KAN SINGH, J. - (1.) THIS is a writ petition under Art. 226 of the Constitution by one Dr. Shrikant Rao for an appropriate writ, direction or order. He has prayed: (1) that the appointments of respondents Nos. 4 to 6 to the posts of veterinary Assistant Surgeons be quashed, (2) the respondent State be directed to determine the number of vacancies year by year to the next higher posts above the Veterinary Assistant Surgeons and to constitute a Departmental Promotion Committee for examining the suitability of the petitioner and others and then to make appointments by promotion against the vacancies available for promotion quota in the year in which the petitioner became eligible to be promoted (3) the respondent State be directed to issue final seniority list of the Veterinary Assistant Surgeons in accordance with law.
(2.) THE petitioner was a Bachelor in Veterinary Science of the year 1957. On 27-7-57 he was appointed as Veterinary Assistant Surgeon Glass II on temporary basis. Certain posts of Veterinary Assistant Surgeons Class II came to be advertised by the Rajasthan Public Service Commission. THE petitioner applied for one such post and he was appointed vide Government order dated 18-2-60 with effect from 27-7-57. THE petitioner was confirmed on this post i. e. Veterinary Assistant Surgeon Class II with effect from 12-2-61. THE respondents Servashri D. S. Bhandari, V P. Arora and L. R. Verma came to be appointed as Veterinary Assistant Surgeons Class II on temporary basis with effect from 5-10-57, 5-10-57 and 9-10-57 respectively. Later on they applied in pursuance of an advertisement by the Rajasthan Public Service Commission and came to be appointed as Veterinary Assistant Surgeon Class II temporarily vide order dated 11-11-57 (Ex. 3 ). This order was amended and the words "till further orders" came to be inserted in the order Ex. 3 after the word "temporarily". By another order dated 4 6-8 the previous orders Ex. 3 and the subsequent order dated 20-12-57 (Ex. 4) were superseded and the respondents were appointed on one year's probation with effect from 21-10-57 vide order Ex. 5. THE result of these amendments was that the respondents came to be appointed on one year's probation from 21-10-57. THE petitioner claims that he came to be appointed substantively with effect from 27-7-57 and was thus senior to these respondents Besides claiming seniority over these respondents the petitioner submits that their initial appointment as Veterinary Assistant Surgeon Class II was violative of Art. 14 and 16 of the Constitution inasmuch as they made their applications to the Rajasthan Public Service Commission after 5-7 57, the last date for the making of such applications. THE petitioner avers that he did not make the application after 5 7-57 thinking that such application would not be entertained and yet the applications made by the respondents after the prescribed date were entertained and they were selected. THE petitioner further states that a provisional seniority list was prepared for the Veterinary Assistant Surgeons Class II on 19-5-66 and the petitioner's name appeared at serial Number 22 above those of the respondents at Serial Nos. 24, 25 and 26, respectively. This was Ex. 6 on record. However, when the seniority list was finalised the petitioner was shown junior to these respondents. THE petit oner, therefore, made his representation against the assignment of lower seniority to him vis-a-vis the respondents, but that was of no avail. It is in these circumstances that the petitioner has filed the present writ petition. The writ petition has been opposed by the respondents. It is denied that the petitioner was senior to respondents Nos. 4, 5 and 6. It is further denied that the appointments of these respondents were in violation of Art. 14 or 16 of the Constitution. Then by way of preliminary objection it was urged that the writ petition for challenging the appointments of respondents Nos. 4 to 6 had been filed after an inordinate delay of almost 12 or 13 years and, therefore, it should not be entertained. It is also contested that the seniority assigned to the petitioner vide Ex. 7 below the respondents was erroneous. Finally, it was submitted that since certain amendments were to be made in the Rajasthan Animal Husbandry Service Rules, 1963, the Government were not convening the Departmental Promotion Committee and accordingly they had made certain ad hoc promotions to higher posts and now that proper shape has been given to the proposed amendment the State Government proposes to convene the Departmental Promotion Committee within a reasonable time and as soon as the Departmental Promotion Committee meets all eligible persons will be considered for higher posts according to the Rules and then given their dues. Three points fall to be considered: (1) whether the appointments of respondents Nos. 4 to 6 be permitted to be challenged after a delay of 12 or 13 years. In this connection it will have to be seen whether the petitioner has offered any reasonable explanation for the delay, (2) whether the petitioner was entitled to rank senior to respondents Nos. 4 to 6, (3) whether the State Government should have continued the promotions on an ad hoc basis without convening the Departmental Promotion Committee for such a length of time. Re. 1 - It is not denied that the respondents had made the applications for appointment after the date fixed in the advertisement by the Rajasthan Public Service Commission. The petitioner who was careful enough, according to him, to keep to the terms of the advertisement, did not make any application. As held in Maharashtra State Electricity Board Eng. vs. Sec. (Bom) (l) where the matter of recruitment is covered by statutory regulations, the regulations should make prior provision for contingencies like relaxation of the conditions which ordinarily govern recruitment for the posts. Equality of opportunity will be determined for the purpose of Art. 16 of the Constitution by the terms of the advertisement calling for the applications for filling up a post. Where in the advertisement it is not suggested that the qualifications prescribed were relaxable or that the applications could be entertained even thereafter it will not be open to the competent authority to relax the terms of the advertisement. Normally such a selection would be voidable at the instance of candidates who were denied such an opportunity, but in the present case there is no manner of doubt that the petitioner has slept over his claim, if any, for almost 12 or 13 years. The explanation offered by him for the delay in the filing of the writ petition is that vide order Ex. 6 he was placed above the respondents in seniority. This seniority list is dated 19-5-62 The petitioner should have realised that this was only a provisional seniority list and if the petitioner's appointment was as a matter of fact of a later date, he would not be able to claim seniority over the respondents. The seniority list was finalised vide Ex 7 dated 27-5-67. Thereafter at any rate, the petitioner should not have waited for another three years for filing the writ petition. He may have made representations against Ex. 7, but even so the period is quite considerable. Therefore, I am unable to permit the petitioner to challenge the appointments of respondents Nos. 4 to 6 as Veterinary Assistant Surgeons. Re. 2 -The petitioner claims seniority on the basis of Ex. 1. The argument of learned counsel is that according to order Ex. 3 the appointments of the persons so appointed has to take effect from the date of their joining duty and as the petitioner was already holding the post of a Veterinary Assistant Surgeon from a prior date namely, 27-7-57 he should be deemed to have been appointed with effect from that date. Thus, according to learned counsel, the petitioner was senior to the respondents who joined duty after 11-11-57. The argument is fallacious. The date of the joining of duty that is contemplated by Ex. 3 is the joining of duty in terms of that order of appointment. Such words are generally inserted because the various candidates may not be able to join duty from a particular date and may join duty from various dates and the appointment comes into effect only from the date of joining duty and not from the date of the appointment order. Therefore, the petitioner cannot claim seniority over the respondents on the basis of his earlier temporary appointment. The petitioner was selected by the Rajasthan Public Service Commission later than the respondents and was then appointed. He has, therefore, been rightly shown junior to the respondents Nos 4 to 6. Re. 3 - The ad hoc promotions are continuing since 1969. It is not right for the Government to continue ad hoc appointments for a number of years without calling the Departmental Promotion Committee in accordance with the Rules. The Rules contemplate determination of seniority year wise and then the allocation of posts as between direct recruits and the promotees. The promotions have to be made on the recommendations of the Departmental Promotion Committee. Learned Addl. Govt. Advocate has suggested that one year's time be allowed for the convening of the Departmental Promotion Committee. In all the circumstances I should think the Government should be able to convene the Departmental Promotion Committee within a period of 9 months.
(3.) ACCORDINGLY, I allow the writ petition in part and order that the State Government shall convene the Departmental Promotion Committee for promotion to higher posts in accordance with the Rajasthan Animal Husbandry Service Rules, 1963 within a period of 9 months from today and consider the cases of all eligible candidates including the petitioner for promotion to posts higher than that of Veterinary Assistant Surgeons. The parties are left to bear their own costs. .;