1

. REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No.6007 of 2019

(@SLP (C) No. 31825 of 2018)

Ganga Vishan Gujrati & Ors. …Appellants

Versus

State of Rajasthan & Ors. …Respondents

With

Civil Appeal No. 6009 of 2019

(@SLP (C) No. 154 of 2019)

With

Civil Appeal No. 6008 of 2019

(@SLP (C) No. 153 of 2019)

2

J U D G M E N T

Dr Dhananjaya Y Chandrachud, J

1 Adjudicating on a vexed issue of service jurisprudence, a Division Bench of

the High Court of Judicature of Rajasthan allowed a batch of Special Appeals and

reversed a judgment of the learned Single Judge dated 19 April 2018. The

consequence of the judgment of the Division Bench dated 6 August 2018 is that the

writ petition instituted by the appellants under Article 226 of the Constitution stands

dismissed. This has given rise to the present batch of appeals. Since similar issues

arise, all the appeals were heard together.

2 The appellants were appointed as Patwaris in the Revenue Department on 21

December 1993. On 17 June 2011, an advertisement was issued by the State of

Rajasthan for holding a departmental examination to select candidates for 93

vacancies in the post of Land Records Inspector

1

. The vacancies related to the

years 2008-09 and 2009-10. A fresh advertisement dated 28 January 2013 notified

an increase in the number of vacancies to 155, including the vacancies for 2010-11.

In response to a query made on 24 December 2014 under the Right to Information

Act 2005, a year-wise bifurcation of the 155 vacancies was provided indicating that:

 67 vacancies arose in 2008-09;

1

“LRI”

3

 26 vacancies arose in 2009-10; and

 62 vacancies arose in 2010-11.

3 On 16 May 2013, the appellants appeared for the departmental examination

and were declared successful for the post of LRI. On 7 November 2013, a

provisional seniority list was issued from 1 April 2012. The grievance of the

appellants is that though (in their submission) they were appointed against

vacancies that arose in 2008-09, 2009-10 and 2010-11, their names were not

included in the provisional seniority list. On 31 March 2014, the appellants were

promoted as LRIs in pursuance of which they have been working on that post. On

12 March 2015, the Rajasthan Revenue Board

2

issued a communication to the

Collector to prepare a list of persons who were appointed as LRIs against vacancies

for the year 2009-10. The names of the appellants did not find mention in the

seniority list as on 1 April 2012. Orders were issued on 11 June 2015, 6 July 2015

and 6 August 2015 promoting LRIs to the post of Nayab Tehsildar, treating them to

have been appointed on the post of LRI against the year of promotion in which the

vacancies arose. This was in terms of a notification dated 8 October 2014 by which

Rule 171-A of the Rajasthan Land Revenue (Land Records) Rules 1957

3

was

amended to change the criterion for determining seniority from the date of

continuous officiation on the post of LRI to the recruitment year of promotion. The

appellants were aggrieved by the denial of the benefit of the notification dated 8

2

“Board”

3

“1957 Rules”

4

October 2014. Aggrieved by what was perceived as differential treatment, a

representation was submitted on 14 September 2015 to the Chairman of the Board

of Revenue for granting the appellants the benefit of the notification dated 8 October

2014 and placing them in the seniority list against the recruitment year. A final

seniority list, computing seniority as on 1 April 2012 was issued on 12 May 2016 in

terms of Rule 171-A(2). According to the appellants, their names were not included

in the seniority list despite the fact that the recruitment year was 2010-11.

4 This led to the institution of a Writ Petition

4

by the appellants before the High

Court of Rajasthan seeking a direction for the declaration of appointments;

promoting them against the recruitment year of promotion and placing them in the

seniority list issued on 12 May 2016 against the recruitment year of promotion with

consequential benefits. On 24 April 2017, another final seniority list was issued

determining seniority as on 1 April 2014. The appellants claim that they were placed

below persons who were promoted against vacancies which arose after the year of

vacancies against which the appellants were promoted. During the pendency of the

Writ Petition, an order was passed by the State of Rajasthan on 8 May 2017

whereby, persons along with the appellants who were placed in the seniority list

dated 24 April 2017, were sought to be removed from the list and were directed to

4

SB Civil Writ Petition No 6530/2016

5

be treated as appointed in 2014-15. This gave rise to a subsequent Writ Petition

5

before the High Court.

5 By a judgment dated 19 April 2018, the Single Judge allowed the Writ Petition

by setting aside the action of the State in not regarding the year of promotion of

those, including the appellants, who were selected pursuant to the advertisements

dated 17 June 2011 and 28 January 2013 against vacancies for 2008-09, 2009-10

and 2010-11. The Single Judge held that persons selected under Rule 284(2) of the

1957 Rules through a competitive examination restricted to serving Patwaris were

entitled to be promoted against the vacancies of the respective years subject to their

eligibility. The State was accordingly directed to place persons selected in the final

seniority list issued on 12 May 2016 against the recruitment year of promotion with

consequential benefits.

6 The judgment of the Single Judge has been reversed in appeal by the

Division Bench of the High Court on 6 August 2018.

7 Assailing the judgment of the Division Bench, the appellants moved this Court

in proceedings under Article 136 of the Constitution. Pleadings have been

completed. We have heard Mr Paras Kuhad, Senior Counsel on behalf of the

Appellants; Dr Manish Singhvi, Senior Counsel appearing for the State of Rajasthan;

5

SB Civil Petition No 6299/2017

6

Mr P N Misra, Senior Counsel, Mr Manoj Swarup, Senior Counsel and Mr Hitendra

Nath Rath, Mr Rohit K Singh and Ms Pratibha Jain, Counsel for the contesting

respondents.

8 In order to appreciate the nature of the controversy in the present batch of

appeals, it is necessary to understand the enabling legal framework. The State of

Rajasthan, in pursuance of its powers conferred by Section 261(2) of the Rajasthan

Land Revenue Act 1956

6

, laid down provisions governing the service conditions of

the employees of the Land Revenue Department. They were embodied in the 1957

Rules. Rule 284 of the 1957 Rules regulates the mode of selection to the post of

LRI. Initially selection was envisaged through direct recruitment and on seniority-

cum-merit. Later, as explained below, a proportion was set apart for in-service

candidates who passed a competitive departmental examination. Thereafter, direct

recruitment was abolished. Rule 284 was amended from time to time in the following

manner:

 On 22 September 1977, recruitment to the post was to be made on the basis of

direct recruitment (50 per cent) and seniority-cum-merit (50 per cent);

 On 27 June 1981, the quota for promotion through seniority-cum-merit was

increased to 65 per cent; 15 per cent was to be through a competitive

examination amongst serving Patwaris and 20 per cent was to be through direct

recruitment; and

6

“Act 1956”

7

 On 22 August 1985, promotion through seniority-cum-merit was increased to 80

per cent, while selection through a departmental examination for serving

Patwaris was increased to 20 per cent. The category of direct recruitment was

deleted.

Rule 284, as amended, reads thus:

“284. Selection of candidates for admission to the school in

the respective cadre strength shall be made:-

(i) by promotion of Patwaris of the Revenue and Land

Records Departments, on the basis of seniority-cum-

merit, for 80% of the vacancies;

(ii) on the basis of a competitive examination which shall

be restricted to serving patwaris of Revenue (Land

Records) Department who fulfill the conditions of

eligibility as given in Rules 286, for 20% of the

vacancies. Provided that the minimum age limit for

such patwaris shall be 45 years.”

Rule 285 requires the Board to notify the actual number of vacancies that will be

filled up by recruitment from among the serving Patwaris of the Revenue (Land

Records) Department and the number to be allotted to the Scheduled Castes and

Scheduled Tribes.

Rule 286 prescribes the qualifications:

“286. Qualifications - Candidates intending to apply for

selection must possess the following qualification: -

(i) That he is a patwari of Revenue (Land Records)

Department and has five years of service experience

as patwari;

(ii) That he has passed Secondary Examination or any

other equivalent examination recognized by

Government;

8

(iii) That he is not above 45 years of age on the first day

of January, next following the last date fixed for

receipt of application for admission to the said

school;

(iv) That he is patwar diploma holder or he is exempted

from this diploma as per rules.”

Rule 287 requires a competitive examination to be held by the Board for recruitment

from amongst serving Patwaris of the Revenue (Land Records) Department for

admission to the training school in the manner laid down in the 1957 Rules. Rule

288 provides for the submission of applications, the subjects for the examination,

preparation of a list of candidates securing qualifying marks, making of admissions

to the school, reservations, salary during training, grant of diplomas on the passing

of the training examination and the maintenance of a list of successful candidates on

the basis of the aggregate marks obtained in the examination. Rule 299 provides

that upon the completion of one year of probation period, candidates would be

eligible for being confirmed. Rule 299 stipulates that promotees of the same year

shall rank senior to the direct recruits from serving Patwaris of the same year. Rule

299 contains a reference to direct recruitment though the provision for direct

recruitment has been done away with in Rule 284.

9 On 22 September 1977, an amendment was made to the 1957 Rules by the

introduction of Part V-A containing Rules 347-A and 347-B. Rule 347-A provides

thus:

“347-A. Regulation of pay, Leave, allowances, Pension etc.-

Except as otherwise provided in these rules, the pay

9

allowances, pension, leave and other conditions of service of

the Patwaris, Inspectors‟ Land Records and Sadar Qanungos

shall be regulated by the following rules as amended from

time to time:-

1. The Rajasthan Travelling Allowance Rules, 1971;

2. The Rajasthan Civil Services (Unification of Pay

Scales) Rules, 1950;

3. The Rajasthan Civil Services (Rationalisation of Pay

Scales) Rules, 1956;

4. The Rajasthan Service Rules, 1951;

5. The Rajasthan Civil Services (Revised Pay) Rules,

1961;

6. The Rajasthan Civil Services (New Pay) Rules, 1968

7. Any other rules prescribing general conditions of

service made by the appropriate authority under the

proviso to Article 309 of the Constitution of India and for

the time being in force.

8. Any other general order or amendment in the Rajasthan

Subordinate Services (Recruitment and other Service

Conditions) Rules 1960, issued by the Department of

Personnel shall mutatis mutandis be applicable unless

any order to the contrary is issued by the Government.”

Rule 347-B provides thus:

“347-B Application of Certain miscellaneous Rules. -

Notwithstanding anything contained in these rules, the

following rules shall apply to the recruitment and other

conditions of service of the Patwaris, Inspectors, Land

Records and Sadar Qanungos as they apply to other

categories of Government servants: -

1. The Rajasthan Civil Services (Absorption of Surplus

Personnel) Rules, 1969.

2. The Rajasthan Civil Services (Substantive appointment

and determination of seniority of temporary employees)

Rules, 1972.

3. The Rajasthan Services (Recruitment by promotion

against vacancies of Earlier Years) Rules, 1972.”

10

10 Rule 347-A provides that except as otherwise provided in the rules, pay,

allowances, pension, leave and other conditions of service are to be regulated by

the rules enumerated under eight categories. Among the rules which have been

enumerated are the Rajasthan Subordinate Services (Recruitment and other Service

Conditions) Rules 1960

7

. Any general order or amendment in the 1960 Rules is

made applicable, mutatis mutandis. Besides this, entry 7 refers to other rules

prescribing general conditions of service made under Article 309 of the Constitution,

for the time being in force. The opening words of Rule 347-A make the applicability

of the enumerated rules subject to a provision specifically contained in the 1960

Rules. On the other hand, Rule 347-B contains an overriding provision under which

notwithstanding anything contained in the 1957 Rules, conditions of service would

be governed by certain enumerated rules. Among them are the Rajasthan Services

(Recruitment by promotion against vacancies of earlier years) Rules 1972

8

.

11 A significant distinction which must be noticed between Rule 347-A and Rule

347-B, lies in their prefatory words. Rule 347-A begins with the expression “except

as otherwise provided in these rules”. Rule 347-B commences with the expression

“notwithstanding anything contained in these rules”. The significance of this

difference in terminology lies in the fact that the rules enumerated in Rule 347-A will

govern the conditions of service unless a specific provision on the subject is

contained in the 1960 Rules. On the other hand, the rules which have been

7

“1960 Rules”

8

“1972 Rules”

11

enumerated in Rule 347-B will govern the service conditions irrespective of what is

contained in the other provisions of the 1957 Rules. To put it differently, the rules

which are enumerated in Rule 347-A of the 1957 Rules are made subservient to

provisions contained in the 1960 Rules. On the other hand, the rules referred to in

Rule 347-B of the 1957 Rules have an overriding effect over any other provision

contained in the 1957 Rules. This is the plain consequence which ensues from the

use of the expression “except as otherwise provided in these rules” in Rule 347-A as

distinguished from the expression “notwithstanding anything contained in these

rules” in Rule 347-B. The former is an indication of subservience. The latter is an

indication of overriding effect.

12 Now, it is necessary to analyse the rules adverted to in entries 7 and 8 of Rule

347-A of the 1957 Rules.

13 The 1960 Rules were made to govern the recruitment and other conditions of

service of persons appointed to the subordinate service in various departments of

the State other than posts regarding which separate service rules had been or would

be promulgated. Rule 9 provided for a year-wise determination of vacancies on 1

April of each year by the appointing authorities. Rule 9 of the 1960 Rules stipulated

thus:

"9. Determination of Vacancies: - (1) (a) Subject to the

provisions of these Rules, the Appointing Authority shall

12

determine on 1st April every year, the actual number of

vacancies occurring during the financial year.

(b) Where a post is to be filled in by a single method as

prescribed in the rule or schedule, the vacancies so

determined shall be filled in by that method.

(c) Where a post is to be filled in by more than one method as

prescribed in the Rules or Schedule, the apportionment of

vacancies, determined under clause (a) above, to each such

method shall be done maintaining the prescribed proportion

for the overall number of posts already filled in. If any fraction

of vacancies is left over, after apportionment of the vacancies

in the manner prescribed above, the same shall be

apportioned to the quota of various methods prescribed in a

continuous cyclic order giving precedence to the promotion

quota.

(2) The Appointing Authority shall also determine the

vacancies of earlier years yearwise which were required to be

filled in by promotion, if such vacancies were not determined

and filled earlier in the year in which they were required to be

filled in.”

14 On 2 March 2001, the Rajasthan Subordinate Services (Recruitment and

Other Service Conditions) Rules 2001

9

were notified under the proviso of Article 309

of the Constitution. Rule 13 of the 2001 Rules requires the appointing authority to

determine the vacancies actually occurring on 1 April of every financial year:

"13. Determination of vacancies: -

(1) Subject to the Provisions of these rules, the Appointing

Authority shall determine on 1st April every year, the actual

number of vacancies occurring during the financial year.

(2) Where a post is to be filled in by a single method as

prescribed in the Rule or Schedule, the vacancies so

determined shall be filled in by that method.

(3) Where a post is to be filled in by more than one method as

prescribed in Rules or Schedule, the apportionment of

vacancies, determined under sub-rule (1) above, to each

such method shall be done maintaining the prescribed

proportion for the overall number of post(s) already filled in. If

any fraction of vacancies is left over, after apportionment of

the vacancies in the manner prescribed above, the same

9

“2001 Rules”

13

shall be apportioned to the quota of various methods

prescribed in a continuous cyclic order giving precedence to

the promotion quota.

(4) The Appointing Authority shall also determine the

vacancies of earlier years year wise which were required to

be filled in by promotion, if such vacancies were not

determined and filled earlier in the year in which they were

required to be filled in.”

Rule 9(1)(c) of the 1960 Rules and Rule 13 of the 2001 Rules require vacancies to

be apportioned between each method of promotion. Rule 9(2) of the former and

Rule 13(4) of the latter requires the determination of vacancies of earlier years which

were required to be, but were not filled in by promotion, in the year in which the

vacancies should have been filled in.

Rule 35 speaks of the eligibility, criteria and procedure for promotion. Rule 35,

insofar as is material, reads thus:

"35. Eligibility, Criteria and Procedure for Promotion: -

(1) As soon as the Appointing Authority determined the

number of vacancies under rule 13 of these rules and decides

that a certain number of post(s) are required to be filled in by

promotion, it shall subject to provisions of sub-rule (4),

prepare a correct and complete list of the senior most

persons who are eligible and qualified under these rules for

promotions to the class of post(s) concerned.

(2) the persons enumerated in Column 6 of Schedule shall be

eligible for promotion to posts specified against them in

Column 4 subject to their possessing minimum qualification

and experience on the first day of the month of April of the

year of selection as specified in Column 7.

…

(6) If any subsequent year, after promulgation of these

rules vacancies relating to any earlier year are

determined under rule 14 which were required to be filled

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by promotion, the Committee shall consider the cases of

all such persons who would have been eligible in the

year to which the vacancies relating irrespective of the

year in which the meeting of the Committee is held and

such promotions shall be governed by the criteria and

procedure for promotion as was applicable in the

particular year to which the vacancies relate and the

Service/Experience of an incumbent who has been so

promoted, for promotion to higher post for any period

during which he/she has not actually performed the

duties of the post to which he/she would have been

promoted, shall be counted. The pay of a person who has

been so promoted shall be refixed at the pay which

he/she would have derived at the time of his/her

promotion but no arrears of pay shall be allowed to

him/her..." (Emphasis supplied)

Under Rule 13 of the 2001 Rules, the appointing authority must determine the actual

number of vacancies occurring during the financial year on the first day of April of

each year. When a post is filled in by more than one method, the vacancies have to

be apportioned, to every such method by maintaining the prescribed proportion.

Vacancies which were required to be filled in by promotion in earlier years, but which

were not determined and filled in earlier are similarly required to be determined.

Under Rule 35(2), eligibility for promotion is defined with reference to the possession

of minimum qualifications and experience on the first day of April of the year of

selection. Under sub-rule (6) of Rule 35, where vacancies of an earlier year are

determined as being required to be filled by promotion, the committee is under a

mandate to consider all such persons who would have been eligible in the year to

which the vacancies relate, irrespective of the year in which the meeting is held. The

criteria and procedure for promotion would be governed by what is applicable to the

15

year to which the vacancy related. Significantly, the service or experience of a

person who has been promoted shall be counted for promotion to a higher post for

any period during which the candidate has not actually performed the duties of the

post. While the pay of a person promoted would be re-fixed, no arrears of pay are

required to be given.

15 Rule 347-B of the 1957 Rules contains a reference to the 1972 Rules. The

1972 Rules comprised of six rules, which are extracted below:

"1. Short title and commencement

(1) These rules may be called the Rajasthan Services

(Recruitment by Promotion against Vacancies of earlier

years) Rules, 1972.

(2) They shall come into force at once.

2. Where a service rule, regulating recruitment and condition

of service made under the proviso to Article 309 of the

Constitution of India, provides for recruitment by both direct

recruitment and promotion and where promotion quota of any

earlier year could not be filled up in the absence of

recommendations of the Departmental Promotion Committee

appointed under the rule pertaining to the Service the

appointing authority shall determine the number of vacancies

which were required to be filled up by promotion specifying

the year with reference to which the vacancies are to be filled

up.

3. The Departmental Promotion Committee, appointed under

the service rules referred to in rule 2 shall make their

recommendation within a period of three months from the

date the competent authority makes the determination of the

number of vacancies and specifies the year of vacancies of

earlier years under the said rule whereupon the appointing

authority shall giving due regard to the recommendations of

the Departmental Promotion Committee, make the

appointments by promotion in the promotion quota vacancies

relevant to the year specified under rule 2.

4. When the appointing authority make appointments by

promotion under rule 3, it shall specify the year in which such

promotion shall be deemed to have been made.

16

5. Where any vacancy existed in the promotion quota in a

year earlier than that in which an appointment by promotion

was made on the recommendation of the D epartmental

Promotion Committee the appointing authorities shall modify

the appointment order by specifying the year in which such

promotion shall be deemed to have been made.

6. Where any appointment by promotion has been made

under rule 3 or where the appointing authority has specified

the year of promotion under rule 5, the person who has been

so promoted shall not be entitled to claim any arrears of pay

for any period during which he has not actually performed the

duties of the post to which he has been promoted.”

Rule 2 contemplates a situation in which the service rules framed under the proviso

to Article 309 for regulating recruitment and conditions of service provide for both

direct recruitment and promotion. Where the promotional quota of any earlier year is

not filled in the absence of a recommendation of the Departmental Promotion

Committee

10

, the appointing authority has to determine the vacancies which were

required to be filled up by promotion. Thereupon, the DPC has to make its

recommendation within three months of the determination by the competent

authority specifying the number and the year of vacancies. The appointing authority

is then required to make appointments by promotion in the promotion quota

vacancies relevant to the year specified in Rule 2. While making an appointment

under Rule 3 by promotion, the appointing authority has to specify the year in which

the promotion shall be deemed to have been made. Consequently, where a vacancy

existed in the promotion quota in an earlier year, prior to the year in which the

appointment by promotion is made, the appointing authority has to specify the year

in which the promotion shall be deemed to have been made. However, in such a

10

“DPC”

17

case, no arrears of pay for the period during which the appointed candidate has not

worked are payable.

16 In order to complete the narration of the relevant provisions, a reference is

necessary to Rule 171-A of the 1957 Rules which deals with seniority. Rule 171-A,

read as follows insofar as is material prior to its amendment:

“171-A. Seniority. - (1) The seniority of Inspectors, Land

Record working in the various districts will be interlaced by

the Board of Revenue and the Secretary (Land Records)

Revenue Board will maintain an up-to-date list of seniority of

the Inspectors, Land Records working in the Department.

(2) The seniority of the Inspector, Land Records will be

determined from the date of their continuous officiation on the

post of Inspector Land Records in the Land Records

Department and/or Inspector in the Settlement/Consolidation

/Colonization Department or any other equivalent post in such

Departments provided such officiation was not fortuitous or ad

hoc in nature and subject to the condition that they possess a

diploma of having passed the Girdawar Qanungo

Examination:…”

By an amendment which was notified on 8 October 2014, sub-rule 2 of Rule 171-A

has been substituted to read thus:

"(2) The seniority of inspector, Land Records shall be

determined on the basis of recruitment year of promotion on

the post of Inspector, Land Records in the Land Records

Department and inspector in the Settlement Department,

Colonisation Department and Consolidation Department."

18

17 Now, it is in this background, that it becomes necessary to advert to the area

of contest, as it emerges from the rival submissions which have been urged before

this Court.

18 Mr Paras Kuhad, learned Senior Counsel appearing on behalf of the

appellants, submitted thus:

(i) The judgment of the Division Bench of the High Court dated 6 August 2018

denies to the appellants selected by the „competitive examination route‟, the

benefit of seniority on the post of LRI, based on the year of vacancy, though

persons who have been promoted on the basis of seniority-cum-merit have

been granted seniority on the basis of the year of vacancy;

(ii) Though vacancies arose in years 2008-09, 2009-10 and 2010-11 on the post

of LRI, selections were not held in time. These vacancies were to be filled up

in the proportion of 80 per cent for seniority-cum-merit and 20 per cent by

competitive examination. The selection process for these vacancies was not

held year-wise and the vacancies for all the three years were clubbed

together. Appointment orders for the 80 per cent seniority-cum-merit

vacancies were issued in 2012, while those for the 20 per cent competitive

exam vacancies were issued on 31 March 2014;

(iii) Originally, while drawing up the provisional list on 7 November 2013, LRIs

who were appointed by seniority-cum-merit were accorded seniority based on

19

the date of appointment as LRIs and were not allowed seniority based on the

year of vacancy;

(iv) The right to seniority based on the year of vacancy flows statutorily from the

provisions of the 1972 Rules and the 2001 Rules. These rules provide for

„deemed appointment‟, a „deemed date of officiation / experience‟ and for

promotions that relate back to the year of vacancy;

(v) The seniority-cum-merit promotees filed a petition before the Rajasthan Civil

Services Appellate Tribunal

11

which allowed them the benefit of seniority

based on the year of vacancy. The State of Rajasthan accepted the judgment

of the Tribunal as a result of which the above promotees were, in the final list

of seniority prepared in 2016, accorded seniority based on the year in which

the vacancy arose;

(vi) The appellants were however denied the benefit upon which they represented

to the Board on 4 September 2015, claiming parity under Article 14 of the

Constitution in the computation of seniority based on the year in which their

vacancies arose;

(vii) The appellants were compelled to file a Writ Petition before the High Court in

which the following issues arose for consideration:

“A. Whether or not filling up of vacancies by seniority-

cum-merit and competitive examination are both

subsets of appointment by promotion; and

B. If the answer to A is in the affirmative, whether the

appellants too are entitled to promotion from the year

in which the vacancies arose on account of the

11

“Tribunal”

20

interplay between the Rules of 1957, Rules of 2001

and the Rules of 1972.”

(viii) Appointment by competitive examination under Rule 284 is also a method of

promotion. This position was accepted by the judgment of the learned Single

Judge and by the Division Bench in appeal upon analysing the provisions of

Rule 284;

(ix) On three different occasions, the Department of Personnel of the State

Government accepted the position that selection in the case of 20 per cent of

the vacancies on the basis of a limited competitive examination is a method of

promotion;

(x) As to the interplay between the Rules of 1957, 1960 (as repealed and

substituted by the 2001 Rules) and 1972, the Single Judge correctly held that

the 1957 Rules do not provide for a situation where the selections under Rule

284 are not held in the year in which the vacancies arose. Rules 347-A and

347-B were introduced to obviate such a situation by making the 1960 and

1972 Rules applicable;

(xi) The Division Bench of the High Court held that since Rule 347-B begins with

a non-obstante clause, the question of incorporating a principle from some

other rule would not arise if on that subject a parent rule holds the field. This

conclusion of the Division Bench is flawed because:

21

(a) Rule 347-B brought about the incorporation of the 1972 Rules as a

result of which effect has to be given to the latter, even if there is any

inconsistency with the 1957 Rules;

(b) The 1957 Rules are silent on the determination of vacancies and

holding of year-wise promotions;

(c) The 1972 Rules introduced an obligation to determine year-wise

vacancies and to hold year-wise promotions. Where the appointing

authority has failed to carry out its obligations to do so, it has to issue

an order for deemed appointment from the date on which the vacancy

arose. The selections, when held, would be with reference to the year

in which the vacancies arose; and

(d) The 2001 Rules introduced a deeming fiction of service / experience

from the date on which the vacancy arose.

(xii) The 1957 Rules are silent in regard to the above conditions of service and

hence, full effect has to be given to the legal fiction, as a result of Rules 347-A

and 347-B. The object of the rule making authority in creating the legal fiction

is to neutralize the adverse effect caused by a lapse of the government to

carry out its obligations of making year-wise determinations of vacancies and

appointments;

(xiii) As a result of the deeming fiction, persons promoted belatedly, are deemed to

be appointees of an earlier date, carrying experience from an earlier date. By

virtue of the fiction, such persons are deemed to be holding the post of LRI

22

from the date on which they were entitled to hold the post in terms of the

accrual of vacancy. This position has been accepted by the Tribunal and was

given effect to by the Board;

(xiv) Rule 284 provides for two streams of promotion: once promoted, promotees

of both streams constitute one class. Both the Tribunal and the State

Government found that by virtue of Rule 347-A and Rule 347-B, promotees

on the post of LRI are entitled to have their seniority computed and have the

benefit of seniority and experience from the date of occurrence of the

vacancy. The State cannot accord differential treatment to two different

streams of promotees since this would be subversive of Article 14;

(xv) The amendment to Rule 171-A on 8 October 2014 is clarificatory. The

judgment of the Tribunal has been acted upon and attained finality. Rule of

law principles require that the appellants should not be denied the benefit;

(xvi) The object of Rules 347-A and 347-B is to bring about a uniformity in the

conditions of service for all members of the subordinate staff across the State.

The appellants cannot be denied the benefit of the 2001 Rules;

(xvii) Depriving them of the benefit of the Rules of 1972 and 2001 would make the

rights of the appellants dependent on the fortuitous event of the date on which

the selection process was held; and

(xviii) The State cannot escape the consequence of not holding timely selections

and delaying them for years on an end.

23

19 Opposing the above submissions, Dr Manish Singhvi, learned Senior Counsel

appearing on behalf of the State of Rajasthan submitted:

(i) The 1972 Rules have to be read in conjunction with the 1957 Rules. The 1972

Rules make a reference to a DPC. The concept of a DPC applies to

promotions made on the basis of seniority-cum-merit and cannot be equated

with competitive examinations. The rights of persons who are eligible or those

who are recommended by the DPC in a particular year are crystalised. The

importance of the 1972 Rules is that the delay in convening a DPC should not

deprive persons who are otherwise eligible of their legitimate rights. In

contrast, the holding of a competitive examination is uncertain. The year of

vacancies has no correlation with the competitive examination. Consequently,

the deeming fiction relatable to the year of vacancy is confined to persons

whose rights have crystalised in the year when the DPC was required to have

been convened and will not extend to persons selected through competitive

exams. Even the promotees of 2013 have been given substantive

appointments from the date of appointment and not from the year of vacancy;

(ii) The 2001 Rules do not apply per se for the following reasons:

(a) The 2001 Rules do not expressly state that the 1960 Rules have been

repealed;

(b) The 2001 Rules are not general in nature so as to fall within the

purview of entry 7 of Rule 347-A. The 2001 Rules apply to services

specified in the schedule thereto and posts of Inspectors / Naib

24

Tehsildars / Patwaris are not part of the posts specified in the schedule.

The 2001 Rules are only meant to cover residuary cadres / services

which are not already covered by the state / subordinate services;

(c) The 1960 Rules have been repealed, and the 2001 Rules cannot be

termed as rules providing for general conditions of service;

(d) The 2001 Rules do not apply to regular / state / subordinate /

ministerial services which are governed by their own rules. Rule 4(g) of

the repealed 1960 Rules was all encompassing and covered posts

under the Rajasthan Civil Services (Classification, Control and Appeal)

Rules 1958

12

. The CCA Rules 1958 covered all appointments in

subordinate / state services. The 2001 Rules are confined to specific

categories mentioned in the schedule; and

(e) Even if the 2001 Rules apply, the scheme of those rules does not

contemplate a competitive examination as being a me thod of

promotion. Part IV of the 2001 Rules deals with the procedure for direct

recruitment by competitive examinations, while Part V pertains to

promotion. The case of the appellants will not fall within Part V. In the

absence of any statutory basis, the appellants cannot claim seniority or

promotion from an anterior date. Rule 347-A is subject to the provisions

contained in the 1957 Rules and hence, if any field is occupied, the

Rules of 1960 and 2001 shall not apply. Rule 171-A which provided at

12

“CCA Rules 1958”

25

the material time for seniority on the basis of continuous officiation held

the field.

(iii) The amendment to Rule 171-A which replaced the word “continuous

officiation” with the expression “recruitment year of promotion”, was effected

in October 2014, whereas the present controversy relates to 2012-13.

Continuous officiation refers to a person actually working on the post and

cannot incorporate the concept of a deeming experience or retrospective

claim of seniority. The State Government has treated even the promotees on

the basis of seniority-cum-merit from the date of appointment. The situation

has altered only after the amendment of Rule 171-A in October 2014;

(iv) The requirement of determining year-wise vacancies does not by itself lead to

the grant of seniority from the date of vacancy. If the State ignores one source

of recruitment for an unreasonable period of time or if its action is mala fide,

the court can issue a writ of mandamus to make recruitments from the

ignored source of recruitment. This was the situation in Jagdish Ch. Patnaik

v State of Orissa

13

(“Jagdish Ch. Patnaik”). In the present case, no mala

fides have been urged and the State simply clubbed together vacancies for

three years to hold a competitive examination; and

(v) The service jurisprudence emanating from Articles 14 and 16 of the

Constitution provides that seniority has to be reckoned from the date of the

substantive appointment. However, if a statutory rule so provides, it can be

reckoned from a retrospective date. Retrospective operation of seniority,

13

(1998) 4 SCC 456

26

however, has to be confined to appointment by promotion and cannot extend

to competitive examinations. Candidates in competitive examinations cannot

be given seniority from a retrospective date because they are not borne on

the cadre. Candidates drawn from the source of competitive examinations are

borne on the cadre from the date of substantive appointment after undergoing

probation and confirmation. In the present case, the appellants were selected

by open competitive examination from Patwaris for the post of LRI. If

retrospective seniority was to be given from the date on which the vacancy

arose, it would lead to a situation where a person who is not qualified to take

the examination on the date when the vacancy arose would get seniority. In

the present case, some persons were recruited by departmental examinations

from the feeder cadre. The statutory rules did not envisage retrospective

seniority from the date when the vacancy had arisen. The grant of seniority is

not a facet of a fundamental right. Hence, there is no violation of a

fundamental right when a person who takes a competitive examination is

given seniority from the date of substantive appointment.

20 Supporting the submissions which were urged on behalf of the State of

Rajasthan, Mr P N Misra and Mr Manoj Swaroop, learned Senior Counsel appearing

on behalf of the contesting respondents submitted:

(i) Recruitment under clause (i) and (ii) of Rule 284 of the 1957 Rules is from two

different streams: clause (i) provides for seniority-cum-merit, while clause (ii)

27

provides for a competitive departmental examination. The appellants are

governed by Rule 284(ii) and only those amongst the serving Patwaris who

qualify and meet the requirements under Rule 286 could appear for an open

competitive examination held pursuant to Rules 286-287. After completing

their training such persons have to undergo probation. Rule 298(iii) specifies

that persons who obtain the diploma are not immediately entitled for

appointment since appointment can be granted when vacancies occur on the

basis of seniority;

(ii) Rule 171-A (2) embodies the criteria of continuous officiation. The private

respondents are governed by Rule 284(i). They faced a DPC in 2012-13 and

the recruitment year for them was 1 April 2013. The private respondents are

not claiming seniority from the year of vacancy. Though for some of them the

DPC was 2009-10, their date of joining as LRI was in the year 2013 as a

result of which they were given promotion only with effect from 1 April 2013;

(iii) Rule 347-A of the 1957 Rules commences with the expression “except as

otherwise provided in these rules”. Rule 7 of the 2001 Rules provides three

sources of recruitment namely - (i) direct recruitment; (ii) promotion; and (iii)

transfer. Chapter V of the 2001 Rules deals with the procedure for promotion.

The 2001 Rules provide for promotion on the basis of a DPC and do not

contemplate a selection of candidates by a limited competitive examination.

The 2001 Rules will not be applicable to LRIs appointed under the 1957 Rules

and seniority has to be fixed under Rule 171-A;

28

(iv) The 1972 Rules apply to promotions which are made on the recommendation

of a DPC hence, if the rules are construed in their entirety, it is evident that

those rules are applicable to promotions made on the recommendation of a

DPC and not to those selected on the basis of a department examination;

(v) The appellants cannot claim seniority from a date on which they were not

borne on the cadre. The appellants appeared in the competitive exam in 2013

for advertisements issued in 2011 and 2013. They are not entitled to claim

seniority, as they seek to do, from the year of vacancy; and

(vi) It is well settled that promotion takes effect from the date of promotion and not

from the date of the occurrence of the vacancy or the creation of a post.

The above submissions have been reiterated by the other counsel. We now proceed

to consider the submissions.

21 Part IV of the 1957 Rules provides for a training school for Patwaris and

Qanungos. Among the Chapters comprised in Part IV is Chapter III which deals with

admission, training and examination of candidates to the Patwari school. Rule 284 of

the 1957 Rules contemplates selection of candidates for admission to the school

from two sources. The first, comprised in clause (i) is the promotion of Patwaris of

the Revenue and Land Records Departments through seniority-cum-merit. The

second source in clause (ii) is a competitive examination which is restricted to

serving Patwaris of the Revenue (Land Records) Department who fulfill the

conditions of eligibility in Rule 286. The quota for promotion on the basis of seniority-

29

cum-merit is 80 per cent, while that for candidates selected on the basis of a

competitive examination is 20 per cent. Candidates seeking selection need to fulfill

qualifications prescribed for selection in Rule 286. The requirements of eligibility

mandate, among other things that the candidate must have five years‟ experience as

a Patwari. After completion of the training, a candidate will be granted a diploma of

the training school and a list of successful candidates is maintained in order of

seniority based on the aggregate of marks obtained. The grant of a diploma does

not entitle a candidate to immediate appointment but makes the candidate eligible to

be considered as and when a vacancy arises, on the basis of seniority. On the

completion of a probationary period of one year, the candidate is eligible for being

confirmed in terms of Rule 299.

22 Rule 284 indicates that there are two sources of selection on the basis of

which admission to the training school is made namely: (i) promotion; and (ii) a

departmental examination for in-service Patwaris. The departmental examination is,

as described in-service jurisprudence, a limited departmental examination since

within-service candidates who are working as Patwaris with the requisite experience

and who fulfill the conditions of eligibility can only be considered under Rule 284(ii)

read with Rule 286. Rule 284(ii) is evidently not a source of open direct recruitment

since only in-service candidates fulfilling the conditions of eligibility can apply. The

history of Rule 284 indicates that initially there was a 50 per cent quota in 1977 for

direct recruitment while the balance was for seniority-cum-merit. In 1981, promotion

30

on the basis of seniority-cum-merit was enhanced to 65 per cent, while 15 per cent

was to take place on the basis of a limited competitive examination among serving

Patwaris. As a consequence, the quota for direct recruitment was reduced to 20 per

cent. In 1985, the method of direct recruitment was altogether abolished resulting in

an enhancement of the quota for seniority-cum-merit promotion to 80 per cent while

the balance of 20 per cent was through a limited departmental examination. This

history clearly indicates a progressive dilution of the quota that was prescribed for

direct recruitment until it was eventually abolished altogether. In consequence,

selection within the meaning of Rule 284 is governed by a promotional quota (80 per

cent) based on seniority-cum-merit and a quota for candidates passing a limited

department examination (20 per cent) drawn from those who are serving as

Patwaris.

23 Now, it is in the above context, that both the Single Judge as well as Division

Bench in appeal came to the conclusion that the examination which is confined to

candidates drawn from the feeder category would essentially be a case of

accelerated promotion. The learned Single Judge held:

“…the very fact that at one stage there were three sources for

selection / appointment, which included that direct

recruitment, regular promotion and accelerated promotion is

sufficient to come to a conclusion that selection through

competitive examination cannot be equated with direct

recruitment…”

31

The Single Judge held that the quota of 20 per cent is to be filled up by accelerated

promotion and merely because a competitive examination for entry to the training

school is envisaged that does not change the status of the selection. Though, the

streams are different, essentially, the selection is by way of promotion. The Division

Bench accepted this analysis of the learned Single Judge, holding:

“…An examination restricted only to the feeder category

prescribed for promotion by seniority-cum-merit, would

therefore essentially be a case of promotion by way of

selection or accelerated promotion as learned single judge

has rightly put and not direct recruitment...”

The Division Bench noticed that Rule 299 of the 1957 Rules (in the context of the

completion of the probationary period) provides that promotees of the same year will

rank senior to the direct recruits from serving Patwaris of the same year. The mere

use of the expression “direct recruitment” in Rule 299 was held not to render the

source comprehended in Rule 284(ii) as a source of direct recruitment. For the

purpose of the present proceedings, we accept the correctness of this view which

has been adopted both by the Single Judge and by the Division Bench. This is also

the consistent view of the Department of Personnel of the State Government.

Hence, we hold that the limited departmental examination for in-service Patwaris

under Rule 284(ii) is a means of accelerated promotion. Rule 284 provides for

selection by promotion through two streams: one by seniority-cum-merit and the

other on the basis of a limited departmental examination for in-service Patwaris.

32

24 Now it is in this context, that it become necessary to evaluate the interplay

between the Rules of 1957 more particularly, Rules 171-A, 347-A and 347-B with

the Rules of 1960, 1972 and 2001. Rules 347-A and 347-B of the 1957 Rules were

introduced by amendment on 22 September 1977. Rule 347-A stipulates that the

pay, allowances, pension, leave and other conditions of service shall be regulated

by the rules, as amended from time to time enumerated in the several entries which

follow. Among them are other rules for the time being in force, made under the

proviso to Article 309 of the Constitution prescribing the general conditions of

service. Any other general order or amendment in the 1960 Rules by the

Department of Personnel is to apply mutatis mutandis unless there is an order to the

contrary issued by the government. However, Rule 347-A indicates that the

provisions of the enumerated rules do not have overriding effect since the opening

words contain the phrase “except as otherwise provided in these rules”. Where a

specific provision is made in the 1957 Rules, that will hence prevail.

25 The 1960 Rules governed the recruitment and conditions of service of

persons appointed to subordinate service posts in various departments, except

where there existed separate service rules. Rule 2 provided:

“2. Scope. - These rules shall govern the recruitment and

other conditions of service in respect of persons appointed to

the subordinate service posts in the various departments

other than posts regarding which separate service rules have

been promulgated or may be promulgated in future.”

33

Rule 9 of the 1960 Rules required the appointing authority to determine the actual

number of vacancies occurring during the financial year, on 1 April every year.

Under Rule 9, where a post is filled up by more than one method prescribed in the

rules or schedule, an apportionment of vacancies to every such method was to be

done for maintaining the required proportion. The appointing authority was also duty

bound to determine the year-wise vacancies of earlier years, which were required to

be filled in by promotion, if such vacancies were not determined and filled earlier in

the year in which they were required to be filled in. Rule 9 in specific terms

contemplated a year-wise determination of vacancies, allocation of vacancies to

different methods of appointment and the determination of vacancies of earlier years

which were not filled in the relevant year. However, Rule 9 did not, in express terms,

provide for deemed seniority or a deemed date of promotion.

26 Rule 347-A contemplates that the conditions of service would be governed by

the provisions contained in the rules enumerated (including the 1960 Rules) unless

otherwise provided in the 1957 Rules. Rule 171-A was such a provision

contemplated by the opening words of Rule 347-A. Until it came to be amended in

October 2014, Rule 171-A(2) specifically contemplated that the seniority of the LRIs

will be determined from the date of their continuous officiation on the post in the land

records department or any other equivalent post provided that such officiation was

not fortuitous or ad hoc in nature. After the amendment, Rule 171-A contemplates

34

that the seniority of Inspectors shall be determined on the basis of the recruitment

year of promotion. The amendment took effect in October 2014.

27 Mr Paras Kuhad, learned Senior Counsel is justified in his submission that the

1957 Rules did not make a provision specifically for a year-wise determination of

vacancies and that such a provision was embodied in the 1960 Rules. The difficulty

in accepting the sequitur (as learned Counsel portrayed it) of this submission lies in

the fact that Rule 171-A(2) prior to its amendment expressly incorporated the

principle of continuous officiation as the basis for determining seniority of LRIs. This

principle, which is specifically embodied in Rule 171-A(2) cannot stand overridden

by any provision to the contrary contained in the 1960 Rules. This is for the reason

that Rule 347-A expressly stipulates that where there is a specific provision

contained in the 1957 Rules, that provision will govern.

28 On 2 March 2001, the 2001 Rules were notified under the proviso to Article

309 of the Constitution. Rule 2 defines the scope of the 2001 Rules:

“2. Scope. - These rules shall govern the recruitment and

other conditions of service in respect of persons appointed to

the subordinate service posts in the various departments

other than post(s) regarding which separate service rules

have been promulgated or may be promulgated in future.”

35

Rule 3(h) defines the expression “member of service”:

“(h). „Member of Service‟ means a person appointed in a

substantive capacity to a post in the service under the

provisions of these rules or the rules or orders superseded by

rule 48 and includes a probationer.”

Rule 6 defines the constitution of the service:

“6. Constitution of Service-the Service shall consist of-

(a) aII person holding substantively the post(s) or

recruited to the Subordinate Service post(s) specified

in the Schedule or orders issued by the Government

or the Appointing Authority before the

commencement of these rules;

(b) all persons recruited to the service in accordance with

the provisions of these rules, except an urgent

temporary appointment.”

Rule 7 provides for the method of recruitment:

“7. Method of recruitment:- (1) Subject to the provisions

herein after contained in these rules, recruitment or

appointment to post(s) in the service shall be made by the

following methods in the proportion as indicated in the

Schedule:-

(i) by direct recruitment in accordance with the provisions

contained in part-IV of these rules;

(ii) by promotion in accordance with the provisions contained

in part-V of these rules;

(iii) (a) by transfer from amongst the person(s) holding

equivalent post(s) in other Department.

provided that if the post(s) to which transfer is proposed to

be made within the purview of the Commission. Such

person should have already been approved by the

Commission on such equivalent post.

36

(b) by transfer of persons from any institution that has

been taken over by the State Government with the

condition to suitably absorbed its staff:…”

Rule 7 contemplates three modes of recruitment, namely:

(i) Direct recruitment in terms of Part IV;

(ii) Promotion in terms of Part V; and

(iii) Transfer.

29 Part IV of the 2001 Rules lays down the procedure for direct recruitment from

Rules 22 to 33. Part V provides for the procedure for recruitment by promotion. Rule

13 requires a determination of the actual number of vacancies occurring during a

financial year as on 1 April every year. Where a post is filled in by a single method

then the vacancies as determined shall be filled in by that method. Where more than

one method is prescribed posts are filled by apportionment of vacancies. Rule 35

applies to promotions which are carried out by a departmental promotion committee

constituted under Rule 34. Rule 35(6) requires the committee to consider the cases

of persons who would have been eligible in the year to which the vacancy relates,

irrespective of the year in which the meeting of the committee is held. Such

promotions would be governed by the criteria and procedure applicable in the year

to which the vacancy relates and the service / experience of the incumbent who is

promoted shall be counted for promotion to a higher post for any period during which

the candidate has not actually performed the duties of the post. Where a limited

37

competitive examination is being held for accelerated promotion, Rule 35 has no

application. The procedure for recruitment in Part V of the 2001 Rules does not

comprehend a situation involving a limited competitive examination for accelerated

promotion. Rule 48 which is the repeal and savings provision stipulates that all rules

and orders relating to matters covered by those rules and in force immediately

before the commencement of the rules are repealed. The 2001 Rules contains a

schedule and as we have seen earlier, Rule 6(a) provides that the service shall

consist of persons holding substantive posts or persons recruited to subordinate

service posts or persons specified in the schedule, besides persons recruited in

accordance with the provisions of the rules.

30 It is evident from Part V of the 2001 Rules more particularly, the rules

governing promotion contained in Rules 34 and 35 that the deeming fiction

envisaged in Rule 35(6) applies to promotions made under the auspices of a DPC.

In the case of such promotions, Rule 35 mandates that the committee constituted

under Rule 34 must consider the cases of persons who were eligible in the year to

which the vacancy relates irrespective of the year in which the meeting of the

committee is held. The underlying rationale for Rule 35(6) is that on the

determination of year-wise vacancies, rights are crystalised with reference to the

year in which the vacancy has arisen. Consequently, the delay on the part of the

DPC in convening its meeting should not result in a prejudice to those candidates

who were eligible for promotion and ought to have been promoted but were not

38

considered with reference to the year in which the vacancy arose. This principle in

Rule 35(6) is in the nature of a deeming fiction. Undoubtedly, once a deeming fiction

comes into being, full effect must be given to its ambit. Equally, a deeming fiction

can apply to the extent to which and in a situation where the law mandates that it be

applied. In the present case, it is evident that the deeming fiction which applies in

the context of a DPC having been convened beyond the year in which the

promotional vacancy arose has no application to candidates who are recruited on

the basis of a competitive examination for the grant of accelerated promotion. There

is a fundamental reason why the deeming fiction cannot be extended to the situation

implicated in Rule 284(ii). In order to appear in the competitive examination

contemplated by Rule 284(ii), a candidate must fulfill the conditions of eligibility

prescribed in Rule 286. Rule 286 stipulates that in-service Patwaris must have a

minimum service of five years before they can appear at the competitive

examination under Rule 284(ii). Conferment of a deemed seniority may result in a

situation where a candidate secures seniority with effect from an anterior date on

which he or she was neither borne on the cadre nor was qualified. Such a

consequence would be impermissible, at least in the absence of an express

statutory provision to that effect.

31 A consistent line of precedent of this Court follows the principle that

retrospective seniority cannot be granted to an employee from a date when the

employee was not borne on a cadre. Seniority amongst members of the same grade

39

has to be counted from the date of initial entry into the grade. This principle emerges

from the decision of the Constitution Bench of this Court in Direct Recruit Class II

Engineering Officers’ Association v State of Maharashtra

14

. The principle was

reiterated by this Court in State of Bihar v Akhouri Sachindra Nath

15

and State of

Uttaranchal v Dinesh Kumar Sharma

16

. In Pawan Pratap Singh v Reeven

Singh

17

, this Court revisited the precedents on the subject and observed:

“45. … (i) The effective date of selection has to be understood

in the context of the service rules under which the

appointment is made. It may mean the date on which the

process of selection starts with the issuance of advertisement

or the factum of preparation of the select list, as the case may

be.

(ii) Inter se seniority in a particular service has to be

determined as per the service rules. The date of entry in a

particular service or the date of substantive appointment is

the safest criterion for fixing seniority inter se between one

officer or the other or between one group of officers and the

other recruited from different sources. Any departure

therefrom in the statutory rules, executive instructions or

otherwise must be consistent with the requirements of Articles

14 and 16 of the Constitution.

(iii) Ordinarily, notional seniority may not be granted from the

backdate and if it is done, it must be based on objective

considerations and on a valid classification and must be

traceable to the statutory rules.

(iv) The seniority cannot be reckoned from the date of

occurrence of the vacancy and cannot be given

retrospectively unless it is so expressly provided by the

relevant service rules. It is so because seniority cannot be

given on retrospective basis when an employee has not even

been borne in the cadre and by doing so it may adversely

affect the employees who have been appointed validly in the

meantime.”

14

(1990) 2 SCC 715

15

1991 Supp (1) SCC 334

16

(2007) 1 SCC 683

17

(2011) 3 SCC 267

40

This view has been re-affirmed by a Bench of three judges of this Court in P

Sudhakar Rao v U Govinda Rao

18

.

32 During the course of the hearing, learned Counsel appearing on behalf of the

appellants placed reliance on a decision of a two judge Bench of this Court in

Jagdish Prasad v State of Rajasthan

19

(“Jagdish Prasad”). The issue in that case

pertained to promotions from the post of District Transport Officer

20

to the post of

Motor Vehicle Inspector. Prior to April 1992, candidates were required to pass a

qualifying examination for the post of DTO but by an amendment, the requirement

was deleted. Under Rule 10 of the Rajasthan Transport Service Rules 1979

21

, the

appointing authority was required to make a year-wise determination of vacancies

and to make an apportionment to each method prescribed for filling up the posts. In

doing so, the authority was to determine the vacancies of earlier years which were

required to be filled up by promotion but were not in fact filled in that year. Rule 24 of

the 1979 Rules contains sub-rule (11) which is pari materia with Rule 35(6) of the

2001 Rules. Under the 1979 Rules, 50 per cent of the vacancies were allocated for

direct recruitment and 50 per cent for promotion. This Court noted that the 1979

Rules postulated merit to be the criteria for promotion to the higher posts. Right from

1983-84 until 1993-94, no examination was conducted. Faced with the question of

delay in holding the qualifying examination, this Court observed:

18

(2013) 8 SCC 693

19

(2011) 7 SCC 789

20

“DTO”

21

“1979 Rules”

41

“29. In light of this, we now come to the conduct of the

Government which we cannot but help to comment upon.

Right from 1983-1984 till 1993-1994 no examination has been

conducted by the appropriate authority despite the fact that

they also issued notifications for holding exams on a few of

these occasions. If there was a representation from the

Rajasthan Transport Inspectors' Union, it cannot be

considered as a sufficient cause or reason for not holding the

examinations for more than ten years and causing serious

prejudice to the candidates who might have been sufficiently

meritorious to qualify in the exams and be considered for

promotion to 50% of the posts under the promotion quota. It is

a matter of regret that a Government can take such a stand

before a court of law and expects the Court to accept such a

submission. It is ex facie untenable. Once the rules stand

clear, the authority concerned is expected to act in

accordance with law and not to defeat the law. One who

defeats the law by his unjustifiable and unsustainable acts is

liable for the consequences of such default. We fail to

understand why the Government and its entire hierarchy had

shut its eyes to this gross violation of statutory rules over

such a long period.”

The process of selection was held to be in violation of the statutory rules. In this

background, this Court noticing the illegality in the process, issued directions for

holding a fresh process of selection.

33 Jagdish Prasad is a decision which has been rendered in a situation where

the 1979 Rules applicable to the Transport department contained a specific

provision for considering the case for promotion of persons who are eligible in the

year to which the vacancy relates and who could not be considered as a result of the

failure of the DPC to convene. The decision related to a situation where the State

Government had acted arbitrarily and even mala fide in failing to hold the qualifying

42

examination for a decade on the specious ground that there was a representation

from the union. The action of the State was held to be unsustainable because it was

designed to defeat the law. This distinguishing feature is absent in the present case.

34 In the present case, we have dealt with the issue of the applicability of the

1960 Rules in the context of determining the principle of seniority. We have held that

in view of the opening words of Rule 347-A, the provisions contained in the 1960

Rules would have to give way and be subject to Rule 171-A(2) which provided for

determining seniority on the basis of continuous officiation. In the face of Rule 171-

A(2) as it stood prior to amendment, it is not possible to apply a deemed date for

determining seniority based on the year of vacancy. Rule 171-A(2) rules out the

grant of seniority with effect from a date anterior to the date on which the employee

is borne on the cadre.

35 But the submission which now needs to be analysed is whether a different

result would follow from the application of Rule 347-B of the 1957 Rules. Rule 347-

B, as we have noted, is prefaced with a non-obstante provision. Consequently,

conditions of service which are governed by the rules referred to in the entries of

Rule 347-B will govern notwithstanding anything contained in the 1957 Rules.

Among them is an entry pertaining to the 1972 Rules. Hence, it is necessary to

consider the applicability of the 1972 Rules. Rule 2 contemplates a situation where

the service rules regulating recruitment and conditions of service made under the

43

proviso to Article 309 of the Constitution provide for recruitment by both direct

recruitment and promotion. Where the promotion quota of a previous year cannot be

filled in due to the absence of a DPC recommendation, the appointing authority is to

determine the number of vacancies required to be filled up by promotion with

reference to the year when the vacancies were required to be filled up. In such a

situation, upon a determination of the vacancies by the appointing authority, the

DPC is required to convene within a stipulated period. Upon the recommendations

of the DPC, the appointing authority must make appointments to promotion quota

vacancies relevant to the year in question. Where a vacancy relates to a year earlier

than the year in which the appointment has been made, the order of appointment

has to be modified so as to take effect from the year in which the promotion is

deemed to have been made. A plain reading of the 1972 Rules indicates that they

envisage a situation where recruitment is made both by direct recruitment and

promotion and the promotional quota is not filled up in the absence of a DPC

recommendation. On its terms, Rule 2 of the 1972 Rules has no application to a

situation such as the present which is governed by Rule 284 of the 1957 Rules.

Under Rule 284, there is no direct recruitment at all. Rule 2 of the 1972 Rules

applies in a situation where a service rule regulating recruitment “provides for

recruitment by both direct recruitment and promotion”. In the present case, ex facie

Rule 284 of the 1957 Rules is not a provision falling in that category since there is

an absence of a service rule requiring recruitment by direct recruitment and

promotion. The 1972 Rules have no application. Rule 347-B of the 1957 Rules will

hence not come to the aid of the appellants.

44

36 The situation, as we have noted has been altered by the rule making authority

which amended the provisions contained in Rule 171-A(2) of the 1957 Rules. As a

result of the amendment, sub-rule (2) came to be substituted with effect from 8

October 2014. Post amendment, the seniority of LRIs has to be determined on the

basis of the recruitment year of promotion. The provision for continuous officiation as

embodied in Rule 171-A(2) prior to the amendment was to the contrary. A deliberate

departure has been made in the rules which were modified on 8 October 2014. We

cannot accept the submission that the amendment was clarificatory in nature. The

present case relates to the exercise conducted prior to the amendment of Rule 171-

A(2).

37 For the above reasons, we are of the view that the Division Bench of the High

Court was justified in coming to the conclusion, though for the reasons which we

have indicated, that the claim for seniority with reference to the date of the accrual of

the vacancy will not be maintainable merely on the ground that no competitive

examination was held in the years in which the vacancies had arisen. The view

taken by the Division Bench of the Rajasthan High Court is in accord with the

principles of law enunciated in the decisions of this Court and consistent with the

statutory rules as they held the field at the material time.

45

38 For the above reasons, we find no merit in the appeals. The appeals are

accordingly dismissed. There shall be no order as to costs. Pending application(s), if

any, shall stand disposed of.

….…….……………………...............J.

[Dr Dhananjaya Y Chandrachud]

....…….……………………...............J.

[Indira Banerjee]

New Delhi;

August 21, 2019.