1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR Ajay Kumar Saxena vs. R.T.D.C. & Ors. (S.B. CIVIL WRIT PETITION NO. 6252/1991) Date of Order: 10/09/2008 PRESENTS HON'BLE MR. JUSTICE RAGHUVENDRA S. RATHORE Mr. Sandeep Saxena } Mr. Akhil Simlote }, for the petitioner(s). Mr. Vinendra Agarwal, for respondent Nos. 1 & 2. None for the respondent Nos. 3 to 9. By the Court: (Oral). In this writ petition, the petitioner has challenged the seniority list dated 18.03.1991 (Annexure-3) passed by respondent No. 1 and 2. Therefore, he has prayed that the said seniority list wherein the petitioner was placed at serial No. 23, be quashed or modified. Further it has been prayed that the orders dated 13.05.1991 (Annexure-4) and order No. 9972 dated 07.06.1993 (Annexure-5) and order No. 9973 dated 07.06.1993 (Annexure-6) may be quashed or modified. It has also been prayed by the petitioner that directions be issued that Review D.P.C. be convened and the case of the petitioner be considered and after placing him suitably, he may be given promotion on the post of Accountant from the date when his junior (respondent No. 3) was so promoted, vide order dated 13.05.1991, with all consequential benefits. 2 2. Broadly speaking, the facts of the case are that in the year 1981, there were vacancies for the post of Junior Accountant and for filling up the same, an advertisement was issued and thereafter written examination was held on 12.07.1981. The persons who passed the examination were subjected to interview and a select list of the 24 persons and reserve list of 16 persons were published on 17.10.1981. The name of the petitioner had appeared in the reserve list but none of the persons from it were given appointment. Later on, the petitioner was interviewed on 28.02.1983. The petitioner was then appointed as Junior Accountant by the General Manager (Personal), Rajasthan Tourism Development Corporation, vide his order No. 1295 dated 08.03.1983. The petitioner was placed at serial No. 1 amongst the five candidates who were given appointment by the aforesaid order. The placement of the persons in the appointment order was as follows:- 1.Ajay Kumar Saxena, 2.Pankaj Tiwari 3.Yashpal Singh, (respondent No. 9) 4.Om Prakash Bansal, 5.Shankar Lal Gupta. (respondent No. 8) 3. Thereafter, a seniority list was published on 02.02.1991 wherein the petitioner was placed at serial No. 32 and respondents Shankar Lal Gupta and Yashpal Singh were placed at Serial No. 30 and 31 respectively. Thereafter, the final seniority list of Junior Accountant was issued on 18.03.1991 wherein the petitioner was placed at serial No. 30 and Sankar Lal Gupta and Yashpal Singh were placed at serial No. 28 and 29 3 respectively. The persons placed at serial No. 23 to 27, in the seniority list of 18.03.1991 were those who had failed in the written test held in the year 1981 and had not qualified the examination. Therefore, their names did not find place in the list of successful candidates. However, they were given appointment on the post of Junior Accountant on 16.10.82. But their appointment order had not disclosed the provision of the Rules under which the selection/appointment had been made. Earlier these persons were working with the respondents on the post of Junior Office Assistant which was equivalent to the post of L.D.C. 4. Subsequently, the respondents No. 3 to 9 were given promotion on the post of Accountant, vide order dated 13.05.1991 and two orders issued on 07.06.1993 which are placed on record as Annexures-4, 5 & 6 respectively. The said orders have been impugned by the petitioner in this writ petition. The petitioner had then got a notice for demand of justice issued to respondent No. 1 and 2 on 06.07.91, to which no reply was received. Hence, the present writ petition had been filed by the petitioner seeking the aforementioned reliefs. 5. The respondents have contested the writ petition by filing a reply. It is stated in the reply that the appointment of the petitioner was not made after the advertisement, written examination or interview, but the same was purely on ad hoc and urgent temporary basis, under rule 19 of the Rajasthan Tourism Development Corporation (General Condition of Service) 4 Rules, 1980. It has been further submitted by the respondents that an advertisement was issued in the year 1981 for selection on the post of Junior Accountant. In pursuance thereof, many persons had applied and the selection committee had selected 32 persons, of which a panel was prepared and a reserve list consisting of 16 persons was also prepared. The name of the petitioner was in the reserve list. Thereafter, the respondent- Corporation had appointed 24 persons out of the selected candidates, against the vacancies, vide order dated 17.10.1981. Ashok Kumar and Rakesh Bhargava were appointed on 05.04.1982. It has been stated by the respondent that as per Rule 13 (5) of the Rule of 1980 the select/reserve list remains in force for a period of six months from the date of selection. Therefore, as the selection was made in October, 1981, the aforesaid select as well as the reserve list lapsed on 16.04.1982 and no right remained with the persons in the list to be considered for selection. 6. Further, it is stated that there were 41 posts of Junior Accountant which were available at the Head Office and also at the units of the respondents-Corporation. As against this, 34 Junior Accountants were working and there were seven clear vacancies. The respondent-Corporation then created three more posts of Junior Accountant and decided to appoint ten persons against the said post. In this respect, a panel of 22 persons, who were qualified for the post, was prepared and vide letter dated 01.10.82 they were asked for giving acceptance for adhoc 5 temporary appointment with the Corporation. After receiving the consent, such persons were interviewed. It is stated by the respondent-Corporation that the petitioner was one of the candidates who agreed for such appointment by order dated 06.10.1982 and he was given temporary appointment on the post of Junior Accountant vide order dated 08.03.1983 in the basic pay of Rs. 460/- and the pay scale of 460-10-490-20-770, plus usual allowances. It had also been mentioned in the said order that he will produce a fitness certificate from medical jurist or District Medical Officer, two certificates of good character signed by gazetted officers and original certificates of education, experience etc. According to the respondent, the petitioner had joined the services of the Corporation after Shankar Lal Gupta and Yashpal Singh. However, he joined before Pankaj Tiwari. In such view, the entry of the petitioner in service of the Corporation was considered from the date of joining. 7. It has been stated by the respondent-Corporation that the seniority of the the petitioner was fixed from the date of joining. Shankar Lal Gupta (respondent No. 8) and Yashpal Singh (respondent No. 9) had joined earlier to the petitioner on the post of Junior Accountant and as such their placement over and above the petitioner was in accordance to Rules as well as the resolution passed by the Board of Directors of the Corporation. Therefore, there had been no contravention in placing the respondent No. 8 and 9 higher than the petitioner. 6 8. The case of the respondent-Corporation further is that several casual employees were working with the Corporation on ad hoc basis. There were also confirmed employees working with them but they were not fulfilling the qualification for direct recruitment. In such view, the matter was placed before Board of Directors for approval of regularisation of such persons working on different posts. The Board of Directors, by their resolution dated 07.03.1984, had laid down guidelines for absorbing the casual/workcharge employees in regular pay-scale and one of the condition provided was that their seniority will be accorded from the date of entry in the Corporation in casual capacity or from the date they become qualified for the post. The respondent-Corporation had stated that Rajendra Saxena, Lakhi Prasad Tailor, Ram Kishore Pareek, Satyanarain Sharma and Anil Kumar Gulati were serving with the Corporation as Junior Accountant and they were Commerce Graduate. All these employees had been agitating for the regular appointment on the post of Junior Accountant as they fulfilled the requisite qualification. Therefore, the Board of Directors, after considering the qualifications, and service with the Corporation, appointed them temporarily on the post of Junior Accountant from 13.10.1982. The respondents stated that the appointment of aforesaid persons was very much after following the procedure and they were given appointment under Rule 19 of the Rules of 1980. The respondents have stated that the appointment of the petitioner was also under Rule 19 and not under rule 13 and as such the seniority list prepared is in 7 accordance with the Rules and the decision taken by Board of Directors. 9. The case of the petitioner is that he was appointed in accordance with the Rules of 1980. Further it has been submitted that respondent No. 3 to 7 were not appointed on regular basis. It has also been submitted that the respondent No. 8 and 9 were appointed along with the petitioner and in the order of appointment they were placed lower to him. As such they could not have been placed higher to the petitioner in the seniority list. It is also submitted by the petitioner that the respondent No. 3 to 7 had appeared in the written examination which was held in furtherance of the advertisement dated 01.05.1981 but they had failed as a result of which they were not placed even in the reserve list. 10. Further the case of the petitioner is that subsequent to the decision dated 30.09.1983, options were called and screening was held but respondent No. 3 to 7 had not participated in the said process. The respondent No. 8 and 9 had appeared but their name was at serial No. 29 and 30 in the merit list. It has also been submitted by the petitioner that the respondent No. 3 to 7 were working on the post of Junior Office Assistant and they had been promoted from the said post to that of Junior Accountant, without there being any provision for such promotion. In fact, according to the petitioner there is no promotion channel from the post of Junior Office Assistant to 8 that of Junior Accountant. The counsel for the petitioner has, in support of his case, relied upon the case of The Direct Recruit Class-II Enginnering Officers' Association & Ors. vs. State of Maharashtra & Ors., AIR 1990 Supreme Court 1607; Niyaz Mohd. Khan vs. State & Anr., 2002 WLC (Raj.) UC 562 and on the case of Smt. Suman Bai & Anr. vs. State of Rajasthan & Ors. (S.B.C.W.P. No. 4808/2001), decided on 03.07.2008. 11. On the other hand, the case of the respondent is that the decision (Annexure-R/2) was taken for appointment on urgent Temporary Basis for one year as has been provided in rule 19 of the Rules of 1980. Further the case of the respondent is that the petitioner was given appointment on 08.03.1983 (Annexure-1) whereas the appointment to respondent No. 3 to 7 was given on 16.10.1982. It has been submitted by the respondents that the seniority list was to be prepared in accordance to Rule of 1980 and it was so done (Annexure-R/3). It has been contended by the learned counsel for the respondent that no illegality had been committed in the issuance of seniority list and the same was in accordance to relevant Rule. 12. The learned counsel for the respondents has further submitted that in the instant case, the Board of Directors had taken a decision on 07.03.1984. In furtherance of the said decision, the Managing Director of the respondent-Corporation issued an office order on 15.03.1984 whereby a Screening 9 Committee was constituted. The said Screening Committee then recommended for regular appointment of the employees of the Corporation from 01.04.1984. Thereafter, the Corporation issued an office order on 08.05.1984 whereby the employees of the Corporation working on different posts were given appointment, in respective pay scale, from 01.04.1984. The said employees were to be on probation for a period of two years. This order included the petitioner as well as respondents No. 3 to 9. Their appointment was to be on the post of Junior Accountant in the pay scale of 625-1120. In view of the said order of appointment, having been issued by the Corporation, the learned counsel for the respondents submitted that the issuance of the seniority list on 08.03.1991 and the subsequent orders of promotion on 13.05.91 and 07.06.1993 were just and proper and in accordance to the relevant rules. The respondents have placed reliance on the case of L. Chandrakishore Singh vs. State of Manipur & Ors., (1999) 8 SCC 287. 13. After having considered the facts and circumstances of the case and on perusal of the rules of 1980, I am of the view that the writ petition has merit. Rule 13 of the Rajasthan Tourism Development Corporation (Recruitment, Selection and Promotion) Rules, 1980 provides the procedure for direct recruitment which reads as under:- “13. Procedure for direct recruitment : (1) Applications for direct recruitment to posts in the Corporation shall be invited by the Appointing Authority by advertising the vacancies to be filled, in one or more News-papers and to the “Rojgar Sandesh”. 10 (2) A candidate for direct recruitment to post in the service shall pay the fee fixed by the Appointing Authority in such manner as may be prescribed. (3) The Appointing Authority shall decide the mode of recruitment i.e. whether the posts advertised be filled in by holding a competitive examination/test or by interview or by a test followed by interview and after scruitinization of applications require candidates not more than 5 times the number of notified vacancies to appear for interview before the Selection Committee if the posts are decided to be filled in by interview alone. In case where the post is decided to be filled in by a Competitive Examination/test or by a test and interview all eligible candidates who apply for the post shall be called for taking the examination/test and only such of them as have passed the examination/test may be called to appear before the Selection Committee for interview. (4) The Selection Committee Shall be constituted as under :- For Class I Posts 1. Managing Director ... Chairman 2. Two Directors of the ... Members Board nominated by the Chairman. For Class II Posts 1. Managing Director ... Chairman 2. Manager (T.S.) Manager ... Members (Accom.)/Works Manager as may be nominated by the Managing Director. 3. Manager (personnel)/ ... Member- Dy. Manager (Personnel) ... Secretary For Class III & Class IV Posts 1. An Officer of the Corporation not below the rank of Manager as may be nomi- nated by Managing Director ... Chairman 2. ---do--- ... Members 3. Manager (Personnel)/ ... Member- Dy. Manager (Personnel) ... Secretary The Appointing Authority may also nominate an expert to assist the Selection Committee in making the selections; if need be. 11 (5)The Selection Committee will arrange the names of the selected candidates in the order of their merit/preference. The selection Committee may, to the extent of 50% of the advertised vacancies; keep names of suitable candidates on the reserve list which shall remain in force for a period of six months from the date of selection.” The respondent-Corporation had issued an advertisement in the year 1981 for filling up the vacancies on the post of Junior Accountant. Thereafter, the petitioner and others applied for the said posts and they had given the written examination on 12.07.1981. The candidates who had passed the written examination, were subjected to interview and subsequently a list of selected candidates was published on 17.10.1981 (Annexure-R/1). The main select list consisted the names of 32 persons and a reserve list of 16 persons. However, the petitioner was not given appointment. As a matter of fact, all the persons so selected have not been given appointment. After expiry of one year, the said list had lapsed because as per sub- Rule 5 of Rule 13 of the Rajasthan Tourism Development Corporation (Recruitment, Selection and Promotion) Rules, 1980 it was to remain in force for a period of 6 months from the date of selection. Therefore, in the instant case, the aforesaid lists lapsed on 16.04.1982. 14. Later on, a decision was taken by the respondent- Corporation on 30.09.1982 (Annexure-R/2) for adhoc appointment of persons against the vacancies of Junior Accountants. That was to include the persons who had been left out from the aforesaid panel prepared for the post on 12 07.10.1981 and also the Office Assistants who were commerce graduate and some of them had already been working against the post of Junior Accountants. In furtherance thereof a selection committee was constituted to judge the suitability of such persons, consisting of the following officers, (1) General Manager, (2) C.A.O. and No. (3) General Manage (P). The concerning persons were interviewed between the month of November, 1982 to February, 1983. The selection committee had then, on the basis of performance, etc. and the intereview, selected five candidates which were as follows:- 1. Ajay Kumar Saxena, 2. Pankaj tiwari, 3. Yashpal Singh, 4. Om Prakash Bansal, 5. Shankar Lal Gupta. The said names were arranged in order of merit. 15. The respondent-Corporation had then issued an office order on 08.03.1983 (Annexure-1) whereby five persons were given temporary appointment on the post of Junior Accountant for a period of three months on a basic pay of Rs. 460/-, in the pay scale of Rs. 460-10-490-20-770, plus usual allowances admissible to the Corporation employees. These candidates were to produce fitness certificate from the Medical Jurist or District Medical Officer; two certificates of good character signed by gazetted officers and original certificates relating to their educational, technical qualifications, date of birth, experience etc. 13 16. Subsequently, the Board of Directors of the respondent Corporation in its 28th Meeting, held on 07.03.1984, at 3.30 pm. took a number of decisions including (Item No. 6) for regularisation of casual staff. It was pointed out in the meeting that the choice was mainly between two options, viz (i) to advertise all the posts as per the procedure prescribed in the rules for direct recruitment and require the casual employees to apply alongwith them or (ii) to consider regularisation of casual employees having the required experience as per rules. The Board was in favour of the second option which was considered to be practical, humanitarian and avoiding necessary/probable complications. In furtherance of the said decision, a screening committee was constituted by order dated 15.03.1984. The said screening committee made recommendation of the following employees, in the cadre of Junior Accountant for grant of regular appointment w.e.f. 01.04.1984; Cadre Name of employee Date of Apptt. Junior Accountant 1. Shri Ratan Lal 02/06/82 2. Shri Rajendra Saxena 16.10.82 3. Shri Lakhi Pd. Tailor 16.10.82 4. Shri R.K. Pareek 16.10.82 5. Shri S.N. Sharma 16.10.82 6. Shri Anil Gulati 16.10.82 7. Shri Shankar Lal 09/03/83 8. Shri yash Pal Singh 11/03/83 9. Shri Ajai Kumar Saxena 14.3.83 10. Shri Pankaj Tiwari 21.3.83 11. Shri Govind Prasad 09/06/82 12. Shri Tulsi Das 15.10.82 It is to be noted that the date of appointment, given 14 against the names of the persons so appointed, was in accordance to their date of joining. As for instance, the date of appointment of Sankhar Lal Gupta was shown as 09.03.1983, that of Yashpal Singh as 11.03.83 and that of the petitioner as 14.03.83. 17. It was in accordance of the said recommendation made by the screening committee that the office order dated 08.05.84 (Annexure-R/1/3) was issued. In the said order, respondent Shankar Lal Gupta was shown at serial No. 8 and respondent Yashpal Singh was shown at serial No. 9, whereas the petitioner was shown at serial No. 10. It is significant to note here that in the appointment order dated 08.03.83, the petitioner was at serial No. 1, Shankar Lal Gupta (respondent No. 8) was at serial No. 5 and Shri Yashpal Singh (respondent No. 9) was at serial No. 3. Similarly, in the selection made by the selection committee (Annexure-6/A), the petitioner was at serial No. 1, Yashpal Singh was at serial No. 3 and Shankar Lal Gupta was at serial No. 5. The said selection committeee, consisting of five high officials of the Corporation, had specifically noted on the proceeding that the names were arranged in order of merit. 18. It would be relevant to mention here that rule with regard to the seniority is Rule 18 of the Rules of 1980. Proviso 2 of the Rules provide as under:- "The seniority interse of persons appointed to a post by direct recruitment in a particular calendar year on the basis of one and the same selection, shall follow the order in which their names have been placed in the list prepared under rule 13." 15 19. As in the instant case when the petitioner was considered higher in order of merit to respondent No. 8 and 9 by the selection committee (Annexure-6/A) and also in the appointment order dated 08.03.83 (Annexure-1) then he ought to have been considered senior to the respondents Shankar Lal Gupta and Yashpal Singh. It was on the basis of common selection that the selection committeee had selected the candidates in order of merit and the appointment to the petitioner and respondents No. 8 and 9 was so made that the petitioner was placed at serial No. 1. Therefore, the seniority to the petitioner should have been given as per his placement in the merit. In the case of Niyaz Mohd. Khan (supra), the learned Division Bench observed that the petitioner is to be placed in the seniority list, in order of merit of common selection amongst persons appointed in pursuance of the same selection. The same view had been recently followed by a Co- ordinate Bench of this Court in the case of Suman Bai (supra), decided on 03.07.2008. 20. As noted above, the initial process for appointment had been started in the year 1981 on the post of Junior Accountant, and the list of the selected candidates was prepared after written examination as well as interview in the month of October, 1981. However, the said list including the reserve list had lapsed in April, 1982 after expiry of six months, as per the Rules of 1980. Thereafter, a decision was taken by the respondent-Corporation on 30.09.1982 whereby it was thought 16 proper, keeping in view the vacancies for appointment on the post of Junior Accountant, to consider the remaining persons of the aforesaid select list of 1981 and the persons who had been already working against the said posts. In furtherance thereof, the remaining persons from the select list of 1981 were to give option for adhoc temporary appointment, preferably on or before 10.10.1982 (Annexure-R/3). The petitioner had then given his acceptance on 06.10.1982 (Annexure-R/4). The petitioner was also interviewed in this regard on 28.02.1983. The selection committee so constituted as per the decision of 30.09.1982, had selected five candidates and arranged their names in order of merit. It is to be noted that in the said selection list the names of only the petitioner and respondent Nos. 8 and 9 had found place. So far as the other respondents No. 3 to 7 are concerned, they had not been selected by the selection committee. Later on, the petitioner and respondent Nos. 8 and 9 had been given appointment on 08.03.1983 (Annexure-1). 21. As per the decision of the respondent-Corporation taken in September, 1982, the remaining persons of the select list of 1981 and all those Junior Office Assistants like respondent Nos. 3 to 7 who were commerce graduates and were already working against the post of Junior Accountants were also to be considered together. But, while the process, in furtherance of the order dated