D. P. GUPTA, J. - (1.) THE petitioner passed the M. B. B. S. examination in the year 1964 and obtained the degree of M D. in pa-hology and Bacteriology in the year 1969 On March 16, 1965, he was appointed as a Junior Demons-trator in Pathology in the S. P. Medical College, Bikaner in a temporary capacity. THEreafter he was selected for the post of Senior Demonstrator in Pathology by the Central Selection Committee and was appointed on the said post on the basis of the recommendations of the aforesaid Committee, on an ad-hoc basis, by the order of the State Government dated January 31, 1966 THE petitioner continued to hold the said post till he was appointed in a substantive capacity on that post by the order of the State Government August 12, 1970 after he was selected for the same by the Rajasthan Public Service Commission. THE last mentioned appointment of the petitioner on the post of Senior Demonstrator was on probation for a period of one year. In the mean-time, the petitioner was selected by the Central Selection Committee for the post of Lecturer in Pathology and Bacteriology and was appointed on that post in a temporary capacity with effect from February 28, 1970.
(2.) THE petitioner's case is that on August 9, 1971, three posts of Lecturers in Pathology were tilled in by direct recruitment on the recommendation of the Rajasthan Public Service Commission and 9 more posts were left to be filled in by promotion in a substantive capacity, but as the Departmental Promotion Committee did not meet either in the year 1970 or 1971 or even in the year 1972, no appointment to the posts of Lecturers in Pathology by promotion could take place during these years. THE Departmental Promotion Committee met only in January 1973 and 9 persons, namely respondents No. 4 to 12 were selected for the posts of Lecturers in Pathology and on the basis of its recommendations, respondents Nos. 4 to 12 were appointed as Lecturers in Pathology by the order of the State Government dated January 19, 1973. THE petitioner though eligible was not selected at the aforesaid selection. THE case of the petitioner further is that two out of the nine persons selected by the Departmental Promotion Committee in January 1973 for the posts of Lecturers in Pathology, namely respendent No. 7 M. M. Sharma and respondent No 10 Dr. V. B. Kalara were not eligible for promotion to the said posts of Lecturers either in the year 1970 or in the year 1971 as they obtained the degree of M D in Pathology in the year 1971 and thus became eligible for promotion to the said posts only in the year 1972. THE petitioner's grievance is that in case the Departmental Promotion Committee would have met in the year 1970 or 1971, the aforesaid respondents Nos, 7 and 10 could not have been considered for promotion to the posts of Lecturers and the petitioner would have fair chance of being promoted. According to the petitioner, he was not promoted in January 1973 to the post off Lecturer in Pathology in a substantive capacity on the ground that the respondent Nos. 4 to 12 were senior to him in the cadre of Senior Demonstrators and not on account of any defect or infirmity or lack of merit in the petitioner. The State Government has filed a statement today wherein it has been stated that there were 8 vacancies in respect of the posts of Lecturers in Pathology in the year 1969, which were to be filled in by promotion. But those vacancies were carried over until the year 1973 and the Departmental Promotion Com-"mittee met on 8, 9 and 10th January, 1973. It has also been mentioned by the State Government in its statement submitted today that while no-body was selected on the basis of merit alone, yet 8 persons were selected against 8 vacancies carried forward, on the basis of seniority-cum-merit, and Dr. L. K. Tambi, respondent No. 12, was appointed against vacancies of the year 1973. Thus, according to the State Government there were 8 vacancies, which were carried forward from the year 1969 and not as alleged by the petitioner and out of the 9 persons, who were appointed on the posts of Lecturers in Pathology by the order dated January 13, 1973, 8 were appointed against vacancies which were carried forward and the ninth person was appointed in respect of the new vacancy which occurred in the year 1973. The contention of the learned counsel for the petitioner is that in case a meeting of the Departmental Promotion Committee would have been convened in the year 1970 or 1971 for filling in the vacancies for the posts of Lecturers in Pathology, pertaining to the promotion quota, the petitioner had every chance of being selected for that post and that the petitioner has suffered loss of selection only on account of the fact that the Departmental Promotion Committee did not meet at the proper time. The vacancies pertaining to the promotion quota were carried forward year after year from the year 1969 upto the year 1973, although the vacancies pertaining to the direct recruitment quota in respect of the same posts of Lecturers in Pathology were filled in August 1971 on the basis of the recommendations of the Rajasthan Public Service Commission. Learned counsel for the petitioner relied upon the provisions of the Rajasthan Service (Recruitment by Promotion against vacancies of earlier years (Rules, 1972 (hereinafter referred to as "the 1972 Rules") in support of his submission. Learned Dupty Government Advocate, appearing on behalf of the State, and the learned counsel for respondeat No. 7 contended that the appointment to the post of Lecturers in Pathology were governed by the Rajasthan Medical Service (Collegiate Branch) Rules, 1962 (hereinafter referred as "the Rules") and that there was no provision in the said flutes either for determination of vacancies year after year and for filling up of the vacancies every year and as such the State Government was not bound to fill in the vacancies which occurred in the year 1959 pertaining to the promotion quota during that very year, but it could have law fully carried them over till such time when the State Government thought it fit and proper to fill in the said po3ts by the promotion, and that the petitioner could not complain if the appointment by way of promotions to the post of Lecturers in Pathology were not made during the year 1970, 1971 or 1972. It has further been submitted by the learned counsel for respondent No 7 that the 1972 Rules were not applicable to the appointments made to the Rajasthan Rule 8-A in the Rules, if the vacancies occurring in respect of any of the posts included in the service were carried forward until such time when the appointing authority thought it proper to fill in the vacancies. At that stag-, when the available vacancies were proposed to be filled in, the appointing authority is required to send a requisition to the Rajasthan Public Service Commission in respect of the vacancies to be filled in by direct recruitment, while the procedure for selection as prescribed in rule 24 of the Rules is to be followed in respect of the vacancies falling with in the promotion quota, in the proportion specified in the Schedule annexed to the Rules. In Dr. Ratanlal vs. State of Rajasthan (l), this Court had occasion to consider the question of allocation of vacancies between direct recruits and promotees in the Rajasthan Medical Service (Collegiate Branch ). It was observed in that case that before the introduction of rule 8-A there was no rule for determination of vacancies in the beginning of each year, as is usually provided for in other service rules. It was further observed in Dr. Ratanlal's case that - "the period during which the allocation of the quota has to be made, having not been settled by any rule analogous to rule 8-A introduced subsequently, it is only at the stage of the appointment that the quota rule could be given effect to. The Government were making the appointments in the year 1964 and, therefore, it is only at the time of the making of the appointments that it has to be seen as to how many posts were available. " In view of the aforesaid observations made in Dr. Ratanlal's case, the vacancies in respect of any category of posts included in the service could be carried forward and the allocation between direct recruitment and promotion quota was to be made at the time when the vacancies were proposed to be filled in. There could be, therefore, no objection if the 11 vacancies, which existed in respect of the posts of Lecturers in Pathology, were carried forward from the year 1969 onwards and in accordance with the provisions of the Rules, there could be no objection if the vacancies were carried forward and were filled in during the year 1973.
(3.) HOWEVER, the promulgation of the 1972 Rules made a difference in this position inasmuch as those rules were made particularly in order to meet the hardship which had resulted to persons on account of the fact that although vacancies in respect of direct recruitment quota were filled in any particular year or during any particular period, yet the corresponding vacancies pertaining to the promotion quota were not filled in then. In most of the service rules regulating recruitment, to public services in the State, the appointments are to be made both by direct recruitment as well as by promotion in certain proportion as specified in the service rules. In some cases, appointments by the procedure of direct recruitment through the agency of the Rajasthan Public Service Commission were made from year to year or during a particular period of recruitment, but the promotion quota vacancies could not be filled in, because for some reason the Departmental Promotion Committees did not meet regularly and thereby hardship was caused to persons who were eligible for being considered against the vacancies of the promotion quota, as they were deprived of promotion as well as of proper seniority, with respect to the time when the promotion quota vacancies became available. The 1972 Rules were promulgated in order to meet such contingencies and to remove the hardship created by the non-filling of the promotion quota vacancies on account of the fact that such vacancies were filled in much later than they became available. The State Government intended that by making appointments by way of promotions with effect from earlier dates, in respect of the promotion quota vacancies or by antedating the appointments by promotion, where such appointments had already been made, by giving the promotees that particular year or period when their appointments by way of promotion should have taken place, corresponding to the appointments by the method of direct recruitment, the grievance of such employees would be redressed or atleast mitigated Rules 2 of the 1972 Rules provides for determination of the number of vacancies which were required to be filled up by promotion, specifying the year corresponding to the year in which vacancies against direct recruitment quota were filled. After such determination, rule 3 of the 1972 Rules envisages the constitution of a Departmental Promotion Committee for the purpose of making recommendations for such promotions, which is also requited to specify the year in which appointments by promotion against the promotion quota vacancies should be made. The appointing authority would then consider the recommendations of the Departmental Promotion Committee and make promotions to the promotion quota vacancies, relevant to the year corresponding to the year in which the vacancies against direct recruitment quota were actually filled in. If the direct recruitment quota vacancies would not have been filled in, in respect of the posts of Lecturers in Pathology, upto the year 1973 then the petitioner could have no grievance, in as much as the Rules do not make provision for determination of vacancies from year to year or from time to time and the vacancies occurring in the cadre could be carried forward to the subsequent year or years. But it is undisputable that in August, 1971 three persons were appointed by the method of direct recruitment on the posts of Lecturers in Pathology and thereby three direct recruitment quota vacancies were filled in. It is also not in dispute that there were 8 vacancies on the posts of Lecturers in Pathology, which were to be filled in by the method of promotion in the year 1971, when three appointments were made on such posts by the procedure of direct recruitment. HOWEVER, the promotion quota vacancies were admittedly not filled in during the year 1971. After the coming into force of the 1972 Rules, in my view, the, promotion quota vacancies should have been filled in after following the procedure contained in rules 2 and 3 of the 1972 Rules. Mr. Mridul contended that rule 2 of the 1972 Rules was not applicable to the appointments which were to be made on the posts of Lecturers in Pathology because there was no promotion quota of an earlier year available for appointment on such posts. It would be convenient to quota rule 2 of the 1972 Rules, in order to consider this submission of the learned counsel. Rule 2 runs as under: - "rule 2 - Where a service rule regulating recruitment and conditions of service made under the first proviso to Article 309 of the Constitution of India provides for recruitment by both direct recruitment and promotion and where promotion quota of any earlier year could not be filled in the absence of recommendations of the Departmental Promotion Committee appointed under the Rules, but vacancies against direct recruitment quota were filled in, the appointing authority shall deternine the number of vacancies which were required to be filled up by promotion specifying the year corresponding to the year in which vacancies against direct recruitment quota were filled. " In my view the words "promotion quota of any earlier year" occurring in Rule 2 necessarily referred to promotion quota of any earlier years and it is not necessary that promotion quota of any one earlier year alone should be available, with reference to which the vacancies have to be determined under rule 2. To my mind, the emphasis of the rule making authority appears to be that the particular service rule regulating recruitment must firstly provide for recruitment by both methods, namely direct recruitment and promotion and, secondly, appointments by direct recruitment in respect of the direct recruitment quota pertaining to the earlier year or earlier years should have been made and in case the aforesaid two conditions were fulfilled but the promotion quota vacancies occurring during the earlier year or years, corresponding to the year or years in which the vacancies against direct recruitment quota were filed in, could not be filled, then rule 2 could be pressed in to service and the appointing authority was required to determine the number of vacancies which were to be filled in by promotion, in respect of each earlier year, corresponding to the year in which vacancies against direct recruitment quota were filled. It cannot be lost sight of that if appointments by direct recruitment and pronation are made during the same year, then the promotees are normally senior to the direct recruits appointed in that year and it appears that it was with that back-ground that the rule making authority specifically eprovided that the vacancies which are required to be filled in by promotion under the 1972 Rules should pertain to the year corresponding to the year in which vacancies against direct recruitment quota were filled in. The words employed in Rule 2 furnish the key to the mind of the rule making authority. It is undispucable that the words quoted above were not contained in Rule 2 of the 1972 Rules as they were originally published by the notification dated October 9, 1972, but they were introduced later by the amsndment published vide notification dated November 5, 1973 in Rajasthan Gazette dated November 27, 1973 although they were made retrospectively applicable with effect from January 1, 1972, the date from which the original rules of 1972 came into force. It may also be mentioned here that the service rules, in the case of recruitment to the Rajasthan Medical Service (Collegiate Branch), did not provide for determination of the number of vacancies from year to year or from time to time. But after coaling into force of the 1972 Rules, if direct recruitment quota vacancies had been filled in any earlier year, then it was incumbent upon the appointing authority to determine the promotion quota vacancies existing in that earlier year, corresponding to the year in which direct recruitment vacancies have been filled in and thereafter such vacancies have to be filled in by promotion. In this view of the matter, I am unable to agree with the learned counsel for respondent No. 7 that the 1972 Rules were not applicable to the appointments to the posts of Lecturer ship Pathology. ;