1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R S.B.Civil Writ Petition No. 6569/2006 Rajasthan Patwar Sangh, Up-Sakha Nagaur, through its President Shri Hanuman Ram Nangwaria Vs. The State of Rajasthan & Ors. ......... Date of Order : 10/11/2008 P R E S E N T HON'BLE MR. JUSTICE H.R.PANWAR Mr. S.P. Sharma for the petitioner. Mr. O.P. Boob, Additional Govt. Counsel for the respondents. BY THE COURT By the instant writ petition under Article 226 of the Constitution of India, the petitioner seeks to declare the amendment in the Rule 284 (ii) of the Rajasthan Land Revenue (Land Records) Rules, 1957 (for short 'the Rules of 1957' hereinafter) as ultravires the Constitution of India and a direction to the respondents for restructuring the seniority category of patwaries in the given ratio as per provisions of Rule 284 of the Rules of 1957. I have heard learned counsel for the parties. It is contended by learned counsel for the petitioner 2 that earlier the promotion ratio from the serving patwaries to the post of Land Record Inspectors was 50:50 percent i.e. 50% by way of seniority and 50% by way of direct recruitment, however, subsequently, it was modified to 65% by way of seniority, 20% by way of direct recruitment and 15% by way of departmental examination. Thereafter again, it came to be revised making it 80% by way of seniority and 20% by way of departmental examination. However, second proviso to Rule 284 (ii) of the Rules of 1957 came to be inserted by notification No.F.10 (1) Rev.6/94/16, dated 01.06.2000 published in the Rajasthan Govt. Gazette Extraordinary Part 4 (ga)(I) dated 7.6.2000. According to learned counsel for the petitioner the proviso is ultravires to the extent that it has retrospective effect. A reply to the writ petition has been filed and it is contended by learned Additional Govt. Counsel appearing for the respondent State that so far as promotions from Patwari to Land Record Inspectors are concerned, they are governed by Rule 284 of the Rules of 1957 and the Rule 284 makes it clear that selection of the candidate for admission to the school shall be made in such a manner that the persons appointed to the service do not at any time exceed the percentage of the total cadre strength for each category and the categories have been carved out i.e. 80% by way of promotion and 20% by way of departmental examination restricted to serving patwaries of the 3 Land Revenue/ Land Records Department. Learned counsel for the petitioner has relied on a decision of Hon'ble Supreme Court in Nani Sha and Ors. Vs. State of Arunachal Pradesh and Ors. AIR 2007 SC 2356 wherein Hon'ble Supreme Court has considered the retrospectivity of the provision and observed as under :- “Reverting back to the effect of the proviso, we do not find anywhere any such intention to apply the proviso with retrospective effect. In order to make a provision applicable with retrospective effect, it has to be specifically expressed in the provision. We do not find such an expression in the said proviso. Nothing had stopped the government before amending the Rule to word it specifically, making it retrospective. That was not done and we are not prepared to hold that the Rule is retrospective. Secondly, we cannot countenance the argument that the Rule has a clarificatory nature. The Rule for the first time, creates a quota and thus crystallizes the rights of the direct appointees and the promotees which was not there earlier. It, therefore, cannot be viewed as a clarificatory amendment. Again whether the amendment is clarificatory or not would depend upon the language of the provision as also the other Rules. We have examined the Rules which did not suggest that then was any quota existing as such. On the other hand we see Rule 25 which is a Rule regarding seniority and more particularly Rule 25 (c). It is apparent from the language of the Rule that the government thought otherwise. Rule 25 (c) is as under:- “The relative seniority of direct recruit and of promotees shall be determined according the rotation of vacancies between direct recruits and promotees which shall be based on the quotas of vacancies reserved for direct recruitment and promotion under Rule 5”. This language suggests that the only quota that was 4 contemplated was as per Rule 5 which we have already explained in the earlier part of the judgment which suggests the 50% quota only in the “substantive vacancies which occurred from time to time” and not the whole vacancies in the cadre. We are therefore, unable to accept the argument of the learned counsel for the appellants.” However, subsequently, the respondents by way of additional affidavit have placed on record the document Annex.R/1 showing the total strength of the cadre of Land Record Inspectors as 1818 as on 2006-2007 and that from direct recruitment 88 candidates and from the serving patwaries of revenue and Land Records Department by departmental examination 352 candidates have been selected. Out of the total cadre strength of 1818, 20% is available for departmental examination which shall be restricted to the serving patwaries of the Revenue (Land Records) Department which is worked out to 364 posts, as against which, presently 440 Land Record Inspectors are working i.e. 88+352=440 and therefore, as many as 76 Land Record Inspectors are in excess than the total cadre strength for such Land Record Inspectors. It has been clarified by the respondents by filing additional affidavit that only 364 posts are available for open market but now at present 352 Land Record Inspectors were working against 364 posts and 12 posts are available for open market. The petitioner represents the Rajasthan Patwar 5 Sangh Association of the serving Patwaries of Revenue Department. The Hon'ble Supreme Court in Nani Sha and Ors. Vs. State of Arunachal Pradesh and Ors. (supra) held that the relative seniority of direct recruit and of promotees shall be determined according the rotation of vacancies between direct recruits and promotees which shall be based on the quotas of vacancies reserved for direct recruitment and promotion. In view of the factual position as explained by the respondents by way of additional affidavit and the fact that the language used in the proviso cannot be said to be detrimental even to the candidates seeking to fill the vacancies by departmental competitive examination which is otherwise restricted to the serving patwaries of the Revenue (Land Record) Department and therefore, in my view, the question of restrospectivity is not in issue in the instant case and as many as 12 vacancies are already available and in future if such vacancies occur, it will be always open for the respondents to conduct the competitive examination of such serving patwaries of Revenue (Land Record) Department. So far as direction to the respondent to conduct the examination is concerned, in my view, it is for the respondent Department to conduct the competitive examination from the serving patwaries as and when vacancies occur for such direct recruitment. 6 In this view of the matter, I do not find that the rule 284 (ii) of the Rules of 1957 in any manner violates any of the provisions of Constitution of India. No case for interference is made out. The writ petition is dismissed. Stay petition also stands dismissed. (H.R.PANWAR), J. rp