1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR (1) D.B. CIVIL WRIT PETITION NO.7774/2009 Om Prakash Harsh vs. The State of Rajasthan (2) D.B. CIVIL SPECIAL APPEAL NO.612/2009 The State of Rajasthan vs. Om Prakash Harsh Date of Order: 5th February, 2010 HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN HON'BLE MR. JUSTICE RAGHUVENDRA S. RATHORE Reportable Mr. R.C. Joshi & Mrs. Namita Parihar, for the petitioner. Mr. S.N. Kumawat, Addl. Advocate General for the State. By the Court: (Per Rathore, J.) While the learned Division Bench of this Court was hearing the special appeals arising out of the order dated 09.07.2009 passed by the learned Single Judge in respect to promotion of R.A.S. Officers, it was suggested by the learned counsels for the parties that since the Division Bench is hearing the appeals against the interim orders, the writ petitions itself be heard and decided by it. As suggested and agreed by the counsels, a learned Division Bench of this Court, on 20.10.2009, directed the registry to list all such writ petitions and special appeals (SAW No.618/2009) for final disposal. Thereafter, Hon'ble the Chief Justice, vide his order dated 17.12.2009, directed that hearing of the matters be done by this Court. Hence, the present writ petition is before us. 2. Writ petition (No.7774/2009) is directed against the Notifications dated 28.12.2002 (Ex.16) and 25.04.2008 (Ex.17). Further, the petitioner has challenged the orders dated 2 12.05.2008 (Ex.18), 12.05.2008 (Ex.19), 24.06.2008 (Ex.23) and 15.06.2009 (Ex.25A). Therefore, the petitioner has prayed that the impugned notifications be struck down and the aforesaid orders be quashed and set aside. It has also been prayed that the respondent State be directed to prepare a seniority list of R.A.S. officers in selection scale and supertime scale as per judgments passed by the High Court on 02.02.2000 (S.B. Civil Writ Petition No.3627/1999), 16.03.1999 (D.B. Civil Review Petition No.8/1999), 19.04.2001 (D.B. Civil Misc. Application No.63/2000), 30.05.2001 (S.B. Civil Writ Petition No.2968/2000) and 12.09.2001 (D.B. Civil Special Appeal (W) No.560/2001). Further, it has been prayed by the petitioner that the respondent State be directed to treat him as promotee in selection scale of R.A.S. against the vacancies of the year 1991-92. 3. The special appeal (612/2009) has been filed against the order dated 09.07.2007 passed by the learned Single Judge in S.B. Civil Writ Petition No.7774/2009, Om Prakash Harsh vs. State of Rajasthan, whereby the operation of seniority lists dated 24.06.2008 and 15.06.2009 had been stayed. 4. The brief facts of the case are that the petitioner was appointed in Junior Scale of Rajasthan Administrative Service on the recommendations of the Rajasthan Public Service Commission w.e.f. 04.12.1980 and confirmed in the State Service w.e.f. 04.02.1984. The petitioner was given regular promotion in Senior Scale w.e.f. 21.04.1988. 3 5. In compliance of the order of the Hon'ble Supreme Court, review D.P.C. was held for promotion to selection scale and the petitioner was promoted against the years 1993-94 on the basis of merit and placed at serial No.12 vide order dated 23.02.1996 (Ex.1). The petitioner had then challenged the promotion of Shri S.D. Sharma before Service Appellate Tribunal whose name appeared at serial No.12 against the merit quota for the year 1991-92. The said appeal was decided by judgment dated 09.09.1997 and the State Government was directed to promote the petitioner in place of Shri S.D. Sharma, against the years 1991-92 (Ex.2). 6. Consequently, a review D.P.C. was held and the petitioner was promoted in selection scale of R.A.S. against the year of 1991-92, vide order dated 26.03.1998 (Ex.3). A seniority list was published on 15.05.1998 and the name of the petitioner appeared at serial No.36 in the selection scale (Ex.4), below Shri K. K. Singhal. Meanwhile, Shri Kewal Kumar Gupta and others challenged the aforesaid judgment of the learned Tribunal passed on 09.09.1997, by way of filing a writ Petition (No.3627/1999) which came to be dismissed on 02.02.2000 (Ex.5). An appeal filed by Smt. Pramila Surana before the learned Division Bench had been allowed but the petitioner was not impleaded as a party in it. Therefore, the petitioner moved a Review Petition before the learned Division Bench which came to 4 be decided on 16.03.1999 holding that the petitioner will not be affected by the judgment passed by it in favour of Smt. Pramila Surana (Ex.6). Subsequently, the State Government moved an application for clarification and the same came to be dismissed on 19.04.2001 and the learned Division Bench reiterated its earlier order (Ex.7). 7. The respondent State had then published a seniority list on 26.06.2000, wherein though the petitioner was treated as promotee of the year 1991-92 but his seniority was not placed in accordance to law as laid down by the Apex Court in the case of Ajit Singh Juneja II, (AIR 1999 SC 1189). Thereafter, a writ petition (2968/2000) was filed by the petitioner and others which was allowed on 30.05.2001 and the seniority list issued on 26.06.2000 was set aside (Ex.8). Being aggrieved of the said order, the respondent State preferred an appeal before the learned Division Bench (560/2001) which came to be dismissed on 12.09.2001 (Ex.9). It is to be noted that thereafter no Special Leave to Appeal before the Apex Court was preferred by the State Government against the present petitioner (D.B. Civil Special Appeal No.611/2001). The respondent State has chosen to file Special Leave Petition only against the judgment passed by the learned Division Bench (No.560/2001). Hence, the judgment in case of the petitioner had attained finality. 8. Another provisional seniority list was published by the respondent State on 27.11.2003, wherein the name of the petitioner was shown at serial No.37 against the year 1991-92 5 (Ex.10). While preparing the said seniority list, the judgment passed by the learned Single Judge on 30.05.2001 (S.B. Civil Writ Petition No.2968/2000) as well as the judgment dated 12.09.2001 (Ex.9) passed by the learned Division Bench was not at all looked into and the name of the petitioner was kept below the candidates of SC/ST. In other words, the benefit of “Regaining” was not given to the petitioner as directed in the aforesaid judgments. The petitioner then filed objection on 18.12.2003 (Ex.11). However, the said provisional list has not been finalised so far. 9. During the intervening period, Smt. Prabha Tak had filed an appeal before the learned Tribunal (No.2822/1999) in which the petitioner was subsequently arrayed as respondent in the year 2002. The said appeal is still pending before the learned Tribunal. She had filed a writ petition before the High Court at Jodhpur (5392/2003), wherein also the petitioner was not impleaded as a party at the initial stage. The said writ petition came to be decided by the High Court at Jodhpur on 04.07.2007. Against it, the petitioner and Shri Vinod Ajmera preferred a special appeal (SAW No.836/2007) when the appeal was taken up on 05.02.2008, it was observed by the learned Division Bench that all the matters relating to Rajasthan Administrative Service may be heard together (Ex.13). 10. It is to be noted that in the meanwhile, the petitioner was given adhoc promotion to supertime scale of R.A.S., vide 6 order dated 29.11.2005, against the year 2001-02 (Ex.14). Since then, the petitioner is continuing in supertime scale and regular extension has been granted to him. 11. Thereafter, a meeting of DPC was held for supertime scale of the years 1992-93 to 1996-97 and an order was passed on 12.05.2008 (Ex.18). The name of the petitioner was not included and he was not treated as promotee of selection scale against the year 1991-92. Another meeting of DPC was held on the same day i.e. 12.05.2008 in respect of the selection scale for the years 1986-87 to 1996-97 and an order was passed (Ex.19). In this order, the name of the petitioner appeared against the year 1993-94, in place of 1991-92. Later, an integrated seniority list of supertime and selection scale was issued on 12.05.2008 itself showing the position as on 1st of April of the years 1993, 1994, 1995, 1996 and 1997. The name of the petitioner was shown from 01.04.1994 onwards (Ex.20). The petitioner then filed objection against the said list on 26.05.2008 (Ex.21). But the said objections were rejected on 24.06.2008 (Ex.22). A final integrated seniority list, as on 1st April of the aforesaid years, was issued on 24.06.2008 (Ex.23). The position of the petitioner was maintained as was given in the provisional list, despite of his strong objections to it. 12. An integrated provisional seniority list of selection/supertime scale from 01.04.1998 to 01.04.2008 was further issued on 02.07.2008 (Ex.24). The petitioner had again 7 filed detailed objections on 11.07.2008 (Ex.25). A final seniority list was issued by the respondent State on 15.06.2009 (Ex.25A). It is to be noted that before issuing the final seniority list, the objections filed by the petitioner were neither considered nor decided. Meanwhile, the State of Rajasthan had sent a letter on 06.07.1999 to the Union Public Service Commission for promotion to the post of I.A.S. treating the petitioner to be a promotee of the year 1991-92 and his name was included as being eligible on the basis of the seniority list, as on 01.04.1996 and 01.04.1998 (Ex.26). Thereafter, the petitioner was informed on 25.01.2008 (Ex.27) that his name is in the zone of consideration for promotion to I.A.S. A reply to the said letter was sent by the petitioner on the same day. 13. The petitioner was treated as promotee in selection scale of the year 1991-1992 and was considered eligible for promotion to I.A.S. against the year 1996 and 1998. But on account of the orders dated 12.05.2008 (Ex.18 & Ex.19) and final seniority lists dated 24.06.2008 (Ex.23) and 15.06.2009 (Ex.25A), the petitioner will never be considered for promotion of I.A.S. because regaining of seniority has not been given to him. The selection for I.A.S. has not been done since the year 1995. In these circumstances, the petitioner has sought the aforesaid reliefs for setting aside the impugned orders (Ex.18, Ex.19, Ex.23 and Ex.25A). 8 14. It would be relevant to mention here that Article 16 (4A) of the Constitution of India was amended w.e.f. 17.06.1995. The amended provision is as under:- “(4A)- Nothing in this Article shall prevent the State from making any provision for reservation (in matters of promotion, with consequential seniority, to any class) or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which in the opinion of the State are not adequately represented in the services under the State.” In consequence thereof, no rules have been framed by the State Government. According to the petitioner, the amendment is not applicable to him as he was promoted against the year 1991-92.” 15. The State Government had issued a notification on 01.04.1997 by which various service rules were amended (Ex.15). The relevant amendment is as follows:- “That if a candidate belonging to the Scheduled Caste/ Scheduled Tribe is promoted to an immediate higher post/grade against a reserved vacancy earlier than his senior general/O.B.C. candidate who is promoted later to the said immediate higher post/grade, the general/O.B.C. candidate will regain his seniority over such earlier promoted candidate of the Scheduled Caste/ Scheduled Tribe in the immediate higher post/grade.” Thereafter on 28.12.2002, the said rules were further amended (Ex.16). The relevant amendment is as under:- “The existing proviso to rule as mentioned in Column No.3 against each of the Service rules as mentioned in Column No. 2 shall be deemed to have been deleted w.e.f. 1.4.1997 and the following new proviso shall be deemed to have been inserted as the last 9 proviso to the respective rule as mentioned in Column No. 3 w.e.f. the date of issue of this notification: Provided that a candidate who has got the benefit of proviso inserted vide Notification No. F. 7 (I) DOP/A.II/96 dated 01.04.1997 on promotion to an immediate higher post shall not be reverted and his seniority shall remain uneffected. This proviso is subject to final decision of the Hon'ble Supreme Court of India in Writ Petition (Civil) No.234/2002 All India Equality Forum vs. Union of India and others.” Another notification was issued on 25.04.2008 making amendment in the rules and the proviso below the rule was deleted (Ex.17). The relevant amendment is as follows:- “The following existing proviso to rule as mentioned in Column No. 3 against each of the Service Rules, listed in Column No. 2 of the Schedule given below is hereby deleted, namely:- “Provided that a candidate who has got the benefit of proviso inserted vide Notification No.F. 7 (1) DOP/A-II/96 dated 01-04-1997 on promotion to an immediate higher post shall not be reverted and his seniority shall remain unaffected. This proviso is subject to final decision of the Hon'ble Supreme Court of India in Writ Petition (Civil) No.234/2002 All India Equality Forum V/s Union of India and Others.” In other words, the proviso added by the notification dated 28.12.2002 was deleted. Thus, the position which emerges out under the notification dated 25.04.2008 is the one which was existing prior to 01.04.1997 and the same has been maintained. The proviso regarding regaining of seniority has been withdrawn. The seniority list would be prepared as per the rules prevailing prior to 01.04.1997. 10 16. The case of the petitioner is that the impugned orders passed by the respondent State are contrary to law as well as to the various orders/judgments passed by competent courts of law. As a matter of fact, the respondent State has failed to comply with the various judgments passed by the courts. Further, it has been contended that the impugned notifications of the year 2002 and 2008 are contrary to the settled principles of service jurisprudence and respondent State is misinterpreting the relevant provisions in this regard. It has been submitted by the counsel for the petitioner that the respondent State had erred in not considering the petitioner in the I.A.S. cadre, by treating him the promotee of the year 1993-94, whereas the petitioner was given promotion against the year 1991-92 in place of Shri S.D. Sharma in compliance of the order of the Tribunal dated 09.09.1997, which was upheld by the High Court on 02.02.2000 in the writ petition filed by Kewal Kumar Gupta. 17. It has also been contended by the counsel for the petitioner that in the case of Hanuman Singh Bhati vs. State of Rajasthan & Ors. (Writ Petition No. 2968/2000), it was ordered by the High Court on 30.05.2001 (Ex.8) that the decision of the State Government to place the merit promotees below the seniority promotees and the provisional seniority prepared on it is violative of Articles 14 and 16 of the Constitution of India. Therefore, the Circular dated 11.02.2000 and seniority list dated 11 26.02.2000 were quashed and set aside and the respondent State was directed to prepare the provisional seniority list wherein they shall not place the merit promotees below the seniority promotees. The said judgment was affirmed by the learned Division Bench in Special Appeal filed by the State Government (560/2001), vide judgment dated 12.09.2001 (Ex.9). But the directions issued by the High Court have not been implemented till date and the State Government has proceeded on the basis of erroneous seniority list which deserves to be set aside. On the said premise, it was submitted that it was clear from the aforesaid judgments that the petitioner is promotee of the year 1991-92 against merit quota and his position in the seniority list is below Shri K.K. Singhal. 18. The respondent State, while publishing the provisional seniority list on 15.05.1998 (Ex.4), had not given petitioner the benefit of regaining seniority over SC/ST candidate. Therefore, the said seniority list was quashed and set aside by the Court on 30.05.2001 and the order was affirmed by the Division Bench on 12.09.2001 (Ex.8 & Ex.9). But again in the provisional seniority list dated 27.11.2003 (Ex.10), the directions of the Court in the aforesaid judgments were not complied with. Therefore, it was submitted that the provisional seniority list dated 27.11.2003 was also bad in law. The respondent State, without finalising the earlier provisional seniority list, issued a fresh provisional integrated seniority list of supertime and selection scale (Ex.20). The 12 petitioner had then submitted objections on 26.05.2008 stating that the said list was contrary to the provisions of the Constitution and in contravention of the judgments passed by the High Court (Ex.8 & Ex.9). Consequently, the petitioner had been deprived, in an arbitrary and unreasonable manner, from being treated eligible for consideration to I.A.S. The objection filed by the petitioner was cursorily rejected on 24.06.2008 (Ex.22) by mentioning that State Government has followed the judgment of the Single Bench delivered at Jodhpur on 04.07.2007 (Ex.12). Further, it was submitted that the said judgment is still pending for consideration before the learned Division Bench at Jodhpur. As per the said judgment of the learned Single Judge, the directions were to consider the cases of those which were promoted in excess. The learned counsel has submitted that the petitioner was not promoted in excess of quota but qua Shri S.D. Sharma (Ex.2) and the same were upheld by the High Court on 02.02.2000 (Ex.5). There was no question of excess quota for the simple reasons that there were 12 posts against merit quota and the petitioner was appointed on 12th post. Consequently, the reasons given by the State Government is incorrect on the face of it. 19. Another submission made by the counsel for the petitioner is that the respondent State has not indicated in the promotion orders the categories of merit quota and seniority quota separately. Such an action was contrary to the orders passed by the Hon'ble Supreme Court. Further, it is submitted 13 that the persons who were not having 7 out of 7 outstanding A.P.A.R.s prior to November, 1991 i.e. amendment of the rule, has been given promotion treating them to be meritorious and therefore this fact has been deliberately concealed from the affected persons by not mentioning in the promotion orders. The petitioner had been given promotion in selection scale in the year 1997 and the same has been disturbed in the year 2008. The principle of law is well settled that a seniority list and provisional promotion order cannot be reviewed after lapse of such a time. 20. It has also been submitted by the counsel for the petitioner that the provisions of Article 16 (4A) of the Constitution, as amended w.e.f. 17.06.1995 is only an enabling provision which empowers the State Government to make provisions for reservation in matters of promotion with consequential benefits in favour of SC/ST candidates, if in the opinion of the State they are not adequately represented in the services of the State. The said amendment is not applicable in the case of the petitioner as he has claimed to be promotee of the year 1991-1992. Moreover, the State Government has not conducted any analysis or survey with regard to adequate representation of SC/ST. In fact, reservation for SC & ST which is only 12% and 16% respectively but the seniority list reflects that they are occupying more than the prescribed quota. Therefore, it is submitted that seniority list is illegal on the face of it. It has also 14 been submitted by the counsel for the petitioner that there is no provision with regard to reservation with consequential seniority, in so far as the Rajasthan Service Rules are concerned. It has also been submitted that the notification of 01.04.1997 provided for regaining of seniority by General category candidates over the SC/ST candidates who were promoted earlier against reserve quota. The said amendment was in accordance to law laid down by the Apex Court. Later, vide notification dated 28.12.2002, the aforesaid notification of the year 1997 was deleted and another proviso was added, as mentioned hereinbefore. Therefore, it was submitted by the counsel for the petitioner that deletion of the notification of 01.04.1997 was contrary to the law laid down by the Hon'ble Supreme Court in the case of Ajit Singh (supra). 21. Furthermore, the notification dated 28.12.2002 gave consequential seniority to the reserve candidate without framing any rules in accordance to the constitutional amendment under Article 16(4) and therefore the same is contrary to the principle laid down in the case of M. Nagraj ((2006) 8 SCC 212). It was also submitted that by the impugned notification dated 28.12.2002, the regaining of seniority given to the general candidate on 01.04.1997 was withdrawn with retrospective effect. Thereafter, another notification dated 25.04.2008 (Ex.17) had been issued and the earlier notification dated 28.12.2002 was deleted. In other words, the position as it exist prior to 01.04.1997 has been maintained. The withdrawal of the 15 notification dated 01.04.1997 is contrary to the law, laid down by the Hon'ble Supreme Court, and therefore, the notifications dated 28.12.2002 and 25.04.2008 deserve to be quashed and set aside. 22. The learned counsel for the petitioner has submitted that it is pre-requisite under service law that a final seniority list should be issued before the meeting of DPC is convened for the purpose of promotion to higher rank. But in the present case, the DPC for supertime scale had been held on 12.05.2008 for the years 1992-93 to 1996-97 and 1997-98 to 2007-08 (Ex.18), whereas there was no final seniority list of selection scale issued by that time. A provisional seniority list for 01.04.1993 to 01.04.1997 was itself issued on 12.05.2008 (Ex.20) which shows that there was no final seniority list of selection scale before the DPC at the time when exercise for promotion to supertime scale was done on 12.05.2008. This fact is fortified by the issuance of final seniority list on 24.06.2008 which makes it abundantly clear that the exercise of promotion done on 12.05.2008 was in absence of any final seniority list. Further, it is submitted that the provisional seniority list for subsequent years i.e. 1998-99 to 2007-08 was issued on 02.07.2008 (Ex.24) and final seniority list was issued on 15.06.2009, without considering the objections filed by the petitioner. Despite of all this, the orders for promotion to supertime scale from 1992-93 to 1996-97 and 1997-98 to 2007-08 were issued on 12.05.2008 (Ex.18) in a wholly arbitrary manner. In the last, the 16 learned counsel for the petitioner has submitted that the eligibility list and the letter of DOP (Ex.26 & Ex.27) to send consent for termination of lien to be considered by the Board was sent but now without assigning any reasons, orders dated 12.05.2008, 24.06.2008 and 15.06.2009 had been passed whereby, the petitioner has been ousted from the eligibility list and he would not be considered for I.A.S. cadre. No reason/explanation, whatsoever, has been given as to why the petitioner become ineligible. The learned counsel for the petitioner have placed reliance on the cases of Ajit Singh (supra) and M. Nagraj (supra). 23. The respondents have contested the writ petition and opposed the submissions made by the counsel for the petitioner. It is submitted that the notifications dated 28.12.2002 and 25.04.2008 have been issued after the Seventy Seventh and Eighty Fifth Amendment of the Constitution of India. Further, it is submitted that the amended provision under Article 16 (4A) entitles reservation on promotion with consequential seniority and it empowers the State Government to issue appropriate notification/orders in this regard. It has also been submitted that the various orders passed by the State Government in respect of seniority list of the R.A.S. officers is in furtherance of the orders passed by a Court of law, from time to time, in the litigations initiated by various officers. It is submitted that as and when orders were passed by a Court, the respondent State had issued the provisional seniority list and thereafter the promotion orders 17 in light of it. It has also been submitted that according to M. Nagraj (supra), the requisite exercise is to be done only in respect of promotions to be given to a caste/class