BRIJ VALLABH SINGH MEHTA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) SHRI Brij Vallabh Singh Mehta, who is a member of the Rajasthan Administrative Service, to be shortly described as R. A. S seeks an appropriate writ, direction or order : (i) for quashing the appointment of respondent SHRI Brahma Dutt Sharma to the selection scale of the R. A. S, made with effect from 26-12-70, (ii) to order in the State Government to appoint the petitioner to the selection scale of the R. A. S. vice SHRI Brahma Dutt Sharma with effect from 26-12-70, (iii) in the alternative the respondents be directed to get the case of the petitioner reconsidered for appointment to the selection scale by the Departmental Promotion Committee, as there would be one vacancy in the selection grade from 26-12-70. Consequential reliefs are prayed for if any of the above prayers are allowed for directing the Union of India and the State of Rajasthan restraining them from giving effect to the orders of appointments by promotion to respondents Nos. 3 to 32 to the selection grade.

(2.) FURTHER, if in the meantime any of the respondent Nos. 3 to 32 is found to have been appointed to the Indian Administrative Service then such order or orders of the appointment be quashed and the Union of India and the State of Rajasthan be directed to re-consider the case of the petitioner for appointment by promotion to the Indian Administrative Service against the vacancy or vacancies existing upto July, 1973.

(3.) NOW, the reviewing Departmental Promotion Committee was certainly justified in reconsidering the cases for promotion in the light of the situation obtaining at the time the first Departmental Promotion Committee made its recommendations, but that does not mean that it should ignore the realities. To test the argument let us suppose any of the candidates recommended by the first Departmental Promotion Committee were to die in the meantime, though one would not wish that : Is the reviewing Departmental Promotion Committee still required to recommend the name of such dead person for appointment ? The answer is emphatically 'no' and the learned Deputy Government Advocate has nothing to say against this. The position cannot be otherwise in the case of a person who has already retired from service. Shri Brahma Dutt Sharma having retired from service on 25-11 70 it is absurd to think that the Departmental Promotion Committee meeting in the year of grade 1972 should make a recommendation for his promotion to the selection grade of R. A. S. which is to be effective horn 26-12-70. Even if for one reason or the other the reviewing Departmental Promotion Committee was persuaded to recommend the name of Shri Brahma Dutt Sharma, the Government had littie justification for appointing Shri Brahma Dutt Sharma in the selection grade of the R. A. S. from 26-12-70 on which date Shri Brahma Dutt Sharma was no longer in service. It is good that the Government respect the recommendations of the Departmental Promotion Committee, but it will not be showing any disrespect to such recommendations if it were to refuse to accept the recommendation in the case of a person who was no longer in service on the date from which appointment was to be given to him in the selection grade. Thus the conclusion is irresistible that the appointment of Shri Brahma Dutt Sharma in the selection grade effective from 26-12-70 when he had already retired was null and void and has to be ignored for all purposes. The inevitable result of this is that as against the 20 vacancies declared to be filled in on the principle of seniority-cum-merit the Government had filled in only 19 such vacancies and one vacancy remained for the year 1970. Learned Deputy Government Advocate relied on Rule 6 for his argument that it was within the discretion of the Government to leave unfilled or bold in abeyance any vacant post. This is a general provision and it does empower the Government to fill or not to fill any vacancy, but whenever it decides to do so it cannot go against the provisions of other relevant rules. Here in exercising their discretion under rule 6 the Government would not be entitled to contravene the provisions regarding the percentage or the quota rule. The proportion for those appointed on the basis of merit alone and those appointed on the basis of seniority-cum merit is 1 : 2. If the Government were allowed to leave this vacancy unfilled then the result would be that against the vacancies for the year 1970, 19 persons were appointed on the principle of seniority cum-merit and the number of persons appointed on the basis of merit alone could not have exceeded half the number. Therefore, ignoring the fractions number of persons who could be appointed on the basis of merit alone could be only 10. The principle is that if one person is appointed on merit against a vacancy then the next two vacancies are to be filled in on the basis of seniority-cum-merit and the roster has to go on like that from year to year. There is thus no doubt in my mind that the Government was required to fill all the 20 vacancies for the year 1970 and not leave one vacancy unfilled for that year.