V.P. Tyagi, J.
1. The petitioners in these two writ petitions are the members of the Rajasthan Police Service and by filing these petitions they have challenged the correctness of the seniority list of the Rajasthan Police Service Officers Issued on 19th June, 1966, under. Rule 33 of the Rajasthan Police Service Rules, 1954, (hereinafter to be referred as the Rules). Except Shri Rameshwar Khuteta and Shri Om Prakash respondents Nos. 25 and 26 in the writ application filed by Mr. Kaushib, all the respondents are common in both these petitions. Since common questions of law and facts arise in both these petitions I propose to dispose them of by one judgment.
2. The case of the petitioners is that they were recruited to the Rajasthan Police Service through competitive examination in the year 1954 and that their appointment was made by the State Government by issuing the appointment letter Ex. P. 2 dated 13th September, 1955. In Writ Petition No. 533 of 1966, respondents Nos. 6 to 24 except respondent No. 19 Shri Ram Singh were recruited to the Rajasthan Police Service in the promotion quota under Rule 7 (b) and (c) of the Rules in the year 1955, but their appointment was actually made 'in the year 1956. Out of these respondents, respondents Nos. 6 to 9, 11, 13 & 15 were recruited under Rule 7 (c) by special selection. Their appointment was made on 29th May, 1956, by Ex. P. 7. The other respondents were also appointed by the same order, but their appointment was made under Rule 7 (b).
3. Respondent No. 19, Shri Ram Singh, who was already officiating as Deputy Superintendent of Police, was however appointed as a member of the Rajasthan Police Service on 28-5-1958 in the promotion quota, but on his representation that he should have been appointed along with the other promotees of 1956 the Government after scrutinizing his case ordered on 24th January, 1964 vide Ex. P. 16 that he should be deemed to have promoted to the service with effect from 29th of May, 1956, when other respondents were promoted.
4. The case of respondent No. 27, Shri Narain Singh, however, stands on a different footing. He was appointed as member of the Rajasthan Police Service by the order of the Government dated 20th/21st October, 1961, and he was allotted 1957 as the year of his appointment. He was, however, kept junior to the petitioners in the seniority List Ex. P. 27.
5. The petitioners grievance Is that the petitioners were recruited in the direct recruitment quota and were appointed in the service on 13th of September, 1955, whereas the respondents including respondent No. 19, Shri Ram Singh, were appointed in Service in the year 1956 and, therefore, on the basis of the date of appointment the petitioners are senior to the respondents, but the Government has erroneously placed them above the petitioners in the final seniority list issued in the year 1965 and hence these petitions have been filed in the Court.
6. As regards respondents Nos. 6 to 9, 11, 13 and 15, who have been appointed as members of the Rajasthan Police Service under Rule 7 (c) (special selection) it is alleged that their appointments made on 29th of May, 1956, are in clear violation of the proviso to Rule 7 (c) which lays down that Clause (c) of Rule 7 shall not be operative after 31st December, 1955, and, therefore, they cannot in any circumstances be placed senior to the petitioners in the seniority list. It may be mentioned here that the validity of the appointments of these respondents Nos. 6 to 9, 11, 13 and 15 have not been challenged in these writ petitions nor have the petitioners claimed any relief in these writ petitions against these respondents on the basis of the alleged invalidity of their appointments.
7. The second ground on which the seniority list has been challenged by throwing a challenge to the validity of proviso (vi) of Rule 33 of the Rules under which the seniority list has been drawn up.
8. Proviso (vi) as It originally stood laid down that if two or more persons are appointed to the Service on the same date, the persons appointed by direct recruitment shall be junior to the persons appointed by the special selection or by promotion. This proviso was subsequently amended on 12th of November, 1957, and the amended proviso reads as follows:--
'(vi) Among persons appointed to the Service within the same period of 12 months by direct recruitment, or promotion or special selection all persons appointed by promotion and special selection shall rank senior to persons appointed by direct recruitment.'
This was further amended on September 26, 1958, whereby the words 'after the commencement of these Rules' were inserted in the first line immediately after the words 'among persons appointed'.
9. The contention of the petitioners is that according to the proviso (vi) as it stood when the petitioners were appointed only those persons who were appointed to the Service by promotion or by special selection could take precedence in the seniority over the direct recruits if their appointments were made on the same date. The petitioners' argument is that since the petitioners were appointed on 13th September, 1955, and the respondents Nos. 6 to 24 were appointed in the promotion quota in 1956 and the respondents Nos. 25 and 26 who were direct recruits, were appointed on 15th of December, 1955, and respondent No. 27 was appointed (by promotion) on 20/21st October, 1961, they cannot claim seniority over the petitioners. It is further submitted that subsequent amendment made in proviso (vi) to Rule 33 of the Rules are violative of Article 16 of the Constitution and, therefore, under the amended proviso respondents recruited through promotion cannot claim seniority over the petitioners. As for respondents Nos. 25 and 26 it is submitted that proviso (vi) is not attracted to their case as they are direct recruits and, therefore, they cannot be ranked higher as they were appointed to the Service after the petitioners' appointment was notified by the Government.
10. Regarding the case of respondent No. 27, Shri Narayan Singh, petitioners' claim is that Shri Narayan Singh, who was declared junior to the petitioners in the list itself was given selection grade of the Rajasthan Police Service in preference to the petitioners vide Ex. 2/18 dated 14th October, 1965, which has obviously marred their chances of future promotion. This act of the Government has been challenged as arbitrary and illegal.
11. It may be noticed here that the order of the State Government dated 14th October, 1965, appointing Shri Narayan Singh as Commandant of Home Guards in the selection grade of the Rajasthan Police Service Scale No. 28 has nothing to do with the matter of seniority which has been challenged by the petitioners against other respondents. The question of giving senior scale to Shri Narayan Singh cannot be joined with the question of the determination of seniority of the members of the Rajasthan Police Service and, therefore, it is a clear case of misjoinder of causes of action. It is not the case of the petitioners that Shri Narain Singh was given selection grade because he was placed senior to the petitioners. In these circumstances the petitioners cannot be allowed to challenge the order of the Government dated 14th October, 1965, giving selection grade to Shri Narain Singh alone with the question of challenging the seniority list in these writ petitions. The claim of the petitioners against Shri Narain Singh is, therefore, rejected.
12. The State Government and the respondents Nos. 6 to 9, 11, 13, 15, 19 and 27 have filed their replies to the writ petitions. A separate reply has also been filed by respondents Nos. 10, 12, 11, 18, 20, 21, and 22. All of them have opposed the claim of the petitioners regarding the fixation of seniority. I need not discuss there the plea taken by respondent No. 27, Shri Narain Singh, as I am of opinion that he cannot be joined as a respondent to challenge the order of his appointment in the senior scale along with the other respondents whose seniority has been challenged by the petitioners.
13. The petitioners have claimed their seniority over respondents Nos. 6 to 9, 11, 13 and 15 on the ground that their appointments to the Service are violative of the Proviso to Rule 7 (c) as it then stood in the Rules. The contention of the petitioners is that the Government under the Rules could appoint as the members of the Rajasthan Police Service through special selection only up to 31st of December, 1955, but since the appointments of the respondents Nos. 6 to 9, 11, 13 and 15 were notified by the Government on 29th May, 1916, such appointments were beyond the competence of the Government and, therefore, they could not be placed higher in the seniority list than the petitioners as their appointments themselves were illegal. It may be observed that the petitioners have not challenged the legality of the appointments of these respondents in these writ petitions. They have simply thrown a challenge to the place assigned to them in the seniority list on the ground that their appointments were illegal. Unless the validity of the appointments of these respondents is challenged the petitioners have no right to challenge the seniority on the ground of the invalidity of their appointments. This argument, in my opinion, is untenable.
14. Rule 7 which falls in part III, of the Rules deals with the sources of recruitment to the Service and lays down that the recruitment to the service after the commencement of the rules shall be made,--
(a) by a competitive examination;
(b) by promotion of Inspectors; and
(c) by special selection from among the temporary officers of the Rajasthan Armed Constabulary, so appointed before 14th July, 1954, to posts encadred in the service at the commencement of these rules, or from among officers of the Mewar Bhil Corps serving in the corresponding ranks on 14th July, 1954.
There is proviso appended to Clause (c) of Rule 7, which curtails the power of the Government to recruit to the service through special recruitment under Clause (c) of Rule 7 after 31st December, 1955. It is not disputed by the petitioners that the process of selection by promotion under Rule 7 (b) and special selection under Rule 7 (c) had started in the year 1955 and persons were selected for appointment under Clauses (b) and (c) of Rule 7 in the year 1955, but for one reason or the other their appointments could not be notified till 29th of May, 1956. Mr. Mridul appearing on behalf of the respondents has urged that in the scheme of the rules the recruitment and the appointment are two different things. The procedure for recruitment has been laid down by the rule-making authority in part III whereas the provisions for making appointments are incorporated in Part VII of the Rules. According to Mr. Mridul recruitment is an initial process which may ultimately lead to appointment in the Service by issuing an order of appointment by the appointing authority and, therefore, it cannot be said that these two processes namely recruitment and appointment are identical. He further submits that if the appointment letter for the respondents was issued by the Government on 29th of May, 1956, it cannot be said that they were not properly recruited by the recruiting authority before 31st of December, 1955. In support of this contention he placed reliance on the authority of the Punjab and Haryana High Court in Gurdey Singh Gill v. State of Punjab, 1968 Ser LR 538 (Pun & Har).
15. If we closely examine the scheme of the rules then we find that part III has been enacted in the Rules by the rule-making authority for the purpose of laying down general procedure for recruitment. Part IV deals with the procedure for direct recruitment while Part V deals, for recruitment by promotion. Then comes Part VI, which in the year 1954 dealt with the procedure for recruitment by special selection under Rule 7 (c). The procedure for appointments is provided in Part VII, which contains Rules 30 to 36. Rule 33, which relates to seniority falls in this part which deals with the appointment. Proviso to Rule 7 (c) lays down that Clause (c) of this rule shall not be operative after 31st December, 1955. This proviso does not carry any prohibition that those persons who have been selected through this process and recruited under Rule 7 (c) shall not be appointed if their appointment has not been notified before 31st of December, 1955 after that date. Learned Judges of the Punjab and Haryana High Court in 1968 Ser LR 538 (Punj & Har) (Supra), while discussing with the scope of recruitment have observed:
'Recruitment is just an initial process which may lead to an eventual appointment in the Service but the two concepts of recruitment and appointment are separate and apart and the clear line of distinction between them has been made manifest by the various rules; one of which is rule 9 of the Cadre Rules which provides for temporary appointment of non-cadre to cadre posts...............'
On a careful perusal of the rules it becomes clear that the rule-making authority has clearly laid down distinction between the process of recruitment and the appointment. These rules suggest that the process of recruitments, through various sources which has been dealt with in Parts III, IV, V and VI of the rules has been kept separate by the rule making authority from the appointments to be made under Part VII. It is true that the recruitment eventually leads to appointments, but from the scheme of the Rules it is obvious that it is not incumbent on the Government to appoint each and every person who has successfully crossed the process of recruitment in Parts IV, V and VI. The concept of recruitment is, therefore, quite different from the concept of appointment. In these circumstances if these respondents were appointed in the Service after 31st December, 1955, their appointments cannot be said to be violative of Clause (c) of Rule 7 of the Rules where it is admitted that the process of recruitment had been completed before 31-12-1955. In this view of the matter the challenge to seniority of these respondents on the plea of their appointments being contrary to the proviso to Rule 7 (c) has no force.
16. It was next urged that according to the original rules relating to seniority as they stood when the petitioners were appointed in the Rajasthan Police Service on 13th of September, 1955, the petitioners could not be placed junior to the respondents, who were undisputedly appointed on 29-5-1956 i.e., after eight months of the petitioners' appointment. According to learned counsel for the petitioners the senioritv of his clients could not be determined by applying the unamended Rule 33.
17. Proviso (vi) of Rule 33 as it then stood when the petitioners were appointed to the Service, read as follows:--
'(vi) that if two or more persons are appointed to the service on the same date, the persons appointed by direct recruitment shall be junior to the persons appointed by special selection by promotion.'
The contention of the petitioners is that since the appointment of the respondents was not made on the same date, therefore, under the unamended proviso, which according to Mr. Bhargava governs the determination of the petitioners' seniority, the respondents cannot be ranked senior.
18. Proviso (vi) was amended twice. The first amendment was made on 12th November, 1957. By this amendment the proviso (yi) was substituted by the following proviso :--
'(vi) Among persons appointed to the service within the same period of 12 months by direct recruitment, or promotion or special selection, all persons appointed by promotion and special selection shall rank senior to persons appointed by direct recruitment.'
The effect of this amendment was that the persons appointed to Service by promotion or special recruitment shall rank senior to the direct recruits provided the appointments of these persons were made within a period of 12 months. A further change was brought about in this proviso by amending it on 26th September 1955. By this amendment the words 'after the commencement of these Rules' were inserted in the first line of the said proviso after the words 'among persons appointed'. This second amendment made the proviso (vi) to Rule 33 operative with retrospective effect to govern the cases of all these persons who were appointed to the Service after the Rules of 1954 came into effect. The effect of this amendment, therefore, was that the seniority of the persons appointed to the Service after 1954 shall be determined by proviso (vi) to Rule 33 as it finally emerged out after the second amendment of 26th September, 1956. In this view of the state of law petitioners' case will be governed not by the original proviso (vi) to Rule 33 as it stood in 1955, but the amended proviso will be attracted to determine their seniority.
19. Learned counsel for the petitioners then argued that amendments subsequently introduced in proviso (vi) to Rule 33 are violative of Article 16 of the Constitution as they have the effect of taking away the guarantee of equal opportunity, enshrined therein as it would definitely put obstacles in the way of the petitioners to get further promotion in the service. If this contention is examined minutely then it comes to this that the rule-making authority was not competent to amend a rule retrospectively which may take away rights of further promotion already vested in the petitioners because of their rank in the seniority list which they were entitled to get because of the unamended provision of rule regarding determination of seniority.
20. Mr. Bhargaya candidly admitted before me that if the proviso (vi) of Rule 33 as it now stands after the amendment had been in existence at the time when the petitioners had joined the Rajasthan Police Service then his clients could not have challenged the rule as being violative of Article 14 or 16 of the Constitution, as the petitioners in that case would have joined the service on a clear understanding that persons appointed by promotion to the service within a period of 12 months from the date of the petitioners' appointments, shall rank higher in seniority, but since this was not the case at the time when they were appointed the subsequent amendments cannot change the condition of service of the petitioners, to their disadvantage and cannot debar them from claiming a right to claim higher rank in seniority to the respondents. The admission of Mr. Bhargava clearly shows that there is no inherent infirmity in the rule, but according to him, it becomes violative of Article 16 only when the conditions of service are changed after joining the service. This argument, therefore, bring me to the controversy whether the rule-making authority has a power to amend the rule in such a manner so as to take away certain rights which the petitioners could have claimed under the unamended rules.
21. This question had come up before the Supreme Court. In AIR 1967 SC 1889 whether the rules governing the conditions of the service of the Government employee can be changed unilaterally by the Government to the detriment of the employee or not. Their 'Lordships of the Supreme Court in this connection observed as follows:--
'It is true that the origin of the Government service is contractual. There is an offer and acceptance in every case. But once appointed to his post or office the Government servant acquires a status and his rights and obligations are no longer determined by consent of the parties, but by statute or statutory rules which may be framed and altered unilaterally by the Government. In other words, the legal position of a Government servant is more one of status than of contract. The hall-mark of status is the attachment to a legal relationship of rights and duties imposed by the public law and not by mere agreement of the parties. The emolument of the Government servant and his tetras of service are governed by statute or statutory rules which may be unilaterally altered by the Government without the consent of the employee.'
Their Lordships while further discussing the aspect of the question as to what extent the domain of law can govern, the conditions of service of a Government servant further observed:
'But it is obvious that the relationship between the Government and its servant is not like an ordinary contract of service between a master and servant. The legal relationship is something entirely different, something in the nature of status. It is much more than a purely contractual relationship voluntarily entered into between the parties. The duties of status are fixed by the law and in the enforcement of these duties society has an interest. In the language of jurisprudence status is a condition of membership of a group of which powers and duties are exclusively determined by law and not by agreement between the parties concerned.'
'We are therefore of the opinion that the petitioner has no vested contractual right in regard to the terms of his service and that counsel for the petitioner has been unable to make good his submission on this aspect of the case.
22. B. S. Vadera v. Union of India AIR 1969 SC 118 the Supreme Court further reiterated this principle by saying:--
'If the appropriate Legislature has passed an Act, under Article 309, the rules framed under the proviso, will have effect, subject to the Act, but in the absence of any Act, of the appropriate Legislature, on the matter, the rules, made by the President, or by such person as he may direct are to have full effect, both prospectively, and retrospectively. Apart from the limitations pointed out above, there is none other, imposed by the proviso to Article 309 regarding the ambit of the operation of such rules.'
These observations of the Supreme Court make it clear that the rule-making authority under Article 309 of the Constitution can make the rules, which may be brought into operation with retrospective effect, and the employee cannot claim that rights vested in him prior to coming into force of certain rules should be allowed to be enjoyed by him in spite of the rules having come into operation with retrospective effect. In view of this state of law, the petitioners cannot claim that their seniority must now be determined in accordance with the un-amended proviso to Rule 33, which then stood when they were appointed as members of Rajasthan Police Service.
23. The respondents, as is clear from Ex. P. 7, were appointed to the Rajasthan Police Service on 29th May, 1956, in a promotion quota of 1955 through the process of promotion and of special selection. The date of their appointment that is 29th May, 1956, definitely falls within a period of 12 months from the date of the appointment of the petitioners. The respondents, who are promotees, shall, therefore, have precedence over the petitioners in the matter of seniority and they have, in my opinion, rightly been declared senior to the petitioners in the final seniority list Ex. P. 27.
24. I may now examine another argument of learned counsel for the petitioners that the amendments introduced In proviso (vi) to Rule 33 is violative of Article 16 of the Constitution as they hit the guarantee of the equal opportunity as enshrined in that Article in the matters of future promotion. This argument of learned counsel is misconceived. I do not find any such guarantee embodied in Article 16 that a person appointed |in a particular service must be assigned seniority in accordance with the rule as it then stood when he was appointed to the service and the rule cannot be amended by the rule-making authority under proviso to Article 309 of the Constitution with retrospective effect even though such an amendment was necessary in the interest of Service. The answer to this objection is found in the law laid down by the Supreme Court that rules governing the condition of Service of a Government servant who by virtue of his appointment in the Service enjoys certain status can be changed unilaterally by the rule-making authority and such a change can be introduced with retrospective effect. There is no such fundamental right guaranteed to a Government servant under Article 16 of the Constitution that his condition of Service cannot be changed so as to affect the chances of future promotions. If the rule-making authority has a power to amend the rules with retrospective effect then it would be deemed that the amended Rule 33 was introduced in the rules from the date when the Rules came into force. The canon of construction for incorporating the amended law are well settled. The Supreme Court in Shamrao v. District Magistrate, Thana, AIR 1952 SC 324 has laid down that,--
'The rule is that when a subsequent Act amends an earlier one in such a way as to incorporate itself, or a part of itself, into the earlier, then the earlier Act must thereafter be read and construed (except where that would lead to a repugnancy, inconsistency or absurdity) as if the altered words had been written into the earlier Act with pen and ink and the old words scored out so that thereafter there is no need to refer to the amending Act at all.'
Applying this rule of construction, the Proviso (vi) of Rule 33 shall now be read as substituted by the amendment introduced on 20th September, 1958, and it shall be deemed that this proviso as it now stands amended by the two amendments was in existence at the time when the petitioners had entered into Police Service. It is candidly conceded by the learned counsel for the petitioners before me that if proviso (vi) as now stands had been in existence at the time when the petitioners had accepted the Police Service then they could not have challenged this proviso as violative of Article 16 as the petitioners had accepted the Service with such an understanding. Since the amendments introduced in proviso (vi) on 12th of November, 1957, and 26th September, 1958, have been given retrospective effect it shall be deemed that proviso (vi) as amended from time to time was present in the Rules when the petitioners had accepted the Service and, therefore, it is not open to the petitioners now to challenge these amendments as being violative of Article 16 of the Constitution.
25. Now I take up the case of petitioner Shri M. M. Kaushib against respondents Sarvashri Rameshwar Khuteta and Om Prakash. It is common ground between the parties that respondents Shri Rameshwar Khuteta and Shri Om Prakash had appeared along with the petitioner in the competitive examination conducted by the Rajasthan Public Service Commission in the year 1954 for selecting candidates for the appointment to the Rajasthan Police Service. Respondents Rameshwar Khuteta and Om Prakash were selected by the Public Service Commission and their names were sent along with the name of petitioner Shri M. M. Kaushib to the Government for appointment. The list that was sent by the Public Service Commission to the Government has been placed on record as Ex. P. 1 by petitioner Kaushib. The names of Shri Rameshwar Khuteta and Shri Om Prakash find place at Nos. 10 and 11 in that list while the name of Shri Man Mphan Kaushib is placed at No. 13. As is apparent from the allegation made by the petitioner that the appointment of Shri Rameshwar Khuteta and Shri Om Prakash could not be notified by the Government along with the appointment of the petitioner, because they could not qualify themselves in their medical test. Thereafter it so appears that they were found fit medically, and, therefore, their appointment was notified on 15th December, 1955. The petitioner, who was appointed on 13th of September, 1955, claims that since his appointment was prior in time he should be ranked higher than the respondents Nos. 25 and 26 in seniority list. The relevant rule governing the inter se seniority of the direct recruits in the service is embodied in proviso (ii) to Rule 33, which runs as follows :--
'33. Seniority.--Seniority in the Service shall be determined by the date of the order of appointment to the Services' Provided-- (i) ..................
(ii) that the seniority inter se of persons appointed to the Service on the result of one and the same examination, except those who do not join the Service when a vacancy is offered to them, shall follow the order in which they have been placed in the list prepared by the Commission under Rule 25.'
Ex. P. 1, is the list which was submitted by the Public Service Commission to the Government after selecting candidates through competitive examination. It is not disputed that that list was prepared as the result of one and the same examination in which both the respondents Nos. 25 and 26 and the petitioner had appeared for selection to the Rajasthan Police Service. The appointment of respondents Nos. 25 and 26 has been made by the Government as a result of the one and the same examination and, therefore, proviso (ii) to Rule 33 is attracted to this case. The general rule of seniority as embodied in Rule 33 that seniority in the Service is determined by the date of the order of the appointment to the service, subject to the proviso (ii) attached to the rule. Proviso (ii) says that the inter se seniority of persons appointed to the Service on the result of one and the same examination, shall follow the order in which they have been placed in the list prepared by the Commission under Rule 25. In the list submitted by the Commission under Rule 25 the names of respondents 25 and 26 occur at serial numbers 10 and 11, whereas the name of the petitioner Shri Kaushib is at number 13. The seniority of the respondents therefore has been correctly determined by the State Government and in my opinion the petitioner cannot claim seniority over Sarvashri Khuteta and Om Prakash.
26. It may be mentioned that after the filing of this writ application respondent No. G Shri Takhat Singh died and respondents No. 9 Shri Raghubir Singh, No. 26 Shri I. D. Pant, No. 18 Shri Balu Singh, No. 19 Shri Ram Singh, No. 21 Shri Kanak Mal Mehta, No. 22 Shri Ratan Singh, and No. 23 Shri Ummaid Singh, retired from service. In this view of the matter it will be futile to discuss the allegations made by the petitioners against respondent Ram Singh.
27. For the reasons mentioned above both these writ petitions fail and they are dismissed with costs.