Ramesh Pathak and Others vs The State of Bihar and Others

Radha Mohan Prasad, J.—In all the four writ applications the reliefs and the questions involved are common, as such, with the consent of the parties, they have been heard together and are being disposed of by this common judgment/order.

The Petitioners in all the four writ applications have assailed the validity of Office Orders No. 5347 and 5530 dated 23rd August, 1995 and 1st September, 1995 respectively, issued by the State Transport Commissioner, Bihar (Respondent No. 3), contained in Annexures 5 and 7 to the first writ case respectively hereinafter Respondents No. and annexures are referred to from the first writ case (C.W.J.C. No. 7690 of 1995) unless mentioned otherwise and the panel prepared pursuant thereto for appointment by promotion to the posts of Enforcement Sub-Inspector and also Office Order No. 364 dated 4.9.1995, contained in Annexure 8, appointing Respondents No. 4 to 15 on the aforesaid posts. Further, the Petitioners have prayed for issuance of a writ in the nature of mandamus commanding Respondent No. 3 to prepare a fresh panel for appointment in accordance with rules, contained in Office Order No. 2130 dated 21st March, 1991 issued by Respondent No. 3, and make appointment by promotion to the aforesaid posts accordingly.

In short, the relevant facts are that the Petitioners in the first writ case (C.W.J.C. No. 7690 of 1995) are clerks in the Transport Department. Petitioner in the second writ case (C.W.J.C. No. 7321 of 1995), who was appointed as Bill Clerk in the year 1992 and passed the Accounts Examination in August, 1995, is presently working in the office of Respondent No. 3. The Petitioner in the third writ case (C.W.J.C. No. 8804 of 1995) is working on the post of Peskhar-cum-Karyalaya Lipik in the office of the State Transport Appellate Tribunal and the Petitioner in the fourth writ case (C.W.J.C. No. 1177 of 1996) was appointed as Typist in the Transport Department in the year 1975 and is presently posted in its Headquarters Office.

By order dated 4.5.1990, besides other existing posts of Enforcement Sub-Inspector, nine, additional posts of Enforcement Sub-Inspector in the same cadre were created in the scale of Rs. 1320-2040/-, photo copy of the said order dated 4.5.1990 has been annexed as Annexure 1. Respondent No. 3, vide order No. 2130 dated 21st March, 1991 (Annexure 2) framed the rules for filling up all the posts of Enforcement Sub-Inspector by promotion from amongst the staff working as Investigators, Typists and Accountants in the headquarters of the Department and also from amongst the clerks working in the Subordinate Muffasil Offices of the Transport Department. In the said rule, it was clearly laid down that the appointments were to be made on seniority-cum-inerit basis. With regard to the qualification, it was laid down that the candidates must be of good character and should not be over 45 years of age and they must be physically and mentally fit and not suffering from any disease. The minimum height of the candidates was prescribed as 5''3" and measurement of chest as 30" (Unexpanded). This rule was issued in supersession of all earlier orders on the subjects.

It is stated that after creation of the posts of Enforcement Sub-Inspector and framing of the aforesaid rules, the matter for appointment was processed from amongst the eligible candidates and finally a list of 30 candidates was prepared after roster clearance from the Department of Personnel and Administrative Reforms, Government of Bihar (hereinafter referred to as ''the Department'') which, according to the Petitioners, would be clear from the minutes of the Selection Committee dated 3.8.1991, a photo copy whereof has been annexed as Annexure 3. However, out of the panel prepared by the Selection Committee, only one amongst them was appointed and as none other was appointed, three persons filed C.W.J.C. No. 10778 of 1992 and one Dhannaji, who is Respondent No. 13 and whose names had figured in the said panel but were not appointed, filed C.W.J.C. No. 12660 of 1992 praying for issuance of a writ in the nature of mandamus commanding Respondents No. 1 to 3 to consider their cases for appointment on promotion to the posts of Enforcement Sub-Inspector, according to the panel prepared.

Learned Counsel appearing for the Petitioners in the said writ applications, besides making various other submissions on merits, urged that the Petitioners are entitled for consideration of their cases by promotion against the vacancies available, as per the existing aforementioned rules, contained in the aforementioned Government decision, which is Annexure 2 herein and submitted that the Respondents may be directed to consider their cases along with other eligible candidates for filling up the existing vacancies, 15 in number, by promotion in accordance with the said rules.

On the basis of the statements made in the counter affidavit filed on behalf of the Respondents in both the cases in which it was stated that necessary steps were being taken for preparation of the panel afresh and that the cases of the Petitioners would be considered in accordance with law for inclusion in the said panel as also there being no dispute that Annexure 2 herein was the only rules for filling up such vacancies, it was submitted by the learned Counsel for the State that a direction could be issued to the Respondents to fill up the existing vacancies in terms of the said rules.

Accordingly, the said writ applications were disposed of on 25th August, 1994, vide Annexure 1 to the second writ case, with a direction to Respondents No. 2 and 3 to take all necessary steps to prepare a panel afresh in accordance with the aforesaid rules and fill up the vacancy within two months from the date of receipt/production of a copy of the said order. On the apprehension expressed that one of the Petitioners may be deprived of the benefit as he had crossed the age limit during the pendency of the writ applications, this Court directed that the cases of the Petitioners be considered as per their position on the date of filing of the writ applications.

Thereafter, in compliance of the said order of this Court, an advertisement was published h the daily "The Hindustan" dated 4.8.1995 (Annexure 4) expressly stating that according to the High Court''s direction, new panel is to be prepared and those who fulfil the qualification as per the aforementioned rules, may apply through proper chanel with full bio-data. Qualification for the post, as per the aforesaid rules, was reiterated in the advertisement that the candidates must be of good character and they should not be over 45 years of age and must be physically and mentally fit and free from any disease. The minimum height was also prescribed as 5''3" and the measurement of chest as 30" (Unexpended). It was also mentioned in the said advertisement that the appointments were to be made by promotion and that the panel of the intending candidates would be prepared on the basis of the seniority-cum-merit and the appointments would be made from the said panel on the basis of the seniority.

However, later Respondent No. 3 issued another Office Order No. 3347 dated 23.8.1995 (Annexure 5) purporting to be pursuant to the decision of the Selection Committee in the garb of laying down guidelines for preparation of the panel of the suitable candidates but, in fact, according to the Petitioners, it laid down altogether new qualification and guidelines over and above those prescribed under the aforesaid rules dated 21.3.1991 (Annexure 2). The Selection Committee on the basis of the said guidelines and qualification prepared a panel on 1.9.1995 which contains the names of Respondents No. 4 to 15 who are claimed to have been found suitable for appointment on promotion after obtaining the roster clearance from the Department, vide office order contained in Memo No. 5530 dated 1.9.1995, a photo copy whereof has been annexed as Annexure 7. Consequent upon the selection and preparation of panel, Respondents No. 4 to 15 were given appointment on promotion by Respondent No. 3, vide office order contained in Memo No. 364 dated 4.9.1995 (Annexure 8), on the condition that the same would be subject to their examination by the Medical Board and issuance of medical fitness certificate about them.

As already stated above, the Petitioners have assailed the validity of the guidelines (Annexure 5), the panel, contained in office order dated 1st September, 1995 (Annexure 7) and the appointment by promotion of Respondents No. 4 to 15, contained in office order dated 4th September, 1995 (Annexure 8).

It is contended that the Selection Committee absolutely had no jurisdiction to override the rules (Annexure 2) by issuing impugned office order contained in Annexure 5 laying down the new qualifications and guidelines from which it is manifest that they were laid down quite arbitrarily and with oblique motive to help the favourites and defeat the superior claims of deserving senior candidates, including the Petitioners. According to the Petitioners, there is no rationale to lay down fresh qualifications and guidelines. The jurisdiction of the Selection Committee to frame guidelines (Annexure 5) has also been challenged. As regards the reference of letter dated 16.12.1992 of the P & A Department for framing the said guidelines, it is contended that the same cannot be made basis as it relates to the rules and guidelines for appointment on promotion to Class III posts from amongst the candidates who belong to Class IV. Moreover, when written examination is not prescribed, appointment on promotion has to be made only on the basis of the seniority and minimum qualification Accordingly, it is contended that in the present cases, the appointments on promotion to the posts of Enforcement Sub-Inspector are to be made only on the basis of seniority and minimum qualification as no written examination is prescribed.

In paragraph 15 of the first writ case it is alleged that the earlier panel prepared in the year 1991, which was allowed to lapse, was prepared strictly in accordance with the rules, contained in Annexure 2, but later new guidelines were framed which lead to only conclusion that the Selection Committee has exceeded its jurisdiction and abused its authority while preparing another panel for appointment, as per the new guidelines, which vitiates the entire process. It is also contended that amongst the candidates selected in the panel and eventually ordered to be appointed, six, namely, Respondents No. 4, 6, 8, 9, 11 and 13, belong to general class, two, namely, Respondents No. 5 and 10, belong to Scheduled Caste, three, namely, Respondents No. 7, 12 and 15, belong to extremely backward class and Respondent No. 14 has been described to belong to backward class. It is, thus, contended that the reservation policy being not applicable to extremely backward and backward class candidates in the matter of appointment on promotion as per the guidelines contained in letter dated 30.6.1983 of the Department (Annexure 9), Respondents No. 7, 12, 15 and 14 who belong to extremely backward and backward class had been illegally and arbitrarily selected and given the impugned appointment by promotion treating them to be a group of reserved category. It is alleged that in the year 1991 when the panel was prepared and roster clearance was also taken no reservation whatsoever was made for such reserved classes which clearly demonstrates the manipulation and malafide action of the Respondents.

As regards Respondent No. 11, it is alleged that he has been allotted additional 5 marks for Law degree which he did not possess, besides that he has been allotted 12 marks for three years confidential report from 1.1.1991 to 30.11.1993 which was recorded by Shri R.N. Pandey, who was posted as D.T.O., Patna for a period of four months from 16.4.1992 to 11.8.1992 which is obviously very erroneous consideration vitiating his appointment. In addition, it is also alleged that the letter dated 6.9.1984 of the then D.T.O., Patna Shri R.N. Mohanthy, who had reported Respondent No. 3 about the forgery committed by Respondent No. 11, has completely been ignored and the Respondent No. 11 has also been given illegal advantage on the basis of his chest measurement on account of his obesity, though his height is less than the prescribed one.

As regards Md. Yunus (Respondent No. 12), it is alleged that he was not at all eligible for appointment as he was not an employee of the Transport Department or its subordinate offices. According to the Petitioners, he belonged to the Police Department from where he was working in the Transport Department only on deputation. It is also alleged that the application of Lakshmi Prasad (Respondent No. 14) was received beyond the prescribed date, still his petition was entertained and he was eventually selected and appointed. With respect to Arjun Prasad (Respondent No. 15), it is alleged that he was given additional mark on chest measurement due to advantage of his obesity though he was also beyond the zone of consideration being of lesser height than that was prescribed under the rules. It is, thus, contended that the entire process of Selection and appointment on promotion of Respondents No. 4 to 15 was vitiated in law and are liable to be quashed.

Counter affidavits have been filed in only first three writ cases. No counter affidavit has been filed in the fourth case. In the first case separate counter affidavits have been filed on behalf of Respondent No. 14, Respondents No. 4 to 12 and 15, who are all private Respondents and Respondents No. 1 to 3, who are all official Respondents. In the second case counter affidavits have been filed on behalf of Respondents No. 1 and 1 to 8, who are all official Respondents and Respondents No. 9 to 17 and 20, except private Respondents No. 18 and 19, namely Shri Dhannajee and Lakshmi Prasad, who are all private Respondents. In the third case counter affidavits have been filed on behalf of Respondents No. 2 and 3, who are official Respondents and Respondents No. 4 to 12 and 15, who are all private Respondents, except Respondents No. 13 and 14, namely, Shri Dhannajee and Lakshmi Prasad.

In the counter affidavit filed on behalf of the official Respondents No. 1 to 3 in the first case, the aforementioned facts as have been noticed from the writ petition have not been disputed. However, with regard to the guidelines/instruction, contained in Annexure 5, it is stated that an Enquiry Committee was constituted by the Respondent No. 3 for scrutiny and examination of the bio-data, qualification and physical fitness etc. of each candidate and that it was only for the help of the Enquiry Committee to objectively evaluate the comparative weightage of the contending candidates and on that basis, a merit list was prepared and suitable candidates were appointed as per the roster point after having been cleared by the P & A Department. It is asserted that Annexure 5 does not provide a new rule neither it sets new qualifications for selection for the posts of Enforcement Sub-Inspector. It is stated that Annexure 5 was issued as per the circular issued by the Department which provides for giving 60 weightage for seniority and 40 weightage for physical, academic and character qualifications and only to objectively rationalise the ratio of said weightage, a guideline for objectively evaluating the Petitioners was issued by the State Transport Commissioner. According to the Respondents, in this manner the transparency in the selection procedure was maintained and the guideline was for the help of the members of the Enquiry Committee. It is stated that the final selection was considered by the Selection Committee, headed by the State Transport Commissioner, as per the prescribed rules. Further, it is stated that it is not a promotion. As such the Government rule for reservation for Backward Classes is applicable in this case and has rightly been applied. The roster clearance was also obtained from the Department and, as such, the entire allegation is baseless and unfounded. In paragraph 17 it is stated that no marking for Law degree was given to Shri Tribhuwan Rai (Respondent No. 11) nor any departmental proceeding is pending against him and the allegation in that regard has been denied. As regards the physical measurement, it is asserted that it was thoroughly checked and on any complaint the Enquiry Committee took the measurement of all such contenders.

In paragraph 18 of the said counter affidavit it is stated that from the examination of the records of the office it transpired that Respondent No. 12 is an employee of the Transport Department since long. As regards Lakshmi Prasad (Respondent No. 14), it is stated that his application was received by the Deputy Commissioner-cum-Secretary, Regional Transport Authority, Ranchi within the prescribed time and the receipt was produced before the S.T.C. and, as such, his application was considered. As regards Arjun Prasad (Respondent No. 15), it is stated that he is not below the minimum prescribed height and chest.

In the other counter affidavits also, more or less, similar stands have been taken, besides contending that after the appointment some of the concerned Respondents were sent for training and after completion of one month''s judicial training and three months'' police training and facing medical examination by Medical Board, they had been appointed and posted as Enforcement Sub-Inspector and have been working in that capacity and drawing their salary as well. In the counter affidavit filed on behalf of Respondent No. 14, it is, however, stated that it is not a case of promotion, rather is a case of direct appointment and all the Respondents appointed had been posted at different places and are working to the best satisfaction of their high officials. It is also contended that the writ Petitioners cannot challenge the criteria to which he has submitted to the jurisdictions and passed through all the process only because they have not been selected. The criteria was changed to help certain candidates have been denied.

Learned Counsel for the Petitioners contended that after the advertisement (Annexure 4) was issued specifically laying down the criteria, Respondent No. 3 exceeded its jurisdiction by laying down altogether new qualifications and guidelines over those which were prescribed in the rule, contained in Annexure 2, and also notified in the advertisement (Annexure 4). In other words, according to them, once the advertisement was issued laying down the conditions for selection/appointment by promotion and the process had accordingly commenced, the official Respondents had no jurisdiction to make any alteration in the same without issuing fresh advertisement. Further, it was contended that the guidelines, contained in Annexure 5, on the face of it is malafide as a total of 73 marks maximum is to be given on seniority and a total of 18 marks has been fixed for the academic qualification of a candidate and 12 marks on the quality of confidential which were against the rules, contained in Annexure 2. It was also contended that awarding of 2 marks for every inch to those having height over the prescribed one of 5''3" with a maximum of 10 marks and also for awarding additional 1 mark for having every additional inch of the prescribed unexpanded chest were wholly arbitrary and contrary to the qualifications laid down in the rules (Annexure 2) as well as the advertisement (Annexure 4). Learned Counsel contended that as per the original rule, appointments by promotion were to be made on the basis of the seniority-cum-merit whereas, as per the subsequent guidelines (Annexure 5), the matter was made upside down and the selection of the candidates was to be made on merit-cum-seniority basis, despite the clear direction of this Court given while disposing of the earlier two writ applications to take all necessary steps to prepare a panel afresh in accordance with rules, contained in the Government decision (Annexure 2) and fill up the aforesaid vacancies accordingly. It was also submitted by the learned Counsel for the Petitioners that in the case of appointment on promotion, no reservation is provided for the Backward Class and extremely Backward Class and, as such, the impugned appointments by promotion made from amongst the said categories on the basis of the roster are wholly illegal and arbitrary and the same are liable to be quashed on this ground alone. Further, it was contended that the appointments of Respondents No. 11, 12, 14 and 15 are liable to be quashed as they are either not eligible or fit for the reasons aforementioned, as detailed in paragraphs 21 to 24 of the first writ petition.

Learned State counsel had made submissions according to the pleadings made in paragraphs 13 to 15 of the counter affidavit filed on behalf of Respondents Nos. 1 to 3 in the first writ case, about which I have already mentioned while dealing with the said counter affidavit. It was submitted by them that there is no infirmity in the guidelines (Annexure 5) and the entire appointment process was strictly followed as per the rules/instruction, contained in Annexures 2/5. In fact, according to him, for appointments on the posts of Enforcement Sub-Inspector, the criteria laid down in the guidelines are very much relevant keeping in mind the nature of work they are required to perform.

Learned Counsel appearing for the concerned Respondents in the third and fourth cases contended that the writ applications by and on behalf of the Petitioners are not maintainable inasmuch as they had applied for the post in question and had undergone the process of selection also. As such, having failed to be selected, they cannot challenge the selection process. It was also contended that the Petitioner in the third case (C.W.J.C. No. 8804 of 1995) was called for interview and was found unsuccessful and the Petitioner in the second case (C.W.J.C. No. 7321 of 1995) was not eligible for consideration to the post fn question, in view of the eligibility clause, contained in Annexure 2. According to the learned Counsel, the principle that a person having participated in selection and having failed is not entitled to challenge the selection is well settled. It is also well settled that a person who is not eligible for appointment, a writ application filed on his behalf is not maintainable. In support of this learned Counsel placed reliance on a catena of decisions in the cases of Madan Lal and Others Vs. State of Jammu and Kashmir and Others, , Banarsi Das and Others Vs. The State of Uttar Pradesh and Others, , Rai Shivendra Bahadur Vs. The Governing Body of the Nalanda College, and Smt. Manju Jha Vs. The State of Bihar and Others .

It was submitted by them that the guidelines, contained in Annexures 2 and 5, having been issued by the same authority laying down the eligibility criteria for selection and consideration, there is no infirmity in making the selection and appointment on that basis. It was also submitted that the promotion avenues of Typist, Accountant, Investigator or Clerk are different from that of Enforcement Sub-Inspector. According to them, under the relevant rules, avenue of promotion of the Petitioners who belong to different cadres is not to the posts of Enforcement Sub-Inspector. Thus, it was submitted by the learned Counsel that the post of Enforcement Sub-Inspector cannot be said to be a promotional post for the persons in the respective cadres who are eligible for selection to the said post under Annexures 2, 4 and 5. According to them, in fact, the very eligibility Clause indicates that the persons from different cadres are considered only for making application for the said post and Annexure 5 lays down the process of determination of ability, fitness and seniority which are the criteria envisaged under Annexure 2 itself wherein it has been provided that the appointments shall be made from among the limited class of persons on the basis of seniority, ability, age, physical fitness and of good character. According to them, for awarding marks for determining the same as prescribed in Annexure 5 is quite reasonbale and in the absence of the same, the validity of the process of selection would have been challenged on the ground of vagueness as it would have given the scope for manipulation by the authorities constituting the Selection Team. Thus, according to the learned Counsel for the Respondents, Annexure 5 makes the process of selection transparent, objective and free from arbitrariness; otherwise the same would have suffered from the vice of Articles 14 and 16 of the Constitution of India.

In regard to the question of reservation given in favour of Backward Classes it was contended that the post in question being not within the promotional avenues of the Petitioners and the appointments on them were to be made by direct recruitment and not covered by the mode relating to promotion in a new cadre which has been constituted under Annexure 2 to the writ petition, the reservation for the persons belonging to the Backward Class was also permissible and challenge on that account is not sustainable. It was also submitted that from Annexure 7 dealing with the roster clearance, it would be seen that at points Nos. 29, 30 and 31 posts are reserved for different categories have not been filled up as no person was found fit and suitable and persons belonging to unreserved categories were not availiable which would be evident under serial No. 15, point No. 31 point No. 31 of the reservation roster. Thus, according to the learned Counsel for the Respondent, the writ Petitioners belonging to unreserved category have not been found fit and as such, the posts are still vacant as no person belonging to general category was available for the appointment to the said point. Learned Counsel has placed reliance on the decision of this Court in the case of Smt. Manju Jha v. State of Bihar (Supra) on the question that the Petitioners being unsuccessful candidates cannot challenge the validity of appointment on the question of reservation.

Mr. Devendra Kumar Singh, learned Counsel appearing for Respondents Nos. 14 and 19 in the first writ case submitted that the allotment of preferential points as per their academic qualification for selection of better hand without changing the basic rule is not arbitrary and illegal. In this regard he placed reliance on a decision of the Supreme Court in the case of Anzar Ahmad v. State of Bihar reported in 1993(2) PLJR (SC) 134.

Mr. Anjani Kumar Sinha, learned Counsel for Respondent No. 13 (Dhannajoe), besides the aforementioned general submission also submitted that the appointments have been made pursuant to the direction given in the earlier two cases only after the contempt case was filed against the official Respondents, bearing M.J.C. No. 2064 of 1994 in this Court. Further, it was submitted by him that the appointment of this Respondent was not made under any reservation policy rather it was made purely on the basis of seniority-cum-merit.

I do not find any substance in the preliminary objection raised by the learned Counsel for the Respondents that the Petitioners having participated in the selection and failed are not entitled to challenge the selection and thus, the writ applications are not maintainable at their instance. It cannot be disputed that by now it is well settled that the candidate taking calculated chance and appeared at the interview/test but declared unsuccessful cannot challenge its validity on the ground of the same being unfair as has also been held by the Supreme Court in the case of Madan Lal v. State of J. & K. (supra). But the facts of the present cases are quite different. The rule, contained in Annexure 2, was circulated for information to all concerned. The qualifications mentioned therein were also advertised while inviting applications from the eligible candidates, vide Annexure 4. The said advertisement (Annexure 4) was issued on 4th August, 1995 and the candidates were required to submit their applications within seven days from its publication through their heads of the office along with the full bio-data. It was clearly indicated in the said advertisement that if the applications are received after the prescribed time, the same would not be considered. The Petitioners and others submitted their applications within the prescribed time. However, as per the alleged decision taken in the meeting of the Selection Committee held on 14.8.1995, the impugned office order, contained in Annexure 5, laying down fresh guideline was issued on 23.8.1995 without notifying the same in any newspaper or even circulating it to the concerned authorities for information to all concerned as was done while issuing the rule (Annexure 2). From Annexure 7 it appears that the panel was prepared on 31st August, 1995 and after roster clearance it was finalised on 1.9.1995, vide Annexure 7. The appointments of concerned Respondents were also made on 4th September, 1995, vide Annexure 8.

It is not the case of the Respondents that the fresh guideline issued vide Annexure 5 with respect to the qualifications originally prescribed, vide Annexures 2 and 4, was within the knowledge of the Petitioners. As such, in my opinion, the principle that the candidates taking calculated chance and appearing at oral interview/test but declared unsuccessful cannot challenge the same as unfair, cannot be applied to the facts of the present cases.

From the pleadings and the submissions aforementioned, the questions for consideration in all the four writ petitions, mainly, are (1) whether the Respondent authorities were justified in issuing the guidelines, contained in Annexure 5; (ii) whether the vacancies in question of the Enforcement Sub-Inspectors were to be filled up by direct appointment or by promotion; and (iii) as to whether the reservation policy in favour of Backward and Extremely Backward Class could be adopted in filling up the said vacancies.

After going through the rules, contained in Annexure 2, and the advertisement, contained in Annexure 4, there cannot be any doubt that the filling up the vacancies on the posts of Enforcement Sub-Inspector were not to be made by direct appointment inasmuch as both the said documents clearly mentioned that the appointments to the said post were to be made by promotion. I wish to quote here the relevant words mentioned in this regard in the said Annexures 2 and 4 "Pronatti Duwara Niyukti Hetu Ek panel Taiyar Kiya Jana Hai".

It may be true that the said vacancies of the Enforcement Sub-Inspector may not be the avenue of promotion for the said posts from whom the applications have been invited, but the competent authority decided to fill up the said post by promotion from amongst the persons working in the department itself in different capacities mentioned therein. Moreover, had there been any decision to fill up the said vacancies by direct recruitment it could not have been constitutionally confined only to the departmental candidates.

In the supplementary counter affidavit filed on behalf of Respondents No. 1 to 3 the said Respondents have tried to explain the circumstances under which the word ''Promotion'' was used in the advertisement (Annexrue 4). It is stated that the term ''Promotion'' was used in the sense that the post of Enforcement Sub-Inspector is a superior post and the persons amongst whom it was to be filled up were working on a lower post, that is to say, on the posts of Clerk, Typist, Investigators and Accountants. As such, it would be deemed to be promotion as used in common parlance. In this connection, they have also tried to place reliance on the observation of the Finance Department, contained in Annexure A to the said supplementary affidavit. Further, it is stated that the words ''Promotion'' and ''Appointment'' in paragraph 15 of the counter affidavit have not been used un qualified rather these words may mean circumstantially'' in the light of the element of merit imbibed in the rule and also in the light of the nature of the post of Enforcement Sub-Inspector.

I am unable to accept the said explanation. By now it is well settled that the documents alone must be looked into for the reason of the order. Reference in this connection can be made to the decisions in the cases of Panna Lal v. Nihai Chand AIR 1922 PC 46, Somar Puri Vs. Shyam Narain Gir and Others, and Mohanlal Sohanlal Vs. Pannalal Jankidas, . The Apex Court in the case of Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, , held that an order giving reasons cannot be supplemented by supplementary affidavit or any other affidavit. In the present cases, there is no ambiguity in Annexures 2 and 4 which clearly mention that the appointments are to be made by promotion.

By now it is well settled that for filling up the vacancies by direct appointment, as per the rule and/or the terms of the advertisement, all persons eligible will be entitled to offer their candidatures and in case of denial of such opportunity to any person who fulfils the requisite qualification would be violative of Articles 14 and 16(1) of the Constitution. Reference in this connection may be made to a decision of the Supreme court in the case of Gazula Dasaratha Rama Rao Vs. The State of Andhra Pradesh and Others, . Further, from Annexures 2 and 4 it is evident that on receipt of the applications from the intending candidates fulfilling the required qualifications mentioned therein their cases are to be considered on the basis of the seniority-cum-merit and not on the basis of the merit-cum-seniority and, further, their appointments have to be made by promotion as per their position in the seniority. Thus, it is evident that the vacancies of the Enforcement Sub-Inspector are promotional post and not even selection post much less a post to be filled by direct appointment, as contended by the learned Counsel for the Respondents. As such, there is no substance in the submission of the learned Counsel for the Respondents that the rule of reservation will apply to the present cases and that there is no illegality committed in making the impugned appointments by following the roster relating to rule of reservation in the case of Backward and Extremely Backward Classes. The Government letter dated 30.6.1993 (Annexure 9) laying down the guidelines issued by the State Government in the Department clearly provides that there shall be no reservation for Backward and Extremely Backward Classes in appointment made by promotion. From Clause 4 of the said governmental decision it is clear that the Backward Class, Economically Backward Class and women have been given the benefit of reservation in Government service only in the case of direct recruitment and not in the case of promotion. Thus, in my opinion, the official Respondents in following the roster with respect to the backward Class and Extremely Backward Class in making the impugned appointments by promotion have acted contrary to the rules of reservation, contained in Annexure 9 and thus, such appointments cannot be sustained.

As regards the validity of the subsequent guidelines, contained in Annexure-5, in the supplementary counter affidavit filed on behalf of Respondents No. 1 to 3 it is stated that in order to adjudge the seniority of different groups in view of their merit it was felt necessary to evaluate their position with regard to the length of service. Accordingly 75 marks was earmarked for full length of qualifying service to be 27 years i.e. 75/27 = 2.78 (rounded off) marks for each qualifying year of service. According to the said Respondents, the said guideline was issued as if a check list to the members of ''Janch Samiti'' to avoid arbitrary use of their discretion and to bring out transparency and impartiality in selection procedure and the same is supplementary and not contrary to the criteria as mentioned in the advertisement (Annexure 4).

I am unable to accept the said stand of the Respondent. It is well settled that after the commencement of the process of selection as per the existing rule/guidelines it has to be completed pursuant thereto. Amendment of rules meanwhile, changing the eligibility criteria cannot apply to those for whom the commencement of selection process already had taken place by issuing the advertisement and inviting applications.

The Supreme Court in the case of P. Mahendran and others Vs. State of Karnataka and others, held that the amended rule could not affect the existing rights of those candidates who were being considered for selection as they possessed the requisite qualifications prescribed by the rules before its amendment. Further the Supreme Court said that the construction of amending Rules should be made in a reasonable manner to avoid unnecessary hardship to those who have no, control over the subject-matter. It was also held that it is true that a candidate does not get any right to the post by merely making an application for the same, but a right is created in his favour for being considered for the post in accordance with the terms and conditions of the advertisement and the existing recruitment rules. If a candidate applies for a post in response to advertisement issued in accordance with the recruitment rules, he acquires the right to be considered for selection in accordance with the then existing rules and this right cannot be affected by amendment of any rule.

Thus, once the advertisement was issued as per the existing rule, contained in Annexure 2, the criteria laid down therein were to be followed and not as per the one, contained in Annexure 5. In fact, in my opinion, Annexure 2 did not require any clarification as claimed/pleaded by the Respondents.

The first eligibility condition in the advertisement (Annexure 4) was that the applicant must be of good character for which he was required to produce the character certificate from the concerned Head of the Office. The second condition was that the applicant must not be over 45 years of age on 30.8.1995. The third condition was that the candidate must be physically and mentally sound and should not be suffering from any disease for which he was required to produce the certificate from the Civil Surgeon of the district where he is posted. The last condition was that the candidate should be at least 5''3" in height and the measurement of the chest should be 30" (unexpanded).

It is not the case of the official Respondents that these Petitioners did not fulfil the said eligibility criteria. If they fulfilled the said eligibility criteria, then I do not find any difficulty in considering their cases for appointment on the basis of seniority-cum-merit. In the matter of seniority, by now it is well settled that in the absence of any rule, the length of service is to be taken into consideration for the purpose of fixation of seniority. Reference in this connection may be made to the decision of the Supreme Court in the case of G.R. Luthra, Additional District Judge, Delhi Vs. LT. Governor, Delhi and Others, . Thus, there could not be any difficulty in fixation of seniority of the candidates though they might be from different cadres in the Department as the total length of their service on the post, in my opinion, will suffice to determine their inter se seniority.

Thus, I do not find any justification and/or rationale in fixing 73 as the maximum marks to be awarded'' for fixation of seniority to a candidate on the principle mentioned therein. In fact, there is no need for it at all in view of what I have held above. Vide Annexure 5 the Respondents authorities have also deviated from the eligibility criteria by fixing different marks with respect to the qualifications possessed by the candidates and for the confidential remarks given to them, which, in my opinion, are also totally a new criteria not envisaged in the rule (Ann-A) nor in the advertisement (Ann-4). The Respondent authorities have also considered to give weightage which could not have been laid down after the criteria in that regard were already laid down in the advertisement issued pursuant to the existing rules, contained in Annexure 2, as that would amount to affecting the existing rights of the candidates who were being considered for appointment by promotion and possessed the requisite qualifications prescribed in the rule and the advertisement issued pursuant thereto before changing them, vide annexure-5.

The Supreme Court in the case of Madan Lal v. State of J. & K. (supra), while considering the scope of Rule 10(2)(b) of Jammu and Kashmir Civil Services (Judicial) Recruitment Rules (1967) laid down that the object of viva-voce examination provided in the said rule is to assess the candidates'' intelligence, general knowledge, personality, aptitude and suitability and does not provide for any separate assessment of marks for candidates at viva-voce examination faculty-wise, that is on intelligence, general knowledge etc. As such, it was held that to split up the marks on various subheads at oral interview of such a candidate may not be strictly, necessary unless the concerned rule regulating such a viva-voce test expressely provides to that effect.

The aforesaid case before I he Supreme Court was relating to direct appointment in which it might be essential to judge the overall personality test of a candidate, yet it was held that to split up (he marks on various sub- heads at oral interview of such a candidate may not be strictly necessary unless the concerned rule regulating such a viva-voce test expressly provides to that effect. In the present cases, the appointments to the vacancies are to be made by promotion. As such, in my opinion, spliting up marks on various sub-heads were all the more not at all necessary especially when the rule, contained in Annexure 2, and the advertisement, contained in Annexure 4, did not provide for that. Considering the peculiar facts and circumstances of the present cases, I do not find any rationale for splitting up the marks on the aforementioned first three heads, especially when the rule and the advertisement, contained in Annexures 2 and 4 respectively, did not provide and/or felt any scope for it after the commencement of the process of selection. However, there may be some substance in prescribing the marks to be awarded in the matter of height and width of the chest for which in the rule as well as in the advertisement, contained in Annexures 2 and 4 itself some scope was left by providing for the minimum height and width of the chest. Moreover, there may be some rationale also behind giving some weightage to the candidates having more height and width of chest than the prescribed minimum limit considering the nature of duties to be performed by the Enforcement Sub-Inspector. Strictly speaking, I have my doubts about the power in the authority to give even such weightage in the matter where appointments are to be made by promotion "on the basis of seniority-cum-merit, in view of the eligibility criteria mentioned in the rule then existing as well as in the advertisement, contained in Annexures 2 and 4 respectively but, however, as, according to the terms of the advertisement, the candidates were required to appear before the interview board, the validity of the aforementioned criteria for giving weightage with respect to the fourth condition relating to height and width of chest can be upheld considering the nature of the duty to be performed by the Enforcement Sub-Inspector.

Accordingly, I find that the entire process of selection and consequentially the appointments by promotion of Respondents No. 4 to 15 made are illegal being in violation of rules and the terms of the advertisement issued pursuant thereto, contained in Annexures 2 and 4, as well as the rule relating to reservation, contained in Annexure 9 and, thus, arbitrary and violative of Articles 14 and 10(1) of the Constitution of India and the same cannot be sustained.

Accordingly, the impugned order/guidelines, contained in Annexure 5, to the extent indicated above are held to be bad and the orders, contained in Annexures 7 and 8, are quashed. The Respondents authorities are directed to reconsider the case of the Petitioners vis-a-vis the Respondents along with other candidates afresh in the light of the law laid down above. In the facts and circumstances, there shall be no order as to costs.