S.N. Deedwaniya, J.
1. These three writ petitions involving common questions of law and fact are disposed of by this order. Petitioners and respondents No. 3 to 41 belonged to the cadre of Inspectors Gr. II (audit or executive) in the Co-operative Department and are governed by the Rajasthan Cooperative Societies Rules, 1954 (hereinafter referred to as 'the Rules').
2. Petitioner Daleepsingh was confirmed on the post of Inspector Cr. II (Executive) in the Co-operative Department with effect from 1-7-1959 vide order No. F(sic)CDR/Estt(B)/65 dated June 3, 1965. Thereafter, the petitioner was promoted temporarily as Inspector Gr. I on 23-2-1960 and further promoted as Assistant Registrar from 18-4-1968 on ad hoc basis.
3. Petitioner Rampal Borwal was appointed as substantive Inspector (Audit) Gr. 11 in the Co-operative Department on 1-7.1959 and temporily promoted as Inspector Gr. I vide order dated November 13, 1961 and further promoted on ad hoc basis as officiating Assistant Registrar vide order dated 18/20-4-1967.
4. Petitioner Mangilal Shiarma was confirmed as Inspector (Audit) Gr. II in the Co-operative Department with effect from 1-7-1959. He was temporarily promoted as Inspector Gr. I on 14-11-1960 and further promoted as Additional Assistant Registrar on ad hoc basis vide order dated 18/20-4-1967.
5. On 8-10-1973, final seniority list of Inspectors (Audit) Gr. II was issued as on 20-9-1973 and seniority list of Inspectors (Executive) Gr. It was issued on 1-7-1973. Prior to issue of these seniority lists, a tentative joint seniority list of Inspectors (Audit) and Inspectors (Executive) Gr. II had also been published, but was never made final. The seniority list of Inspectors (Audit) Gr. I or Inspectors (Executive) Gr. I has not been published. Final common seniority list of Inspectors (Audit) Gr. II and Inspectors (Executive Gr. II has not been published and likewise the common seniority list of Inspector (Audit) Gr. I and Inspector (Executive) Gr. I has never been issued. In the year 1961-62, a departmental promotion committee met for purpose of promotions to the post of Assistant Registrar and there after, almost a period of 10 years, it again met in December, 1973 and certain promotions were made vide order No. F(18)(76) COP/73 dated February 6, J 974. By this order, the petitioners were not selected for the post of Assistant Registrars and were reverted to their substantive appointments. In the year 1968-69, and 1969-70 certain adverse remarks were made against petitioners Daleepsingh and Mangilal. In the year 1970-71, certain adverse remark were made against petitioner Rampal Porwal, Most of the respondents are junior to the petitioner. The selections made by the departmental promotion committee in the year 1973 are void inter alia on the following grounds;-
(1) The promotion to the post of Assistant Registrar could not be made for want of common seniority list of Inspector Gr. I Audit and Inspectors Gr. I Executives and Inspectors Gr. II Audit and Inspectors Gr. II Executive. The petitioners were eligible for promotion to the post of Assistant Registrar much before the year 1967.
(2) The cases of the petitioners should have been considered with respect to the vacancies which existed in the earlier years from amongst those candidates only who were then eligible in that particular year and the vacancies of all the earlier years could not be clubbed.
(3) The record of the petitioners for the purpose of promotion could only be looked into, upto year of vacancies against which they were to be considered and promoted. In this view, the adverse remarks relating to year 1968-69 1969-70 and 1970-71 could not be taken into consideration.
(4) In any case, the petitioners could not be reverted to the post of Inspectors Gr. II.
(5) Certain respondents though junior to the petitioners were allowed to continue on the posts of Assistant Registrars though they were also not selected by the departmental promotion committee.
6. The writ petitions are opposed mainly on the grounds that the cases of eligible candidates for promotion to the posts of Assistant Registrar were considered strictly in order to seniority-cum-merit, the departmental promotion committee which met in the year 1973 could lump-up all the vacancies of the earlier years and was competent to look into upto date records of the candidates. Only those respondents were allowed to continue as Assistant Registrars, who were approved under Rule 24(2) of the Rules.
7. I have heard the learned Counsel for the petitioners and learned Additional Government Advocate and perused the record of the case carefully.
8. At the out set, I may observe that I propose to draw a brief order as all the points raised in these writ petitions stand concluded by the orders of this court. The first ground of challenge to the promotion of the respondents is that the departmental promotion committee could not have considered the cases of promotion according to the rules, for want of a common seniority list of Inspectors Gr. I (Audit) and Inspectors Gr. I (Executive) and, Inspectors Gr. II (Audit) and Inspectors Gr. II (Executive). In my opinion, this ground should prevail for the reasons mentioned in the order of this Court dated October 14, 1980 in Banneysingh v. State of Rajasthan S.B. Civil Writ Petition No. 2110 of 1973, it was thus observed-
Under Rule 6 Inspectors Gr. II in the co-operative department whether executive or audit form one cadre. As there is one common cadre under the Rules, there should be one common seniority list of all of them.
I, therefore, hold that it is incumbent under the Rules that a common seniority list of Inspectors Gr. II and further Inspectors Gr. I whether executive or audit should be drawn as they formed one cadre. As the promotion to the post of Assistant Registrar were to be made on seniority-cum-merit, the impugned selections are obviously void for want of a common seniority list and it could not be said that the selections were made in order of seniority.
9. The next contention is that all the vacancies up to the year 1973 for the posts of Assistant Registrar could not be lumped up. The cases of the petitioners should be considered with regard to the vacancies of the earlier years in which they became eligible for promotion to the post of Assistant Registrar from amongst the candidates who were then eligible for piomotion. In this regard, it was held in M.P. Agarwal v. The State of Rajasthan and Anr. 1978 W.L.N. (UC) 383-
If the Government has the discretion not to fill the vacancies occurring in a particular year in that year the result would be that a vacancy which arises in a particular year against the merit quota and is not filled in that year would be lumped up with a vacancy of seniority cum merit quota which arises in a subsequent year and both the appointments will be treated to be made at the same time and there by the person selected by merit will be deprived of his seniority which he would have not if the selection to the post in the merit quota had been made in the year in which the post fell vacant. Such a consequence would be avoided if Sub-rule (1) of Rule 9 is construed as imposing a mandatory obligation on the Government to determine, at the commencement of each year the number of vacancies anticipated during the calander year and the number of persons likely to be recruited by each method of recuritment as laid down in Rule 6 and make appointments on that basis only.
While making appointments on vacancies which arose in an earlier year, the Government will take into consideration the qualification and other conditions of eligibility as were present in the year in which the vacancies arose and treat the said appointments as appertaining to the year or years in which the vacancies arose for the purpose of seniority.
Sub-rule (2) of Rule 9 provides for carrying forward of vacancies from one year to the next year only in those cases where the vacancies have remained vacant due to non-availability of suitable candidates or for other similar reason and that merely because the Government has failed to take any action for the purpose of filling the vacancies in a particular year can be no ground for carrying forward the said vacancies in the subsequent years and to make appointments on these vacancies on the basis of qualifications and other conditions of eligiblity subsequently acquired.
The provisions of Sub-rule (2) of Rule 9 cannot be invoked for the purpose of carrying forward the vacancies of 1969 to 1971 and for purpose of making appointments on all those vacancies in the year 1973. It has, therefore, to be held that it was not permisible for the Government to lump together all the vacancies which had occurred in the previous years i.e. 1969 to 1971 and make selections for promotion on those vacancies on the basis of eligibility existing on the date of making the said selections i.e. in 1973.
The 7 vacancies, including the vacancy on which respondents No. 2 has been appointed, arose during the year 1969 to 1971. It is not disputed that respondent No. 2 had not acquired the necessary postgraduate qualification till June, 1972 and till then he was not eligible for promotion as Junior Specialist. If the vacancies had been filled in the years in which they arose, in accordance with the Rules, respondents No. 2 would not have been eligible for consideration. It has, therefore, to be held that the order dated 19th January, 1973, appointing respondents No. 2 as a Junior Specialist (Medicine) cannot be sustained and has to be quashed.
10. This view was followed in the case of H.K. Hingorani v. The State of Rajasthan and Ors. 1979 WLN (UC) 421-
There appears to be this logic rational of Rule 9 that after determination of vacancies the vacancies shall be filled up by each method yearly on the then existing eligibility conditions. If the rules are not construed in this manner, the rules may be open to abuse and some times legitimate claims may be defeated by clubbing of vacancies.
Reference may also be made to the case of J.P. Acharya v. State of Raj S.B. Civil Writ Petition No. 320 of 1980 wherein, the cases of M.P. Agarwal (supra) and H.K. Hingorani were approved.
11. Learned Additional Government Advocate strenuously challenged the correctness of these three decisions on the ground that the principles of ejusdem generis or rule of noscitur a scciis was not correctly applied in interpretation of Rule 9 of the Rules. 1 may state that Rule 9 of the Rules is analogus to Rule 8 referred to in the aforesaid authorities. Learned Additional Government Advocate relied upon various Supreme Court authorities and argued that it is essential for the application of this Rules that things enumerated before the general words must constitute a distinct category or a genus. The argument in principle is correct but I am of the view that Rule 9 was correctly interpreted in the case of M.P. Agarwal (supra) and the other two authorities. I see no cogent reason to take a different view. The entire scheme of the rules indicate that the promotions are to be made on yearwise vacancies and they could not be clubbed. Any other interpretation put on Rule 9 of of the Rules would violate the constitutional guarantee of equal opportunity in service. I may not dwell upon this aspect of this case as I may basing my order on the ratio of the case of M.P. Agarwal (supra).
12. It is next argued by learned Additional Government Advocate that the cases of the petitioners for promotion to the posts of Assistant Registrar have to be considered for years earlier than 1967. In this view, the departmental promotion committee could not look into their adverse entries in the ACR's for 1968-69, 1969-70 and 1970-71. In this respect, it was thus held in the case of D.C. Dhamankar v. State of Rajasthan S.B. Civil Writ Petition No. 1946 of 1973-
In view of the aforesaid decisions the conclusion is inevitable that the suitability of the petitioner for promotion on the post of Deputy Town Planner, which were vacant in 1966, when the Rules were brought into force, should have been adjudged on the basis of service record of the petitioner existing at the time, and it was not permissible for the Departmental Promotion Committee which met on 21st May, 1973 to take into consideration the adverse remarks contained in the confidential Roll of the petitioner for the year 1967-68, 1968-69, 1969-70 and 1971-72 inasmuch as the said adverse remarks were not there in the years 1966-67 when the vacancies had occurred and with reference to which the selections were required to be made. The proceedings of the Departmental Promotion Committee which met on 21st May, 1973 adjudging the petitioner unsuitable for promotion to the post of Deputy Town Planner can not, therefore, be upheld.
13. For the reasons mentioned in the above authority, I am also of the view that the adverse remarks in the ACRS of the petitioners subsequent to year 1967 could not be looked into to adjudge their suitability by the departmental promotion committee for their promotion to the posts of Assistant Registrar for the vacancies which arose earlier to 1968 and for which the petitioners were eligible for promotions.
14.It was more or less conceded by learned Additional Government Advocate that the petitioners could only be reverted to Inspectors Gr. I and further stated that this error has been rectified.
15. I am also satisfied in view of the reply of the Government that only those respondents were allowed to continue on the posts of Assistant Registrar, who have been atleast approved by the departmental promotion committee under Rule 24(2) of the Rules and, therefore, the petitioners could have no grievance on this count.
16. In the result, I accept the writ petitions and direct that the proceedings and the recommendations of the departmental promotion committee held in December, 1973 be reviewed in the light of the observations made above and cases of the petitioners for promotions be reconsidered for the ear-list yearwise vacancies for which they became eligible, for the post of Assistant Registrar. The petitioners shall also get all consequential benefits. The petitioners in case of their non-selection on the posts of Assistant Registrar should be reverted on the post of Inspectors Gr. I.