Rajasthan High Court - Jaipur
Vinod Kumar Rao And Ors. vs State Of Rajasthan And Anr. on 10 August, 1994
Equivalent citations: 1994(3)WLC1, 1994(2)WLN609
JUDGMENT R.S. Verma, J.
1. These three writ petitions raise identical questions of law and facts, and hence have been heard together with consent of all concerned. All the three writ petitions are being disposed of by a common order.
2. Vinod Kumar Rao, petitioner in D.B. Civil Writ Petition No. 1596/1988, passed his matriculation examination in 1956. He passed his P.N.R.C. Examination in the year 1963. He was appointed as Compounder/Male Nurse Gr. III on 13.3.1964. He was promoted as Male Nurse Gr. II on 13.8.1965, and was promoted Male Nurse Gr. I on 21.10.1977.
3. Devendra Singh Chaudhary, petitioner in D.B. Civil Writ Petition No. 4444/1988, passed his matriculation Examination in the year 1955, and passed his P.N.R.C. Examination in the year 1963. He was appointed Compounder-cum-Male Nurse Gr. III on 28.5.1963. He was promoted as Male Nurse Gr. II. He was eventually promoted as Male Nurse-cum-Compounder Gr. I on 24.5.1975.
4. Jagdish Chandra Yadav, petitioner in D.B. Civil Writ Petition No. 4445/1988, passed his matriculation Examination in the year 1959 and passed his P.N.R.C. examination in the year 1963. He was appointed Compounder/Male Nurse Gr. III on 10.1.1964. He was promoted as Male Nurse Gr. II on 15.12.1966. He was eventually promoted as Male Nurse Gr. I on 19.7.1978.
5. In all the three cases, bereft of unnecessary details, the case of the petitioners is that all of them were in possession of requisite qualifications for appointment as Male Nurse Gr. I on the date/dates on which they were appointed as Male Nurse Gr. III. Their case is that even though they had requisite qualifications, they werfe not appointed as Male Nurse Gr. I, even though, in similar cases the dates of appointment as Male Nurse Gr. I had been ante-dated on the basis of judgments of this Court. In all the three writ petitions, instances of such cases have been given in para No. 9 of the respective writ petitions. Aggrieved from the denial of appointment as Male Nurse Gr. I from their respective initial dates of appointments the petitioners filed separate writ petitions before this Court wherein, inter alia, it was prayed that respondents be directed to issue appropriate orders appointing each one of the petitioners as Male Nurse Gr. I with effect from the date of their initial appointments as Male Nurse Gr. III.
6. It appears that the writ petitions were contested on behalf of the respondents but eventually a Division Bench of this Court accepted the writ petitions by a common order dated 15.12.1988 and granted relief to the various petitioners. By the aforesaid common order as many as 31 writ petitions, particulars whereof have been given in Schedule attached to the said judgment, were disposed of.
7. It appears that the respondents challenged the aforesaid judgment dated 15.12-1988 by filing S.L.Ps. No. 1981-90 of 1992 (State of Rajasthan and Anr. v. Vinod Kumar Rao and Ors. etc.) which was decided on 8.5.1992. The Apex Court granted the S.L.Ps. and set aside the judgment of this Court dated 15.12.1988. The Apex Court was of the view that the pleadings of the parties were not complete before the High Court and the different Government orders, circulars, letters, Rules etc; to which reference had been made by learned Counsel for the parties before the Apex Court, were also not referred to before the High Court, and hence the Apex Court permitted both the sides to file affidavits explaining their cases in clear terms and to file copies of orders, circulars, letters or Rules, which may be relevant for arriving at the correct decision. The impugned judgments were, in the circumstances set aside and the appeals were allowed, and the cases were remitted to this Court for rehearing and rendering fresh decisions according to law. This is how, these writ petitions have come before us.
8. In pursuance of the decision of the Apex Court, an affidavit has been filed by Dr. Mahesh Bora, Officer-In-Charge of the case, alongwith various Annexures. The petitioners have also likewise filed their respective affidavits alongwith Rules and orders upon which they rest their cases.
9. It is a matter of history that prior to integration of the various princely States, each princely State had its own system of administration. On formation of Rajasthan State, an attempt was made to evolve a unified system of administration, wherein employees of the different States could be fitted in. The result was that the Rajasthan Civil Services (Unification of Pay Scales) Rules, 1951, (RC-I), were promulgated by His Highness the Rajpramukh of Rajasthan under proviso to Section 309 of the Constitution of India. The Government reviewed the integrated set up of Medical & Public Health Department and organised a Directgorate of Medical & Health Services with Head-quarter at Jaipur, vide Annexure R-4, by an order dated January 22, 1951. Schedule C of this order provided for Male Nurses/Compounders. This set up was further revised by another order dated October 6, 1953 (Annex. R-B). These unification of pay scales Rules provided for three categories of Male Nurses and Compounders as follows:
MALE NURSES AND COMPOUNDERS:
Grade I 100-120-EB-10-150 (for 20% of the cadre) Grade II 80-4- 100-EB-5-120 (for 40% of the cadre) Grade III 50-3-80 (for 40% of the cadre).
10. Thus, a unified cadre of Male Nurses and Compounders came into being which consisted of Male Nurses and Compounders in three grades. Gr. I were to be borne on 20% of the posts, 40% of the posts were to be in Gr. II and 40% of the posts were to be in Gr. III.
11. It appears that F.D. Order No. F. 1 (1)/R/51, dated 2.4.1951 (Annex. R-C) altered this position and Male Nurses-cum-Compounders were classified in four categories instead of three categories, as follows:
Male Nurse-cum-Compounders:
Grade I 150-5-200 Grade II 100-5-120 Grade III 80-4-100-EB-5-120 Grade IV 50-3-80
Grade I and II will be applicable only to Male Nurses-cum-Compounders who have passed the Matriculation Examination or its equivalent, undergone a four years training and passed the B.P.N.A. Examination or its equivalent and are employed in Class I and Class II Hospitals.
%" Grade HI will be applicable to Male Nurse-cum-Compounders who have passed the Anglo-Vernacular 8th Standard Examination (preference, however, being given to Matriculates in the case of now entrants) and a certificate issued by the Director of Medical and Health Services regarding possession of qualifications and experience of the standard required to pass the four grade Examinations prescribed for Compounders."
Grade IV will be applicable to all other Male Nurse-cum-Compounders who come up to the minimum prescribed standard.
The number of appointments in Grade III will be limited to 40% of the appointments in Grade III and IV taken together."
12. The number of appointments In Grade III were to be limited to 40% of the total appointments in Gr. III and IV were to be taken. It does not appear that the percentage of post's in Gr. I or Gr. II was altered in any manner. Though, it was added that Gr. I and Gr. II will be applicable only to Male Nurse-cum-Compounders who have passed the Matriculation Examination or its equivalent, (and have) undergone a four years training passed the B.P.N.A. Examination or its equivalent and are employed in Class I and Class II Hospitals. The position further underwent some change when an order dated 13.7.1956 (Annex. R-D) was issued Under Orders of His Highness the Rajpramukh of Rajasthan. By this order again Male Nurse-cum-Compounders were placed in three categories. This order, inter alia, provided as follows:
His Highness the Rajpramukh has been pleased to prescribe the following qualifications for various grades of compounders as sanctioned in the Rationalised pay scale schedule with immediate effect.
1. Male Nurse-cum-compounders Gr. I. (100-5-150-8-190-EB-10-250) This grade will be applicable only to those who have passed the Matgriculation Examination of its equivalent and undergone a four years training and passed the B.P.N.A. examination of its equivalent and are employed in the class I and class II hospitals.
Provided that the condition of possessing the qualifications of Matriculation Examination or its equivalent shall not be applicable in case of preconvenant entrants who have put in at least 15 years services as compounder in class I or class II hospitals under the Government of Rajasthan or in any of the convenanting units.
2. Male Nurse-cum-compounders Gr. II (80-5-110-EB-8-150).
This grade will be applicable to Male Nurses-cum-compounders who have passed the Anglo Vernacular 8th Standard Examination (preference, however, being given to Matriculates in the case of new entrants) and who have put in at least 15 service as Gr. III compounder and produces certificate issued by the Director Medical & Health Services, Rajasthan regarding possession of qualifications and experience of the standard prescribed for compounders of Gr. III.
3. Male Nurse-cum-compounder Gr. III (60-4-80-6-100-5-130).
This grade will be applicable to all other Male Nurses-cum- Compounders who come upto the minimum prescribed standard.
The number of appointments in Grade II will be limited to 40 percent of the appointments in Grade II and III taken together.
This position was reiterated by an order issued by the Director, Medical & Health Services, Rajasthan, Jaipur, on 9.5.1957 (Annex. R-E). By the said order Gr. IV Compounders were recategorised as Gr. III Compounders and Gr. III Compounders were categorised as Gr. II Compounders.
13. This position was further clarified by a subsequent order dated 26.4.1958 (Annex.R.F.) wherein, inter alia, it was stated as follows:
Benefit of Grade I Compounder in the Rationalised pay scales would be admissible to:
(1) Compounders already promoted and working as Compounders Grade I or II in the Unified pay scales prior to 1.3.1956.
(2) Compounders who were promoted to officiate in grade II after 1.3.1956 till before the issue of order No. Estt./Gen./304.57 dated 9th May, 1957 will be entitled to get the rationalised pay scales from the date he was promoted to Grade II in the unified pay scales.
(3) Those who were promoted to grade I in the unified pay scales after 1.3.1956 will not be entitled to the pay of Rs. 150/- p.m. of the unified pay scales of Grade I but the rationalised pay scale of Grade I as the unified pay scales were not in existence after 1.3.1956.
(4) Compounders who were working in Grade III or IV of the unified pay scale before issue of this office order No. Estt./Gen./57/304 dated 9.5.1957 will be entitled to grade I of the rationalised pay scales from the dates they have taken over charge after the receipt of the order in question.
The position was further changed when the Rajasthan Subordinate Services (Recruitment & Other Service Conditions) Rules, 1960, were promulgated by the Governor of Rajasthan in exercise of powers conferred under proviso to Article 309 of the Constitution of India (Annex. R.I/1). By Rule 3 of the aforesaid Rules, all existing Rules and Orders in relation to matters overed by these Rules were superseded. Expression 'post or posts' was defined in Clause (g) to mean the subordinate service post or posts specified or which may be added hereafter in Schedule II of Rajasthan Civil Service (C.C.A.) Rules, 1958. Part II provided for the strength of the posts of each type. Part III provided for sources of recruitment, determination of vacancies, academic qualifications, procedure for recruitments and other matters. Rule 20 of the said Rules provided for appointment by promotion. An order dated 11.6.1963 issued by the Government of Rajasthan in Medical and Health Department clarified that Compounders Gr. II having PNRC and 5 years service could be promoted on the post of Compounder Gr. I. The Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958, provided for Male Nurses-cum-Compounders as per entires 5 and 6 of Schedule II of the said Rules. Eventually the Rajasthan Medical & Health Subordinate Service Rules, 1965, were framed (Annex. R.K.). A conspectus of these aforesaid Rules goes to show that posts of Male Nurses-cum-Compounders were placed in different categories presumably to provide for suitable promotional evenues. Initially there were three grades but later on the number of grades were increased to four and eventually the number of grades were again reduced to three. The aforesaid narration also goes to make it clear that Gr. I and Gr. II posts were promotion posts and were to be filled up by eligible candidates having requisite experience. Petitioner Devendra Singh was appointee of the year 1963 ad Compounder/Male Nurse Gr. II, while petitioner Jagdish Chandra Yadav and Vinod Kumar Rao were appointees of the year 1964 as Compounder/Male Nurse Gr. III, petitioner Jagdish Chandra Yadav having been appointed on 10.1.1964, while Vinod Kumar Rao having been appointed on 13.3.1964.
14. It may here be stated that all the three petitioners were in due course promoted firstly to the post of Male Nurse/Compounder Gr. II and later on to the post of Male Nurse/Compounder Gr. I. Devenndra Singh was promotede to the post of Male Nurse/Compounder Gr. I on 24.5.1975, Vinod Kumar Rao was promoted to the said post on 21.10.1977, while Jagdish Chandra was promoted on the said post on 19.7.1978. Thus, these petitions were filed almost 10 to 11 years after their appointment to Gr. I claiming that each one of them should have been appointed to Gr. I from the very beginning i.e. from the dates of their initial appointments as Compounder/Male Nurse Gr. III. In respect of Jagdish Chandra such a claim was made after almost 24 years of appointment as Compounder/Male Nurse Gr. III; in case of Devendra Singh such a claim was made after about 25 years of joining service; and in case of Vinod Kumar Rao such a claim was being made after 24 years of joining of service. Two grounds have been pressed in support of the claim. Firstly, the petitioners in all the three cases possessed requisite academic and technical qualification on the date each one of them was initially appointed as Compunder Gr. III. Secondly, in a number of cases details whereof appear in para 9 of each of the petitions, the dates of appointments were ante-dated to the date of initial appointment or to the date of passing of general nursing course on the basis of the judgments rendered by this Court. 25 such cases have been cited beginning from the case of Gaj Raj Singh and ending with the case of Kalyan Singh.
15. On behalf of the respondents, it is urged that both the grounds are untenable in the eyes of law. It is submitted that mere possession of a qualification for appointment to Gr. I would not make a person entitled to appointment on that grade irrespective of the availability of vacancy, seniority etc. It is submitted that initial appointment of each one of the petitioners was on Gr. III and none of the petitioners was appointed to Gr. I. Mere possession of academic and technical qualification would not entitle any of the petitioners for appointment to Gr. I unless he had been selected and appointed to a vacancy in Gr. I, which is not the case in the present writ petitions. As regards the second contention, it is urged that the judgments under which various persons got the benefit of ante-dated appointments were passed without taking into consideration the relevant service Rules, circulars and orders. The judgments proceeded on wrong assumptions of facts and hence those judgments could not be binding and this Court cannot direct ante-dating appointments of any of the petitioners as Compounder Gr. I thereby converting their appointments to post of Gr. III to post of Compounder Gr. I, merely on the basis that such a petitioner possessed requisite academic and technical qualification at the time of initial appointment.
16. We have considered the rival contentions and we are of the view that mere possession of academic or technical qualification would not make a person entitled to an appointment in a particular grade where more than one grades existed. A person appointed to Gr. III cannot claim as a matter of right that he should be promoted to Gr. II or Gr. I merely because he possessed the qualifications which is prescribed for such higher grades. The scheme of the Rules, orders and circulars goes to show that limited number of posts were available in Gr. I, Gr. II, Gr. III and Gr. IV. This is also clear that appointment to higher posts was to made by way of promotion and not automatically. At any rate, this position is abundantly clear that when the present petitioners secured their initial appointments, they were appointed to Grade III posts and not to Grade I. At any rate, each of the petitioners was promoted to Gr. I after Rajasthan Medical & Health Subordinate Service Rules, 1965, had come into force. Rule 4 of these Rules provided for composition and strength of service. Rule 5 dealt with initial Constitution of the Service. It, inter alia, stated that the service shall consist of all persons holding substantively the posts specified in the Schedule; persons recruited to the service before the commencement of these rules. Rule 7 dealt with reservation of vacancies for the Shceduled Castes and the Scheduled Tribes. Rule 9 provided for determination of vacancies. Rule 11 provided for academic and technical qualifications and experience. Part IV provided for procedure for direct recruitment, while Part V provided for procedure for recruitment by promotion. Rule 23 dealt with eligibility and creteria for selection. Rule 24 dealt with procedure for selection. Rule 24 A dealt with the revised criteria, eligibility and procedure for promotion to junior, senior and other posts encarded in the service. Rule 26 A dealt with appointment of screen persons. Rule 27 dealt with urgent temporary appointment. Rule 29 A dealt with confirmation. Schedule I Item 3 (c) dealt with Nurse Gr. I. According to this Schedule, this is a post to be filled in 100% by promotion from Nurse Gr. II. The prescribed qualifications are PNRC or its equivalent qualifications recognised by the Government and five years experience as Nurse Gr. II.
17. It is an admitted position that each one of the petitioners was serving as Nurse Gr. II on the date the aforesaid Rules earned into force and none of them was serving as Nurse Gr. I. After coming into force of the Rules, each one of the petitioners could be promoted to post of Nurse Gr. I only if he possessed the prescribed qualification and five years experience as Nurse Gr. II. When it is so, it is difficult to comprehend the claim of the petitioners that they ought to have been appointed to Gr. I from the very date of their initial appointments or their appointments to Gr. I be antedated w.e.f. the date they were appointed in Gr. III.
18. Now, we may consider the situation arising out of various judgments of the Rajasthan Civil Services Appellate Tribunal and judgments of this Court which are said to have resulted in antedating appointments of such persons to Gr. I, even though such persons were never appointed to Gr. I, but had been appointed only to Gr. I, but had been appointed only to Gr. III. Admittedly, this ante-dating was the result of the judgments either of the Rajasthan Civil Services Appellate Tribunal or of this Court. It cannot be said that the respondents in any way discriminated between the cases of the petitioners and the cases of those persons who got the benefit of antedating appointments due to judgments of this Court or the judgments of the Rajasthan Civil Services Appellate Tribunal. Respondents have placed on record the various judgments which were passed to deal with cases of various persons.
19. The first judgment in the series is the judgment rendered in Gajraj Singh Mehta's case in S.B. Civil Writ Petition No. 797/1968, decided by a learned Single Judge of this Court on March 27, 1973. In that case petitioner Gajraj Mehta was an employee of former State of Jodhpur. Till 1953 the petitioner was not a matriculate. It appears that he passed his matriculation in 1953. He, therefore, made a representation that he should be allowed the scale of pay admissible to Compounder Gr. I. This representation was turned down with the result that he filed a writ petition before this Court. His contention was that he had undergone four years training course and had passed the BPNA Examination and has also passed matric examination and, as such, he fulfilled all the qualifications for appointment to Gr. I. It was further pleaded that he was transferred to Gr. I hospital w.e.f. April 27, 1955, and he fulfilled all the qualification for appointment as Gr. I Compounder and hence he should have been promoted to Gr. I with effect from April 27, 1955. This contention of the petitioner, Gaj Raj, was accepted, and respondents were directed to promote the petitioner to grade I with effect from April 27, 1955, instead of March, 1956, the date on which he was actually promoted to Gr. I It will be seen that in this case, the position regarding availability of post in Gr. I was not at all considered. The question of his being in zone of consideration for promotion to Grade I on April 27, 1955 was not considered. In our opinion, without examining the position regarding availability of a post in Gr. I and without considering the said factors, a direction as was given in the case, could not have been given. In our opinion, this judgment for grant of promotion to Gaj Raj Singh with effect from April 27, 1955 does not help the petitioners in any way. It may be stated that in this case petitioner Gajraj Singh never claimed ante-dating of his appointment as Compounder Gr. I in lieu of his appointment as Compounder Gr. III but had prayed for promotion from an earlier date, on which he had obtained necessary academic qualification. It appears that the State of Rajasthan filed an appeal against the said judgment of the learned Single Judge and the appeal of the State was dismissed by judgment dated 14.08.1975. In appeal, again, the question of availability of promotional post and other factors were not considered. Hence, to our mind, even this appellate judgment does not help the petitioners.
20. Kishan Singh Bhati was also employed as Mule Nurse Gr. III in the former State of Jodhpur. He became qualified to be promoted to the post of Male Nurse-cum-Compounder Gr. I with effect from June 11, 1955. He represented for such a promotion being granted to him upon which he was promoted to Gr. I by an order dated April 17, 1956 with effect from 4.4.1956. After representation, he was placed in Gr. I with effect from March 1, 1956, but later on he was treated as officiating Compounder Gr. I with effect from October 16, 1957. He was made to refund the difference of emoluments drawn by him in respect of period from March, 1956 to May, 1957. Aggrieved, he filed a writ petition No. 1708/1969 praying that he may be fixed in the Grade of Male Nurse-cum-Compounder Gr. I with effect from April 1, 1955. The writ petition was dismissed in limine on the ground of delay but later on in appeal, the matter was remanded and was heard by a learned Single Judge of this Court before whom a contention was made that the petitioner was entitled to get salary payable to Gr. I Male Nurse-cum-Compounder with effect from June, 1955. It was found that there is nothing on record to show that posts in Gr. I were not available on the date on which the petitioner became eligible for promotion to Gr. I. Accordingly, on the aforesaid premises, the writ petition was accepted by judgment dated January 17, 1976. To our mind, this judgment also is of no avail to the petitioners. It was again a case of promotion and not of converting appointment to one post to appointment on a higher grade.
21. This takes us to consideration of the cases of Lalu Ram (S.B. Civil Writ Petition No. 256/77), Purshottam Bhatt (S.B. Civil Writ Petition No. 257/77), Mangilal (S.B. Civil Writ Petition No. 258/1977) Dayal Singh (S.B. Civil Writ Petition No. 429/77) and Daulal (S.B. Civil Writ Petition No. 459/77), which were decided by a common order dated August 23, 1978. In all these cases the petitioners claimed that after passing the matriculation examination they became entitled to fixation in the Rajasthan Civil Services (Rationalisation) Pay Scales, 1956 in the scale of 100-250 with effect from the date they passed the general nursing course from PNRC. Placing reliance upon the judgment of Gaj Raj Singh referred to an of Kishan Singh Bhati, a learned Single Judge of this Court allowed the writ petitions. It was not considered whether there were vacancies available in Gr. I when the petitioners acquired the requisite qualification and whether according to their seniority the petitioners were entitled to be promoted to Gr. I. Thus, this judgment also is of no assistance to the present petitioners. It appears that the learned Single Judge proceeded on the premises that as soon as a person acquired the qualifications prescribed in the Rules, he was automatically entitled to grant of grade irrespective of the fact whether a vacancy was available or not or he was eligible to be promoted, or not, and whether he was sufficiently senior to be promoted or not. To our mind, that judgment cannot be said to lay down good law at all. The other judgment of this Court is dated February 12, 1979 which decided cases of UR Chaudhary (S.B. Civil Writ Petition No. 55/79), Bheru Dass (S.B. Civil Writ Petition No. 496/78), Ramesh Chandra (S.B. Civil Writ Petition No. 57/79), Bhanwar Lal Verma (S.B. Civil Writ Petition No. 692/1978), Kanhiyadas (S.B. Civil Writ Petition No. 766 of 1978), Bherulal (S.B. Civil Writ Pet. No. 614/78), Janardhan Rai (S.B. Civil Writ Petition No. 170/78, Abhas Ali (S.B. Civil Writ Petition No. 608/78), Bhagwan Puri (S.B. Civil Writ Petition No. 628/78), Chandra Sen (S.B. Civil Writ Petition No. 496/78), Bansilal (S.B. Civil Writ Petition No. 511/78) and Heera Lal (S.B. Civil Writ Petition No. 171/78). In all these cases the stand taken was the petitioners had completed their nursing courses and became entitled to be fixed in Rajasthan Civil Services (United Pay Scales) Rules, 1950, in the scale of 150-200 and the Rajasthan Civil Services (Rationalisation of Pay Scales) Rules, 1956, in the scale of 100-250. In this connection the learned Government Advocate had conceded that in view of the earlier judgments of this Court, petitioners were covered by the earlier judgments and were entitled to grant of pay scales of Compounder Gr. I, with effect from the date they acquired the relevant qualification. In this judgment also the question of availability of posts in Gr. I and other relevant factors were not considered. The question of seniority of the petitioners vis-a-vis other Compounders serving in Gr. II was also not considered.
22. Then was come to judgment, dated 13.12.1984, of this Court rendered in Mool Chand v. State (S.B. Civil Writ Petition No. 67/83). That judgment was rendered on the basis of U.R. Chaudhary's case (supra) and Dhanpat Singh's case (DB Civil Writ Pet. No. 255/77) decided on 23.8.78. In this case also there was no discussion regarding availability of vacancy in Gr. I and seniority of the petitioners vis-à-vis other Compounders/Male Nurses Gr. II. Now, we may consider the decision of this Court dated 4.2.1985 rendered in DB Civil Special Appeal (Writ) No. 21/85 (in SB Civil Writ Petition No. 67/83) State of Rajasthan v. Modi Chand. In that case also the claim of the petitioner was not contested on behalf of the State Government. In that case it was observed "It is also not denied that the respondent was promoted on the post of Compounder Gr. II by the order dated October 16, 1968. Only five years thereafter the respondent became entitled to promotion on the higher post of Compounder Gr. I subject to availability of vacancy on the post. Thus, it is clear that the respondent could have been promoted on the post of Compounder Gr. I on or after October 16, 1978, whenever a vacancy was available in the cadre of Compounder Gr. I." As a result the appeal was partly allowed and the Government was directed to fix the respondent on the post of Male Nurse-cum-Compounder Gr. I with effect from such date on or after October 16, 1973, when a vacant post was available in the cadre of Compounder Gr. I.
23. Thus, this judgment also does not assist the case of the petitioners in any manner and indubitably shows that a Compounder Gr. III or Gr. II can be promoted to the higher post of Compounder Gr. I subject to availability of the post.
24. Next Judgment on this question partains to SB Civil Writ Petition No. 368/85 decided by Hon'ble Mr. A.K. Mathur, J., on 4.11.1985. In that case the petitioner was already working as Male Nurse Gr. I in Government Hospital, Nagaur. He claimed his promotion from an early date on the ground that he possessed requisite qualifications. The writ petition was allowed and respondents were directed to consider the petitioner for grant of promotion on the post of Male Nurse Gr. I with effect from a specified date subject to seniority and suitability (R-8)
25. The next judgment on this question was also decided by Hon'ble Mr. A.K. Mathur, J., in S.B. Civil Writ Petition No. 1766/85 decided on April 26, 1986. In that case the petitioner claimed promotion to the post of Compounder Gr. I on or from the date he acquired the requisite qualification i.e. Octobber, 1962 in terms of the Pay Scales Rules of 1961. Following the decisions in U.R. Chawdhary's case (Supra) and Ambadas Purohit's case (SB Civil Writ Petition No. 647 of 1979), it was ordered that petitioner was entitled to. Gr. I of Male Nurse-cum-Compounder with effect from 20.1.63. In this case the question of availability of a vacancy on the post of Male Nurse-cum-Compounder Gr. I was not considered; it was also not considered if the petitioner fell within the zone of eligibility, or not. If on the basis of such a judgment some benefits were given to the petitioner in that case it can not be said that the present petitioners should also be given that benefit. The other judgment in this series is dated 5.10.1985 passed in S.B. Civil Writ Petition No. 646/1979, Sampat Singh Purohit v. State and Ors, decided by Hon'ble Mr. A.K. Mathur, J. In that case it was found that the petitioner was entitled to be fixed in Gr. I of Male Nurse-cum-Compounder with effect from 11.5.1966, because he had acquired the certificate in general nursing which is said to have been equivalent to P.N.R.C. In this case also the question of availability of vacancy and petitioner being in zone of consideration was not considered at all. It appears that the State went in appeal against this very judgment in DB Civil Special Appeal No. 778/1986, decided by a Division Bench of this Court on April 2, 1986. The appeal was dismissed but the question of availability of vacancy with effect from May 11, 1966, was not at all considered. The aspect, if Sampat Singh was within the zone of consideration was also not considered.
26. Even this was not a case of ante-dating the appointment of Sampat Singh with effect from the date he was appointed as Male Nurse-cum-Compounder Gr. III.
27. The issue came up before the Rajasthan Civil Services Appellate Tribunal, Rajasthan, Jaipur, in three appeals, namely, 976/82 (Shri Ram Kishore Sharma v. State), 977/82 [Shri P.S. Trivedi v. State) and the appeal No. 1026 of 1982 (Shri Dwarka Prasad Pareek v. State), appeals were disposed of by one judgment of Rajasthan Civil Services Appellate Tribunal, dated 30.10.1985. In these appeals, the appellants claimed that though they were appointed as Compounder Gr. III, they should have been fixed in Gr. I because they had obtained qualifications required for appointment to Gr. I. The appeals were dismissed and it was observed- "The Rajasthan Civil Services (Rationalisation of Pay Scales) Rules, 1956, were already in force when the appellants were appointed in Gr. III and merely because they had the qualifications required for Gr. I cannot confer any right on them to be given Gr. I. The relief claimed by the appellants in effect amounts to ordering their appointment in Gr. I instead of Gr. III." To our mind, this judgment proceeded on a sound footing and squarely governs the present cases. Reasoning of this judgment commends itself to us.
28. After having considered all the relevant Rules, circulars, orders and various judgments, we are of the opinion that the claim, of the petitioners, in fact, amounts to this, that their appointments to posts of Gr. III Compounders should be substituted by appointment to Gr. I because all three petitioners possessed requisite qualification on the date when each one of them was appointed Male Nurse-cum-Compounder Gr. III. In our opinion, this is not permissible under the relevant rules. We may state that only 20% of total posts were borne on Grade I; 40% were borne on grade II & rest were borne on Grade III. Unless vacancies were available in grade I on the date/dates each of the petitioner was appointed to Gr. III, they could not lay claim to appointment to Grade I. There is nothing on record to show that vacancies were at all available on the relevant dates in Grade I.
29. We may state that it is too late in the day for the petitioners to contend that their initial appointment to Gr. III or their promotion to Gr. II was bad and they ought to have been appointed to Gr. I from the very date of appointment inasmuch as they possessed requisite qualifications for appointment on the post of Male Nurse-cum-Compounder Gr. I.
30. We may repeat that appointment to a particular post always depends on the availability of the vacancy of that post. Petitioners were directly appointed to Gr. III and they could have very well declined appointment to Gr. III and at that very time could have pressed their claim for appointment to Gr. I. They did not do so. They chose to serve as Compounders Gr. III for considerable periods and eventually were promoted to Gr. II. Then they served for sufficient period as Male Nurse-cum-Compounders Gr. II and were eventually promoted to Gr. I. In our opinion, there is no substance in the claim of the petitioners that they should have been granted appointment to the post of Male Nurse-cum-Compounder Gr. I with effect from the date of their initial appointment on the ground that they possessed all requisite qualifications for appointment to Gr. I.
31. Learned Counsel for the parties relied up on Dilip Kumar and Ors. v. Union of India and Ors. in support of the proposition that where large number of persons have been promoted to a higher scale, other persons similarly situated should be similarly promoted after completing the same period of service. This ruling is of no assistance to the petitioner because we have already said what the petitioners are claiming is not a promotion on the basis of service rendered by them but they are in fact claiming that they ought to have been appointed on a higher post when initially they were appointed to a lower post. To our mind, the claim is not tenable. We find that the writ petitions are devoid of any merit and deserve to be dismissed.
32. No other point was urged before us.
33. The result is that all these writ petitions fail and are dismissed. In circumstances of the case, the parties are left to bear their own costs.