Case: GANGA VISHAN GUJRATI Vs. THE STATE OF RAJASTHAN

the law. One who defeats the law by his unjustifiable and unsustainable acts is liable for the consequences of such default. We fail to understand why the Government and its entire hierarchy had shut its eyes to this gross violation of statutory rules over such a long period. The process of selection was held to be in violation of the statutory rules. In this background, this Court noticing the illegality in the process, issued directions for holding a fresh process of selection. 33. Jagdish Prasad is a decision which has been rendered in a situation where the 1979 Rules applicable to the Transport department contained a specific provision for considering the case for promotion of persons who are eligible in the year to which the vacancy relates and who could not be considered as a result of the failure of the DPC to convene. The decision related to a situation where the State Government had acted arbitrarily and even mala fide in failing to hold the qualifying examination for a decade on the specious ground that there was a representation from the union. The action of the State was held to be unsustainable because it was designed to defeat the law. This distinguishing feature is absent in the present case. 34. In the present case, we have dealt with the issue of the applicability of the 1960 Rules in the context of determining the principle of seniority. We have held that in view of the opening words of Rule 347-A, the provisions contained in the 1960 Rules would have to give way and be subject to Rule 171-A(2) which provided for determining seniority on the basis of continuous officiation. In the face of Rule 171- A(2) as it stood prior to amendment, it is not possible to apply a deemed date for determining seniority based on the year of vacancy. Rule 171-A(2) rules out the grant of seniority with effect from a date anterior to the date on which the employee is borne on the cadre. 35. But the submission which now needs to be analysed is whether a different result would follow from the application of Rule 347-B of the 1957 Rules. Rule 347- B, as we have noted, is prefaced with a non-obstante provision. Consequently, conditions of service which are governed by the rules referred to in the entries of Rule 347-B will govern notwithstanding anything contained in the 1957 Rules. Among them is an entry pertaining to the 1972 Rules. Hence, it is necessary to consider the applicability of the 1972 Rules. Rule 2 contemplates a situation where the service rules regulating recruitment and conditions of service made under the proviso to Article 309 of the Constitution provide for recruitment by both direct recruitment and promotion. Where the promotion quota of a previous year cannot be filled in due to the absence of a DPC recommendation, the appointing authority is to determine the number of vacancies required to be filled up by promotion with reference to the year when the vacancies were required to be filled up. In such a situation, upon a determination of the vacancies by the appointing authority, the DPC is required to convene within a stipulated period. Upon the recommendations of the DPC, the appointing authority must make appointments to promotion quota vacancies relevant to the year in question. Where a vacancy relates to a year earlier than the year in which the appointment has been made, the order of appointment has to be modified so as to take effect from the year in which the promotion is deemed to have been made. A plain reading of the 1972 Rules indicates that they envisage a situation where recruitment is made both by direct recruitment and promotion and the promotional quota is not filled up in the absence of a DPC recommendation. On its terms, Rule 2 of the 1972 Rules has no application to a situation such as the present which is governed by Rule 284 of the 1957 Rules. Under Rule 284, there is no direct recruitment at all. Rule 2 of the 1972 Rules applies in a situation where a service rule regulating recruitment provides for recruitment by both direct recruitment and promotion. In the present case, ex facie Rule 284 of the 1957 Rules is not a provision falling in that category since there is an absence of a service rule requiring recruitment by direct recruitment and promotion. The 1972 Rules have no application. Rule 347-B of the 1957 Rules will hence not come to the aid of the appellants. 36. The situation, as we have noted has been altered by the rule making authority which amended the provisions contained in Rule 171-A(2) of the 1957 Rules. As a result of the amendment, sub-rule (2) came to be substituted with effect from 8 October 2014. Post amendment, the seniority of LRIs has to be determined on the basis of the recruitment year of promotion. The provision for continuous officiation as embodied in Rule 171-A(2) prior to the amendment was to the contrary. A deliberate departure has been made in the rules which were modified on 8 October 2014. We cannot accept the submission that the amendment was clarificatory in nature. The present case relates to the exercise conducted prior to the amendment of Rule 171- A(2). 37. For the above reasons, we are of the view that the Division Bench of the High Court was justified in coming to the conclusion, though for the reasons which we have indicated, that the claim for seniority with reference to the date of the accrual of the vacancy will not be maintainable merely on the ground that no competitive examination was held in the years in which the vacancies had arisen. The view taken by the Division Bench of the Rajasthan High Court is in accord with the principles of law enunciated in the decisions of this Court and consistent with the statutory rules as they held the field at the material time.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]For the purpose of the present proceedings, we accept the correctness of this view which has been adopted both by the Single Judge and by the Division Bench. This is also the consistent view of the Department of Personnel of the State Government. Hence, we hold that the limited departmental examination for in-service Patwaris under Rule 284(ii) is a means of accelerated promotion. Rule 284 provides for selection by promotion through two streams: one by seniority-cum-merit and the other on the basis of a limited departmental examination for in-service Patwaris27. Mr Paras Kuhad, learned Senior Counsel is justified in his submission that the 1957 Rules did not make a provision specifically for a year-wise determination of vacancies and that such a provision was embodied in the 1960 Rules. The difficulty in accepting the sequitur (as learned Counsel portrayed it) of this submission lies in the fact that Rule 171-A(2) prior to its amendment expressly incorporated the principle of continuous officiation as the basis for determining seniority of LRIs. This principle, which is specifically embodied in Rule 171-A(2) cannot stand overridden by any provision to the contrary contained in the 1960 Rules. This is for the reason that Rule 347-A expressly stipulates that where there is a specific provision contained in the 1957 Rules, that provision will governWhere a limited competitive examination is being held for accelerated promotion, Rule 35 has no application. The procedure for recruitment in Part V of the 2001 Rules does not comprehend a situation involving a limited competitive examination for accelerated promotion. Rule 48 which is the repeal and savings provision stipulates that all rules and orders relating to matters covered by those rules and in force immediately before the commencement of the rules are repealed. The 2001 Rules contains a schedule and as we have seen earlier, Rule 6(a) provides that the service shall consist of persons holding substantive posts or persons recruited to subordinate service posts or persons specified in the schedule, besides persons recruited in accordance with the provisions of the rules30. It is evident from Part V of the 2001 Rules more particularly, the rules governing promotion contained in Rules 34 and 35 that the deeming fiction envisaged in Rule 35(6) applies to promotions made under the auspices of a DPC. In the case of such promotions, Rule 35 mandates that the committee constituted under Rule 34 must consider the cases of persons who were eligible in the year to which the vacancy relates irrespective of the year in which the meeting of the committee is held. The underlying rationale for Rule 35(6) is that on the determination of year-wise vacancies, rights are crystalised with reference to the year in which the vacancy has arisen. Consequently, the delay on the part of the DPC in convening its meeting should not result in a prejudice to those candidates who were eligible for promotion and ought to have been promoted but were not considered with reference to the year in which the vacancy arose. This principle in Rule 35(6) is in the nature of a deeming fiction. Undoubtedly, once a deeming fiction comes into being, full effect must be given to its ambit. Equally, a deeming fiction can apply to the extent to which and in a situation where the law mandates that it be applied. In the present case, it is evident that the deeming fiction which applies in the context of a DPC having been convened beyond the year in which the promotional vacancy arose has no application to candidates who are recruited on the basis of a competitive examination for the grant of accelerated promotion. There is a fundamental reason why the deeming fiction cannot be extended to the situation implicated in Rule 284(ii). In order to appear in the competitive examination contemplated by Rule 284(ii), a candidate must fulfill the conditions of eligibility prescribed in Rule 286. Rule 286 stipulates that in-service Patwaris must have a minimum service of five years before they can appear at the competitive examination under Rule 284(ii). Conferment of a deemed seniority may result in a situation where a candidate secures seniority with effect from an anterior date on which he or she was neither borne on the cadre nor was qualified. Such a consequence would be impermissible, at least in the absence of an express statutory provision to that effect31. A consistent line of precedent of this Court follows the principle that retrospective seniority cannot be granted to an employee from a date when the employee was not borne on a cadre. Seniority amongst members of the same grade has to be counted from the date of initial entry into the grade. This principle emerges from the decision of the Constitution Bench of this Court in Direct Recruit Class II Engineering Officers Association v State of Maharashtra (1990) 2 SCC 715  33. Jagdish Prasad is a decision which has been rendered in a situation where the 1979 Rules applicable to the Transport department contained a specific provision for considering the case for promotion of persons who are eligible in the year to which the vacancy relates and who could not be considered as a result of the failure of the DPC to convene. The decision related to a situation where the State Government had acted arbitrarily and even mala fide in failing to hold the qualifying examination for a decade on the specious ground that there was a representation from the union. The action of the State was held to be unsustainable because it was designed to defeat the law. This distinguishing feature is absent in the present case34. In the present case, we have dealt with the issue of the applicability of the 1960 Rules in the context of determining the principle of seniority. We have held that in view of the opening words of Rule 347-A, the provisions contained in the 1960 Rules would have to give way and be subject to Rule 171-A(2) which provided for determining seniority on the basis of continuous officiation. In the face of Rule 171- A(2) as it stood prior to amendment, it is not possible to apply a deemed date for determining seniority based on the year of vacancy. Rule 171-A(2) rules out the grant of seniority with effect from a date anterior to the date on which the employee is borne on the cadreA plain reading of the 1972 Rules indicates that they envisage a situation where recruitment is made both by direct recruitment and promotion and the promotional quota is not filled up in the absence of a DPC recommendation. On its terms, Rule 2 of the 1972 Rules has no application to a situation such as the present which is governed by Rule 284 of the 1957 Rules. Under Rule 284, there is no direct recruitment at all. Rule 2 of the 1972 Rules applies in a situation where a service rule regulating recruitment provides for recruitment by both direct recruitment and promotion. In the present case, ex facie Rule 284 of the 1957 Rules is not a provision falling in that category since there is an absence of a service rule requiring recruitment by direct recruitment and promotion. The 1972 Rules have no application. Rule 347-B of the 1957 Rules will hence not come to the aid of the appellants36. The situation, as we have noted has been altered by the rule making authority which amended the provisions contained in Rule 171-A(2) of the 1957 Rules. As a result of the amendment, sub-rule (2) came to be substituted with effect from 8 October 2014. Post amendment, the seniority of LRIs has to be determined on the basis of the recruitment year of promotion. The provision for continuous officiation as embodied in Rule 171-A(2) prior to the amendment was to the contrary. A deliberate departure has been made in the rules which were modified on 8 October 2014. We cannot accept the submission that the amendment was clarificatory in nature. The present case relates to the exercise conducted prior to the amendment of Rule 171- A(2)37. For the above reasons, we are of the view that the Division Bench of the High Court was justified in coming to the conclusion, though for the reasons which we have indicated, that the claim for seniority with reference to the date of the accrual of the vacancy will not be maintainable merely on the ground that no competitive examination was held in the years in which the vacancies had arisen. The view taken by the Division Bench of the Rajasthan High Court is in accord with the principles of law enunciated in the decisions of this Court and consistent with the statutory rules as they held the field at the material time.