SURESH CHANDER AGRAWAL, J. - (1.) THIS appeal has been filed under Section 18 of the Rajasthan High Court Ordinance, 1949 against the order of the learned Single Judge (K.S. Sidhu, J.) dated 17th February, 1984 dismissing the writ petition filed by the appellant. In the writ petition the appellant had challenged the order dated 24th July, 1980 passed by the Rajasthan Civil Services Appellate Tribunal, Rajasthan, Jaipur(here in after referred to as 'the Tribunal') allowing the appeal filed by Shri Rameshwar Dayal Bhartari, respondent No, 2 against the orders dated 26th October, 1978, 11th November, 1978 promoting Lokesh Kumar respondent No. 5 on the post of Excise Inspector Gr. -I and the order dated 11th December, 1978 promoting respondent No. 5 on the post of Asstt. Excise Officer. The Tribunal while not setting aside the said orders directed that the of respondent No. 2 vis -a -vis respondent No. 5 and other seniors, if eligible, shall be considered according to the Rules and according to the same principles which were decided by the Court in the case of respondent No. 5.
(2.) IN the Excise Department there were three grades of Excise Inspectors, namely, Excise Inspector Grade III, Excise Inspector Grade II and Excise Inspector Gr. -I. The next post higher to that of Excise Inspector Gr. -I is that of Asstt. Excise Officer. The posts of Excise Inspector Grade I, II and III were subordinate service posts. Prior to the promulgation of the Rajasthan Excise Subordinate Services (General Branch) Rules, 1974 (here in after referred to as ('the Subordinate Service Rules') vide notification dated 30th May, 1974 published in the Rajasthan Rajpatra dated 6th June, 1974, appointment to the said posts was governed by the Rajasthan Subordinate Service (Recruitment and other Service Conditions) Rules, 1960 (here in after referred to as the 1960 Rules'). The post of Asstt. Excise Officer forms part of the Rajasthan Excise Service (General Branch) and appointment to the said post is governed by the Rajasthan Excise Service (General Branch) Rules, 1974 (here in after referred to as 'the Excise Service Rules'). The appellant was appointed to the post of Excise Inspector Grade II by order dated 13th September, 1960 on temporary basis. He was confirmed on the said post of Excise Inspector Grade II with effect from 1st July, 1970 but the said order of confirmation was with drawn by order dated 13th November, 1973 and the petitioner was subsequently confirmed as Excise Inspector Grade II on 23rd November, 1974 after being screened in accordance with the provisions of Rule 6 of the Subordinate Service Rules. Respondents No. 2 and 5 were appointed as Inspector Gr. II after selection by the Rajasthan Public Service Commission by order dated 30th November, 1965 and they were appointed on probation for a period of two years. As he was not confirmed on the Inspector Grade II, while persons junior to him were so confirmed the respondent No. 5 filed a writ petition (S.B. Civil Writ Petition No. 1903 of 1970) in this Court on 19th September, 1970. During the Pendency of this writ petition the order dated 2nd March, 1973 was passed whereby respondent No. 5 as well as respondent No. 2 were both confirmed retrospectively on the post of Inspector Grade -II with effect from 30th November, 1965. Thereafter both the said respondents were promoted as Inspector Grade I on 10th January, 1975 but were reverted again to the post of Inspector Grade II. A Departmental Promotion Committee (for short the DPC) was convened for making selections for promotion of Inspector Grade -II to Inspector Grade I in the year 1976. At that time promotion to the post of Inspector Grade I was required to be made on the basis of merit only. The DPC placed the appellant in 'outstanding' category whereas respondents No. 2 and 5 were placed in 'good' category. By order dated 12th March, 1976 the appellant was promoted on the post of Inspector Grade -I, but respondent Nos. 2 and 5, even though they were senior to the appellant, were not so promoted. They were promoted as Inspector Grade -I on temporary basis by order dated 13th November, 1976. On the basis of the order dated 12th March, 1976, a provisional seniority list of Inspector Grade -I and Grade II, as on 1st March, 1977, was issued on 20th March, 1978 and in that seniority list the name of the appellant was shown at S.No. 7 amongst Inspector Grade -I and the names of the respondents Nos. 2 and 5 were shown at S.No. 1 and 14 respectively amongst the Inspector Grade -II. The writ petition of respondent No. 5 was decided by the learned Single Judge (M.L. Jain, J,) by order dated 1st May, 1978. By the said order the learned Single Judge allowed the said writ petition of respondent No. 5 and directed that his seniority in Inspector Grade -II should have been determined on the basis of his having been confirmed with effect from 30th November, 1965 and since promotions of Inspector Grade -I were made either on merit or seniority -cum -merit, the said respondent should be considered accordingly and if he was so selected, then he will be entitled to appointment as Inspector Grade -I with retrospective effect. As regards considerations for the post of Assistant Excise Officer, it was directed that if the said respondent was appointed Inspector Grade -I with retrospective effect, then he may also further be considered for the post of Assistant Excise Officer on the date on which any person junior to him was promoted provided he possesses qualifications prescribed under the Excise Service Rules. Civil Special appeal No. 48/1978 filed against the aforesaid order of the learned Single Judge was dismissed by a division bench of this Court by order dated 9th November, 1978. In pursuance of the directions given by the learned Single Judge in the writ petition of respondent No. 5 the State Government passed an order dated 26th October, 1978 whereby it was directed that respondent No. 5 be promoted as Inspector Grade -I with effect from 14th August, 1967 and be confirmed as Inspector Grade -I with effect from 13th June. 1968 and in pursuance of the said order of the State Government the Excise Commissioner, Rajasthan passed an order dated 11th November, 1978 whereby respondent No. 5 was promoted as Inspector Gr. -I with effect from 14th August, 1967 and he was confirmed on the post of Inspector Grade -I with effect from 13th June 1968. By another order dated 11th December, 1978 passed by the State Government, respondent No. 5 was appointed on the post of Asstt. Excise Officer on purely temporary/urgent basis with effect from 26th August, 1967 to 30th April, 1979 or till regularly selected candidates in accordance with the method prescribed under the Rules, is made available, whichever is earlier.
(3.) SINCE respondent No. 2 was senior to respondent No. 5 in the cadre of Inspectors Grade II, he filed an appeal before the Tribunal against the aforesaid orders dated 26th October, 1978, 11th November, 1978 and 11th December, 1978, with regard to promotion of respondent No. 5 as Inspector Grade I and Asst. Excise Officer. The appellant was not impleaded as a party in the said appeal, but the Shri K.L. Arora who had been promoted as Inspector Grade I by order dated 12th March, 1976 and was senior to the appellant in the cadre of Inspector. Grade I, was allowed to intervene as an intervener in the said appeal by the Tribunal. The aforesaid appeal of respondent No. 2 was disposed of by the Tribunal by order dated 24th July 1980. The Tribunal rejected the objection raised with regard to the maintainability of the appeal on the ground of limitation and held that a new situation had arisen as a result of the orders passed in favour of respondent No. 5 and that respondent No. 2 was entitled to challenge those orders on the ground of violation of his fundamental rights guaranteed under Articles 14 and 16 of the Constitution of India in as much as respondent No. 2 being senior to respondent No. 5 had a right to challenge the orders of promotion of respondent No. 5. The Tribunal further held that according to the decision of this Court, consideration of respondent No. 5 for promotion had to be done according to the Rules which implied consideration according to the procedure i.e., eligibility, seniority etc. and that the order of promotion of respondent No. 5 was not strictly in accordance with the directions of this Court as necessary provisions of the service rules had neither been followed nor the Government had considered his case according to the seniority vis -a -vis others nor the provisions for making promotion had been adhered to, the Tribunal did not consider it necessary to quash the orders that were impugned by respondent No. 2 in his appeal, but directed that the case of respondent No. 2, vis -a -vis respondent 5 and other seniors, if eligible, shall be reconsidered according to the rules and according to the same principles as decided by this Court in the case of respondent No. 5.;