S C SAXENA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE petitioner entered the service of the State of Rajasthan as a Computer Grade II in the Irrigation Department on November 21, 1957. He was confirmed on the aforesaid post by the order dated June 21, 1963 with effect from January 1, 1954 which is obviously a mistake as the petitioner could not have been confirmed with effect from a date prior to November 21, 1957 when he entered Government service. But then, by another order dated November 29, 1973, the confirmation of the petitioner was altered to April 12, 1961. The petitioner passed A.M.I.E. examination, which is equivalent to a degree in engineering in the year 1963 and thus he had become eligible for appointment to the the post of Assistant Engineer. He approached the Chief Engineer Irrigation, soon after passing the A.M.I.E. Examination requesting him that the petitioner should be promoted to the post of Assistant Engineer as he had become eligible for the same. The Chief Engineer, by his letter dated November 7, 1963 intimated the petitioner that his case for promotion to the post of Assistant Engineer would be considered by the Promotion Committee when the same would next meet. However, pending selection by the Departmental Promotion Committee, the petitioner wan promoted as a temporary Assistant Engineer (Civil) by the order of the Chief Engineer, Irrigation, Rajasthan dated March 16, 1964 for period of four months of until persons selected by the Rajasthan Public Commission were available.

(2.) IT is common case of both the parties that the Departmental Promotion Committee met in the year 1965 for making selections for the posts of Assistant Engineers against promotion quota and eventually by the order of the State Government dated January 8, 1968, 76 engineering subordinates, including the petitioner were promoted against permanent posts. Soon thereafter, the petitioner submitted a representation that as he had become eligible for promotion in the year 1963 on his passing the A.M.I.E. examination, he should have been promoted from the year 1963. The representation of the petitioner was rejected by the Chief Engineering on June 30, 1969 and the petitioner was intimated that the promotions of Engineering Subordinates were governed by the Rajasthan Service of Engineers (Irrigation Branch) Rules, 1954. But the matter did not rest there, as in January 1972 the State Government felt that while the vacancies against direct recruitment quota were filled up in a regular manner yet on account of the fact that the meetings of the Departmental Promotion Committee were not convened regularly, the vacancies against promotion quota were not filled in at the proper time, with the result that persons who were eligible for being considered for promotion against such vacancies were deprived of their appointment by promoting during the relevant years and there by they also lost appropriate seniority from the year when the vacancies of promotion quota became available. In order to mitigate the hardship of such persons, who were eligible for promotion but were not so promoted from earlier years when the promotion quota vacancies occurred, the State Govt. promulgated the Rajasthan Services (Recruitment by promotion against vacancies of earlier years) Rules, 1972 (hereinafter called' 1972 Rules). These Rules, came into force with effect from 7 -1 -1972. Rule 2 of the aforesaid Rules provides that where the relevant service rules made provision for recruitment as well as by promotion, but the promotion quota of earlier years could not be filled in on account of the fact that the meetings of the Departmental Promotion Committee were not convened during the relevant years, the appointing authority was authorised to determine the number of vacancies which were required to be filled up by promotion, with reference to the year in which such vacancies were to be filled up. Then Rule 5, which is win for the present case, provides that where any vacancies existed against promotion quota in a year earlier to that in which appointments by promotions lave been made on the basis of the recommendations of the Departmental Promotion Committee, then the appointing authority shall modify the order of appointment by specifying the year in which such promotion shall be deemed to have been made, having regard to the year in which vacancies against direct recruitment quota of the relevant year were filled up. The condition which was attached the promotion of employees with respect to the previous year was that such persons must have been eligible for promotion under the relevant service Rules in year with reference to which the vacancies are to be filled in. After the promulgation of the 1972 Rules, the State Government, who is the appointing authority in respect of the pests of Assistant Engineers, determined the promotion quota vacancies in respect of the earlier years and thereafter modified the order of promotion issued on January 8, 1968 allotting the year of promotion to the promotees, with reference to the the years in which the vacancies against promotion quota -became available. The case of the petitioner, who was promoted by the order 8 -1 -1968, was also reviewed and by the order of the State Govt. on Sept. 23/25, 1972 the petitioner was promoted against 1965 promotion quota. The petitioner felt aggrieved against the allotment of 1963 promotion quota to him in respect of his promotion to the post of Assistant Engineer and submitted a representation which was rejected. In these circumstances, he has filed the present writ petition in this Court.

(3.) NOW coming to the provisions of Rule 5 of the 1972 Rules, which are relevant for the purposes of the decision in this case, it has been laid down therein that persons 'who were eligible for promotion under the relevant service rules in the year with reference to which the vacancies are to be filled up' should be appointed by the appointing authority with reference to the previous year during which the promotion quota vacancies acquired According to this rule, the person should be eligible for promotion 'in the year' in respect of which the vacancies are to be filled up. In my view, any person who became eligible upto the end of a particular year can be considered for promotion for that earlier year, according to the provisions of Rule 5, as he became eligible foe promotion in that year. For instance, a person who was appointed a an Engineering Subordinate in December 1954 and who possessed a diploma, become eligible for promotion under the 1972 Rules against 1964 promotion quota vacancies. It must be kept in view that the promotion quota vacancies were not actually filled up during the relevant years but on account of the provisions of the 1972 Rules, a legal fiction has been introduced and the promotes have been allotted earlier years of promotion as envisaged in the 1972 Rules. It is on account of the legal fiction that Rule 5 provides that the persons so promoted with reference to earlier years shall be deemed to have been promoted during those years, while Rule b provides that such persons shall not be entitled to claim any arrears of of pay for the period during which he was not actually promoted though he may be deemed to have been promoted in accordance with the provisions of Rule 5. If this criteria is adopted, which in fact appears to have been adopted by the State Government, then persons who have been allotted 1964 quota did become eligible for promotion during that year as they were appointed as Engineering Subordinates in the year 1954 and those who have been allotted 1963 quota and have been placed above the petitioner in the order of promotion dated 23/25 September, 1972 also became eligible for promotion during die year 1965. It is not in dispute that all the persons, who were allotted either the 1964 quota or were allotted 1965 quota and were placed above the the petitioner in the aforesaid order of promotion, in accordance with the 1972 Rules, were senior to the petitioner in case they became eligible for promotion during the relevant years 1964 and 1965, then the petitioner cannot complain of their having been placed above the petitioner in the order of the State Government dated 23/25 September 1972.