S.K. Mal Lodha, J.
1. By this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs:
(a) that an appropriate writ, direction or order be issued under Article 226 of the Constitution quashing and setting aside the Government order dated November 30, 1973 reverting the petitioner back from the post of Assistant Registrar to the post of Inspector, Co-operative Department;
(b) that ah appropriate writ, direction or order be issued directing the respondents No. 1 and 2 to prepare a common seniority list of Inspectors in the Co-operative Department in accordance with the date of their substantive appointment as Co-operative Inspector Grade II and to use the same for the purpose of promotion in the department;
(c) that by an appropriate writ, direction or order the seniority list issued by the respondent No. 2 dated September 24, 1973 and dated; October 8, 1973 be quashed and set aside;
(d) that any other appropriate writ, -direction or order may be granted to the petitioner for which the petitioner may be found entitled in the facets and circumstances of the case;
(e) Costs of the petition be awarded to the petitioner from the respondents.
An advertisement was published on behalf of the Rajasthan Public Service Commission inviting applications for the post of 8 Inspectors in the Co-operative Department. This was done somewhere in June or July, 1955. The applications were to be submitted by September 29,1955. In that very advertisement, applications were invited for the post of 12 Auditors in the Co-operative Department in the grade of 90-5-160 and also for the post of 15 Assistant Inspectors in the grade of 65-4-103-EB 5-135. The qualifications for the aforesaid posts were mentioned in the advertisement. The miscellaneous conditions regarding appointment are contained in para 7 of the advertisement. The relevent terms contained in that para are: (1) The selected candidates will have to join duty immediately after selection; (2) Candidates selected for the post No. 1 will have to undergo training for 5 to 12 months and No. 2 for 7 months and for No. 3 for six months, during which they will get a stipend of Rs. 50/- p.m. for posts No. I and 2 Rs. 40/- p.m. for post No. 3 and (3) appointment shall be subject to successful completion of the training and selected candidates will have to execute a bond to serve the department for atleast five years.
2. The petitioner was selected by the Commission for the post of Inspector of the Cooprative Department. The Registrar, Cooperative Department, by his letter No. 2619/Estt/F. Recruitment CDR/56 dated February 14, 1956 in formed the petitioner that he has been selected and was required to report to the Principal, Regional Cooperative Training Centre, Indore for receiving the necessary training latest by February 21, 1956 at it has already commenced working. In that letter, it was, inter alia, mentioned that regular appointment as Inspector will depend on the successful completion of training After completion of training at the Regional Cooperative Training Centre, Indore the petitioner was appointed Inspector in the Cooperative Department in the grade of 110-5-135 EB-10-225 as the grade had been revised and the salary was fixed at Rs. 110-. plus usual dearness allowance. The appointment order was provisional pending announcement of the result of the training. Subsequently the petitioner was declared successful by the Regional Cooperative Training Centre, Indore. The posts of Inspector Grade IF were the posts created for the plan period and when these posts were made permanent w.e.f. July 1, 1959, the petitioner was also confirmed as Inspector Grade II w.e.f. July 1, 1959 under the orders of the Registrar dated June 3, 1965. The order dated June 3, 1965 confirming the petitioner w.e.f. July 1, 1959 has been filed by the petitioner marked as Annexure-2. By order No. F. 1 (6-B) CDR/Estt/L/56 dated July 3 and 4, 1967, the Registrar, Cooperative Societies issued a provisional common seniority list of permanent Inspectors (Executive and Audit) of the Cooperative Department appointed upto December 31, 1958 The name of the petitioner was shown at serial No. 108 in the seniority list (Annexure-3). The persons whose names are mentioned in para 20 of the writ petition are junior to the petitioner. Out of those 20 persons some of them have only been impleaded as non-petitioners in the writ petition, for, they have not been reverted under the impugned order dated November 30, 1973. Thereafter another provisional common seniority list of permanent Inspectors (Executive and Audit) of the Cooperative Department appointed upto December 31, 1958 was issued by the Registrar, Cooperative Department under his order dated October 22, 1970. The said seniority list has been file by the petitioner marked as Annxure-4, According to the petitioner, respondents No. 3 and 4 (whose name was ordered to be struck off vide court's order dated July 22, 1975) and respondents No. 5, 6, 7, 8, 10, 11, 12 and 13 were selected as auditors by the Rajasthan Public Service Commission on March 7/8, 1956 in the grade of 90-5-160. They were, however appointed as Inspectors Audit near about September 29, 1956. Subsequently under order dated July 4, 1967, these persons were retrospectively appointed as Inspectors (Audit) in the Cooperative Department w.e.f. March 8, 1956 when they were selected by the Rajasthan Public Service Commission as Auditors. The petitioner has stated that respondents No. 3 to 8 and 10 to 13 are junior to him and it was on account of their having been appointed as Inspectors (Audit) w.e.f. March 8, 1956 while the petitioner was appointed with effect from February 20, 1956. So also he has stated that respondents No; 9 and 14 are also junior to him as they were appointed as Inspectors w.e.f. June 26, 1956 and July 4, 1956 respectively while, the petitioner was appointed w.e.f. February 20, 1956. Respondent No. 15 is said to be formely Inspector Grade III and wais promoted as Inspector Grade II under Government Order No F. 1(27) Cooperatives/57 dated May 5, 1958. The petitioner was promoted as Inspector Grade 1 under Order No. 80098 F. 3/Prom/CDR/Estt/8/57 (Anx. 5) dated November 21, 1960. Respondents No. 3 to 15 were promoted as Cooperative Inspectors Grade I subsequent' sometime in the year 1960 or even later. The petitioner goes on to say; that he along with 20 others including respondents No. 5 to 14 was appointed as Assistant Registrar, Cooperative Societies on ad-hoc basis under; the orders of the Govt. No. F. 18(8) Cooperattve/1/67 dated April 18, 1968. Respondents No. 3, 6, 7, 8, 9, 11, 12, 13 were also promoted as Assistant Registrar on ad-hoc basis vide order No. F. 18(98) Cooperative/1/67 dated April 18/20, 1967. Other respondents were also promoted as Assistant Registrars on ad hoc basis from time to time. Respondent No. 10 was also promoted as officiating Assistant Registrar on ad hoc basis under Govt. Order No./18(15)/Cooperative/1/69 dated August 7, 1969. The Registrar (respondent No. 2) by his order No. F. CO1/Estt/B/II/73/6 dated April 4, 1973 purported to issue a seniority list of Inspectors Grade II Audit and Executive as on January 1, 1973 and in the order it was mentioned that errors Or omissions if any, may be brought to his notice within a period of one month from the date of issue of the order, meaning thereby that the seniority list was provisional in nature. In the seniority list, the name of the petitioner was shown at serial No-27. Subsequently, vide Order No. F. 1(6) CDR/Estt/B/II/73 dated. September 4, 1973, respondent No. 2 issued a final seniority list of Inspectors (Executive) Grade. II as on July 1, 1973. Vide Order No. 24(46)CDR/Estt/Audit 1962; dated October 8, 1973 respondent No. 2 issued another seniority list of Inspectors (Audit) Grade II as on September 20, 1973. In the seniority list, the name of the petitioner was shown at serial No. 32. According to the petitioner all the Inspectors Grade II in the Cooperative Department whether executive or audit form one common cadre and under the Rules in vogue there should have been one common seniority of all of them, and so the issuance of seniority list was not in accordance with the Rajasthan Subordinate Cooperative Service (Class I) Rules, 1955, (For short the Rules hereafter).
3. No reply |o the writ petition has been filed on behalf of respondents No. 1 and 2. However, in the reply to the stay application, it was contended that the petitioner had already been reverted from the post of Assistant Registrar, which he was holding on a purely ad hoc basis under orders of the Government dated November 30, 1973, that he has been posted in the capacity of Inspector as Executive Officer, Central Cooperative Bank Ltd. Jodhpur on deputation vide orders dated December 7, 1973 and that at that time he was working as Executive Officer in the said Bank in the capacity of Inspector on deputation. It was further pleaded that the petitioner had been reverted from the ad hoc post of Assistant Registrar to the substantive post of Inspector on account of the fact that 13 directly recruited Assistant Registrars through Rajasthan Public Service Commission were available and that the petitioner could not claim any permanent status on the post held by him on an ad hoc basis during such time until regular candidates through Rajasthan Public Service Commission were available. According to respondents No. 1 and 2, respondents No. 3 to 14 were all Inspectors (Audit) working in the Cooperative Department and that they were recruited through the Rajasthan Public Service Commission on March 8, 1956 but the petitioner as well as respondents No, 3 to 14 had to undergo training after their selection by the Commission. After completion of the training, the petitioner was appointed as Inspector (Executive) in the Cooperative Department on December 17, 1956. The training period of respondents No 3 to 14 was of lesser duration and as such they were appointed as Inspectors (Audit) in the Cooperative Department earlier than the petitioner. As regards respondent No. 15, it was stated that he was a substantive, hand duly selected by the special selection Board as Inspector in the Cooperative Department as back as in the year 1952. He was confirmed as Inspector Grade II w.e.f. July 1, 1959 and as Inspector Grade I w.e.f. March 1, 1960. He was promoted as Assistant Registrar on an ad hoc basis vide order dated July 14,1959 while the petitioner was promoted as Assistant Registrar after about nine years in April, 1968. In this way, the claim of the petitioner that he should he assigned seniority over respondent No. 15 was refuted as the latter was a confirmed Grade I Inspector on the date of reversion of the petitioner. It appears from the record that respondent No. 15 filed a representation contesting that the petitioner is not senior to him.
4. I have heared Mr. B. R. Arora; learned Counsel for the petitioner and Mr. H. N. Calla, learned Additional Government Advocate.
5. Learned Counsel appearing for the parties are in agreement that it is not necessary to grant relief No. a) mentioned above to the petitioner in view of the fact stated in para 28 of the writ petition that the petitioner alongwith 20 others was appointed as Assistant Registrar on ad hoc basis under the order of the Government No. F. 18(8) Cooperative/1/67 dated April 18, 1968.
6. The only contention raised by the learned Counsel for the petitioner is that as all the Inspectors Grade II in the Cooperative Department whether Executive or Audit form one cadre under the Rules and, therefore, there should be one common seniority list of all of them and so two separate lists prepared may be quashed and the common seniority list of Inspectors Grade II may be ordered to be prepared in accordance with the substantive appointment as Inspectors Grade II. In other words, the petitioner has prayed that two separate seniority lists dated September 24, 1973 and October 8, 1973 may be quashed. In support of his argument, Mr. B. R. Arora, learned Counsel for the petitioner has relied on Permanand Biswal v. State of Orissa and Anr. 1973 SLR and Prabhaker v. State of Maharashtra : 2SCR315 . On the other hand Mr. H. N. Calla, learned Additional Government Advocate has cited State of JK v. T. N. Ghose : (1974)ILLJ121SC . He submitted that the contention of Mr. Arora, learned Counsel for the petitioner deserves to be rejected in view of State of J&k;'s case : (1974)ILLJ121SC . for two separate seniority lists were rightly prepared.
7. I have considered the rival contentions raised by the learned Counsel appearing for the parties.
8. The Rules were published in the Rajasthan Rajpatra dated February 18, 1956 Part IV-C. Service has been defined in Rule 4(g) as the Rajasthan Subordinate Cooperative Service (Class-I). In Rule 6, the strength of the service of Inspectors Grade I, Inspectors Grade II(Exs), Inspectors Grade II (Audit) and Inspectors Grade II has been specified as 10, 14,30, 36 respectively. According to Rule 7 (which deals with sources of recruitment), recruitment to the service is required to be made to the posts of Inspectors Gr. II (i) by competitive examinations (ii) by promotion from the Rajasthan Subordinate Cooperative Service (Class II) and (iii) by transfer of persons holding substantively an equivalent post when such a post is abolished. Procedure for direct recruitment has ; been laid down in Part IV of the Rules. Part IV contains Rules 17 to 24. It will be useful to quote Rule 24 of the Rules, which reads as under:
24. Recommendations of the Commission.--The Commission shall prepare a list of the candidates recommended by them for direct recruitment in order of their proficiency as disclosed by their aggregate marks. If two or more of such candidates obtain equal marks in the aggregate, the Commission shall arrange them in order of merit on the basis of their general suitability for the Service.
The Commission may award grace marks upto 1 in anyone or more of the compulsory papers and upto 3 in the aggregate to enable a candidate to qualify at the Examination who might otherwise have not qualified in the said examination:
Provided that the Commission shall not recommend any candidate who has failed to obtain a minimum of 50% marks in the aggregate.
Provided that the Commission, may to the extent of 50% of the advertised vacancies keep names of suitable candidates on the reserve list. The names of such candidates may, on requisition, be recommended in the order of merit to the Government within six months from the date on which the original list is forwarded by the Commission to the Government.
9. The next important rule is Rule 25. According, to this the Registrar has to select the candidates who stand, highest in order of merit in the list prepared by the Commission under Rule 24 provided that he is satisfied after such enquiry as may be considered necessary, that such candidates are suitable in all respect for appointment to the service. Part VI deals with appointments, probation and confirmation. Rule 28 occurs in Part VI. According to it, appointments to the service, as Inspectors Gr. II shall be made by the Registrar, on occurrence of substantive vacancies by selection of candidates, in the manner prescribed in Rule 25 from the list prepared by the Commission under Rule 24 or by Promotion of candidates from the list prepared under Rule 27(1). Rule 29 deals with substantive appointments to senior posts. It reads as under:
29. Substantive appointments to senior posts.--(1) Subject, to the approval of and the directions of Government, if any, substantive appointments to the posts of Inspectors Gr. I shall be made by the Registrar by promotion of Inspectors Gr. II on the basis of seniority-cum-merit and merit in accordance with rules 27 and 27A.
(2) The Registrar may likewise promote members of the Service from Gr. III to Gr. II, from time to time.
Learned Counsel for the petitioner on the basis of the aforesaid Rules, which have been referred to above, submitted that it is clear that there should be one common list of seniority of all the Inspectors Gr. II whether Executive or Audit for the purpose of promotion to the post of Inspector Gr. II The only rule that remains to be referred now is Rule 31. It reads as under:
31. Seniority.--Seniority in each Grade of the Service shall be determined by the year of the order of substantive appointment to a post in that Grade.
(i) that the seniority inter se of members of the service appointed before the commencement of these rules shall be such as has already been determined or may after the commencement of these rules be determined, amended or modified, by the Registrar in accordance with Rules or Orders already in force or ad hoc, subject to the direction of Government, if any.
(ii) that the seniority inter se of persons appointed by promotion to a particular class of posts on the same date shall be the same as in the next below 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.
(iii) that if two, or more persons are appointed by promotion to posts in Grade II under the same order of orders of the same date, their seniority inter se shall he the same as in Gr. III or in the Rajasthan Sub-Ordinate Co-operative Service (Class II), as the case may be, subject to the condition that in the course of the same year) the person promoted from Grade III shall rank senior to a person prompted from the Rajasthan Subordinate Co-operative Service Class I.
(iv) That the seniority inter se of persons appointed to posts in Gr. II on the result of the one and the same examination, except those who do not join service when vacancy is offered to them, shall follow the order in which they have been placed in the list prepared by the Commission under rule 24.
(v) that the seniority inter se of persons appointed by transfer from an equivalent post shall be determined with reference to the date of substantive appointment to the equivalent post.
The order No. F. 1(6-B) CDR/Estt/B/66 dated July 4, 1967 clearly mentions that in supersession of all previous orders issued in regard to the appointment of the Candidates whose names are mentioned in it for the posts of Inspectors (Executive) vide Commission letter No. F. 1(8.1) Rectt/55/13 172 dated February 10,1956. they were to be appointed as Inspectors (Exs.) Gr. II retrospectively w.e.f. the dates on which they joined either the training school or the department after selection by the Rajasthan Public Service Commission. The petitioner, after his selection by the Rajasthan Public Service Commission was asked to report to the Principal, Cooperative Training Centre, Indore (Located in fort) for receiving necessary training latest by February 21, 1956. As respondents No. 5, 6, 7, 8, 10, 11, 12 and 13 were selected by the Rajasthan Public Service Commission as Auditors on March 7/8,1956 in the grade of 90-5-660 on or about September 29,1956, they were appointed as Inspectors Audit in the Cooperative Department and subsequently by order dated July 4,1967, they were retrospectively appointed as Inspectors (Audit) in the Cooperative Department w.e.f. March 8,1956 when they were selected by the Commission as Auditors. The petitioner was appointed with effect from February 20, 1956. In Paramanand Biswal's case 1973 SLR (1) 1217, the petitioner Was selected as a cadet Sub-Inspector by the Government of Bihar and Orissa in 1938 and was sent for Sub-Inspector course of training at the Police Training College, Hazarigarh for a period of 12 months from January 1,1936. During the period of training he held no substantive appointment and was paid only stipend. The period spent under training did not count towards duty according to Rule 682(d) of the Bihar and Orissa Police Manual, 1930. The petitioner was taken as a full fledged Sub-Inspector from January 2, 1937 from which date he held a duty post and drew pay in the prescribed scale. His service in the rank of Sub-Inspector was, therefore, to be counted from January 2,1937 and not from January 2, 1936. It was held by the learned Judge as under:
that from the very first day of joining in the Training College, the petitioner was appointed as a probationary Sub-Inspector. After having, been found fit he was subsequently confirmed. Confirmation merely confers a substantive right to the post but the converse that the petitioner did not enter into service when he was appointed as a probationary Sub-Inspector is not correct, The petitioner's date of entry into the Subordinate Service must, therefore be taken as January 2,1936.
In Prabhaker's case : 2SCR315 , it was observed as follows:
Ordinarily and generally the method of fixation of seniority as provided in Sub-clause (b) of clause 7(1) of the Order is the correct and proper method to be followed, but because of the special situation of appointment of some police officers during the period of 10 years on a shorter period of training a departure was made as provided in Sub-clause (a). A cadet who received his full training for; 18 months at Nasik for no fault of his was appointed later than a cadet who started training later at Najgaum but was appointed earlier than the former. There is nothing wrong, illegal or unreasonable in making a provision in Sub-clause (a) that in such a situation the commencement of the period of training will be taken as the date for the purposes of fixation of seniority. There is a reasonable and rational nexus between the object and the rule. It is for the rule making authority to decide and to choose in such a situation--either the date of commencement of the training or the date of appointment. Taking the former date in the special circumstances seems to be reasonable and justified. Such a provision cannot be said to be violative of Articles 14 and 16 of the Constitution.
The question that arose in J & K v. T.N. Ghose (3) was that if persons drawn, from different sources are integrated into one class, can they be classified for the purpose of promotion on the basis of their educational qualification. It was ruled as under:
We are therefore of the opinion that though persons appointed directly and by promotion were integrated into a common class of Assistant Engineer's they could, for purposes of promotion to the cadre of Executive Engineer be classified oil the basis of educational qualifications The rule providing that graduates shall be eligible for such promotion to the exclusion of diploma-holders does not violate articles 14 and 16 of the Constitution and must be upheld.
The decision in J & K's case : (1974)ILLJ121SC is distinguishable and is of no avail to the learned Additional Government Advocate. Under Rule 6, Inspectors Gr. II in the Cooperative 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 and further that the date of the petitioner's appointment as Inspector (Exs.) Gr. II would be the date when he joined the training school or in other case when the incumbent joined the department after selection by the Commission. Having regard to the scheme of Rules, which has been noticed above, and the principles laid down m Prabhakar's case : 2SCR315 1 and further respectfully following Ramananda Biswal's case 1973 SLR (1) 1217 the seniority list dated September 24, 1973 and October 8, 1973 cannot be sustained and they have to be quashed.
10. The result is that this writ petition is allowed in part and the seniority lists dated September 24, 1973 and October 8, 1973 are quashed. Respondents No. 1 and 2 are directed to prepare a common seniority list of Inspectors Gr. It in accordance with the date of their substantive appointment as Cooperative Inspectors Gr. II in the light of the observations made hereinabove and thereafter to use the same for the purpose of promotion in the Department. Six months' time is allowed from today for this purpose. In the circumstances of the case, the parties are directed to bear their own costs.