KAN SINGH, J. - (1.) THE two writ petitioner before me raising some common question were called on for hearing together and they can conveniently be disposed of by one judgment.
(2.) I may firston state the facts in Kulin Kant's case the petitioner Kulin Kant entered the services of the State of Rajasthan on 1 -2 -51 when he was appointed as a Lower Division Clerk in the erstwhile Customs and Excise Department of the State, He was temporarily promoted as an Inspector on 2 -3 -51 Rajasthan on 1.2.51 when . In the year 1959 some posts of Assistant Salts Tax Officers were advertised by the Rajasthan Public Service Commission vide their advertisement No. 7 of 24 -7 -59. The petitioner applied for one of such posts and was duly selected as Assistant Sales Tax Officer. By their order dated 16 -5 -60 the Government appointed him as Assistant Sales Tax Officer on one year's probation. He was to be confirmed on his passing the prescribed departmental test the petitioner passed the Departmental test and was eventually confirmed as Assistant Sales Tax Officer with effect from 31 -5 -62. The petitioner, inter alia, made grievance of the date of his confirmation which should have been 31 -5 -61 instead of 31 -5 -62. The petitioner claims that he has a clean service record and there was no adverse entry against him. Besides the State there were two respondents Servashri Nandlal and Madanmohan joshi. Since Shri Madanmohan Joshi had retired. I need not make any further mention of him. Shri Nandlal, respondent No. 2 was holding the post of Inspector in the Excise and Taxation Department to start with. He was appointed to officiate as Assistant Sales Tax Officer vide Government order dated 28 -8 -58. At this stage it may be mentioned that the post of Assistant Sales Tax Office is and Sales Tax Officers were respectively redesigned as Assistant Commercial Taxes Officers and Commercial Taxes Officers, Respondent Shri Nandlal was promoted as officiating Commercial Taxes Officer vide Government order dated 1 -7 -67. At the time Shri Nandlal was promoted to officiate as Commercial Taxes Officer there were no statutory rules governing the promotion the petitioner contends that the promotion of Shri Nandlal as Commercial Taxes officer in officiating capacity was in violation of Articles 14 and 16 of the Constitution of India inasmuch as the petitioner who was senior to Shri Nandlal was not considered for such officiating promotion. It was next contended that Shri Nandlal had continued to officiate for a, period exceeding six months without the concurrence of Rajasthan Public Service Commission the petitioner has, therefore, prayed that the appointment of respondent No. 2 Shri Nandlal as officiating Commercial Taxes Officer vide order Ex.2 be quashed or in the alternative an appropriate writ, direction or order be issued against the respondent State not to continue respondent Shri Nandlal as Commercial Taxes Officer in preference to the petitioner. The writ petition has been opposed by the State. It is dented that the order confirming the petitioner from 31.5.62 instead of 31.5.61 was bad. It was averred that the petitioner had failed in the departmental examination and, therefore, his confirmation was deferred for a year and as soon as be passed the examination he was confirmed. Regarding Shri Nandlal it was submitted that be had been confirmed as Assistant Commercial Taxes Officer with effect from 14 -10 -71, after the coming into force of the Rajasthan Commercial Taxes Service Rules, 1971 with effect from 14 -10 -71, hereinafter to be referred as 'the Rules'. It was further submitted that at the time Shri Nand Lal was promoted to officiate as Assistant Commercial Taxes Officer in la69the petitioner's case was considered by the Government who felt that the promoted Assistant Commercial Taxes Officers like Shri Nandlal had officiated for a longer period as Assistant Commercial Taxes Officers and, therefore, they should be given their due and it was precisely for this reason that Sriri Nand Lal was promoted in preference to the petitioner who was appointed by direct recruitment in the year 1960 as Assistant Commercial Taxes Officer. It was further pointed out that in the cadre of Inspectors the petitioner was junior to Shri Nandlal.
(3.) THE facts in Shri Ibrahim Ali's case are similar with the difference that Shri Ibrahim Ali entered Government services on 11 -1 -51. He was appointed as Inspector in the Customs and Excise Department in 1955 along with the petitioner Shri Kulin Kant. He too was selected by Rajasthan Public Service Commission as Assistant Sales Tax Officer and was appointed by the same order that of Kulin Kant as Assistant Sales Tax Officer on one year's probation. He was confirmed a Sales Tax Officer from 18 -5 -61. The respondent in his case is Shri Gautampal. Shri Gautampal was an Inspector in the Commercial Taxes Department. He was appointed as Assistant Commercial Taxes Officer on 27 -10 -56. He was then appointed as officiating Commercial Taxes Officer on 22 -6 -68 and like respondent Shri Nandlal in the other case, was concerned as Assistant Commercial Taxes Officer with effect from 14 -10 -71. Ibrahim Ali's grievance was that though he was senior to Shri Gautampal he was not considered for promotion as officiating Commercial Taxes Officer in 1968 when Shri Gautnmpal was so promoted and this, according to him infringed his fundamental right of equality under Article 16 of the Constitution.;