Document Fragment View

Matching Fragments

89. Consequently, all the writ petitions stand allowed in the terms as indicated herein above.

8. Being aggrieved with the aforesaid judgment, the State of Rajasthan has preferred three special appeals in all the three writ petitions filed by petitioner Ajay Singh. The appellant Gajendra Singh and Smt.Prabha Tak have also challenged the impugned order of learned Single Judge by way of two separate special appeals.

9. The petitioner in his writ petition No.4866/2008 pleaded that he was appointed as Rajasthan Administrative Service Officer in junior scale of RAS on 15th October, 1979. He was promoted in the senior scale of RAS in the month of February, 1987 and was promoted in selection scale of RAS in the year 1992 subject to review/revision on the basis of 5 out of 7 APARs as against the vacancies of 1992-93. The criteria of merit promotion on the basis of 5 out of 7 APARs was for the first time amended and notified vide notification dated 30th November, 1991. Earlier to this notification, for merit promotion there was a requirement of having 7 out of 7 consistently outstanding/very good APARs vide notification dated 11th April, 1979. The Hon'ble Apex Court in Shambhu Singh Meena & Ors vs. State of Raj. & Ors (1995 Supp(2) SCC 431) held that the notification dated 30th November, 1991 is to be applied prospectively. Thereafter, a review DPC was convened on 23rd February, 1996 and the petitioner was selected against merit quota for the vacancies of 1991-92 having 7 out of 7 outstanding/very good APARs. The name of petitioner is appearing at No.5 in the order dated 23rd February, 1996. The name of petitioner was shown in the provisional seniority list dated 1st April, 1998 in the selection scale of RAS against the merit quota of 1991-92. However, his position was changed by the State Government in subsequent provisional seniority list dated 26th June, 2000 on the basis of decision rendered in Ajit Singh & Ors. (II) vs. State of Punjab & Ors (1999 (7) SCC 209). The seniority promotees were placed above the merit promotees. Therefore, petitioner filed a writ petition No.2968/2000 and the writ petition was allowed by Single Bench of this Court vide its judgment dated 30.5.2001, whereby it was held that merit promotees will be placed above the seniority promotees. The State Government preferred a special appeal against the said judgment, but the same was dismissed by Division Bench vide order dated 12th September, 2001. The Single Bench as well as the Division Bench both held that merit promotees will be kept above the superseded officers of general category and thereafter the roster point promotees. The reserve category officers also filed writ petition challenging their placement below their senior batch mates of general category on the ground that they are entitled for consequential seniority on promotion post, but their writ petitions were also dismissed vide common order dated 30th May, 2001. The special appeals preferred by them were also dismissed by the Division Bench on 12th September, 2001. The reserve category officers did not challenge the order of Division Bench, thereafter, therefore, the matter with regard to them has attained finality. The seniority promotees preferred SLP before the Hon'ble Supreme Court, which is pending but up till now no interim order has been passed staying the operation of order of Hon'ble Division Bench. In these circumstances, the State Government ought to have framed seniority list showing merit promotees above the seniority promotees and reserve promotees. Subsequently, a seniority list dated 23rd November, 2003 was issued, wherein judgment of Single Bench and Division Bench was partly complied with by showing seniority promotees below the merit promotees. But the order of Single Bench and Division Bench was not complied with so far as reserved promotees are concerned. The State Government thereafter sent a list for consideration for promotion from RAS to IAS on the basis of provisional seniority list dated 27th November, 2003. Being aggrieved with the same, the petitioner preferred S.B.Civil Writ Petition No.3355/2004. The State Government has now issued a provisional seniority list dated 12th May, 2008 of RAS Officers and on that basis forwarded a list to UPSC for consideration for promotion from RAS to IAS for the year 1997-98 to 2007-08. The petitioner thereafter preferred S.B.Civil Writ Petition No.4866/2008. During the pendency of above writ petition, The respondent State issued a final seniority list on 24th June, 2008. The petitioner by way of an application for amendment, amended his writ petition and also challenged the final seniority list dated 24th June, 2008.

10. Mr.Ashok Gaur, the learned counsel appearing in a representative capacity of reserved class submitted that the learned Single Judge has committed an illegality in saying that the notification dated 30th November, 1991, whereby selection criteria on the basis of merit, which has been changed from 7 out of 7 to 5 out of 7 outstanding/very good APARs, will not apply to those officers who were already considered on the basis of 7 out of 7 outstanding/very good APARs.

11. So far as other submissions regarding regaining of seniority of general category candidates are concerned, he contended that this Court has already heard the said point in Writ Petition No.8104/2008 (Bajrang Lal Sharma vs. State of Raj.), therefore, the said point may be considered and decided finally in that case.

22. He contended that as per Rule 9, the vacancies are determined as on 1st April for ensuing period. Therefore, all the 34 posts of the year 1991-92 for the selection scale of RAS were determined on or before 1.4.1991 and same ought to have been filled as per old rule i.e. on the basis of 7 out of 7 outstanding or very good APARs and not as per amended rule dated 30th November, 1991, whereby criteria was changed and it was provided that merit quota will be considered on the basis of 5 out of 7 outstanding or very good APARs.

QUESTION NO.(ii)

37. So far as another question, as to whether this notification dated 30th November, 1991 is prospective or not, it is relevant to mention that the same notification was considered by the Hon'ble Supreme Court in Shambhu Singh Meena & Ors. vs. State of Raj. (supra), wherein Departmental Promotion Committee selected the persons on merit basis who were appointed by promotion as per Rajasthan Administrative Service Rules against the vacancies of 1981-82 to 1986-87. These promotions were challenged by the contesting respondent by filing appeals in the Rajasthan Appellate Service Tribunal on the ground that they were not in accordance with the Rules inasmuch as those promotees did not have 7 outstanding or very good APARs in 7 preceding years. The Tribunal upheld the challenge and set aside the orders of promotions. Therefore, the petitioner filed writ petitions before the Rajasthan High Court challenging the orders passed by the Tribunal but did not succeed and thereafter they preferred SLP. The Hon'ble Apex Court considered the sub-rule (11) of Rule 28 B of the Rajasthan Administrative Service Rules laying down the criteria of eligibility and procedure for promotion to junior, senior and other posts encadre in service. The explanation before amendment vide notification dated 30th November, 1991 and the judgment of the Tribunal dated 11th November, 1983 and the judgment of the Rajasthan High Court as per notification dated 11th April, 1979 were considered and it was held that at the relevant time 7 out of 7 outstanding or very good APARs were required for selection on the basis of merit as per notification dated 11th April, 1979. Since this was the case relating to the year 1981-82 and 1986-87, therefore, the Apex Court took a view that the amendment made in the year 1991 cannot apply to these cases. Paras 7 to 9 of the judgment are reproduced as under:-