Rajasthan High Court - Jaipur
Vivek Prakash Mathur vs State Of Rajasthan And Anr. on 25 May, 1988
Equivalent citations: 1988(2)WLN471
JUDGMENT N.C. Sharma, J.
1. This common order will dispose of the preliminary objection as to the maintainability of the above writ petitions filed in this Court by Shri Vivek Prakash Mathur, Shri M.L. Chaurasia and Richpal Singh raised on behalf of the respondents. All these five writ petitions relate to matters concerning promotion to the posts of Superintending Engineer and Chief Engineer in the same Department of the Government of Rajasthan, namely, the Ground-Water Department, Jodhpur. Previously all the three petitioners were holding the posts of Executive Engineers in the Ground Water Department. Rules regulating the recruitment and conditions of service pertaining to the Ground Water Department under the provise to Article 309 of the Constitution and known as the Rajasthan Ground Water Board Service Rules, 1969 were framed by the Governor and promulgated in that year. Prior to 1-11-1976, the position of Rules regarding promotion to the post of Superintending Engineer was that an appointment to this post in the service was to be made by selection strictly on the basis of merit and on the basis of seniority-cum-merit in the proportion of 1:2. This criteria of promotion was altered by an amendment made in the Rules and published in the Rajasthan Gazette dated November 1, 1975. It was provided by the amended Rule 25(3) of the Rules that selection for promotion to all other higher posts of higher categories of posts in the service was to be made on the basis of merit alone. The Rules further underwent a change on March 7, 1978 and it was provided by Rule 25(6) that selection for promotion to all other higher posts or higher categories or posts in the State service shall be made on the basis of merit and on the basis of seniority-cum-merit in the proportion of 50:50. So far as selection or promotion to the highest post or highest categories posts in the State Service was concerned, it was provided by Rule 25(7) that it shall always be made on the basis of merit alone. This was the Rule in force with effect from March 7, 1978.
2. Shri C.M. Dhadda was promoted to the post of Superintending Engineer in the Ground Water Department on the basis of merit on January 28, 1970 and Shri T.N. Mehra was promoted to the post of the Superintending Engineer on the basis of seniority-cum-merit on September 8, 1970. These promoting were made against two vacancies which had occurred in the posts of Superintending Engineers in the year 1970 in the Department. Next vacancy of the post of Superintending Engineer occurred in the year 1972 and against that vacancy Shri M.M. Gupta was promoted as Superintending Engineer on the basis of seniority-cum-merit. No further vacancy in this category of the posts occurred before the year 1981-82. It was in the year 1981-82 that one vacancy of the post of Superintending Engineer took place and Shri Vivek Prakash Mathur petitioner in Writ Petitions Nos. 2228 of 1987 and 3191 of 1987 was promoted as Superintending Engineer on the basis of marit. It may hereby noted that when the vacancy of the post of Superintending Engineer occurred in the year 1981-82. the criteria for promotion to this post was according to Rule 25(6) of the Rules on the basis of merit or on the basic of seniority-cum-merit in the proportion of 50:50. Shri Vivek Prakash Mathur was confirmed on the post of Superintending Engineer with effect from June 4, 1982. Thereafter one vacancy in the post of Superintending Engineer occurred in the year 1982-83. As against the vacancy of this year, Shri M.L. Chaurasia, petitioner in Writ Petitions Nos. 2988 of 1987 and 11 of 1988, was promoted as Superintending Engineer on the basis of seniority-cum-merit. Shri T.N. Mehra who was then posted as Chief Engineer Ground Water Department expired on October 24, 1984. Consequent upon the death of Shri T.N. Mehra, Chief Engineer Ground Water Department Jodhpur, Shri Vivek Prakash Mathur Senior-most Officiating Superintending Engineer was promoted to hold the charge of the post of Chief Engineer in addition to his own duties with immediate effect till further orders by an order of the Government in Agriculture Department No. F.767/Agri./ III/84 dated Nov. 7, 1984. Thereafter the Government in continuation of its aforesaid order dated November 7, 1984, passed an order dated September 11, 1985 posting Shri Vivek Prakash Mathur as Chief Engineer, Ground Water Department Jodhpur in his own pay scale of Superintending Engineer with immediate effect. He was directed to handover the charge of the post of Superintending Engineer to Shri P.C. Jain, Executive Engineer, who was to perform the duties of the post of Superintending Engineer in addition to his own duties. It may here be mentioned that although Shri Vivek Prakash Mathur and M.L. Chaurasia were respectively promoted on the post of Superintending Engineer as against the vacancies occurring in the years 1981-82 and 1982-83, but their promotion orders were issued on April 10, 1987 and thereby their dates of confirmation on the post of Superintending Engineer were respectively specified as June 4, 1982 and October 13, 1983.
3. As against this order dated April 10, 1987, Shri P.C. Jain who is one of the respondents in all these writ petitions, filed an appeal before the Rajasthan Civil Services Appellate Tribunal Jaipur. In his appeal No. 241 of 1987, Shri P.C. Jain impleaded, apart from the State of Rajasthan, Shri M.L. Chaurasia as respondent. The main contentions of Shri P.C. Jain in his appeal before the Tribunal were that a new revised criteria of promotion was specified by the Government by its notification dated March 7, 1978 and according to this new criteria, the post of Superintending Engineer was to be filled up by merit and seniority-cum-merit in the proportion on 50:50. How ever an Explanation had been inserted to Rule 25(6) of the Rules by notification dated 17-8-1978 according to which if in a service, in any category of post, number of posts available for promotion was an odd number, then for the purpose of determination of vacancy for selection by promotion on the basis or seniority-cum-merit and merit in the proportion of 50:50, the following cyclic order was to be followed:
The first vacancy by seniority-cum-merit;
The subsequent vacancy by merit;
The cycle to be repeated,
4. On the basis of the above criteria for promotion, it was pleaded by Shri P.C. Jain before the Tribunal that the first vacancy of Superintending Engineer which occurred in the year 1981-82 (which was an odd vacancy) was to be filled in on the basis of seniority-cum-merit and not on the basis of merit as had been done by the Departmental Promotion Committee and in pursuance of whose recommendations, the order dated April 10, 1987 was passed by the Government of Rajasthan. According to him, the latter vacancies occurring in 1982-83 and 1984-85 were to be filled up respectively by merit and seniority-cum-merit as per Explanation to Rule 25(6) added in the Rules by notification dated August 17, 1978. Shri P.C. Jain inter alia prayed in his appeal before the Tribunal that the order of the Government dated April 10, 1987 promoting Shri M.L. Chaurasia as Superintending Engineer on the basis of seniority-cum-merit may be quashed and the State of Rajasthan be directed to reconvene the meeting of the Departmental Promotion Committee for selection to the post of Superintending Engineers and it may be directed to consider the first vacancy of this post occurring in the year 1981-82 to be filled up on the basis of seniority-cum-merit and the second vacancy occurring in the year 1982-83 to be filled in by merit. This appeal filed by Shri P.C. Jain before the Tribunal was contested by the State of Rajasthan by filing a reply. The stand taken by the State of Rajasthan in its reply before the Tribunal was that when the meeting of the Departmental Promotion Committee was held in the year 1974, the selection to the post of Superintending Engineer was made on the basis of seniority-cum-merit and it was mentioned by the Committee that when next vacancy occurs, the first vacancy will be filled up on the basis of merit and therefore, the vacancy which was available in the year 1981-82 was filled in on the basis of merit and the next vacancy which became available in the year 1982-83 was filled in on the basis of seniority-cum-merit. Despite having filed this reply to the appeal preferred by Shri P.C. Jain, the State of Rajasthan, of its own accord, reconvened a meeting of the Review Departmental Promotion Committee and on the basis of the recommendations made by it issued a fresh order regarding promotions of the posts of Superintending Engineer in the Ground Water Department. By its order dated 24-11-1987. Shri Vivek Prakash Mathur was promoted to the post of Superintending Engineer as against the vacancy of the 1981-82 on the basis of seniority (instead on the basis of merit) and was confirmed on this post with effect from June 4, 1982. In the vacancy which occurred in the year 1982-83, instead of Shri M.L. Chaurasia, who had been previously promoted, Shri P.C. Jain was promoted as Superintending Engineer on the basis of merit and was confirmed with effect from October 13, 1983. Shri M.L. Chaurasia was promoted to the post of Superintending Engineer as against a newly created temporary post in the year 1987-88 and Shri K.R. Haldania (a member belonging to a Scheduled Caste) was also promoted as Superintending Engineer as against another newly created temporary post in the year 1987-88. It may here be mentioned that before the meeting of this Review Departmental Promotion Committee was held on 12th and 13th November, 1987, a meeting of another Departmental Promotion Committee was held earlier on August 4, 1987 to make selection for promotion to the post of Chief Engineer, Ground Water Department and that Departmental Promotion Committee did not find Shri Vivek Prakash Mathur as suitable for the post of Chief Engineer and, therefore, an order was issued by the Government on August 21, 1987 reverting Shri Vivek Prakash Mathur from the post of Chief Engineer to his substantive post of Superintending Engineer. He was posted on a newly created post of Superintending Engineer-cum-Technical Assistant and it was further directed that Shri Vivek Prakash Mathur was, in addition to his own duties as Superintending Engineer, to continue to perform the duties of the post of Chief Engineer. This background and course of events led Sarv Shri Vivek Prakash Mathur, M.L. Chaurasia and Richpal Singh to file the present writ petitions.
5. It may next be mentioned that in a stay petition No. 84 of 1987 filed by Shri M L. Chaurasia connected with his "writ petition No. 2988 of 1987 an ex parte stay order was passed by this Court on November 23, 1987, to the effect that the order dated April 10, 1987 whereby he was promoted to the post of Superintending Engineer on the basis of seniority-cum-merit will not be disturbed by the respondents qua Shri M.L. Chaurasia. According to Shri M.L. Chaurasia, despite this stay order, the State Government issued the revised promotion orders for the post of Superintending Engineers as against vacancies falling in the years 1981-82 and 1982 83 and disturbed his promotion made to this post earlier on April 10, 1987. For this Shri M.L. Chaurasia filed contempt petition No. 282 of 1987 before this Court. Later on in second stay Petition No. 3024 of 1987, an ex parte stay order was issued against the respondents staying the operation of its two orders dated Nov. 24, 1987 referred to above qua Shri M.L. Chaurasia.
6. Shri Vivek Prakash Mathur had also filed a stay petition No. 2023 of 1987 connected with writ petition No. 2228. of 1987 and an ex parte stay order was passed on September 9, 1987 staying the operation of Government order dated August 21, 1987. In another stay petition No. 3022 of 1987 connected with Writ Petition No. 3191 of 1987, an ex parte stay was granted in favour of Shri Vivek Prakash Mathur directing the State of Rajasthan not to convene meeting of the Departmental Promotion Committee to fill up the post of Chief Engineer, Ground Water Department Jodhpur and the stay order continues.
7. Shri Vivek Prakash Mathur in his writ petition No. 2228 of 1987 has prayed for a writ or direction to the effect that order dated August 21, 1987 finding him unsuitable for the post of Chief Engineer may be declared to be invalid and may be quashed and the State of Rajsthan be forbidden from giving effect to its said order. It has further been prayed that the State of Rajasthan be directed to pay to the petitioner the emoluments of the post of Chief Engineer on and from November 7, 1984 till he is made to discharge duties as Chief Engineer even if for any reason he is not found entitled to do so after a particular date. In his second Writ Petition No. 3191 of 1987, Shri Vivek Prakash Mathur has prayed that the order of the State Government dated November 24, 1987 promoting Shri P.C. Jain as Superintending Engineer on the basis of merit may be declared to be invalid and quashed and the State of Rajasthan be directed that the Departmental Promotion Committee will consider his case for promotion to the post of Chief Engineer to the exclusion of Shri P.C. Jain in the vacancy occurring in the year 1984-85. It is further said that the Departmental Promotion Committee should consider his case for promotion to the post of Chief Engineer not only on the basis of merit but on the basis of seniority-cum-merit in the vacancy which occurred in the year 1984-85 and 1985-86 and then for 1986-87 if occasion arises therefor by confining consideration of the petitioner alone.
8. Shri M.L. Chauraisa in his writ petition No. 2988 of 1987 has prayed that the aforesaid orders dated November 24, 1987 and also order dated December 5, 1987 may be declared to be invalid and may be quashed. He has further prayed that the order of the Government dated April 10, 1987 may be declared to have been validly made and he may be given all benefits consequential to such a declaration. He has also prayed that the appointment given to Shri P.C. lain may be declared to be invalid. In his second Writ Petition No. 11 of 1988 Shri M.L. Chaurasia has prayed that the recommendation of the review Departmental Promotion Committee pursuant to which the order dated August 21, 1987 was made in the case of Shri Vivek Prakash Mathur be declared to be illegal being violative of Article 16 of the Constitution of India. He has also prayed for a direction to the State Government to consider his candidature for the post of Chief Engineer in the Ground Water Department as against the vacancy that has occurred in the year 1984-85 and the zone of consideration may be confined to those candidates who were eligible then.
9. Richpal Singh in his Writ Petition No. 3042 of 1987 has also prayed for the quashing of orders dated Nov. 24, 1987 & December 5, 1987. He has further prayed that the Confidential Reports of the years 1976-77, 1980-81 and 1981-82 of Shri P.C. Jain may be declared to be invalid and may be quashed. By amendment of the writ petition, it has also been prayed that it be declared that the convening of the Departmental Promotion Committee for the purpose of making fresh recommendations by reviewing its previous recommendations for the appointment to the posts of Superintending Engineers for the vacancies of the year 1981-82 and 1982-83 is illegal and ineffective and if Shri P.C. Jain is selected for any reason, by the Review Departmental Promotion Committee for any of the two vacancies, his selection may be declared to be invalid. Shri Richpal Singh has also prayed for quashing the orders dated November 24, 1987 and December 5, 1987 referred to above.
10. All these five writ petitions are opposed by the State of Rajasthan and Shri P.C. Jain.
11. Mr. Hasti Mal Parekh, appearing for the State of Rajasthan raised a preliminary objection that none of the five writ petitions filed by the three petitioners are maintainable because each of the petitioners had an alternative remedy of filing an appeal against the order or orders from which they are aggrieved before the Rajasthan Civil Service Appellants Tribunal and before they exhausted the alternative remedy available to them, this Court should not entertain these writ petitions under Article 226 of the Constitution of India. It may here be mentioned that Mr. Marudhar Mridul appearing for the petitioners urged that on November 23, 1987 in Civil Miscellaneous stay Petition No. 84 of 1987 connected with Civil Writ Petition No. 2988 of 1987 filed by Shri M.L. Chaurasia Court had issued an ex parte stay order directing State of Rajasthan that its order dated April 10, 1987 will not be disturbed qua the petitioner Shri M.L. Chaurasia. It was pointed out that Shri M.L. Chaurasia, after the above stay order was granted, had got sent telegram through his counsel to the Secretary Public Health Engineering Department and Ground Water Department, Government of Rajasthan on that very day by phonogram at 16.45 hours. Copy of the telegram was also endorsed telegraphically to the Minister, Ground Water Department and Chairman of the Rajasthan Public Service Commission, Ajmer. Apart from that Shri M.L. Chaurasia had also sent a written intimation to the Secretary Government of Rajasthan Department of Ground Water on 23rd November, 1987 through a messenger and the same was delivered to the clerk concerned at 10.30 A.M. on 24th September, 1987. By these telegrams and the written intimation, these authorities were informed of the ex parte stay order granted by this Court on 23rd November, 1987. Despite that the State of Rajasthan issued two orders on 24th November, 1987. By one order Shri M.L. Chaurasia was relegated to the 3rd position among the Superintending Engineers by appointing him as such to the newly created temporary vacancy of the year 1987-88 and Shri P.C. Jain was appointed as Superintending Engineer by promotion as against the vacancy of the year 1982-83 on the basis of merit and was confirmed on that post with effect from 13th October, 1983. By the second order, the earlier order dated April 10, 1987 had been withdrawn. Thus according to Mr. Marudhar Mridul the State of Rajasthan had committed contempt of this Court's stay order dated 23rd November, 1987 and contemner cannot be heard in reply to the writ petitions until it withdraws the orders through which it had committed contempt and cannot be allowed to raise the preliminary objection which had been advanced by Mr. Hastimal Parekh appearing for the State of Rajasthan. It was argued that Shri M.L. Chaurasia has already filed in this court a contempt petition 282 of 1987 in this respect. A reply has also been filed to the contempt petition by the Assistant Secretary to the Government, Ground Water Department on 8th February, 1988. Although Mr. Marudhar Mridul raised this objection, but later on he did not object against hearing the preliminary objection raised by Mr. Hastimal Parekh and to decide it first. In view of this consent given by Mr. Marudhar Mridul, we heard the learned Counsel for the parties on the preliminary objection raised by Mr. Hastimal Parekh. Mr. Lekhraj Mehta appearing for Shri P.C. Jain also supported the preliminary objection put forward on behalf State of Raj. Mr. Hastimal Parekh strenuously urged that the petitioners in their respective writ petitions have not at all challenged the vires of the Raj. (Civil Services) Appellate Tribunal, Act and, therefore, remedy which was available to each of them was to appeal before that Tribunal against the order or orders from which they were aggrieved. It was also argued that within the four-corners of their writ petitions, none of the petitioners have alleged that there had been any violation of the principles of natural justice so as to call for interference by this Court under Article 226 of the Constitution. More over, in such cases no question about the Departmental Promotion Committee or the State Government giving an opportunity of hearing to the petitioners. Mr. Parekh urged that principle of natural justice is not an abstract doctrine. According to him, the case of the petitioners in their writ petitions on its very face was based upon infraction of Rule 25(6) and Rule 25(7) of the relevant Service Rules and the question as to what interpretation should be given to these Rules and the question whether the State of Rajasthan and the Departmental Promotion Committee have violated the provisions of these Rules in making promotion to the posts of Superintending Engineer and Chief Engineer can very well be adjudicated by the Rajasthan Civil Services Appellate Tribunal and thus the alternative remedy provided for by the Rajasthan Civil (Services Matters) Appellate Tribunal Act 1976 (for short, here in after, "the Act") fully covers the entire challenge made by the petitioners in their writ petitions and where the entire challenge made by the petitioners can be adjudicated in the alternative forum, writ petitions will not be entertained. Reliance in this connection was made to a Bench decision of this Court in Ved Prakash Khare v. State of Rajasthan and other (D.B. Civil Writ Petition No. 2330 of 1986) decided on August 31, 1987.
12. In reply to this preliminary objection, Mr. Marudhar Mridul appearing for the petitioners urged that where breach of fundamental rights and violation of principles of natural justice is alleged and where the impugned orders are void writ petition under Article 226 of the Constitution is maintainable. He urged that in the present writ petition, breach of fundamental rights and violation of principles of natural justice and the impugned orders being void have been alleged by the petitioners. Mr. Marudhar Mridul also argued that rule of Law and judicial review are basis and essential features in our Constitution. According to him, the provisions contained in the Act affords no remedy of judicial review in as much as two members of the Tribunal (including the Chairman) are appointed from the Executive Service of the State and there is only one Judicial Member in the Tribunal. Secondly, the Appellate Tribunal has no executing powers. Thus, according to him neither the Act provides a remedy of judicial review nor an adequate or efficacious remedy and, therefore, the preliminary objection raised by Mr. Hastimal Parekh has no merit in it.
13. We may briefly touch the grounds on which various orders have been challenged in these writ petitions. So far as writ petition No. 2228 of 1987 filed by Shri Vivek Prakash Mathur is concerned, he has challenged the order dated August 21, 1987 of the State Government whereby it was intimated that in the meeting of the Departmental Promotion Committee held on August 4, 1987 Shri Vivek Prakash Mathur was not found suitable for the post of Chief Engineer and, therefore, he was reverted to his substantive post of Superintending Engineer and was directed to perform the duties of the post of Chief Engineer in addition to his duties as Superintending Engineer till further orders. Shri Vivek Prakash Mathur has alleged in his writ petition that he had an unblemished service record and earlier on April 10, 1987, he was promoted to the post of Superintending Engineer on the basis of merit. According to him, the only other person eligible for the post of Chief Engineer was Shri, M.L. Chaurasia who had been promoted as Superintending Engineer on 10th April, 1987 on the basis of Seniority-cum-merit. The constitution of the Departmental Promotion Committee was also questioned. Lastly, Reliance was placed upon proviso to Sub-rule (7) of Rule 15 of the Rules which provides that if the Departmental Promotion Committee was satisfied that suitable persons were not available for selection to the highest post strictly on the basis of merit selection by promotion to that post on the basis of seniority cum-merit may be made. It has also been pleaded that rejection of the petitioner for appointment by promotion to the post of Chief Engineer was arbitrary and violative of Article 14 of the Constitution. In his second writ petition No. 3191 of 1987, Shri Vivek Prakash Mathur challenged the orders. dated November 24, 1987 whereby as a result of the recommendations of the Review Departmental Promotion Committee, the promotion of Shri Mathur made earlier on 10th April, 1987 to the post of Superintending Engineer on the basis of merit was altered as having been made on the basis of seniority and whereby, instead of Shri M.L. Chaurasia, Shri P.C. Jain was promoted to the post of Superintending Engineer as against the vacancy of the year 1982-83 on the basis of merit. In this petition, Shri Vivek Prakash Mathur made it a ground that the order dated 24th Nov., 1987 was made in total breach of the principles of natural justice because he was and on the post of Superintending Engineer on the basis of merit as against the vacancy occurring of the year 1981-82 and by the impugned order, he was divested of the right which had been created by the order dated 10th April, 1987. Shri Vivek Prakash Mathur apprehended that in future the Departmental Promotion Committee may consider the candidature of Shri P.C. Jain along with him for the post of the Chief Engineer. He relied upon Rule 25(6) of the Service Rules read with Explanation thereto and according to the constitution placed by him, the vacancy of the year 1982 83 should have been filled up on the basis of seniority-cam-merit and not merit. This is the substance of his second writ petition.
14. So far as Shri M.L. Chaurasia is concerned, he has in his writ petition No. 2988 of 1987 also challenged the two orders dated November 24, 1987 and the order dated December 5, 1987 and had prayed that it may be declared that the earlier order dated April 10, 1987 was validly made. After narrating the past history of personnel and the Service Rules, Shri Chaurasia contended that he was appointed by promotion to the post of Superintending Engineer on the basis of seniority-cum-merit by order dated April 10, 1987 and was confirmed on that post with effect from August 13, 1983. Thus he acquired valuable right to hold the post and he could not be divested of his rights without being afforded on opportunity to show cause why that should not be done. He also relied upon Rule 25(6) of the Service Rules read with Explanation thereto and challenged the promotion of Shri P.C. Jain to the post of Superintending Engineer as a result of the recommendations of the Review Departmental Promotion Committee. He has also challenged the competence of the authorities to comment as the Reporting Officers on the Annual Performance Appraisal Report of Shri P.C. Jain of the years 80-81 to 1984-85. In his second writ petition No. 11 of 1988 Shri M.L. chaurasia has pleaded that Shri T.N. Mehra the then Chief Engineer, has expired on 24th October, 1984 and the post of Chief Engineer fell vacant on that date and it would obviously be treated as a vacancy for the year 1985-86 because under the Rules the vacancy has to be determined at the commencement of the year. By order August 21, 1987 Shri Vivek Prakash Mathur was reverted to the post of the Superintending Engineer because he was not found suitable for the post of Chief Engineer by the Departmental Promotion Committee. How ever, that order did not indicate whether the case of Shri M.L. Chaurasia was also considered or not. Shri Chaurasia further pleaded that since vacancy occurred of the post of Chief Engineer on October 24, 1984. it could be filled in the year 1985-86 and the eligibility has to be considered as on April 1, 1985. He has pleaded that he was eligible to be considered for the post of Chief Engineer He complains that his case was not considered for the post of Chief Engineer along with the candidature of Shri Vivek Prakash Mathur and thus his fundamental rights guaranteed by Article 16 read with Article 14 were violated. He, therefore, prayed that the recommendations of the Departmental Promotion Committee pursuant to which the order dated 21st August, 1987 was made may be declared to be illegal and the State Government may be directed to consider the candidature of Shri M.L. Chaurasia for the post of Chief Engineer in respect of the vacancy which occurred in the year 1985-86 and to confine the consideration to only those candidates who were eligible then.
15. So far as Richpal Singh is concerned, he has, in his writ petition No. 3042 of 1987, also challenged the two orders dated November 24, 1987 and the order dated Dec. 5, 1987. According to him, on proper interpretation of Rule 25(6) of the Service Rules read with Explanation thereto, since there was an odd vacancy of the post of Superintending Engineer both in the years 1981-82 and 1982 83, the same could he filled in only on the basis of seniority-cum-merit and none of him could he filled on the basis of merit. He has, therefore, challenged the promotion of Shri P.C. Jain who was junior to him to the post of Superintending Engineer in pursuance of the recommendations of the review Departmental Promotion Committee on the basis of merit by order dated November 24, 1987. He has also prayed for quashing the confidential reports of Shri P.C. Jain in relation to the orders 1976-77, 1980-81 and 1981-82 on various grounds. This is the substance of the case of each of the petitioners and these are in substance the grounds on which various orders have been challenged in these writ petitions.
16. In the back ground of these facts, the question which calls for determination is whether all or any of these writ petitioners have an alternative and effective remedy by way of appeal before the Rajasthan Civil Services Appellate Tribunal under the provisions of the Act. We may first refer to the Bench decision of this Court in Ved Prakash Khare v. The State of Rajasthan and Ors. (D.B.Civil Writ Petition No. 2330 of 1986) decided on August 31, 1987 Facts in this case were that petitioner Ved Prakash Khare was appointed as Weaving Instructor in the Industries Department in the year 1959. He was declared surplus in the year 1964 from the Industries Department and was absorbed as Lower Division Clerk in the Sheep and Wool Department and was confirmed on that post with effect from 1st April, 1970. Later on he was promoted to the post of Upper Division Clerk and was confirmed on the post with effect from 1st December, 1971. Later on vide order dated April 12, 1985, he was promoted as Office Assistant on purely temporary basis for a period of six months. One Deoki Nandan Kulshreshta respondent No. 3 was appointed as Accounts Clerk in the Sheep and Wool Department. He was dismissed from service by an order June 30, 1971. Deoki Nandan Kulshreshta filed a writ petition in the High Court challenging the validity of his dismissal order. That writ petition was allowed and the order of dismissal was (sic)hed. After the decision of the High Court, the Director Sheep and Wool Department by an order dated October 3, 1986 placed Deoki Nandan Kulshreshta at serial No. 5A in the seniority list of the Upper Division Clerks which had been notified on June 13, 1976. This order was followed by another order dated October 20, 1986 where by Shri Kulshreshta was promoted to the post of Office Assistant against the vacancies of the year 1984-85 on the basis of the recommendations of the Review D P.C. Feeling aggrieved by the aforesaid order in relation to Shri Deoki Nandan Kulshreshta the petitioner filed civil Writ Petition No. 2330 of 1986 before the High Court on the ground that the orders dated October 3, 1986 and October 20, 1986 prejudicially affected the rights of the petitioner and were ultra vires of the provisions of the Rajasthan Subordinate Offices (Ministerial Staff) Rules, 1987. In this writ petition, an objection was raised by the learned Counsel appearing for Deoki Nandan Kulshreshta to the effect that as an alternative remedy was available to the petitioner by way of an appeal before the Rajasthan Civil Services Appellate Tribunal, the writ petition should not be entertained. In reply to this preliminary objection, the counsel for the petitioner urged before this Court that the availability of the remedy to appeal to the Tribunal was not a bar to the maintainability of the writ petition because that remedy was not an effective remedy. It is pertinent to note here that the only argument advanced on behalf of the petitioner in reply to the preliminary objection raised on behalf of Deokinandan Kulshreshta was that the remedy of appeal to the Rajasthan Civil Services Appellate Tribunal was not an effective remedy. In Ved Prakash Khare's case, no argument was advanced and no case was sought to be made out that there was violation of the principles of natural justice in the passing of the two impugned orders and, therefore, despite the availability of the alternative remedy, the writ petition was maintainable. The judgment of the Bench of this Court is confined to the question whether the alternative remedy by way of appeal to the Tribunal was an effective and efficacious remedy or not. In connection with his reply, three arguments were put forward by the learned Counsel for the petitioner. The first contention advanced was that the composition of the Tribunal did not inspire confidence in as much as overwhelming voice was given to the Members belonging to the Administrative Service. The next contention was that the Act did not prescribe any machinery for the implementation of the orders passed by the Tribunal. Last contention was that neither the Act nor the Rules framed thereunder contained any provisions vesting in the Tribunal the power to punish for the contempt of its orders. On these three grounds it was urged on behalf of the petitioner in that case that the remedy of appeal provided to the Tribunal was not an effective remedy. All these three contentions were negatived by the Division Bench of this Court.
17. Before us, on behalf of the petitioners it has been urged that the petitioners in their writ petitions have complained of their fundamental rights and violation of principles of natural justice and on that basis Mr. Marudhar Mridul has urged that petition under Article 226 of the Constitution is maintainable despite the availability of the appeal before the Service Tribunal. It is true that Mr. Marudhar Mridul has also argued before us that the provisions contained in the Act affords no remedy of judicial review in as much as Members of the Tribunal (including the Chairman) are appointed from Executive Service of the State and there is only one Member belonging to the Raj Higher Judicial Service in the Tribunal. It has also been urged by Mr. Mridul that the Tribunal has no power in it for implementation of its orders. So far as the latter arguments advanced by Mr. Mridul are concerned, they have been answered by the Division Bench of this Court in Ved Prakash Khare's case. We are not inclined to take a different view than taken by his Court in Ved Prakash Khare's case on the later argument advanced by Mr. Mridul on behalf of the petitioners. We need not therefore, proceed to examine them further. We are also not inclined to go into the question as to whether the provisions in the Act are against the basic principles of the Rule of Law and the Judicial Review for the reason that the petitioners have not challenged in their writ petitions the vires of the Rajasthan Civil Services (Service Matters) Appellate Tribunal Act, 1976. In relation to the decisions in S.P. Sampath Kumar v. Union of India and Ors. . and P. Sambamurthy v. State of A.P. , we may state that in these cases vires of the Administrative Tribunals Act, 1985 and of Article 371. D(5) of the Constitution were challenged. That is not so in the present writ petitions. Apart from that, it is clearly borne out from the decision in S.S. Sampath Kumar's case (Supra) that the Administrative Tribunals Act, 1985 had been created in substitution of the High Court and, therefore, the question of judicial review, which was a basis and essential feature of the Constitution, had arisen. It therefore, became necessary to go into the question of the composition of the Administrative Tribunal created under Administrative Tribunals Act, 1985 in substitution of the High Court. The Rajasthan Civil Services Appellate Tribunal created under the, Act is not in substitution of the High Court and a writ petition under Article 226 of the Constitution lies to the High Court against the order of the Tribunal. We may, how ever, not pursue the matter further because the vires of the Act have not been challenged by the petitioners in these writ petitions as had been done in the above two decisions of the Supreme Court.
18. Coming to the question of availability of the alternative remedy, reference may be made to the Constitution Bench's decision of the Supreme Court in A.V. Venkateswaran v. Ramchand Sobh Raj Wadhwani and Anr. . The question in controversy related to the rate of duty to be charged on imported Sheauer Pens from Australia. The Assistant Collector of Customs adjudicated the duty at 78 3/4 per cent holding them to fall under item 61(8) of the Schedule to the Indian Tariff Apt, 1934. The respondent filed an appeal to the Collector of Customs but the same was dismissed. Section 191 of the Sea Customs Act enabled any person aggrieved by an order of the Collector of Customs to file a revision to the Central Government The respondent, without resorting to the remedy, filed a writ petition in the Bombay High Court to quash the imposition of the duty at the higher rate (certiorari) and to direct the release of the goods on payment of duty at 30% under item 45(3) (mandamus). The writ petition was resisted by the Collector of Customs who inter alia contended that the respondent had another remedy open to him, viz., to file a revision to the Central Government and that be was, therefore, disentitled to move the High Court under Article 226 of the Constitution before availing himself of the remedy specially provided by statute. The single Judge of the Bombay High Court held that duty at 30 per cent only under item 45(3) could be levied. The contention regarding availability of alternative remedy was repelled on the ground that decision to levy duty at 78-3/4 per cent was without jurisdiction. The Collector of Customs filed an appeal before the Division Bench of the High Court. Chagla, C.J., delivered the judgment of the Bench. He upheld the construction placed by the Single Judge and held that consignment of fountain pens could only fall under item 45(3) and the duty could be charged, at 30 percent provided under that item. With regard to the plea of alternative remedy, Chagla, C.J. disagreed with the views of the Single Judge that the Customs Authorities lacked or exceeded their jurisdiction in assessing duty at a higher figure. After pointing out that it was settled practice of the Bombay High Court not to entertain writ petitions by parties who had not exhausted their statutory remedies, Chagla, C.J., how ever held that in the case before the Bench, the remedy of applying in revision had become barred by limitation by the date of hearing of the appeal and that on that ground he would not interfere with the order of the learned Single Judge. The appeal was, therefore dismissed. The Collector of Customs came in appeal before the Supreme Court. Learned Solicitor General contended before the Supreme Court that the existence of an alternative remedy was a bar to the entertainment of a petition u/A 226 of the Constitution unless (1) there was a complete lack of jurisdiction in the officer or Authority to take the action impugned or (2) where the order prejudicial, to the writ petitioner has been passed in violation of the principles of natural justice and could, therefore, be treated as void or non-est. In all other cases, he submitted Courts should not entertain petitions under Article 226, or in any event not grant any relief to such petitioners. It was argued by the learned Solicitor General that in that case, the High Court in appeal had expressly dissented from the reasoning of the Single Judge as regards the lack of jurisdiction of the Customs Officer to adjudicate regarding the item under which the article imported fell and the duty leviable thereon. Nor was there any complaint in that case that the order had been passed without an opportunity to the importer to be heard, so as to be in violation of the principles of natural justice. The learned Solicitor General questioned the correctness of the reasoning of the learned Chief Justice in condoning the conduct of the respondent in not moving the Government in revision by taking into account the time that had elapsed between the date of the impugned order and that on which the appeal was heard. The submission was that if this were a proper test, the rule as to a petitioner Under Article 226 having to exhaust his remedies before he approached the Court would fee practically a dead letter because in most cases by the date the petition comes on for bearing, the time for appealing or for applying in revision to the Departmental Authorities would have lapsed. His Lordship Rajagopala Ayyengar speaking for the majority 4: 1, observed:
We see considerable force in the argument of the learned Solicitor-General. We must, how ever, point out that the rule that the party who applies for the issue of a high prerogative writ should, before he approaches the Court, have exhausted other remedies open to him under the law, is not one which bars the jurisdiction of the High Court to entertain the petition or to deal with it, but is rather a rule which Courts have laid down for the exercise of their discretion.
His Lordship referred to two earlier decisions of the Supreme Court in Union of India v. T.R. Verma and State of Uttar Pradesh v. Muhammad Nooh AIR 1958 SC 86 and proceeded to observe:
The passages in the judgments of this Court we have extracted would indicate (1) that the two exceptions which the learned Solicitor General formulated to the normal rule as to the effect of the existence of an adequate alternative remedy were by no means exhaustive, and (2) that even beyond them a discretion vested in the High Court to have entertained the petition and granted the petitioner relief not with standing the existence of an alternative remedy. We need only add that the broad lines of the general principles on which the Court should act having been clearly laid down, their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the Court, and that in a matter which is thus pre-eminently one of discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the Court.
His Lordship then proceeded to consider the question whether the discretion which undoubtedly vested in the High Court had been so improperly exercised as to call for their interference with the order. It was entirely agreed with Chagla, C.J. that the order of the Assistant Collector of Customs and that of the Collector of Customs was not void for lack of jurisdiction. How ever, the majority of the Judges dissented from the reasoning given by the Division Bench of the Bombay High Court to the effect that the petitioner was absolved from the normal obligations to exhaust his statutory remedies before invoking the jurisdiction of the High Court under Article 226. His Lordship observed:
If a petitioner has disabled from availing himself of the statutory remedy by his own fault in not doing so within the prescribed time he cannot certainly be permitted to urge that as a ground for the Court dealing with his petition under Article 226 to exercise its discretion in his favour. Indeed, the second extracted passage from the judgment of the learned Chief Justice in Mohammad Nooh's case (supra) with its reference to the right to appeal being lost "through no fault of his own" emphasizes this aspect of the rule.
The question, how ever, still remained in the circumstances of the case whether the Supreme Court should interfere with the decision of the High Court. In this respect their Lordships considered three points. Firstly, that the levy of duly at 78-3/4% was manifestly erroneous. Secondly, the Central Board of Revenue had issued a ruling to the effect that fountain pens with nibs or caps which were gold plated fell within item 61(8). This might be some indication that the adjudication by the Custom Authorities was in pursuance of a settled policy of the entire hierarchy of the Department. Lastly the learned Solicitor General did not dispute the correctness of the principles of law as enunciated by Chagla, C.J. His complaint was that the law as laid down by the Chief Justice has not been properly applied to the facts of the case before him. On these points their Lordships of the Supreme Court held that if the challenge to the judgment of the High Court were of the former type, the Supreme Court might have interfered to lay down the lay correctly lost error creeps into the administration of justice. But where the error is only in the application of the law correctly understood to the facts of a particular case, their Lordships should be persuaded that there had been a miscarriage of justice which the learned Solicitor General could not succeed in doing. The question was not whether if the respondent's writ petition was before the Supreme Court, it should have directed the writ to issue, but the question was whether the Judges of the Bombay High Court, having in their discretion which they admittedly possess made an order, there was justification for our interfering with it. On the whole and taking into account the peculiar circumstances of the case that the High Court had not exercised its discretion improperly, the Supreme Court did not interfere in the Order of the High Court in an appeal under Article 136 of the Constitution.
19. In M/s. Babu Ram Prakash Chandra Maheshwari v. Antrim Zila Parishad Muzoffaranagar his Lordship Ramaswamy, J., speaking for the Court, observed:
It is a well established proposition of law that when an alternative and equally efficacious remedy is open to a litigant he should be required to pursue that remedy and not to invoke the special jurisdiction of the High Court to issue a prerogative writ. It is true that the existence of a statutory remedy does not affect the jurisdiction of the High Court to issue a writ. But as observed by this Court in Rasheed Ahmed v. Municipal Board, Kirana , the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs and where such a remedy exists it will be a sound exercise of discretion to refuse to interfere in a writ petition unless there are good grounds therefor. But it should be remembered that the rule of exhaustion before a writ is granted is a rule of self-imposed limitation, a rule of policy and discretion rather than a rule of law and the Court may, therefore, in exceptional cases issue a writ such as writ of certiorari not with standing the fact that the statutory remedies have not be exhausted.... There are at least two well recognised exceptions to the doctrine with regard to the exhaustion of statutory remedies. In the first place it is well settled that where proceedings are before a Tribunal under a provision of law then as ultra vires, it is open to a party aggrieved thereby to move the High Court under Article 226 for issuing appropriate writs for quashing them on the ground that they are incompetent, without his being obliged to wait until those proceedings run their full course. In the second place, the doctrine has no application is a case where the impugned order has been made in violation of the principles of natural justice.
20. As already stated, in the instant case there was an alternative remedy available to the petitioners by way of filing an appeal before the Civil Services Appellate Tribunal against the impugned-orders. The question only remains whether all the petitioners fall within the two well recognised exceptions to the doctrine of exhaustion of statutory remedies before a writ is granted. We have already stated that the vires of the Act have not been challenged in the writ petitions before us. It has therefore to be examined whether the question regarding violation of the principles of natural justice is involved in these cases and also whether there are exceptional circumstances in these cases warranting an interference by this Court in its extra-ordinary writ jurisdiction. It is an undisputed fact that by order of the Government of Rajasthan in Agricultural Department dated April 10, 1987 Shri Vivek Prakash Mathur was promoted to the post of Superintending Engineer as against the vacancy which occurred in the year 1981-82 on the basis of merit and he was confirmed on this post with effect from June 4, 1982. It is also not a disputed fact that Shri M.L. Chaurasia was promoted to the post of Superintending Engineer as against the vacancy occurring in year 1982-83 on the basis of seniority-cum-merit and he was confirmed on this post with effect from 13-10-1983. Thus Shri Vivek Prakash Mathur became senior most Superintending Engineer and next to him in the seniority was Shri M.L. Chaurasia. Shri P.C. Jam filed an appeal against this order of promotion before the Civil Services Appellate Tribunal. Shri P.C. Jain in para 28 his appeal before the Civil Services Tribunal referred to Rule 25(6) of the relevant Service Rules with Explanation appended thereto and relying thereupon pleaded that the first vacancy of Superintending Engineer occurring in the year 1981-82, being an odd vacancy, should have been filled up on the basis of seniority-cum-merit and not on the basis of merit as had been done. Reference in this connection may also be made to para 34 of Shri P.C. Jain's appeal. The next contention of Shri P.C. Jain was that the second vacancy of the post of the Superintending Engineering occurring in the year 1983-83 should have been tilled up by merit and not on the basis of seniority-cum-merit and while filling the second vacancy, he should have been considered along with Sarva Shri M.L. Chaurasia, C.S. Bhati, Richpalsingh and G.C. Mathur which was not done. The State of Raj had filed a reply to the appeal of Shri P.C. Jain. The State in its reply pleaded that the D.P.C. for the post of Superintending Engineer was held for the year 1974 and thereafter no D.P.C. was held. It was submitted when D.P.C. was held in the year 1974, the selection for post of Superintending Engineer was made on the basis of seniority-cum-merit and it was mentioned by the Departmental Promotion Committee that now when ever vacancy will occur the first vacancy will be filled on the basis of merit and hence the vacancy which was available for the year 1981-82 was filled in on the basis of merit and vacancy which became available in the year 1982-83 was filled in on the basis of seniority-cum merit. Thus the State of Rajasthan justified the promotions made to the post of Superintending Engineer as against the vacancy occurring in the year 1981-82 and 1982-83 and also the criteria on the basis of which these promotions were made. It is also unquestionable fact that even before the appeal filed by Shri P.C. Jain before the Rajasthan Civil Services Tribunal was decided by the Tribunal on its merits, the State of Rajasthan unilaterally convened a meeting of the Review Departmental Promotion Committee to re-select persons on the posts of Superintending Engineers as against the vacancies which had occurred in those posts in the year 1981-82 & 1982-83 by reversing the criteria of promotion i.e. the vacancy of the year 1981-82, which was previously filled up by promotion on the basis of merit, was now to be filled up on the basis of seniority cum-merit and the vacancy occurring in the year 1982-83, which was previously filled up on the basis of seniority-cum-merit, was now to be filled up on the basis of merit. As has already been stated that in pursuance of the recommendations of the Departmental Promotion Committee, the State of Rajasthan had already promoted by its order dated April 10, 1987, Shri Vivek Prakash Mathur and Shri M.L. Chaurasia as Superintending Engineer and both of them were confirmed on this post retrospectively and respectively with effect from June 4, 1982 and October, 13, 1983. It appears from the order of the State Government dated December 5, 1987 that the Government felt that there had been a mistake in the previous promotions made to the posts of Superintending Engineer by order dated April 10, 1987 where by Shri Vivek Prakash Mathur and Shri M.L. Chaurasia were promoted to those posts, the order of their promotion was withdrawn by order dated November 24, 1987 and a review DPC was convened to fill up the vacancies in the posts of Superintending Engineers which had occurred in the years 1981-82 and 1982-83. The meeting of the review D.P.C. took place on November 12, 1987 and in pursuance of the recommendation of the review D.P.C. Shri Vivek Prakash Mathur was promoted to the post of Superintending Engineer on the basis of seniority while Shri P.C. Jain was promoted on the said post as against the vacancy occurring in the year 1982-83 on the basis of merit. It may be mentioned that after 1982-83, vacancy to the post of Superintending Engineer occurred in the year 1987-88 as a new temporary post was sanctioned and as against the vacancy of the year 1987-88, Shri M.L. Chaurasia was promoted as Superintending Engineer by order of the Government dated November 24, 1987. Thus a person, who had earlier been promoted to the post of Superintending Engineer as against the vacancy of the year 1982-83 and was confirmed with effect from October 13, 1983 on that post, was as a result of the review D.P.C. reverted to the post of Executive Engineer and was promoted to the post of Superintending Engineer as against the vacancy occurring after five years, that is, in 1987-88. Shri M.L. Chaurasia in para-II has specifically pleaded that he, on being confirmed on the post of Superintending Engineer with effect from 13-10-1983 by order dated April 10, 1987, had acquired a valuable right to hold the post of Superintending Engineer. That right had vested in him and he could not be disturbed from the post of Superintending Engineer without an opportunity being given to him to show cause why his promotion may not be reviewed. He has complained about the violation of the principles of natural justice in his writ petition. Shri Vivek Prakash Mathur has also pleaded that before making the order dated November 24, 1987, no notice what so ever was given to him asking him to show cause as to why the order dated April 10, 1987 should not be withdrawn. Thus both of them have clearly pleaded violation of the principles of natural justice As matter of fact, Shri M.L. Chaurasia is the pivot around which all the three petitioners and Shri P.C. Jain are revolving.
21. Mr. Hastimal Parekh and Mr. Lekhraj Mehta appearing respectively for the State of Rajasthan and Shri P.C. Jain strenuously contended that all that the State of Rajasthan had done is to rectify a mistake previously committed and, therefore, no question of violation of the principles of natural justice was involved. They have relied before us upon the decision of the Supreme Court in S.K. Bhate and, Ors. v. Union, of India AIR 1976 SC 362 and of the Calcutta High, Court in Anil Kumar Biswas and Ors. v. State of West Bengal and Ors. 1980. (2) SLR 239. We have gone through both the decisions. The facts in both these cases are very much distinguishable. In S.K. Bhate's case, the petitioners except petitioner No. 12, were already serving as officiating supervisors of A-grade. The Director, General of Ordinance Factory had issued an advertisement on 14-11-1962 for direct recruitment to the grade of Firemen, Assistant Foremen Chargemen Grade-I and Chargemen Grade-II. The petitioners had applied for direct recruitment which was open to them also. They were called for interview by letter dated 7th February, 1963, but after interviews, no letters of appointment were received by the petitioners other than petitioner No. 12. The petitioners were promoted between April, 1963 and November, 1963 from their substantive Grade of Supervisor (A) to Chargemen Grade II by the General Manager of their factory on short term basis by virtue of powers delegated to him. Respondents 5 and 16, how ever, entered the grade of Chargemen Grade II between 1st December 1963 and 4th February, 1965 and were also shown as temporary Chargemen Grade II, but they were not holding any post in the grade of Supervisors. The respondents were Apprentices before entering into the Grade II of Chargemen. The petitioners alleged that in December 1967 they were superseded by others who were alleged to be their juniors. In the meantime respondents Nos. 5 to 16 were promoted from Chargemen Grade II to the Grade of Assistant Foremen by an order of the Director General dated 17th September, 1971. According to the petitioners, this order amounted to their second supersession. They, therefore, filed writ petition under Article 32 of the Constitution before the Supreme Court. What really the position was that the petitioners wanted to take advantage of the so-called promotion orders which were really the result of a mistake or misunderstanding in not realising the actual legal position of the petitioners as direct recruits. The petitioners did not fulfil the prescribed normal minimum qualification of three years' service for promotion in the post of Grade 'A' and hence their names did not appear in the list of persons to be promoted prepared by the Departmental Promotion Committee for the post of Chargemen Grade II. They were being treated as direct recruits and not promotees despite their wrong description and even wrong orders conveying the impression that they were promotees. Their Lordships of the Supreme Court held that the petitioners were not able to meet the objections put forward to their claim as promotees. The petitioners could not show that they satisfied the conditions precedent to promotions. Hence the so called orders of promotion could not cure the defect. It was immaterial that the petitioners were wrongly shown as promotees in their service records or that they had not received the intimations of their appointment as direct recruits. Thus the petitioners could not complain the violation of any fundamental rights under Article 16 of the Constitution. There was no challenge to fairness of the 20 percent quota reserved for direct recruits as against that of the promotees. There was a justifiable ground for distinction between the petitioners and the class to which the respondents belonged. As a matter of fact, what had happened was due to sudden and exceptional demands for appointments as a result of pressure on Ordinance Factory due to the war with China and other defence requirement, much, larger number of appointments bad been made in the class of direct recruits than the vacancies available. Obviously, therefore, the petitioners had to wait for their turn, to be adjusted in the direct recruitment quota. In the case before us, both Shri Vivek Prakash Mathur and Shri M.L. Chaurasia were eligible for the promotion to the post of Superintending Engineer and by a duly convened meeting of the Departmental Promotion Committee, they had been promoted on that post. The complaint of the petitioners in this case is about reconvening of a review DPC and altering the criteria of promotions and disturbing their promotion to the post of Superintending Engineer to which they had already been confirmed without giving them an opportunity of being heard or making representation against the proposed action. In the case of Anil Kumar Biswas, it has been clearly mentioned that there has been no argument or no challenge on the point that the rectification was in violation or any principles settled down by the Rules and, therefore, it would not be said that the Government acted in breach of the principles of natural justice. His Lordship Sabya Sachi Mukherjee, J. (as he then was) observed:
It is true that by the impugned communication, namely, Anx. F the petitioners' positions and prospects have been prejudicially affected as it would affect their seniority and, therefore, normally such an action should have been taken after giving the petitioners an opportunity of being heard. But in this case as I have mentioned before, the impugned action was taken only to rectify the obvious mistake, it did not require a very microscopic examination of facts as was the situation in the case of Chairman Kochin Port Trust v. M.N. Sukumaran Nair 1979(1) LLJ 242. It is well settled that an obvious mistake can be corrected without giving any opportunity.
In the case before us, it is not an obvious mistake that had been corrected, but persons who were promoted and confirmed as Superintending Engineers were deconfirmed and fresh promotions were made on different criteria. A microscopic examination of relevant Service Rules and more so of Explanation to Rule 25(6) is involved. The question of violation of principles of natural justice is seriously in issue in these writ petitions. The case of Richpal Singh is also a connected matter as his chances of future promotion rest upon the validity or invalidity of the subsequent orders of the Government dated November 24, 1987. In such circumstances, the second exception to the exhaustion of alternative remedies is applicable to the facts and circumstances of these writ petitions and they are entertainable by this Court despite the availability of the alternative remedy of appeal before the Rajasthan Civil Services Appellate Tribunal. The preliminary objection raised on behalf of the respondent has no merit in it and is over-ruled.
22. The writ petitions will now be listed for hearing on merits. The stay orders passed in the writ petitions will continue till further orders.