M.C. Jain, J.
1. The petitioner H. K. Hingorani by this writ petition has sought to quash his order of reversion dated 8-7-1974 and has further sought to quash the appointments of respondents Nos. 3 to 20 on the post of Executive Engineers consequent to the recommendations of the Departmental Promotion Committee (for short, referred to as the 'DPC') by issuance of an appropriate writ, order or direction. He has further, sought a direction that the respondents No. 1 & 2 be ordered to make selections afresh according to law.
2. The present writ petition arises under the following facts and circumstances. After serving as Engineering Subordinate the petitioner was appointed to be the post of Assistant Engineer on ad hoc basis by an order dated 4 8-1961 and after regular selection by the Rajasthan Public Service Commission for the post of Assistant Engineer the petitioner was appointed to the said post on 26-9-1961 and he was promoted as Executive Engineer temporarily by an order dated 17-5-1973. In the seniority list of the Assistant Engineers, Civil) of the Irrigation Department dated 11th June, 1964 his name was shown at serial No. 145. There were two adverse entries in the confidential roll of the petitioner for the year 1961-62 and 1962-63 and there appears to be no other adverse entry against the petitioner. The petitioner was placed under suspension by the order of the Chief Engineer, Irrigation, Rajasthan, dated 3-5-1970 but after preliminary enquiry, the petitioner was reinstated by an order of the State Government dated 10-9-1971. After two years of his reinstatement, he was promoted to the post of the Executive Engineer.
3. For the purposes of making selections to the post of Executive Engineers, the DPC met in the year 1964 and thereafter, no meeting of the DPO took place till June, 1974, with the result that no selections and appointments were made year by year on the post of Executive Engineers as required by Rule 9 read with Rule 24 and Rule 26 of the Rajasthan Service of Engineers Irrigation Branch) Rules, 1954 (hereinafter to be referred to as the 'Rules) The petitioner averred that the State Government did not determine the number of vacancies year by year as required by Rule 9 of Rules. Without doing so, the meeting of the DPC was convened to make selections for all the po9ts of Executive Engineers existent upto the date the DPC met by clubbing all the vacancies together. The DPC is said to have made selections for all the posts of Executive Engineers then existing and respondents No. 3 to 20 are said to have been appointed to the post of Executive Engineers on the recommendations of the DPC and it was alleged that the promotions were effected by an individual order and not by any consolidated order. It was further alleged that the respondents No. 3 to 14 were already officiating on the post of Executive Engineers and respondents No. 15 to 20 have been newly selected.
4. By order dated 8-7-1974, the petitioner along with three others was reverted from the pout of Executive Engineer to the post of Assistant Engineer. According to the petitioner, no order of reversion was served on him and he has reproduced the order of reversion dated 8-7-1974 on the basis of the order served on Shri M.P. Rankawat.
5. The petitioner has referred to some individual cases in his petition and has argued as to how he has been prejudicially affected by the impugned orders.
6. The petitioner now seeks to challenge his order of reversion and the order of promotion of respondents No. 3 to 20 inter alia on the ground that the manner in which selections have been made by the DPC is contrary to law in as much as that the procedure laid down in Rule 9 & Rule 24(1) of the Rules have not been followed. Rule 9 of the Rules contained a mandate that number of vacancies will be determined year by year and Rule 24(1) of the rules lays down that as soon as the number of vacancies are determined, a meeting of the DPC will be convened and the process of selections by promotion shall be resorted to as provided in Rule 24(2) onwards. It was also alleged that apart from Rule 9 and Rule 24 (1), this is also the mandate of the Rajasthan Services (Recruitment by Promotion against vacancies of Earlier Years) Rules, 1972. The petitioner has also challenged the impugned orders on other grounds but it is not necessary to take into account those grounds for the disposal of the writ-petition.
7. The writ petition has been opposed by the State of Rajas than and a counter to the writ petition has been filed traversing the claim of the petitioner. The case of the State is that the selections made by the DPC are not contrary to law. Rule 9 only requires that there should be determination of vacancies every year and it does not require that the DPC should be held every year. Likewise, Rule 24 does not command that the DPC should be held every year nor such an intention is spelt out by a combined reading of Rules 9 and 24. It was stated that mandate of the Rule 9 is that the vacancies should be determined every year and if not filed, they may be carried forward if remained unfilled beyond two years, then they will lapse.
8. A rejoinder to the counter was also submitted by the petitioner.
9. I have heard Shri M. Mridul, learned Counsel for the petitioners and Shri M D. Purohit, Additional Government Advocate for the State of Rajasthan.
10. Shri Mridul submitted that there is Rule 9 in the Rajasthan Medical and Health Rules, 1963, analogous to Rule 9 of the Rules. A question with regard to the interpretation of Rule 9 of the Rajasthan Medical and Health Services Rules, 1963 came up for interpretation in the facts and circumstances of the case like the present one in M P. Agrawal v. The State of Rajasthan and Anr. 1978 WLN (UC) 383, in which this Court has held that it was not permissible for the Government to lump together all the vacancies which had occurred in the previous years and to make selections for promotion on those vacancies on the basis of eligibility existing on the date of making of selections. Shri Mridul submitted that the present case is squarely covered by the decision in M.P. Agarwal's case, so the impugned orders deserve to the quashed.
11. Shri M.D. Purohit, on the other hand, submitted that the decision in M.P. Agarwal's case is under challenge in special appeal and he further urged that the view taken by Agrawal J. needs reconsideration with regard to the interpretation of Rule 9, Sub-rule (2). He urged that the word 'otherwise' occurring in Sub-rule (2) is of wide import and general in nature and this word should be given an extensive and comprehensive meaning so as to embrace all possible contingencies and situations whereby vacancies remain unfilled.
12. Having heard both the sides, I am of the opinion that the view taken by Agrawal J does not require any further consideration and I am in agreement with the view expressed in M.P. Agrawal's case as to the construction of Rule 9 of the Rajasthan Medical and Health Service Rules, 1963. Rule 9 of the Rules is couched exactly in the same language as Rule 9 of the aforesaid Rules and a similar controversy arose in M P Agrawal's case as has arisen in the present case. Agrawal J. considered the purpose underlying the provisions of Rule 9 and having regard to the purpose of the said provision, proceeded to construe the said rule. It may be stated that there appears to be this logic and rationale 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 claims may be defeated by clubbing of vacancies. If there will be timely determination of vacancies and filling up of the same, there would be lesser number of vacancies to be filled in by consideration of lesser number of eligible candidates on the existing eligibility condition, whereas by not determining the vacancies as contemplated by Rule 9 and clubbing the vacancies for many years and opening the selection to a larger number of employees to larger number of posts by eligibility conditions existing at the time of selection it may result in prejudice to those employees who could be earlier selected if the vacancies would have been determined earlier and their case would have been considered for promotion by the criterion then existing. As regards the construction of the word 'otherwise', Vgrawal J. observed in that case that whether the enjusdem generis rule or the Nossitur a spclis rule is applied, the result is that, the expression 'or otherwise' has to be construed in the light of the expression 'for non availability of the suitable candidates' which precedes it and comprehends only those cases in which due to some reason beyond the control of the Government, it has not been possible for the Government to fill the vacancies in the particular year.
13. Agrawal J. then concluded as under:
I am therefore, of the view that Sub-rule (2) of Rule 9 provides for carrying forward for vacancies from one year only one year in those cases where the vacancies have remained vacant due to nonavailability 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 wake appointments on these vacancies on the basis of qualifications and other conditions of eligibility subsequently acquired.
I am in agreement with the aforesaid view. Admittedly in the present case it has not been pointed out on behalf of the State that the vacancies could not be filled up due to any reason beyond the control of the Slate Government. There appears to be only in action on the part of the State Government and for about a decade, the DP 3. did not meet If the petitioner's case would have been considered in the manner as postulated under Rule 9, the result of selection might have been different and thus, the petitioner has been seriously prejudiced by the procedure adopted for making selection on the post of the Executive Engineers by clubbing the vacancies for about 10 years and by adopting a criterion of selection as was existing in June 1974.
14. Shri Mridul also submitted that the construction put by this Court in M.P Agarwal's case on Rule 9 has been introduced by the State Government in rules by amendment thereof and thus, the Government has made that rule retrospective. So under the amended rule as well, the impugned orders deserve to be quashed Shri Midul referred to a typed copy. In this connection, suffice it to say that it has not been pointed out before me that the said amendment has been published in the Rajasthan. Gazette or not. In the absence of publication of the rules in the Gazette, the alleged amendment in the Rules, cannot be taken notice of So, I need not examine the applicability of the alleged amendment to the petitioner's case.
15. In view of what I have considered above, the writ petition deserves to be accepted.
16. In the result, the writ petition is allowed and the petitioner's order of reversion and the order of promotion of respondents No. 3 to 20 are quashed and it is directed that the vacancies for the posts of Executive Engineers should be filled by making selection from amongst persons who were eligible for consideration at the time when the vacancies have occurred. As the operation of the petitioner's reversion was stayed by this Court, so, no consequential order needs to be passed. In the circumstances of the case, costs of this writ petition shall be easy.