N. C. KOCHHAR, J. - (1.) ON being selected by the Rajasthan Public Service Commission, the petitioner joined the services of the State of Rajasthan (the State) as Civil Assistant Surgeon (C. A. S.) on 11. 5. 57. He was confirmed on that post w. e. f. 11. 5. 58. While in service, the petitioner obtained his post graduate degree in Orthopaedics in May 1966 and on 13. 2. 67 he was appointed as C. A. S. cum Tutor in the Medical College, Jodhpur in pursuance of the order dated 30. 1. 67 (Annx. 7 ).
(2.) IN the year 1975, two posts of Junior Specialists in Orthopaedics were required to be filled in on officiating basis. A list of eligible candidates was prepared by the Director of Health Service under sub rule (2) of rule 24 of the Rajasthan Medical and Health Service Rules, 1963 (the rules), but the name of the appellant who was senior to doctors J. S. Dhaka and S. B. Jain (respondents no. 2 and 3 respectively) was not included in the list. The list was submitted to the Departmental Promotion Committee (D. P. C.) on whose recommendations, respondents no. 2 and 3 were appointed again those posts on officiating basis in terms of order dated 9. 7. 1975 (Anx. 1) IN the year 1976 doctors V. K. Chaturvedi and K. K. R. Sharma (respondents no. 4 and 5 respectively) were directly recruited to the two available posts of Junior Specialists (Orthopaedics), vide order dated 30 4. 79 (Anx. 2) the petitioner was promoted as Junior Specialists (Orthopaedics) and was posted as such against a clear vacancy in Ganganagar Hospital, Ganganagar. The State created a post of Senior Specialist (Orthopaedics) vide order dated 31. 5. 79. The petitioner learnt that the State was contemplating to promote the respondent no. 2 to the said post without considering his case and consequently the petitioner approached this Court by filing a Writ Petition on 3. 9. 79 challenging the appointments of respondents no 2 and 3 on officiating basis as Junior Specialists in the year 1975 and also challenging the recruitment of respondents no. 3 and 4 against the said posts in the year 1976. , and claiming to be entitled to be promoted as Junior Specialist in the vacancies of 1975 and 1976 and further to be entitled to be considered for the post of Senior Specialist created by the State. He prayed for all the consequential benefits of seniority, emoluments, promotion etc and prayed that the State be restrained from promoting any of the respondents to the post of Senior Specialist in supersession of the petitioner. The State as well as the respondent no. 2 contested the petition and filed their replies. . The petition was opposed on the ground that the petitioner did not challenge the appointments made in 1975 on officiating basis for long time and could not be allowed to challenge the same. The petition was also opposed on the ground that the petitioner was working in the collegiate branch and was not eligible for appointment to the post of Junior Specialist and that his promotion to the post of Junior Specialist had been made by mistake and but for the pendency of the writ petition, he would have been reverted to the collegiate branch. It was also plead that the petitioner was not eligible for being consi-dered to the post of Senior Specialist as he had not actually worked as a Junior Specialist for a minimum period of 4 years. The State, however, admitted that the respondent no. 2 was being considered for the promotion of the said post. It was also pleaded by the State that the petitioner was appointed as Junior Specialist in the clear vacancy of 1976 and the respondent no. 2 was posted in the clear vacancy of Junior Specialists of the year 1978-79. Initially on the application of the petitioner an order restraining the State from promoting any of the respondents to the post of Specialist was passed on 18 9. 79 and was confirmed on 5. 11. 80. The said order was, however, modified on 1. 3. 82 permitting the State to make appointments to the posts of Senior Specialists (Orthopedics) with a condition that one post of Senior Specialist should be available for the petitioner in the event of his successs in the writ petition. On 17. 6. 1982 the State issued the seniority list of Junior Specialists showing the petitioner to be senior to the respondents no. 2 and 5. Thereafter, the respondent no. 2 to 5 were promoted as Senior Specialists in terms of order dated 14. 12. 82 (Annx. 5), respondent no. 4 against a" clear vacancy of 1981-82 and the other three respondents against the clear vacancies of 1982-83. The petitioner there upon amended the writ petition challenging the appointments of respondents no. 2 to 5 in terms of Annx. 5 and also prayed for other reliefs already claimed in the writ petition. Vide order dated 30. 8. 84 (Annx. 6) the petitioner was promoted to the post of Senior Specialist in a clear vacancy of 1983-84. Although the respondents no. 2 and 3 had been appointed as Junior Specialists on officiating basis in the year 1975, the petitioner did not file any representation or challenge their appointments as such before filing of the present writ petition in 1979. Admittedly, he too has been promoted as Junior Specialist and has been shown senior 10 the said respondents. The said respondents continued to work as Junior Specialists from the date that they were so appointed and were accommodated in regular vacancies and taking into consideration all these circumstances we are of the view that the petitioner cannot be allowed to seek the relief of striking down of the order appointing respon-dents no. 2 and 3 as Junior Specialists on officiating basis because of latches on his part. In view of the fact that the petitioner has been shown as senior to the respondents. no. 2 to 5 in the seniority list dated 17. 6. 82 and he and the respon-dents no. 2 to 5 have already been promoted as Senior Specialists, the surviving dispute between the petitioner and the respondents now relates only to the fixation of the petitioner's sentority vis-a-vis respondents no. 2 to 5 in the cadre of Senior Specialist (Orthopaedics) and the grant of consequential reliefs, if any, to the petitioner.
(3.) INITIALLY the learned Govt. Advocate contended that the petitioner had been absorbed in the collegiate branch and as such was not entitled to be promoted to the posts concerned, which are meant for the officers who are in the cadre of hospital branch. This argument was most un-impressive in view of the fact that during the pendency of the petition, the petitioner too had been promoted as senior Specialist in the hospital line. However, at the request of the learned Govt. Advocate, he was granted time to produce any document to show that the petitioner had been absorbed in the collegiate branch and had lost his lien in the cadre of officers working in the hospital side. The learned Govt. Advocate failed to produce any such document and thereafter did not press this arguments any further. The only Contention raised on behalf of the State as well as the respondent no. 2 was that although the petitioner was promoted as Junior Specialist in the clear vacancy of 1976, he was in fact appointed to that post only in the year 1979 and having not worked on that post for a period of 4 years, was not eligible for being considered for the post of Senior Specialist. Admittedly the petitioner and respondents no. 2 to 5 are governed by the above mentioned rules. The schedule attached to the rules, (previous schedule), before its amendment vide notification dated 4. 1. 75, in regard to the filling of posts of Senior Specialists and Junior Specialists, shows that 50% of the posts of Junior Specialists were to be filled by direct recruitment including by transfer and 50% to be filled by promotion after the year 1966 and a promote officer was required to have three years service after post graduation in the speciality or 8 years service as C. A. S. with post graduate qualifications and a direct recruit was required to have minimum 5 years experience in the speciality after post graduate qualifications. The said schedule further shows that 75% of the posts of Senior Specialists were to be filled by promotion and remaining 25% by direct recruitment. A promote from amongst Junior Specialists was required to have 4 years experience in the Speciality and a direct recruit was required to have 7 years experience after post graduate qualifications in the speciality. The schedule as amended vide notification dated 4. 1. 75 (present schedule) shows that quota for direct recruitment and promote for the posts of Junior Specialists has been left un altered and an officer with three years service after obtaining the post graduate degree in the speciality or 8 years service as C. A. S with necessary post graduate degree is eligible for being promoted to the post of Junior Specialist, whereas the eligibility for the direct recruit is 5 years experience in the speciality after post graduate degree. The schedule, however, amended the rule regarding the posts of Senior Specialists and it has been provided that all the posts would be filled by promotion only and from amongst the Junior specialists. An officer with 4 years service as Junior Specialist, provided he possesses post-graduate degree in the speciality concerned, is eligible for promotion to the said post. Rule 24 prescribes the procedure for selection to the various posts and rule 24 A which was amended vide notification date 7-3-88 prescribes the revised criteria, eligibility and procedure for promotion to Junior, Senior and other posts encadered in the service. Sub rule (11 A) was added after sub rule (11) in rule 24 A of the rules vide notification dated 6. 10. 79 and read as under :- " (11 A) If in any subsequent year, after promulgation of these rules, vacancies relating to any earlier year are determined under sub rule (3) of rule mentioned in Column 3 of the Schedule which are required to be filed by promotion, the Departmental promotion committee shall consider the case of all such persons who would have been eligible in the year to which the vacancies relate irrespective of the year in which the meeting of the Departmental promotion Committee is held and such promotions shall be governed by the rule in force at the time, the meeting of the Departmental promotion committee is held. The person who has been so promoted shall not be entitled to claim any arrears of pay or re-fixation of his pay or to count his service/ experience for promotion to higher post for any period during which he has not actually performed the duties of the post to which he has been promoted. "' Sub rule (11 A) of rule 24a was, however, amended vide notification dated 18. 8. 1982 and it reads as under: - (11-A ). If in any subsequent year after promulgation of these rules vacancies relating to any earlier year are determined under sub-rule (2) of rule relating to determination of vacancies which were required to be filed by promotion, the Departmental Promotion Committee shall consider the cases of all such persons who would have been eligible in the year to which the vacancies relate irrespective of the year in which the meeting of the Departmental Promotion Committee is held and such promotions shall be governed by the criteria and procedure for promotion as was applicable in the particular year to which the vacancies relate, and the service exercise of an incumbent who has been so promoted, for promotion to higher post for any period during which he has not actually performed the duties of the post to which he would have been promoted, shall be counted. The pay of a person which he would have derived at the time of his promotion but no arrears of pay shall be allowed to him. " A perusal of previous schedule shows that when recruitment to the post of Senior Specialists was open to direct recruit also the necessary eligibility was 7 years experience after post graduate qualifications in the speciality. The petitioner admittedly obtained the post graduate degree in May, 1966 and started working as C. A. S. cum Tutor (Orthopaedics) in Medical College, Jodh-pur w. e. f. 13. 2. 1967. It is not disputed that while working as C. A. S. cum Tutor, the petitioner was gaining experience in the speciality of Orthopaedics and before the schedule was amended vide notification dated 4. 1. 75, he had completed more than 7 years service in the speciality after obtaining the post graduate degree in Orthopaedics. A vacancy of Junior Specialist was available in the year 3 976 and it was only because the D. P. C. did not meet earlier that the petitioner, who was given the said vacancy was in fact promoted in the year 1979. The learned counsel for the respondent had taken shelter under the un-amended sub rule 11a of rule 24a of the Rules which prescribed that the period for which an officer had not worked on a particular post could not be taken into consideration while considering his eligibility for promotion to the higher post. As noted above this rule was inserted for the first time on 6. 10. 1979 and was not in operation when the post of Senior Specialist was created by the State vide order dated 31. 5. 79. As further noted above, this rule was amended vide notification dated 18. 8 82 and after the amendment the bar created in the unamended sub rule was lifted. The only question to be answered is as to whether the petitioner who had completed the qualifying service before the schedule was amended and who had not been promoted to the post of Junior Specialist before 1979, for no fault of his, could be denied his right of promotion to the post of Senior Specialist when on the date of creation of the post in 1979 the bar created by un-amended rule 11a was not there and also when the bar had been removed in 1982 before the respondents no. 2 to 5 were in fact promoted as Senior Specialists. Our answer to this question is in the negative. ;