Kan Singh, J.
1. Shri Ramsharan Sharma, who is member of the Rajas-than Agriculture Service in Group C, seeks an appropriate writ, direction or order against the State of Rajasthan and the Director of Agriculture commanding them to promote the petitioner with effect from March, 1962 when respondent No 6 Shri M.M. Jain was promoted as Deputy Director of Agriculture and, if necessary, the State Government be further required to create a supernumerary post for the petitioner as Deputy Director and further he be declared senior to respondent No. 3 to 11 in Group B of the Schedule appended to the Rajasthan Agriculture Service Rules, 1960, hereinafter to be referred as the 'Rules'.
2. The petitioner is an Agriculture Graduate from the Agra University He joined the service under the former Matsya Union and on the integration of that Union with the United State of Rajasthan he came to be appointed in the service of the new State. Like him, Shri M.M. Jain, respondent No 6 was also at pointed in the service of the former Matsya Union and he too came to be appointed in the State of Rajasthan. The petitioner claims that when the United State of Rajasthan appointed him, as a result of integration of services, a seniority was assigned to the petitioner in the year 1951 (vide order dated 9-2 51) above Shri Jain. Their relative seniority was recognised even by two subsequent orders namely, one passed on 23rd August, 1967 (Ex 1) and the second passed on 25th January, 1968 (Ex 2). The petitioner relies on this order Ex.2 which specifically mentions that the seniority or the gradation list at the same has been described shall be in force retrospectively from 1 11.56.
3 The Rules came into force in 1960. The petitioner claims that by virtue of the rules he became a member of the Agriculture Service. He proceeds to say that in 1962 a Departmental Promotion Committee was constituted for promotion to the posts in Group-B (Deputy Directors) the promotion being 100% from the officers in Group-C. The petitioner avers that in accordance with the Rules the Director sent a list of eligible candidates who were accordingly considered by the Departmental Promotion Committee functioning under the Rules and the petitioner was considered fit for promotion along with others and the Departmental Promotion Committee forwarded his name to the Government for promotion. The petitioner's grievance is that whereas he was senior to Shri M.M. Jain, the Government promoted Shri M.M. Jain as Deputy Director in officiating capacity and overlooked the legitimate claim or the petitioner. The petitioner further submits that subsequent to that a number or posts in Group-B (Deputy Directors) came to be filled up in temporary capacity without the agency of the Deparmental Promotion Committee, but i he petitioner was not appointed against any of the posts although he was senior to the other respondents who were so appointed. The petitioner admits that while he was holding the post Officer-in charge, Junior Staff, Soil Conservation Centre at Jodhpur, he came to be suspended on account of a prosecution against him, but asserts that be was honourably acquitted and was allowed his full emoluments for the period of suspension. Therefore according to the petitioner, the suspension did not stand in his way and on his exoneration from the criminal charge he should have been given his due and appointed against any of the posts in Group-B temporarily occupied by persons junior to him. The petitioner further states that he submitted a number of representations to the Government for restoring him to the position he would have occupied but for his suspension or for the matter of (hat vis-a-vis Shri MM Jain, but the Government did not do him justice. The petitioner contends that he had been denied an equal opportunity in the matter of promotion vis-a-vis juniors in Group-C while promoting persons from Group-C to Group-B.
4. The writ petition has been contested by the State of Rajasthan. The other respondents have not chosen to appear or file any reply to the writ petition. The State Government has taken the stand that in 1962 when posts of Deputy Directors in Group B were to be filled in the Departmental Promotion Committee met to consider the cases of promotion and as at that time Shri M.M. Jain was senior most in Group C, he was promoted in officiating capacity It was further submitted on behalf of the Government that Shri Jain's seniority was revised by the Governor of Rajasthan vide the order dated 24 2-61 (Ex.R/4) Therefore, according to the Government, as the Departmental Promotion Committee recommended the case of Shri Jain being the senior-most in Group-C, Shri Jain was appointed as Deputy Director. At the bearing learned Deputy Government Advocate took the position that the appointment of Shri Jain, though it purports to be in an officiating capacity, should yet b; taken to be substantive by force of the Rules, as he was functioning against a permanent vacancy Therefore, regarding the case of Shri Jain he draws a distinction that he being a substantive holder of the post in Group-B the petitioner cannot have any claim against Shri Jain As regards the orders Ex.1 and Ex.2, which where made retrospective from 1.11.56, learned Deputy Government Advocate submitted that this would not affect the earlier order passed in the case of Shri Jain. As regards the temporary appointments of the other respondents against posts in Group-B the Government takes the stand that as these were temporary appointments made under Rule 28 of the Rules the Government had full discretion in the matter.
5. As regards the order Ex. R/4, by way of rejoinder, leraned Counsel for the petitioner submitted that this order was passed behind the back of the petitioner and it was clearly unjust. Leraned Counsel pointed out that in 1951 when the petitioner and Shri M.M. Jain were fixed on the posts of Farm Managers in the integrated set up; the cases were screened by a high powered Selection Committee which could not only select from out of the employees of the former States, but it could also fix their seniority and this order of seniority so fixed could not have been changed by the Government just by one stroke of pen without affording any opportunity to the petitioners to have his say in the matter. At any rate, when subsequently order Ex. 2 was passed the matter was placed beyond pale of controversy as this order was expressly made retrospective from 1.11 56. Not only so, order Ex. 2 was passed under Articles 309 of the Constitution read with the provisions of Section 115(b) of the States Reorganisation Act, 1956 and thus this last order being a statutory one would in terms be over riding all other orders on the subject of relative seniority and subsequently the promotion of Shri Jain in preference to that of the petitioner was wrong.
6. Before I proceed further I may clear certain matters. The first one is whether the petitioner wa3 also selected by the Departmental Promotion Committee in the year 1962 as a Deputy Director in Group-B. In para 11 of the writ petition the petitioner averred '
11. That for promotion to the post in Group B which is 100% by promotion from the Officers holding the post in Group C, after the coming into force of the rules a departmental promotion committee was formed. The Director sent a list of eligible candidates and selection v as made on 14 3.62 in which the petitioner was considered eligible for promotion along with others and his name was also forwarded to the Government for promotion in order of seniority.
Government's reply to this paragraph was as follows:
Para 11 of the writ petition is admitted to the extent that the procedure for promotion to senior/selection posts in the Rajasthan Agricultural Service has been laid down under Rule 25(a) and (b). According to Rule 25(1)(a) the Director is required to prepare a list of persons not exceeding 5 times the number of vacancies to be filled in from amongst the eligible persons for promotion. Accordingly the list of eligible persons was prepared by the Director of Agriculture for the D.P.C. which was held in 962. Persons found suitable were promoted from Group C to Group B in accordance with the Seniority as existed on the day when the D.P.C. met and the number of vacancies available at that time.
At the time of hearing leraned Counsel were divided on the question as to whether according to the pleadings, namely para-11, it can be spelt out that the Petitioner's case was that he had been selected by the Departmental Promotion Committee. To char the ambiguity, if any, I called upon the learned Deputy Government Advocate to obtain the minutes of the Departmental Promotion Committee and to go through them and then make a statement at the Bar whether ho petitioner was right in saying that he was also recommended by the Departmental Promotion Committee for appointment as Deputy Director. Learned Deputy Government Advocate had been good enough to obtain the minutes of the Departmental Promotion Committee. He, however, submitted that the minutes were confidential and could not be made part of the record. Nevertheless he had candidly made a statement at the Bar that the petitioner was right in saying that he too had been recommended for appointment as Deputy Director by the Departmental Promotion Committee. It is in this light that the averments in paragraph 11 of the writ petition and No. 11 of the Government's reply have to be understood. The State's reply as per last sentence of para 11 that persons found suitable were promoted from Group C to Group B in accordance with seniority as existed on the day when the Departmental Promotion Committee met and the number of vacancies available at the time. I will be examining in a moment as also the bearing of order Ex R/4. There is one more matter, however, which I may put here before I proceed further. Learned Deputy Government Advocate was called upon to inform the Court whether the Departmental Promotion Committee bad met at any time alter 1962 when Shri Jain came to be appointed as officiating Deputy Director. He, here again,' candidly admitted that the Departmental Promotion Committee had never met since 1962 The last matter on which light was desired to be thrown was whether any substantive vacancies existed at the relevant time and exist at present. Learned Deputy Government Advocate produced a statement signed by the Deputy Director of Agriculture (Administration) on 5.3.74. This statement shows that in 1962 there were 11 permanent post and six temporary posts. Between 1963 to 1969 there were 7 permanent posts and 10 temporary posts. As against the 7 permanent posts there were 6 permanent incumbents and obviously one permanent post was vacant On 1-4-70 there were 12 permanent posts and 6 temporary posts. As against the permanent posts there were 6 incumbents. This means that between 1 4.70 to date there were 7 or 6 vacancies against permanent posts. The ca*e of the petitioner falls to be considered in two parts (i) vis a-vis Shri Jain whose case went through the Departmental Promotion Committee, and (ii) vis-a-vis others who were appointed against temporary posts without the agency of the Departmental Promotion Committee.
7. As regards Shri Jain the crucial question falling for consideration is as to who was senior and in considering this question the effect of order Ex, R/4 has to be considered. It is beyond dispute that on the formation of Rajasthan certain high powered committees were appointed for the integration of the services and separate committees or selection boards were appointed for various services or departments. Their function was not only to select officers, but to arrange them in an order of seniority for each category of civil servants and further the order of seniority was to be effective from the date of the order. Ex. R/5 is the order passed on 9 2.51. The petitioner appears under category 7, that of Farm Managers, at No. 3 Shri Jain's name appears at No. 6 in Ex R/5 None other than the Government had adhered to this order of relative seniority of these two officers when they divided the cadre of Farm Managers in two grades vide Ex 1 dated 23'd August, 1967. The petitioner appears at No 3 under column for Grade I Farm Managers and Shri Jain's name appears at No. 7. Then it appears that while, preparing the seniority o' officers, on the integration of the Ajmer State with Rajasthan consequent to the reorganisation of the States, in accordance with what is popularly known as the Tilak formula the relative seniority of the petitioner and the respondent was maintained as it existed in the order Ex R/5. This order was passed by the Governor under Article 309 read with provisions of Section 116(b) of the States Reorganisation Act. This order shall, therefore, have the force of law. It is made retrospective from 1 Il.fi6,that means that by force of law whatever inter se seniority existed came to be superseded and supplanted by the order of the seniority mentioned in Ex 2. I may read Ex. R/4 at this point.:
GOVERNMENT OF RAJASTHAN
No. F. 30 (152) Agr (Gr. I)/53 Jaipur dated the 24th February, 1961From,
The Secretary to the Government Agriculure Department, JaipurTo,
The Director of Agriculture, Rajasthan, JaipurIn continuation of this Department letter No. F 30 (152) Agr/53 dated the 9th April, 1955, I am directed to convey the sanction of the Governor for placing Shri M.M. Jain, Grade I Farm Manager as the senior-most in the seniority list of the Farm Managers announced vide Appointments Department No. F. 4(4) Apptt /C/51 dated 9 2 1951.
(M. L. Baheti)
ASSTT. SECRETARY TO GOVERNMENT
8. The above order does not disclose for what reasons the order of seniority assigned by the high powered committee appointed to integrate the employees of the Agriculture Department and which was issued as an order from the Rajpramukh was changed. This is, no doubt, an administrative matter and I may accept that the principles of natural justice may not be applicable in their entirety to such an administrative action, but there is no gain saying the fact that such an administrative action, but there is no gain saying the fact that such an order adversely affects the prospects of promotion of officer. In such a situation even in an administrative matter the authorities are expected to act fairly. The statement furnished does show that immediately thereafter some vacancies though temporary were available in the cadre of Deputy Directors in Group-B. The Government's clear stand is that Shri Jain was promoted in officiating capacity on the recommendations of the Departmental Promotion Committee according to the seniority existing at the time by which they perhips mean that Ex R/4 was the order fixing the seniority. I am mentioning this with a view only to bringing out how the fate of an officer could be affected by change of seniority in a certain context or situation that is existing or likely to come in the near future. Though the Government might change the order of seniority if the circumstances so warrant, yet it is expected of them that when they were going to change their own orders which had held 'he field for sufficient time that the minimum that is expected of them is to give reasons for changing the order of seniority. In the present case, however, the subsequent orders passed by the Government unmistakably show that they adherd to the inter-se seniority between the two officers assigned in 1951 by the Selection Committee which was approved by the Rajpramukh. Order Ex. 4, therefore, to my mind, cannot be the basis for holding that the petitioner is junior to Shri Jain. Having read all these relevant orders I have no doubt that the petitioner was taken to be senior to Shri Jain both before Ex. 4 was passed and even after the order Ex. 4. None knows better than the Government as to why they passed the order Ex. R/4. If it was the correct thing then why did they give it up subsequently? There was no answer from the side of the Government.
9. Now I may deal with the argument of the learned Deputy Government Advocate that Shri Jain should be taken to be confirmed as Deputy Director even though Government had not passed any order confirming so. This is the result, according to the learned Deputy Government Advocate, of the rules and I may. therefore, immediately proceed to consider the rules.
10. The Rules appeared in the Rajasthan Gazette Extraordinary dated 29.12.60. Part I thereof is general. Part II deals with the various cadres. Part III deals with the recruitment. It provides that recruitment to the service after the commencement of the Rules shall be made by direct recruitment or by promotion within each section as specified in column 4 of the schedule. There are certain provisos to Rule 8 which deal with various matters but they are not material for our present purposes. This part then deals with ancillary matters like nationality of candidates, their age, academic qualifications and the like. Rule 10 occurring in part III may be noticed. It lays down that subject to the provisions of these Rules the Government shall determine from time to time the number of vacancies in the service anticipated during a particular period of recruitment and number and nature of posts likely to be filled by each method. Part IV lays down the procedure for direct recruitment. Part V lays down the procedure of promotion. Rule 24 occurring therein lays down the criteria of promotion. Rule 25 makes provision for the selection & I may read this rule:
Rule 25. Procedure for selection--(1)(a) As soon as it is decided that a certain number of vacancies in the service are to be filled by promotion, the Director shall prepare a list of persons not exceeding 5 times the number of vacancies to be filled in holding posts in column 5 of the schedule who are eligible for promotion to the categories in the service under the provisions of these rules and shall forward the list together with the character rolls and personal files of the persons included in in the list, to the Secretary to Government in the Agriculture Deptt.
(b) A committee consisting of Chairman or a member of the Commission as Chairman, the Secretary to Government in the Agriculture Department, or his reprehensive not below the rank of Deputy Secretary and the Director as Member Secretary shall consider the cases of all the persons included in the list, interviewing such of them as they deem necessary and shall, subject to their suitability, select a number of candidates twice the number of vacancies likely to filled in the service by promotion. The names of the candidates so selected shall be arranged in a list in order of seniority.
(c) The list prepared by the Committee under Sub-rule (b) above shall be forwarded by Government to the Commission together with the character rolls and personable of all the candidates included in the list as also of persons superseded, if any, and the Commission shall be requested to advise on their suitability for promotion The Commission shall consider the cases of the persons included in the list in the same order in which they have been placed as also of those superseded and shall, subject to their suitability, approve as many of them as the number of vacancies likely to be filled by promotion.
(d) The Commission shall arrange the names of the candidates approved by them in a list in the order of seniority and shall forward it to the Government.
(e) The final selection shall be made by the Government and a list of persons selected shall be arranged in order of their seniority.
Then the procedure for promotion for selection posts in Groups A and B and we are concerned with Group-B, is laid down in Rule 26 which too I may read in full:
Rule 26. Procedure for promotion to Senior selection posts (Group A and B) : (a) When a vacancy in Senior Selection posts is to be filled by promotion, the Director shall prepare a Hot of all persons holding posts in the next below group who are eligible for promotion under the provisions of these rules and forward the same to the Committee referred to in Rule 25(1)(b) in the manner prescribed in Sub-rule 25(a) above. The Committee shall consider the cases of all those who are included in the list, interviewing such of them as they deem necessary and shall select suitable candidates for promotions
(b) The names of those selected by the Committee as also of others superseded, if any, shall be forwarded to the Government with their personal files and character rolls, who shall make the final selection;
(i) that if Government is satisfied in consolation with the Commission, that no suitable officer is available from the service for the post of Director, they may appoint an officer of the IAS, RAS or an officer on contract, or on deputation from the Government of India or any other State Government or by re-employment of retired member of the service of this State on this post provided that such appointment shall not be made for a period exceeding two years without obtaining the concurrence of the Commission.
(2) that if Government is satisfied in consultation with the Commission that no member of the service is suitable for appointment to any of the Senior posts they may fill such posts by appointment thereto of a person or persons on contract or on deputation from the equivalent service of the Government of India, or any other State Government or by re-employment of a retired member of the service of this State, provided that such appointment or appointments shall not be made for a period exceeding two years without obtaining the concurrence of the Commissions.
11. Part VI is about appointments, probation and confirmation : Rule 27 lays down that appointments to the service shall be made by the Government on concurrence of substantive vacancies by selection of persons from the list referred to in Rule 23 or 25(1)(e) or 26(a)(b), as the case may be. Then Rule 28 is about the emergent temporary appointments and I may also read this rule in full:
Rule 28: Urgent Temporary Appointment:
A vacancy in the service which cannot be filled in immediately either by direct recruitment or by promotion under the rules may be filled in by the Government or by the Authority, competent to make appointments, as the case may be, by appointing in an officiating capacity thereto an officer eligible for appointment to the post by promotion or by appointing temporarily thereto a person eligible for direct recruitment to the Service, where such direct recruitment has been provided under the provisions of these rules:
Provided that such an appointment will not be continued beyond a period of one year without referring the case to the Commission for concurrence, where such concurrence is necessary, and shall be terminated immediately on its refusal to concur:
Provided further that in respect of a Service or a post in a Service for which both the methods of recruitment have been prescribed, the Government or the Authority competent to make appointments, as the case may be, shall not fill the temporary vacancy by appointing a a person eligible for direct recruitment unless no suitable person eligible for promotion is available.
12. Then Rule 32 is about confirmation. According to this rule a probationer shall be confirmed in his appointment at the end of the period of probation and a person who after having worked on a temporary post included 5n the Service for a period of one year or more is appointed to a permanent post, shall be confirmed in his appointment. Then it is subject to the proviso that the officers have passed the prescribed departmental examination completely and Government are satisfied that their integrity is unquestionable and that they are otherwise fit for confirmation. Rule 32 is clear enough to show that confirmation is not automatic. Government have, inter alia, to be satisfied that the incumbents are fit for confirmation.
13. Now Rule 25 contemplates the procedure of selection through a Departmental Promotion Committee Rule 28 contemplates urgent temporary appointments. Reading there rules together one cannot but come to the conclusion that when certain number of vacancies are to be filled by promotion
the procedure prescribed in Rule 25 has to be gone through. Rule 28 speaks of the filling up of a temporary vacancy, that is, it is only the emergency power of the Government which enable them to fill up a temporary vacancy not likely to last for long.
14. In the present case it is strange that since 1962 the Departmental Promotion Committee had never been convened, such a course cannot be taken to have been contemplated by the rule making authority. When posts are likely to exist for a sufficiently long time it becomes the clear duty of the Government to convene a Departmental Promotion Committee under Rule 25. Under the garb of the emergency powers under Rule 28 they cannot be allowed to continue persons for years and years together on posts required to be filled in by promotion or direct recruitment. That will be the clear negation of the mandate under Rule 25. It is obvious that the rule making authority has made provision for a Departmental Promotion Committee so that the past performance of the officers as well as their potentiality for future can be properly assessed in the light of the records of such officers. Government are required to act through the Departmental Promotion Committee. In other words, the process of appointment from the stage of the convening of the Departmental Promotion Committee to that of the making of an order of appointment under Rule 27 is integrated one and the Government cannot be permitted to give a go-by to the procedure embodied in Rule 25 when they are going to fill up the posts by promotion. The same procedure applies mutatis mutandis for filling up the posts in Groups A and B vide Rule 26.
15. I am, therefore, unable to accept the contention of the learned Deputy Government Advocate that Shri Jain should be taken to have been automatically confirmed by operation of the rules in the absence of any order of confirmation of the State Government. Rule 25(b) contemplates that having reflected the candidates according to their suitability the Committee shall arrange their names in a list in order of seniority. There is no manner of doubt now in the light of the statement made by the learned Deputy Government Advocate at the Bar that both Shri M.M. Jain and the petitioner were selected by the Departmental Promotion Committee Shri Jain see-us to have been placed higher in the list, because it was thought that he was senior to the petitioner.
16. In view of the various orders of the Government to which I have made a reference it appears that order Ex R/4 was wrong and consequently the recommendation of the Departmental Promotion Committee placing Shri Jain above the petitioner in the list vide Rule 25(b) read with Rule 26 was wrong.
17. Therefore, I hold : (1) that according to the Government orders the petitioner was senior to Shri Jain in Group-C, (2) that the petitioner was also selected by the Departmental Promotion Committee along with Shri Jain and others, but the order in which their names were arranged in the list by the Departmental Promotion Committee was wrong. (3) Consequently there was no justification for appointing Shri Jain as officiating Deputy Director in Group B ignoring the case of the petitioner. It is true, inspite of the recommendations of the Departmental Promotion Committee it is open to the State Government to appoint a junior person in preference to a senior one, but then in that event reasons have to be assigned by the Government. Without the Government assigning any reasons for superseding a senior man, their order cannot normally be accepted as a valid one.
18. Now I may deal with the case of the petitioner vis a-vis the other respondents. The other respondents were appointed in exercise of the emergency powers as temporary appointees under Rule 28 of the Rules. There appointments have been continuing for a sufficiently long time and it is a clear abuse of the powers under Rule 28. Government cannot, in my view, decline to follow the procedure under Rule 26 read with Rule 25 for making appointments to Group B, for a long duration. Now the statement furnished by the Government clearly shows that even 6 permanent vacancies are existing for a pretty long time. Therefore, the Government are under a clear mandate to resort to the procedure of Rule 26 read with Rule 25 of the Rules. Learned Deputy Government Advocate drew attention to the fret that there were certain adverse entries against the petitioner and that was precisely the reason for the Government not appointing the petitioner in preference to the other respondents. It will be for the Departmental Promotion Committee to assess the effect of such entries, because that function in the first instance has been assigned by the rule making authority to the Departmental Promotion Committee. Apart from this it will have to be examined in the light of what was laid down in Nareshwarlal Joshi v. State of Rajasthan 1971 RLW 140, whether the adverse entries were of such a character as would require the furnishing of an opportunity to the Government servant to explain them. It is, therefore, just and proper that the Government are directed to convene a Departmental Promotion Committee for the selection of officers by promotion from Group C to Group-B namely, Deputy Directors and others in accordance with the rules. Here I am considering the question as to what appropriate order be passed till selections are made under Rule 26 read with Rule 25 of the Rules. 1 think that the Government timid be left free to make temporary appointments under Rule 28 till selections are made by D.P.C. and appointments made in the light of such selections by the Government under Rule 27 of the Rules.
19. I, therefore, order : (1) that the Government shall convene a Departmental Promotion Committee according to Rule 26 read with Rule 25 of the Rules within a period of 4 months and the eventual appointments under Rule 27 within a period of 2 months after the submission of the select list by the Departmental Promotion Committee; (2) the orders appointing the respondents Nos. 3 to 11 in Group-B are hereby quashed The Government shall, however, be free to make emergency temporary appointments under Rule 28 till the selections are made by (he Departmental Promotion Committee and the appointments are eventually made by the Government under Rule 27 of the Rules.
20 The writ petition is accepted in the above terms and the parties are left to bear their own costs.