Case: MANOHAR LAL JAT &amp; ORS. ETC Vs. THE STATE OF RAJASTHAN &amp; ORS. ETC

2. The relevant facts are that on 01.09.2009, the Finance Department of the Government of Rajasthan granted approval for creation of 531 posts of Tax Assistants. This newly created post was augmented by further 23 posts, which were added to the cadre; the final tally of such newly created posts of Tax Assistants became 554. Amendments to the Rajasthan Commercial Taxes Subordinate Services General Branch Rules, 1975, made with effect from 01.12.2010, prescribed the manner of filling of posts of Tax Assistants. Schedule-I of the Amendment Rules defined the manner of filling of the posts in the following terms:100% by direct recruitment:(a) 80% by the appointing authority in accordance with Schedule III(b) 20% by selection from amongst ministerial staff of the commercial taxes department that by way of departmental examination in accordance Schedule II3. On 4th October 2010, a Departmental Selection Committee was constituted for recruitment of both categories and proceedings were initiated soon filling all the for 554 posts of Tax Assistants. In accordance with the rules, it was proposed to fill the 80% quota of direct recruits to the extent of 443 vacancies and 111 from amongst DPs. Accordingly, on 25.01.2011 and advertisement was issued for recruitment of DRs. The written examination, stipulated under the rules was conducted for recruitment of DRs; thereafter a typing test was conducted on 15.05.2011. 356 candidates participated in this typing test. On 16.05.2011, provisional results were declared for the test held for DRs. Thereafter letters were apparently written by the Commissioner, Department of Commercial Taxes enclosing a list of successful candidates, to the police authorities for due verification of their character and antecedents. On 24.05.2011, the department advertised for filling up of the 20% quota for DPs. Earlier the proposal was to hold the written examination for the DPs on 24.06.2011; however, it was held earlier on 11.06.2011 and 12.06.2011. The results of these tests for the DPs were announced on 14.06.2011 and the department issued promotion letters on 23.06.2011. On 24.06.2011 the appellants were issued with letters for police verification and medical test. By this time however the DPs had already been promoted, and had taken charge of their posts. The appointment orders of the DRs were issued subsequently; on 04-07-2011.4. On 5th June, 2013, the Commercial Taxes Department of the State of Rajasthan published a seniority list in which those appointed as DPs, in the 20% quota were shown as senior to the DR/the appellants. Apparently, some of the DRs – including the appellants objected to this placement and sought for correction of the seniority list. Another provisional/tentative seniority list was issued on 15-05-2014, in which the position was no different inasmuch as the DPs were shown above the DRs. The appellants again objected; nevertheless on 18-09-2015 the Department substantially confirmed their previous positions in the final list published by it.5. The Direct Recruits (DRs) filed one set of Writ Petitions (Manohar Lal Jat & Ors. vs. State of Rajasthan &Ors.) contending that the seniority lists were contrary to law. Yet another seniority list was issued by the Department on 30.05.2016 in which the previous position of the DPs was left undisturbed. This became the subject matter of challenge before another proceeding(Gajendra Singh & Ors. vs. State of Rajasthan &Ors. CWP Np. 4630 of 2017). Though the two writ proceedings had challenged the seniority position allotted to the DRs except the few DPs and official respondents, no others were impleaded. The prominent grounds of attack in the writ petition, were that the recruitments of the DRs and DPs took place simultaneously and that the departmental candidates were mala fide issued with appointment letters earlier, for no reason except to ensure that their dates of entry into the cadre of tax inspectors were earlier, in order to favour their further career progression.6. A learned Single Judge of the High Court by Judgment dated 25.05.2017 considered Rule 27 of the concerned Rules (hereafter called the Seniority Rules) (Rajasthan Commercial Taxes Subordinate Services (General Branch) Rules, 1975).7. The Single Judge took particular notice of Rule 27(2) which stated that those who undergo recruitment process in an earlier selection will be placed at senior positions to those who undergo recruitment in a selection by a later process. The Single Judge concluded as follows:16. A glance of Rule 2 (1) would reveal that the advertisement dated 25th January, 2011, was issued with reference to the vacancies of the year 2010-2011. Obviously, the advertisement dated 24th May, 2011, would be a recruitment process with reference to the vacancies of the subsequent year 2011-2012. The respondents are curiously silent on this aspect in their counter affidavits as well as during the arguments.17. A conjoint reading of Rule 2(1) and 27 of the Rules of 1975, would leave no room of any doubt that the persons selected and appointed as a result of a selection process, which is not subject matter to review and revision, shall rank senior to the persons who are selected and appointed as a result of subsequent selection. Thus, the phrase „subsequent selection? under Rule 27 read with Section 2(1) leads to logical conclusion that the petitioners are employees who were appointed in a previous selection and the private respondents (departmental employees), are the persons who were accorded appointment in a „subsequent selection?. Hence, those departmental candidates cannot be allowed to march over and above in the seniority to the petitioners, who are the successful selected candidates of a previous selection process.8. The DRs aggrieved by the Judgment of the learned Single Judge preferred appeals to the Division Bench Special Appeal Writ No. 1053 of 2017 and Special Appeal Writ No. 1250 of 2017.9. Since all the Departmental Promotees (DPs) were not represented before the Single Judge, many of them preferred third party appeals. The Division Bench by its impugned Judgment allowed these appeals by DPs after noticing that Rule 27 which had been relied upon by the Single Judge had been amended. The Division Bench took note of the fact that after amendment with the amendment provisos have been added.10. The Court held that the main provision of the Rule 27 was amended on 10.10.2002 which added a second proviso and that the proviso would operate when two selections are for one and the same category. The relevant observations of the Division Bench are as follows:In our opinion, there is conflict between the main provision of rule 27 and second proviso. If proviso is applied taking into consideration the earlier and subsequent selection followed by appointment then, in a given case, where a selection was started earlier to subsequent but the appointment is given first to those selected pursuant to subsequent selection, the relevance of the date of appointment gets nullified. It is because of appointment of the candidates pursuant to the subsequent selection prior to the appointment of the candidates out of earlier selection. They would not get seniority despite earlier appointment and, thereby, significance to the date of appointment given in Rule 27 would be violated. The proviso cannot nullify the main provision and, in those circumstances, consideration of two provisions has to be made. The proviso would operate when two selections are for one and the same category11. According to the Division Bench thus the two categories DPs and DRs were different and it was not open to the DRs especially after a long lapse of time, to question the placement in the seniority list of the DPs. However, since the DRs/Original Writ Petitioners had argued before the Division Bench about the ineligibility of DPs (or some of them) to participate in the selection –(which was held in 2011) that issue was kept open.

Reasoning:
27. Thus, the main provision was amended as to clearly provide that seniority in the cadre would be fixed from the dates of appointment of the employees, or officers, to the cadre.29. On a plain reading of the entire rule (Rule 27 [1] and the two provisos) what is evident is that (a) before the amendment of 2002, seniority of personnel appointed to the lowest categories of posts in any department was to be determined as from the date of appointment; however, for promotees, it was to be from the date of selection; (b) after the amendment of 2002, seniority has to be fixed (by reason of Rule 27 (1)) as on the date of appointment to the post or service; (c) however, in the case of pre-state integration of state (of Rajasthan) or pre-integration of services, seniority could be modified or altered by the Appointing Authority on an ad hoc basis- this clearly was meant to be a sunset clause, i.e. operative for a limited period; (d) the second proviso,- which is the one pressed into service by the DRs, states that seniority of those selected earlier will be determined over those selected latter.30. Plainly, the principal mandate of the rule is that seniority is determined on the basis of date of appointment (shall be fixed from the date of their appointment). Proviso (2) lists out two rules. The first is that those selected and appointed through a prior selection would rank senior to those selected and appointed through a later selection process. The High Court, in this case, was of the opinion that this rule (i.e. proviso) applied to selections from the same source, i.e. where two sets of direct recruits were appointed, those selected through a previous recruitment process, would rank senior to those recruited through a later recruitment process. This interpretation is, in this courts opinion, salutary. There may be various reasons why the ultimate appointment of one batch of recruits may be delayed: challenges to some part of the recruitment process (such as shortlisting, calling of candidates for interviews etc.), during which period, a subsequent recruitment may be undertaken. To forestall any apprehensions as to which of the appointees would be senior, and if those from the earlier process are appointed later, the proviso clarifies that candidates from the earlier process would rank senior, despite the main rule speaking of a date of appointment based seniority. The same logic would apply to departmental promotees, as well, if two batches of promotees are appointed, through selection. The second limb of the second proviso clarifies that when merit based, or seniority based promotions are resorted to, the applicable norm would be seniority in the feeder cadre, to forestall any debate about the rule of merit (in the selection) being the guiding principle.31. In Prem Kumar Verma v. Union of India (1998) 5 SCC 457     this court had to consider Rule 303 of the Railway Establishment Manual, which was phrased like Rule 27 in the present case. The extract of the relevant discussion is as follows:4. In view of the rival submissions at the Bar the first question that would arise for consideration is which Rule would govern the inter se seniority. It is undisputed that vacancies arose prior to July 1989 and advertisement for the said post had been issued earlier to July 1989 and finally the Railway Recruitment Board concluded its selection process and selected 29 candidates on 11-7-1989. Therefore, the relevant Rules, as existed then, would govern the inter se seniority. The next question that arises for consideration is which is the relevant Rule that was in force in July 1989. From the materials produced before us it appears that para 303 of the Manual, as it stood in July 1989 is to the following effect:303. The seniority of candidates recruited through the Railway Service Commission or by any other recruiting authority should be determined as under:(a) Candidates who are sent for initial training to training schools will rank in seniority in the relevant grade in the order of merit obtained at the examination held at the end of the training period before being posted against working posts.(b) Candidates who do not have to undergo any training, the seniority should be determined on the basis of the merit order assigned by the Railway Service Commission or other recruiting authority.Later on sometime in the year 1990 Rule 303(a) was amended by inserting the following expression:Those who joined the subsequent course for any reasons whatsoever and those who passed the examination in the subsequent chance will rank junior to those who had passed the examination in earlier courses.The aforesaid Rule stood further amended in 1993 which reads thus:In case however persons belonging to the same RRB panel are sent for initial training in batches due to administrative reasons and not because of reasons attributable to the candidates, the inter se seniority will be regulated batchwise provided persons higher up in the panel of RRB not sent for training in the appropriate batch (as per seniority) due to administrative reasons shall be clubbed along with the candidates who took the training in the appropriate batch for the purpose of regularising the inter se seniority provided such persons pass the examination at the end of the training in the first attempt.5. In view of our conclusion that the posts fell vacant prior to July 1989 and the process of selection was completed and the Recruitment Board selected the candidates on 11-7-1989 the amendment that was introduced on 5-5-1990 and the further amendment of 1993 will have no application and it is the unamended Rule 303(a), as it stood on 11-7-1989, that would govern the case of inter se seniority. The analysis of the provisions of para 303 indicates that where candidates are required to undergo some training after being selected through Railway Service Commission or any other recruiting authority, their seniority is determined on the basis of their respective merit in the examination held at the end of the training period and where candidates do not have to undergo any training, the seniority is determined on the basis of the merit assigned by the Railway Service Commission or other recruiting authority. In the present case the candidates had to undergo training and in fact they had undergone training in batches, as already stated. In that view of the matter their seniority had rightly been determined by the Railway authority on the basis of their respective merit obtained in the examination held at the end of the training period. The Tribunal committed error by altering the said seniority on the basis of a rule which was not in existence on the date the vacancy arose and, on the date, when the selection was completed.32. Keeping in mind that the advertisements (for filling the entire cadre, in both the quotas or streams of recruitment) were issued one after the other, and more importantly, that this was the first selection and recruitment to a newly created cadre, the delay which occurred on account of administrative exigencies (and also the completion of procedure, such as verification of antecedents) the seniority of the promotees given on the basis of their dates of appointment, is justified by Rule 27 in this case. The impugned judgment, in the opinion of this court, is not erroneous; it does not call for interference.