SHARMA, J. - (1.) THE petitioners have a common grievance against the decision taken by the State of Rajasthan to promote persons junior to them affecting prejudicially their service career for all times to come. THE petitioners were selected by the Rajasthan Public Service Commission (for short the RPSC) for direct recruitment to the Rajasthan Administrative Service (Ordinary Scale. On the recommendation of the RPSC the Government issued order of appointment on November 23, 1982. THE petitioners were initially appointed as probationers for a period of two years. THEy became entitled to be confirmed in the ordinary scale of RAS after completion of two years of service successfully i. e. on November 23, 1984 but order of confirmation was delayed and it was made on Feb. 19, 1987. THE vacancies against which the petitioners had been appointed pertain to the year 1980 or earlier than that. Prior to the recruitment of the petitioners, the appointments to the RAS (Ordinary Scale) had been made in the year 1980 against the vacancies of 1978 or 1979 and the batch was known as `1979 direct recruits' whereas the petitioners batch was known as `1980 direct recruits'. A seniority list of the officers of the RAS was issued on December 22, 1986 showing the position as on December 8, 1986 in the selection scale, senior scale and ordinary scale. Names of the petitioners appeared at Nos. 51 to 75 in that list as direct recruits of 1980. Below them have been shown the direct recruits of 1981-82, 1983 and thereafter, promotees have been placed. After completion of five years of service all the petitioners had become eligible for promotion to the Senior Scale of RAS as all of them fulfilled all the conditions of eligibility.
(2.) BUT the chances of promotion of the petitioners had been stultified by the decision taken by the Government to treat the petitioners as juniors to the promotees of 1981-82 and 1982-83. According to the petitioners the action of the State of Rajasthan in seeking to deny seniority to the petitioners vis-a-vis the promotees to the 1981-82 and 1982-83 and also denying them promotion to the senior scale of RAS on this premises, is wholly arbitrary. The petitioners have therefore approached this court by filing the instant writ petition with the following prayers - (i) the provisions of Rule 9 (2) read with Rule 28-B (11-A) and Rule 33 (1) and proviso (ii) to Rule 33 of the Rajasthan Administrative Service Rules 1954 be declared unconstitutional and struck down. The respondent State be directed to maintain the quota between the direct recruits and the promotees in the matter of determination of their seniority and promotion to the Senior Scale of RAS be given with all consequential be benefits on the basis of such seniority. (ii) The petitioners by declared confirmed w. e. f. November 22, 1984 i. e. after the expiry of two years period of probation. The respondent State of Rajasthan filed reply to the writ petition and averred that the joint writ petition filed by certain persons having different cause of action from different dates and with different relief is not maintainable and Rule 375-A of the Rajasthan High Court Rules do not apply on such joint writ petition. The respondent State admitted the confirmation orders of direct recruits appointed by order dated November 23, 1982 were issued on 19. 2. 1987 with effect from the date they had completed the probation period. It has been averred that the year of vacancy is the relevant for the purpose of direct recruits but they cannot get service benefit from the year of vacancy and will get all service benefits from the date they have joined service on substantive basis. It has been further submitted that the seniority and confirmation of direct recruits is to be determined with effect from the date they have been confirmed after completion of their probation period satisfactorily and are not entitled to get their seniority from the date when the vacancy arose. It is absolute discretion of the State Government to create, abolish, or to keep a post in abeyance. If no selection is made then this will not give any grievance for the selectees of later years. The respondents submitted that the petitioners have withheld the information from this Hon'ble Court. The seniority list of Junior Scale of RAS Officers was issued on 22. 12. 1986 which has been revised and the revised seniority list was published and circulated on January 30, 1989, which has not been challenged by the petitioners. The petitioners though eligible for promotion to the Senior Scale of RAS from the date of their acquiring eligibility according to the rules but promotion on Senior Scale are subject to the rules of seniority, merit and availability of vacancy in the cadre of senior scale of RAS. The petitioners are having alternative efficacious remedy of appeal against the order of the Government and the writ petition is not maintainable. The petitioners have not put in correct constructions of rules before this Hon'ble Court regarding determination of vacancies. The vacancies have been determined in accordance with the quota prescribed for the relevant year under the rules. On the basis of quota prescribed for each mode of appointment, exact number of vacancies were determined and the promotion of junior scale RAS to senior scale RAS were made on the basis of total cadre strength of the service. The RPSC has not been arrayed as respondent in the instant case and no averment can be made and adjudicated upon against the Commission in the writ petition in the absence of RPSC. The seniority list dated 30. 1. 1989 has been published in pursuance of the court's order passed in D. B. Civil Writ Petition No. 3719/1988 B. L. Kandoi vs. State and Niranjan Prasad Sharma vs. State in (D. B. Civil Writ Petition No. 376/89) filed in the High Court at Jodhpur. Therefore the seniority list dated January 30, 1989 cannot be said to be illegal, arbitrary unreasonable and unjustified. The petitioners have also challenged the validity of Rule 9 (1) of rule 2 and also rule 6a of the Rules of 1972 as well as Rule 28 (B) and proviso to Rule 3 of the Rules of 1954 but they have not been able to show how these provisions are unconstitutional and violative of Articles 14 and 16 of the Constitution. No reason has been assigned as to why these provisions of the rules are ultravires and grounds of ultravires rules have been taken malafidely to create jurisdiction of the writ petition. Mr. R. D. Rastogi, learned counsel appearing for the petitioners contended that the posts of RAS were advertised in pursuance of the Rajasthan State and Subordinate Combined Competitive Service Rules, 1962 in the year 1980 and the vacancies also related to the year 1980 and written examination was held in the year 1981 and final recommendations for appointment were made by the RPSC to the Government in the year 1982 and vide letter dated November 23, 1982 (Annexure-1) the petitioners were appointed in the Junior Scale of RAS and were put on probation for a period of two years which expired on January 22, 1984. Rule 34-A provides for confirmation of the services which clearly prescribes that if after the expiry of the period of probation employee is not confirmed within a period of six months then he or she shall be entitled to be treated as confirmed subject to fulfillment of certain conditions. The learned counsel submitted that it is a case of deemed confirmation as per the provisions of the Rules. Therefore the confirmation order should have been on January 22, 1984 itself but for the sole inaction on the part of the respondent State, this confirmation was delayed and without any justification the petitioners were confirmed on February 19, 1987. The learned counsel submitted that after successful completion of probation period followed by confirmation, the services of the petitioners should be counted for all the purposes like seniority etc. from the date of initial joining. Reliance has been placed on H. N. Sehgal vs. Union of India (1) and Baleshwar Das vs. State of Uttar Pradesh The learned counsel for the petitioner canvassed that Rule 9 (2) of the Rules of 1954 is discriminatory as this rule makes provision for the protection of interest of only promotees but does not at all make such provision for direct recruits whereas rule 9 (1) (a) & (c) of the Rules of 1954 are quite clear that where a post is to be filled in by more than one method as prescribed in the rules then the apportionment of vacancies should be done maintaining the prescribed proportion. It is submitted that Junior Scale posts of RAS are to be filled in 75% by direct recruitment and 25% by way of promotion. Rule 7 of the Rules of 1954 makes it incumbent upon the employer to maintain the quota between the direct recruits and promotees but rule 9 (2) of the Rules of 1954 takes care of the interest of promotees only. The learned counsel also canvassed that Rule 28 (B) (11-A) of the Rules of 1954 is discriminatory and arbitrary, since it also does not take care of the interest of direct recruits. Mr. Rastogi canvassed that the State Government wants to save the rule on the premise the Rule 5 of the Rajasthan Service (Recruitment by Promotion against vacancies of earlier years) Rules 1972 (in short Rules of 1972) gives power to accord seniority to the promotees for the year for which they were entitled to be promoted but could not be promoted for not holding of DPC. The benefit of Rules of 1972 could have been given to the promotees only if in a particular year direct recruitment was made but promotions could not be made. The learned counsel submitted that when no direct recruitment was made in the Junior Scale of RAS in the year 1980-81 then there was no occasion to give benefit to the promotees of the rules of 1972. Thus the State Government illegally oversubscribed the promotion quota. Reliance has been placed on Narendra Kumar Sen vs. State of Rajasthan (3) which has been affirmed by the Division Bench in 1993 WLC page 765 Mr. Rastogi canvassed that the counting of seniority from the date of confirmation is arbitrary as the respondents delayed the confirmation placing reliance on S. B. Patvardhan vs. State of Maharashtra (5), M. S. L. Patil vs. State of Maharashtra (6) and Mohan Lal vs. State of Himachal Pradesh (7)
(3.) MR. Rastogi submitted graphic presentation of the vacancies in order to show the excess promotion given to the promotees in preference to direct recruits. Promotees of the years 1980-81, 1981-82, 1982-83 and 1983-84 have been accorded higher seniority than the petitioners simply on the premise that the petitioners were confirmed on Feb. 19, 1987. Reliance in this connection has been placed on S. K. Agrawal and others vs. State of Rajasthan (8) and Keshav Chandra Joshi vs. Union of India (9) and M. S. Patil vs. State of Maharashtra (supra ). Mr. R. N. Mathur, learned Addl. Advocate General appearing for the State canvassed that Rule 9 (2) read with Rule 28-B (11-A) and Rule 33 (1) and proviso (ii) to Rule 33 of the Rules of 1954 are not ultravires of the Constitution of India because they do not violate any fundamental rights guaranteed by the Constitution of India. The learned Additional Advocate General submitted that the total cadre strength in the years 1981-82 and 1982-83 in Ordinary Scale of RAS was 234 and the quota for direct recruitment and promotion and special selection/e. C. was correctly maintained. Mr. Mathur submitted that promotion if in excess quota does not prejudice direct recruits as has been held in by the Hon'ble Apex Court in 1998 (6) SCC 630 In support of his contention that confirmation can be the basis for reckoning seniority Mr. Mathur placed reliance on M. P Chandolia vs. State of Madhya Pradesh (11) and Mohan Lal vs. State of Himachal Pradesh (supra) and the case of H. M. Doshi vs. R. F. C. (S. B. Civil Writ Petition No. 1827/1982, decided on 23. 11. 1995 ). I have pondered over the rival submissions and carefully weighed the material on record as well as the case law cited before me. ;