MOHAMMAD RAFIQ, J. - (1.) HEARD learned counsel for the parties.
(2.) THESE writ petitions have been filed challenging the notification dated 10.4.1995 whereby amendment in Rajasthan Education Service Rules, 1970, (for short Rule of 1970), which was vide earlier notification dated 30.10.1993 made effective from 6.9.1990 was again enforced on 1.9.1988, the date on which such amendment rules were made effective when the original amendment notification was issued on 6.9.1990. In fact, originally the Government vide two notifications dated 30.10.1993 and 6.6.1990 amended the Rajasthan Education Service Rules, 1970 and Rajasthan Education Subordinate Service Rules, 1971 and gave retrospective effect to such amendments from 1.9.1988. Those amendments were subjected to challenge including on the question of giving retrospective effect to them, in two writ petitions namely; DB Civil Writ Petition No.5562/1990 : Rajasthan Lecturers Association (School Education) Vs. State of Rajasthan & Ors decided on 7.10.1991 and DB Civil Writ Petition No.5562/1990 : Rajasthan Shiksha Sewa Parishad Vs. State of Rajasthan & Ors. In one of the writ petitions, the challenge was made to the note appended to Rule 7 of Amendment Rules, 1990, which provided that method of recruitment by promotion would come into force only after regularly appointed candidates on the posts of Head Masters, Secondary School and equivalent posts upto 31.8.1988, are regularly selected and appointed against the future vacancies of Headmaster Higher Secondary Schools. Subsequently, the Government again issued two notifications of even number both dated 30.10.1993 re-amending the amendment Rules of 1990, both in respect of Rajasthan Educational Service Rules and Rajasthan Subordinate Service Rules making them effective from 6.9.1990 rather than from 1.9.1988, the date originally notified for their enforcement in the previous notification dated 6.9.1990. Then, the Government had a re-thinking over the matter and by issue notification dated 10.4.1995 restored back 1.9.1988 as such date, on which the amendment in the Rules vide originally issued notification 6.9.1990 would be made effective, which gave rise to filing the present writ petitions. Although, it may be a fact that subsequent notification issued by Government on 10.4.1995 has given rise to a fresh cause of action entitling the petitioners, but nevertheless the arguments advanced by learned counsel for the parties are the same, which were either raised or considered or which were available to them which the above referred to two writ petitions were dismissed by a detailed and considered judgment by Division Bench of this Court on 7.10.1991 in which the validity of amendment rules including on the question of retrospectively w.e.f. 6.9.1990 was considered and upheld. The Division Bench in paras No.8 to 11 held as under :- 8. As said earlier, the rule making authority has power to amend the Rules and that power has not been challenged and only challenge on behalf of the Rajasthan Shiksha Parishad which claims to represent thousands of officers of Education Service, is that the same is arbitrary and that should be struck down. We find no merit in the aforesaid argument. If the rule making authority or for that matter the State Government has given higher pay scale of pay scale to the Lecturers School Education and the scale of pay has been given at par with the Headmasters, Secondary School, and the post of Lecturer etc which earlier was under the Subordinate Service Rules, has been brought in the State Service Rules having been deleted from the Schedule to the Subordinate Service Rules and included in the Schedule to the State Service Rules, it cannot be said that the decision to do so is arbitrary. There can be no dispute that the lecturers do not possess lesser educational qualification than Headmasters, Secondary School. Even earlier so far as posts of Headmasters, Secondary Schools are concerned, which posts fell under Group 'E' of Schedule I to the State Service Rules, were to be filled in 100% by promotion from Group 'F' posts and under Group 'F' posts, were the posts of Headmasters Secondary School, and 50% of those posts were to be filled in by direct recruitment and 50% by promotion and so far as channel of promotion to the said 50% is concerned, it was 'Teachers in Grade-II and teacher in Grade I in Sections C, D, E & F of the Schedule appended to the Subordinate Service Rules. Thus, the posts of Headmaster,s Secondary School were filled in by promotion from two sources, Teachers Grade-II and Teachers Grade-I in proportion to 4 : 1. The posts of Teachers, or for that matter Teacher Grade-II falling under Subordinate Service Rules were lower posts than the post of Teachers Grade-I or Senior Teachers or Lecturers, but still promotions to the post of Headmaster in the aforesaid ratio were made from the posts of Teaches Grade-II as well as Teachers Grade-I. But once the posts of lecturers have been brought under the State Service Rules, have been encadred under the State Service Rules and encadred posts they cease to be the posts under the Subordinate Service Rules and there can be no promotion even in the earlier ration 4 : 1 to the post of Headmasters, Secondary School from amongst Lecturers, the post of Lecturer and Headmaster, Secondary School are in the same grade and are equivalent posts and therefore, if the State Service Rules now provide that the posts of Headmasters, Higher Secondary Schools, 50% posts are to be filled in by promotion from among the Headmasters, Secondary School and 50% from amongst Lecturers, the rule cannot be said to be arbitrary, and rather, it can be said that it has done justice to the lecturers, though it has been done belatedly and thus, the Rule cannot be said to be arbitrary. We, therefore, uphold the amendment in Schedule I and III to the State Service Rules vise rule 3 and other rules of the Amendment Rules of 1990 by which various entries have been added. 9. Now the question arises as to whether giving retrospective effect to the Amendment Rules of 1990 w.e.f. September 1, 1988 can be upheld ? We have already said in the earlier part of this order that the rule making authority has power to give to the amendment retrospective effect, unless such an amendment affects vested right. So far as rule 2 of the Amendment Rules of 1990 by which sub-rule (2) of rule 23 of the State Service Rules has been deleted and rules 3, 4 and 5 of the aforesaid Amendment Rules of 1990 under which various entries were added in Schedule I, Schedule II and Schedule III and the posts of lecturers were encadred in the State Service Rules, are concerned, we are of the opinion that they do not affect any vested rights of the members of Rajasthan Shiksha Sewa Parishad which claims to represent about 5000 officers of the State Educational Service holding the posts from Group F to Group A. It was as a result of the settlement arrived in between the Association of Lecturers School Education and the State Government that the said amendment was introduced and the lecturers withdrew their agitation in view of the settlement dated October 21, 1988. It is as a result of the aforesaid settlement that that aforesaid rules of the Amendment Rules of 1990 were given retrospective effect w.e.f. September 1, 1988 and it was provided that they shall be deemed to have come into force with effect from that date. We will deal later on as to what is the effect of rule 7 of the Amendment Rules of 1990 as that rule has also been given retrospective effect w.e.f. September 1, 1988. The contention of the Rajasthan Shiksha Sewa Parishad that the posts of lecturers are subordinate to the post of Headmaster, Secondary School has no force in view of the fact that the post of lecturer has been encadred in the State Service Rules vide notification dated January 6, 1990 published in the Rajasthan Gazatee Pt.4 (C) (1) dated September 17, 1990-P, 35 (14). Prior to the aforesaid amendment, no doubt the posts of Lecturers were subordinate posts to the posts of Headmaster, Secondary School, being governed by the Subordinate Service Rules, rather the channel of promotion to the post of Headmaster, Secondary School was from Teachers Grade-II and Teacher Grade-I (redesignated as Lecturers) in the ratio of 4 : 1 but after the demand of lecturers, the posts of lecturers were encadred in the State Service Rules, they were given the same pay scale as was being paid to the Headmasters, Secondary School, they ceased to be the posts subordinate or inferior to the post of Headmasters, Secondary School, and were equal posts. Therefore, prior to the aforesaid amendment, whereas the Government might have said that the post of Lecturers are subordinate to the post of Headmasters, Secondary School, is not relevant to the present controversy. We are of the opinion that giving retrospective effect to rule 2, 3, 4 & 5 by adding entries in Schedules I, II and III in respect of lecturers and encadering those posts in the State Service making them members of the State Service cannot be said to be unreasonable, and invalid and it does not affect any vested right of the holders of the posts of Headmasters, Secondary School, the posts falling under Schedule I Group E of the State Service Rules. 10. Now we will take up the challenge to rule 7 of the Amendment Rules of 1990 under which in Group E of Schedule I at S.No.1 (a), (b), (c) and (d) and in Schedule II at S.Nos.1 (i), (ii), (iii), (iv), 2 and 3, the entries appears in column 3 have been substituted. We have already extract the substituted entries in the earlier part of this order. Once the post of Lecturers have been encadred in the State Service looking to the qualifications i.e. IInd Class Post Graduate in the relevant subject with Degree of Diploma in Education from a University established by law in India and recognised institution and their scales of pay being the same as Headmasters of the Secondary School, if the rule making authority provided that the promotion to the posts of Headmasters, Higher Secondary School will be in proportion of 50 : 50 from amongst Headmasters, Secondary School, and Lecturers, in our opinion, it cannot be said that the said decision is arbitrary and unreasonable. It is for the rule making authority to provide as to in which manner the posts meant for promotion shall be filled in. It is for the rule making authority to provide the ratio and fix the ration on the proportion and channel from which the posts are to be filled in. It is a policy decision and unless it is arbitrary and illegal or against the provisions of the Constitution or it affects any of the vested rights of anybody, in our opinion, it cannot be challenged. The number of lecturers in various Schools in Rajasthan is much more than Headmasters Secondary Schools whose number appear to be about 2500 as stated by the Association of Lecturers, School Education in writ petition No.5562/90 in para 15, as on September 1, 1988. At any rate it can be said that the number of lectures in various subjects is more than Headmasters, Secondary Schools. As said earlier, before one becomes eligible for appointment as Lecturer, he must be Post-Graduate with a Degree of Diploma in Education recognised by the Government, whereas even a Second Grade Teacher being Bachelor or Diploma holder in Education is eligible for promotion to the post of Headmaster, Secondary School. At any rate when the post of Lecturer has been encadred in the State Service Rules, and they have been provided the same pay scale as is payable to the Headmaster, Secondary School, it can be said that they became equal almost in all the respect to the post of Headmaster, Secondary School, it can be said that they became equal almost in all the respects to the post of Headmaster, Secondary School and if by rule 7 of the Amendment Rules of 1990, column 3 in Schedule I at S.No.1 (a) (b) (c) and (d) and in Schedule III at S.Nos. 1 (i) (ii) (iii) (iv), 2 & 3 have been substituted under heading method of recruitment and it has been provided that 50% of the posts shall be filled by promotion from Head Master, Secondary Schools and 50% by promotion from Lecturer, School Education, such a decision cannot be said to be arbitrary or against the provisions of the Constitution of its Articles 14 and 16. One has a right of consideration for promotion in accordance with the provisions of rules in existence at the time when the post fell vacant. 11. Now the question is as to whether the Note appended to the aforesaid rule 7 of the Amendment Rules of 1990 is arbitrary ? The note too has been extracted in the earlier part of this order and a perusal of this note will show that under the aforesaid note it has been provided that the method of recruitment as provided in the substituted Group-E of Schedule-I and II as aforesaid i.e. 50% from the post of Headmaster, Secondary School and 50% from Lecturer, School Education, shall come into force only after the regularly appointed candidates on the post of Headmasters, Secondary School and equivalent posts upto August 31, 1988 are regularly selected and appointed against the future vacancies of Headmasters, Higher Secondary Schools. As said earlier, the Amendment Rules of 1990 have been given retrospective effect from September 1, 1988 and the post of Lecturer, School Education has been encadred in the State Service Rules and has been deleted from the Subordinate Service Rules. In the persons appointed on the posts of Headmaster, Secondary Schools or equivalent posts upto August 31, 1988, there might have been persons from among lecturers, who too should have been appointed by promotion as Headmaster, Secondary Schools and under sub-rule (2) of rule 23 of the State Service Rules, which sub-rule (2) of rule 23, as said earlier has been deleted by rule 2 of the Amendment Rules of 1990 w.e.f. September 1, 1988, the promotions to the post of Headmaster, Secondary Schools were from Teacher Grade-II and Teacher Grade-I (redesignated as Lecturers) in Section C, D, E and F of Schedule attached to the Subordinate Rules in the ratio of 4 : 1. Therefore, upto August 31, 1988, it can be said that after every 4 appointments by promotion of Teacher Grade-II as Headmaster, Secondary School on lecturer was appointed as Headmaster, Secondary School. In other words, 80% of the vacancies of Headmasters, Secondary Schools should have been filled in by promotion from amongst Teaches Grade-II and 20% by promotion from amongst Teachers Grade-I (redesignated as Lecturers). If the aforesaid note to rule 7 of the Amendment Rules of 1990 was not there a situation might have arisen that such of the lecturers who might have been promoted as Headmaster Secondary School by August 31, 1988 and might have been junior among that cadre, though senior among lecturer likely to provide their rights of promotion to the next higher post of Headmaster, Higher Secondary School or equivalent post, because 50% of posts were to be filled in by promotion from Headmasters, Secondary School and 50% by promotion from Lecturers, School Education. Before the aforesaid amendment by rule 7 of the Amendment Rules of 1990 under Group E of Schedule I to the State Service Rules, the posts of Headmaster Higher Secondary Schools were to be filled in 100% by promotion from Group F post and a perusal of Group F posts of Schedule I to the State Service Rules will show that it contains the post of Headmaster, Secondary School for boys and other equivalent post. Therefore, it can be said that before amendment under Rule 7 of the Amendment Rules of 1990, Group E post of Schedule I to the State Service Rules were to be filled in 100% by promotion from Group F post which as said earlier, included the post of Headmaster, Secondary Schools and other equivalent posts, after the aforesaid amendment the posts of Group E are to be filled in 50% by promotion no doubt from Group F post but so far as Headmaster, Secondary Schools for boys and other equivalent posts are concerned 50% of them are only eligible for promotion. A situation therefore could not have been avoided that some of the lecturers though senior to other lecturers who could not be promoted as Headmasters, Secondary School, would not have been even considered for promotion for next higher post of Headmaster, Higher Secondary School or Vice Principal whereas, lectures junior to him in the cadre of lecturers would have been considered and might have been promoted against the ratio of promotion for lecturers and if the Note has provided the unless all the candidates regularly appointed on the post of Headmaster Secondary School and equivalent posts upto August 31, 1988 are regularly selected and appointed against the future vacancies of Headmasters, Higher Secondary Schools, the method of recruitment by promotion will not come into force, such a note cannot be said to be arbitrary. The said Note has been inserted to do justice to those persons who had been regularly appointed on the post of Headmasters, Secondary School upto August 31, 1988. We do not find any reason to hold that the said Note is arbitrary, rather if the said Note would not have been there, as said earlier, it might have deprived lecturers who might have been senior and who had been appointed as Headmasters, Secondary School by promotion, of consideration for promotion to the post of Headmaster, Higher Secondary School. In view of authoritative pronouncement by the Division Bench, the arguments raised by petitioner cannot be upheld because the same arguments were raised before the Division Bench and were considered and rejected. Even otherwise, sitting singly I am bound by judgment of Division Bench in Rajasthan Lecturers Association (supra). Subsequently, this judgment was followed by another Division Bench judgment in Rajasthan Shiksha Sewa Parishad Vs. State of Rajasthan & Ors : DB Civil Writ Petition No.5690/1991 decided on 2.4.1992. These writ petitions are dismissed accordingly with no order as to costs.;