AI Structured Summary
Not yet generated for this judgment
No AI summary yet
Generate an eight-section analysis of this judgment — facts, issues, reasoning, ratio and a plain-language gist.
Judgment
412 paragraphs · 8,219 wordsThis writ petition has been filed by the petitioners seeking declaration that the petitioners have been promoted against their respective recruitment year
of promotion and a direction to the respondents to place the petitioners in final seniority list issued on 12.05.2016 against their respective recruitment
year of promotion with all consequential benefits.
The petitioners were initially appointed on the post of Patwari. An Advertisement dated 17.06.2011 was issued by the respondent-State for filling up of
vacancies by way of departmental examination for selection to the post of Inspector Land Records, it is claimed that the said vacancies 93 in total,
were related to the years 2008-09 and 2009-10; the 93 vacancies advertised were later on increased to 155 including 62 posts of the year 2010-11 vide
advertisement dated 28.01.2013. The petitioners appeared for the departmental examination and were selected for the post of Inspector Land
Records, result whereof was declared off-line on 16.05.2013 (Annex.-4), subsequently a formal order promoting the petitioners was issued on
31.03.2014 (Annex.-5).
It is claimed that the petitioners have been working on the post of Inspector Land Records pursuant to the posting dated 31.03.2014, when a
provisional seniority list was issued on 07.11.2013 (Annex.-6) under Rule 171-A(2) of the Rajasthan Land Revenue (Land Records) Rules, 1957
(‘the Rules of 1957’), indicating the seniority as on 01.04.2012.
It is claimed that despite the fact that the petitioners were appointed against the vacancies of years 2008-09, 2009-10 and 2010-11, the names of the
petitioners were not included in the provisional seniority list dated 07.11.2013. It is then submitted that the provisions of Rule 171-A of the Rules of
1957 were amended by notification dated 08.10.2014, whereby the criteria for determining the seniority was changed from ‘the date of continuous
officiation’ to ‘the recruitment year of promotion’. Based on the said amendment, the Revenue Board issued a communication dated
12.03.2015 (Annex.-8) to the Collectors to prepare a list of persons, who were given appointment to the post of Inspector Land Records against the
vacancies of the year 200910, however, did not find mention in the seniority list as on 01.04.2010. Whereafter orders dated 11.06.2015, 06.07.2015
and 06.08.2015 were issued promoting the Inspector Land Records to the post of Nayab Tehsildar while treating them as having been appointed on
the post of Inspector Land Records against the recruitment year of promotion, in which the vacancies arose irrespective of the fact that orders of
officiation were issued subsequently.
It is then submitted that while giving the benefit of notification dated 08.10.2014, whereby provisions of Rule 171-A of the Rules of 1957 were
amended, the petitioners were deprived of the benefit of the amendment as such the petitioners submitted a representation before the Chairman,
Revenue Board seeking grant of benefit of notification dated 08.10.2014 and sought placing the name of petitioners in the seniority list as against the
recruitment year. The final seniority list was published on 12.05.2016 in terms of amended Rule 171-A(2) of the Rules of 1957 as on 01.04.2012,
however, none of the petitioners’ name were included therein though it is claimed that recruitment year of each of the petitioners is prior to that of
2010-11.
While alleging that the action of the respondents is illegal being arbitrary and unreasonable, it is submitted that on making inquiries, the petitioners came
to know that benefit of notification dated 08.10.2014 has been given only to those who have been promoted on the basis of seniority-cum-merit.
Whereafter reliance has been placed on Rajasthan Services (Recruitment by promotion against vacancies of earlier years) Rules, 1972 (‘the Rules
of 1972’) and that the said Rules of 1972 have been made expressly applicable to Inspectors Land Records vide Rule 347-B of the Rules of 1957.
Further submissions have been made that the petitioners have been given benefit of Rule 26-A of the Rajasthan Service Rules, 151 (‘the
RSR’). A communication dated 20.05.2016 has been issued to all the District Collectors intimating the intention of the respondents to make
promotion to the post of Nayab Tehsildar on the basis of seniority list as on 01.04.2012. It is also indicated that the persons similarly situated
approached the Rajasthan Civil Services Appellate Tribunal (‘the Tribunal’), however, their appeals have been rejected by the Tribunal and,
therefore, their approaching the Tribunal would be futile.
It was submitted by learned counsel for the petitioners with reference to the history of provisions of Rules of 1957 pertaining to the recruitment of
Inspectors Land Records that by way of amendment in the year 1977, the posts of Inspectors Land Records were to be filled in 50% by direct
recruitment and 50% by selection from the Patwaries on the basis of seniority-cummerit, which were amended in the year 1981 providing for selection
by promotion of Patwaries on the basis of senority-cummerit for 65% of the vacancies and 15% on the basis of a competitive examination restricted
to serving Patwaries and 20% by direct recruitment, which again came to be amended in the year 1985 providing for 80% by promotion and 20% by
competitive examination restricted to serving Patwaries and the mode of direct recruitment was deleted, which continues; when the advertisement
dated 28.01.2013 was issued for filling-up of vacancies by way of competitive examination (Annex.-2), SBCW No.9705/2013 (Chandra Vishnoi v.
State & Anr.) was filed claiming reservation for women, wherein State took the stand that the said selection was by way of promotion and not direct
recruitment and, therefore, the reservation was not available, which plea was accepted by the Court.
From the note-sheet (Annex.-3), it is apparent that the advertisement for 155 posts pertained to the year 2008-09 (67 posts), 2009-10 (26 posts) and
2010-11 (62 posts). It was submitted that in terms of Rules of 1972, where promotion quota of any earlier year could not be filled-up in absence of
selection, the appointing authority is required to determine the number of vacancies, which are required to be filled-up by promotion and has to fill-up
the same with reference to the year of vacancy and as admittedly, the vacancies pertained to the years 2008-09 to 201011, the same were required to
be fill-up as per the vacancies of the respective years.
It was also submitted that as per the Rule 9 of the Rajasthan Subordinate Services (Recruitment and other Service Conditions), Rules, 1960 (‘the
Rules of 1960’), the determination of vacancies have to take place yearwise even of earlier year, which are required to be fill-up in by promotion,
if such vacancies were determined and filled earlier, in which they were required to be filled-up; the Rules of 1960 have been substituted by the
Rajasthan Subordinate Services (Recruitment and Other Service Conditions) Rules, 2001 (‘the Rules of 2001’) and the Rule 9 of the Rules of
1960 has been substituted by Rule 13 in the same terms in Rules of 2001. As the Rules 347-A and 347-B of the Rules of 1957, clearly provide for
applicability of Rules of 1960 and Rules of 1972 respectively to the Service Rules applicable to Inspector Land Records, action of the respondents in
not providing the petitioners promotion against the recruitment year, in which the vacancies arose is incorrect.
It was emphasized that there is essentially no distinction between the provisions of Rule 301 of the Rules of 1957, which deal with selection of
candidates by promotion in terms of Rules 284(i) and 285 of the Rules of 1957, which provide for recruitment from among the serving Patwaries of
Revenue (LR) Department and, therefore the promotees under Rule 284(i) of the Rules of 1957 cannot have a march over the petitioners and,
therefore the action of the respondents in not according the year of recruitment to the petitioners in the year, in which the respective vacancies arose,
deserves to be set aside.
It is also submitted that if the vacancies are not determined yearwise, the 80% quota under Rule 284(i) of the Rules of 1957 also cannot be determined
yearwise, inasmuch as for operating the provisions of Rules of 1972 or Rule 13 of the Rules of 2001, no discrimination can be made qua the persons
promoted under the Rules 284(i) or 284(ii) of the Rules of 1957.
Another submission was made that amendment in the Rule 171-A of the Rules of 1957, providing for determination of seniority on the basis of
recruitment year of promotion instead of from the date of their continuous officiation, is essentially curative in nature and has been given retrospective
effect by the respondents qua the persons promoted against 80% quota and for determining the seniority different yardsticks cannot be applied qua the
petitioners.
With regard to the submission that as the Rules of 1972 provide for recommendation of the Departmental Promotion Committee, which is not the case
insofar as the petitioners are concerned, it was submitted that the provisions of the Rules of 1972 have to be read in the context and even if there is
any inconsistency in applying the provisions of the Rules of 1972 to the Rules of 1957, for the purpose of a harmonious construction the provision has
to be read down for achieving the object of the provision.
Reliance was placed on M.P. Agarwal v. State of Rajasthan & Anr.: 1978 WLN (UC) 383; H.K. Hingorani v. State of Rajasthan & Ors.: 1979 WLN
(UC) 421; Maqbool Ahmed v. State of Rajasthan & Ors.: 1984 (1) RLR 768; State of Rajasthan & Anr. v. Chandra Shekhar Dave & Ors.: D.B.
Special Appeal Writ No.506/2017, decided on 10.07.2017; Union of India & Ors. v. N.R. Parmar & Ors.: (2012) 13 SCC 340; Govind Narain Goyal
v. State of Rajasthan & Ors.: D.B. Civil Writ Petition No.832/1986, decided on 16.04.1991; Balveer Singh & Ors. v. State of Rajasthan & Ors.: D.B.
Civil Writ Petition No.1329/1996, decided on 17.11.2015; State of Orisa & Anr. v. Gopal Chandra Rath & Ors.: (1995) 6 SCC 242; Commissioner of
Income Tax (Central)-I, New Delhi v. Vatika Township Pvt. Ltd.: (2015) 1 SCC 1 and Vijay & Anr. v. State of Rajasthan : D.B. Civil Writ Petition
No.2181/1991, decided on 13.04.1994.
Vehemently opposing the submissions, learned counsel appearing for the respondents No.4 and 5 submitted that from the provisions of Rule 171 of the
Rules of 1957, it is clear that the appointing authority of the Inspector Land Records is District Collector and the Divisional Commissioner only allots
senior most eligible person to him for appointment. After referring to various Rules, it was emphasized that Rule 299 of the Rules of 1957 in
unambiguous terms provides that the promotee of the same year shall rank senior to the direct recruits from serving Patwaries of the same year and,
therefore, a conjoint reading of the provisions make it clear that a Patwari selected through competitive examination as per the provision of Rule
284(ii) of the Rules of 1957 shall have to undergo training and on successful completion of training, his name is placed in the list of successful
candidates for consideration for recruitment on availability of vacancy by the District Collector being their appointing authority and that Rule 299 of the
Rules of 1957 clearly uses term ‘direct recruits’ for such selected serving Patwaries and, therefore, once the status of the persons selected
under Rule 284(ii) of the Rules of 1957 is that of direct recruits, the petitioners cannot claim seniority with respect to vacancies of the previous years.
Submissions were made that the order dated 31.03.2014 (Annex.-5) is only a communication issued by the Registrar, Revenue Board and is not a
promotion order and is only a list prepared as required under Rule 298(i) by the Board of Revenue of the candidates, who have completed their
training successfully for consideration by the District Collectors concerned as per requirement and availability of vacancies for appointment on the
post of Inspector Land Records and as such the petitioners cannot claim to have been appointed as Inspector Land Records by order dated
31.03.2014.
It is submitted that the plea raised by the petitioners to treat the recruitment year as the year of vacancy is not tenable as it has been laid down
categorically by Hon’ble Supreme Court that the recruitment year means the year, in which recruitment takes place and not each succeeding
year, in which vacancies arose.
Objection was raised that the petitioners have neither questioned the validity of the advertisement qua non-bifurcation of yearwise vacancies nor have
questioned the clubbing of vacancies, in absence whereof, the petitioners cannot claim any relief.
With regard to the applicability of provisions of the Rules of 1960, it was submitted that Rule 2 clarifies the scope of the said Rules, which only applies
to department, regarding which separate Service Rules have not been promulgated and as the Rules of 1957 are already in existence, the Rules of
1960 have no application.
Without prejudice, it was submitted that under Rule 347A(8) of the Rules of 1957 only a general order or amendment issued by the Department of
Personnel would apply and not the Rules of 1960 itself and that under the Rules of 1957, there is no provision for yearwise determination of vacancies,
in absence whereof, no fundamental right of the petitioners have been taken away so as to require interference of this Court.
Regarding the applicability of the Rules of 1972, submissions were made that the same pertain to recommendations made by a Departmental
Promotion Committee and not otherwise and, therefore, the Rules of 1972 also have no application to the facts of the present case.
Finally, it was submitted that in absence of any provisions of yearwise determination of vacancies, no right accrues in favour of the petitioners and the
benefit of retrospective seniority cannot be granted to the petitioners even before they were borne on the cadre and, therefore, the writ petition filed
by the petitioners, deserves to be dismissed.
Reliance was placed on Harish Chandra Ram v. Mukh Ram Dubey & Ors.: (1994) Suppl (2) SCC 490; Jagdish Chandra Patnaik & Ors. v. State of
Orisa & Ors.: (1998) 4 SCC 456; Deepak Agarwal v. State of U.P. & Ors.: (2011) 6 SCC 725; Shivdutt Singh Rathore v. State & Ors.: SBCW
No.11309/2017, decided on 01.11.2017; Pawan Pratap Singh & Ors.: Reevan Singh & Ors.: (2011) 3 SCC 267; State of Uttranchal & Anr. v. Dinesh
Kumar Sharma : (2007) 1 SCC 683; Uttranchal Forest Rangers Association (Direct Recrit) & Ors. v. State of U.P. & Ors.:
(2006) 10 SCC 346; P. Sudhakar Rao Ors. v. U.Govindarao&Ors.: (2013) 8 SCC 693; Deepak Mathur & Ors. v. RRVPNL & Anr.: SBCW
No.13031/2013, decided on 06.11.2015; State of Maharashtra & Ors. v. Parbhani Z.L.B.M.V. Operators Sangh : (2000) 2 SCC 69 and Institute of
Chartered Accountants of India v. Price Whaterhouse & Anr.: (1997) 6 SCC 312.
Learned counsel appearing for the respondent-State supported the plea raised by the respondents and opposed the plea raised by the petitioners. It
was submitted that the Rules of 1972 have no application as they are meant for recommendations made by the Departmental Promotion Committee
and not to be the case of direct recruits like the petitioners. It was submitted that the advertisement was issued without indicating any yearwise
vacancies and, therefore, the petitioners cannot claim seniority based on the determination of yearwise vacancies. It was also submitted that the
petitioners having appeared pursuant to the advertisement now cannot turn around and seek promotion from a prior date. It was prayed that the writ
petition filed by the petitioners be dismissed.
I have considered the submissions made by learned counsel for the parties and have perused the material available on record.
It would be appropriate to reproduce the provisions having implications on the present case:-
“171. Appointment. As per procedure laid down in rules 284 and 301 of these rules the [Commissioner of the Division] shall select candidates for
training of Inspector Land Records. The [Commissioner of the Division] shall maintain a list of those candidates who have received training and
obtained diploma when there is a substantive vacancy in the cadre of Inspector Land Records or a vacancy which is likely to become substantive, the
Collector shall, for the purpose, send a requisition to the [Commissioner of the Division]. The [Commissioner of the Division] shall then make
allotment of the senior most person/them as Inspector Land Records.
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.
Amended Sub-Rule (2) of Rule 171-A:
(2) The seniority of the 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:
Provided that the inter se seniority of Inspectors promoted in same recruitment year shall be determined on the basis of regular date of appointment on
the post of Patwari. If the date of appointment of post of Patwari is same the seniority shall be determined on the basis of the date of birth. The
employee whose date of birth stands first shall deemed to be senior. In case of same appointment date and the same date of birth, the order of the
English alphabet of the name of employee shall be criterion for determination of seniority.
Selection of candidates for admission tothe school in the respective cadre strength shall be made:â€
(i) by promotion of Patwaries of theRevenue and Land Records Departments, on the basis of seniority-cum-merit, for 8O% of the vacancies;
(ii) on the basis of a competitiveexamination which shall be restricted to Serving
Patwaries 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 patwaries shall be 45 years.
Recruitment from among the serving Patwaries ofRevenue (LR) Department.-The Board of Revenue will notify in the local newspapers and in
such other manner as it deem fit the actual number of vacancies that will be filled up by Recruitment from among the serving patwaries of Revenue
(Land Records) Department and the number that will be allotted to the scheduled castes and tribes out of these vacancies.
Qualifications.-Candidates intending to apply forselection 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 Examinationor any other equivalent examination recognised by Government;
(iii) That he is not above 45 years of age on thefirst 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.
Competitive Examination.- A competitiveexamination shall be held by the Board of Revenue for recruitment from amongst the serving patwaries
of the Revenue (Land Records) Department for admission to the training school in the manner laid down in the following rules.
Board of Revenue shall prepare a list of the candidates and names of all candidates who have secured the qualifying marks prescribed under
Rules 292 arranged in the order of merit on the basis of the aggregate marks obtained by each candidate and the Board of Revenue shall make
admissions to the School out of the list in the same order, in accordance with the number of vacancies available.
On going through the Examination of the Training success fully, the candidates will be granted Diploma by the Principal of the Training School.
298.(i) The Board of Revenue shall maintain a list of all successful candidates (diploma holders) in order of seniority based or aggregate marks
obtained by them in the Examination of Training.
(ii) The recruitment on the post of Inspector LandRecords Office Qanungo and Assistant Qanungo in districts will be made by the Collectors in
accordance with the provisions contained in Rule 171.
(iii) The Diploma holders shall not be eligible forappointment immediately on getting Qanungo-ship Diploma but they shall be eligible for appointment as
and when vacancies occur on the basis of their seniority.
Completion of probation.-On completion of one year of probation the I.L. Rs/Office Qanungo and Assistant Sadar Qanungo shall be eligible for
being confirmed. Promotees of the same year shall however rank senior to the direct recruits from serving patwaries of the same year.
Submission of applications.-(1) For the purpose of selection of candidates by promotion as provided in subrule (1) of Rule 284, the [Divisional
Commissioner] shall prepare an interlaced seniority list of all the Patwaries of the Revenue and Land Records Departments serving in the [Division]
irrespective of the district cadre to which they belong.
(2) Such number of the Patwaries shall be consideredfor the preparation of the interlaced seniority list as are within the zone of consideration for
promotion on the post of Inspector, Land Records, [the selection of candidates for promotion shall be made by a committee consisting of the
following:-
Divisional Commissioner Chairman
District Collector of the Divisional Headquarter Member
Addl. Divisional Commissioner Member-Secretary]
(3) On the basis of the interlaced seniority list soprepared the [Divisional Commissioner] shall select persons on the basis of seniority-cum-merit.
(4) Candidates so selected will be admitted to theQanungo Training School for training:
 Provided that the Patwaries who attain the age of 45 years on the 1st day of January next following the year of selection shall be exempted from
the training and shall be eligible for appointment as Kanoongo or Inspector, Land Records without such training.
PART VA
Application of other Service Rules to Patwaries, Inspectors, Land Records (including Office Qanungos) and Sadar Qanungos.
347-A. Regulation of pay, Leave, allowances. Pension etc.-Except as otherwise provided in these rules, the pay allowances pension, leave and other
conditions of service of the Patwaries, Inspectors Land Records and Sadar Qanungos shall be regulated by the following rules as amended from time
to time:â€
The Rajasthan Travelling Allowance Rules, 1971:
The Rajasthan Civil Services (Unification ofPay Scales) Rules, 1950.
The Rajasthan Civil Services (Rationalizationof Pay Scales) Rules 1956:
The Rajasthan Service Rules, 1951:
The Rajasthan Civil Services (Revised Pay) Rules, 1961:
The Rajasthan Civil Services (New Pay) Rules, 1968:
Any other rules prescribing general conditionsof service made by the appropriate authority under the proviso to Article 309 of the Constitution of
India and for the time being in force.
Any other general order or amendment in theRajasthan Subordinate Services (Recruitment and other Services 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.
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 Patwaries, Inspectors, Land Records and Sadar Qanungos as they apply to other categories of Government
servants:-
The Rajasthan Civil Services (Absorption ofSurplus Personnel) Rules, 1969.
The Rajasthan Civil Services (Substantiveappointment and determination of seniority of temporary employees) Rules, 1972.
The Rajasthan Services (Recruitment bypromotion against vacancies of Earlier Years) Rules, 1972.â€
The scheme of the Rules of 1957 as would be evident from Part-II Chapter-1, Part-IV Chapter-3 & 4 reveals that the Commissioner of the Division is
required to select candidates for training of Inspector Land Records as per procedure laid down in Rules 284 and 301, the Divisional Commissioner
maintains a list of candidates, who have received training and obtained diploma and on a requisition made by the Collector based on the substantive
vacancy in the cadre of Inspector Land Records, the Divisional
Commissioner makes allotment of the senior most person as Inspector Land Records. The provisions relating to seniority of Inspector Land Records is
determined based on Rule 171-A, which initially provided for determination from the date of their continuous officiation on the post of Inspector Land
Records, which has been amended w.e.f. 08.10.2014, whereby Sub-Rule 2 has been substituted providing for determination on the basis of
recruitment year of promotion on the post of Inspector Land Records.
A perusal of the Rule 284 of the Rules of 1957 reveals that selection of candidates for admission to the school in the respective cadre strength is made
by two sources â€" (i) by promotion of Patwaries of the Revenue and Land Records Department on the basis of seniority-cum-merit for 80% of the
vacancies, and (ii) on the basis of a competitive examination restricted to serving Patwaries of Revenue and Land Records Department for 20%
vacancies with the proviso that minimum age of such Patwari is 45 years.Â
Rule 301 of the Rules of 1957 deals with submission of application for selection of candidates by promotion under Rule 284(i) and envisage selection
by a Committee consisting of the Divisional Commissioner, District Collector and Additional Divisional Commissioner with zone of consideration being
five times the number of existing and anticipated vacancies and provides the criteria of seniority-cum-merit for selection and that candidates so
selected will be admitted to the Qanungo Training School for training.
The proviso to Sub-Rule 4 of the Rule 301 of the Rules of 1957 provides that the Patwaries, who attain the age of 45 years on the 1st day of January
next following the year of selection shall be exempt from the training and shall be eligible for appointment as Kanoongo or Inspector Land Records
without such training.
The above two provisions create three kinds of Patwaries eligible for selection to the post of Inspector Land Records â€" (i) Patwaries of Revenue
and Land Records Department by promotion for 80% of the vacancies after undergoing training under Rule 301(4) of the Rules of 1957; (ii) As per
proviso to Rule 301(4), those falling under 284(i) of the Rules of 1957, but who attain the age of 45 years are not required to undergo training and (iii)
20% vacancies on the basis of a competitive examination restricted to serving Patwaries.
The persons falling in category (iii) i.e. serving Patwaries have to undergo competitive examination in terms of the Rule 287 of the Rules of 1957 for
admission to the training school, and under Rule 297, on going through the examination of training successfully while those falling under Rule 284(ii)
are granted diploma under Rule 297, those admitted to training under Rule 301(4) of the Rules of 1957 are granted diploma after undergoing
examination under Rule 304 of the Rules of 1957.
Whereafter the recruitment on the post of Inspector Land Records is made by the Collectors in accordance with provisions of Rule 171 of the Rules
of 1957 i.e. by requisitioning names of diploma-holders based on substantive vacancy in the cadre of Inspector Land Records or vacancies, which are
likely to become substantive and on allotment being made by the Divisional Commissioner based on the seniority, the Collector passes the order of
appointment.
The provision of Rule 298 of the Rules of 1957 does not make any distinction between those selected under Rule 284(i) or Rule 284(ii). A perusal of
the entire Rules, as noticed hereinbefore except for two provisions i.e. Rules 171-A and 299 of the Rules of 1957, do not deal with the aspect of
seniority of those selected on the post of Inspector Land Records.
While provision of Section 171-A(2) initially provided for seniority to be determined from the date of continues officiation on the post of Inspector
Land Records, which has now be amended to the year of recruitment.
Rule 299 of the Rules of 1957 as quoted hereinbefore provides that on completion of one year of probation, the Inspector Land Records shall be
eligible for being confirmed and that promotees of same year shall rank senior to the direct recruits from serving Patwaries of the same year.
Rule 299 of the Rules of 1957 was first introduced vide notification dated 18.08.1971, wherein entire Rules 283 to 299 together with the heading were
substituted. At the relevant time, under Rule 284(i) of the Rules of 1957, selection of candidates for admission to the school was required to be made
60% by direct recruitment of the vacancies and 40% by selection from the staff of Revenue, Land Record, Settlement and Irrigation Department.
At the relevant Time, the provision read as under:-
“299. On completion of two years probation, the directly recruited I.L. RS/Office Qanungos and Assistant Sadar Qanungo will be eligible for being
confirmed. Promotees of the same year will, however, rank senior to the direct recruits.â€
It would be seen that the provision of completion of two years probation and the provision regarding inter se seniority between promotees and direct
recruits was provided as 60% vacancies were to be filled-up in by direct recruitment.
The entire scheme of direct recruitment after first reducing it from 60% to 50% vide notification dated 22.09.1977 and for the first time specifically
providing for selection from the Patwaries of the Land Records Department on the basis of seniority-cum-merit for the remaining 50% of the
vacancies, certain amendments were introduced in other provisions, which pertained to direct recruitment. Further provisions of Rules 347-A and 347-
B of the Rules of 1957 by way of insertion of Chapter V-A were also introduced for regulation of pay, leave, allowances, pension etc. of the
Patwaries and Inspectors Land Records etc.
The provision for competitive exam was introduced for 15% of the vacancies restricted to serving Patwaries vide notification dated 27.06.1981.
Though the provision for selection to 15% vacancies by way of competitive examination was introduced in the year 1981, the provisions for the first
time regulating the said quota, after doing away with direct recruitment, vide notification dated 22.08.1985 were introduced on 28.02.1986, whereby
amendments were introduced in Rules 171, 284 to 302 dealing with the selection procedure by way of competitive examination and by way of
promotion. On account of doing away the quota of direct recruitment, the Rule 299 was substituted by the following Rule:-
“299. Completion of probation.â€" On completion of one year of probation, the I. L. RS/Office Qanungos and Assistant Sadar Qanungo shall be
eligible for being confirmed. Promotees of the same year will however rank senior to the direct recruits from serving patwaries of the same year.â€
A bare look at the above provision would reveal that the provision of probation despite doing away with direct recruitment has been maintained, the
phrase ‘direct recruits’, which existed at the time when other method of selection was direct recruitment, has again been used for the serving
Patwaries, which essentially means those selected through competitive examination and as such, the mere use of word ‘direct recruits’, which
forms part of the Rule only in the form of legacy of the unamended Rule and has no relevance whatsoever on account of deletion of provision for
direct recruitment, cannot make the selections under Rule 284(ii) of the Rules of 1957 in the nature of direct recruitment.
The submissions made in this regard based on use of word ‘direct recruits’ in Rule 299 cannot be accepted, however for giving effect to the
said proviso, it could only mean that those promoted on the basis of seniority-cum-merit against 80% vacancies would rank senior to those who are
selected on the basis of competitive examination against 20% of the vacancies of the same year, nothing more.
So far as the principle issue raised regarding the nature of selection of the petitioners based on competitive examination is concerned, a perusal of the
entire scheme as noticed hereinbefore would reveal that initially alongwith providing promotion to the serving Patwaries, the major portion of the
vacancies were being filled-up in by direct recruitment, however, as noticed, the position kept on changing and ultimately while the selection based on
promotion based on seniority-cum-merit has been enhanced to 80%, the selection through competitive examination restricted to serving Patwaries has
been provided for 20% of the vacancies. The above two sources have been provided under Rule 284, which are essentially two modes of selection
while the 80% posts are to be filled-up in by regular promotions, 20% are to be filled-up in by accelerated promotions and merely because the said
accelerated promotion provides for competitive examination for entry to the training school, cannot and does not change the status of such selection.
Though the streams are different i.e. (i) regular, and (ii) accelerated, the result is the same i.e. the promotion. The very fact that at one stage there
were three sources for selection/appointment, which included the 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 and as such the submissions made in this
regard on behalf of the respondents cannot be countenanced.
So far as the stand of the State on the above subject is concerned, it is very interesting to notice that the State normally has one stand i.e. to defend its
action on whatever grounds available and oppose the plea raised by the petitioners again on whatever grounds available. When the advertisement
dated 28.01.2013 (Annex.-2) was issued, SBCW No.9705/2013 was filed seeking horizontal reservation to the extent of 30% for woman candidates,
to which, a specific response was given by the State that the reservation is provided for the direct recruitment and not for promotion and as the
advertisement pertained to promotions, reservation was not available, which plea was accepted by this Court in the case of Chandra Vishnoi (supra),
however, when the present case came up before this Court, a stand is sought to be taken that the present is not a case of promotion.
It is also relevant to note and an admitted position that the petitioners have been granted benefit of Rule 26-A of the RSR, 1951, which is only
available in case a Government Servant is promoted to a post in the regular-line of promotion in a service cadre or department.
Vacillating stand of the State, based on the bottom-line of defending its action/opposing the petitioners even if the same results in taking a diagonally
opposing stand on the same subject matter cannot be appreciated/countenanced and specially in view of the fact that the earlier stand taken by the
State already stands accepted by this Court in the case of Chandra Vishnoi (supra).
The use of word inksUufÙk in several documents, note-sheets and even in the result dated 31.03.2014 (Annex.-5) indicating declaration of result of
departmental promotion examination and indicating promotion on the post of Inspector Land Records are also reflective of the thinking process
pertaining to the nature of selection under Rule 284(ii) of the Rules of 1957 as such, it is apparent that the selections under Rule 284(ii) of the Rules of
1957 are merely accelerated promotions as distinct from selections by promotions under Rule 284(i) of the Rules of 1957, which are regular
promotions.
In view of the above determination that the selections under Rule 284(ii) of the Rules of 1957 cannot be termed as direct recruitment and that they are
mere promotions though accelerated, the large number of judgments cited by both the sides dealing with the distinction between promotions and direct
recruitment as well as inter se treatment, which ought to be accorded to such distinct selections, have no application to the facts of the present case.
The case of delayed selections i.e. when the selections/promotions cannot be made in the year, in which the vacancies arise, has been dealt with by
this Court in the case of Maqbool Ahmed (supra), wherein relying on the principles laid down in the case of M.P. Agarwal (supra) and H.K.
Hingorani (supra), it was inter alia laid down as under:-
“8.In the face of the existence of Rule 9, it is not permissible to the appointing authority to club together the vacancies occurring during a long
period of time and thereafter to make selections for promotions on all those vacancies together, on the basis of eligibility of all candidates on the date
of making such selections. The provisions of Rule 9 have been specifically inserted in the Rules so that the vacancies which had occurred in the
previous years may not be clubbed together over a number of years, as it is likely to prejudicially affect the rights of the persons who are entitled to be
considered for promotion in the earlier years, according to the eligibility clause.â€
From the various provisions quoted/discussed above, it is apparent that so far as the Rules of 1957 are concerned, the same do not provide for a
situation where the selections under Rule 284 are delayed i.e. the selections are not held in the year in which the vacancies arise. Apparently for
taking care of the said situation by way of amendments made on 22.09.1977, when only selections through direct recruitment and by way of promotion
were available under Rule 284, Rules 347-A and 347-B of the Rules of 1957 were introduced where under any general order or amendment in the
Rules of 1960 was made applicable mutatis mutandis and the Rules of 1972 were made applicable. It would be noticed that the Rules of 1960 have
been repealed and substituted by the Rules of 2001.
A submission made by learned counsel for the respondents that the Rules of 1960 as substituted by the Rules of 2001, would apparently have no
application to the present case, also cannot be countenanced, inasmuch as, by way of introduction of the Rule 347-A(8), any general order or
amendment in the Rules have been made applicable unless any order to the contrary is issued by the Government, apparently no order contrary to the
provisions of the Rule 9/13 of the Rules of 1960/2001, have been pointed out.
Further, as the Rules of 1960/Rules of 2001, provide for, inter alia, dealing with conditions of service in respect of persons appointed to subordinate
service posts in various departments other than cases, where separate Service Rules have been promulgated and as noticed hereinbefore, as to the
treatment of selections made subsequent to the years, in which, the vacancies arose have not been dealt with in the Rules of 1957, the general
provisions provided under the Rules of 1960/Rules of 2001 would apply.
So far as the judgment of this Court in Shivdutt Singh Rathore (supra) is concerned, the said judgment dealt with the issue of ‘recruitment’
and not promotions etc. and as admittedly the elaborate provisions for recruitment are already provided under the Rules of 1957, on account of
occupied field theory and the fact that the Rules of 1960 applies only in absence of Rules for a particular posts, it was held that the provisions
pertaining to the recruitment under the Rules of 1960 and/or other Rules would have no application. The above position would be apparent from the
observation made by the Court in the case of Shivdutt Singh Ratore (supra), which read as under:-
“Rule 347-A deals with service conditions of the employees who are appointed, as how their pay, leave, allowance will be governed. Sub-rule (7)
of Rule 347-A provides for General Conditions of service made by the appropriate authority under the proviso to Article 309 of the Constitution of
India. The Court finds that sub-rule (7) of Rule 347-A will not be attracted in the present case as has been submitted on behalf of the petitioners.
The submission of the learned counsel for the petitioners that by invoking sub-rule (8) of Rule 347-A, the amendment made or general order issued in
the Rajasthan Subordinate Services (Recruitment and other Service Conditions), Rules 1960 will apply mutatis mutandis, is also without any substance.
The Court finds that the post of Patwari is included in the Land Revenue Act and complete mechanism is provided for filling the post. The entire
selection process has been enumerated in Section 273 of the Land Record Rules and as such, application of Rule 347-A cannot be made applicable in
the instant case.
The submission of the learned counsel for the petitioners that Rules of 1960 being repealed, the new Rules of 2001 will govern the field, is without any
substance. The Court finds that the Rules of 2001 or Rule 15 of the Rules of 2014 will not come into play. The post of Patwari is not included and
incorporated in the Rajasthan Subordinate Service (Recruitment and other Service Conditions), Rules 1960 or newly promulgated Rule of 2001.â€
(Emphasis Supplied)
Provisions of Rule 13(3)&(4) and 35(6) of the Rules of 2001 insofar as the relevant reads as under:-
“13. Determination of vacancies.-
(1) ………………………………….
(2) …………………………………
(3) Where a post is to be filled in by morethan one method as prescribed in Rules or Schedule, the apportionment of vacancies, determined under
subrule (1) above, to each such method shall be done maintaining the prescribed proportion for the over-all 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 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 alsodetermine 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.
Eligibility, Criteria and Procedure for Promotion:-
(1) ……………………………………. (2) …………………………………….
(3) ……………………………………. (4) …………………………………….
(5) …………………………………….
(6) If any subsequent year, after promulgatedof these rules vacancies relating to any earlier year are determined under rule 14 which were required
to be filled 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.â€
The said provisions, make it abundantly clear that a duty is cast for determining the vacancies on yearwise basis and where the vacancies relating to
any earlier year are determined the persons who would have been eligible in the year to which the vacancy relates, should be promoted. As such on
account of the applicability of the provisions of the Rules of 1960/Rules of 2001 in terms of Rule 347-A, it was incumbent on the respondents to
determine the yearwise vacancies and thereafter, accord promotion to the eligible candidates in terms of the said Rules.
Besides the above, as the Rules of 1972 also deals with the same position and in fact have been promulgated to take care of a situation where the
recruitment by promotion takes place against vacancies of earlier years. The respondents No. 4 and 5 though apparently have been granted the
benefit of the Rules of 1972, whereby their date of promotion, has been shifted to the year 2010, the said benefit is sought to be denied to the
petitioners by claiming that the Rules of 1972 are applicable only to a case where the DPC meets subsequent to the year when the vacancy arose and
as qua the petitioners, there is no DPC involved, the petitioners would not be entitled to the benefit of provisions of the Rules of 1972.
It is true that the provisions of the Rules of 1972 envisage a situation where the DPC meets to consider promotions pertaining to the earlier years
when the vacancies arose, however, the position of not holding of the competitive examination in the year, in which the vacancy arose and not holding
of DPC in the year, in which the vacancy arose essentially results in a similar situation, inasmuch as, those eligible in a particular year for appearing in
the competitive examination are deprived of appearing in the competitive examination and based on their success, seek selection/promotion and as in
the present case, the competitive exam is held after three years pertaining to the vacancies of the year 2008-09, 2009-10 and 2010-11, those eligible in
the year 2008-09 essentially stand on the same footing as that of those deprived of the promotion on account of non-holding of meeting of
Departmental Promotion Committee.
Submissions have been made by learned counsel for the petitioners that the provisions of the Rules of 1972 deserves to be read down, whereas
counsel for the respondents have emphasized that golden rule of interpretation has to be applied and the Rules of 1972 can only be made applicable to
filling-up of vacancies of earlier year through DPC.
The provisions of the Rules of 1972 have been introduced essentially to neutralize the fortuitous circumstances, where for any reason, the DPC cannot
meet in a particular year so as to ensure that those eligible against the vacancies of the previous year are not deprived of their due as and when the
DPC meets. The situation as already noticed hereinbefore of those eligible for appearing in the competitive exam meant for granting accelerated
promotion does not stand on a worse footing as not holding of competitive exam in the year, in which the vacancies arose is as much fortuitous as not
holding of the DPC meeting and, therefore, the spirit of provisions of the Rules of 1972 deserves to be applied to the present case as well alongwith
the Rules of 1960/Rules of 2001.
The judgments cited by the learned counsel for the respondents in the case of Parbhani Z.L.B.M.V. Operators Sangh (supra) and Institute of
Chartered Accountants of India (supra), pertaining to the principles of interpretation, though do not admit of any argument, but in the circumstances of
the present case, have no application.Â
Coming to the factual position in the case, from the notesheet (Annex.-3), it is apparent that the competitive exam, 2011 was held for 67, 26 and 62
vacancies pertaining to the years 2008-09, 2009-10 and 2010-11 respectively. The mere fact that the respondents chose not to indicate the said
vacancies in the advertisement and issued a combined advertisement by itself cannot obliterate the above fact situation.
The submissions made by the State that the petitioners having competed based on the advertisement, wherein the vacancies were not bifurcated,
cannot now claim bifurcation of the vacancies has been noticed only to be rejected. The fact that the State chose to issue advertisement by clubbing
the vacancies of several years together by itself cannot arm the State to raise the contention as noticed and simultaneously cannot deprive the
petitioners from questioning the action of the State as without appearing in the examination, probably the petitioners would not have any locus to
question the validity of the said action of the State.
Having undertaken the entire exercise hereinbefore, it may be noticed that the same apparently is of limited application now as by notification dated
May 26, 2015 the Rules of 1957 have again been amended wherein existing Rule 284 has been substituted by a new Rule providing for admission to
the School from the Patwaries of Revenue and Land Records Department who are promoted on seniority-cum-merit basis, further provisions of Rules
285 to 294 and 296 to 299 have also been deleted. The said amendments would mean that the existing provisions of selection by way of competitive
examination restricted to serving Patwaries have been completely done away with.
In view of the above discussion, the writ petition filed by the petitioners is allowed. The action of the respondents in not assigning the year of
promotion to those who were selected/ appointed including the petitioners pursuant to the advertisements dated 17.06.2011 and 28.01.2013 against the
vacancies of the years 2008-09, 2009-10 and 2010-11, is quashed and set aside. It is directed that those selected/appointed under the Rule 284(ii) of
the Rules of 1957 by way of competitive examination restricted to serving Patwaries are entitled to be promoted against the vacancies of the
respective years subject to their eligibility.
Consequently, the respondents are directed to place the persons selected/appointed in the final seniority list issued on 12.05.2016 (Annex.-11) against
their respective recruitment year of promotion with all consequential benefits.
The exercise be undertaken by the respondents within a period of six weeks from the date of this order.
No order as to costs.