JHA, CJ. - (1.) THIS special appeal is directed against the judgment and order of the learned Single Judge 1. 12. 2005 allowing the writ petition of respondent No. 2, Hanuwant Singh Bhati, (hereinafter referred to as `the respondent') in the following terms: ". . . . . The respondents are directed to consider the case of the petitioner also for out of turn promotion to super- time Scale of RAS from the year 1995 after granting necessary relaxation as provided under Rule 41 of the Rules of 1954. Necessary consideration be made and decision be taken within thirty days from the date of receipt of certified copy of this order and consequential orders, if required, be passed within 30 days thereafter giving all financial benefits as well to the petitioner including arrears. "
(2.) IT may be mentioned here that the appellants were not party to the writ petition. They filed this appeal alongwith application seeking leave to appeal contending that out of turn promotion to Super Time Scale to the respondent from the year 1995 will affect their rights and prospects but the directions had been issued behind their back without giving them opportunity of hearing. By order dated 4. 1. 2006 leave was granted and the appeal was admitted to hearing on 5. 1. 2006. In the facts and circumstances, till further orders and subject to objections by the respondent, operation of the order of the learned Single Judge was stayed. The stay however was vacated later by another Bench on 27. 3. 2006 in the following terms: " Considering these facts, in our view, it is a fit case for vacation of stay order. Let the Government consider the case of the petitioner on merit either by invoking the provisions of Rule 41 of Rajasthan Administrative Service, 1954 or by making suitable amendment in the relevant rules, as has been done in the case of police officials who have taken part in the concerned encounter The appellants filed application for review of the above order. on 11. 5. 2006 when the application came up for consideration, the Court observed that as the order (dated 27. 3. 2006) had been passed by a co-ordinate Bench, it is not possible to make any modification, the proper course in the circumstances would be to finally hear the appeal itself. With the consent of counsel for the parties the appeal was fixed for hearing as first item on 15. 5. 2006. When the appeal was taken up on 17. 5. 2006, the Court was informed that in compliance of the order dated 27. 3. 2006, the State Government had issued an order promoting the respondent to Super Time Scale from the year 1995 under rule 31 of the Rajasthan Administrative Service Rules, 1954 (in short 'the RAS Rules') by relaxing rule 41 of the RAS Rules on ad hoc basis subject to decision in the instant appeal. Expressing anguish over the manner in which the order had been issued by the Government even though the appeal was fixed for final hearing on 15. 5. 2006, and running on the board, the Court observed that it would be appropriate that the order is not given effect to and kept in abeyance by the Government. An order to that effect was passed keeping the order, dated 16. 5. 2006 in abeyance till further orders. The case of the appellants is that they respectively belong to 1977, 1975, 1979 and 1978 batches of the RAS as against the respondent who belongs to 1980 batch, and they were granted Super Time Scale in the years 1998-99, 1996-97, 2000-2001 and 1999-2000 respectively as against the respondent who was granted Super Time Scale in the year 2 001-2002. The direction of the learned Single Judge to grant such promotion from the year 1995 would affect the rights and prospects for promotion of not only the appellants but many others who, would stand superseded in case the direction is implemented and the respondent is granted promotion to Super Time Scale from 1995. Thus without impleading them and giving them opportunity of hearing, the direction could not have been issued. Further case of the appellants is that rule 32 (3) of the RAS Rules prescribes the period of eligibility for promotion to Super Time Scale. The respondent does not possess the eligibility and therefore he could not be granted promotion. The power of relaxation under rule 41 of the RAS Rules can be exercised in the matter of relaxation of only age bar or experience at the time of initial recruitment to the service, and the direction of the learned Single Judge to consider the respondent for promotion from the year 1995 relaxing rule 41 was illegal. Thus neither the rule as to the eligibility for promotion to the Super Time Scale could be relaxed nor the respondent could be given retrospective promotion out of turn. The respondent does not deny that he belongs to 1980 batch of RAS and he was promoted to the Super Time Scale later than the appellants in 2001-2002. He, however, contends that he was promoted to the Selection Grade earlier than the appellants, - except appellant no. 2 N. K. Jain, in 1991-92. As regards appellant No. 2, it is said that though he was granted promotion to Selection Grade earlier, he has since been absorbed in the Board of Revenue and ceased to be a member of the RAS. The respondent thus has not only claimed seniority over the appellants (except appellant no. 2), he has also questioned their locus standi to challenge the order of the learned Single Judge or the consequential order of out of turn promotion to him. We shall deal with the question of locus standi later at the appropriate place in this judgment. The area of dispute having been broadly indicated, we may now state the case of the respondent as set out in the writ petition. After paying himself compliments for his professed ability, extra-ordinary performance and outstanding record, and complaining of the arbitrary behaviour of the Chief Secretary and his vindictive, mala fide and biased attitude. the respondent stated that in the year 1995 when he was serving as Additional District Magistrate (City) (Incharge of Law & Order) , Jaipur, an encounter took place between the police and members of the Khalistan Liberation Force (KLF) in the night of 25th/26th February, 1995 at Model Town, Jagatpura, Jaipur in which one Navneet Singh Kandia was killed while other terrorists escaped. The respondent on coming to know about the incident rushed to the spot. On search he found some clues on the basis of which he could trace out the headquarter of terrorists and their secret hideouts in Jaipur and recover sophisticated arms and ammunitions and explosives. The recovery was first of its kind in the history of Rajasthan. The Collector, Jaipur vide letter dated 4. 3. 1995 appreciated his work and recommended out of turn promotion, state award and suitable cash reward to him. The Divisional Commissioner, Jaipur also vide his D. O. dated 7. 3. 1995 recommended out of turn promotion. The Chief Secretary, Government of Rajasthan by letter dated@ 8. 4. 1996 conveyed Government's appreciation for the outstanding work done by him showing initiative, resourcefulness and dedication towards duty in discovering a terrorist hideout. The respondent made representation on 1. 7. 1996 with request to grant him "one scale promotion" taking into consideration recommendation of. the controlling authority which according to him had not been taken into consideration earlier. on 5. 10. 1996 the State Government granted three advance annual grade increments in recognition of the gallant service/work performed by him. Later, on coming to know that one Govind Detha, a police official posted as SHO at the relevant time had been awarded with out of turn promotion in recognition of his work in an encounter, on 2. 12. 1998 the respondent made representation to award him similar out of turn promotion. Therein he contended that if an officer can be allowed out of turn promotion for doing something which is part of his duty, he should be given similar out of turn promotion for doing something which was not part of his duty. On 25. 9. 2002 he filed another representation. on 20. 7. 2004 he filed yet another representation. on 25. 11. 2004 the Director General of Police, Rajasthan addressed a D. O. to the Additional Chief Secretary, Home Department, Govt. of Rajasthan, Jaipur requesting him to review his case for out of turn promotion. Complaining of inaction on the part of the State Government in giving him out of turn promotion despite recommendations to that effect and alleging that it was on account of bias on the part of the (then) Chief Secretary who was annoyed with him because his brother had filed a contempt petition against the Chief Secretary, the respondent filed the writ petition seeking the following reliefs : " (i) Issue an appropriate writ, order or direction to the State Government to treat this case as an extra-ordinary exceptional case of gallantry in the history of Rajasthan and by treating the same in the manner, the petitioner may kindly be awarded out of turn promotion. (ii) Issue an appropriate writ, order or direction or a mandamus in the nature thereof directing the State Govt. to award out of turn promotion or benefit of one time Scale from the date the incident occurred i. e. 26. 2. 1995 to the petitioner for his extra-ordinary gallantry work. (iii) Issue an appropriate writ, order or direction or a mandamus in the nature thereof directing the State Government to place, on record original award file of the Police Department in which whole case of petitioner has been examined. (iv) Issue an appropriate writ, order or direction in the nature thereof directing the State Government to relax the provisions of Rule 14 (i) by ,exercising relaxation power of the Government under Rule 41 of the Rules of 1954 in giving out of turn promotion to the petitioner. (v) Issue an appropriate writ, order or direction in the nature thereof directing the State Govt. to give equal treatment to the petitioner alike other participants in this terrorist episode and similar treatment like out of turn promotion, cash reward of Rs. 1. 00 lac and gallantry medal as were granted to other police officials may be given to the petitioner. (vi) Issue an appropriate writ, order or direction in the nature thereof directing the State Govt. to give benefit of seniority to the petitioner in terms of his out of turn promotion while preparing the seniority list of RAS officers and further promotions in the cadre or alternatively the State Government may be directed to finalise the seniority list giving seniority to the petitioner. "
(3.) IN its reply to the writ petition, the State Government took the plea that there was no provision in the RAS Rules to give out of turn promotion to a member of the RAS. IN appreciation of his services and gallant work, the respondent had already been granted three advance grade increments on 5. 10. 1996. Though the case of the respondent had been recommended for out of turn promotion, but in absence of any such provision in the RAS Rules such benefit could not be accorded to him. . Grant of three advance grade increments was in a sense an accelerated advancement. The Government also stated that the case of the respondent was similar to that of Rohit Mahajan, Additional S. P. (Traffic) who had not been granted out of turn promotion. The case of Govind Detha was distinguished and it was stated that he was instrumental in encounter with terrorists and freeing of Shri Rajendra Mirdha in which neither the respondent nor Rohit Mahajan was involved. The learned Single Judge referred to letters of the Collector and Divisional Commissioner dated 4. 3. 1995 and 7. 3. 1995 respectively and observed that while the police-official involved in the "same" incident had already been granted suitable awards and even out of turn promotion by making necessary amendment in the relevant rules, in the case of respondent the authorities washed their hands by just granting him three advance grade increments which was nothing but "tossing a coin in the bowl of a beggar". The observations of the learned Single Judge may be quoted as under: " Without processing and pursuing the matter any further, the most unfortunate part is that the authorities washed their hands just by awarding' three advance grade increments to the petitioner, the monetary benefit of which comes to only Rs. 375/- in the salary per month. This is nothing but tossing a coin in the bowl of a beggar. The humiliation of the officer in such circumstances can be well imagined. Such pathetic sadistic approach of some of the higher authorities is highly deplorable. Instead of generating confidence among the officers such authorities only lose respect for themselves. " The learned Single Judge then referred to the notings of the Secretary, Department of Personnel dated 8. 2. 2005 wherein it had been observed that if out of turn promotion to the respondent with retrospective effect is to be made treating his case similar to that of Govind Detha, it would require amendment in the RAS Rules. The learned Single Judge took the view that there was no necessity to make amendments in the Rules as rule 41 confers power to relax the rules. The appellant had been granted Selection Grade as per his turn in the year 1991-92, but in view of his exceptional service, "he ought to have been granted Super Time Scale of RAS by relaxing the rules as provided in rule 41 of the RAS Rules from the year 1995 itself". The learned Single Judge also observed that though there was no necessity to make amendments in the rules in view of rule 41, "still, if the situation requires and as has been done in other service rules, necessary amendments can also be made for future in regard to giving out of turn promotion to the employees to encourage and appreciate their services". Having made these observations, the learned Single Judge allowed the writ petition with directions which have been noticed above at the outset of this judgment. ;