1 IN THE HIGH COURT OF JUDICATURE FOR RAJALSTHAN AT JAIPUR BENCH, JAIPUR J U D G M E N T (1) D.B.CIVIL SPECIAL APPEAL(WRIT) NO.206/2009 (Gajendra Singh vs. Ajay Singh & Ors.) (2) D.B.CIVIL SPECIAL APPEAL(WRIT) NO.307/2009 (State of Raj. & Anr. vs. Ajay Singh & Ors.) (3) D.B.CIVIL SPECIAL APPEAL(WRIT) NO.1063/2009 (State of Raj. & Anr. vs. Ajay Singh & Ors.) (4) D.B.CIVIL SPECIAL APPEAL(WRIT) NO.375/2009 (Smt.Prabha Tak vs. Ajay Singh & Ors.) (5) D.B.CIVIL SPECIAL APPEAL(WRIT) NO.1020/2009 (State of Raj. & Anr. vs. Hanuman Singh Bhati & Ors.) DATE OF JUDGMENT ::: FEBRUARY 5, 2010 P R E S E N T HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN HON'BLE MR. JUSTICE RAGHUVENDRA S.RATHORE Mr.Ashok Gaur for appellants in SAW No.206/2009 Mr.S.N.Kumawat,Addl.Advocate General for appellants in SAW No.s 307/2009, 1063/2009 & 1020/2009 Mr.Virendra Lodha, for appellant in SAW No.375/2009 Mr.Gopal Garg, for the respondents in all the special appeals BY THE COURT:(Per Hon'ble Mr.N.K.Jain J.) REPORTABLE/- 1. Since all the special appeals are directed against common order of learned Single Judge dated 4th March, 2009, therefore, all the special appeals are being disposed of by this common order. 2 2. The respondent Ajay Singh, an officer of Rajasthan Administrative Service, (hereinafter referred to as petitioner) preferred three writ petitions under Article 226 of the Constitution, which were disposed of by the learned Single Judge by a common order as all the writ petitions were similar in nature. The writ petition No.3355/2004 was preferred by three persons namely Hanuman Singh Bhati, Rajesh Yadav and Ajay Singh, but during the pendency of the writ petition, the petitioners Hanuman Singh Bhati and Rajesh Yadav both withdrew their writ petitions. Therefore, Ajay Singh remained as petitioner in writ petition No.3355/2004. 3. The learned Single Judge in its impugned order dated 4th March, 2009 has quoted the relief clause of all the three writ petitions, and the facts of S.B.Civil Writ Petition No.4866/2008 have been given as leading case. 4. The petitioner in writ petition No.3355/2004 challenged the impugned seniority list dated 4.5.2004 as on 1.4.1993 & 1.4.1994 (Annexures 12 & 13) in addition to other prayers. 3 5. In writ petition No.1742/2008, the petitioner prayed that 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 respondents on 26.6.2000 as per the decision of the Hon'ble Division Bench dated 12.9.2001. 6. In addition to other prayers, the petitioner in writ petition No.4866/2008 initially challenged the order dated 12th May, 2008 and by way of amendment in the writ petition he also challenged the final seniority list dated 24th June, 2008 (Annex.3). 7. The learned Single Judge vide its impugned common order quashed and set aside the final seniority list dated 24th June, 2008 issued by the Department of Personnel, Government of Rajasthan, Jaipur in part as mentioned in the order. Para No.s 88 & 89 of the impugned judgment are reproduced as under:- “88. In view of the discussions made herein above, the impugned final seniority list dated 24.06.2008 (Annexure-3) issued by the Department 4 of Personnel, Govt. of Rajasthan, Jaipur is hereby quashed and set-aside so far as the merit promotees whose selection was made against the vacancies for the year 1991-92 considering 7 out of 7 outstanding/very good APARs are concerned, and the respondents are directed to show the names of merit promotees for the year 1991-92 over and above the reserved category candidates as had been shown in the seniority list issued by the respondents on 23.02.1996 as per the decision of the Division Bench dated 12.09.2001 following the decision of the Hon'ble Apex Court rendered in the case of Shivnath Prasad (supra) and shall prepare final seniority list in the light of the judgment dated 12.09.2001 rendered by the Division Bench of this Court and the judgment rendered by the Hon'ble Supreme Court in the case of Shivnath Prasad (supra) and the merit promotees, thus, are also entitled for consideration on the post of I.A.S. as per their merit. 89. Consequently, all the writ petitions stand allowed in the terms as indicated herein above.” 8. Being aggrieved with the aforesaid judgment, the State of Rajasthan has preferred three special appeals in all the three writ petitions filed by petitioner Ajay Singh. The appellant Gajendra Singh and Smt.Prabha Tak have also challenged the impugned order of learned Single Judge by way of two separate special appeals. 9. The petitioner in his writ petition No.4866/2008 pleaded that he was appointed as 5 Rajasthan Administrative Service Officer in junior scale of RAS on 15th October, 1979. 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 30th November, 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 11th April, 1979. The Hon'ble Apex Court in Shambhu Singh Meena & Ors vs. State of Raj. & Ors (1995 Supp (2) SCC 431) held that the notification dated 30th November, 1991 is to be applied prospectively. Thereafter, a review DPC was convened on 23rd February, 1996 and the petitioner was selected against merit quota for the vacancies of 1991-92 having 7 out of 7 outstanding/very good APARs. The name of petitioner is appearing at No.5 in the order dated 23rd February, 1996. The name of petitioner was shown in the provisional seniority list dated 1st April, 1998 in the selection scale of RAS against the merit quota 6 of 1991-92. However, his position was changed by the State Government in subsequent provisional seniority list dated 26th June, 2000 on the basis of decision rendered in Ajit Singh & Ors. (II) vs. State of Punjab & Ors (1999 (7) SCC 209). The seniority promotees were placed above the merit promotees. Therefore, petitioner filed a writ petition No.2968/2000 and the writ petition was allowed by Single Bench of this Court vide its judgment dated 30.5.2001, whereby it was held that merit promotees will be placed above the seniority promotees. The State Government preferred a special appeal against the said judgment, but the same was dismissed by Division Bench vide order dated 12th September, 2001. The Single Bench as well as the Division Bench both held that merit promotees will be kept above the superseded officers of general category and thereafter the roster point promotees. The reserve category officers also filed writ petition challenging their placement below their senior batch mates of general category on the ground that they are entitled for consequential seniority on promotion post, but their writ petitions were also dismissed vide common order dated 30th May, 2001. The special appeals preferred by them were also dismissed 7 by the Division Bench on 12th September, 2001. The reserve category officers did not challenge the order of Division Bench, thereafter, therefore, the matter with regard to them has attained finality. The seniority promotees preferred SLP before the Hon'ble Supreme Court, which is pending but up till now no interim order has been passed staying the operation of order of Hon'ble Division Bench. In these circumstances, the State Government ought to have framed seniority list showing merit promotees above the seniority promotees and reserve promotees. Subsequently, a seniority list dated 23rd November, 2003 was issued, wherein judgment of Single Bench and Division Bench was partly complied with by showing seniority promotees below the merit promotees. But the order of Single Bench and Division Bench was not complied with so far as reserved promotees are concerned. The State Government thereafter sent a list for consideration for promotion from RAS to IAS on the basis of provisional seniority list dated 27th November, 2003. Being aggrieved with the same, the petitioner preferred S.B.Civil Writ Petition No.3355/2004. The State Government has now issued a provisional seniority list dated 12th May, 2008 of RAS Officers and on that basis 8 forwarded a list to UPSC for consideration for promotion from RAS to IAS for the year 1997-98 to 2007-08. The petitioner thereafter preferred S.B.Civil Writ Petition No.4866/2008. During the pendency of above writ petition, The respondent State issued a final seniority list on 24th June, 2008. The petitioner by way of an application for amendment, amended his writ petition and also challenged the final seniority list dated 24th June, 2008. 10. Mr.Ashok Gaur, the learned counsel appearing in a representative capacity of reserved class submitted that the learned Single Judge has committed an illegality in saying that the notification dated 30th November, 1991, whereby selection criteria on the basis of merit, which has been changed from 7 out of 7 to 5 out of 7 outstanding/very good APARs, will not apply to those officers who were already considered on the basis of 7 out of 7 outstanding/very good APARs. 11. So far as other submissions regarding regaining of seniority of general category candidates are concerned, he contended that this Court has already heard the said point in Writ Petition No.8104/2008 (Bajrang Lal Sharma 9 vs. State of Raj.), therefore, the said point may be considered and decided finally in that case. 12. He contended that the circular dated 30th November, 1991 is prospective as held by the Hon'ble Supreme Court in Shambhu Singh Meena vs. State of Rajasthan (supra). Therefore, the State Government was right in holding the DPC for the year 1991-92 and bifurcating the vacancies of 1991-92 in two parts i.e. vacancies arose before 30th November, 1991 and after 30th November, 1991. He relied upon judgment of Apex Court in the case of Shambhu Singh Meena vs. State of Rajasthan (supra), wherein the same circular dated 30th November, 1991 was considered. He also relied upon judgment of larger Bench of this Court in Shankar Lal Verma & 13 Ors. vs. The Raj. State Electricity Board (1999(1) WLC (Raj.) page 1. He contended that the finding of the learned Single Judge in Para 83 of the impugned judgment is contrary to the law laid down by Hon'ble Apex Court in the case of State of Rajasthan vs. R.Dayal & Ors. (1997 (10) SCC page 419 and on that basis he contended that all vacancies occurred after amendment made in the rule will be considered as per amended rule 10 and the same has been made basis by the State Government while considering the cases of concerned officers in review DPC. 13. Mr.S.N.Kumawat the learned Additional Advocate General for the State of Rajasthan challenged the impugned order on the ground that earlier the petitioner was granted selection scale against the vacant post of year 1991-92 but as per directions given by the learned Single Judge, while deciding the writ petition No. 5392/2003 (Smt.Prabha Tak vs. State of Raj.) at principal seat of this Court at Jodhpur on 4.7.2007, a review DPC was convened and while considering the cases of all the concerned officers particularly while filling the posts of selection scale of Rajasthan Administrative Service for the year 1991-92, the amended rule dated 30th November, 1991 was taken into consideration. 14. He contended that there were total 34 vacancies of selection scale for the year 1991- 92, out of which 12 posts were to be filled by merit, 12 posts by seniority cum merit and 10 posts from reserved category. Twenty one posts were available upto the period 30th November, 1991 when the notification dated 30th November, 11 1991 was issued substituting the explanation below Rule 11 of Rule 28-B of the Rajasthan Administrative Service Rules, 1954 and 13 vacancies were relating to the period after 30th November 1991 till 31st March, 1992. Therefore, 21 vacancies were considered as per old rule and due to it the position of petitioner was changed and he has now been granted selection scale of RAS against the year 1992-93. Therefore, they have done all this exercise because of direction of Single Bench of this Court at Principal Seat at Jodhpur in Prabha Tak's case. 15. He further contended that no junior to petitioner Ajay Singh, having 7 out of 7 outstanding or very good APARs, has been granted selection scale against the vacant post of year 1991-92 (prior to 30th November, 1991). He frankly admitted that earlier a mistake was committed by the State in interpreting the notification dated 30th November, 1991, which has now been correctly interpreted in view of judgment of Hon'ble Supreme Court in the cases of Shambhu Singh Meena vs. State of Raj. (supra), State of Rajasthan vs. R.Dayal (supra) and judgment of Tribunal in the case of Anil Chaplot vs. State of Rajasthan. He referred to 12 Rule 28 (11)(B) and contended that State Government has powers to hold review DPC on the grounds mentioned in the rule. He narrated four grounds for holding the review DPC i.e. (i) a notification dated 30th November, 1991 amending the elegibility criteria for promotion; (ii) judgment of Hon'ble Supreme Court in Shambhu Singh Meena(supra) holding that notification dated 30th November, 1991 is prospective; (iii) directions issued by Single Bench at Principal Seat at Jodhpur in Smt.Prabha Tak vs. State of Raj. and (iv) directions of Rajasthan Civil Services Appellate Tribunal in Anil Chaplot vs. State of Rajasthan for bifurcating all the vacancies prior to amendment on 30th November, 1991 and after the amendment made in Rule on 30th November, 1991. 16. Mr.Virendra Lodha, the learned counsel appearing for Smt.Prabha Tak and Tara Chand Saharan contended that from the letters dated 20th September, 2007 and 25th February, 2008, which have been supplied by the State Government to appellants under the provisions of Right to Information Act, it is clear that there were total 34 vacancies for selection scale in Rajasthan Administrative Services for the year 1991-92. Twenty four posts for general 13 category, 6 posts for scheduled caste and 4 posts for scheduled tribe, whereas 43 persons have been selected for selection scale of RAS for the year 1991-92 i.e. 32 officers from general category, 8 persons from scheduled caste and 3 officers from scheduled tribe category. He contended that although there were 34 posts available for selection scale in the year 1991-92 but remaining 9 officers were appointed in the year 1991-92 because of the direction of the Tribunal or the High Court and whose cases have attained finality. 17. He also submitted that 11 persons were promoted from Selection Scale to Super Time Scale vide order dated 10th February, 1992 out of total 34 available posts for the year 1991- 92 in selection scale and result of two persons were kept in sealed cover. Therefore, it is clear that 13 posts became available for selection scale after amendment of Rule relating to criteria vide notification dated 30th November, 1991, wherein it was provided that for merit promotion 5 out of 7 outstanding/very good APARs will be considered. The review DPC took place on 3rd and 4th May, 2008, wherein 21 vacancies were filled as per old rule and 13 vacancies were filled as per 14 new rule. He, therefore, contended that there is no illegality in the order of the State Government relating to DPC dated 3rd and 4th May, 2008. The learned Additional Advocate General also referred order dated 10th February, 1992, whereby 9 general category officers and 2 reserved category officers were promoted in Super Time Scale of RAS from selection scale. 18. He also referred the minutes of the Departmental Promotion Committee held on 13th December, 1991 for promotions of selection scale RAS officers to the Super Time Scale of the services against the vacancies of the year 1991-92 to satisfy this Court that 11 persons of general category candidates and 2 persons from reserved category candidates were promoted in the Super Time Scale of RAS out of 13 recommended officers, 11 were promoted vide order dated 10th February, 1992 and result of DPC of 2 officers was kept in sealed cover. 19. Mr.Gopal Garg, the learned counsel appearing on behalf of petitioner Ajay Singh (respondent in all the appeals) first of all raised a preliminary objection in respect of appeal filed by Smt.Prabha Tak and Tara Chand Saharan on the ground that Smt.Prabha Tak has 15 already retired in June, 2008 and Shri Tara Chand Saharan has been appointed in the Board of Revenue. Therefore, there is no purpose now in hearing their appeals. 20. On merits he contended that Smt.Prabha Tak and Shri Tara Chand Saharan both were junior to petitioner in the seniority list dated 23rd February, 1996. Still they have been shown junior from the petitioner. Both were not impleaded party in the writ petition but they themselves moved an application under Order 1 Rule 10 CPC, which was allowed. He, therefore, contended that appeal of Smt.Prabha Tak and Shri Tara Chand Saharan is liable to be dismissed. 21. He contended that petitioner was selected against merit quota on the basis of 7 out of 7 consistently outstanding/very good APARs as required vide notification dated 11th April, 1979 against the vacancies of year 1991- 92 in selection scale of RAS vide order dated 23rd February, 1996. In provisional seniority list dated 1st April, 1998, the name of petitioner was shown against vacancies of 1991- 92 in merit quota. The State Government issued provisional seniority list dated 26th June, 2000 16 in the light of Ajit Singh-II's(supra) case decided by Supreme Court as well as notification dated 1st April, 1997 issued by the State Government whereby proviso was added below all proviso of Rule 33 of the Rajasthan Administrative Service Rules, 1954 relating to regaining of seniority rule by general category candidates. However, in the said list, the position of petitioner was changed and he was shown below the superseded promotees i.e. seniority promotees. He, therefore, filed a writ petition before this Court, which was allowed by Single Bench of this Court vide judgment 30th May, 2001 and it was directed that merit promotees will be kept above the seniority promotees and also reserved category promotees. The State Government and the reserve promotees both preferred special appeal before Division Bench, but the same was dismissed vide judgment dated 12th September, 2001. No SLP was preferred with regard to reserve promotees by the State against order of Division Bench and the same has attained finality. The State preferred SLP against the judgment of the Division Bench against general category candidates, which is pending in the Supreme Court but no stay has been passed on the operation of the judgment of the Division Bench 17 as well as the Single Bench. He, therefore, contended that his name should have been shown above the seniority promotees in pursuance of directions of the Division Bench dated 12th September, 2001. He also contended that in the order dated 23rd February, 1996 his name was shown at S.No.5 against merit quota of 1991-92, whereas now he has been assigned selection scale against the merit quota of 1992-93, which could not have been done after lapse of so many years and further that circular dated 30th November, 1991 has wrongly been interpreted by the State Government. 22. He contended that as per Rule 9, the vacancies are determined as on 1st April for ensuing period. Therefore, all the 34 posts of the year 1991-92 for the selection scale of RAS were determined on or before 1.4.1991 and same ought to have been filled as per old rule i.e. on the basis of 7 out of 7 outstanding or very good APARs and not as per amended rule dated 30th November, 1991, whereby criteria was changed and it was provided that merit quota will be considered on the basis of 5 out of 7 outstanding or very good APARs. 23. He also contended that no specific date 18 was given in the notification dated 30th November, 1991 as to when it will come into force. The said notification was published in the Rajasthan Gazette on 16th January, 1992. Therefore, the date of publication of notification in the gazette should have been treated as the date of coming into force of the new rule. In support of his submissions he referred to decisions in S.K.Shukla & Ors. vs. State of U.P. & Ors. (2006 (1) SCC 314). 24. He contended that in the case of M.M.Joshi the stand of the State Government before Tribunal was that notification dated 30th November, 1991 will be applicable on the posts determined as on 1.4.1991. Therefore, the State Government has now estopped from changing the said stand and bifurcating the posts of 1991-92 into two parts i.e. before 30th November, 1991 and after 30th November, 1991 when rule was amended. 25. He also contended that process in the present case started on 13th December, 1991 and once process is commenced, the rule which was applicable on the day, when process started, will be applied. He further argued that the decision of Hon'ble Apex Court in State of 19 Rajasthan vs. R.Dayal (supra) is not applicable. Similarly the judgment of Full Bench of this Court in Shanker Lal Verma vs. State (supra) is also not applicable. 26. We have considered the submissions of learned counsel for the parties and perused the relevant record. So far as submissions of respondents with regard to estoppel is concerned, it is mentioned that this is a matter of interpretation of notification dated 30.11.1991, therefore, in case any wrong submission was made earlier by State, the same will not be binding as there can not be any estoppel against statute. With regard to other submission that the rule applicable on the day when process started should be applied, it needs a clarification that it is not a case of selection through direct recruit, but it is a case of promotion, where rule applicable on the day when seat became available or vacant, will apply. So far as submissions regarding regaining of seniority etc. are concerned, the learned counsel for all the parties suggested and agreed that the arguments have already been heard in this regard in connected writ petition No.8104/2004 (Bajrang Lal Sharma vs. State of Raj.) and the same may be decided in that writ 20 petition. The said writ petition and other connected matters are also being decided by us today by separate judgment. 27. From the submissions of the learned counsel for the parties, the main questions emerge for our decision are: (i) When notification dated 30th November, 1991 came into force; (ii) Whether notification dated 30.11.1991 is prospective or not? and (iii) Whether 34 vacancies of selection scale of RAS of the Year 1991-92 will be filled as per old notification dated 11th April, 1979 or new rule amended vide notification dated 30th November, 1991. 28. So far as facts of the case are concerned, there is no dispute between both the parties that there were total 34 posts of selection scale for RAS in the year 1991-92, 24 posts were belonging to general category candidates, 6 posts for scheduled caste candidates and 4 posts for scheduled tribe candidates. As per minutes of the meeting of Departmental Promotion Committee held on 13th December, 1991 for promotion of selection scale RAS Officers to the Super Time Scale of the 21 service against vacancies of the year 1991-92, it is also clear that 14 officers were recommended for promotion to the Super Time Scale of Rajasthan Administrative Service, out of which 11 persons belonging to general category and 3 officers belonging to reserve category. The result of DPC in respect of Shri G.P.Nagar and Shri D.R.Meena was kept in