Rajasthan High Court - Jaipur
Laxmi Narain Mathur vs High Court Of Judicature For Rajasthan ... on 15 September, 1988
Equivalent citations: 1988(2)WLN607
JUDGMENT M.B. Sharma, J.
1. The dispute in this writ petition is in respect to the promotion to the post of Dy. Registrar (Administration) and the channel for promotion to the aforesaid post from Assistant Registrar or Private Secretary-cum-Judgment Writer (Super-Time Scale). We may state that under order No. Estt/HC/86/30 dated April 5, 1986, the Registrar, Rajasthan High Court, Jodhpur has changed the nomenclature of the posts of Private Secretaries cum Judgment Writers (Super Time Scale) to that Private Secretaries cum Judgment Writers and the suffix Super Time Scale' has been deleted. Similarly the nomenclature of the posts of Private Secretaries cum Judgment Writers (Selection grade) and Private Secretaries cum Judgment Writers (Ordinary Scale) under the aforesaid order have been changed to Senior Personal Assistant-cum-Judgment Writers and Personal Assistant-cum. Judgment Writers respectively. The petitioner Laxmi Narain Mathur is Private Secretary-cum-Judgment Writer and his designation prior to April 5, 1986 when the aforesaid order was made, was Private Secretary cum Judgment Writer (Super Time Scale). The post of Dy. Registrar (Admn.) had fallen vacant as a result of the retirement of Tulsi Ram Soni and under the order dated January 18, 1988 (Annx. 5), Rikhab Raj Kumbhat the then Asstt. Registrar was promoted to the post of Dy Registrar with effect from the date of his taking over charge. The petitioner Laxmi Narain Mathur has challenged the aforesaid appointment by promotion of Shri Rikhab Raj Kumbhat, respondent No. 2.
2. In exercise of his powers conferred by Article 229(2) of the Constitution of India, the Chief Justice of the High Court of Judicature for Rajasthan with the approval of the 'Governor' of Rajasthan, made the Rajasthan, High Court (Conditions of Service of Staff) Rules, 1953 (for short, the Rules). Under Rule 2 thereof the staff attached to the High Court shall consist of the posts specified in the second column of Schedule-I thereto. The posts of Dy. Registrar (Admn.) are the posts at S. No. 7 of the Schedule to the Rules and at S No. 10 are the posts of Private Secretaries attached to Hon'ble the Chief Justice and Hon'ble Judges (Super-time Scale). Earlier there were two posts in Super Time Scale, but by the passage of time the number of such posts has been increased and the posts of Private Secretaries and Judgment Writers to Hon'ble the Chief Justice and Judges are equal to their number. It may be stated that at S. No. 11 are the posts of Asstt. Registrars. Rule 2A of the Rules prescribes method of recruitment and one of the methods of recruitment to the posts specified in second column of Schedule-I is by promotion of a person already employed in the High Court Sub-rule (1) of Rule 2A of the Rules empowers the Chief Justice from time to time by general or special order to (a) specify the method by which the recruitment to a post or category of posts shall be made, (b) determine the proportion of vacancies to be filled by each method in case of recruitment by more than one method and (c) specify the manner in which such recruitment shall be made in the case of direct recruitment. Rule 8 is in respect of general promotions and Rule 9 is in respect of promotion to posts carrying special responsibility or requiring special qualifications. The above rules will come up for consideration at the later part of this order. Let us read those rules, they are as under:
8. Promotion: Subject to the requirements of efficiency promotion shall ordinarily be made according to seniority. An official may receive promotion for recognised merit irrespective of the grade to which he may belong or of his seniority within the grade.
9. Promotion to posts carrying special responsibility or requiring special qualifications:
(1) Not with standing any thing to the contrary contained in these Rules, promotions to the following posts carrying special responsibility or requiring special qualifications shall be made by selection; (1) Deputy Registrar (Administration);
(2) P.P. Secretary to Chief Justice;
(3) Assistant Registrar;
(4) Superintendent-cum-Chief Accountant.
(2) In the case of non-availability of a suitable person for promotion to the post of P.P. Secretary to Chief Justice, recruitment may be made in such other manner as may be specified by the Chief Justice.
3. The posts of Dy. Registrar (Admn.) at S.No. 7 in Schedule I to the Rules are non-RJS cadre posts. Neither the Rules nor Schedule 1 to them provides channel of promotion to the posts of Office Superintendent, Asst. Registrar, Dy. Registrar (Admn). As already stated earlier, Rule 2A 2(SIC) of the Rules vests powers in the Chief Justice, from time to time by general or special order to specify the method by which recruitment to a post or category of posts could also be by promotion of any person employed in the High Court By virtue of powers vested in the Chief Justice under Rule 2A and 2B of the Rules under order dated 18-2-1976, the Chief Justice specified method of recruitment and qualifications for appointment to the various posts specified in the second column of Schedule I to the Rules. The said order contains provisions for promotion to the posts of Upper Division Clerks, Stamp Reports and Court-fee Examiners, Bench Readers, Translators, Senior Bench Readers, Stenographer grade II Private Secretaries cum Judgment Writers (Ordinary Scale), Private Secretaries and Judgment Writers (Selection Grade) and Superintendents (Judicial and General Sections) So far as the promotions to the post of Superintendent (Judicial and General Sections) are concerned, they will be made from amongst the Senior Bench Readers and Private Secretaries and Judgment Writers (Selection Grade) by rotation; the first promotion shall be given to Senior Bench Reader, then to Private Secretary and Judgment Writer (Selection Grade) and then to Senior Bench Reader and so on. It may be stated that the Superintendents are in the scale No. 17 and so also the Senior Bench Readers and Private Secretaries and Judgment Writers (Selection Grade). Assistant Registrar are in scale No. 19 (Rs. 1720-3300). The grade of Dy. Registrar (Admn.) being in scale No. 23 is Rs. 2600-4150. There were also some posts of Private Secretaries cum Judgment Writers (Super time Scale) in scale No. 20. It may also be stated that though in the order of the Chief Justice dated February 18, 1976 referred to above promotions to the posts of Superintendent (Judicial and General Sections) were to be made from amongst Senior Bench Reader and Private Secretary and Judgment Writers (Selection Grade) by rotation as aforesaid, it appears that the scale of Superintendent (Judicial and General Sections) and of the Private Secretaries cum Judgment Writers being the same i.e. scale No. 17 and then being chances of promotion to Private Secretary and Judgment Writers (Super time Scale) and thereafter the Private Secretaries and Judgment Writers being placed in the scale No. 20 (Rs. 2100-3550) and the post of Superintendents being in sale No. 17, (Rs. 1490-3050) no Private Secretary-cum-Judgment Writer either in Selection Grade or in Super-time Scale liked or will like such promotion as Office Superintendent and it may be stated that no such promotion has been made. That apart, the post of Private Secretary-cum-Judgment Writer (Super Time scale) being in scale No. 20, and there being more chances of Private Secretary cum Judgment Writers (Selection Grade to the scale now belonging to that scale, no Private Secretary and Judgment Writer will like to be promoted as Superintendent. It is high time that the Chief Justice takes this situation into consideration and amend his order accordingly to make it reasonable and to fit in with the situation as prevalent today.
4. Neither the Rules nor Schedule I to them lays down any criteria for promotion to the post of Dy. Registrar (Admn ). In continuation of the office order No. Estt/HC/76/52 dated February 18, 1976, and in pursuance of Rules 2A, 2B and 4A of the Rules, the Chief Justice has specified the methods by which appointments to the posts of Superintendents (Judicial and General Section), Assistant Registrar, Deputy Registrars (Administration) shall be made and seniority of the persons appointed to the posts of Asstt. Registrar and Superintendent shall be determined. It has already been said earlier that the rotation for appointment to the post of Superintendent (Judicial and General Section) under order dated February 18, 1976 was in the ratio 1:1 and it was only under the order dated January 2, 1980 (Schedule A to the writ petition) that rotation was changed in the ratio of 1:2 i.e. in the following order:
(1) Private Secretary-cum-Judgment Writer (Selection Grade) (2) Senior Bench Reader;
(3) Senior Bench Reader;
(4) Private Secretary-cum-Judgment Writer (Selection Grade) (5) Senior Bench Reader;
(6) Senior Bench Reader, so on and so forth.
5. The said order dated January 2, 1980 also provides that if the Private Secretary-cum-Judgment Writer (Selection Grade) forgoes his chance the promotion will be given to Senior Bench Reader. It also provides that the seniority in the cadre of Superintendents shall be determined on the basis of length of their services as Superintendent or their date of confirmation as Superintendents. We have already said in the earlier part of this order that Private Secretary-cum-Judgment Writers being in scale No. 20 which is a higher pay scale than the pay scale No. 17 and Selection Grade Private Secretaries who are in scale No. 17 expecting promotion in that scale, there is no question of any of the Private Secretary-cum-Judgment Writer (Selection Grade) opting for promotion to the post of Superintendent which is in the same scale No. 12 in which the scale of the post of Selection Grade Private Secretary-cum-Judgment Writer exists. The concept of promotion generally is always from lower to higher pay scale. So far as the Assistant Registrars are concerned, appointment on that post as per order dated January 2, 1980 (clause 2) shall be made by promotion from amongst Superintendents on the basis of seniority cum merit and the seniority in the cadre of Assistant Registrar shall be determined on the basis of length of their service as Assistant Registrar or their dates of confirmation as Assistant Registrar. Clause 3 of the aforesaid order deals with the promotion to the post of Dy. Registrar (Admn.) and it runs as under:
Deputy Registrars (Administration)- Appointment to these posts shall be made by selection by the Hon'ble Chief Justice from amongst the Assistant Registrars or Super time Scale Private Secretaries-cum-Judgment Writers.
6. Thus, the method of appoint to the post of Dy. Registrar (Admn) has been provided by the Chief Justice under powers vested in him and as stated earlier the channel of promotion is from Asstt. Registrar or Super Time Scale Private Secretaries and Judgment Writers. Thus a discretion has been vested either to make the selection from Asstt. Registrars or from the Super time Scale Private Secretaries and Judgment Writers. We have already said earlier that under order of 1986 in suffix 'Super time Scale' has been deleted and therefore the aforesaid order of January 2, 1980, needs suitable amendment The posts of Dy. Registrar (Admn.) are the highest posts under the Rules so far as non-RJS or non RHJS posts are concerned. There can be no denying of the fact that the promotion to the highest post in the Service should be by selection and the same mode of promotion to the post of Dy. Registrar (Admn.) has been provided under Clause 3 of the aforesaid order dated January 2, 1980 of the Chief Justice. Whereas in the case of Superintendent (Judicial and General Section) promotion has to be made from amongst Private Secretary-cum-Judgment Writers (Selection Grade) and Senior Bench Readers by rotation 1: 2 as aforesaid. The appointment to the post of Dy. Registrar (Admn.) may be made either from amongst Asstt. Registrars or from amongst Super-time Scale Private Secretaries and Judgment Writers No criteria or guidelines have been provided in Clause 3 as to how and in what mariner selection has to be made either from the Asstt. Registrars or from the Super time Scale Private Secretaries and Judgment Writers. Under Clause 3 of the aforesaid order dated January 2, 1980, which has been extracted in the earlier part of this order, as it is worded, even it is not necessary for consideration of cases of Asstt. Registrars or Super-time Scale Private Secretaries and Judgment-Writers for promotion to the post of Dy. Registrar (Admn) and it is in the discretion of the Chief Justice to appoint Dy. Registrar (Admn.) either from Asstt. Registrars or Super Time Scale Private, Secretaries and Judgment-Writers. This is uncanalised power and is arbitrary. One will hardly come across such a provision. If the channel of promotion is from two sources or from two cadres generally there should be a provision for interlaced seniority and the Rules should provide criteria-guidelines for fixing the interlaced seniority of the persons from two sources eligible for being considered for promotion. The criteria for fixing the seniority in the cadre of Superintendent has been laid down in the order dated January, 1980 and the seniority in the said cadre shall be determined on the basis of length of their service as Superintendent or their date of confirmation as Superintendent In case rotation for appointment by promotion to a post is fixed it may not be necessary, rather will not be necessary to fix interlaced seniority because as and when the occasion to appoint by promotion from one cadre will arise, the persons in accordance with the seniority alone shall be considered. But if no rotation or proportion is fixed in a case where the channel for promotion is from two sources it will be necessary to frame guidelines/principles for fixing interlaced seniority and zone of consideration for promotion though it will depend on number of vacancies. In the case of Amar Chand v. State of Rajasthan, 1977 WLN (UC) 261. a special Bench consisting of five Judges of this Court was considering Rajasthan Education Service Rules, 19(SIC)0 and more so its Rule 24 in respect of recruitment to the post of Head Master from Senior Teachers Grade II For promotion to the post of Head Master, two categories were clubbed and the recruitment to the post of Head Master from amongst the aforesaid two categories was in the ratio of 1:4 i.e. one from Senior Teacher and four from Teacher Grade II. Their seniority was also fixed in the cycle order one Senior Teacher and then four Teachers Grade II and then one Senior Teacher and four Teachers Grade II and so on and so forth. So far as the seniority is concerned the learned Single Judge in that case suggested a line of approach to the Government to provide a suitable criteria preparing a common seniority list for Senior Teachers Grade 11 for the purpose of Rule 24 and he suggested that it could have been done by treating the service in higher grade as equivalent to a certain multiple of the period of service in the lower grade. He also suggested that a certain proportion for filling up the post in the Rajasthan Educational Service be fixed for Senior Teachers and other for Teachers-Grade II, but he left the matter to be decided by the Government which in his opinion was the best Judge to modify the Rules as it deemed necessary to do so In addition to the aforesaid suggestions, the court threw the third suggestion that when the officers are appointed from two different grades one higher from the another then in that event, the officer appointed from a higher grade should not be placed below one appointed from the Sower grade. In suggesting the aforesaid third mode of fixing seniority the special Bench placed reliance on the case of Nawal Kishore Singh v. Union of India 1973 (1) SLR 509 (Patna). It will therefore be clear that whenever a channel for promotion is from two categories of posts, ratio or proportion and criteria for fixing for seniority should also be laid down.
7. We may also state that it appears from the perusal of the grades of Senior Bench Readers, Private Secretaries and Judgment Writers (Selection Grade) and Superintendents etc. that all of them are in the same pay scale No. 17 which was earlier used to be 620-1100, later on raised to 820-1550 and further revised to 1490-3050. We are unable to understand the logic or rationality of promoting a person from one post in the same scale of pay to the other post in the same scale. When the pay scale and grade of Senior Bench Readers, the then Private Secretaries and Judgment Writers (Selection Grade and Officer Superintendents is the same i.e. scale No. 17, where does the question of making promotion to the post of Office Superintendent from Senior Bench Readers and/or Private Secretaries cum-Judgment Writers (Selection Grade) arises. But it appears to be the practice and as already stated earlier even the order dated January 2, 1950 provides for such promotion and the earlier order dated February 18, 1976 also provided for the same. We draw the attention of Hon'ble the Chief Justice to consider this matter. Be that as it may, we are presently concerned to the appointment by promotion to the post of Dy. Registrar (Admn). As already stated earlier the channel of promotion is from Asstt. Registrars or Super Time Scale Private Secretaries and Judgment Writers As already stated earlier Clause 3 of the order dated January 2, 1980 vested discretion in the Chief Justice to make selection to the post of Dy. Registrar (Admn ) either from amongst the Asstt. Registrars or Private Secretaries cum Judgment Writers (Super time Scale). The word used in between 'Assistant Registrars' and Super-time Scale 'Private Secretaries-cum-Judgement Writers' is 'or'. As already stated earlier, no criteria or principles have been laid down as to when the appointment to post of Dy Registrar (Admn) shall be made from amongst Asstt. Registrars or when it shall be made from amongst Private Secretaries cum-Judgment Writers (Super-time Scale) and merely because the mode of appointment is made by selection, it cannot be said that the cases of eligible Asstt. Registrars or Super-time Scale Private Secretary-and Judgment Writers will not be considered as and when occasion to make appointment to the post of Dy. Registrar (Admn.) arises. Even the concept of selection is that the case of senior most person is considered first and only if he is not selected on merits the case of a person whose name comes next in the seniority list has to be considered. In the absence of any principles or guidelines laying down the seniority or preparing the interlaced seniority of the Asstt. Registrars and Super-time Scale Private Secretaries and Judgment Writers, which interlaced seniority should be prepared and none has ever been prepared presumably because it is the discretion of the Chief Justice under Clause 3 of the order dated January 2, 1980 to either make selection to the post of Dy. Registrar (Admn) from amongst Asstt. Registrars or from Super-time Scale Private Secretaries and Judgment Writers. Then fore while making the selection to the post of Dy. Registrar (Admn.) under Clause 3 of the order dated January 2, 1980 as it stands, the cases of either Asstt. Registrars or Super time Scale Private Secretaries may or may not be considered by the Chief Justice. The order of the Chief Justice providing for promotion to the post of Dy. Registrar (Admn.) can hardly work properly. It vests uncanalised and arbitrary power in the Chief Justice. Clause 3 should be suitably amended to provide for consideration of both and it should not be discretion with the Chief Justice to consider either of them for promotion as Dy. Registrar (Admn ) A look at Rule 8 of the Rules which has been extracted in the earlier part of this order will show that all promotions subject to requirement of efficiency shall ordinarily be made according to seniority and an official may receive special promotion for recognised merit irrespective of the grade to which he may belong or of his seniority within the grade. Therefore, the seniority has some relevance and in case of promotion to a post from two channels or from two categories of posts the principles or guidelines should be laid down for fixing the interlaced seniority, The non-petitioner No. 1 has placed on record the order No. 1/A/3(i)/20/87 which is extracted at page 6 and 7 of the reply and contended that it is that order which will govern the seniority and Rikhab Raj Kumbhat respondent No. 2 was senior in accordance with that order and his case was considered along with the case of the petitioner and Kumbhat respondent No. 2 was selected and appointed to the post of Dy. Registrar (Admn) The said order of the year 1957 appears to have been made under Rule 4A of the rules. Rule 4A reads as under:
4A. Seniority: Seniority of persons appointed to the same category of posts shall be determined in accordance with such provisions as the Chief Justice may, from time to time, by general or special order make.
8. The aforesaid order of the year 1957 appears to have been made by the Chief Justice in exercise of the powers vested under Rule 4A. The said order reads as under:
It can be laid down as a general rule that a person appointed to the higher grade i.e. stenographer on account of his specialised qualification does not thereby supersede others who are senior to him and became more eligible for other senior posts for which such specialised qualification is not required.
9. It is the case of the respondents that at the level of the Chief Justice there is no other general or special order except the order extracted above and the respondent No. 2 in accordance with that order has to rank senior to the petitioner, more so when he was promoted as Office Superintendent and when petitioner's chance for promotion as Superintendent came, he declined the same and had he accepted the promotion as Office Superintendent, he would have been promoted after respondent No. 2 and thus amongst Office Superintendents he could have been junior to the respondent No. 2 To our mind a bare reading of Rule 4A above extracted will show that it only deals with the persons appointed to the same category of posts. Therefore the seniority of the persons appointed to the same category of posts had only to be determined in accordance with such provisions as the Chief Justice may from time to time by general or special order make Admittedly, the posts of Stenographer Grade II and Lower Division Clerks are not of the same category and therefore the above extracted order made by the Chief Justice under Rule 4A will not govern the seniority of the petitioner who was appointed by transfer as Stenographer grade If to the High Court, though it may be that initially he was appointed as LDC. in the subordinate courts and then was appointed as Stenographer Grade II. Therefore, we are of the opinion that neither Rule 4A nor the order made by the Chief Justice in 1957 under the aforesaid rule can govern the seniority of the petitioner and the respondent No. 2 inter se. Apart from Rule 4A, there is no other rule laying down the guidelines or principles fixing seniority or vesting power in the Chief Justice to make the provisions from time to time by general or special order. The reason appears to be that as the Rules stand they do not provide for two sources for promotion to a post and it is under the various orders of the Chief Justice that it has been laid down as to (SIC)on which source the promotion shall be made. As the rules do not provide as aforesaid, there was no necessity to provide for any order of Chief Justice fixing interlaced seniority of persons in case of consideration of their case for promotion to particular post. We are therefore of the opinion that neither Rule 4A nor the order of the Chief Justice of the year 1957 will govern the fixation of the seniority of the petitioner and respondent No. 2 who were not appointed to the same category of posts. In our opinion, if interlaced seniority is to be fixed of Asstt. Registrars and Private Secretaries and Judgment Writers for consideration of their cases for promotion to the post of Dy Registrar (Admn.) some criteria/guidelines should have been made by the Chief Justice. As appears from the order dated January 2, 1980 (Schedule A to the writ petition) the seniority in the cadre of Superintendents shall be determined on the basis of length of their services as Superintendents or their date of confirmation as Superintendent. Therefore, it is for the Chief Justice to lay down the criteria/principles for determining the interlaced seniority of Asstt. Registrars & Private Secretaries and Judgment Writers, which had earlier the suffix 'Super-time Scale' by selection for appointment as Dy. Registrar, but we suggest that the criteria should be appointment to the post of Asstt. Registrar or Private Secretary and Judgment Writer as the case may be either as officiating or substantive, for fixing inter laced seniority the total length of service, may be temporary or officiating, in their respective cadre i.e. Asstt. Registrars and Private Secretary and Judgment Writers, should be the criteria. We are of the opinion that the length of service on a lower post will not be a logical and reasonable criteria to determine the seniority of the two categories of posts for consideration for selection to the post of Dy. Registrar (Admn). In Roshan lal v. State of Rajasthan (D.B. Civil Writer Petition No. 86/1978) decided on March 22, 1988, a Division Bench of this Court was considering the case of fixing inter se seniority of Probation Officers and Social Welfare Officers under the Rajasthan Social Welfare Subordinate Service Rules, 1963. The Court directed the State Government to prepare a fresh seniority list fixing the inter se seniority of the petitioners in that case and the respondents who were working as Social Welfare Officers on June 30, 1967. The Court directed the Govt. to prescribe proper principles for fixation of inter se seniority of persons. A reference has already been made to Rule 8 of the Rules under which the promotion has to be in accordance with the seniority, of course, subject to requirement of efficiency. A look at the reply filed on behalf of the respondent No. 1 will show that reference has been made to Rule 8 of the Rules. In para 10(e) of the reply, the respondent No. 1 has come out with the case that:
The post of Dy. Registrar is a selection post carrying special responsibility, administrative ability, experience and capacity. After considering the candidature of all eligible officers including the petitioner Shri R.R. Kumbhat was found most suitable of all the eligible officers for appointment as Dy. Registrar and, therefore, he was given promotion on the said post. According to Rule 8 the appointments by promotion to the post of Dy. Registrar are required to be made on the basis of seniority subject to efficiency and Rule 8 further provides that an official may receive special promotion for recognised merit irrespective of the grade to which he may belong or of his seniority within the grade.
10. It will therefor be clear that the respondent No. 1 has placed reliance on Rule 8 and we have said above that so far as Rule 8 of the Rules is concerned: subject to requirement of efficiency, promotion shall ordinarily be made according to seniority; though an official may receive special promotion for recognised merit irrespective of the grade to which he may belong or of his seniority with the grade. Thus for the purposes of Rule 8 where the promotion is from two channels namely. Asstt. Registrars and Private Secretaries and Judgment Writers, inter laced seniority is to be prepared and unless the seniority is determined in accordance with guidelines, it will not be possible to consider a case in view of Rule 8 of the Rules. No doubt under Rule 9 which starts with non-obstante clause promotion to the posts not only of the post of Dy. Registrar, but also to the posts of Asstt. Registrars, Superintendent-cum-Chief Accountant which posts carry special responsibility or require special qualifications have to be made by selection. But Rules 8 and 9 of the Rules are to be read harmoniously and harmoniously construed. Therefore the seniority is a factor which can hardly be ignored and therefore the appointment by promotion to the post of Dy. Registrar (Admn.) is to be made by selection, it can and should only be made after inter laced seniority of the aforesaid two categories of posts is fixed after laying down criteria for determination of seniority which criteria can only be laid down by the Chief Justice under the Rules, and has not yet been laid down. We may quote here the case of N. Srinath M.A. Somashekar Asstt. Director Industries v. State of Mysore and Ors., 1972. SLR 449, wherein it was observed that:
Whether the promotion be on seniority-cum-merit basis or by selection, it is impossible to promote a junior without considering the case of a seniority. In the case of the first type of promotions, it is obvious that a senior must be considered first and that when he is found unfit, the case of the next junior may be considered. In the second category of promotions the Promoting Authority must consider a sufficient number of persons in the lower cadre or a number which, a relation to promotional vacancies to be filled, is reasonably sufficient, at the top of the lower cadre for consideration. They should take the number from persons at the top because both according to well-known notion of merit in Government service and according to the express provisions of Rule 4 of the Mysore Civil Services (General Recruitment) Rules, seniority is an element in the assessment of merit and even in cases where promotion is by selection due regard must be had for seniority also.
11. We may state that the Rules have been framed under Article 229(2) of the Constitution of India by the Chief Justice after obtaining approval of the Governor of Rajasthan. These are parent rules and the notification dated February 18, 1976 and for that matter notification dated January 2, 1980 which consists Clause 3 is subject to those Rules and no doubt the Chief Justice by virtue of Rules 2A and 2B has been authorised to provide method by which recruitment to the post is to be made but while doing so, the order has to be made in consonance with the statutory Rules and therefore as said earlier Rules 8 and 9 of the Rules are to be read and construed harmoniously, and the Chief Justice is empowered to make an order that a particular post, in this case the post of Dy. Registrar (Admn.) has to be filled by promotion by selection from two categories or sources namely Asstt. Registrars and Private Secretaries and Judgment Writers, then the principles/guidelines for fixing the inter laced seniority must be laid down which has not been done.
12. We can suggest another mode also and instead of fixing the inter laced seniority, if it is intended by the Chief Justice that the post of Dy. Registrar (Admn.) should be filled in from two categories of posts or two sources, namely Asstt. Registrars and Private Secretaries and Judgment Writers, then as in the case of promotion to the post of Superintendent a ratio may be fixed. It will be for the Chief Justice to fix the ratio or proportion for appointing by selection and promotion to the post of Dy. Registrar (Admn.) from the aforesaid two sources. In that case, it will not be necessary to fix the inter laced seniority, because as and when as per the ratio fixed, the post of Dy. Registrar (Admn.) has to go no doubt by selection either to Asstt. Registrar or to Private Secretary and Judgment Writer, the senior most persons within the zone of consideration shall be considered for promotion by selection.
13. So far as the case of the petitioner is concerned, from the reply it appears that he was considered along with others but was not selected and the respondent No. 2 was selected. We have been shown the relevant file and it can be said that the petitioner's case was also considered but the respondent No. 2 was selected. The selection no doubt has been made on the premise that the respondent No. 2 was senior to the petitioner on the order of the year 1957 made by the Chief Justice under Rule 4A of the Rules. We have said above that neither Rule 4A can apply in the case of determination of seniority of the persons appointed to different categories of posts nor the order of 1957 will apply to the case in hand. At the cost of repetition we, have to say that Rule 4A empowers the Chief Justice to determine the seniority of persons appointed to the same category of posts and as stated earlier, the post of LDC & Stenographer Grade II are not the posts of the same category. But the respondent No. 2 is shortly due to retire and therefore we will not like to quash his appointment. But in future either the principles/guidelines should by fixed for fixing interlaced seniority of the Asstt. Registrar and Private Secretaries and Judgment Writers or a ratio or proportion for filling the post of Dy. Registrar (Admn.) from amongst the Asstt. Registrars and Private Secretaries and Judgment Writers should be fixed and we leave it to the Chief Justice to suitably amend the Rules or to make the order in exercise of powers vested in him under the Rules to have recourse to either of the two alternative suggestions made by us. We may state that all the posts of Dy. Registrars (Admn. ) have been filled by promotion from amongst Asstt. Registrars. In future, if any post of Dy. Registrar (Admn.) falls vacant, the same shall only be filled after amending the Rules or by making the order by the Chief Justice by virtue of powers vested in him as suggested by us and in view of the observations made above.
14. Consequently, though, we will not like to interfere with the appointment of the respondent No. 2 to the post of Dy. Registrar (Admn) for reasons aforesaid, we hereby direct the Hon'ble Chief Justice to suitably amend the Rules or to make orders under powers vested in him under the Rules either to lay down guidelines/criteria for promotion and determination of interlaced seniority of Asstt. Registrar & Private Secretaries and Judgment Writers for appointment by selection to the post of Dy. Registrar (Admn.) or to lay down the ratio or proportion for appointment by selection to the post of Dy. Registrar (Admn.) from amongst the Asstt. Registrars and Private Secretaries and Judgment Writers as he may deem proper. We have suggested two alternatives and we may state that the Chief Justice shall be free to evolve and adopt any other alternative also so that the cases of both, the Asstt. Registrars and Private Secretaries and Judgment Writers are fairly considered for promotion as Dy. Registrar (Admn.) Costs made easy.