RASTOGI, J. - (1.) BY the instant writ petition, the petitioner, who is a member of Rajasthan Legal Service, has prayed that the respondents be restrained from deputing any of Judicial Officers on the post of Joint Legal Remembrancer who are members of the Rajasthan Higher Judicial Service Rules, 1969 ["rules of 1969"].
(2.) THE petitioner is substantively holding the post of Dy. Legal Remembrancer and is eligible for promotion for the post of Joint Legal Remembrancer which is next higher post in hierarchy under the Rules of 1981 but because of Judicial Officers being posted on deputation to the post of Joint Legal Remembrancer, his right of consideration is being seriously jeopardized against the post included in the schedule appended to the Rajasthan Legal [state & Subordinate] Service Rules, 1981 ["rules of 1981"]. Mr. Praveen Balwada, counsel for petitioner has urged that the post of Joint Legal Remembrancer is included in the schedule by amendment notification dt. 9. 06. 1983 [ann. 1] which has to be filled 100% by promotion from the feeder post of Deputy Legal Remembrancer with five years of experience and despite eligible persons including the petitioner are available, the respondents are deputing Judicial Officers on the post of Joint Legal Remembrancer and as per Rule 6 (b) (iii) of the Rules of 1981, Judicial Officers, who are members of other service i. e. , Rajasthan Higher Judicial Service and Rajasthan Judicial Service, can be considered only in the contingency if the eligible members under Legal Service Rules, 1981 are not available, according to him, eligible officers including the petitioner are available, but still except one post of Joint Legal Remembrancer all are being manned by the Judicial Officers who are members of the Rules of 1969 which action of the respondents is in violation of Articles 14 & 16 of the Constitution of India, particularly when all other rules which are in force immediately before commencement of Rules of 1981 have been repealed by virtue of R. 41 of the Rules, Judicial Officers could not have been sent on deputation to hold the post of Joint Legal Remembrancer under Rules of 1969. Respondents Nos. 1 and 2 have filed their separate reply to the writ petition wherein it has been averred that only one post of Joint Legal Remembrancer is encadred in the schedule appended to the Rules of 1981 and which is presently manned by one Shri Moti Ram H. Advani who is member of Legal Service and recruited by promotion and two other posts of Joint Legal Remembrancer, which are available in Jaipur Nagar Nigam and Rajasthan Housing Board are also filled by officers of Legal Service who are sent on deputation and rest six posts of Joint Legal Remembrancer are included in the cadre of Rajasthan Higher Judicial Service which are filled from the officers who are members of Rules of 1969 and merely because the nomenclature of the post held by the officers who are members of Rules of 1969 is common that will not hold the petitioner eligible in relation to the post of Joint Legal Remembrancer which are encadred for the members under the Rules of 1969. The respondent No. 2 by filing separate reply supported the submission made by respondent No. 1. Shri Mohd. Rafiq and Shri V. S. Gurjar, counsel for respondents No. 1 & 2 have urged that petitioner's right of consideration is confined to post which is included in the schedule appended to the Rules of 1981 and the same is filled from the officers who are members of Rules of 1981 and post which is encadred for the Officers who are members of Rules of 1969, no grievance could possibly be raised by the petitioner and it is not his case that the post which is cadred post under the Rules of 1981 any appointment has been made of an officer from outside cadre. On the contrary, it has specifically been stated by filing their separate reply that the cadred posts under the Rules of 1981 have been filled only from the officers who are members of Rules of 1981 and the right of consideration of the petitioner is not being defeated or jeopardized at all.
(3.) IT has been further urged by them that Rule 6 (b) (iii) of the Rules of 1981 is to be considered in an emergent situation where members of Rules of 1981 if are not eligible for promotion appointment can be made till they attain their eligibility from the officers of Rajasthan Higher Judicial Service and so far as Rule 41 is concerned which referred to repeal and saving the earlier Rules governing the Service of the legal services officers, stood repealed, but that will not repeal all other Service Rules which do not govern the service conditions of Legal Service Officers. We have considered the submissions made by the counsel for parties and perused the material available on record. There are two set of Service Rules; one is Rajasthan Legal [state & Subordinate] Service Rules, 1981 and one post of Joint Legal Remembrancer is included in the schedule appended to the Rules of 1981 by virtue of amendment notification dt. 9. 06. 1983 [ann. 1] is to be filled 100% by promotion from the feeder post of Dy. Legal Remembrancer, another set of Rules namely; Rajasthan Higher Judicial Service Rules, 1969 wherein 6 posts of Joint Legal Remembrancer are encadred and both have a separate mode of recruitment governed by their independent Rules and merely because the nomenclature of the post is common that will not give any precedence to members of Rules of 1981 to get their rights of consideration for promotion against the posts which are not meant for them. ;