CW 598/02 //1// In the High Court of Judicature for Rajasthan Jaipur Bench ** 1- Civil Writ Petition No.598/2002 Dr. Ajay Kr Gupta & Dr. Shailesh Sharma Versus State & Ors. 2- Civil Writ Petition No.9437/2008 Dr. Ajay Kr Gupta & Dr. Shailesh Sharma Versus State & Ors. Date of Order ::: 29/07/09 Hon'ble Mr. Justice Ajay Rastogi Mr. Virendra Dangi, ) Mr. DP Srivastava & Mrs Nidhi Khandelwal), for petitioners Mr. SP Sharma ), Mr. KC Sharma, Mr. Vinod Goyal ) for Pvt respondents Mr. Lokendra Singh for Mr. IR Saini, AAG) for respondents State Mrs Bobby Dutt, for Mr. SN Kumawat, for respondents-PSC After filing of instant CWP-598/02, since final seniority of Dy. Director was published on 07/07/08, it was assailed by petitioners by way of latter CWP-9437/08, but the grounds in both the petitions are one & the same, hence at request, they are finally heard together for being disposed of by this order. Instant petitions have been filed jointly by two petitioners who are presently holding posts of Deputy Director (General) in substantive capacity on being promoted on the recommendations of DPC against quota of year 2000-01; but are basically aggrieved by year of selection 1993-94 having been assigned to respondents-5 to 7 (Dr. Rajesh Sharma, Dr. Rajesh Mann, & Dr. RP Nayak) while they were appointed through regular CW 598/02 //2// selection in the cadre of Assistant Director (Breeding) on the recommendation of RPSC and appointed in May/August, 1994; and so also by their consequential substantive promotion to the post of Deputy Director (Breeding) against year 1999-2000 & 2000-01 and with their consequential final seniority of Deputy Director as on 01/04/01 published on 07/07/2008, where petitioners are junior to the respondents. That apart, they have assailed validity of R.4(b) and so also R.37 of Rajasthan Animal Husbandry Service Rules, 1963 (“Rules, 1963”). Unfolded facts, in brief, being relevant for purposes of adjudication of controversy raised herein are that the posts of Assistant Director (General Section) & (Breeding Section) are categorised in separate Sections and included in Schedule appended to Rules, 1963; and incumbents who are appointed in their respective sections either General or Breading, as the case may be, are further considered for promotion in their respective sections on the post of Deputy Director and no inter-transfer is permissible under the Rules. Rajasthan Public Service Commission advertised Three vacancies of Assistant Director/ D.A.H.Os (General Section) on 23/08/94 (Ann.2) – CW 598/02 //3// in pursuance whereof, both the petitioners participated in process of selection and after their names were recommended by PSC in terms of R.20 of Rules, 1963; accordingly petitioner NO.1 was appointed vide order dt.25/03/95 (Ann.4) while petitioner NO.2 vide order dt.15/03/95 (Ann.3) – pursuant to which, both of them joined on 30/03/95 & 21/03/95 respectively. Post of Deputy Director (General) being next higher posts under Rules, 1963, has to be filled by promotion from amongst those who have five years' service/ experience and both were promoted on the recommendation of DPC against year 2000-01 and final seniority list of Deputy Director as on 01/04/01 was published on 07/07/08 (Ann.4) wherein name of petitioners are mentioned at S. No.9 & 10 while respondents-Officers at S.No.2, 3 & 7. As regards respondents-5 to 7, PSC advertised three posts of Assistant Director (Breeding Section) vide notification dt.23/07/93 – in pursuance whereof, all three respondents participated in process of selection and after selection, theirs names were recommended by PSC on 21/03/94 and were finally appointed vide orders dt.20/05/94 (respondent-5), 04/08/94 (respondent-6) (Ann.6 & 7) & 10/05/94 CW 598/02 //4// (respondent-7) – pursuant to which, they joined on 21/05/94, 06/08/94 & 10/05/94respectively. Despite Dr.RP Nayak (respondent-7) was offered appointment on 09/05/94 prior to respondents-5 & 6, but he being lower in order of merit/select list prepared by RPSC, their inter- se seniority was published by State Govt. in terms of R.27(3) of Rules; and in such circumstances, respondents-5 & 6 became senior to respondent-7 as regards inter se seniority in the cadre of Asstt. Director (breeding). It is relevant to mention that recommendations were delayed because of interim order passed by this Court on 18/02/94 in CWP- 5638/90 which came to be vacated on 08/03/94 directing respondent-State to declare result and make appointments subject to the decision in CWP- 5638/90 and PSC sent select list in order of merit vide letter dt.21/03/94 (Ann.R.3). One more CWP-1043/94 (Dr. Rama Kant Sharma Vs. State) wherein also there was a stay order for keeping one post vacant, was disposed of vide order dt. 03/05/94 (Ann.R.4) because of aforesaid reason, select list was delayed having no fault of the selected applicants (private respondents herein). As there were two vacancies available in Year 1999-2000, respondents-5 & 6 were promoted CW 598/02 //5// as Dy. Director (breeding) on the recommendation of DPC against quota of Year 1999-2000 vide order dt.30/06/01 (Ann.15) and as regards respondent-7, he was promoted as Dy. Director (Breeding) against quota of Year 2000-01 vide order dt.15/06/01 and petitioners were also promoted as Dy. Director (General) against vacancy year 2000-01 vide order dt.10/07/01 (Ann.16) are being reflected from seniority list as on 01/04/2001 duly published on 07/07/08 (Ann.4-CWP-9437/08). Counsel for petitioners submits that seniority list of Assistant Directors was circulated by respondents earlier on 13/10/98 (Ann.8) duly reiterated in subsequent list dt.01/04/2000 (Ann.11), but despite respondents-5 to 7 having joined service on being appointed in May & August, 1994, their year of selection through PSC has been assigned of Year 1993-94 while petitioners having joined service in March, 1995 on the post of Assistant Director, they were shown to have been selected through RPSC in Year 1995 and not of Year 1994-95; whereas as per R.2 (k) of Rules, 1963, “year” means financial year – on the basis whereof, according to petitioners, basic error which respondents committed is of having assigned year of selection through RPSC qua petitioners; despite the fact that CW 598/02 //6// petitioners and respondents-5-7 joined as Asstt. Director in financial year 1994-95 and in protest representation was made by petitioner raising objections but of no heed; and this being an apparent error still in the seniority list dt. 04/04/01 (Ann.1) showing respondents of being selected through RPSC in Year 1994 as Asstt. Director while petitioners being selected through RPSC in year 1995, which according to them is in clear violation of Rules, 1963. Counsel further submits that there were no vacancies available as on 01/04/99 in the cadre of Dy. Director (Breeding) against Year- 1999-2000, and since posts were abolished as is evident from order dt.09/09/98 (Ann.18) – in view thereof, respondent-State was not justified in determining vacancies of Dy. Director (Breeding) against Year 1999-2000; that apart, respondent-5 & 6 were not having minimum five year's experience as on 01/04/99 from the date of their joining service in May/ August, 1994; and no relaxation in experience was granted to them by authority in exercise of R.37 and on any count, recommendation made by DPC promoting respondents- 5, 6 & 7 to the post of Dy. Director (Breeding) against Year 1999-2000 & 2000-2001 vide order dt. 30/06/01 (Ann.15) & 05/08/08 are in clear CW 598/02 //7// violation of R.23-A of Rules, 1963. Counsel further submits that whenever power of relaxation U/r 37 of Rules, 1963 has been exercised, a specific order has to be passed as is evident from document (Ann.39) placed alongwith rejoinder; thus in absence of any order granting relaxation in experience, respondents were not eligible while considering for promotion against Year 1999-2000 for the post of Dy. Director (Breeding) and thus action was arbitrary and in violation of Rules, 1963. Counsel further submits that petitioners were working on ad hoc basis as Deputy Director vide order dt.22/09/98 (Ann.20) and substantive vacancies were available in the cadre of Dy. Director in Year 1999-2000; yet relaxation in experience has not been granted by State to make petitioner's eligible and thus, very action of respondents is not only arbitrary but also in clear violation of Art.14 of the Constitution. In support of submissions (supra), Counsel places reliance upon decisions in State of Haryana Vs. Balwant Singh (1996(4) Supreme Today 696=1996(5) JT (SC) p.633) and RS Garg Vs. State of UP (AIR 2006 SC 2912= 2006(6) SCC 430). Lastly a feeble attempt was made on behalf of petitioners for having assailed CW 598/02 //8// validity of R.4(2)(b), R.27(3) & R.37 of Rules, 1963 on the premises that by virtue of aforesaid provisions, arbitrary/unbridled powers are vested in the authority for keeping vacancies in abeyance or to exercise powers of relaxation for extraneous reasons and that being so are violative of Art.14 of the Constitution. Respondents State and so also private respondents have filed their separate reply to the writ petitions. Respondents-1 to 3 (State) in its reply inter-alia averred that in earlier writ petition, despite respondents-5 to 7 being finally selected a year before selection of petitioners in their respective sections but because of interim order passed by this Court in two pending writ petitions (supra), list of selected candidates could not have been sent by RPSC to administrative department of the State but any how, after stay order being vacated, select list was sent on 21/03/94 and since the process took some time U/r 22, they all were appointed in May/August, 1994 on the post of Asstt. Director (Breeding) and respondents State considered to protect their rights so that no prejudice may cause to them; and accordingly, they were considered for being selected against Year 1993-94 since whole of the process of their CW 598/02 //9// selection was finalised on 21/03/94 during financial year 1993-94; and since there were two vacancies of Dy. Director (Breeding) in Year 1999-2000 having become available on account of retirement of officers Dr.DN Dwivedi & Dr.SS Kalla respectively in Jan.' 1998 & February, 2000 and in terms of R.9 of Rules, 1963, actual number of vacancies having occurred during financial year, can always be determined as on 1st April of the Year and in this view of matter, both respondents-5 & 6 being selected in Year 1993-94 completed minimum five years' experience and being eligible were rightly considered for promotion to the post of Dy. Director in Year 1999-2000 and respondent-7 against Year 2000-01; while at the same time, petitioner since were appointed as Asstt. Director in March, 1995, accordingly having completed five years experience only on 01/04/2000, were considered against vacancy of Year 2000-01 and promoted on recommendation of DPC on the post of Dy. Director (Breeding) vide order dt.10/07/2001. It has also been averred in the reply that vide order dt.09/09/98 (Ann.18) posts of Dy. Director (breeding) were not abolished but the fact is that its nomenclature & head quarter was changed by designating as Dy. Director (Goat CW 598/02 //10// Development), Dy. Director (Monitoring) and from Dy.Director Key Village Scheme, Jaipur to Jalore, referred to in para 12 of the reply. In the reply it has further been averred that not only in breeding section, on the same pattern, in General Section also, post of Deputy Director was hitherto known as Deputy Director (Range) & (Monitoring) and that apart, since all the three private respondents were promoted either against year 1999-2000 & 2000-01, as they were senior to the petitioners by virtue of longer officiation in feeder cadre post of Asstt. Director in combined inter-se seniority of Dy. Directors as on 01/04/2001 declared on 07/07/08 respondent-5-7 were placed above petitioners, which is in consonance with scheme of Rules, 1963. Private respondents (5-7) have reiterated the averments made by respondents State in their reply. However, Counsel for private respondents apart from merits, has raised preliminary objections that year of selection was initially assigned to respondents vide order dt.30/10/98 (Ann.8) which was reiterated by circulating seniority in Year 2001, which does not give them a fresh cause of action and questioning year of selection assigned by RPSC at a belated stage CW 598/02 //11// after five years, itself dis-entitles petitioners from seeking discretionary equitable relief under Art.226 of the Constitution. Counsel for private respondents further submits that there are two separate sections (General & breeding); and upto the post of Dy. Director, posts are not inter- transferable; as such irrespective of year of selection, petitioners cannot be said to be aggrieved atleast with regard to promotion made in their respective sections since they were not eligible in Breeding section– in absence whereof, their right cannot be said to have been prejudiced. In support, Counsel placed reliance upon decision of Apex Court in State of Punjab Vs. Balkaran Singh (2006(12) SCC 709) while Government Counsel placed reliance on the decision in Balwant S.Barwal Vs. State of Haryana (2008(7) SCC 728). I have considered rival contentions of Counsel for the parties and with their assistance examined material on record. Facts which remain un-controverted are that all the three respondents-5 to 7 were selected through RPSC in pursuance of advertisement dt.23/07/93 and their select list was sent by PSC to administrative department on 21/03/94 and accordingly appointed as Assistant Directors (Breeding) in May/August, CW 598/02 //12// 1994 and joined respectively on 21/05/94, 06/08/94 & 10/05/94, much prior to petitioners. As regards petitioners, they too were appointed as Assistant Director/DAHOs (General Section) which is a separate section under Rules, 1963 in pursuance of advertisement issued by RPSC on 23/08/94; and almost a year after vacancies of Assistant Director (Breeding) were advertised and after their selection, were appointed in March, 1995 (Ann.3 & 4) and joined on 30/03/95 & 21/03/95 respectively. Thus, from the date of appointment & their joining, respondents have much longer officiation of service in their respective cadre of Assistant Director vis-a-vis petitioners. Foremost contention made by Counsel for petitioners is that there was no vacancy in the cadre of Dy. Director (Breeding) in Year 1999- 2000 while at the same time, they were not eligible lacking minimum experience prescribed under Rules, 1963 and power of relaxation U/r 37 was not exercised by the authority issuing a specific order in their case. Before examining the submission (supra), this Court put a specific question to Counsel for petitioners that if respondents-5 & 6 having been recommended for promotion to the post of Dy. CW 598/02 //13// Director (Breeding) against quota of Year 1999- 2000, and in case his submission is accepted, and respondents are promoted against vacancy year 2000-01, against which petitioner being promoted, as to who amongst them rank senior. Counsel for petitioners frankly submits that because of their longer officiation, respondents will rank senior in the cadre of Dy. Director even if they are promoted against vacancy of year 2000-01. This court also finds substance for the reason that if they were appointed and joined the service in May /August, 1994 as Assistant Director (Breeding), while petitioner joined service in March, 1995 as Assistant Director (General) – as regards assigning their inter-se seniority, even at the level of Assistant Director and if at all being promoted as alleged & taken to be of year 2000- 01, respondents will certainly rank senior to petitioners in the cadre of Dy. Director on the basis of their longer officiation on feeder post of their cadre. In the light whereof, very thrust of submission of Counsel for petitioners that respondents were not eligible as having not completed minimum five years' experience or powers of relaxation has not been exercised in their favour, in fact looses its effect for the CW 598/02 //14// reason that irrespective of the year of promotion assigned to respondents-5 to 7 either of 1999- 2000 or 2000-01, they are indeed senior even if being promoted against Year 2000-01 in the cadre of Dy. Director. This Court cannot loose sight of the fact that selection in regard to respondents was initiated atleast a year before selection process of petitioners was initiated but appointment could not be made because of interim order passed by this Court that would certainly cause no prejudice to the incumbent and this Court finds support from a decision of Apex Court in Balwant Narwal Vs. State of Haryana (supra) ad infra: “9. There is no dispute about these general principles. But the question here is in regard to seniority of the respondents 4 to 16 selected on 1.10.1993 against certain vacancies of 1992-93 who were not appointed due to litigation, and those who were selected against subsequent vacancies. All others from the same merit list declared on 1.10.1993 were appointed on 2.6.1994. Considering a similar situation, this Court, in Surender Narayan vs. State of Bihar - 1998(5) SCC 246, held that candidates who were selected against earlier vacancies but who could not be appointed along with others of the same batch due to certain technical difficulties, when appointed subsequently, will have to be placed above those who were appointed against subsequent vacancies.” That apart, for purposes of relaxation of power, in terms of proviso to R.23-A(5), if number of CW 598/02 //15// persons having five years' service are not available, the Committee (DPC) to the extent of 1/3rd period of service or experience can grant relaxation and That being so, even if submissions made on behalf of petitioners is taken on its face value, appointment of respondents in the cadre of Dy. Director cannot be said to be void ab initio or illegal warranting interference. As regards submission made by Counsel for petitioners that there was no vacancy available in the cadre of Dy. Director (Breeding) against Year 1999-2000, suffice it to say that order dt.09/09/98 (Ann.18) apart from abolition of posts, it is a composite order as per which, while abolishing certain posts, posts were created with different nomenclature and respondent-State inpara 12 of its reply has clearly averred that not even in breeding but also in General section, their nomenclature was got changed – taking note whereof, in the opinion of this Court, it cannot be said that there was no vacancy available in Year 1999-2000 in the cadre of Dy. Director (breeding). That apart, two vacancies had fallen and being available on account of officers having retired namely Dr. DN Dwivedi & Dr SS Kalla respectively in January, 1998 & Feb. 2000 being determined U/r 9 of Rules, CW 598/02 //16// 1963 for promotion in the cadre of Dy. Director against year 1999-2000. As regards submission made by Counsel for petitioners that there were vacancies available in the cadre of Dy. Director (General) in Year 1998-99 but respondents have failed to exercise power of relaxation, suffice it to say that omnibus amendment was made vide notification dt. 18/02/98, which also took note of Rules, 1963 as per which, relaxation to the extent of 1/3rd period of prescribed service or experience can be granted. Indisputably, in Year 1998-99 as on 01/04/98, petitioners had not rendered 2/3rd of service/experience which makes them eligible for relaxation in service/experience. That apart, it is always for employer to consider for grant of relaxation under Scheme of Rules, 1963 and it is not the case of petitioners that against Year 1998-99 or any latter year persons being similarly situated like them were granted benefit of relaxation – in absence whereof, action of respondents cannot be said to be arbitrary in any manner, which may violate Scheme of Rules, 1963. Since service disputes are ordinarily to be assailed before the Tribunal under Rajasthan Service Appellate Tribunal, Act, 1976 where vires cannot be examined and to circumvent remedy of CW 598/02 //17// appeal, petitioner has made a feeble attempt while assailing vires of Rules, 1963 in instant petition but failed to justify as to how provisions of R.4(b), R.27 & R.37 of Rules, 1963 are ultra vires to the Constitution and that apart, these provisions are omnibus Rules being available in all services of the State which cannot be said to be arbitrary or in violation of Art.14 of the Constitution of India. As regards judgment on which Counsel for petitioners placed reliance in RS Garg Vs. State of UP (supra) it was a case where Apex Court observed that wherever eligibility criteria has been provided under service Rules in regard to promotion to higher posts, the same must be strictly followed and complied with and departure/deviation therefrom renders their action to be void. There cannot be any quarrel on the principles laid down in afore-cited case but is of no assistance to petitioners. Consequently, both the writ petitions fail and are hereby dismissed. No costs. (Ajay Rastogi), J. K.Khatri/p.17/ 598CW02(2)Srv29JulRsr.doc