Kan Singh, J.
1. The two writ petitioner before me raising some common question were called on for hearing together and they can conveniently be disposed of by one judgment.
2. I may firston state the facts in Kulin Kant's case the petitioner Kulin Kant entered the services of the State of Rajasthan on 1-2-51 when he was appointed as a Lower Division Clerk in the erstwhile Customs and Excise Department of the State, He was temporarily promoted as an Inspector on 2-3-51 Rajasthan on 1.2.51 when . In the year 1959 some posts of Assistant Salts Tax Officers were advertised by the Rajasthan Public Service Commission vide their advertisement No. 7 of 24-7-59. The petitioner applied for one of such posts and was duly selected as Assistant Sales Tax Officer. By their order dated 16-5-60 the Government appointed him as Assistant Sales Tax Officer on one year's probation. He was to be confirmed on his passing the prescribed departmental test the petitioner passed the Departmental test and was eventually confirmed as Assistant Sales Tax Officer with effect from 31-5-62. The petitioner, inter alia, made grievance of the date of his confirmation which should have been 31-5-61 instead of 31-5-62. The petitioner claims that he has a clean service record and there was no adverse entry against him. Besides the State there were two respondents Servashri Nandlal and Madanmohan joshi. Since Shri Madanmohan Joshi had retired. I need not make any further mention of him. Shri Nandlal, respondent No. 2 was holding the post of Inspector in the Excise and Taxation Department to start with. He was appointed to officiate as Assistant Sales Tax Officer vide Government order dated 28-8-58. At this stage it may be mentioned that the post of Assistant Sales Tax Office is and Sales Tax Officers were respectively redesigned as Assistant Commercial Taxes Officers and Commercial Taxes Officers, Respondent Shri Nandlal was promoted as officiating Commercial Taxes Officer vide Government order dated 1-7-67. At the time Shri Nandlal was promoted to officiate as Commercial Taxes Officer there were no statutory rules governing the promotion the petitioner contends that the promotion of Shri Nandlal as Commercial Taxes officer in officiating capacity was in violation of Articles 14 and 16 of the Constitution of India inasmuch as the petitioner who was senior to Shri Nandlal was not considered for such officiating promotion. It was next contended that Shri Nandlal had continued to officiate for a, period exceeding six months without the concurrence of Rajasthan Public Service Commission the petitioner has, therefore, prayed that the appointment of respondent No. 2 Shri Nandlal as officiating Commercial Taxes Officer vide order Ex.2 be quashed or in the alternative an appropriate writ, direction or order be issued against the respondent State not to continue respondent Shri Nandlal as Commercial Taxes Officer in preference to the petitioner.
3. The writ petition has been opposed by the State. It is dented that the order confirming the petitioner from 31.5.62 instead of 31.5.61 was bad. It was averred that the petitioner had failed in the departmental examination and, therefore, his confirmation was deferred for a year and as soon as be passed the examination he was confirmed. Regarding Shri Nandlal it was submitted that be had been confirmed as Assistant Commercial Taxes Officer with effect from 14-10-71, after the coming into force of the Rajasthan Commercial Taxes Service Rules, 1971 with effect from 14-10-71, hereinafter to be referred as 'the Rules'. It was further submitted that at the time Shri Nand Lal was promoted to officiate as Assistant Commercial Taxes Officer in la69the petitioner's case was considered by the Government who felt that the promoted Assistant Commercial Taxes Officers like Shri Nandlal had officiated for a longer period as Assistant Commercial Taxes Officers and, therefore, they should be given their due and it was precisely for this reason that Sriri Nand Lal was promoted in preference to the petitioner who was appointed by direct recruitment in the year 1960 as Assistant Commercial Taxes Officer. It was further pointed out that in the cadre of Inspectors the petitioner was junior to Shri Nandlal.
4. The facts in Shri Ibrahim Ali's case are similar with the difference that Shri Ibrahim Ali entered Government services on 11-1-51. He was appointed as Inspector in the Customs and Excise Department in 1955 along with the petitioner Shri Kulin Kant. He too was selected by Rajasthan Public Service Commission as Assistant Sales Tax Officer and was appointed by the same order that of Kulin Kant as Assistant Sales Tax Officer on one year's probation. He was confirmed a Sales Tax Officer from 18-5-61. The respondent in his case is Shri Gautampal. Shri Gautampal was an Inspector in the Commercial Taxes Department. He was appointed as Assistant Commercial Taxes Officer on 27-10-56. He was then appointed as officiating Commercial Taxes Officer on 22-6-68 and like respondent Shri Nandlal in the other case, was concerned as Assistant Commercial Taxes Officer with effect from 14-10-71. Ibrahim Ali's grievance was that though he was senior to Shri Gautampal he was not considered for promotion as officiating Commercial Taxes Officer in 1968 when Shri Gautnmpal was so promoted and this, according to him infringed his fundamental right of equality under Article 16 of the Constitution.
5. The writ petition has been opposed by the State. It was denied that Gautampal was junior to the petitioner. It was submitted that as an Inspector Gautampal was senior to the petitioner & he was officiating as Assistant Sales Tax Officer from before the petitioner came to be appointed as Assistant Commercial Tax Officer. It was further submitted that he was an ex-Military Officer and had been taken as an Inspector directly in the Document on being discharged from the Military. As regards Shri Gautampal's promotion as officiating Commercial Taxes Officer it was submitted that there was no occasion to consider the case of the petitioner as Shri Gautampal had made a representation claiming seniority on the basis of his longer service & finally, it was submitted that the petitioner too had been promoted temporarily as Commercial Taxes Officer vide Government order dated 30-10-71 Here again the argument is that respondent No. 2 Shri Gautampal was senior to the petitioner on account of his Officiating as Assistant Commercial Taxes Officer from before the petitioner's appointment as Assistant Commercial Taxes Officer.
6. I have heard learned Counsel for the petitioner, learned Additional Government Advocate and learned Counsel for Shri Nandlal and Shri Gautempal In a nutshell the argument of the learned Counsel for the petitioners in both the cases is that the writ petitioners were direct recruits in the cadre of Assistant Commercial Taxes Officer and they had been confirmed in the years 1961 and 1962 respectively, whereas none of the respondents was a confirmed Assistant Commercial Taxes Officer at the relevant time & consequently the Government were under a duty to consider the case of a senior person first for promotion the argument of learned Additional Government Advocate is a three-fold one : firstly, he contended that seniority of Assistant Commercial Taxes Officers has still to be determined in accordance with the proviso to Rule 21 of the Rules and, therefore, the writ petitions were premature. In the second place, he submitted that the cases of the writ petitioners were considered at the relevant temporarily, as the concerning respondents were thought to be senior on account of longer officiation as Assistant Commercial Taxes Officers, they were promoted in officiating capacity Finally, regarding Kulin Kant learned Additional Government Advocate sought to raise a point that Shri Kulin Kant was once promoted temporarily as Commercial Taxes Officer, but he was reverted on account of his unsatisfactory work and, therefore, he can make no grievance if he was not appointed to officiate as Commercial Taxes Officer in preference to Shri Nandlal Sharma.
7. Learned Counsel for Shri Gautampal wanted to draw support from a notification published in the Gazette of 2-12-60 at page 483, wherein in the list of Assistant Commercial Taxes Officers the name of Gautampal was at serial number 4. Shri Kasliwal submitted that this was an interlaced seniority list prepared under Section 115 of the States Recoganistion Act, 1956 and made effective from 111 66 and, therefore, the seniority of Shri Gautampal cannot be affected.
8. Shri Rastogi who appeared for Shri Nandlal Sharma, by and large, took the line taken by the Additional Government Advocate.
9. From what I have stated above it will be evident that the two writ petitioners were thought to be junior to the concerning respondents and, therefore, the latter were appointed to officiate as Commercial Taxes Officers in preference to the writ, petitioners. I may straight away say regarding the Gaze the notification dated 2-12-60 that that was a seniority list of temporary officiating Assistant Sales Tax Officers (subsequently redesignated as Assistant Commercial Taxes Officers) and there is barely any question of affecting that seniority the question is as between the writ petitioners and the concerning respondents who is senior when the wit petitioners came to be confirmed is Assistant Commercial Taxes Officers i.e. from a much laser date namely, 14-10-71, that is, almost 9 or 10 years after the confirmation of the writ petitioners as Assistant Commercial Taxes Officers.
10. For the purposes of appreciating the rival contentions fully. I may at this point read the relevant Roles.
11. Rule 2(g) defines a Member of the Service to mean a person appointed in a substantive capacity to a Dist in the Service under the provisions of the Rules and includes a person placed on probation Rule 5 is about the initial constitution of the Service and I may read it in full:
Rule 5, Initial constitution of the Service : Notwithstanding any thing contained in parts III and IV of these Rules, initial constitution of the Service shall be made as under:
(1) Officers who held the post of Commercial Taxes Officers in ad hoc/officiating capacity on 1st January, 1968 and were working as such on the date these Rules came into force and who were substantive Assistant Commercial Taxes Officers in the said date shall have their suitability adjudged by the Committee referred to in Sub-rule (2) of Rule 17, provide It hey possess five years experience on the post of Assistant Commercial Taxes Officer (including higher post) on the date of commencement of these rules.
(2) Except as otherwise provided in Clauses (1) and (3), officers who are substantive Assistant Commercial Taxes Officers on the date of coming into force of these rules shall become members of the Service as Assistant Commercial Taxes Officers with effect from the date of coming into force of these rules.
(3) All persons who hold the post of Assistant Commercial Taxes Officer on probation, on the date of coming into force of these rules shall be deemed to have been appointed on probation under these rules and the period of probation already undergone in their case shall be deemed to have been spent under these rules.
(4) All persons who held the post of Assistant Commercial Taxes Officers (including higher posts) in ad hoc, officiating or temporary capacity on 1st January, 1968 and were working as such on the date these rules came into force and who were substantive Commercial Taxes Inspectors on the said date shall be screened for having their suitability adjudged for the post of Assistant Commercial Taxes Officers by the Committee referred to in Sub-rule (2) of Rule 17, provided they possess five years experience on the post of Commercial Taxes Inspector (including higher post) on the date of commence cement of these rules.
(5). Lists of persons adjudged suitable under Sub-rule (1) or Sub-rule (2) shall be sent to the Commission and on receipt of the advice of the Commission; and after consideration of such modification as the Commission may suggest, Government shall appoint substantively, from the date of commencement of these rules, those finally adjudged as suitable on the post of Commercial Taxes Officers or Assistant Commercial Taxes Officers, as the case may be.
Explanation: - For purposes of this rule:
(a) service as Assistant Sales Tax Officer or Assistant Excise and Taxation Officer shall count in computing the period of service as Assistant Commercial Taxes Officer; and
(b) service as Saks Tax Inspector or Inspector, Excise and Taxation shall count in computing the period of five years as Commercial Taxes Inspector,
Part III is about recruitment. Part IV is about procedure for recruitment to the post of Assistant Commercial Taxes Officer by promotion and for appointment to higher posts by promotion, Part V is about appointment, probation and confirmation. Rule 21 is about seniority in each category of service and I may read this rule too in full:
Rule 21, Seniority : Seniority in each category of the Service shall be determined by the year of substantive appointment to a post in the particular category-
1. that the seniority of persons appointed to the service in accordance with Rule 5 and/or in the process of integration of the services of the pre-reorganization State of Rajasthan or the Services of new State of Rajasthan established by the States Reorganization Act, 1956, shall be determined, modified or altered by Government, on an ad-hoc basis in consultation with the Commission.
2. that if two of more persons appointed as Assistant Commercial Taxes Officers have the same year of appointment, a person appointed by promotion, shall be senior to a person appointed by direct recruitment;
3. Among persons appointed to the same grade of post by promotion during the same year, persons appointed from the list prepared according to Rule 17(9) shall be senior to a person appointed from the list prepared according to Rule 18(7), and seniority inter se of persons appointed from each list shall f How the order in which they have been placed in the list.
4. that the seniority inter se of persons appointed to a particular category by direct recruitment on the basis of one and the same selection, except those who do not join service when a post is offered to them, shall follow the order in which they have been placed in the list prepared by the Commission.
5. that the seniority inter se of persons appointed by promotion to a particular class of posts on the same date shall be the came as in the next How grade, except in cases of continued officiation on higher posts when it shall be in accordance with the length of such continued officiation provided that such officiation was not ad hoc or fortuitous, but was based on lists prepared under Sub-rules (2) and (3) of Rule 17.
The assertion of the respondents that they were senior to the writ petitioners as Inspectors has no relevance whatsoever as the petitioners applied for appointment as Assistant Commercial Taxes Officers in pursuance of an advertisement by the Rajasthan Public Service Commission and on being selected by it were appointed by the Government as Assistant Commercial Taxes Officers. To start with they were on probation but were later confirmed, and therefore, it is idle to contend that the concerning respondents will still carry on their seniority with them vis-a-vis the petitioners as Inspectors. I have mentioned this argument only to reject it therefore, the position of the writ petitioners vis-a-vis the concerning respondents has got to on examined on the footing that they were directed recruits and had been confirmed as Assistant Commercial Taxes Officers in year 1961 & 1962 respectively, whereas at that time both the concerning respondents Servashri Nandlal and Gautampal were only officiating Assistant Commercial Taxes Officers and were confirmed from 14.10.71. Learned Additional Government Advocate submits that their seniority has yet to be determined and the Government are competent to do so under the proviso to Rule 21. That may be so, but the fact stares one in the face that both the writ petitioners were confirmed as Assistant Commercial Taxes Officers almost 9 or 10 years before the confirmation of the concerning respondents. How the Government will get over this will be a matter for them to consider, but for the purposes of promotion it cannot be assumed or predicted that the petitioners were junior to the concerning respondents. It is but common sense that a person who is confirmed in a cadre before another is undoubtedly senior to the one who is confirmed on a later date therefore, when without first determining it if at all, the Government could any doubt about their inter se seniority, the Government could not have ignored the fact that the petitioners had been confirmed by none other than the Government themselves long before concerning respondents came to be the confirmed as Assistant Commercial Taxes Officers therefore, before the respondents could be considered for officiating appointment it was the duty of the Govt., to consider the suitability of the writ petitioners and it is only in the event of the writ petitioners not being found suitable that the Government could have overlooked their claim for promotion in officiating capacity. It is clear from the Government's own reply that they proceeded on the premise that the concerning respondents were senior to the petitioners. That was, in my view an erroneous assumption or premise and the Government could not have ignored their own orders of confirming the writ petitioners long before the respondents were confirmed by hem unless they specifically proceeded under Rule 21 of the Rules. I may guard myself against being understood that they could proceed under proviso to Rule 21 It will be a matter for them to consider & I express no opinion on it. It will be for them to concentrate on the question how they can get over the broad fact that the writ petitioners were confirmed as Assistant Commercial Taxes Officers almost 9 or 10 years before the concerning respondents came to be confirmed by the Government.
12. As regard Shri Kulin Kant having once been promoted temporarily and being reverted subsequently en account of his unsatisfactory work, it is enough to say that there is no averment of the kind in the Government's reply. I am not inclined to adjourn the cases only to enable the Government to now amend their reply. Son Ibrahim Ali is already officiating as Commercial Taxes Officer, but Shri Kulin Kant is yet ah Assistant Commercial Taxes Officer.
13. In the result, therefore, I allow both the writ petitions in part and direct the State to consider the suitability of both the writ petitioners as from the date from which the two respondents were respectively promoted to officiate as Commercial Taxes Officers and in 'he event of both or any one of the petitioners being found suitable on the dates or dates on which their juniors were appointed to officiate as Commercial Taxes Officers, the Government shall give them the monetary benefit as well as due seniority at the time seniority is finally determined taking note of amongst others continued efficiation as Commercial Taxation Officers.
14. The parties are left to bear their own costs.