D.P. Gupta, J.
1. The petitioner entered the service of the State of Rajasthan as a Computer Grade II in the Irrigation Department on November 21, 1957. He was confirmed on the aforesaid post by the order dated June 21, 1963 with effect from January 1, 1954 which is obviously a mistake as the petitioner could not have been confirmed with effect from a date prior to November 21, 1957 when he entered Government service. But then, by another order dated November 29, 1973, the confirmation of the petitioner was altered to April 12, 1961. The petitioner passed A.M.I.E. examination, which is equivalent to a degree in engineering in the year 1963 and thus he had become eligible for appointment to the the post of Assistant Engineer. He approached the Chief Engineer Irrigation, soon after passing the A.M.I.E. Examination requesting him that the petitioner should be promoted to the post of Assistant Engineer as he had become eligible for the same. The Chief Engineer, by his letter dated November 7, 1963 intimated the petitioner that his case for promotion to the post of Assistant Engineer would be considered by the Promotion Committee when the same would next meet. However, pending selection by the Departmental Promotion Committee, the petitioner wan promoted as a temporary Assistant Engineer (Civil) by the order of the Chief Engineer, Irrigation, Rajasthan dated March 16, 1964 for period of four months of until persons selected by the Rajasthan Public Commission were available.
2. It is common case of both the parties that the Departmental Promotion Committee met in the year 1965 for making selections for the posts of Assistant Engineers against promotion quota and eventually by the order of the State Government dated January 8, 1968, 76 engineering subordinates, including the petitioner were promoted against permanent posts. Soon thereafter, the petitioner submitted a representation that as he had become eligible for promotion in the year 1963 on his passing the A.M.I.E. examination, he should have been promoted from the year 1963. The representation of the petitioner was rejected by the Chief Engineering on June 30, 1969 and the petitioner was intimated that the promotions of Engineering Subordinates were governed by the Rajasthan Service of Engineers (Irrigation Branch) Rules, 1954. But the matter did not rest there, as in January 1972 the State Government felt that while the vacancies against direct recruitment quota were filled up in a regular manner yet on account of the fact that the meetings of the Departmental Promotion Committee were not convened regularly, the vacancies against promotion quota were not filled in at the proper time, with the result that persons who were eligible for being considered for promotion against such vacancies were deprived of their appointment by promoting during the relevant years and there by they also lost appropriate seniority from the year when the vacancies of promotion quota became available. In order to mitigate the hardship of such persons, who were eligible for promotion but were not so promoted from earlier years when the promotion quota vacancies occurred, the State Govt. promulgated the Rajasthan Services (Recruitment by promotion against vacancies of earlier years) Rules, 1972 (hereinafter called' 1972 Rules). These Rules, came into force with effect from 7-1-1972. Rule 2 of the aforesaid Rules provides that where the relevant service rules made provision for recruitment as well as by promotion, but the promotion quota of earlier years could not be filled in on account of the fact that the meetings of the Departmental Promotion Committee were not convened during the relevant years, the appointing authority was authorised to determine the number of vacancies which were required to be filled up by promotion, with reference to the year in which such vacancies were to be filled up. Then Rule 5, which is win for the present case, provides that where any vacancies existed against promotion quota in a year earlier to that in which appointments by promotions lave been made on the basis of the recommendations of the Departmental Promotion Committee, then the appointing authority shall modify the order of appointment by specifying the year in which such promotion shall be deemed to have been made, having regard to the year in which vacancies against direct recruitment quota of the relevant year were filled up. The condition which was attached the promotion of employees with respect to the previous year was that such persons must have been eligible for promotion under the relevant service Rules in year with reference to which the vacancies are to be filled in. After the promulgation of the 1972 Rules, the State Government, who is the appointing authority in respect of the pests of Assistant Engineers, determined the promotion quota vacancies in respect of the earlier years and thereafter modified the order of promotion issued on January 8, 1968 allotting the year of promotion to the promotees, with reference to the the years in which the vacancies against promotion quota-became available. The case of the petitioner, who was promoted by the order 8-1-1968, was also reviewed & by the order of the State Govt. on Sept. 23/25, 1972 the petitioner was promoted against 1965 promotion quota. The petitioner felt aggrieved against the allotment of 1963 promotion quota to him in respect of his promotion to the post of Assistant Engineer & submitted a representation which was rejected. In these circumstances, he has filed the present writ petition in this Court.
3. The case of the petitioner is that he became eligible for promotion to the post of Assistant Engineer (Civil) in the year 1963 and he should have beer allotted the year of promotion as 1963, when his case was considered under the 1972 Rules According to the petitioner, the persons who have been allotted 1964 quota of promotion and those who have been placed above the petitioner in the 1965 quota were not eligible for promotion in the year 1964 and 1965 respectively and as such the petitioner should have been allotted at least 1964 quota for promotion, if he was not allotted 1963 quota, while considering his case under the 1972 Rules. As regards the year 1963, there is no dispute between the parties that only one vacancy was available to be filled in by promotion and that the persons who has been allotted 1963 quota, Mr. M.R. Fillai was senior to the petitioner in the cadre of Engineering Subordinates. As such the petitioner could not have been allotted the year of promotion 1963 in preference to his senior, Mr. Filai. But the submission of the learned Counsel for the petitioner in respect of some other persons who were appointed as Engineering Subordinates in the year 19M and 1955 and who have been allotted the year of promotion 1964 and 1965 respectively is that they were not eligible for promotion in respect of the promotion quota of the year which was allotted to them. The argument of the learned Counsel is based on a combined reading of Rules 9 and 24 of the Rules Rule 9, as it stood at the relevant time, provided that the Government shall determine at the commencement of each year the member of vacancies anticipated during the calendar year and the number of persons likely to be recruited by direct recruitment as well as by promotion. Rule 24 provides that as soon as it is decided that recruitment to a certain number of posts in the service shall be made by promotion the Chief Engineer, Irrigation Department shall prepare a correct and complete list containing the names not exceeding five times the number of vacancies, out of the senior most substantive Engineering Subordinates who are qualified under the Rules for promotion, According to the learned Counsel, the number of vacancies anticipated to occur during a particular year should be determined by the State Government in the beginning of the year and the Chief Engineer should also prepare the list of eligible candidates in accordance with Sub-rule (1) of Rule 24 also in the beginning of the year. Thus, according the learned Counsel, those persons who became eligible for promotion in the beginning a particular year only should have been considered as eligible for promotion to the posts of Assistant Engineer in that year. It may be mentioned here that the qualifications required for promotion to the posts of Assistant Engineer (Civil) are that the person concerned should hold the degree of B.E. (Civil) or equivalent qualification with three years' experience as Engineering Subordinate (Civil) or if he is a diploma holder frome a recognised institution, such person should have ten years' experience as Engineering Subordinate (Civil) and other persons should have 15 years' experience as Engineering Subordinate (Civil). In this manner, the diploma holders become eligible for promotion from the post of Engineering Subordinate to that of Assistant Engineer after obtaining 10 years' experience on the post of Engineering Subordinate (Civil) Thus, according to the petitioner's learned Counsel, the ten years requisite experience on the posts of Engineering Subordinate should be completed before the beginning of the year in which the person concerned could be considered for promotion According to him, a person who was appointed as a Engineering Subordinate during the year 1964 could only become eligible for promotion to the post of Assistant Engineer in the year 1965 as he would complete the requisite ten years' experience some time during the year 1964 and not in the beginning of the year 1964 It is not necessary to decide this question in the present case for two reasons : in the first place, it may be pointed out that the promotion with which I am concerned in the present case Were made in accordance wish the provision of the 1972 Rules. It is not the case of the petitioner that the number of vacancies was determined under Rule 2 of the Rules or promotions took place from the post of Engineering Subordinates to the post of Assistant Engineers (Civil) as cording to Rule 24 of the Rules. I have already mentioned above that the 1972 Rules were brought into existence on account of the fact that the machinery envisaged in the Rules for promotion on the occurrence of vacancies from year to year was no : set into motion and probably neither the vacancies were determined year after year as required in Rule 9 nor the its of eligible candidates was prepared as envisaged under Sub-rule (1) of Rule 24 nor the Departmental Promotion Committee met during the relevant cars, when the vacancies occurred, for making its recommendation for appointment to the posts of Assistant Engineers (Civil). It was on account of the failure of the normal machinery provided in the Rules that new provision had to be made by the rule making authority by promulgation of the 1972 Rules, Thus, it cannot be held that the promotions which were made with reference to earlier years, by the State Government dated 23/25 September, 1973 could be said to be promotions made in accordance with the procedure prescribed under Rule 24. In the second place, it may also be painted out that the Stale Government realised the anomalous position which was thus created & by an amendment introduced in Rule 23 on June 13, 1973 it was provided that a person should be eligible for promotion on the first date of the month of April of the year of selection. This amendment has solved the difficulty as to whom the person should possess the minimum qualification and experience required for becoming eligible for promotion. Thus first April of she year when the selection is to be made has now been specified is the point of time, when the eligibility of the person concerned has to be adjudged, white preparing the list under Sub-rule (1) of Rule 24.
4. Now coming to the provisions of Rule 5 of the 1972 Rules, which are relevant for the purposes of the decision in this case, it has been laid down therein that persons 'who were eligible for promotion under the relevant service rules in the year with reference to which the vacancies are to be filled up' should be appointed by the appointing authority with reference to the previous year during which the promotion quota vacancies acquired According to this rule, the person should be eligible for promotion 'in the year' in respect of which the vacancies are to be filled up. In my view, any person who became eligible upto the end of a particular year can be considered for promotion for that earlier year, according to the provisions of Rule 5, as he became eligible foe promotion in that year. For instance, a person who was appointed a an Engineering Subordinate in December 1954 and who possessed a diploma, become eligible for promotion under the 1972 Rules against 1964 promotion quota vacancies. It must be kept in view that the promotion quota vacancies were not actually filled up during the relevant years but on account of the provisions of the 1972 Rules, a legal fiction has been introduced and the promotes have been allotted earlier years of promotion as envisaged in the 1972 Rules. It is on account of the legal fiction that Rule 5 provides that the persons so promoted with reference to earlier years shall be deemed to have been promoted during those years, while Rule b provides that such persons shall not be entitled to claim any arrears of of pay for the period during which he was not actually promoted though he may be deemed to have been promoted in accordance with the provisions of Rule 5. If this criteria is adopted, which in fact appears to have been adopted by the State Government, then persons who have been allotted 1964 quota did become eligible for promotion during that year as they were appointed as Engineering Subordinates in the year 1954 and those who have been allotted 1963 quota and have been placed above the petitioner in the order of promotion dated 23/25 September, 1972 also became eligible for promotion during die year 1965. It is not in dispute that all the persons, who were allotted either the 1964 quota or were allotted 1965 quota and were placed above the the petitioner in the aforesaid order of promotion, in accordance with the 1972 Rules, were senior to the petitioner in case they became eligible for promotion during the relevant years 1964 & 1965, then the petitioner cannot complain of their having been placed above the petitioner in the order of the State Government dated 23/25 September 1972.
5. Learned Counsel for the petitioner has not contested that all the respondents were senior to the petitioner in the cadre of Engineering Subordinates. But his only argument was that they were not eligible during the relevant year as they did not possess ten year's experience as Engineering Subordinates in the beginning of the concerned year. However, it is not in dispute that all the respondents had obtained the requisite ten year's experience as Engineering Subordinates during the year, which they have been allotted in the order of promotion issued under Rule 5 of the 1972 Rules. In this view of the matter submission of the learned Counsel is without in substance and cannot be accepted
6. The only other submission made by the learned Counsel was that respondent No. 58 Shyamlal G. Mathur was appointed as on Engineering Subordinate on December 20, 1955 and he was confirmed on that post with effect from July 1, 1959. According to the petitioner, respondent No. 58 appeared for interview before the Rajasthan Public Service Commission against direct recruitment quota vacancies in August 1965 and was selected by the Commission for one of those posts. He was also considered by the Departmental Promotion Committee, which met in May 1965 but whose recommendations were accepted much later as the order of promotion was issued only on January 8, 1968, Curiously. Shyamlal was also appointed by promotion by the order dated January 8, 1968 against a temporary post The submission of the learned Counsel is that Shyamlal having on opted for selection by direct recruitment and having been so selected and appointed against direct recruitment quota on the post of Assistant Engineer, he could not revert bench and be appointed as Assistant Engineer against promotion quota vacancies of the year 1965 under the 1972 Rules, By the order of the State Government dated 23/25 September 1972, in modification of the order dated January 8, 1968 Shyamlal respondent was allotted 1965 quota in pursuance of the 1972 Rules and was placed above the petitioner. The reply of the respondents in this respect was that the selection by the Commission took place after the Departmental Promotion Committee had met and considered Shyamlal for promotion in May 1965 aid as the selection of Shyamlal by the Commission against direct recruitment quota post was not known, his name was included against promotion quota post of Assistant Engineer in the order dated January 8, 968. The name of Shyamlal was also included in the order of the State Government dated 2?/25 September 1972, by which promotions were made against the vacancies of earlier years, in accordance with the provisions of the 1972 Rules, as that order was merely a modification of the earlier order of promotion dated January 8, 1968. However, a copy of the order of appointment of Shyamlal after selection by the Commission has been placed on record today by the respondents, and it appears therefrom the Shyamlal was appointed after selection by the Commission as temporary Assistant Engineer only by the order dated August 23, 1965. As Shyamlal does not appear to have been selected by the Commission by way of direct recruitment against a permanent vacancy and he does not appear to have been substantively appointed as Assistant Engineer by way of direct recruitment, it cannot be held that the has lost his opportunity of being appointed as Assistant Engineer against promotion quota. The petitioner ha$ not placed on record any document to show that Shyamlal respondent was appointed in a substantive capacity as Assistant Engineer by direct recruitment after selection by the coin mission and in the absence thereof it is not possible to hold that Shyamlal lost a chance of being considered for promotion and appointed by such method against 1965 promotion quota vacancies. It cannot be disputed that once a person exercises his option of being appointed to a specified pest by particular method of recruitment and is appointed to such post by that method then subsequently he is excluded by his conduction appointment to the same post by another method of recruitment in case Shyamlal would have been substantively appointed as Assistant Engineer by direct recruitment then the argument of the learned Counsel for the petitioner could have prevailed. But in view of the fact that the appointment of Shyamlal respondent on the post of Assistant Engineer, after selection by the Public Service Commission, was only a temporary one, against a temporary post, he was still entitled to be considered for selection against promotion quota in respect of a permanent vacancy on the post of Assistant Engineer. Sub-rule (2) of Rule 7 of the Rules authorises, the recruitment of persons against temporary posts of Assistant Engineers and an appointment against a temporary post cannot preclude the person, concerned from seeking substantive appointment to a permanent post of Assistant Engineer by either method of recruitment. It is not in dispute that Shyamlal was senior to the petitioner in the cadre of Engineering Subordinates, and, therefore, he was rightly shown as senior to the petitioner in the order dated 23/25 September 1972, while making promotions against vacancies of earlier years under the 1972 Rules.
7. No other point was argued before me by the learned Counsel for the petitioner.
8. In the result, the writ petition fails and the same is dismissed. The parties are, however, left to, bear their own costs.