VERMA, J. - (1.) THE petitioner was initially appointed as work charge Nakedar in Feb. 1963 under the Directorate of Mines and Geology. In the year 1973, the Governor of Rajasthan had ordered for conversion of existing posts of Nakedars into that of Lower Division Clerks (for short as LDC), resultingly after the abolision of the posts of Nakedars 231 posts of LDCS, were created in the scale of Rs. 110-230. THE petitioner who fulfilled the qualifications as prescribed for the post of LDC, was appointed as LDC vide Annex. 1 w. e. f. 1. 10. 1973 and was confirmed on the said post on 14. 10. 1982 vide Annex. 2, attached with the writ petition. THE counsel for the petitioner submits that similarly number of other employees who were initially working as Nakedars were also appointed as LDCs because of the conversion of the posts to the post of LDC after abolition of the post of Nakedars. THE petitioner has attached the list of certain persons.
(2.) THE grievance of the petitioner is that despite the fact that he and other similarly situated persons were absorbed as LDCs, but still in the provisional Seniority list, prepared by the Department of Mines and Geologycal relating to the service of the LDCs, name of the petitioner was not included. This Seniority list was prepared in the month of April 1985. According to the petitioner, only persons holding the posts of LDCs were included in the seniority list, who were appointed upto Sep. 30, 1973. Number of persons, who were so absorbed from the post of Nakedars, were also effected and representations were made to the Department and it was revealed that the names of all such persons have been omitted from the seniority list because of the reason that list contained the names of only those persons, who have been appointed as LDCs upto Sep. 30, 1973 who had passed the examination held by RPSC in the year 1974. A final seniority list was prepared vide Annex. 4, but still the petitioner was not given relief. It is submitted that the petitioner was regularly appointed against the substantive vacancy w. e. f. 1. 10. 1973 and had been awarded all the yearly increments in regular manner. It is further submitted that vide Schedule `c', a notification dated 30. 8. 78 was issued which was to be operated from 1. 10. 1973 providing the absorption of petitioner and similarly situated persons and Rule 27 of the Rajasthan Subordinate Offices Ministerial Staff Rules, 1957 (hereinafter referred to be as "rules of 1957") was amended yet by another notification dated 5. 5. 1984. Proviso (xvii) to Rule (xvi) was substituted vide notification "schedule D". It is submitted that the Governor of Rajasthan was pleased to sanction 231 substantive posts of LDCs in the scale of Rs. 110-230 and all the posts were permanent and the petitioner was absorbed against one of such posts. THE petitioner relies on Rule 25 (2) of the Rules of 1957 wherein it has been mentioned that persons temporarily appointed as LDC upto 7. 11. 75 who have been continuously holding such posts or higher posts, shall be deemed to have been appointed regularly on temporary basis provided they fulfil other conditions pres- cribed in the rules and they shall be eligible to be appointed substantively as LDC according to the date of their temporary appointment. THE petitioner is aggrieved by the action of the respondents for not including his name in the seniority list and further attacks the omission of the name of petitioner and other similarly situated employees from the seniority list being without any reasonable cause and justifica- tion. THE petitioner further submits that the employees appointed as LDCs through the RPSC subsequent to the appointment of petitioner, have been included in the seniority list and the petitioner has been discriminated along with the similarly situated persons. THE petitioner challenges the provisions of Rule 27 to the fact that seniority of the persons appointed to the lower posts to the service, shall be deter- mined from the date of confirmation of such persons to the said post. THE petitioner submits that the date of confirmation is of no consequence for the reason that he was appointed against the substantive post by amending the rule when the posts of Nakedars were abolished. THE petitioner is also aggrieved from the fact that because of the reason that their names have not been included in list at proper place or rather has been omitted from the seniority list, many junior persons who were appointed as LDC much later than the petitioner as similarly situated persons, have been promoted to the next cadre by ignoring the rights of the petitioner and similarly situated persons. THE petitioner prays that Rule 27 of the rules of 1957 may be declared unconstitutional and be struck down. The respondents had filed the written statements and the material facts have not been denied. It is submitted by the respondents that the petitioner cannot be given the similar and equal treatment and cannot be equalised to those LDCs who have been selected by way of direct recruitment under the Rules of 1957 by RPSC on the ground that those LDCs recruited through the RPSC, have got the better claim for the reason, that they have been recruited after passing of the examination. It is admitted that petitioner's name has not been included in the seniority list of LDCs as finalised in the year 1985. It is further submitted that those LDCs who have been recruited after passing the examination in the year 1974 held by RPSC, have been ranked senior to those LDCs who have been appointed between 1. 4. 73 to 7. 1175 on their having been absorbed to the post of LDCs after abolishing the post of Nakedar. It is denied that any discrimination has been applied towards the petitioner or persons similarly situated as that of the petitioner. It is submitted thatnot only the petitioner, but all those employees who were appointed w. e. f. 1. 10. 1973 have not been included in the seniority list, but only those persons have been included in the list who had passed the examination held by RPSC in the year 1974 as a direct recruitee. It is submitted in the reply that because of the reason that petitioner had been appointed not as a direct recruitee, but has been absorbed by way of appointment w. e. f. 1. 10. 73, even though passing of such examination has been exempted by amending the rules, and that the petitioner is not entitled to any relief and including the relief of fixing the seniority or name to be included in the seniority list. This rleief can be awarded only to those appointees who were appointed directly after passing the examination in response to the advertisement of RPSC or when the petitioner is confirmed. After hearing the arguments on behalf of both the parties, the only point which arises for determination is whether the petitioner was appointed against the substantive vacancies and whether on his having been appointed because of the absorption of posts of Nakedar to the post of LDCs, by amending the rules of passing the examination as required under the Rules of 1957, the petitioner is entitled to the seniority from the date of his substantive appointment. The respondents have attached the order dated 30. 10. 1973 as Annex. R/1 wherein a decision was taken for creation of 231 posts of LDCs in the scale of 110-230 for matriculates and to abolish equal number of posts of Nakedar w. e. f. 1. 10. 73. As per Annex. R/1, there were as many as 301 posts of Nakedars and out of these 301 posts, 231 posts were the matri- culate and were regular work charge employees and it was decided that these 231 posts of Nakedars be converted and merged into the cadre of LDCs. The Governor of Rajasthan was pleased to pass the order Annex. R/1 by creation of 231 posts of LDCs for matriculate and to abolish the equal number of existing 231 posts of Nakedars, regular or work charge w. e. f. 1. 10. 1973. It was further provided in this very order Annex. R/1 that on such appointment as LDC, the posts of Nakedars would stand converted into that of LDCs w. e. f. 1. 11. 73. As per notification dated 30. 8. 78, exercising the power under Article 309 of the Constitution of India, the Governor of Rajasthan had further amended therules of 1957 w. e. f. 1. 10. 73 and this amendment was to remain in force upto 31. 12. 75. A proviso was added to Rule 7 of the Rules of 1957 to the fact that previously Nakedars regular or workcharged in the Mines and Geology Department may be absorbed and appointed by the Appointing Authority on the post of LDCs as initially sanctioned and as such, being converted into the posts of LDCs or such posts brought on to regular establishment, if they have passed Secondary Examination or equivalent Examination in relaxation of Upper age limit, type writing speed and RPSC examination prescribed under the rules. Still another amendment to Rule 27 was inserted, prescribing therein that the inter-se seniority of the persons appointed under the proviso shall be such as may be determined by the appointing authority on an adhoc basis according to such principles as may be approved by the Government in the Department of Personnel. Seniority of daily paid or work charged employees absorbed under the said proviso shall be reckoned from the date of order to their substantive appointment to the service. Relevant amendment dated 30. 8. 78 w. e. f. 1. 10. 73 to Rule 7 and 27 are reproduced as under : "amendment OF RULE : After the existing proviso to clause (b) to sub- rule (1) of Rule 7 of the Rajasthan Subordinate Offices Ministerial Staff Rules, 1957 hereinafter referred to as the said Rules, the following proviso shall be inserted, namely : "provided that persons previously employed as Nakedars regular or workcharged in the Mines and Geology Department may be absorbed and appointed by the Appointing Authority on the posts of LDC on posts initially sanctioned as such being converted into posts of LDC or such post brought on to regular establishment, if they have passed Secondary Examination or equivalent Examination in relaxation of Upper age limit, type writing speed and RPSC examination prescribed under the Rules. AMENDMENT OF RULE 27 : After the existing proviso (xvi) of Rule 27 of the said Rules, the following new proviso (xvii) shall be added, namely :- "provided that subject to any general or specific directions issued under second proviso to sub-rule (1) of rule 7, the inter-se seniority of the persons appointed under the proviso shall be such as may be determined by the appointing authority on an adhoc basis according to such principles as may be approved by the Govt. in the Department of Personnel. Seniority of daily paid or work charged employees absorbed under the said proviso shall be reckoned from the date of order to their substantive appointment to the service. " The respondent/state Govt. is seeking shelter under a notification dated 5. 5. 84 published under the proviso to Article 300 of the Constitution of India where- by a further amendment was made in the Rules of 1957 in Rule 27 to the fact that persons appointed as LDC on adhoc basis during the period 1. 4. 73 to 7. 11. 75 by the Head of the Department concerned shall rank senior to the persons appointed regularly as a result of passing the examination conducted by the Commission inthe year 1976 and the inter-se seniority of persons appointed during the period 1. 4. 73 to 7. 11. 75 shall be determined on the basis of the length of continuous service etc. etc. The imposition of said amendment in Rule 27 is that adhoc LDCs appointed between the period 1. 4. 73 to 7. 11. 75 shall rank senior to the persons appointed regularly as a result of passing the examination conducted by the Commission in the year 1976. The import of this rule is not at all applicable in the present case for the reason that the petitioner was not appointed on adhoc basis nor he is concerned with any examination to be held in any year after his appointment.
(3.) IT is crystal clear that vide amendment of Rule by way of notification dated 30. 8. 78 (Annex. R/1) attached with the written statements, reproduced above, earstwhile Nakedars were to be appointed as LDCs from 1. 10. 73 and by relaxing the upper age limit, type writing speed or passing the examination to be held by RPSC, prescribed under the rules for direct recruitees and further the seniority of such employees was to be fixed as per amended rules of this very notification i. e. from the date of substantive appointment. Any other amendment made later on for the seniority to be fixed from the date of confirmation, shall not be applicable to the case of present petitioner or similarly situated persons/employees. Substantive appointment has been defined in Rule 2-J of the Rules of 1957 i. e. appointment made under the provisions of these Rules to a substantive vacancy after due selection by any of the methods of recruitment prescribed under these Rules and includes, an appointment on probation or as a probationer followed by confirmation on the completion of the probationary period. It is not disputed that 231 Nakedars were appointed against the substantive vacancies when the posts of Nakedars were converted to the posts of LDCs by the order of Governor. The said Nakedars, once having been appointed against the substantive vacancies, were entitled to the benefit of amending rule 27 of the Rules for fixation of their seniority as per their dates of appointment against the said post. The State Govt. does not dispute that 231 posts of LDCs were created on substantive basis and Nakedars were appointed on such post on substantive basis. An artificial discretion has been created by the respondents without any basis to the fact that only those direct recruitees will be brought on seniority list, who were recruited by way of direct recruitment by passing the examination held by RPSC. The amendment to Rule 27 as per Annex. R/2 was made for the benefit of this class of Nakedars who had so appointed against the substantive vacancies and the State Govt. was, therefore, bound to fix their seniority from the dates of their substantive appoint- ment i. e. 1. 10. 73. In view of the amending rules and failure of respondents to include the name of such Nakedars, whose posts had been converted to the posts of LDCs and who had been so appointed, the omission to fix the seniority did cause the arbitrariness, violating the Articles 14 and 16 of the Constitution of India. It is admitted fact that the petitioner was not appointed on any urgent or adhoc basis, but was appointed on substantive capacity, as such, could not be deprived of the seniority. ;