constitution and came into force with effect from 5-11-62 on their first publication in the Rajasthan Gazette. The term "direct Recruitment" means recruitment made otherwise than by promotion as prescribed in R. 7 (Rule 3c) ). R. 7 provide for two methods of recruitment; one is by direct recruitment in accordance with Part IV of the Rules, and the other is by promotion of substantive members of the Service in accordance with part V of the Schedule. If one turns to the Schedule then one finds that there are two wings of the service shown there; one is the Clinical Wing, and the other is the Non-Clinical Wing with which we are concerned. There are three categories of posts; one is of Selection Posts (Part 'a') which comprises of Professors and Additional Professors. These posts are 100% by promotion and the promotion is made from the posts of Readers. The next category Part 'b' is of Senior Posts of Readers, 50% are by promotion from Lecturers and 50% for direct recruitment. Then Part 'c consists of Junior Posts which comprise two subcategories; the first sub category is of Lecturers; 75% posts are filled up by promotion and 25% by direct recruitment. The promotion is made from Senior Demonstrators. The second sub-category is of Senior Demonstrators; they are 100% by direct recruitment. Part IV of the Rules lays down the procedure for direct recruitment and we are not concerned with it at the moment. Part V lays aown the procedure for promotion. R. 23 occurring therein lays down the criteria for selection. It is provided that the persons enumerated in column 4 of the Schedule shall be eligible on the basis of seniority-cum-merit for promotion to posts specified in column 2 subject to their possessing minimum qualifications and experience as laid down by the Rajasthan University for the teaching staff in Medical Colleges. Then it is further laid down that rerard shall be had to certain matters like, academic qualifications and experience and other things provided therein. R. 24 lays down the procedure for selection. I need not read this rule in full. The broad outline of the procedure is that as soon as it is decided that a certain number of posts shall be filled up by promotion. the Secretary to the Government prepares a correct and complete list containing the names not exceeding five times the number of vacancies out of the senior-most members of the Service eligible for promotion and then such list is forwarded to the Departmental Promotion Committee. The Committee then examines the merits of the various persons included in the list and then prepares a list of candidates recommended for promotion. In the light of this list under R. 24 the Government makes the appointments to higher posts. R. 25 occurring in Part VI makes provision for appointment to senior and selection posts and I may read this rule in full: - "r25. Appointment to Senior & Selection Posts - Appointment to senior and selection posts shall be made by Government by direct recruitment or promotion in the proportion given in column 3 of the Schedule. Promotion shall be from amongst the Members of the Service on the basis of seniority-cum-merit and merit in accordance with rules 24 and 24a: Provided that if Government is satisfied in consultation with the Commission that no suitable officer is available in the Service for promotion to any senior or selection post or posts, Government may resort to direct recruitment through the Commission or appoint an officer on deputation from the Government of India, or any other State Government or by re-employment of a retired members of the Service ; provided further that appointment on deputation or by re-employment shall not exceed a period of 2 years without the concurrence of the Public Service Commission. " R. 26 occurring in Part VII provide that all members of the Service appointed by direct recruitment and those who are promoted to senior and selection posts shall be on probation for the specified periods. The period specified for direct recruits is two years and that for promotees is one year. This is relaxable in either case on account of the previous experience on a post encadered in the Service. R. 27 lays down that for unsatisfactory progress during the probation the Government may refuse to confirm an appointee and the probationer may accordingly be reverted or discharged from the Service, as the case may be. R. 28 lays down that a probationer shall be confirmed in his appointment at the end of his period of probation, if he has passed certain departmental examinations so prescribed and further the Government are satisfied that his integrity is unquestionable and he is otherwise fit for confirmation. R. 30 occurring in Part VIII make provision for temporary or officiating appointments. R. 31 is for seniority and this I may read: - "r. 31. Seniority - Seniority in each category of the service shall be determined by the year of substantive appointment to a post in the particular category: Provided - (1) that the seniority inter se of the persons appointed to the service under R. 5, shall be determined, modified or altered by the Government, on a ad hoc basis; (2) that if two or more persons are appointed to posts in the same grade in the same year, a person appointed by promotion, shall be senior to a person appointed by direct recruitment; (3) that the seniority inter se of persons appointed to posts in a particular grade by direct recruitment on the basis of one and the same selection, except those who do not join service when a vacancy is offered to them, shall follow the order in which they have been placed in the list prepared by the Commission under R. 20; and (4) that the seniority inter se of persons appointed by promotion to a particular class of posts on the same date shall be the same as in the next continued officiation on higher posts when it shall be in accordance with the length of such continued officiation: provided that such officiation was not ad hoc or fortuitous. " It is remarkable that at the relevant time there was no rule for determination of vacancies in the beginning of the year as is usual in other service rules of the kind. Such a rule was, however, introduced as R 8a sometime in December, 1973. I may read this rule though I may observe at once that this could be made use of only by way of analogy for under standing the Scheme of the Rules and not for any other purpose: R. 8-A Determination of vacancies - (1) Subject to the provisions of these rules, the Appointing Authority snail 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 12 months of the last determination of such vacancies. (2) In calculating the actual number to be filled by each method on the basis of the percentage prescribed in column 3 of the Schedule, appended with relevant Service Rules, each Appointing Authority shall adopt an appropriate cyclic order to correspond with the promotion laid down in each of the Service Rules by giving precedence to promotion quota over direct recruitment quota, e. g , where the appointment by direct recruitment and promotion is in the percentage of 75 and 25, respectively, the cycle shall run as follows - 1. By promotion, 2. By direct recruitment, 3. By direct recruitment, 4. By direct recruitment, 5. By promotion, 6. By direct recruitment, 7. By direct recruitment, 8. By direct recruitment, 9. By promotion and so on" This rule is analogous to similar rule for determination of seniority in other sets of rules for other services. The purpose of this rule is to allocate the vacancies existing or anticipated during the specified period between the direct recruits and the promotees. The question is what would be the case when there was no such rule. In my view in that event the proportion will have to be kept in view by the Government at the time of making the appointments only and not at any earlier stage. R. 25 clearly lays down that Government would be making appointments to senior and selection posts by direct recruitment or promotion in the proportion given in column 3 of the Schedule which is 50 : 50. Once there are appointments in the same year of persons by direct recruitment and by promotion then according to R. 31 the seniority in the particular category of the service to which appointments are made shall be determined by the year of substantive appointment to a post in that category. Therefore, we have to concentrate on the question as to how many posts in the cadre of Readers were available in the year 1964. Learned counsel for the petitioner started with the submission that 6 posts of Readers were available in the year 1963. On two posts Dr. S. N Gupta and Dr. Maitrya were appointed by promotion through the Departmental Promotion Committee in the year 1963 itself. A requisition for direct recruitment was sent that year, but it was in 1964 that the Public Service Commission made its recommendations and the petitioner Dr. Ratanlal and Dr. C. L Pathak were appointed. Thus, according to learned counsel, only two posts remained against which one could be appointed by promotion and the other only by direct recruitment. Further it was not permissible to appoint a person by promotion against a post for the direct recruitment quota. Learned Additional Government Advocate enters a strong caveat regarding the number of vacancies. He submits that only five posts were available in the year 1963 and two persons had been appointed in the year 1963. Thus, in the beginning of the year 1964 there were only 3 posts available and one further vacancy occurred during the year on account of the promotion of Dr. S. N. Gupta as Professor. Thus, according to learned Additional Government Advocate, four posts being available in the year 1964, the Government were within their powers in making two appointments against the promotion quota as two direct recruits were appointed in the year 1964 Regarding the number of posts available in the year 1964, there is no reason to distrust the affidavit filed on behalf of the Government. The period during which the allocation of the quota has to be made having not been settled by any rule analogous to R. 8a introduced subsequently, it is only at the stage of the appointment that the quota rule could be given effect to. The Government were making the appointment in the year 1964 and, therefore, it is only at the time of the making of the appointments that it has to be seen as to how many posts are available. In the year 1964, four posts were available. Learned counsel for the petitioner then stressed that the vacancy consequent to the promotion of Dr. Gupta was not available till his confirmation and it would be till then a temporary vacancy. 1 have reproduced above the order of Dr. Gupta's appointment as Professor. That goes to show that he was appointed on the recommendations of the Departmental Promotion Committee Thus, there would be one clear additional vacancy. It cannot be characterised as only a temporary vacancy as is contemplated by R. 30 of the Rules, but it would be filled up on the basis of quota through the Departmental Promotion Committee. It is true, a probationer is liable to reversion or direct recruit is liable to be discharged from service, but so long as they are holding the posts in the cadre it cannot be said that the procedure of Departmental Promotion Committee could not have been gone through bygovern. It is nobody's case that the post of a Professor on which Dr. Gupta was promoted was not available for a substantive appointment; or that it was only a temporary vacancy on account of somebody else holding his lien on that post. Normally the Government refers the question of making promotion both against existing vacancies as well as such vacancies as would be expected during a particular period in the future. The person appointed could not be confirmed all at once and the bar of somebody else continuing to hold his lien on the post does not arise here. It is to be noticed that even though a Probationer may be confirmed after a long period, say of years, in comparison to a promotee and it may so happen that the direct recruit of a previous selection may yet be continuing on probation and the promotee of a subsequent year may be confirmed in the meantime, but that will not affect their seniority which has to be determined in terms of R. 31 by the year of appointment. Here, the appointment would not mean appointment on substantive basis in the true sense of the term as that would arise only on confirmation that is contemplated by rule but the first appointment either as a direct recruit or as a promotee through the Departmental Promotion Committee would govern seniority. Therefore, there is no force in the argument that the vacancy consequent to the promotion of Dr. Gupta as a Professor was not available when the Departmental Promotion Committee met in 1964 to make the recommendations and those recommendations resulted in the order of Dr. Kothari's appointment on 31-12-64. Learned counsel further laid stress on the fact that both Dr. Kothari and the petitioner were considered for direct recruitment by the Public Service Commission and while the petitioner was selected by the Public Service Commission and was eventually appointed, Dr. Kothari was rejected by the Public Service Commission. This may be so, but that would not disentitled Dr. Kothari from being considered against the promotion quota. Likewise, the seniority of a promotee and the direct recruit will have to be determined in the light of what is laid down in R. 31 of the Rules. A promotee is assigned a position higher to a direct recruit in the same year and there appears to be a good reason for it. Generally persons who come by direct recruitment are of a lower age group in comparison to those who come by promotion having put in a number of years in the service on the lower post. Persons who come by promotion would be normally retiring before those who would be coming as direct recruits and it is for this reason that promotees are placed higher to those who come as direct recruits Therefore, there is nothing unusual in Dr. Kothari being assigned seniority above the petitioner as both were appointed as Readers in the same year viz, 1964.
(3.) IT is true, the various orders were passed regarding Dr. Kothari from time to time The order of appointment dated 31-12-64 was sought to be modified by order dated 20-10- 65 and Dr. Kothari was treated to be an ad hoc appointee till the next meeting of the Departmental Promotion Committee, but the Government have explained this in their reply. IT was for the reason that the Public Service Commission thought that there was only one post available for promotion and against it Dr. Khuteta could be appointed. This position continued for some time and it was for this reason that salary was being paid to Dr. Kothari as Reader on officiating basis, but eventually it was realised that there was certainly a vacancy consequent to the promotion of Dr. S. N. Gupta as Professor in 1964 itself and then the orders passed in the intervening period were all withdrawn and the status quo as on 31-12-64 was restored. There was thus no point in learned counsel's submission that merely because salary was paid to Dr. Kothari on officiating basis the appointment order dated 31-12 64 was wiped out altogether. Also there is no substance in the submission of the learned counsel for the petitioner that order Ex. R/l dated 20-11-65 was a mechanical order as he sought to put it The principles of natural justice, if at all, would be germane to the inter se seniority of the two doctors and that will have nothing to do with the appointment of Dr. Kothari as Reader as such. So far as the question of seniority is concerned, there was first the provisional seniority list Ex. 11 dated 21-3-70. In this list, Dr. Kothari's name appears above that of the petitioner. IT is admitted that objections were filed against this list. The final seniority list was Annexure-13 dated 7-8-70 and in this list the name of Dr. Kothari was shown above that of the petitioner as m the list Annexure 11. IT cannot, therefore, be said that the petitioner had no opportunity to have his say against the fixation of seniority. Thus, there was no violation of any principles of natural justice regarding the finalisation of seniority of the two doctors. In the result, therefore, I hereby dismiss the writ petition, but leave the parties to bear their own costs. .;