Rajasthan High Court - Jaipur
State Of Rajasthan Through Director ... vs Krishna Kumar S/O Shri Kishori Lal on 27 September, 2022
Author: Inderjeet Singh
Bench: Inderjeet Singh
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 5926/2022
1. State of Rajasthan through Director General of Police, Jaipur.
2. Commissioner of Police, Jaipur Metropolitan, Jaipur.
3. Deputy Commissioner of Police, Headquarter, Jaipur
Metropolitan, Jaipur
----Petitioner
Versus
1. Krishna Kumar S/o Shri Kishori Lal, age 39 years, Belt
No.6305, presently working as Constable Traffic Police,
District Jaipur, Resident of Village Post Quarter
No.175/184, Cement Factory, Sahu Nagar, Thana
Mantown, Sawaimadhopur.
----Respondent
Along with 44 connected petitions mentioned in Schedule-A For Petitioner(s) : Mr. R.N. Mathur, Senior Counsel & Mr. M.M. Mehrishi, Senior Counsel & Mr. Rajendra Prasad, Senior Counsel, Mr. Vigyan Shah, Mr. Shobhit Tiwari, Mr. Pushpendra Singh Tanwar, Mr. Rohit Tiwari, Mr. Kamlesh Sharma, Mr. Akshit Gupta, Mr. Harendra Neel, Mr. Pukhraj Chawla, Mr. Yash Joshi, Ms. Sarah Sharma, Ms. Pragya Seth, Mr. Sarthak Saini, Ms. Leshika Jain, Mr. Arvind Kumar Arora, Ms. Sushila Kalwania, Ms. Anita Goyal, Ms. Harshita Thakral, Mr. Shovit Jhajharia, Mr. Mukesh Dudi, Mr. Ashish Saksena, Mr. Akash Saxena, Mr. Chandrahas Chaudhary, Mr. Mahendra Sharma, Mr. A.K. Saxena, Mr. Vijay Pathak.
For Respondent(s) : Mr. M.S. Singhvi, Advocate General, assisted Mr. Sheetanshu Sharma, Mr. Pranav Bhansali Mr. Rajesh Mehrishi, AAG, Mr. Udit Sharma & Ms. Kinjal Surana.
(Downloaded on 01/10/2022 at 08:43:20 PM) (2 of 43) [CW-5926/2022]
HON'BLE MR. JUSTICE INDERJEET SINGH
Order
27/09/2022
CWP-5926/2022
1. Heard on the applications filed by the applicants for their impleadment. Considering the issue involved in all these writ petitions, the applicants are allowed to assist the Court as intervenors. The applications are accordingly disposed of.
2. In category A, the matters are with regard to promotion from the post of Constable to Head Constable and in Category B, the matters are with regard to promotion from the post of Head Constable to ASI.
Category A :- Constable to Head Constable (CWP------13746/2018, 18671/2018, 24498/2018, 11515/2022, 12360/2022)
3. The petitioner-State of Rajasthan (CWP-5926/2022) has also filed writ petition challenging the order dated 05.04.2021 passed by the Rajasthan Civil Services Appellate Tribunal (hereinafter to be referred as the Tribunal) whereby the learned Tribunal has directed for re-determination of the year-wise vacancy for promotion and further directed the State Government for creating the shadow posts.
Category B:- Head Constable to ASI (writ petitions except the aforesaid mentioned in Category A as well as CWP- 5926/2022).
4. In Category-B the petitioners have challenged the order passed by the Tribunal dated 01.04.2019 whereby the appeals filed by the petitioners for re-determination of the vacancies was dismissed by the learned Tribunal.
5. Learned Advocate General appearing for the State of Rajasthan submitted that the learned Tribunal has committed (Downloaded on 01/10/2022 at 08:43:20 PM) (3 of 43) [CW-5926/2022] serious illegality in passing of the order dated 05.04.2021 whereby the learned Tribunal wrongly directed for re-
determination of the year wise vacancies and for creation of shadow posts. He further submits that the promotions were made by the State Government in compliance of the order passed by the Division Bench of this Court in the matter of Rajendra Kumar Khandelwal as well as the judgment passed by the Tribunal in the matter of Vijay Singh and exercise for promotion was done by the department. He further submits that the calculation of vacancies is administrative act and it was done from time to time by the respondents and jurisdictional error can be corrected at any time by the State Government and res-judicata will not come in their way. He further submits that if this Court finds that excess promotions have been made then they have to push down the persons who were wrongfully promoted by the State Government.
He further submitted that the employee has only right of consideration of promotion and even if wrongful promotion has been given the State has every authority to refix the year of promotion. He further submits that there is no allegation made by the petitioners with regard to malafide on the part of the officers of the State Government. He further submits that in view of Section 4 of the Rajasthan Civil Services Appellate Tribunal Act 1976 (hereinafter to be referred as the Act of 1976) the Tribunal has no jurisdiction for creating the shadow posts. He further submits that all the promotional activities has been done by the respondents in view of the relevant rules of Department for promotion, more particularly while making the promotion they have duly followed Rule 10, 27, 29 & 31 of the Rajasthan Police (Downloaded on 01/10/2022 at 08:43:20 PM) (4 of 43) [CW-5926/2022] Subordinate Service Rules, 1989 (hereinafter to be referred as the Rules of 1989). He further submits that event the High Court under Article 226 of the Constitution of India cannot direct the State Government for creation of shadow posts. In support of his contentions, he relied upon the following judgments.
6. The Hon'ble Supreme Court in the matter of Indian Council of Agricultural Research and another v. T.K. Suryanarayan and others, reported in (1997) 6 SCC 766 has held as under :-
"8. We are, however, unable to accept the submission made by the learned counsel appearing in both these SLPs. Even if in some cases, erroneous promotions had been given contrary to the said Service Rules and consequently such employees have been allowed to enjoy the fruits of improper promotion, an employee cannot base his claim for promotion contrary to the statutory service rules in law courts. Incorrect promotion either given erroneously by the Department by misreading the said Service Rules or such promotion given pursuant to judicial orders contrary to Service Rules cannot be a ground to claim erroneous promotion by perpetrating infringement of statutory service rules. In a court of law, employees cannot be permitted to contend that the Service Rules made effective on 1-10-1975 should not be adhered to because in some cases erroneous promotions had been given. The statutory rules must be applied strictly in terms of the interpretation of rules as indicated in the decision of a three-Judge Bench of this Court in Khetra Mohan case. When the said Service Rules were introduced w.e.f. 1-10-1975, one-time exercise was required to be made to decide the fitment of the employees in different grades. Except in case of fitment in Grade T-1-3 of Category 1 and consequential accelerated promotion to Grade T-2-3 of Category 2, on the basis of qualification in no other case accelerated promotion on the basis of educational qualification is permissible. If relaxation of educational qualification is made effective on the date of enforcement of the said Service Rules it will be a case of review of initial fitment. In all other cases, promotion is to be given in accordance with the (Downloaded on 01/10/2022 at 08:43:20 PM) (5 of 43) [CW-5926/2022] said Service Rules and not otherwise. The respondents in these appeals were not entitled to get initial fitment in Grade T-1-3. As a matter of fact, they got initial fitment in grade lower than Grade T-1-3 of Category 1. Therefore, they are not entitled to accelerated promotion on the basis of educational qualification consequent upon the initial fitment in Grade T-1-3 of Category 1. The impugned decisions of the Tribunal, therefore, cannot be sustained.
9. It may, however, be indicated that the question of unmerited hardship if any, and need for amendment of the Rules to remove such hardship, are matters for consideration of the rule-making authority. It is reasonably expected that the authority concerned will be sensitive to unmerited hardship to a large number of its employees, if occasioned by introduction of Service Rules so that appropriate remedial measures may be taken. Since the impugned orders of the Tribunal cannot be sustained in law, the impugned judgments in both the appeals are set aside."
7. The Hon'ble Supreme Court in the matter of B.K. Pavitra and Others v. Union of India and Others, reported in (2019) 16 SCC 129 has held as under :-
"153. For the above reasons, we have come to the conclusion that the challenge to the constitutional validity of the Reservation Act, 2018 is lacking in substance. Following the decision in B.K. Pavitra (1), the State Government duly carried out the exercise of collating and analysing data on the compelling factors adverted to by the Constitution Bench in Nagaraj. The Reservation Act, 2018 has cured the deficiency which was noticed by B.K. Pavitra (1) in respect of the Reservation Act, 2002. The Reservation Act, 2018 does not amount to a usurpation of judicial power by the State Legislature. It is Nagaraj and Jarnail compliant. The Reservation Act, 2018 is a valid exercise of the enabling power conferred by Article 16(4-A) of the Constitution."
8. The Hon'ble Supreme Court in the matter of Sonepat Coop.
Sugar Mills Ltd. v. Ajit Singh, (2005) 3 SCC 232 has held as under :-
(Downloaded on 01/10/2022 at 08:43:20 PM)(6 of 43) [CW-5926/2022] "26. It is true that the appellant did not challenge the judgment of the learned Single Judge. The learned Judge in support of his judgment relied upon an earlier decision of the High Court in Rajesh Garg v. Punjab State Tubewell Corpn. Ltd. but failed to consider the question having regard to the pronouncements of this Court including H.R. Adyanthaya. Rajesh Garg was rendered following S.K. Verma which being not a good law could not have been the basis therefor.
27. The principle of res judicata belongs to the domain of procedure. When the decision relates to the jurisdiction of a court to try an earlier proceeding, the principle of res judicata would not come into play. (See Mathura Prasad Bajoo Jaiswal.)
28. An identical question came up for consideration before this Court in Ashok Leyland Ltd. v. State of T.N. wherein it was observed: (SCC p. 44, para 118) "118. The principle of res judicata is a procedural provision. A jurisdictional question, if wrongly decided, would not attract the principle of res judicata. When an order is passed without jurisdiction, the same becomes a nullity. When an order is a nullity, it cannot be supported by invoking the procedural principles like estoppel, waiver or res judicata."
9. The Hon'ble Supreme Court in the matter of State of Haryana and Others v. Kashmir Singh and Another, (2010) 13 SCC 306 has held as under :-
"14. In our opinion, the High Court has taken a totally impractical view of the matter. If the view of the High Court is to prevail, great difficulties will be created for the State administration since it will not be able to transfer/deploy its police force from one place where there may be relative peace to another district or region/range in the State where there may be disturbed law and order situation and hence requirement of more police. Courts should not, in our opinion, interfere with purely administrative matters except where absolutely necessary on account of violation of any fundamental or other legal right of the citizen. After all, the State administration cannot function with its hands tied by judiciary behind its back. As Holmes, J. of the US Supreme Court pointed out, (Downloaded on 01/10/2022 at 08:43:20 PM) (7 of 43) [CW-5926/2022] there must be some free play of the joints provided to the executive authorities."
10. The Hon'ble Supreme Court in the matter of Madan Gopal Garg v. State of Punjab and Others, 1995 Supp (3) SCC 366 has held as under :-
"11. The submission of Shri Venkataramani is that since the actual number of vacancies which occurred during the period from 1966 till 31-3- 1974 has not been indicated by the State, the only basis for applying the quota rule can be to take into account the total number of appointments that have been made during that period. Shri Venkataramani has furnished a list indicating that during the period from 4-7-1966 to 9-4-1974, 29 persons have been appointed on the post of Controller and that out of them four are direct recruits and the rest are promotees. Shri Venkataramani has submitted that applying the quota rule 9 vacancies could be available for direct recruits; out of these 29 appointments and 20 vacancies were available for promotees and that as per seniority, the appellant is placed at Sl. No. 19 amongst the promotees and therefore, the appointment of the appellant is within the quota. It is no doubt true that in the absence of any material which gives the actual vacancies in a year, it may be reasonable to accept the figure of appointment in that year as substantially representing the actual vacancies (see Bishan Sarup Gupta v. Union of India) We cannot, however, apply the said criterion in the present case, because a number of persons after appointment on the post of Controller have been sent on deputation and the appointments were made against temporary vacancies resulting from such officers being sent on deputation. This would be evident from Annexure R/3 to the affidavit of Shri Bains filed in the High Court which shows that in March 1974 three officers, viz., Shanti Swarup Suri, O.P. Gupta and B.N. Madhok were on deputation. We also find that by order dated 22-3-1974, Lakhbir Singh, G.S. Chawla and Respondent 3 were sent on deputation with the State Civil Supplies Corporation Ltd. and by another order of the same date, the appellant and Niranjan Singh were sent on deputation to the State Civil Supplies Corporation. It has been stated in the counter-affidavit filed by Shri T.R. Bhatia on behalf of the State in this Court that the appellant and Respondent 3 were sent on deputation in order to make room for the direct recruits, viz., Surjit (Downloaded on 01/10/2022 at 08:43:20 PM) (8 of 43) [CW-5926/2022] Singh and Respondent 2. We cannot, therefore, proceed on the basis that the number of vacancies during the period from 1966 to 9-4-1974 were the same as the number of persons who were appointed as Controllers during that period. Even according to the list of appointments submitted by Shri Venkataramani 23 appointments were made on the post of Controller during the period from 7- 7-1966 to 6-12-1972 out of which two were direct recruits and the rest 21 were promotees or officers appointed by transfer. On the basis of the quota rule 8 posts were for direct recruits and 15 posts were available for promotees and officers appointed by transfer which would mean that an appointment made in excess of 15 posts was not within the quota fixed for promotees under the Rules. In the list submitted by Shri Venkataramani, the appellant is placed at Sl. No. 18 in the list of promotees. His appointment on 6-12-1972 was, therefore, in excess of the quota fixed for promotees. The fact that before the appointment of direct recruits, viz., Surjit Singh and Respondent 2 in March and April 1974 the appellant and other officers had to be sent on deputation to make room for the direct recruits would show that till then no regular vacancy within the quota was available against which the appellant could be absorbed. It must, therefore, be held that the appointment of the appellant as Controller was in excess of the quota and it continued to be so till Respondent 2 was appointed by direct recruitment.
12. Once it is held that the appointment of the appellant was in excess of the quota fixed for promotees and officers appointed by transfer, the said appointment has to be treated as an invalid appointment and it can be treated as a regular appointment only when a vacancy is available against the promotion quota against which the said appointment can be regularised. In other words, any such appointment in excess of the quota has to be pushed down to a later year when it can be regularised as per the quota and such an appointment prior to regularisation cannot confer any right as against a person who is directly appointed within the quota prescribed for direct recruits (see N.K. Chauhan v. State of Gujarat.) Since at the time of the appointment of Respondent 2, the appellant was holding the post of Controller in excess of the quota fixed for promotees, he cannot claim seniority over Respondent 2 on the basis of such appointment and he has to make way for Respondent 2. He has, therefore, been rightly placed junior to Respondent 2 in the cadre of Controllers. In view of Rule 6(3) promotion from the (Downloaded on 01/10/2022 at 08:43:20 PM) (9 of 43) [CW-5926/2022] post of Controller to the post of Deputy Director had to be made on the basis of seniority-cum-merit. Respondent 2, by virtue of his being senior to the appellant in the cadre of Controllers, was entitled to be promoted as Deputy Director earlier than the appellant but he was denied such promotion in view of the earlier seniority list of 6-1-1981 wherein he was shown as junior to the appellant. But after the seniority list of 7-3-1983 wherein he is shown as senior to the appellant, Respondent 2 is entitled to claim seniority over the appellant in the cadre of Deputy Directors also and he was rightly treated as senior to the appellant in the said cadre and on that basis he was promoted as Joint Director by order dated September (sic) 1983. We do not find any infirmity in the said order."
11. A coordinate Bench of this Court in the matter of Smt. Prabha Tak v. State of Rajasthan & Ors. (S.B.CIVIL WRIT PETITION NO.5392/2003), decided on 04.07.2007 has held as under :-
"In reply, stand of the respondent State is that in compliance of the directions given by the Tribunal meeting of DPC was convened to consider individual cases and promotions were given without reverting junior officer. With the assertion above, the respondent State also stated that "shadow posts have been created in various years of selection scales of RAS but review DPC has not yet been convened, matter is under process". The stand as above is reiterated in reply to rejoinder as follows:-
"That the contents of para No. 22 of the rejoinder are denied and the respondents reiterate whatever is stated in the reply to the writ petition. However, it is submitted that the matter of review for the promotions to selection scale for the year 1991-92 is under process. Hence, the rights of the petitioner cannot be said to have been affected."
I do not find any substance in the preliminary objections raised by the respondents. The petitioner has certainly filed an appeal giving challenge to the order dated 23.2.1996 giving promotions to 12 persons for the vacancies relating to the year 1991- 92 against merit quota, however, that is on basis of relative merit of officers within the zone of consideration. The present petition for writ is preferred by the petitioner to assail validity of improper application of the directions given by the (Downloaded on 01/10/2022 at 08:43:20 PM) (10 of 43) [CW-5926/2022] Tribunal by the Government while reviewing and reconsidering the recommendations of the DPC made earlier. The petitioner in this petition for writ has also given challenge to grant of promotions in excess to the actual number of vacancies in RAS selection grades under merit quota. All these questions are not subject matter of appeal pending before the Tribunal filed by the petitioner.
On merits, the first issue that requires determination is that whether the State Government was right in giving promotions to the officers in selection grade under merit quota by creating shadow posts in excess to the vacancies available?
All promotions subsequent to the order dated 23.2.1996 are given by Government of Rajasthan in compliance of the directions given by the Tribunal. It is not in dispute that such promotions are in excess to the vacancies available for the promotions under merit quota. According to Rule 28(B)(1) of the Rules of 1954 as soon as the appointing authority determines number of vacancies as per Rule 9 of the Rules of 1954 and decide that a certain number of posts are required to be filled in by promotion, it shall prepare a correct and complete list of senior most persons who are eligible and qualified for promotion on the basis of seniority-cum-merit or on basis of merit to the class of posts concerned. Sub-rule(6) of Rule 28(B) of the Rules of 1954 provides that the selection for promotion to all higher posts or higher categories of posts in the service shall be made on basis of merit and on basis of seniority-cum-merit in the proportion of 50:50. According to sub-rule(11) clause (a) of Rule 28(B) of the Rules of 1954 the DPC is required to consider the cases of all senior most persons who are eligible and qualified for promotion to the class of posts concerned and shall prepare a list containing names of persons found suitable on basis of senioritycum-merit and/or on basis of merit, as the case may be, as per the criteria for promotion laid down under the Rules. The list so prepared on basis of senioritycum-merit and/or on basis of merit, as the case may be, is required to be arranged in order of seniority relating to the category of posts from which selection is made.
In view of the discussions made above, this petition for writ deserves acceptance. Accordingly, the same is allowed. The respondent State is directed to hold review DPC to make promotions to the RAS selection grade for the vacancies relating to the (Downloaded on 01/10/2022 at 08:43:20 PM) (11 of 43) [CW-5926/2022] year 1991-92 against merit quota in accordance with the Rules of 1954 by taking into consideration candidature of all the persons coming within the zone of consideration. The State Government while making promotions to RAS selection grade against the vacancies of the year 1991-92 under the recommendations of the review DPC shall also ensure maintenance of equal proportion of promotions under the quota of seniority-cum-merit and merit.
The promotions, against the vacancies of the year 1991-92, made to RAS selection grade by individual assessment of the officers after 23.2.1996 are declared illegal, however, the position of the persons so promoted shall not be disturbed till the review DPC takes place and promotions be made accordingly by appointing authority. The meeting of the DPC to review and reconsider candidature of the eligible persons for promotion to RAS selection grade against the vacancies year of 1991-92 shall be convened by the State Government within a period of three months from today and necessary orders of promotion shall be passed within a period of 15 days subsequent thereto."
12. The Hon'ble Supreme Court in the matter of Union of India and Others v. N.Y. Apte and Others, (1998) 6 SCC 741 has held as under :-
"6. We have heard learned counsel on both sides and perused the records. We are unable to agree with the view expressed by the Tribunal that by the amended Rules, unequals are treated as equals. Before setting out our reasons, it is necessary to point out that at the time when the respondents filed the writ petition before the High Court of Delhi, they were not even in the zone of consideration for promotion to the post of MG I. In fact, the Tribunal has taken note of the same and observed that they have not earned eligibility for promotion to the cadre of MG I as they did not have to their credit five years of approved service in the grade as on that date. Thus when the respondents approached the Court, they could not even claim that they had a chance of promotion at that time. The writ petition ought not to have been entertained at their instance. In view of the passage of time, we do not propose to rest our conclusion on that aspect of the matter.(Downloaded on 01/10/2022 at 08:43:20 PM)
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7. We have already pointed out that in 1978, when the 1969 Rules were partially superseded and the posts of MG I and MG II were bracketed with higher posts all of which were termed as Group A posts, the persons holding the posts of AM lost their chance of getting promoted to the post of MG II as the same was to be filled up entirely by direct recruitment though they had the requisite educational qualification. The only promotional avenue available to them under the 1969 Rules was closed. Necessarily, the rule-making authority had to make an alternative provision for such qualified persons with an avenue of promotion. Hence the 1978 Rules widened the field of consideration for promotion to the post of MG I by including persons who had put in a long number of years of service either as AM exclusively or as MG II and AM put together. It is obvious that the rule-making authority gave credit to the experience gained by AM either as AM or as AM and MG II for a specified number of years. When the educational qualifications are same and the scales of pay are almost equal, there is nothing wrong in equating MG II with five years' approved service in the grade with MG II with total of 8 years' combined approved service in the grades of MG II and AM as well as AM with 10 years' approved service in the grade. The mere fact that on account of certain fortuitous or other circumstances, a person with equal educational qualification entered the service in a lower grade will not keep him permanently inferior or unequal to a person who had entered a higher grade and prevent him from being placed on a par with the latter after gaining sufficient experience in the service.
8. Further, what all has been done in the Rules is only to include such persons in the field of consideration and give an opportunity to them to be considered for promotion. It should not be forgotten that such promotion is only by selection and that too by a Board consisting of high officials in consultation with the UPSC on each occasion. In such a situation, there is no warrant for the contention of the respondents that they have been deprived of any right. It is too well settled that chance of promotion is not a right, nor a condition of service."
13. The Hon'ble Supreme Court in the matter of Union of India and Others v. Colonel G.S. Grewal, (2014) 7 SCC 303 has held as under :-
(Downloaded on 01/10/2022 at 08:43:20 PM)(13 of 43) [CW-5926/2022] "28. As pointed out above, the Tribunal has partly allowed the OA of the respondent primarily on the ground that the decision contained in the Government Order dated 23-4-2010 amends the promotion policy retrospectively thereby taking away the rights already accrued to the respondent in terms of the earlier policy. It is also mentioned that the revised policy fundamentally changes the applicant's prospects of promotion. What is ignored is that the promotions already granted to the respondent have not been taken away. Insofar as future chances of promotions are concerned, no vested right accrues as chance of promotion is not a condition of service. Therefore, in the first instance, the Tribunal will have to spell out as to what was the vested right which had already accrued to the respondent and that is taken away by the Policy decision dated 23-4-2010. In this process, other thing which becomes relevant is to consider that once the respondent is permanently seconded in DGQA and he is allowed to remain there, can there be a change in his service conditions vis-à-vis others who are his counterparts in DGQA, but whose permanent secondment is not in cloud? To put it otherwise, the sole reason for issuing Government Policy dated 23-4-2010 was to take care of those cases where permanent secondment to DGQA was wrongly given. As per the appellants, since the respondent had suffered final supersession, he was not entitled to be seconded permanently to DGQA. This is disputed by the respondent. That aspect will have to be decided first. That apart, even if it be so, as contended by the appellants, the appellants have not recalled the permanent secondment order. They have allowed the respondent to stay in DGQA maintaining his promotion as Colonel as well, which was given pursuant to this secondment. The question, in such circumstances, that would arise is whether the respondent can be treated differently even if he is allowed to remain in DGQA viz. whether not allowing him to take further promotions, which benefit is still available to others whose permanent secondment is not in dispute, would amount to discrimination or arbitrariness thereby offending Articles 14 and 16 of the Constitution of India. In our opinion, these, and other related issues, will have to be argued and thrashed out for coming to a proper conclusion."
14. The Hon'ble Supreme Court in the matter of Official Liquidator v. Dayanand and Others, (2008) 10 SCC 1 has held as under :-
(Downloaded on 01/10/2022 at 08:43:20 PM)(14 of 43) [CW-5926/2022] "59. The creation and abolition of posts, formation and structuring/restructuring of cadres, prescribing the source and mode of recruitment and qualifications and criteria of selection, etc. are matters which fall within the exclusive domain of the employer. Although the decision of the employer to create or abolish posts or cadres or to prescribe the source or mode of recruitment and laying down the qualification, etc. is not immune from judicial review, the Court will always be extremely cautious and circumspect in tinkering with the exercise of discretion by the employer. The Court cannot sit in appeal over the judgment of the employer and ordain that a particular post or number of posts be created or filled by a particular mode of recruitment. The power of judicial review can be exercised in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provisions or is patently arbitrary or vitiated by mala fides.
63. In view of the abovestated legal position, we hold that the directions given by the High Courts for creation of supernumerary posts to facilitate absorption of the company-paid staff are legally unsustainable and are liable to be set aside."
15. The Hon'ble Supreme Court in the matter of State of Gujarat and Others v. R.J. Pathan and Others, (2022) 5 SCC 394 has held as under :-
"16. From the impugned order passed by the Division Bench of the High Court it appears that the High Court has observed hereinabove that in the peculiar facts and circumstances of the case, it is directed that the order of absorption and regularisation and if necessary, by creating supernumerary posts, will not be treated as a precedent in other cases. Even such a direction could not have been passed by the Division Bench of the High Court as there were no peculiar facts and circumstances which warranted the above observation. No such order of absorption and/or regularisation even if required for creating supernumerary posts and not to treat the same as precedent could have been passed by the High Court in exercise of powers under Article 226 of the Constitution of India."(Downloaded on 01/10/2022 at 08:43:20 PM)
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16. Learned Advocate General during the course of arguments very fairly submits that even if some mistake has been committed by the respondents in calculating the year wise vacancy then the State Government can correct the said mistake by holding the review DPC for which the employee has only right of consideration for promotion and can correct such mistake by changing their year of promotion.
17. Learned counsels appearing on behalf of some of the employees have also filed writ petitions directly before this Court being CWP-13746/2018, 18671/2018, 24498/2018, 11515/2022 & 12360/2022 with regard to their non-promotion and non-
determination of year-wise vacancies.
18. Learned Senior Counsel Mr. Rajendra Prasad appearing on behalf of the employees as well as appearing as counsels for the petitioners in the connected matters along with Mr. Vigyan Shah and Mr. Shobhit Tiwari submitted that the Tribunal has rightly recorded its finding with regard to wrongful calculation of year wise vacancies, based on the Rule as well as vacancy chart submitted on behalf of the State of Rajasthan before the Tribunal and rightly directed for conducting a review promotional exercise for creation of shadow posts based on the judgment of the Tribunal with regard to those who have already promoted in excess. They further submitted that it is the duty of the State Government to follow the Rules for promotion more particularly Rule 10(1)(a)(b)(c) of the Rules of 1989. They further relied upon the Rule 27, 29 & 31 of the Rules of 1989. They further submitted that for promotional exercise the department has to determine year wise vacancy as on 1st April of every year and the department (Downloaded on 01/10/2022 at 08:43:20 PM) (16 of 43) [CW-5926/2022] has to further hold the promotional activities as per the procedure prescribed under Rule 27 and conduct the qualifying examination as prescribed under Rule 29 and thereafter the substantive promotion in the service shall be given by the department as per the approved list. They further submitted that if the State Government does not want to revert the persons who have wrongfully given promotion due to wrong calculation of vacancies then in view of Rule 18 there is power vests with the State Government to create supernumerary posts to make compliance of the judgment passed by any court or to correct the factual errors. They further submitted that the Tribunal has rightly given the directions for creation of shadow posts in view of Rule 18 of Rajasthan Service Rules (hereinafter to be referred as 'RSR') and that was admitted position before the Tribunal with regard to the wrongful calculation of the vacancies. They further submitted that the State Government be directed to re-do the promotional exercise and promote them in the year in which they found place.
They further submitted that by creating supernumerary posts there will be no financial burden on the State Government as most of the employees are already getting the financial benefits i.e. ACP benefits under the Rules of 1989. They further submitted that before the Tribunal the State Government has not disputed the calculation given by the appellants before the Tribunal and the Tribunal has passed the order based on the calculation accepted by the department in their reply. In support of their contentions they relied upon the following judgments :-(Downloaded on 01/10/2022 at 08:43:20 PM)
(17 of 43) [CW-5926/2022]
19. The Hon'ble Supreme Court in the matter of Syed Khalid Rizvi and Others v. Union of India and Others, 1993 Supp (3) SCC 575 has held as under :-
"9. It would, thus, be clear that the Selection Committee shall consider the eligibility and suitability of the members of the State Police Service on the basis of merit, ability and suitability. Seniority will be considered only where merit, ability and suitability are approximately equal and it should prepare the select-list of such suitable officers in the order of merit in each category such as 'outstanding', etc. and send the select-list in order of seniority to the State Government who with its comments would forward the same to the UPSC for approval. The UPSC again would review the list, if necessary, with prior notice to the State Government and revise the order of names (seniority) in the list which should be final and operative for a period of 12 months. The list should consist of such number plus 20 per cent or two officers whichever is more and of three times the anticipated substantive vacancies in the cadre posts. The appointment to the cadre posts should be made by the Central Government in the order in the list on the recommendation of the State Government. The word "may" in Regulation 5 indicates that the Committee ordinarily meets at intervals not exceeding one year. Though the word "may" indicates that it is not mandatory to meet at regular intervals, since preparation of the select-list is the foundation for promotion and its omission impinges upon the legitimate expectation of promotee officers for consideration of their claim for promotion as IPS officers, the preparation of the select-list must be construed to be mandatory. The Committee should, therefore, meet every year and prepare the select-list and be reviewed and revised from time to time as exigencies demand. No officer whose name has been entered in the list has a vested right to remain in the list till date of appointment. The list would be liable to shuffle and the name may be excluded from the list on the comparative assessment of merit, ability and suitability based on the anticipated or expected availability of the vacancies within quota etc. The junior may supersede the senior and may be ranked top."
20. The Hon'ble Supreme Court in the matter of Delhi Administration through Chief Secretary and Ors. v. Nand Lal Pant and Ors., (1997) 11 SCC 488 has held as under :-
(Downloaded on 01/10/2022 at 08:43:20 PM)(18 of 43) [CW-5926/2022] "3. It is now for the first time that stand has been taken by the petitioner (respondent in the writ petition) that by letter dated 22-12-1992 the School was informed that the Deputy Director (East) was "pleased to accord the clearance for PGT (Sanskrit) reserved for Scheduled Caste candidates". Pursuant to that it would appear that one Rajbir Singh belonging to Scheduled Castes was appointed w.e.f. 30-9-1993 and ever since he was working in the said post. As per the Recruitment Rules, there is no direct channel of promotion from TGT (General) to PGT (Sanskrit). As a consequence, the first respondent as of right is not entitled to promotion as PGT (Sanskrit), that too in a post reserved for Scheduled Castes. But since the first respondent has been working since 1986 in PGT (Sanskrit) from June 1986 when the post fell vacant, in the facts and circumstances, we think that the appellants have to be directed to create a supernumerary post of PGT (Sanskrit) and allow the first respondent to continue in that post till he retires. That post may be created in any school or directorate as the case may be. He would be entitled to the scale of pay of PGT (Sanskrit) from the date of the creation of the post. This direction to adjust him by creation of supernumerary post and to permit the first respondent to continue in that post should not be treated as a precedent in any other case. No one is entitled to jump the regular channel merely on the basis of qualification acquired or the basis of having officiated in a higher post."
21. A Coordinate Bench of this Court in the matter of Neelam Sharma (Miss) vs. Rajasthan Public Service Commission and Ors. , RLW 2005 (4) Raj 2736, has held as under :-
"12. In view of the above discussion, this writ petition is allowed and direction is given to the respondents to issue appointment letter to the petitioner in case she has successfully undergone the training which was provided to her once again under interim orders issued by this Court. This Court has not been apprised as to whether a seat for the petitioner has been kept vacant or not. In case one seat has been kept vacant, there would be no problem in appointing the petitioner. If, however, no seat might have been kept vacant and all the advertised posts might have been filled, the Government may create supernumerary post or make appointment of the petitioner against a post which may be vacant on (Downloaded on 01/10/2022 at 08:43:20 PM) (19 of 43) [CW-5926/2022] account of passage of time. It will be iniquitous at this stage to relieve the last candidate in the category of petitioner but in case the respondents, for some valid reason, may not be able to create supernumerary post or make appointment of the petitioner against a post which may be lying vacant because of passage of time, the last candidate in the category of the petitioner shall have to be relieved. Petitioner, in any case, has to be given appointment. Inasmuch as the petitioner has suffered because of delay in not having been appointed on the post, which she deserved, for a long time, a further direction is issued to the respondents to issue her appointment letter within fifteen days from the date of receipt of copy of this order. A copy of this order be given to the learned Advocate General and the Registrar General of this Court under the signatures of the Court Master."
22. The Hon'ble Supreme Court in the matter of Gaurav Pradhan and Ors. v. State of Rajasthan and Ors.,(2018) 11 SCC 352 has held as under :-
"49. On the question of existence of vacancies, although the learned counsel for the appellant submitted that vacancies are still lying there, which submission, however, has been refuted by the learned counsel for the State of Rajasthan. However, neither the appellants had produced any details of number of vacancies nor has the State been able to inform the Court about the correct position of the vacancies. We thus, for adjusting the equity between the parties issue the following directions:
(1) The writ petitioners/ Appellants who as per their merit were entitled to be appointed against unreserved vacancies which vacancies were filled up by migration of SC/ST/BC candidates, who had taken relaxation of age, should be given appointment on the posts. The State is directed to work out and issue appropriate orders for appointment of such candidates who were as per their merit belonging to general category candidates entitled for appointment, which exercise shall be completed within three months from the date copy of this order is produced.
(2) The State shall make appointments against the existing vacancies, if available, and in the event there are no vacancies available for the above candidates, the supernumerary posts may be created for adjustment of the appellants which supernumerary (Downloaded on 01/10/2022 at 08:43:20 PM) (20 of 43) [CW-5926/2022] posts may be terminated as and when vacancies come into existence."
23. The Hon'ble Supreme Court in the matter of D.K. Reddy and Ors. v. Union of India and Ors., (1996) 10 SCC 177 has held as under :-
"13. Even if the authorities concerned undertook a fresh exercise for fixing inter se seniority of the direct recruits in Group 'B' like the appellants and the AMEOs who were absorbed in the cadre, and accordingly also held a fresh Review DPC for considering the question of promotion of these Group 'B' officers to the higher cadre of Group 'A' posts, the appellants were not to be disturbed. Consequently, if any adverse effects ensued on account of the said exercise by the Review DPC, protection was given to the direct recruits like the appellants by creation of supernumerary posts, if necessary, as a result of recommendations of Review DPC; and that Review DPC should be held for reviewing promotions to the number of vacancies in the Group 'A' posts as and when they arose. In this connection, it was submitted that the term "supernumerary post" is a term of art, well recognised in service jurisprudence. A supernumerary post is a permanent post and Government of India's own instructions relating to creation of such posts occur under the definition of permanent posts given in Fundamental Rule 9(22) from which the following features would emerge:
(i) It is always a permanent post.
(ii) It is created to accommodate the lien of an officer, who in the opinion of the authority competent to create such a post, is entitled to hold a lien against a regular permanent post.
(iii) It is created due to non-availability of a regular permanent post. Such post is personal to the officer for whom it is created and stands abolished as soon as the officer for whom it was created vacates it.
(iv) It is a shadow post, inasmuch as no duties are attached to it and the officer concerned performs duties in some other vacant temporary or permanent post.
16. Having given our anxious consideration to these rival contentions we have reached the conclusion that respondent authorities had misunderstood and misapplied the directions contained in the earlier order of the Tribunal as found in paras 46 and 47 of its decision dated 30-11-1988 which was confirmed by this Court as noted earlier. In retrospect it (Downloaded on 01/10/2022 at 08:43:20 PM) (21 of 43) [CW-5926/2022] emerges that initially there was a bi-parte dispute between the appellants as directly recruited Group 'B' officers on the one hand and AMEOs who were absorbed in Group 'B' service from 19-1-1976 on the other. It was this bi-parte dispute which was resolved by its order dated 30-11-1988 and which was finally redressed by this Court by its decision dated 27-2- 1990. Pursuant to the said decision a fresh exercise was to be undertaken by the Review DPC after inter se seniority in Group 'B' was refixed between the then warring groups, namely, direct recruit Group 'B' officers like the appellants on the one hand and AMEOs absorbed Group 'B' officers on the other. It is easy to visualise that on account of that refixation of inter se seniority of Group 'B' officers if the appellants had to be pushed down in seniority in Group 'B' cadre because of the higher ranking of AMEOs in that cadre on account of longer continuous officiation in defence service, a question would arise as to whether for the promotion to the then existing vacancies in next higher posts in Group 'A' Junior Time Scale, the appellants could have been promoted on 19-1-1973 and 5-3-1975 or their seniors like the AMEOs who at the relevant time were not in the picture but retrospectively emerged as senior in Group 'B' posts pursuant to refixation of inter se seniority in the light of the Tribunal's earlier decision. And if as a result of that exercise the Review DPC found that instead of Appellant 1 being promoted to the Junior Time Scale of Group 'A' any other senior should have been so promoted, namely, the AMEO concerned who was subsequently found to be senior on account of refixation of inter se seniority, then the then available promotional vacancy in 1973 would go to senior AMEO concerned in Group 'B' and a question would consequently arise whether Appellant 1 should be treated to have been wrongly promoted to the lowest time scale post in Group 'A', namely, Junior Time Scale. This would adversely affect Appellant 1. And if that was so found and a need arose for Appellant 1 to be pushed down to Group 'B' post, because of non- availability of other vacant post in that cadre, then at that stage the question of creating a supernumerary post to retain Appellant 1 in the promoted post of Junior Time Scale Group 'A' on 19-1-1973 would squarely arise. Similarly, such an exercise had to be undertaken for deciding whether further promotion of Appellant 1 to the higher level of Group 'A' posts, namely, Senior Time Scale in 1982 was justified and if it was found that on 15-2-1982 the available vacancy should have gone to the really senior AMEO instead of Appellant 1, then Appellant 1 had to be treated to be fitted against a supernumerary post in Senior Time Scale at that stage. Same principle and procedure would apply for considering the claim of (Downloaded on 01/10/2022 at 08:43:20 PM) (22 of 43) [CW-5926/2022] Appellant 1 for being retained on the promotional post in Junior Administrative Grade in Group 'A'. For Appellant 2 also similar exercise had to be undertaken by the Review DPC and the respondent authorities concerned. Thus, creation of supernumerary posts at all levels of promotional avenues in Group 'A' posts, to serve as a cushion to absorb and neutralise the adverse effects on past promotions of the appellants to such posts was clearly contemplated by the directions of the Tribunal in its earlier decision which was confirmed by this Court. Thus, the Review DPC had to consider the question of regularisation of vacancies retrospectively at all the levels of Group 'A' posts in the light of refixation of inter se seniority of AMEOs and directly recruited Group 'B' officers like the appellants pursuant to the aforesaid decision. This exercise is clearly enjoined by the directions in paras 46 and 47 of that decision. The directions contained in para 47 especially directions (b) and (d) will have to be read in the light of the general directions in para 46 as aforesaid. Direction (b) in para 47 in terms lays down that the Review DPCs should be held afresh as of various years in which vacancies in the higher posts in Group 'A' had arisen and regular appointments should be made on the basis of the recommendations of the Review DPCs. Thus even though the Review DPC might have been held at a time, the Review DPC was enjoined to reconsider the promotion to vacancies that had arisen in various grades of Group 'A' posts, namely, Junior Time Scale, Senior Time Scale and Junior Administrative Grade. In that light direction (d) in para 47 has also to be visualised. It has been in terms clearly laid down that if in the process of such review of promotions, persons who have already been promoted were likely to be adversely affected, they should be accommodated by creating adequate number of supernumerary posts."
24. The Delhi High Court in the matter of Sunita Devi and Ors.
vs. Union of India and Ors., W.P. (C) 2254/2014, decided on 11.03.2015 has held as under :-
"13. The facts of the instant case would certainly attract the principle of law declared by the Supreme Court in the aforenoted two decisions, in which we find that probably for the reason the respondents never pleaded, as they have done in the instant case, that supernumerary post would have to be created to adjust the excess number of candidates who would (Downloaded on 01/10/2022 at 08:43:20 PM) (23 of 43) [CW-5926/2022] not have to be given appointment. We would be failing therefore not to deal with said argument because it has been raised before us.
18. The word 'supernumerary' is an adjective which means 'exceeding the usual number'. When used as a noun the word means 'a temporary employee, an additional society member, extra manpower'. As a noun it is normally used in a function which has a temporary contract.
20. The decision taken by the Ministry of Finance has not understood that a supernumerary post is created to accommodate a person till he is absorbed substantially against a regular permanent post, and this would mean that as and when post of Head Constable in CRPF would fall vacant, the supernumerary post could be adjusted against the regular permanent vacancies in the 10% LDCE quota. This means that the petitioners and other persons who would be accommodated without a reversion would not hold supernumerary post till they would superannuate from service. As and when a permanent vacancy would accrue, the supernumerary post would be adjusted."
25. The Hon'ble Supreme Court in the matter of B.S. Bajwa and Ors. v. State of Punjab and Ors. (1998) 2 SCC 523, has held as under :-
"7. Having heard both sides we are satisfied that the writ petition was wrongly entertained and allowed by the Single Judge and, therefore, the judgments of the Single Judge and the Division Bench have both to be set aside. The undisputed facts appearing from the record are alone sufficient to dismiss the writ petition on the ground of laches because the grievance was made by B.S. Bajwa and B.D. Gupta only in 1984 which was long after they had entered the department in 1971-72. During this entire period of more than a decade they were all along treated as junior to the other aforesaid persons and the rights inter se had crystallised which ought not to have been reopened after the lapse of such a long period. At every stage others were promoted before B.S. Bajwa and B.D. Gupta and this position was known to B.S. Bajwa and B.D. Gupta right from the beginning as found by the Division Bench itself. It is well settled that in service matters the question of seniority should not be re-opened in such situations after the (Downloaded on 01/10/2022 at 08:43:20 PM) (24 of 43) [CW-5926/2022] lapse of a reasonable period because that results in disturbing the settled position which is not justifiable. There was inordinate delay in the present case for making such a grievance. This alone was sufficient to decline interference under Article 226 and to reject the writ petition."
26. The Hon'ble Supreme Court in the matter of Kusheswar Nath Pandey v. State of Bihar and Ors. (2013) 12 SCC 580, has held as under :-
"5. Being aggrieved by that order, the appellant filed the above referred Writ Petition No. 4369 of 2010. The learned Single Judge of the High Court who heard the matter allowed that writ petition. He held that the time-bound promotion granted to the appellant eleven years earlier was not because of any fault or fraudulent act on the part of the appellant, and therefore could not be cancelled. The learned Single Judge allowed that writ petition and set aside the order cancelling his promotion. It is also relevant to note that the appellant had passed the required examination in the meantime in 2007 and had retired on 31-5-2009.
10. In our view, the facts of the present case are clearly covered under the two judgments referred to and relied upon by Mr Rai. The appellant was not at all in any way at fault. It was a time-bound promotion which was given to him and some eleven years thereafter, the authorities of the Bihar Government woke up and according to them the time-bound promotion was wrongly given and that the relevant rules are being relied upon and that too after the appellant had passed the required examination."
27. The Hon'ble Supreme Court in the matter of V. Balasubramaniam and Others v. Tamil Nadu Housing Board and Others, (1987) 4 SCC 738 has held as under :-
"18. We, however, make it clear that if in the process of reviewing the promotions already made in accordance with the directions issued by the learned Single Judge it becomes necessary to revert any Junior Engineer from the post which he is now holding we direct that he shall not be so reverted but he shall be continued in the post which he is now holding by creating a supernumerary post, if (Downloaded on 01/10/2022 at 08:43:20 PM) (25 of 43) [CW-5926/2022] necessary, until such time he becomes again eligible to be promoted to the said post. The continuance of such Junior Engineer in the post which he is now holding as per this direction shall not, however, come in the way of the petitioners in the writ petitions or any other employee of the Board getting the promotion due to him and the seniority to which he is entitled in accordance with law. These appeals are accordingly allowed. There shall, however, be no order as to costs."
28. The Hon'ble Supreme Court in the matter of S.L. Sachdev and Another v. Union of India and Others (1980) 4 SCC 562 has held as under :-
"15. The petitioners have also challenged the provision in column 10 of Item 3 of the Schedule to the Recruitment Rules of 1969 which provides that UDCs drawn from Audit Offices must put in 10 years of service for acquiring eligibility for promotion whereas other UDCs are eligible for promotion after putting in 5 years' service. We are not inclined to entertain that challenge since the impugned provision has been in force since 1969 and it was not until the filing of this petition in 1979 that any objection was taken to its legality. Besides, we are of the opinion that considering the history leading to the formation of the new Organisation, SBCO-ICO, the distinction made between the two classes of UDCs in the context of the length of their service for the purposes of promotion is not arbitrary or unreasonable. The staff of the Audit Offices which was engaged in the Savings Bank's work might well have faced retrenchment. Instead of subjecting them to that hardship, they were given the option of joining the new Organisation. Experiencewise also, there would appear to be fair justification for requiring them to put in longer service in the new Organisation before they are eligible for promotion to the higher grade. That challenge has therefore to be repelled.
16. In the result, we allow the writ petition partly and quash the directions issued by Respondent 2 by his letters of May 16, 1975 and May 29, 1965 to the effect that UDCs drawn from the Audit Offices will be eligible for promotion to the Selection Grade on the basis of 10 per cent of the posts held by them or to the Head Clerks' cadre on the basis of 20 per cent of the posts held by them in SBCO-ICO. They and the other UDCs will accordingly be entitled equally to promotional opportunities. We direct that the (Downloaded on 01/10/2022 at 08:43:20 PM) (26 of 43) [CW-5926/2022] petitioners, and others similarly situated as them, shall be promoted to the Selection Grade/Head Clerks Cadre with effect from the dates on which they were due for promotion, by applying the test of seniority- cum-fitness. Since we have upheld the provision in column 10 of Item 3 of the Schedule to the Recruitment Rules, 1969, the petitioners will have become eligible for promotion after completing 10 years' service in SBCO-ICO. Since the demotion of the respondents or any of them is likely to lead to undue hardship to them and to some administrative confusion, the government may create supernumerary posts to which the petitioners and others similarly situated as them, may be promoted. We are informed that consequent upon the judgments of the High Courts of Kerala and Karnataka, the government has adopted a similar course in the Kerala and Karnataka Circles."
29. The Division Bench of this Court in the matter of Rajendra Singh v. State of Rajasthan and Ors., 1993 2 RLR 304 has held under as under :-
"20. In the light of the above principles we may examine the order passed by the Tribunal whereby it has upheld the supersession of the petitioner brought about by order dated, 2.5.81. The Tribunal has observed that the DPC cannot be said to have committed any mistake in not selecting the appellant (petitioner) for promotion to the post of Senior Lecturer on account of adverse remarks, it has distinguished the decision dated, 2.11.82 given in appeal No. 400/81, Chand Mal Mittal v. State of Rajasthan (erroneously referred to as Chand Mal Porwal v. State of Rajasthan). A close scrutiny of the order of the Tribunal clearly shows that the Tribunal has not at all examined the record of the DPC and ACRs of the petitioner to decide as to whether superssession of the petitioner was justified. Discussion made by the Tribunal in regard to the question of fair consideration of the case of the petitioner is thoroughly arbitrary, casual and perfunctory. The Tribunal has proceeded to examine the appeal as if it was exercising a supervisory jurisdiction and not an appellate jurisdiction. It has completely lost sight of the fact that its jurisdiction is co-extensive with that of the departmental promotion committee/the appointing authority, as has been laid down by the division bench of this Court in State of Rajasthan v. Aklank Jindal 1982 L.I.C. 1828 . In the said case this Court had examined the ambit and (Downloaded on 01/10/2022 at 08:43:20 PM) (27 of 43) [CW-5926/2022] scope of the jurisdiction of the Rajasthan Civil Services Appellate Tribunal and held that the Tribunal can exercise those powers which are exercisable by the departmental promotion committee or by the appointing authority. In our opinion, the approach of the Tribunal is not consistent with the judgment of this Court in State of Rajasthan v. Aklank Jindal and is also contrary to the scheme of the Act of 1976. We wish to make it clear that the Rajasthan Civil Services Appellate Tribunal exercises appellate jurisdiction and not a supervisory jurisdiction as is exercised by the Central Administrative Tribunal constituted under the Administrative Tribunals Act, 1985."
30. The Division Bench of this Court in the matter of State of Rajasthan v. Aklanka Jindal, 1982 LAB.I.C. 1848 held as under :-
"7. As regards the adverse entry for the year 1973- 74, the tribunal in its order observed that in the year 1973-74, the appellant worked in two districts namely Banner and Ganganagar. In the second part of the year the appellant had earned a good A.C.R. from the Collector and it had been counter-signed right up to the level of Chief Secretary. However, in the first part of 1973-74 there was an adverse entry in A.C.R. The adverse entry was given on 24th Nov. 1975 after about 1 1/2 years. The representation against the adverse entry was rejected on 11th May, 1976. If the A.C.R. for the entire period of 1973-74 was to be taken into consideration, the D.P.C. ought to have taken both parts into consideration. In the view of the tribunal in 7 years' record, the factor of six months only was adverse this should not have weighed so heavily against the appellant especially when he was being considered on the basis of seniority.
In our view, it cannot be said that the tribunal in taking the aforesaid view committed any error of law or exceeded its jurisdiction so as to call for any interference in the exercise of extraordinary jurisdiction of this Court. As regards the punishment of stoppage of two grade increments the case of the State Goverment is that it was not taken into consideration as adverse against Shri Jindal by D.P.C. of 1976 as a representation against the same was pending. In this regard the tribunal observed that it had not been shown before them or even stated by the leamed counsel for the State that the Goverment had arrived at any definite decision on his review application at the time of 1976 D.P.C. If there was no (Downloaded on 01/10/2022 at 08:43:20 PM) (28 of 43) [CW-5926/2022] decision on the file how could they treat the punishment as non-existent. The tribunal thus took the view that the list prepared by the D.P.C. in the year 1976 was prepared on the basis of merit only. When merit was the criteria, close scrutiny is made and the selection committee is to assess the fact not merely on the basis of seniority but by a comparison of merits of all the eligible candidates. If the appellant could stand the scrutiny in 1976 it was not clear as to how the D.P.C. of 1978 could reject him when his case was to be considered on the basis of seniority-cum-merit. We have been informed that now the penalty of stoppage of two grade increments has been set aside and instead only a penalty of censure has been maintained. Thus, in the facts and circumstances of this case it cannot be said that the fact of imposing of penalty of stoppage of two grade increments, and the adverse A.C.R. of 1973-74 was not within the knowledge of D.P.C. of 1976. However that be, when the respondent Shri Jindal having been found suitable on the basis of merit to be promoted to selection grade by the D.P.C. of 1976, there appears to be no valid justification for not selecting Shri Jindal by the D.P.C. of 1978 even on the basis of seniority-cum-merit. Admittedly, a number of persons much junior to Shri Jindal were selected for promotion to selection grade by D.P.C. of 1978 and this certainly gives a cause of grievance to respondent No.1.
Even if for arguments sake, it may be accepted for a moment that the fact of adverse A.C.R. in 1973-74 and the punishment of stoppage of grade increments was not considered by the D.P.C. of 1976 and these factors were taken consideration by the D.P.C. of 1978, in our view, the D.P.C. of 1978 was not justified to supersede the claim of Shri Jindal on seniority-cum-merit,. merely on account of these factors. As regards the adverse A.C.R. it was only once for a period of six months though for the rest of the 6 1/2 years it was admittedly good. As regards punishment of stoppage of two grade increments it was available both to the D.P.C. of 1976 as well as 1978. The representation made by Shri Jindal had not been decided finally and now as the matter stands there is no punishment of two grade increments and it has been converted to censure only. The entire record does not reveal any other ground for reverting Shri Jindal from selection grade to senior scale and in the view taken by us that these two factors were not sufficient to reject his claim for promotion on the basis of seniority -cum -merit we do not think any useful purpose would be served in sending the case back for reconsideration by the D.P.C. afresh.(Downloaded on 01/10/2022 at 08:43:20 PM)
(29 of 43) [CW-5926/2022] We have no hesitation in holding that the powers of the Service Tribunal are co-extensive with the powers of the Government. Normally the function of D.P.C. should not be assumed by the Govemment and it acts on the recommendations made by the D.P.C. However, in the facts and circumstances of a given case, the tribunal can pass an order in exercise of its powers under S. 4(2) of the Act of 1976 to set aside the order of reversion of a government servant and to direct the State Goverment to promote him without calling a fresh D.P.C. This would depend on the facts of each individual case and the tribunal can take this view in a matter where no fresh material has to be taken into consideration by the D.P.C. and the view taken by the D.P.C. is held to be wrong and illegal. Thus, taking in view the facts and circumstances of this case we do not find that the tribunal exceeded its jurisdiction in giving the direction as done in this case."
31. The Hon'ble Supreme Court in the matter of Rajesh Kumar and Others v. State of Bihar and Others etc, AIR 2013 SC 2652 has held as under :
"18. There is considerable merit in the submission of Mr Rao. It goes without saying that the appellants were innocent parties who have not, in any manner, contributed to the preparation of the erroneous key or the distorted result. There is no mention of any fraud or malpractice against the appellants who have served the State for nearly seven years now. In the circumstances, while inter se merit position may be relevant for the appellants, the ouster of the latter need not be an inevitable and inexorable consequence of such a re-evaluation. The re-evaluation process may additionally benefit those who have lost the hope of an appointment on the basis of a wrong key applied for evaluating the answer scripts. Such of those candidates as may be ultimately found to be entitled to issue of appointment letters on the basis of their merit shall benefit by such re-evaluation and shall pick up their appointments on that basis according to their inter se position on the merit list.
19. In the result, we allow these appeals, set aside the order passed by the High Court and direct that:
(1) Answer scripts of candidates appearing in 'A' series of competition examination held pursuant to Advertisement No. 1406 of 2006 shall be got re-(Downloaded on 01/10/2022 at 08:43:20 PM)
(30 of 43) [CW-5926/2022] evaluated on the basis of a correct key prepared on the basis of the report of Dr (Prof.) C.N. Sinha and Prof. K.S.P. Singh and the observations made in the body of this order and a fresh merit list drawn up on that basis.
(2) Candidates who figure in the merit list but have not been appointed shall be offered appointments in their favour. Such candidates would earn their seniority from the date the appellants were first appointed in accordance with their merit position but without any back wages or other benefit whatsoever.
(3) In case the writ petitioners- Respondent Nos. 6 to 18 also figure in the merit list after re-evaluation of the answer scripts, their appointments shall relate back to the date when the appellants were first appointed with continuity of service to them for purpose of seniority but without any back wages or other incidental benefits.
(4) Such of the appellants as do not make the grade after re-evaluation shall not be ousted from service, but shall figure at the bottom of the list of selected candidates based on the first selection in terms of Advertisement No. 1406 of 2006 and the second selection held pursuant to Advertisement No. 1906 of 2006.
(5) Needful shall be done by the respondents-State and the Staff Selection Commission expeditiously but not later than three months from the date a copy of this order is made available to them."
Category B:-
32. Mr. R.N. Mathur, Senior Counsel, along with Mr. M.M. Mehrishi, Senior Counsel and Mr. Shobhit Tiwari, submitted that these matters relate to promotion from Head Constable to ASI and they have challenged the order of the Tribunal dated 01.04.2019 whereby the appeals filed by them were dismissed in which they have challenged the wrong promotions made by the State Government from the post of Head Constable to ASI on wrongful calculation of vacancies from the year 2010-11 to 2015-16. They further submitted that the respondents have wrongfully done the (Downloaded on 01/10/2022 at 08:43:20 PM) (31 of 43) [CW-5926/2022] promotional exercise contrary to Rule 10, 26, 26A, 29 & 31 of the Rules of 1989. They further submitted that the respondents have to determine the year wise vacancies every year for doing the promotional activities and the petitioners are not at fault for the wrong committed by the respondents. They further submitted that the learned Tribunal failed to consider the relevant rules and wrongly dismissed the appeals filed by them. They further submitted that under the similar circumstances judgment passed by the Tribunal in the case of similarly situated employees the judgment has already been complied with by the State Government. They further submitted that the State Government has to conduct the written test every year for promotion whereas the State Government has failed to conduct the written examination every year and therefore wrongfully given the promotions to the persons selected in a particular year against the subsequent year of vacancy. They further submitted that the State Government has admitted its mistake in calculating the vacancies regarding wrongful calculation of vacancies in the additional affidavit filed by them before this Court on 16.04.2022. They further submitted that the respondents be directed to correct their mistake by holding promotional exercise in calculating the year wise vacancies and conducting the written test every year for the vacancies of particular year. They further submitted that to solve the dispute/all the problems a High Level Committee be constituted by this Court to look into the grievance of the petitioners. In support of the submissions, they relied upon the following judgments.
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33. The Hon'ble Supreme Court in the matter of Virender Singh Hooda and Ors. vs. State of Haryana and Ors. (2004) 12 SCC 588 has held as under :-
"68. Despite the aforesaid conclusion, the Act [proviso to Section 4(3)] to the extent it takes away the appointments already made, some of the petitioners had been appointed much before enforcement of the Act (ten in number as noticed hereinbefore) in implementation of this Court's decision, would be unreasonable, harsh, arbitrary and violative of Article 14 of the Constitution. The law does not permit the legislature to take back what has been granted in implementation of the court's decision. Such a course is impermissible. "
34. A Coordinate Bench of this Court in the matter of M.P. Agarwal v. The State of Rajasthan and Ors., S.B. Civil Writ Petition No. 139 of 1975, decided on 06.12.1978, has held as under :-
"6. The questions that arise for consideration are whether the provisions of Sub-rule (1) of Rule 9 requiring the Government to determine, at the commencement of each year, the number of vacancies anticipated during the calendar year the & number of persons likely to be recruited by each method, are mandatory or whether it is open to the Government to keep the vacancies occurring in a particular year or years vacant and fill up the said vacancies in a subsequent year and whether in view Sub-rule (2) Rule 9 the Government was entitle to lump the vacancies of the years' 1969 to 1971 & make appoint merits on the same in 1973. As the said questions involve an interpretation' of the provisions of Rule 91 it is necessary to set out the said provisions Rule 9, as it stood at the relevant time, read as under:
9. Determination of vacancies (1) Subject to the, provisions of these rules the Government shall determine at the commencement of each year the number of vacancies anticipated during the calendar year and the of persons likely to be recruited by each method.
(2) Any vacancies which remain unfilled for non availability of suitable' candidates or otherwise shall be carried forward from year to year provided that the additional vacancies of such of them as are has filed shall lapse at the end of the second year.
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9. If the provision of Sub-rule (1) of Rule 9 are so construed as to leave it in the discretion of the Government to determine or not to determine the number of vacancies anticipated during a particular year and to determine or not to determine the number of person likely to be recruited by each method of recruitment laid down in Rule 6, then it would be open to the Government not to make appointments on the vacancies for a number of years and to fill all these vacancies in one particular year. The result would be that the whole scheme of the Rules would be frustrated, According to Rule 24(1), which lays down the procedure for selection for recruitment by pi emotion, the selection is made from amongst the senior persons who are eligible at the time when it is decided under Rule 9 that a certain numbers of posts shall be filled by promotion and qualifications of tee applicants. If the Government has the discretion to determine or net to determine the number of the posts to be filled by promotion in a particular year any could be open to the Government not to make any appointment or the pests falling vacant in a particular year or years and fill those vacancies in a later year. The consequence would be that a person who was not eligible for selection if the post had been filled in the year in which the vacancy had occurred & became eligible for selection for that post in the subsequent year, would be entitled to be considered and thereby persons who were eligible for selection in the particular year when the vacancy had occurred would be prejudicially affected, This would open the door for mischief and favoritism. It is settled principle of statutory construction that an interpretation which leads to such consequences must be avoided."
35. The Division Bench of this Court in the matter of Rajendra Kumar Khandelwal and Ors. vs. Director General of Police and Ors. , D.B. Special Appeal Writ No. 1004/2015, decided on 30.05.2017 has held as under :-
"19. Overruling the view taken by the learned Single Judge that anticipated vacancies would mean the actual vacancies, we affirm the view taken by the Tribunal that anticipated vacancies would include such vacancies which have been determined on account of further promotions to be made. We emphasis once again that in the instant case, further promotional posts which would become vacant upon promotion of officers in RPS (Junior Scale) was (Downloaded on 01/10/2022 at 08:43:20 PM) (34 of 43) [CW-5926/2022] already known to the department before the 1st day of April and thus, said resultant vacancies upon promotion to the post of RPS (Junior Scale) were known. Therefore, it was already ascertained that said number of posts of Inspectors had become vacant. These posts had to be treated as "likely to be filled up" from the post of Sub-Inspectors to the post of Inspectors."
36. The Hon'ble Supreme Court in the matter of Jagdish Prasad v. State of Rajasthan and Ors., (2011) 7 SCC 789 has held as under :-
"3. In order to examine the challenge to the impugned judgment in its proper perspective, it will be useful for us to refer to the basic facts giving rise to the present appeal. The appellant belongs to a Scheduled Caste and was initially appointed as a Motor Vehicle Sub-Inspector vide order dated 23-8- 1980. He was confirmed in this post on 3-5-1983 whereafter, he was promoted upon his satisfactory performance of his duties to the post of Motor Vehicle Inspector through Departmental Promotion Committee (in short "DPC") on the principle of seniority-cum-merit vide order dated 20-1-1987. He was thereafter regularised in the said post on 15-10- 1988. On 13-4-1992, a Notification was issued by the respondents amending the Rajasthan Transport Service Rules, 1979 (in short "the 1979 Rules") (marked as Annexure P-5 to the petition). By this amendment, Schedule I and Schedule II of the Rules, 1979 to the existing Rules were amended. The Notification read as under:
"In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Rajasthan hereby makes the following amendment with immediate effect in the Rajasthan Transport Service Rules, 1979, namely: Amendment In the said rules:
1.Amendment of Schedule I.--
(i) the existing entries at item
(ii) occurring in Column 6 against to S. No. 4 shall be deleted.
2. The existing Schedule II shall be deleted."
7. It was further the case of the State that the vacancies have to be carried forward from year to year and in want of eligible candidates, vacancies (Downloaded on 01/10/2022 at 08:43:20 PM) (35 of 43) [CW-5926/2022] could not be filled up in accordance with the Rules. It was further urged by the State that the vacancies in the post of DTOs could not be filled up for want of eligible candidates and, therefore, the vacancies were carried forward for consideration to the subsequent years. It is also averred in the petition that the High Court had passed a judgment on 7-4-1997 in SBCW No. 3423 of 1995 titled Hiral Lal Joshi v. State directing that review DPC be held with regard to vacancies for the year 1993-1994 to 1996-1997 and then the appointments were made, however, averments with regard to supersession of Pooran Singh was denied. Vide order dated 8-2-1999, the appeal filed by Pooran Singh was set aside by the Tribunal, and the operative part of the judgment reads as under:
"In the light of the above discussion, Annexure 6 dated 8-7-1994 is quashed and the State Government is directed to hold Review DPC within two months to determine yearwise vacancies afresh. The State Government has already indicated yearwise vacancies in Page 2 of its reply. The Review DPC should be convened yearwise and the promotion be done on the basis of yearwise vacancies only. Since the departmental examinations were not organised by the State Government from time (sic) and then that provision was deleted, therefore, no candidate for any particular year should be treated to be unqualified on account of not clearing the departmental examination. Ideally the Notification dated 13-4-1992 should be amended retrospectively but even if it is not done so, the State Government cannot circumscribe or dilute the provision regarding 'year-wise' filling up of vacancies.
In the net result this appeal succeeds and is accepted. The State Government would pay the costs to the appellant which is determined at Rs 1000/-."
8.This order of the Tribunal dated 8-2-1999 was challenged by the State Government before the High Court. The High Court vide its order dated 18-7-2005 passed in Civil Writ Petition No. 2111 of 1999, dismissed the writ petition and maintained the direction to the State Government to hold Review DPC. Another writ petition was also filed by the private persons being Writ Petition No. 1025 of 1999 which was also dismissed vide order dated 23-7- 2008. It may be noticed here that reversion of Pooran Singh, the petitioner was stayed by an interim order. Later he sought voluntary retirement and retired. However, appellant Jagdish Prasad was promoted as Assistant Transport Commissioner vide order dated 24-1-2003.
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10. The judgment of the Division Bench is impugned in the present appeal. Before we proceed to discuss the contentions in relation to the factual matrix of the case, it will be useful to examine the scheme of the Rules, 1979. The Rules, 1979 had been notified vide Notification of December 1979. In terms of Rule 2(e) of the Rules, 1979 "Direct Recruitment" means recruitment made in accordance with Part IV of the Rules, 1979.
13. The proviso to Rule 7(4) of the Rules, 1979 obviously restricts the application of carry forward. How the vacancies are to be determined has been specified in Rule 10 of the Rules, 1979 and the same reads as under:
"10.Determination of vacancies.--(1)
(a) Subject to the provisions of these Rules, the appointing authority shall determine on 1st April every year, the actual number of vacancies occurring during the financial year.
(b) Where a post is to be filled in by a single method as prescribed in the Rule or Schedule, the vacancies so determined shall be filled in by that method.
(c) Where a post is to be filled in by more than one method as prescribed in the Rules or Schedule, the apportionment of vacancies, determined under clause
(a) above, to each such method shall be done maintaining the prescribed proportion for the overall number of posts already filled in. If any fraction of vacancies is left over, after apportionment of the vacancies in the manner prescribed above, the same shall be apportioned to the quota of various methods prescribed as a continuous cyclic order giving precedence to the promotion quota.
(2) The appointing authority shall also determine the vacancies of earlier years, yearwise which were required to be filled in by promotion, if such vacancies were not determined and filled earlier in the year in which they were required to be filled in."
24. The Division Bench, while dealing with the judgment of the learned Single Judge and the Tribunal, referred to the Rules to some extent and to the fact that for one vacancy, 5 eligible persons are required to be considered and for 2 vacancies, 8 eligible persons should be considered; and that such proportion in accordance with the zone of consideration as specified under Rule 24(6) of the Rules, 1979 should be maintained. The High Court also referred to the judgment of this Court in coming to the conclusion that clubbing of vacancies was not proper, and that such a course could be adopted only in the case of direct recruitment. The High Court directed the making of a completely fresh exercise and directed that the persons already promoted were (Downloaded on 01/10/2022 at 08:43:20 PM) (37 of 43) [CW-5926/2022] not be demoted but promotion be made yearwise. Though for somewhat different reasons, partially accepting the findings recorded by the Tribunal, which we have discussed above, we would accept some of the findings of the Tribunal and the High Court; but the conclusions arrived at cannot be accepted in their entirety. We are not only concerned with promotion or otherwise of any relief to the appellants or any persons in service but we must also ensure that Rules are implemented and selection is made strictly in accordance with such Rules. We also cannot ignore the fact that a government servant gets a right (though not indefeasible right) to be considered for promotion to the appropriate post to which he is eligible and entitled, in accordance with law. In Union of India and Anr.v. Hemraj Singh Chauhan and Ors. this Court while dealing with somewhat similar situation held as under: (SCC pp. 298-99, paras 35-36)
35. The Court must keep in mind the constitutional obligation of both the appellants/Central Government as also the State Government. Both the Central Government and the State Government are to act as model employers, which is consistent with their role in a welfare State.
36. It is an accepted legal position that the right of eligible employees to be considered for promotion is virtually a part of their fundamental right guaranteed under Article 16 of the Constitution. The guarantee of a fair consideration in matters of promotion under Article 16 virtually flows from guarantee of equality under Article 14 of the Constitution.
25. It is equally true that the rule of fairness in government action is an essential feature. However, such fairness has to be founded on reasons. Usually, the providing of reasons demonstrates the concept of reasonableness but where the statutory rules provide the circumstances and criteria, ambit and methods by which the selection should be governed, they would become the yardstick of fairness. In the case of Manager Govt. Branch Press and Anr. v. D.B. Belliappa this Court held that the essence of the guarantee under Articles 14 and 16 of the Constitution is "fairness founded on reasons".
26. Having discussed in detail the infirmities and illegalities from which the selection process suffers, we, though for different reasons, have come to the same conclusion as the High Court while also issuing directions. Therefore, while setting aside the selection/promotion order dated 8-7-1994, we further issue the following directions for strict compliance by all the authorities concerned and without any further delay:
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1. Fresh process of selection shall be held by the competent authority in accordance with Rules, as expeditiously as possible and in any case not later than three months from today.
2. The selection by promotion for the yearwise vacancies shall be filled in compliance with Rule 24(6) of the Rules, 1979. The authorities shall fill 50% of the promotion vacancies purely by merit, for which it will evolve a methodology, either by holding a qualifying examination as was being conducted prior to 1992, or by any other examination which would satisfy the basic criteria of selection by merit.
3. Remaining 50% of the promotion posts shall be filled in by seniority-cum-merit for which the DPC shall meet within the stipulated time as aforedirected.
4. The Secretary (Transport), Government of Rajasthan is hereby directed to conduct an enquiry personally and fix responsibility on all the officers/officials responsible for not conducting qualifying examination in accordance with Rules from 1983 to 1994 and subsequent thereto in accordance with law. In other words, the officers must be held responsible for their lapses and be punished in accordance with law.
5. The vacancies would be clubbed only for the purposes of calculating an arithmetical figure but, will be filled in accordance with yearwise vacancies and considering the officers eligible for promotion to the post of DTO in accordance with seniority-cum-merit rule for 50% of the promotion post.
6. All remaining 50% posts shall be filled up purely on merit and by holding an examination.
7. The persons who have already been promoted would not be reverted and none of them would be entitled to claim any financial benefits, if they have already retired from the post of DTO.
8. The candidates now selected in furtherance of the directions contained in the judgment shall not be entitled to any arrears of pay because though their promotion may be relatable to a previous year, such promotion shall be notional without any consequential benefits."
37. The Hon'ble Supreme Court in the matter of Gunwant Kaur and Ors. v. Municipal Committee, Bhatinda and Ors., (1969) 3 SCC 769, has held as under :-
"14. The High Court observed that they will not determine disputed question of fact in a writ petition. But what facts were in dispute and what were (Downloaded on 01/10/2022 at 08:43:21 PM) (39 of 43) [CW-5926/2022] admitted could only be determined after an affidavit in reply was filed by the State. The High Court, however, proceeded to dismiss the petition in limine. The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner's right to relief questions of fact may fall to be determined. In a petition under Article 226 the High Court has jurisdiction to try issues both of fact and law. Exercise of the jurisdiction is, it is true, discretionary, but the discretion must be exercised on sound judicial principles. When the petition raises questions of fact of a complex nature, which may for their determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute may not appropriately be tried in a writ petition, the High Court may decline to try a petition. Rejection of a petition in limine will normally be justified, where the High Court is of the view that the petition is frivolous or because of the nature of the claim made dispute sought to be agitated, or that the petition against the party against whom relief is claimed is not maintainable or that the dispute raised thereby is such that it would be inappropriate to try it in the writ jurisdiction, or for anologous reasons.
15. From the averments made in the petition filed by the appellants it is clear that in proof of a large number of allegations the appellants relied upon documentary evidence and the only matter in respect of which conflict of facts may possibly arise related to the due publication of the notification under Section 4 by the Collector."
38. The Hon'ble Supreme Court in the matter of Popatrao Vyankatrao Patil vs. The State of Maharashtra and Ors., Civil Appeal No. 1600 of 2020 (Arising out of SLP (C) No. 5290 of 2019) has held as under :-
"6. It could thus be seen, that even if there are disputed questions of fact which fall for consideration but if they do not require elaborate evidence to be adduced, the High Court is not precluded from entertaining a petition Under Article 226 of the Constitution. However, such a plenary power has to be exercised by the High Court in exceptional circumstances. The High Court would be justified in exercising such a power to the exclusion of other available remedies only when it finds that the action of the State or its instrumentality is arbitrary and (Downloaded on 01/10/2022 at 08:43:21 PM) (40 of 43) [CW-5926/2022] unreasonable and, as such, violative of Article 14 of the Constitution of India. In any case, in the present case, we find that there are hardly any disputed questions of facts."
39. The Division Bench of this Court in the matter of Satya Narain and Ors. vs. State of Rajasthan and Ors., D.B. Civil Special Appeal (Writ) No. 1336/2011 along with connected matters, decided on 20.03.2015, has held as under :-
"10. Coming now to the alternative submission that the case of the petitioners-appellants should be considered against unfilled posts of unreserved category of the year 2008-09, we would observe that such consideration of the petitioners-appellants can be confined only if there remain unfilled posts of Head Constable in their own battalion and not in any other battalion. As regards subsequent years, if the petitioners-appellants have deliberately taken the risk of not appearing in the promotion cadre course, this court cannot direct that they should be deemed to have cleared the promotion cadre course for the vacancies of subsequent years because they were wrongly selected for such course in the year 2008-
09.
11. We therefore do not find any infirmity or illegality in the judgment passed by learned Single Judge and, therefore, are not inclined to interfere with the same, except observing that in terms of the observation made by learned Single Judge in the operative part of the judgment that, "in regard to future vacancies if arise or having remained unfilled for the year 2008- 09, it is always open for the respondents to consider candidature of the petitioners for promotion, but that would obviously be in terms of the Scheme of Rules, 1989.", if any vacancies have remained unfilled in the quota of year 2008-09 in the respective battalion of the petitioners-appellants, the respondents may consider their candidature for promotion on the basis of promotion cadre course completed by them in that year, we accordingly reiterate that direction of the learned Single Judge."
40. They also relied upon the judgment passed by the Hon'ble Supreme Court in the matter of State of Bihar & Ors. Vs. Radha K. Jha & ors., reported in (2002) 6 SCC 308 and in the matter of R.S. (Downloaded on 01/10/2022 at 08:43:21 PM) (41 of 43) [CW-5926/2022] Ajara & Ors. Vs. State of Gujarat & Ors., reported in (1997) 3 SCC 641 and also upon the judgment passed by the Division Bench of this Court in the matter of Power Engineer's Association of Rajasthan Vs. State of Raj. & Ors., D.B. Civil Writ Petition No.4599/2013, decided on 02.08.2016.
41. Learned Advocate General opposed the writ petitions and submitted that the learned Tribunal has not committed any illegality in dismissing the appeals filed on behalf of the petitioners and further submits that the respondents have duly conducted the promotional activities in view of Rules of 1989 and if they have committed any mistake in calculating the year wise vacancies, as pointed out by them in the additional affidavit filed before this Court on 16.04.2022, the State Government have every right to rectify their mistake by changing the year of promotion if any employee is given wrongly promotion in respective years. He further submitted that the writ petitions filed by the petitioners deserve to be dismissed and the State Government be given liberty to rectify their mistake.
42. Heard counsel for the parties and perused the record.
43. In view of the above discussion, allowing or dismissing the writ petitions will not solve the problem which can affect the rights of the employees in the department and it will be injustice to them by not giving them promotion in the year from which they are entitled and that will affect their work performance also. The respondent-State is duty bound more particularly the police department to determine the year wise vacancies as per the procedure prescribed under the Rules and to hold promotional activities every year as mentioned in the Rules of 1989 and to (Downloaded on 01/10/2022 at 08:43:21 PM) (42 of 43) [CW-5926/2022] hold the departmental written examination for promotion from the post of Constable to Head Constable and from Head Constable to ASI. As recorded above, the State Government has admitted its mistake in their additional affidavit filed before this Court on 16.04.2022 that some mistake has been committed in calculating the year wise vacancy then no option left with this Court except to direct the State Government to again determine the year wise vacancy, to hold the written examination every year and prepare the select list/approved list every year as per the Scheme of Rules of 1989. Now it shall determine the year wise vacancy as the officers of the department more particularly the Commissionerate of Jaipur has already failed in its duty to determine the year wise vacancy and complete the promotional exercise, therefore, under the facts and circumstances, I deem it just and proper to dispose of these writ petitions with the following directions :-
(i) The Additional Chief Secretary (Home) is directed to constitute a High Level Committee of three members i.e. Secretary (Home), Secretary (DOP) & Additional Director General of Police (Recruitment)
(ii) The Committee so constituted shall determine the year wise vacancies for promotion from the post of Constable to Head Constable and from Head Constable to ASI and shall complete the promotion process strictly in accordance with the Rules of 1989.
(iii) In case of any difficulty in making the promotions the State Government is free to create superannuate posts in view of Rule 18 of RSR.
(iv) The compliance be made within a period of six months.
(v) The orders passed by the Tribunal impugned in the respective petitions stand modified accordingly in the above terms.
(INDERJEET SINGH),J
VS Shekhawat/411-455
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Schedule-A
S. No. Civil Writ Petition Petitioner/s Respondent/s
1 13746/2018 Gajraj Singh & Ors. State & Ors.
2 18671/2018 Mahaveer Prasad & Ors. State & Ors.
3 24498/2018 Kashi Ram & Ors. State & Ors.
4 7955/2019 Bhojraj Singh State & Anr.
5 10396/2019 Sumit Kanwar State & Anr.
6 10400/2019 Babu Lal Yadav State & Anr.
7 10401/2019 Ramveer Singh State & Anr.
8 10417/2019 Rajkamal State & Anr.
9 10418/2019 Laxmikant State & Anr.
10 10419/2019 Hemraj State & Anr.
11 10421/2019 Kanhaiya Lal State & Anr.
12 10431/2019 Dinesh Kumar State & Anr.
13 10432/2019 Rajaram State & Anr.
14 11771/2019 Baldev Kumar State & Anr.
15 11805/2019 Sohan Lal Yadav State & Anr.
16 12131/2019 Anil Kumar State & Anr.
17 12152/2019 Ram Naresh State & Anr.
18 12154/2019 Shiv Kumar State & Anr.
19 12160/2019 Mahendra Pal Singh State & Anr.
20 12178/2019 Jagdish Prasad State & Anr.
21 12182/2019 Lekh Ram State & Anr.
22 12183/2019 Omprakash State & Anr.
23 12196/2019 Naresh Singh State & Anr.
24 12197/2019 Birju Singh State & Anr.
25 12208/2019 Rajesh Kumar State & Anr.
26 12210/2019 Ajay Singh State & Anr.
27 12229/2019 Ramnath State & Anr.
28 12593/2019 Richpal Singh State & Anr.
29 12700/2019 Govind Ram State & Anr.
30 12779/2019 Bhagwan Singh State & Anr.
31 12784/2019 Mukesh Chand Chaturvedi State & Anr.
32 12809/2019 Surendra Singh State & Anr.
33 12897/2019 Yogesh Kumar State & Anr.
34 12981/2019 Surendra Singh State & Anr.
35 13005/2019 Devi Lal Garwa State & Anr.
36 13466/2019 Rajeev Kumar State & Anr.
37 13480/2019 Subhash Mahala State & Anr.
38 13482/2019 Mukesh Kumar State & Anr.
39 17447/2019 Bhanwar Singh State & Anr.
40 17527/2019 Ram Lal State & Anr.
41 2590/2020 Gyan Prakash State & Anr.
42 7953/2019 Hari Singh State & Anr.
43 11515/2022 Mahendra Singh State & Ors.
44 12360/2022 Babita Punia & Anr. State & Ors.
(INDERJEET SINGH),J
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