IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR O R D E R S.B. Civil W r it Pet it ion No.45 6 9 of 2 0 0 3 . Pratap Singh and Another VERSUS The State of Rajasthan and Others S.B. Civil W r it Pet it ion No.43 5 0 of 2 0 0 3 . Mahendra Kumar Pancholi and Others VERSUS The State of Rajasthan and Others Date of Order : : : 03/ 09/ 2008. Hon'ble Mr. Prem Shanker Asopa, J. Mr. Prahlad Singh } Mr. R.K. Goyal } and Mr. Mahesh Gupta, Counsel for the Petitioners Mr. M.S. Raghava, A.A.G. with Mr. Arvind Pareek, Counsel for the Respondents * * * * Heard learned counsel for the parties. By these petitions, the petitioners have mainly prayed that the total number of vacancies of the post of Assistant Engineer (Civil) in the P.W.D. Department for the period after 1st April, 1975 and apportion the same year-wise maintaining quota of 50% for direct recruitment and 50% by promotion be made as per the Division Bench's judgment in the case of Govind Narain Goyal Vs. The State of Rajasthan and Other, passed in D.B. Civil Writ Petition No.832 of 1986, decided on 16.04.1991. The learned counsel for the petitioners submits that although the said judgment is of the Irrigation Department, but the same has been made applicable in the P.W.D. Department by this Court in the cases of A.K. Gupta Vs. State & Others, (S.B. C.W.P. No.4587/ 1995) and Sita Ram Sharma Vs. State & Others (S.B. C.W.P. No.5127/ 1992), decided on 24.07.1996 and the judgment of Govind Narain Goyal's (Supra) case has attained finality. The petitioner has also prayed for taking into consideration the actual number of posts filled-in by promotion and actual appointments made by direct recruitment, the detail of which has been given by the petitioners in the form of a Chart, produced before the Court. The relevant portion of the aforesaid judgment i.e. of Govind Narain Goyal (Supra) is as under : - “We, therefore, deem it proper to give the following directions and do hereby direct as under : - (1) The respondents would take into account the total number of vacancies for the period after 1st April, 1975 and apportion the same year-wise maintaining the quota of 50% for direct recruits and 50% for promotion in the light of the observations made here-in-above. (2) In doing so, if it is found that the vacancies against which any appointment had been made by direct recruitment and such direct recruitment was not availed by the concerned incumbent and he preferred to avail the appointment by promotion, such vacancy will not be counted towards the quota of direct recruitment. (3) As a result of the exercise, as aforesaid, if it is found that appointments had been made in any year in excess of the prescribed promotion quota, the seniority of such promotees shall be pushed down to the extent it is found necessary to maintain the prescribed quota and the seniority list dated 13th February, 1987 in respect of promotees and direct recruits may be re-drawn accordingly, and as a result thereof if the petitioner and other similarly situated direct recruits Assistant Engineers are found to be entitled to any consequential benefits, such consequential benefits may also be granted to them, including the seniority, promotion etc., to the next higher post of Executive Engineer. (4) The directions as aforesaid shall be carried out as early as possible, but in no case later than a period of three months from today. The writ petition is allowed as indicated above with no order as to costs”. The submission of Mr. M.S. Raghava, A.A.G. representing the State and the Department is that they have acted as per the direction given in the case of Govind Narain Goyal's (supra) while determining the vacancies from 1st April, 1975 onwards and determining the same year-wise for maintaining the quota of 50% by direct recruits and 50% by promotion to the post of Assistant Engineer (Civil) in P.W.D. Department. The learned counsel for the petitioners submits that a perusal of the Chart would reveal that the statement taken by the Department requires reconsideration, as would be evident from the Chart, which is as under : - Statement showing excess recruitment in RPSC 1991-92 as per tabulation of datas annexure of writ 4569 of 2003. S. No. Year Determination of Vacancies Total Recruitment done Total Remarks Direct Recruitment Promotion Direct Promotion Degree Diploma Degree Diploma 1 2 3 4 5 6 7 8 9 10 11 12 B/F upto 81-82 as per reported by Rajasthan Government in Supreme Court in SLP No. : 16829-30 Dt. 1992 1 Upto 81-82 434 216 109 109 218 174 59 72 131 Annexure No. 41 Page 53 2 82-83 24 12 6 6 12 RPSC82 55 40 10 50 Annexure A&B& No. 5 3 83-84 46 22 12 12 24 RPSC 84 8 8 1 19 Annexure A&B& No. 6 & 7 4 84-85 4 4 1 2 3 DGS 2 1 2 3 Annexure A&B & No.5. 5 85-86 - - - - - - - - - - 6 86-87 49 24 40% 10 60% 15 25 DGS 2 8 8 16 Annexure A&B& No.8 7 87-88 77 38 15 24 39 - 10 10 20 Annexure A&B & No.9 8 88-89 76 38 16 22 38 DGS 4 14 19 33 Annexure A&B & No.10 9 89-90 37 18 8 11 19 DGS 1 8 10 18 Annexure No.11 10 90-91 - - - - - DGS 4 - - - Annexure No.5 11 91-92 15 7 3 5 8 RPSC 91-92 DGS 175+3 3 5 8 Annexure A&B & No.. Total 328 163 71 97 168 254 167 167 As per S.No.1 above there was no shortfall or backlog of direct recruitment vacancies in 1981 whereas 82-83 to 91-92, about 254 nos. direct recruitments were done but incorhence there DR only 167 nos. promotions were done as per annexures of promotion orders of writ hence less promotions 87 nos. then DR. Statement showing actual appointments made by DR & promotion for posts AEN civil from 01.04.1975 to 31.03.1992 by state PWD. In performa as per direction DB 832/ 86. S. No . Year of Vacancy No. of direct recruitment by RPSC/DGS No. of direct recruitments availed promotion after joining DR Counted for seniority list as per DB No. of promotion recruitment including DR availed promotion No. of Vacancy counted in Seniority list in promotion quota Remarks Ref. Of datas taken by annexure of writ no. 4569/2003 Deg. Dip. Tota l 1 2 3 5 6 7 8 9 10 11 Part - A 1 75 RPSC 75 24 -2 22 DR 2+9 11 22 22 Sch. A&B Annexure 24 2 77 RPSC 77 20 2 18 DR 2+6 16 16 16 Sch. A&B Annexure 25-26 3 78 - - - 5 4 9 9 Sch. A&B Annexure 27-28- 29 4 79 - - - DR 12+1 2 23 47 47 Sch. A&B Annexure 31-32- 33 5 80 RPSC 80 82 -18 64 DR 6+2 8 16 16 Sch. A&B Annexure 34-35 6 81-82 - - - 14 26 40 40 Sch. A&B Annexure 36-37 7 82-83 RPSC 82 63 -1 62 DR 1+39 10 50 50 Sch. A&B Annexure 39-40 Total -A 189-20 NJ Joined 169 -23 166 102 98 200 200 Part -B 8 83-84 - - - 8 11 19 19 Sch. A&B Annexure 6-7 9 84-85 DGS 2 - 2 1 2 3 3 Sch. A&B Annexure 5 10 86-87 DGS 2 - 2 6 10 16 16 Sch. A&B Annexure 8 11 87-88 - - -1 10 10 20 20 Sch. A&B Annexure 9 12 88-89 DGS 4 - 4 14 19 33 33 Sch. A&B Annexure 10 13 89-90 DGS 4 - 1 8 10 18 18 Sch. A&B Annexure 11 14 90-91 DGS 4 - 4 - - - - Sch. A&B Annexure 5 15 91-92 RPSC 91- 92 + DGS 178 - 178 3 5 8 8 Sch. A&B Annexure 5 Total b 191 - 191 50 67 117 117 G. Total 169 + 1991 = 360 - 357 152 165 317 317 43 Nos. less promotions were done before RPSC 91-92 than DR. Statement of DR & promotion recruitment of AEN civil shown in seniority list by state PWD w.e.f. 01.04.1975 to 31.03.1992 in compliance of DB 832/ 86. S.No. Year DR. recruitment mentioned Recruitment by promotion mentioned Remarks Seniority List 04.02.1992 Sen. List 05- 02.1998 Sen. List 04.02.1992 Sen. List 05.02.1998 1 2 3 4 5 6 7 1 75 22 - -21 - 2 77 18 - 14 - 3 78 - - 11 - 4 79 - - 46 2 5 80 48 5 17 1 6 81-82 - - 39 17 7 82-83 47 39 33 29 8 83-84 6 4 24 14 9 84-85 - 1 3 12 10 86-87 3 2 24 12 11 87-88 - - - 23 12 88-89 - 4 - 21 13 89-90 - 1 - 8 14 90-91 - 4 - - 15 91-92 - 157 - 3 Total 144 217 232 142 Vast difference in figures of both sen. List in each year which should be identical being compliance of same court case. NOTE : As per annexure 11 of writ 81 nos. JEN (Civil) upgraded posts AEN civil upto 28- 02-1989 which further continued but in vacancy determination and seniority lists (04.02.1992 or 05.02.1998) these posts are not clear how considered?. Mr. M.S. Raghava, A.A.G. for the respondents has disputed the correctness of the said Chart also. I am also of the view that there may be dispute with regard to the creation/ guidelines/ vacancies on account of shifting of the quota from the period 1st April, 1975 onwards, therefore, I think it proper that the respondents be directed to reconsider the same in the light of the judgment and the settled position of the law of determination of vacancies in respect of which the circulars have been issued by the Government. It would also be appropriate for the petitioners to substantiate their aforesaid submissions by raising the specific issue for which 15-days time is granted to them. Accordingly, the writ petition is partly allowed so far as it relates to determination of vacancies of the post of Assistant Engineer (Civil) from 1st April, 1975 onwards and the respondents are further directed to decide the said representation within two months from today by an speaking order and act accordingly. (Prem Shanker Asopa) J. ashok/