[1] SBCWP Nos. 4866/08, 3355/2004 & 1742/2008 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR COMMON ORDER (1) S.B. CIVIL WRIT PETITION NO. 4866/2008 AJAY SINGH Vs. STATE OF RAJASTHAN & ORS. (2) S.B. CIVIL WRIT PETITION NO. 3355/2004 HANUMAN SINGH BHATI & ORS. Vs. STATE OF RAJ.& ORS. & (3) S.B. CIVIL WRIT PETITION NO. 1742/2008 AJAY SINGH Vs. STATE OF RAJASTHAN & ANR. DATE OF ORDER: 04/03/2009. HON'BLE MR. JUSTICE K.S. RATHORE Mr. G.K. Garg with Ms. Anita Agarwal, Advocates for the petitioners. Mr. S.N. Kumawat, Addl. Advocate General for State. Mr. Ashok Gaur, Mr. A.K. Bhandari, Sr. Advocate and Mr. Virendra Lodha, Advocates for the respondents. Mr. Sanjay Pareek, Advocate for the respondent UPSC. **** REPORTABLE Since all these writ petitions are similar in nature, therefore, the same are being decided by this common order. 2. In S.B. Civil Writ Petition No. 3355/2004- Hanuman Singh Bhati & Ors. Vs. State of Rajasthan & Ors., the petitioners have prayed for following reliefs:- “(i) by an appropriate writ, order or direction, the impugned seniority list dated 4.5.2004 (Annexure-12 & 13) as on 1.4.1993 and 1.4.1994 may kindly be quashed and set aside. [2] SBCWP Nos. 4866/08, 3355/2004 & 1742/2008 (ii) by further appropriate writ, order or direction, the respondents be directed to hold the review board only after the seniority list of RAS officers is finalised as per the directions of this Hon'ble Court given vide orders dated 30.5.2001 and 12.9.2001 and only after it has been made public. (iii) by further appropriate writ, order or direction, the respondents be directed to convene the regular board for promotion from RAS to IAS from years 1995-96 and onwards simultaneously holding the review board for the years 1993-94 and 1994- 95. (iv) Or any other prejudicial order, if passed during the pendency of the writ petition, against the rights and interest of the petitioners, the same may kindly be taken on record and be also quashed and set aside. (v) Or any other appropriate relief may kindly be granted to the petitioners which this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case. (vi) The cost of the litigation may kindly be awarded to the petitioners.” 3. In another writ petition i.e. S.B. Civil Writ Petition No. 1742/2008- Ajay Singh Vs. State of Rajasthan & Ors., the petitioner has prayed for following reliefs:- “(i) by an appropriate writ, order or direction, the respondents be directed to include the name of the merit promotees (1991-92) including the petitioner in the list to be sent to UPSC for convening IAS Board (1996-97 to 2007-08) over and above the reserved categories candidates as had been shown in the seniority list issued by the [3] SBCWP Nos. 4866/08, 3355/2004 & 1742/2008 respondents on 26.6.2000 as per the decision of the Hon'ble Division Bench dated 12.9.2001 following the decision of the Hon'ble Apex Court in SLP No. 1078-1081/2005 (case of Shivnath Prasad). In the alternative if the names are not sent as mentioned above, then the respondents be directed not to convene the IAS Board till the seniority lists are prepared finally in the light of the decision dated 12.9.2001 passed by the Hon'ble Division Bench following the decision of the Hon'ble Apex Court in Shivnath Prasad' case. (ii) Or any other appropriate order or direction, which this Hon'ble Court deem fit and proper in the facts and circumstances of the present case, may kindly be passed in favour of the petitioner. (iii) The cost of the litigation may kindly be allowed to the petitioner.” 4. In yet another writ petition i.e. S.B. Civil Writ Petition No. 4866/2008- Ajay Singh Vs. State of Rajasthan & Ors., the petitioner is seeking following reliefs:- “(i) By an appropriate writ, order or direction the impugned order dated 12.5.2008 (Annexure-2) issued by the Deputy Secretary to Government, Department of Personnel (A-4) Government of Rajasthan, Secretariat, Jaipur may kindly be quashed and set aside. (iA) by further appropriate writ, order or direction, the impugned final seniority list dated 24.6.2008 (Annexure-3), issued by the Department of Personnel, Government of Rajasthan, Jaipur may kindly be quashed and set aside. [4] SBCWP Nos. 4866/08, 3355/2004 & 1742/2008 (ii) By an appropriate writ, order or direction, the respondents be directed to include the name of the petitioner in the list to be sent to UPSC for convening IAS Board (1996-97 to 2007-08) over and above the reserve categories candidates as had been shown in the seniority list issued by the respondents on 23.2.1996 and as per the decision of the Hon'ble Division Bench dated 12.9.2001. (iii) Or any other appropriate order or direction, which this Hon'ble Court deem fit and proper in the facts and circumstances of the present case, may kindly be passed in favour of the petitioner. (iv) The cost of the litigation may kindly be allowed to the petitioner.” 5. The facts of S.B. Civil Writ Petition No. 4866/2008 are taken as leading case. 6. The petitioner was appointed as RAS officer in junior scale of RAS on 15.10.79. He was promoted in the senior scale of RAS in the month of February, 1987 and was promoted in selection scale of RAS in the year 1992 subject to review/revision on the basis of 5 out of 7 APARs as against the vacancies of 1992-93. The criteria of merit promotion on the basis of 5 out of 7 APARs was for the first time amended and notified vide notification dated 30.11.1991. Earlier to this notification, for merit promotion there was a requirement of having 7 out of 7 consistently outstanding/ very good APARs vide notification dated 11.04.1979. [5] SBCWP Nos. 4866/08, 3355/2004 & 1742/2008 7. As per the petitioner, in the case of Shambhu Singh Meena And Others Vs. State of Rajasthan And Others, decided on 19.04.1995 and reported in 1995 Supp (2) SCC 431, Hon'ble the Supreme Court has held that the notification dated 30.11.1991 is to be applied prospectively. In this view of the matter, a review DPC was held on 23.02.1996 and the petitioner was found to have been entitled for merit promotion in selection scale of RAS as against the vacancies of 1991-92 having been found consistently 7 out of 7 outstanding/very good APARs. The name of the petitioner is appearing at No.5 in the order dated 23.02.1996 as against the merit promotion/selection scale and 12 vacancies were filled for the merit promotees in the year 1991-92 and in the above 12 persons, the petitioner's name is at No.5. 8. Further the petitioner was again shown to have been promoted in the selection scale of RAS against the merit quota of 1991-92 vacancies in the provisional seniority list issued on 01.04.1998. The aforesaid seniority list was changed by the State Government by issuing another provisional seniority list dated 26.06.2000 showing it to be drawn on the basis of the case of Ajit Singh And Others (II) Vs. State of Punjab And Others, decided by the Hon'ble Supreme Court and reported in (1999) 7 SCC 209. In the aforesaid seniority list the petitioner's [6] SBCWP Nos. 4866/08, 3355/2004 & 1742/2008 seniority position was changed by placing the superseded officers of the general category who were promoted later in the year 1992-93 and 1993-94 above the petitioner. The officers to whom the petitioner superseded while he had been given merit promotion in the year 1992-92 in merit are Sarva Shri Keval Kumar Gupta, Satish Chander Mehra, Manmath Kumar, Radhey Shyam Gupta, Krishan Gopal Agarwal, Chothmal Khatri, Hement Sess, Smt. Parmila Surana, Dungardan Charan, Ahasan Ahmed Chhipa, Suneel Dhariwal, Hastimal Chandalia, R.C. Dharmani and Mohammed Farooq-I. 9. It is further submitted that the petitioner had filed a writ petition which was registered as S.B. Civil Writ Petition No. 2968/2000 challenging the placing of superseded officers over and above him and the same was allowed by this Court vide order dated 30.05.2001. Against the said judgment, the State Government filed special appeal but the same came to be dismissed by this Court vide its judgment dated 12.09.2001. It is also submitted that reserve category officers have also filed various writ petitions challenging their placement below their senior batch-mates on the ground of consequential seniority and the aforesaid writ petitions were also dismissed vide aforesaid common judgment dated 30.05.2001. Special Appeals preferred by the reserve category officers were also dismissed by the Division Bench vide common judgment dated [7] SBCWP Nos. 4866/08, 3355/2004 & 1742/2008 12.09.2001. So far as reserve category officers are concerned, it attained finality as the reserve category officers did not file any special leave petition before the Hon'ble Supreme Court. 10. Further as per the judgment dated 30.05.2001 passed by this Court and upheld by the Division Bench of this Court vide judgment dated 12.09.2001, the State Government was directed to prepare a provisional seniority list keeping the superseded officers below the petitioner and keeping the reserve categories below their senior batch- mates. It was also directed that on the said list objections will be obtained and the same will be decided by the three member committee headed by the Chief Secretary. The aforesaid judgments have not been complied with notwithstanding the fact that in the SLP preferred by the State Government relating to placing of superseded officers below the petitioner no stay had been granted in regard to the judgment passed by this Court. However, a list was issued on 27.11.2003 wherein the judgment passed by this Court was partly implemented to the extent that superseded officers had been rightly placed below the petitioner, but so far as the reserve categories are concerned, it was violated by the State Government by keeping them in the seniority list over and above their batch-mates by giving them accelerated seniority/ consequential seniority in violation of the ratio of the case of Ajit Singh-II [8] SBCWP Nos. 4866/08, 3355/2004 & 1742/2008 even when the decision of the Division Bench dated 12.09.2001 had come much before the said 85th Constitutional Amendment which came in the month of January, 2002. 11. It is further contended that on the basis of the aforesaid provisional seniority list dated 27.11.2003, the State Government sent a list for consideration for promotion from RAS to IAS for Review Board of 1993-94 and 1994-95 to UPSC. The petitioner challenged the same by filing a writ petition bearing No. 3355/2004, wherein this Court passed stay order on 01.06.2004 directing the Chief Secretary to explain the delay in compliance of the order of the Division Bench of this Court dated 12.09.2001 but no explanation has come forward from the Chief Secretary. Another application was moved by the State Government for seeking vacation of the stay order and this Court vide order dated 09.02.2005 directed that they may approach to the Hon'ble Supreme Court or before the Division Bench for clarification. The State Government preferred an application before the Hon'ble Supreme Court for clarification in SLP preferred by it and the same was decided as 'No orders' vide order dated 18.08.2006. 12. Subsequently, the State Government passed order of review DPC for selection scale and supertime scale of RAS on 12.05.2008 for the years [9] SBCWP Nos. 4866/08, 3355/2004 & 1742/2008 1986-87 to 1993-94 for selection scale and for the years 1993-94 to 2007-08 for supertime scale. The provisional seniority list was also issued by inviting objections on the same day i.e. 12.05.2008. Both the orders of the provisional seniority list and the final DPC order were issued simultaneously on 12.05.2008, the same cannot stand together. In one order objections have been invited within 15 days time and simultaneously final seniority list has also been issued, which appears more grievous when seeing in the light that on the same date i.e. 12.05.2008, this list was forwarded to UPSC for consideration for promotion to IAS for the year 1997-98 to 2007-08 and the list was shown as final seniority list. Thus, the entire exercise of inviting objections was an eye wash and under these circumstances, the petitioner had to file third writ petition registered as S.B. Civil Writ Petition No. 4866/2008. During pendency of the aforesaid three writ petitions, the respondents issued a final seniority list on 24.06.2008. The petitioner amended the writ petition No. 4866/2008 and the same has been allowed wherein seniority list dated 24.06.2008 has also been challenged. 13. Learned counsel Mr. Garg, appearing on behalf of the petitioners has submitted that superseded officers cannot be placed over and above the petitioner, as decided by this Court vide judgments dated 30.05.2001 and 12.09.2001 that the [10] SBCWP Nos. 4866/08, 3355/2004 & 1742/2008 merit cannot be allowed to be diluted for the reason that “Merit promotees got promotion through a process of equal opportunity and entered the promotional level after superseding the senior general candidates on merits as such they have right to be placed over the senior general candidates and they definitely have grievance against senior general candidates who regain seniority over the reserved candidates at promotional level. We are in agreement with the view expressed by the learned Single Judge that the merit promotees have a superior claim over the seniority promotees and they cannot be put below the seniority promotees under any circumstances.” 14. He further submits that so far as consequential seniority before 17.06.1995 to the reserve categories is concerned, the provisions in the Constitution existed as under:- “16(4)- Nothing in this Article shall prevent the State from making any provision for reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.” 15. Mr. Garg also referred Article 16(1) which mandatorily provides that “there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.” [11] SBCWP Nos. 4866/08, 3355/2004 & 1742/2008 16. He further submits that such a mandatory provision could be applied only when it is applied to equals but when the question of un-euqals comes, an extended provision is made under Article 16(4) of the Constitution that those who are backward class of citizens in the opinion of the State, is not adequately represented in the services under the State. This provision of Article 16(4) r/w Article 16(1) has been dealt with by the Constitutional Bench in Indira Sahni's case and held that it is an extended provision of Article 16(1) and not an exception. It has also been held in the said judgment that it does not give right to the State Government for making provision for reserve categories for reservation in the promotion. In Indira Sahni's case, it had been decided that the State Government may provide the reservation for promotion by making law. In this view of the matter, the Constitution was amended on 17.06.1995 by 77th amendment, whereby Article 16(4A) was inserted giving reservation in the promotions to reserve categories. It is further submitted that in Indira Sahni's case, it has also been held that backward class includes those which were notified as SC/ST. The position as existed before 17.06.1995 in the service rules is as under:- “In Sub Rule(1) of Rule 4 of the Rules of 1954, definition of service is given as “Service” means the Rajasthan Administrative Service.” [12] SBCWP Nos. 4866/08, 3355/2004 & 1742/2008 17. Rule 8 as substituted in the year 1973 provides inter-alia that the reservation of vacancies for the Scheduled Castes and Scheduled Tribes shall be in accordance with the orders of the Government for such reservation in force at the time of recruitment i.e. by direct recruitment and by promotion. 18. Thus, whatever reservations had to be given they were to be given as per the orders passed by the Central Government in the services but there is no provision for consequential seniority. The provision of consequential seniority was inserted by 85th Constitutional Amendment dated 04.01.2002 made effective from 17.06.1995 giving consequential seniority. Thus, before 17.06.1995 there was no provision by which it could be said that the consequential seniority would be given to the reserve categories. Rather when this question came up before the Hon'ble Supreme Court as to whether reserve categories are entitled for consequential seniority or accelerated seniority, the Hon'ble Supreme Court in the cases of (1) Veerpal Singh Chauhan, (2) Ajit Singh-I and (3) Ajit Singh-II, has categorically held that they are not entitled to consequential seniority, rather principle of regaining seniority would be applied. 19. It is also submitted that looking to the law laid down by the Hon'ble Supreme Court which was [13] SBCWP Nos. 4866/08, 3355/2004 & 1742/2008 declaratory and judgment in rem, the relevant provision namely Article 16(4A) of the Constitution amended by 85th Constitutional Amendment on 04.01.2002 giving consequential seniority permitting the State Government to make law in that regard in case the reserve categories are not adequately represented in the State service. The aforesaid provision was an enabling provision. The State Government was to amend its rule on account of Ajit Singh-I and II cases by adding explanation in Rule 33 relating to the seniority in order to give effect to the aforesaid judgments rendered by the Hon'ble Supreme Court by substituting new proviso at the end of the proviso to Rule 33 as under:- “That if a candidate belonging to the Scheduled Caste/ Scheduled Tribe is promoted to an immediate higher post/grade against a reserved vacancy earlier than his senior general/OBC candidate who is promoted late to the said immediate higher post/grade, the general/OBC candidate will regain his seniority over such earlier promoted candidate of the Scheduled Caste/ Scheduled Tribe in the immediate higher post/grade.” 20. The said amendment was acted upon for the first time after 85th Constitutional Amendment, the State Government vide its notification dated 28.12.2002 ordered for deletion of the aforesaid amendment and instead a new provision was directed to be added w.e.f. 01.04.1997 and substituted a new proviso w.e.f. the date of the notification dated [14] SBCWP Nos. 4866/08, 3355/2004 & 1742/2008 28.12.2002. The said new proviso inter-alia provides that the benefit has already been given on account of the earlier notification dated 01.04.1997, the seniority thus given to the senior batch-mates shall remain unaffected. However, the said proviso ordered to be subject to the final decision of the Hon'ble Supreme Court in SLP (Civil) No. 234/2002- All India Equality Forum Vs. Union of India & Others. 21. Another notification has been issued on 25.04.2008 by which the earlier proviso added vide notification dated 28.12.2002 has been ordered to be deleted and the Rajasthan Administrative Service Rules, 1954 were amended to that effect. 22. Be that as it may even if the proviso added by notification dated 28.12.2002 is deleted w.e.f. the said date, the earlier notification dated 01.04.1997 which had been repealed by notification dated 28.12.2002 immediately get revived and comes into operation. Even if for the argument sake it does not restore then in that case whatever had taken place w.e.f. 01.04.1997 till 28.12.2002 under the proviso existed in the Rules or Notification dated 01.04.1997 has not been nullified by subsequent notification dated 28.12.2002 and 25.04.2008. In both the cases as mentioned above, regaining formula in any case would apply upto 28.12.2002 and with respect would still apply for the reason that the proviso added by notification [15] SBCWP Nos. 4866/08, 3355/2004 & 1742/2008 dated 28.12.2002 by which the amended proviso of regaining seniority was deleted, has been taken back. Otherwise also, this notification dated 25.04.2008 has been stayed by the Division Bench of this Court vide order dated 22.08.2008 passed in D.B. Civil Writ Petition No. 8104/2008 and the same is still in force. 23. It is also contended that the consequential seniority after 17.06.1995 cannot be given for the reason that the Hon'ble Supreme Court in its stay order dated 11.11.2002 directed that the seniority of the general category candidates shall not be adversely affected who have already been given benefit of regaining of their seniority. In the same manner the notification dated 28.12.2002 gave benefit to the general category employees who had already been given benefit of regaining of seniority. The notification dated 25.04.2008 deleting the proviso added by the notification dated 28.12.2002 has been stayed by this Court and, therefore, the total effect is this that the employees of the general category who have already been given benefit of their seniority will affect if they have already taken benefit of the regaining of seniority. 24. Mr. Garg further submits that Shambhu Singh Meena's case came to be decided by the Hon'ble Supreme Court arising out of RAS services. In the [16] SBCWP Nos. 4866/08, 3355/2004 & 1742/2008 said decision, it has been categorically held that the notification dated 30.11.1991 is prospectively applicable. The notification dated 30.11.1991 provides that for merit promotion 5 out of 7 outstanding/very good APARs would be a necessity, whereas as per the earlier notification dated 11.07.1979 the requirement for RAS officers to get merit promotion having 7 out of 7 consistently outstanding/very good APARs. As per the provisions of the Rules, the determination of the vacancies take place in the beginning of the year i.e. 1st April of that year. There was no notification of 01.04.1991. The vacancies had already been determined and filled. Thereafter the notification dated 30.11.1991 was issued/published in the month of January, 1992. The said notification was not applicable for filling the vacancies of the year 1991-92. It may be submitted that for earlier years the vacancies had been filled by the State of Rajasthan including 1991-92 under the merit quota by applying 5 out of 7 APARs, whereas it ought to have been 7 out of 7 APARs. When the matter was decided by the Hon'ble Supreme Court in the case of Shambhu Singh Meena, the State Government in compliance of the said decision and the principles laid down therein held the review DPC on 23.02.1996 and considered all the officers for merit promotion upto 1991-92 by seeing 7 out of 7 outstanding/very good APARs. The petitioner's name was found to be satisfied the said criteria and given merit [17] SBCWP Nos. 4866/08, 3355/2004 & 1742/2008 promotion as against the vacancy of the year 1991- 92. After a lapse of a period of about 12 years, the review DPC has been held and his promotion given as against 1991-92 has been lowered down to 1992-93 annulling the judgment of Shambhu Singh Meena's case and misconstruing the notification dated 30.11.1991. 25. It is further contended on behalf of the petitioner that the State Government is not having any authority to hold review DPC dated 12.05.2008 annulling the judgment rendered by the Hon'ble Supreme Court in the case of Shambhu Singh Meena. In support of his submissions, learned counsel Mr. Garg placed reliance on the judgment rendered by the Hon'ble Supreme Court in the case of S.R. Bhagwat And Others Vs. State of Mysore, (1995) 6 SCC 16 and in the case of S.S. Bola And Others Vs. B.D. Sardana And Others, (1997) 8 SCC 522. 26. It is also submitted that the order of review DPC dated 12.05.2008 is without any reason and as such it is vitiated and to this effect, reliance has been placed on the judgment passed by the Hon'ble Supreme Court in Mohinder Singh Gill And Another Vs. The Chief Election Commissioner, New Delhi And Others, (1978) 1 SCC 405. 27. Mr. Garg has further contended that in the judgment given by the Jodhpur High Court in Prabha [18] SBCWP Nos. 4866/08, 3355/2004 & 1742/2008 Tak's case, the petitioner was not a party. The judgment is still under challenge before the Division Bench and this judgment is not binding on the petitioner. Neither the petitioner was made party in the said writ petition nor similarly situated officer had been impleaded therein. In the aforesaid judgment the respondents who had been impleaded were those who were promoted against the year 1991-92 in merit quota on the basis of the Court's decision and