KAN SINGH, J - (1.) SHRI Ramsharan Sharma, who is a member of the Rajasthan Agriculture Service in Group-C, seeks an appropriate writ, direction or order against the State of Rajasthan and the Director of Agriculture commanding them to promote the petitioner with effect from March, 1962 when respondent No. 6 SHRI M. M.Jain was promoted as Deputy Director of Agriculture and, if necessary, the State Government be further required to create a supernumerary post for the petitioner as Deputy Director and further he be declared senior to respondents Nos. 3 to 11 in Group-B of the schedule appended to the Rajasthan Agriculture Service Rules, 1960, hereinafter to be referred as the "Rules".
(2.) THE petitioner is an Agriculture Graduate from the Agra University. He joined the service under the former Matsya Union and on the integration of that Union with the united State of Rajasthan he came to be appointed in the service of the new State. Like him, Shri M. M. Jain, respondent No. 6, was also appointed in the service of the former Matsya Union and he too came to be appointed in the State of Rajasthan. THE petitioner claims that when the united State of Rajasthan apponted him, as a result of intergration of services, a seniority was assigned to the petitioner in the year 1951 (vide order dated 9-2-51) above Shri Jain. THEir relative seniority was recognised even by two subsequent orders namely, one passed on 23rd August, 1967 (Ex. 1) and the second passed on 25th January, 1968 (Ex. 2). THE petitioner relies on this order Ex. 2 which specifically mentions that the seniority or the gradation list as the same has been described shall be in force retrospectively from 1-11-56. The Rules came into force in 1960. The petitioner claims that by virtue of the rules he became a member of the Agriculture service. He proceeds to say that in 1962 a Departmental Promotion Committee was constituted for promotion to the posts in Group-B (Deputy Directors); the promotion being 100% from the officers in Group-C. The petitioner avers that in accordance with the Rules the Director sent a list of eligible candidiates who were accordingly considered by the Departmental Promotion Committee functioning under the Rules and the petitioner was considered fit for promotion along with others and the Departmental Promotion Committee forwarded his name to the Government for promotion. The petitioner's grievance is that whereas he was senior to Shri M. M. Jain, the Government promoted Shri M.M. Jain as Deputy Director in officiating capacity and overlooked the legitimate claim of the petitioner. The petitioner further submits that subsequent to that a number of posts in Group-B (Deputy Directors) came to be filed up in temporary capacity without the agency of the Departmental Promotion Committee, but the petitioner was not appointed against any of the posts although he was senior to the other respondents who were so appointed. The petitioner admits that while he was holding the post of Officer-in-charge, Junior staff, Soil Conservation Centre at Jodhpur, he came to be suspended on account of a prosecution against him, but asserts that he was honourably acquitted and was allowed his full emolument for the period of suspension. Therefore, according to the petitioner, the suspension did not stand in his way and on his exoneration from the criminal charge he should have been given his due and appointed against any of the posts in Group B temporarily occupied by persons junior to him. The petitioner further states that he submitted a number of representations to the Government for restoring him to the position he would have occupied but for his suspension or for the matter of that vis-a-vis Shri M. M. Jain, but the Government did not do him justice. The petitioner contends that he had been denied an equal opportunity in the matter of promotion vis-a-vis his juniors in Group-C while promoting persons from Group-C to Group. B. The writ petition has been contested by the State of Rajasthan. The other respondents have not chosen to appear or file any reply to the writ petition. The State Government has taken the stand that in 1962 when posts of Deputy Directors in Group-B were to be filled in the Departmental Promotion Committee met to consider the cases of promotion and as at that time Shri M. M. Jain was senior-most in Group-C, he was promoted in officiating capacity. It was further submitted on behalf of the Government that Shri Jain's seniority was revised by the Governer of Rajasthan vide the order dated 24-2-61 (Ex. R/4). Therefore, according to the Government, as the Departmental Promotion Committee recommended the case of Shri Jain being the senior most Group-C Shri Jain was appointed as Deputy Director. At the hearing learned Deputy Govt. Advocate took the position that the appointment of Shri Jain, though it purports to be in an officiating capacity, should yet be taken to be substantive by force of the Rules, as he was functioning against a permanent vacancy. Therefore, regarding the case of Shri Jain he draws a distinction that he being a substantive holder of the post in Group-B the petitioner cannot have any claim against Shri Jain. As regards the orders Ex.1 and Ex.2, which were made retrospective from l-ll-56, learned Deputy Government Advocate submitted that this would not affect the earlier order passed in the case of Shri Jain. As regards the temporary appointments of the other respondents against posts in Group-B, the Government takes the stand that as these were temporary appointments made under Rule 28 of the Rules the Government had full discretion in the matter. As regards the order Ex.R/4, by way of rejoinder, learned counsel for the petitioner submitted that this order was passed behind the back of the petitioner and it was clearly unjust. Learned counsel pointed out that in 1951 when the petitioner and Shri M.M. Jain were fixed on the posts of Farm Managers in the integrated set up, the cases were screened by a high powered Selection Committee which could not only select from out of the employees of the former States, but it could also fix their seniority and this order of seniority so fixed could not have been changed by the Government just by one stroke of pen without affording any opportunity to the petitioner to have his say in the matter. At any rate, when subsequently order Ex. 2 was passed the matter was placed beyond pale of controversy as this order was expressly made retrospective from 1-11-56. Not only so, order Ex. 2 was passed under Art. 309 of the Constitution read with the provisions of sec. 115 (b) of the States Reorganisation Act, 1956 and thus this last order being a statutory one would in terms be overriding all other orders on the subject of relative seniority and subsequently the promotion of Shri Jain in preference to that of the petitioner was wrong. Before I proceed further I may clear certain matters. The first one is whether the petitioner was also selected by the Departmental Promotion Committee in the year 1962 as a Dy. Director in Gp-B. In para-11 of the writ petitioner the petition averred: "11. That for promotion to the post in Group B which is 100% by promotion from the Officers holding the post in Group C, after the coming into force of the rules a departmental promotion committee was formed. The Director sent a list of eligible candidates and selection was made on 14-3.62 in which the petitioner was considered eligible for promotion along with others and his name was also forwarded to the Government for promotion in order of seniority." Government's reply to this paragraph was as follows - "Para 11 of the writ petition is admitted to the extent that the procedure for promotion to Senior/selection posts in the Rajasthan Agriculture Service has been laid down under R. 25(a) and (b). According to R. 25(1) (a) the Director is required to prepare a list of persons not exceeding 5 times the number of vacancies to be filled in from amongst the eligible persons for promotion. Accordingly the list of eligible persons was prepared by the Director of Agriculture for the D.P.C. which was held in 1962. Persons found suitable were promoted from Group C to Group B in accordance with the Seniority as existed on the day when the D.P.C. met and the number of vacancies available at that time." At the time of hearing learned counsel were divided on the question as to whether according to the pleadings, namely para-11, it can be spelt out that the petitioner's case was that he had been selected by the Departmental Promotion Committee To clear the ambiguity, if any, I called upon the learned Deputy Government Advocate to obtain the minutes of the Departmental Promotion Committee and to go through them and then make a statement at the Bar Whether the petitioner was right in saying that he was also recommended by the Departmental Promotion Committee for appointment as Deputy Director. Learned Deputy Government Advocate had been good enough to obtain the minutes of the Departmental Promotion Committee. He, however, submitted that the minutes were confidential and could not be made part of the record. Nevertheless he had candidly made a statement at the Bar that the petitioner was right in saying that he too had been recommended for appointment as Deputy Director by the Departmental Promotion Committee. It is in this light that the averments in para-graph-11 of the writ petition and No. 11 of the Government's reply have to be understood. The State's reply as per last sentence of para-11 that persons found suitable were promoted from Group-C to Group-B in accordance with seniority as existed on the day when the Departmental Promotion Committee met and the number of vacancies available at the time. I will be examining in a moment as also the bearing of order Ex.R/4. There is one more matter, however, which I may put here before I proceed further. Learned Dy. Govt. Advocate was called upon to inform the Court whether the Departmental Promotion Committee had met at any time after 1962 when Shri Jain came to be appointed as officiating Dy. Director. He here again, candidly admitted that the Departmental Promotion Committee had never met since 1962. The last matter on which light was desired to be thrown was whether any substantive vacancies existed at the relevant time and exist at present. Learned Dy Govt. Advocate produced a statement signed by the Deputy Director of Agriculture (Administration) on 5-3-74. This statement shows that in 1962 there were 11 permanent posts and 6 temporary posts. Between 1963 to 1969 there were 7 permanent posts and 10 temporary posts. As against the 7 permanent posts there were 6 permanents incumbents and obviously one permanent post was vacant. On 1 4-70 there were 12 permanent posts and 6 temporary posts. As against the permanent posts there were 5 permanent incumbents. This means that between 1-4-70 to date there were 7 or 6 vacancies against permanent posts. The case of the petitioner falls to be considered in two parts (i) vis-a-vis Shri Jain whose case went through the Departmental Promotion Committee, and (ii) vis-a-vis others who were appointed against temporary posts without the agency of the Departmental Promotion Committee.
(3.) AS regards Shri Jain the crucial question falling for consideration is as to who was senior and in considering this question the effect of order Ex. R./4 has to be considered. It is beyond dispute that on the formation of Rajasthan certain high powered committees were appointed for the integration of the services and separate committees or selection boards were appointed for various services or department. Their function was not only to select officers, but to arrange them in an order of seniority for each category of civil servants and further the order of seniority was to be effective from the date of the order. Ex R/5 is the order passed on 9-2-51. The petitioner appears under category 7, that of Farm Managers, at No. 3. Shri Jain's name appears at No. 6 in Ex. R/5. None other than the Government had adhered to this order of relative seniority of these two officers when they divided the cadre of Farm Mangers in two grades vide Ex. 1 dated 23rd August, 1967. The petitioner appears at No. 3 under column for Grade I Farm Managers and Shri Jain's name appears at No. 7. Then it appears that while preparing the seniority of officers, on the integration of the Ajmer State with Rajasthan consequent to the reorganisation of the States, in accordance with what is popularly known as the Tilak formula the relative seniority of the petitioner and the respondent was maintained as it existed in the order Ex. R/5. This order was passed by the Governor under Art. 309 of the Constitution read with provisions of sec. 115 (b) of the States Reorganisation Act. This order shall, therefore, have the force of law. It is made retrospective from 1-11-56 that means that by the force of law whatever inter-se seniority existed came to be superseded and supplanted by the order of the seniority mentioned in Ex. 2. I may read Ex. R/4 at this point: "GOVERNMENT OF RAJASTHAN AGRICULTURE DEPARTMENT No. F. 30(152) Agr (Gr. I)/53 Jaipur, dated the 24th Feb., 1961 From The Secretary to the Government Agriculture Department, Jaipur. To The Director of Agriculture, Rajasthan, Jaipur. In continuation of this Department letter No. F. 30 (152) Agr/53 dated the 9th April, 1955,1 am directed to convey the sanction of the Governor for placing Shri M.M. Jain, Grade I Farm Manager as the senior-most in the seniority list of the Farm Managers announced vide Appointments Department No. F. 4(4) Apptts/C/51 dated 9-2-1951. Sd/- (M.L. Baheti) ASSTT. SECRETARY TO GOVERNMENT." The above order does not disclose for what reasons the order of seniority assigned by the high powered committee appointed to integrate the employees of the Agriculture Department and which was issued as an order from the Rajprarnukh was changed. This is, no doubt, an administrative matter and I may accept that the principles of natural justice may not be applicable in their entirety to such an administrative action, but there is no gain saying the fact that such an order adversely affects the prospects of promotion of the officer. In such a situation even in an administrative matter the authorities are expected to act fairly. The statement furnished does show that immediately thereafter some vacancies though temporary were available in the cadre of Deputy Directors in Group-B. The Government's clear stand is that Shri Jain was promoted in officiating capacity on the recommendations of the Departmental Promotion Committee according to the seniority existing at the time by which they perhaps mean that Ex. R/4 was the order fixing the seniority. I am mentioning this with a view only to bringing out how the fate of an officer could be affected by change of seniority in a certain context or situation that is existing or likely to come in existence in the near future. Though the Government might change the order of seniority if the circumstances so warrant, yet it is expected of them that when they were going to change their own orders which had received publicity and had held the field for sufficient time then the minimum that is expected of them is to give reasons for changing the order of seniority. In the present case, however, the subsequent orders passed by the Government unmistakably show that they adhered to the inter-se seniority between the two officers assigned in 1951 by the Selection Committee which was approved by the Rajpramukh. Order Ex. 4, therefore, to my mind, cannot be the basis for holding that the petitioner is junior to Shri Jain. Having read all these relevant orders I have no doubt that the petitioner was taken to be senior to Shri Jain both before Ex. 4 was passed and even after the order Ex. 4. None knows better than the Government as to why they passed the order Ex. R/4. If it was the correct thing then why did they give it up subsequently? There was no answer from the side of the Government. Now I may deal with the argument of the learned Deputy Government Advocate that Shri Jain should be taken to be confirmed as Deputy Director even though Government had not passed any order confirming him so. This is the result, according to the learned Deputy Government Advocate, of the rules and I may, therefore, immediately proceed to consider the rules. ;