VYAS, J. - (1.) BY way of filing the present writ petition, the petitioner has prayed for quashing of order dated 28. 2. 2007 Annexure-1 and to direct the respondents to consider his case for promotion on the post of Director under the Rajasthan Police Forensic Science Service Rules, 1979 (hereinafter for short, the Rules of 1979 only) after relaxing the requirement of experience. It is also prayed that if the petitioner is found suitable, he may be provided promotion to the post of Director from the date of order impugned Annexure-1 with all consequential benefits.
(2.) INITIALLY, the instant writ petition was filed by two persons namely T. S. Kapoor (present petitioner) and V. N. Mathur. Both the persons are working on the post of Additional Director of Regional Foreisic Science Laboratory, Udaipur and Jodhpur respectively. Later on, upon objection raised by the respondents, the petitioner No. 2 has made a request to withdraw the writ petition with a liberty to file a fresh writ petition, if so advised. The Coordinate Bench of this Court vide order dated 30. 10. 2007granted the permission to the petitioner No. 2 to withdraw the writ petition with a liberty to file fresh writ petition, if occasion so arise and if so required. Thereafter, amended cause title was filed by the present petitioner. According to the brief facts of the case, the petitioner is claiming his promotion on the post of Director upon which the non-petitioner No. 3 was granted extension/re-employment after his date of superannuation. The petitioner was promoted on the post of Dy. Director vide order Annexure-2 dated 8. 7. 2003. Later on the petitioner was promoted further to the post of Additional Director along with one V. N. Mathur vide order dated 30. 8. 2005. The services of the petitioner is governed by the Rules of 1979. According to the said rules, the persons holding the post of Additional Director is entitled for promotion to the post of Director. The petitioner has stated in the writ petition that earlier the post of Additional Director was not in existence in the Rules of 1979 but in the year 1995, two posts of Additional Director was created by the respondent No. 1 and the Rules of 1979 was amended by notification dated 24. 8. 1998. The petitioner was first promoted on the post of Dy. Director vide order dated 8. 7. 2003 and further to the post of Additional Director vide order dated 30. 8. 2005 after creation of post. The respondent No. 3 was promoted on the post of Director vide order dated 4. 3. 1997 and at that time he was working on the post of Dy. Director but in the year 1997 the post of Director was to be filled in from the feeder post of Dy. Director because the post of Additional Director was not in existence but vide notification dated 24. 8. 1998 the post of Additional Director was created and inserted in the Rules of 1979, therefore, the petitioner who was promoted on the post of Dy. Director along with one V. N. Mathur on 8. 7. 2003 was further promoted on the post of Additional Director, newly created post under the Rules of 1979. The respondent No. 3 was continuing on the post of Director and his date of retirement was 28. 2. 2007 but on that date he was not superannuated and further he was granted re-employment vide order Annexure-1 dated 28. 2. 2007 for a period of two years while observing in the order Annexure- 1 that no candidate is eligible to be promoted on the post of Director, therefore, Mr. B. B. Arora who is going to be retired on 27. 2. 2007 is hereby appointed for two years in accordance with Rule 152 of the Rajasthan Civil Services (Pension) Rules, 1996 (hereinafter for short, the Rules of 1996 only ). Further, it is also stated in the order that this re-employment is with the sanction of Department of Personnel and Finance Department dated 24. 2. 2007 and 27. 2. 2007 respectively. The petitioner is challenging the validity of order Annexure-1 on so many grounds including the ground that the respondent No. 3 was illegally provided re-employment which is not in consonance with the provisions of law. Further, it is submitted that the case of the petitioner was to be considered for granting promotion on the post of Director by the Departmental Promotion Committee in accordance with the Rules of 1979 because the petitioner is senior most Additional Director. According to Rules, Part V of the Rules of 1979 deals with the procedure for recruitment by promotion. Proviso to the Sub Rule (5) of Rule 24 clearly empowers the respondent No. 1 to promote the petitioner even if he does not possess the requisite experience while granting relaxation of experience. Therefore, without considering his candidature for promotion on the post of Director as per Proviso to sub-rule (5) of Rule 24 of the Rules of 1979, the respondents No. 3 was illegally granted re-employment and the opportunity of promotion on the post of Director has been denied to the petitioner.
(3.) THE petitioner has also invited attention of this Court towards second proviso to sub-rule (8) of Rule 24 of the Rules of 1979 under which the competent authority can recommend for promotion by relaxing the experience in case of non suitability of the eligible candidates. It is also brought to the notice of this Court that the Department of Personnel has passed an order dated 7. 11. 1975 whereby the direction was given for the purpose of making ad-hoc/urgent/temporary appointment of persons, who do not fulfill the conditions of eligibility of promotion. THErefore, in view of the fact that there are two posts of Additional Director in the entire State of Rajasthan and in the Department, the petitioner who was holding the post of Additional Director was hopeful that Departmental Promotion Committee will consider his case for promotion to the post of Director while relaxing the requisite experience as is permissible under the Rules of 1979. But contrary to the provisions of law, the respondent No. 3 was given special indulgence by the Government and contrary to the rules, he was provided re-employment for two years from the date of his retirement while observing in the order that none of the eligible and suitable candidates are available in the Department, therefore, Dr. B. B. Arora, who has been retired from service from the post of Director on 28. 2. 2005 is hereby granted re-employment for two years. As per the petitioner, this order has been passed in gross violation of the Rules of 1979. THErefore, the petitioner was very much entitled for considering his case for promotion as per his seniority and was entitled to get relaxation in the experience as provided under Rule 24 of the Rules of 1979 but without placing his case for promotion before the Departmental Promotion Committee for consideration, his candidature has been refused and straightaway by observing in the order impugned that no eligible candidate is available for promotion on the post of Director, respondent No. 3 has been reemployed for two years, therefore, Dr. B. B. Arora who was to be superannuated has been re-employed for two years. As per the petitioner, this re-employment is patently illegal and have no foundation to stand before eye of law. Moreover, it affects the future rights of the petitioner as such, re-employment of the non-petitioner No. 3 is totally unconstitutional, arbitrary and contrary to the Rules of 1979, therefore, the order impugned Annexure-1 may kindly be quashed. Learned counsel for the petitioner argued that in fact the post of Additional Director was created in the year 1995 and amendment was to be made in the Rules in the year 1995 itself and the post of Additional Director was to be enumerated in between the post of Dy. Director and Director but for three years the post of Additional Director was not inserted though created in the year 1995 and after promotion of the respondent No. 3 from the post of Dy. Director to the post of Director in the year 1997 by way of issuing notification dated 24. 8. 1998, the post of Additional Director was enumerated and inserted in the Schedule of Rules of 1979. This delay was practiced only to grant benefit to the respondent No. 3 because after insertion in time there was no occasion left with the Government to promote the respondent No. 3 to the post of Director and he was to be promoted first to the post of Addl. Director but after his promotion on the post of Director in the year 1997, the post of Additional Director was created in the year 1998. Meaning thereby, right from the date of promotion to the post of Director, the respondent No. 3 was given special benefit illegally even post of Addl. Director which was created in the year 1995 was not inserted till 1998 and before amending rules for creation of the post Addl. Director, respondent No. 3 was considered for promotion and was provided promotion on the post of Director and in case of the petitioner, first of all, the post of Additional Director was created and experience of three years on the post of Additional Director was made necessary for promotion on the post of Director and due to insertion of that post and promotion of the petitioner on the post of Additional Director on 30. 8. 2005 on the date of retirement of the respondent No. 3 the petitioner did not acquire the requisite experience for promotion to the said post. As per petitioner, it is obvious from the above facts that special indulgence was given to the respondent No. 3 while granting re-employment on the post of Director after retirement and while ignoring the claim of the petitioner for promotion on the post of Director treating him ineligible for promotion. Learned counsel for the petitioner has invited attention of this Court towards Rule 151 of the Rules of 1996 and submitted that this rule empowers the State Government to re-employ the retired person or to grant extension beyond period of retirement and from bare perusal of Rule 151 of the Rules of 1996, it is abundantly clear that the rule is completely silent as to on what ground the extension can be granted to the candidate for re-employment. Only in public interest, the extension can be granted but in this case it is no where observed in the order impugned that in the public interest, it is necessary to provide re-employment to the respondent No. 3, therefore, the order Annexure-1 is totally in contravention of Rule 151 of the Rules of 1996. ;