KUDAL, J - (1.) THIS is a special appeal against the order of the learned Single Judge dated October 8, 1974 whereby the writ petition filed by Shri Mohan Lal Majoo (S. B. Civil Writ Petition No. 163/1969) against the state of Rajasthan & others was allowed.
(2.) SHRI Mnjoo filed a writ petition on February 10, 1959 alleging therein that he was appointed as Resident Assistant Master in the Sadul Public School at Bikaner on November 1, 1949, in the pay scale of Rs. 165-300. The pay scale was, later on, revised to Rs. 200 10 350. He was then ptomoted as Headmaster on officiating basis of a High School on August 27, 1955 and was then substantively appointed as such on October 31, 1956. By order dated January 8, 1960 he was confirmed as Head Master of Highor Secondary School with effect from August 12, 1967 On September 22, 1958 the Director of Education published a list of Head Masters selected for Multipurpose Higher Secondary Schools in order of seniority, and SHRI Mujoo was shown at No 46. A list of selected Head Masters of the High and Basic S. T. G. Schools and Deputy Inspectors of Schools in order of seniority was also published simultaneously by the same order of September 22, 1958. Vide Notification dated August 11, 1959 the interlaced seniority list of various categories of Head Masters as on November 1, 1956 was published, wherein the name of the applicant was shown at No. 148 amongst Head Masters and By. Inspec-tors of Schools. By the time, the first Departmental Promotion Committee was constituted, some teachers retired and the applicant stood at No. 67. The Departmental Promotion Committee met in the year 1967, and at that time, the petitioner's name stood at No. 29, as by then some more teachers had retired. The final seniority list of the Head Masters of all schools was notified on November 30, 1969. In this senio-rity list: the petitioner's name v, as at No. 39. The Rajasthan Educational Service Rules, 1960 (hereinafter called as 1960 Rules), were published on September 12, i960 whereby the Rajasthan Educational Service (hereinafter referred to as Service) came into existence. A Member of 'service' has been defined to mean a person appointed substantively to a post in the 'service' under the provisions of these Rules or under the Rules superseded by these Rules. The post of Head Master of Multipurpose and Higher Secondary School was shown as a junior post classified into two categories, viz : - A. Selection grade in Part II of the schedule appended to the Rules. B. Ordinary grade in Part III of the Schedule. It was contended that the petitioner became a member of the Service by virtue of Clause (a) of Rule 7 read with clause 'g' of Rule 4, Cl. (c) of Rule 8 provides that the recruitment to the salectien grade posts under III junior Posts and II Senior and I selection posts shall be made by graded promotions within the 'service' on the basis of seniority-cum-merit. Rule 10 provides that the Government in respect of selection of senior posts and the Director in respest of junior posts shall determine from time to time the number of vacancies anticipated during a particular period of recruitment. Rule 23 provided the criteria for selection. Rule 25 provided the procedure for selection A Committee consisting of (i) the Chairman of the Commission, or a Member thereof nominated by him as Chairman; (ii) the Secretary to the Government in the Education Department; and (iii) the Director, shall consider the cases of those persons in the list, interviewing such of them as they deem necessary and shall select such candidates twice the number of vacancies, The list prepared by such a Committee shall be forwarded by the Director to the Commission together with the Character Rolls, personal files of the candidates included in the list, and also of such persons who have been superseded. As soon as the vacancies in the selection grade of the III Junior posts, the II Senior posts and selection posts as envisaged in the schedule is finalised, they will be filled up by promotion. The Director shall prepares a list containing the names of the condidates eligible for promotion, not exceeding five times the number of vacancies, from amongst the senior-most member of the 'service'. A Committee consisting of (i) Secretary to the Govt. in the Education Department, (ii) Director of Education; (iii) A representative of the Appointment Department not below the rank of a Deputy Secretary shall consider the cases of all the persons included in the list. This Committee shall select a number of candidates equal to twice the number of vacancies in each category, prepare a list to be forwarded to the Government The final selection then shall be made from the lists received under Rule 25-1 (c) and Rule 25 2 (b) by the Director and the Government as the case may be. Rules 26, 27 and 28 provide for the appointments to the 'service'. Rule 25 A was substituted for Rule 23 (2) which provide for procedure for promotion strictly on the basis of merit, and on the basis of seniority-cum-merit in proportion of 50 : 50. By a second amendment in 1968, Rule 26-A was amended, which provided for a cyclic order of promotion. Eleven posts of Inspectors of Schools had fallen vacant within the category No. II of the Senior posts. Hence, a Departmental Promotion Committee was constituted for adjudging merit and seniority cum-merit of the incumbents in the year 1966. The committee recommended certain names, but there was specific objection to the inclusion of name of Shri G. N. Bhatnagar who was not in the list, though, his name appeared in the list of Head Masters of High Schools at No. 27 in the separate list of September 22, 1958 The Committee made recommendations for 16 names in the vacancies of 11 persons. It was further contended that the Departmental Promotion Committee was again constituted to make recommendation for appointment of 28 available posts in the general categories and to the two posts reserved for females, thus totalling 30. In the seniority list of August 11, 1959, and in the list of September 22, 1958 the names of the persons who were selected by the Departmental Promotion Committee were at much lower places and as such they could not have been considered for promotion. The petitioner contended that he is aggrieved by the appointments of respondents No. 4 to 23 to the posts of Inspector of Schools, and that the Circular dated August 27,1966 issued by the Chief Secretary was ultra vires of the rules and was exfacie illegal. The petitioner also contended that he had very bright chances of being selected on the basis of merit. It was also contended that in regard to second Departmental Promotion Committee, had the respondents No. 8, 9, 10 & 11 promoted on ad hoc basis and had the respondents Nos. 19, 20 and 21 also been selected and had respondents No. 15 and 22 not been promoted to occupy general posts, then there should have been 32 available posts out of which 11 persons could be selected on merit. The petitioner had obtained 9th position in merit and therefore he should have been promoted as an Inspector of Schools on 19. 12. 1967, The appointment of Miss Wali and Mrs. Sayal by orders dated December 19, 1967 and J sly 22, 1968 were also challenged as being illegal. It was further contended that their seniority has been computed on the basis of list of seniority of famale incumbents in the next below category. Had the consolidated seniority list of males and females been relied upon they would have been very much junior to the petitioner. The appointment of Mrs. Sayal was also challenged as being illegal and against the 1960 Rules. The petitioner has, thus, challenged the promotion of various respondents to the posts of Inspectors of Schools, and prayed that the Circular Ex. 1 dated August 27, 1956 be quashed and that the appointment of respondent No. 6 as Deputy Director of Education also be quashed. None of the respondents except the State of Rajasthan filed reply to the writ petition. In the reply dated December 10, 1969, the State of Rajasthan contended that it is not disputed that the applicant was appointed as an Assistant Teacher in the Sadul Public School, Bikaner on November 1, 1949. The Rajasthan Civil Services (Unification of Pay Scales) Rules, 1950 revised the pay scales to Rs. 200-10-290 BB 10. 350 with effect from 1- 4-1950. This pay scale was admissible to those who were at least holding a second class M. A. degree. The petitioner, according to the respondent No. 1 was confirmed on October 31, 1956 as Head Master. It was pointed out by the Accountant General of Rajasthan, Jaipur that definite dates of confirmation on permanent posts should be given to the incumbents. By an error the heading of the second list in the order dated January 3, 1950, the same heading as was of the first list was repeated. The State Government did not challenge that there was no adverse entry against (he applicant and that the record of his service was meritorious The Director of Education did prepared a list of Hend Masters from time to time. By the order dated September 22, 1958 no inter se seniority of Head Masters of the Multipurposes and Higher Secondary Schools as well as other catagories of officers was issued. By an order dated August 11, 1959 the interlaced seniority list of the Head Masters and Head Mistresses of the High Schools as on November 1, 1956 was issued. As the lists were not prepared in accordance with the directions given by the Central Government under the State Re-organisation Act, these list had to be dropped, and a fresh seniority list was published on May 27, 1969. The State Government also denied having published a final seniority list of Head Masters and Head Mistresses of the High Schools and Multipurpose Higher Secondary Schools The list published on November 30, 1968 was only a compilation of the list published by the Director or the Addl. Director of Education from time to time. With reference to para 9 of the writ petition, it was contended that there were 14 clear vacancies and 4 vacancies were likely to occur in the month of June, 1957 in the senior posts of the Rajasthan Educational Service, The Departmental Promotion Committee met in October, 1966 and made its recommendations. It was also contended that another meeting of the Departmental Promotion Committee took place in October, 1967 which made recommendations to the Government. In pursuance of these recommendations the Government promoted 20 persons by orders dated December 11, 1967 and December 19, 1967 and by another order of the same date against vacancies occurring during the academic year 1967. 68. The Gvernment also made orders of adhoc promotion includling Smt. Savitri Sayal by order dated July 22, 1968 The petitioner's seniority, it was alleged, was kept intact as it was before November 1, 1956. The seniority list published by the respondent No. 3 on August 11, 1959 was not in accordance with the notional formula approved by the Central Government, and therefore, the Government by its order dated December 28, 1967 directed the respondent No. 3 to prepare the interlaced seniority list accordingly. By Notification dated May 27, 1969 the State Government published the provisional interlaced seniority list as on November 1, 1966. It was further contended that the petitioner made a respresenation on December 16, 1968. There was no record showing whether the petitioner met the Director of Education on January 31, 1969, and the Secretary to the Government in the Education Department on December 31, 1968, If the petitioner had any grievance about his interlaced seniority, he should have made a representation upon the publication of the provisional interlaced seniority list. It was also contended that the respondents No. 4,6,7,10,11,17,19,20,21 and 23 were senior to the petitioner even before November I, 1956. The State Government contested that the validity of the Circular dated August 27, 1966 issued by the Chief Secretry could not be questioned. It was further contended that the respondents No. 10 and 11 are senior to the petitioner, whereas according to the preceding paragraph in reply to the para No. 10, respondents No. 8 and 9 were no doubt junior to the petitioner. All these four respondents are still officiating. The petitioner cannot make any grievance on their promotions on the ground stated in reply to para No. 10. It was further stated that estimated vacancies numbering 11 was not correct It has been stated that there were 18 likely vacancies. It was further contended on behalf of the State that with reference to sub-head 4, it is submitted that Miss Wali was appointed against the general quota because of her merit, whereas Mrs. Sayal has been appointed as Inspectrees of Girls Schools under the Rules. It was further pointed out that since some officers had been sent on deputation on posts outside the cadre, vacancies occnrred and the Government in exercise of its powers made adhoc appointments to fill up the vacancies. It was also contended that the respondent No. 6 was very much senior to the petitioner. The learned Single Judge by his judgment dated October 8, 1974 allowed the writ petition basically on the ground that there were no final seniority list either before the First Departmental Promotion Committee or the reviewing committee. The learned Single Judge further observed that the tentative seniority list was published on September 3, 1974 only. It was further observed that there was no final seniority list for making selections on the basis of seniority-cum. merit either in 1967 or in 1973. The learned Single Judge was also of the opinion that ground No. 4 at page 34 of the writ petition concerning the female appointees had also not been met. It was further observed that in the absence of final seniority list, promotion made in 1967, or the review made in 1973 cannot be said to be in consonance with justice. Accordingly, the writ petition was allowed and the promotions of the respondents made in 1967 and 1968 were set aside. The non-applicants feeling aggrieved by the judgment of the learned Single Judge preferred this special appeal on Novembar 26, 1974. While the writ petition was pending before the learned Single Judge, the State Government passed an order dated September 4, 1974. An application dated March 12, 1975 for amendment of the writ petition was moved by Shri M L Mujoo, in this special appeal, praying that by an appropriate writ, order or direction the order dated September 4, 1974 may be quashed, and that the respondents No. 1 to 3 be directed to proceed to make selections according to law.
(3.) THE application for amendment of the writ petition has been opposed by the learned counsel for the appellants on the ground that there are no just and sufficient reasons for allowing the amendment. It was also contended that the provisions of O. 6, R. 17, C. P. C did not apply to the amendment of the writ petition, wherein the extraordinary jurisdiction of the Court is invoked. In this special appeal, it was contended on behalf of the appellants that the Departmental Promotion Committee while making selections in the year 1966 and 1967 had taken into consideration the Circular of the Chief Secretary dated August 27, 1966 and therefore, the entire selection made by the Departmental Promotion Committee was vitiated. It was further contended that the learned Single Judge has erred in observing that there was no final seniority list at the time the first Departmental Promotion Committee or the reviewing Committee was constituted. It was further contended that it was never the case of the petitioner that the seniority list was not final. On the other hand, it had been submitted by the petitioner himself in para No. 7 of the writ petition that the final seniority list of the Head Masters of all Secondary and Multipurpose Higher Secondary Schools had been notified vide Notification dated November 30, 1968. It was also contended that it has been admitted by the petitioner in the writ petition thst the final seniority list had been notified on November 30, 1968. It was further contended that it was not now open to the learned Single Judge to make a new case that final seniority list had not been prepared, and therefore the meeting of the reviewing committee in the year 1973 had been vitiated It was further contended that the seniority of the Head Masters and Headmistresses had been determined by the selection board from time to time, and thus, there was no dispute regarding their seniority. It was on the basis of this seniority that the selections were made in the year 1966 and 1967 under the Rajasthan Educational Service Rules, 1969. In the year 1970, the new rules known as Rajasthan Educational Service Rules 1970 (hereinafter referred to as the 1970 Rules) were promulgated, and the '1960 Rules' were repealed. Under proviso 7 to Rule 28 of the 1970 Rules, interlaced seniority of the Headmasters of Group E and F, both males and females had been prepared tentatively on July 28, 1974, and objections were invited. It was this tentative interlaced seniority list of Headmasters of Group E and F of both males and females which was prepared under proviso 7 to Rule 28 of 1970 Rules which was finalised on September 2, 1974. It was further contended that it does not mean that the seniority list of the petitioner and the respondents to the writ petition as such was not finalised earlier, and therefore, the learned Single Judge has erred in drawing the conclusion that the seniority of the respondents and the petitioner in the writ petition has not been finalised at the time when the Reviewing Committee considered their cases in accordance with the decisisn of their Lordships of the Supreme Court in Gumansingh's case. It was further contended that under the 1960 Rules, no interlaced seniority list was required to be prepared, and therefore, no interlaced seniority list was prepared. It was further contended that so far as the appellant Mise Usha Sundri Walli is concerned, the observations made by the learned Single Judge with due respect, are not correct It was contended that Miss Usha Sundri Walli had fared with male incumbents on equal terms and she had been selected on the basis of merit in preference to the petitioner, though she was junior to the petitioner in the interlaced seniority list made by the selection committee, although actually interlaced seniority list was not prepared and published till then. It was further contended that Miss Usha Sundri Walli's selection was not made towards the female set up, namely post of inspectresses. The State Government had replied that the allegations made by the petitioner in ground No 4 of his writ petition and it had been accepted by the State Government that Miss Usha Sundri Walli was appointed towards general quota on the basis of merit. These allegations made by the petitioner are wholly unfounded and the appointment of the appellant Miss Walli could not be validly challenged. It was further contended that the reply filed by the State Government in this behalf escaped the attention of the learned Single Judge. Dr. Tiwari, learned Add!. Advocate General has made available the relevant proceedings partaining to the selection of the various officers of the Education Department. He has also made available the "common Seniority List of the persons holding the posts included in Group E and F of the schedule in Rajasthan Educational Service Rules, 1970 (Male and Female)" dated December 6, 1972 issued by the Director of Primary and Secondary Education, Rajasthan Bikaner under proviso (1) of Rule 28 of the Rajasthan Education Service Rules, 1970. In the proceedings dated October 24, 1967, it has been clearly mentioned that interlaced seniority list of male and female has not been prepared. There is a seniority list of Head Masters of Secondiry, Higher Secondary and Basic S. T. C. Training Schools as on October 24s 1967. The seniority list of Head mistersses of Secondary/higher Secondary and Basic S. T. C. Training Schools as on October 24, 1967 is also on file. The seniority list of the Dy. Inspectors, Inspectresses of Schools Selected on October 30, 1956 and seniority List of District Social Education Officers selected by the Rajasthan Public Service Commission on January 11, 1958 are also available on file. The Rajasthan Educational Service Rules, 1960 envisages that the Services consist of three categories 1 Selection Posts, II Senior Posts III Junior Posts and the strength of the posts in each of the above categories shall be as specified in the schedule. The Service shall be constituted initially as follows: - (a) All persons holding substantively the selection posts, senior posts and junior posts as mentioned in the Schedule, before commencement of these rules, shall be deemed to have been appointed as such under he provisions of these rules. (b) All posts in which persons not selected by the P. S. C. are working in a temporany or in an offg. Capacity, shall be filled substantively upto 50% in the first instance by selection from amongst the holders of these posts, by the Government in consultation with the Commission. The persons so selected shall be deemed to have been appointed under these rules. (c) The persons not found suitable for holding the posts substantively, as mentioned in sab-clause (b) above, shall be liable to be reverted to their lower substantive post provided they hold a lien on such posts or their service terminated, if their be no such lien as soon as a suitable person is appointed either by direct recrutment or by promotion as provided under these rules. " ;