1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- SPL. APPL. WRIT No. 931 of 1999 BHERU LAL TELI V/S RAJ.CIVIL SERVICES APPLT.TRIBUNAL Mr. RK SONI for Mr. IR CHOUDHARY, for the appellant / petitioner Mr. DLR VYAS & Mr. BM BOHRA, for the respondent Date of Order : 2.4.2008 HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI SANGEET LODHA,J. ORDER ----- This appeal has been filed by the appellant, who was a private respondent before the learned Single Judge, against the judgment of the learned Single Judge dt. 28.7.1997 allowing the writ petition, and thereby setting aside the order of the learned Tribunal dt. 1.2.1988. The necessary facts are, that the writ petitioner and the private respondent appellant were/are all class IV employees working under Collectorate. Then, appointments were to be made for the post of L.D.C., and for that purpose to fill the post, reserved for appointment by promotion from Class-IV employees, it is alleged, that a D.P.C. met, who selected the writ petitioner on the basis of merit, and was accordingly promoted. This promotion 2 order was challenged by the present appellant by filing appeal before the Tribunal, and the learned Tribunal by the order impugned in the writ petition allowed the appeal, and quashed the appointment of the writ petitioner, holding interalia, that the criteria for promotion is seniority cum merit alone, and therefore, while setting aside the promotion of the writ petitioner, it was directed that the respondent no.1 therein, the State Government, shall fill the vacancy of L.D.C. required to be filled in by promotion from amongst Class IV employees in accordance with the Rules, and before that it was also considered, that since there were other persons senior to the appellant, it was left to be considered by the concerned authority to consider the claim of the appellant in accordance with law. It is against this order that the writ petition was filed. The learned Single Judge by the impugned order, by relying upon the provisions of Rule 26D(4) of the Rajasthan Subordinate Offices Ministerial Staff Rules, 1957 held, that the provisions of sub-rule (5) thereof is not applicable in the present case, as the combined reading of sub-rule (4) and (5) makes it clear, that promotion from the post of Class IV to the post of L.D.C., which is lowest post, has to be made on the basis of merit, and on the basis of seniority-cum-merit, on the proportion of 50:50. The provision of sub-rule (4) and (5) of Rule 26D, 3 have been reproduced by the learned Single Judge in the impugned order, and therefore, we need not encumber by again reproducing them. In our view, sub-rule (4) is the general provision, providing for the criteria for selection being merit and seniority cum merit in the proportion of 50:50, in case of promotion in the regular line of promotion from the post/posts not included in service to the lowest post, or category of post in the Service, but then sub-rule (5) makes a specific provision with regard to the promotions to be made on all posts in subordinate services, and in the Ministerial Services, by providing, that such promotion shall be made strictly on the basis of seniority cum merit. It clearly provides that “subject to the provisions of sub- rule (7) selection for promotion from the lowest post or category of post in the State Service to the next higher post or category of post in the State Service and for all posts in the Subordinate Services and in the Ministerial Services shall be made strictly on the basis of seniority- cum-merit.....” In that view of the matter when it has been specifically provided for making appointment by promotion in all the Ministerial Services to be made strictly on the basis of seniority cum merit, obviously the provisions of Sub-rule (4), which is a general provision, could not be 4 said to be applicable. In view of the above, we do not find ourselves in agreement with the conclusions arrived at by the learned Single Judge. Resultantly, the appeal is allowed. In view of the above, the judgment of the learned Single Judge is set aside, and that of the learned Tribunal is restored. The parties shall bear their own costs. ( SANGEET LODHA ),J. ( N P GUPTA ),J. /Sushil/