TYAGI, J. - (1.) THE petitioners in these two writ petitions are the members of the Rajasthan Police Service and by filing these petitions they have challenged the correctness of the seniority list of the Rajasthan Police Service Officers issued on 19th June, 1966, under Rule 33 of the Rajasthan Police Service Rules. 1954, (hereinafter to be referred as the Rules ). Accept Shri Rameshwar Khuteta and Shri Om Prakash respondents Nos. 25 and 26 in the writ application filed by Mr. Kaushib, all the respondents are common in both these petitions. Since common questions of law and facts arise in both these petitions I propose to dispose them of by one judgment.
(2.) THE case of the petitioners is that they were recruited to the Rajasthan Police Service through competitive examination in the year 1954 and that their appointment was made by the State Government by issuing the appointment letter Ex. P. 2 dated 13th September, 1955. In Writ Petition No. 533 of 1966, respondents Nos. 6 to 24 except respondent No. 19 Shri Ram Singh were recruited to the Rajasthan Police Service in the promotion quota under Rule 7 (b) and (c) of the Rules in the year 1955, but their appointment was actually made in the year 1956. Out of these respondents respondents No. 6 to 9, 11, 13 and 15 were recruited under rule 7 (c) by special selection. THEir appointment was made on 29th May, 1956, by Ex. P. 7. THE other respondents were also appointed by the same order, but their appointment was made under rule 7 (b ). Respondent No. 19 Shri Ram Singh, who was already officiating as Deputy Superintendent of Police, was however appointed as a member of the Rajasthan Police Service on 28-5-58 in the promotion quota, but on his representation that he should have been appointed along with the other promotees of 1956 the Government after scrutinizing his case Ordered on 24th January, 1964 vide Ex. P. 16 that he should be deemed to have promoted to the service with effect from 29th of May, 1956, when other respondents were promoted. The case of respondent No. 27 Shri Narain Singh, however, stands on a different footing. He was appointed as member of the Rajasthan Police Service by the order of the Government dated 20th/21st October, 1961, and he was alloted 1957 as the year of his appointment. He was, however, kept junior to the petitioners in the seniority List Ex. P/27. The petitioners' grievance is that the petitioners were recruited in the direct recruitment quota and were appointed in the service on 13th of September, 1955, whereas the respondents including respondent No. 19 Shri Ram Singh, were appointed in the Service in the year 1956 and, therefore, on the basis of the date of appointment the petitioners are senior to the respondents, but the Government has erroneously placed them above the petitioners in the final seniority list issued in the year 1965 and hence these petitions have been filed in the Court. As regards respondents Nos. 6 to 9, 11, 13 and 15, who have been appointed as members of the Rajasthan Police Service under Rule 7 (c) (special selection) it is alleged that their appointments made on 29th of May, 1956, are in clear violation of the proviso to rule 7 (c) which lays down that clause (c) of rule 7 shall not be operative after 31st December, 1955, and, therefore, they cannot in any circumstances be placed senior to the petitioners in the seniority list. It may be mentioned here that validity of the appointments of these respondents Nos. 6 to 9, 1 1, 13 and 15 have not been challenged in these writ petitions nor have the petitioners claimed any relief in these writ petitions against these respondents on the basis of the alleged invalidity of their appointments. The second ground on which the seniority list has been challenged by throwing a challenge to the validity of proviso (vi) of R. 33 of the Rules under which the seniority list has been drawn up. Proviso (vi) as it originally stood laid down that if two or more persons are appointed to the Service on the same date, the persons appointed by direct recruitment shall be junior to the persons appointed by the special selection or by promotion. This proviso was subsequently amended on 18th of November, 1957, and the amended proviso reads as follows: " (vi) Among persons appointed to the Service within the same period of 12 months by direct recruitment, or promotion or special selection all persons appointed by promotion and special selection shall rank senior to persons appointed by direct recruitment. " This was further amended on September 26, 1958, whereby the words "after the commencement of these Rules" were inserted in the first line immediately after the words "among persons appointed". The contention of the petitioners is that according to the proviso (vi) as it stood when the petitioners were appointed only those persons who were appointed to the Service by promotion or by special selection could take precedence in the seniority over the direct recruits if their appointments were made on the same date. The petitioners' argument is that since the petitioners were appointed on 13th September, 1955, and the respondents Nos. 6 to 24 were appointed in the promotion quota in 1956 and the respondents Nos. 25 and 26 who were direct recruits, were appointed on 15th of December, 1955, and respondent No. 27 was appointed (by promotion) on 20/21st October, 1961, they cannot claim seniority over the petitioners. It is further submitted that subsequent amendment made in proviso (vi) to Rule 33 of the Rules are violative of Art. 16 of the Constitution and, therefore, under the amended proviso respondent recruited through promotion cannot claim seniority over the petitioners. As for respondents Nos. 25 and 26 i is submitted that proviso (vi) is not attracted to their case as they are direct recruits and, therefore, they can not be ranked higher as they were appointed to the Service after the petitioners' appointment was notified by the Government. Regarding the case of respondent No. 27 Shri Narayan Singh, petitioners' claim is that Shri Narayan Singh, who was declared junior to the petitioners in the list itself was given selection grade of the Rajasthan Police Service in preference to the petitioners vide Ex. P/18 dated 14th October, 1965, which has obviously marred their chances of future promotion. This act of the Government has been challenged as arbitrary and illegal. It may be noticed here that the order of the State Government dated 14th October, 1965, appointing Shri Narayan Singh as Commandant of Home Guards in the selection grade of the Rajasthan Police Service Scale No. 28 has nothing to do with the matter of seniority which has been challenged by the petitioners against other respondents. The question of giving senior scale to Shri Narayan Singh can not be joined with the question of the determination of seniority of the members of the Rajasthan Police Service and, therefore, it is a clear case of misjoinder of causes of action. It is not the case of the petitioners that Shri Narain Singh was given selection grade because he was placed senior to the petitioners. In these circumstances the petitioners cannot be allowed to challenge the order of the Government dated 14th October, 1965, giving selection grade to Shri Narain Singh along with the question of challenging the seniority list in these writ petitions. The claim of the petitioners against Shri Narain Singh is therefore, rejected. The State Government and the respondents Nos. 6 to 9, 11, 13, 15, 19 and 27 have filed their replies to the writ petitions. A separate reply has also been filed by respondents Nos. 10, 11, 12, 18, 20, 21, and 22. All of them have opposed the claim of the petitioners regarding the fixation of seniority, I need not discuss the plea taken by respondent No. 27 Shri Narain Singh, as I am of opinion that he cannot be joined as a respondent to challenge the order of his appointment in the senior scale along with the other respondents whose seniority has been challenged by the petitioners. The petitioners have claimed their seniority over respondent No. 6 to 9, 11, 13 and 15 on the ground that their appointments to the Service are violative of the Proviso to rule 7 (c) as it then stood in the Rules. The contention of the petitioners is that the Government under the Rules could appoint as the members of the Rajasthan Police Service through special selection only up to 31st of December, 1955, but since the appointments of the respondents Nos. 9,11,13 and 16 were notified by the Government on 29th May, 1956, such appointments were beyond the competence of the Government and, therefore, they could not be placed higher in the seniority list than the petitioners as their appointments themselves were illegal. It may be observed that the petitioners have not challenged the legality of the appointment of these respondents in these writ petitions. They have simply thrown a challenge to the place assigned to them in the seniority list on the ground that their appointments were illegal. Unless the validity of the appointments of these respondents is challenged the petitioners have no right to challenge the seniority on the ground of the invalidity of their appointments. This argument, in my opinion, is untenable.
(3.) RULE 7 which falls in part III, of the RULEs deals with the sources of recruitment to the Service and lays down that the recruitment to the service after and commencement of the rules shall be made - (a) by a competitive examination; (b) by promotion of Inspectors; and (c) by special selection from among the temporary officers of the Rajasthan Armed Constabulary, so appointed before 14th July, 1954, to posts encadred in the Service at the commencement of these rules, or from among officers of the Mewar Bhil Corps, serving in the corresponding ranks on 14th July, 1954. There is proviso appended to clause (c) of rule 7, which curtails the power of the Government to recruit to the service through special recruitment under clause (c) of rule 7 after 31st December, 1955. It is not disputed by the petitioners that the process of selection by promotion under rule 7 (b) and special selection under rule 7 (c) had started in the year 1955 and persons were selected for appointment under clauses (b) and (c) of RULE 7 in the year 1955, but for one reason or the other their appointments could not be notified till 29th of May, 1956. Mr. Mridul appearing on behalf of the respondents has urged that in the scheme of the rules the recruitment and the appointment are two different things. The procedure for recruitment has been laid down by the rule making authority in part III whereas the provisions for making appointment are incorporated in part VII of the RULEs. According to Mr. Mridul recruitment is an initial process which may ultimately lead to appointment in the Service by issuing an order of appointment by the appointing authority and, therefore, it cannot be said that these two processes namely recruitment and appointment are identical. He further submits that if the appointment letter for the respondents was issued by the Government on 29th of May, 1956, it cannot be said that they were not properly recruited by the recruiting authority before 31st of December, 1955. In support of this contention he placed reliance on the authority of the Punjab and Haryana High Court in Gurdev Singh Gill v. The State of Punjab (1 ). If we closely examine the scheme of the rules then we find that part III has been enacted in the Rules by the rule making authority for the purpose of laying down general procedure for recruitment Part IV with the procedure for direct recruitment while Part V, deals for recruitment by promotion. Then comes Part VI, which in the year 1954 dealt with the procedure for recruitment by special selection under rule 7 (c ). The procedure for appointments is provided in Part VII, which contains rules 30 to 36. Rule 33, which relates to seniority falls in this part which deals with the appointment. Proviso to rule 7 (c lays down that clause (c) of this rule shall not be operative after 31st December, 1955. This proviso does not carry any prohibition that those persons who have been selected through this process and recruited under rule 7 (c) shall not be appointed, if their appointment has not been notified before 31st of December, 1955 after that date. Learned judges of the Punjab and Hariyana High Court in Gurdev Singh vs. The State of Punjab (1) (supra), while discussing with the scope of recruitment have observed: "recruitment is just an initial process which may lead to an eventual appointment in the Service but the two concepts of recruitment and appointment are separate and apart and the clear line of distinction between them has been manifest by the various rules; one of which is rule 9 of the Cadre Rules which provides for temporary appointment of non-cadre to cadre posts. . . . . . . " On a careful perusal of the rules it becomes clear that the rule making authority has clearly laid down distinction between the process of recruitment and the appointment. These rules suggest that the process of recruitments, through various sources, which has been dealt with in Part III, IV, V and VI of the rules has been kept with separately by the rule making authority from the appointments to be made under part VII. It is true that the recruitment eventually leads to appointments, but from the scheme of the Rules it is obvious that it is not incumbent on the Government to appoint each and every person who has successfully crossed the process of recruitment in part IV, V and VI. The concept of recruitment is, therefore, quite different from the concept of appointment. In these circumstances if these respondents were appointed in the service after 31st December, 1955, their appointments cannot be said to be violative of clause (c) of Rule 7 of the Rules then it is admitted that the process of recruitment had been completed before 31-12-55. In this view of the matter the challenge to seniority of these respondents on the plea of their appointments being contrary to the proviso to R. 7 (c) has no force. It was next urged that according to the original rules relating to seniority as they stood when the petitioners were appointed in the Rajasthan Police Service on 13th of September, 1955, the petitioners could not be placed junior to the respondents, who were undisputedly appointed on 29-5 56 i. e. after eight months of the petitioners' appointment. According to learned counsel for the petitioners the seniority of his clients could not be determined by applying the un-amended rule 33. Proviso (vi) of rule 33 as it then stood when the petitioners were appointed to the Service, reads as follows: " (vi) that if two or more persons are appointed to the service on the same date, the persons appointed by direct recruitment shall be junior to the persons appointed by special selection by promotion. " The contention of the petitioners is that since the appointment of the respondents was not made on the same date, therefore, under the unamended proviso, which according to Mr. Bhargava governs the determination of the petitioners' senitority, the respondents cannot be ranked senior. Proviso (vi) was amended twice. The first amendment was made on 12th November, 1957. By this amendment the proviso (vi) was substituted by the following proviso: " (vi) Among persons appointed to the service within the same period of 12 months by direct recruitment, or promotion of special selection, all persons appointed by promotion and special selection shall rank senior to persons appointed by direct recruitment. " The effect of this amendment was that the persons appointed to the Service by promotion or special recruitment shall rank senior to the direct recruits provided the appointments of these persons were made within a period of 12 months. A further change was brought about in this proviso by amending it on 26th September, 1958. By this amendment the words "after the commencement of these Rules" were inserted in the first line of the said proviso after the words "among persons appointed". This second amendment made the proviso (vi) to rule 33 operative with retrospective effect to govern the cases of all these persons who were appointed to the Service after the Rules of 1954 came into effect. The effect of this amendment, therefore, was that the seniority of the persons appointed to the Service after 1954 shall be determined by proviso (vi) to R. 33 as it finally emerged after the second amendment of 26th September, 1956. In this view of the state of law petitioners' case will be governed not by the original proviso (vi) to rule 33 as it stood in 1955, but the amended proviso will be attracted to determine their seniority. Learned counsel for the petitioners then argued that amendments subsequently introduced in proviso (vi) to rule 33 are violative of Art. 16 of the Constitution as they have the effect of taking away the guarantee of equal opportunity, enshrined therein as it would definitely put obsticles in the way of the petitioners to get further promotion in the service. If this contention is examined minutely then it comes to this that the rule making authority was not competent to amend a rule retrospectively which may take away rights of further promotion already vested in the petitioners because of their rank in the seniority list which they were entitled to get because of the unamended provision of rule regarding determination of seniority. ;