GANGA VISHAN GUJRATI & ORS. versus STATE OF RAJASTHAN & ORS.

[2019] 11 S.C.R.

GANGA VISHAN GUJRATI & ORS.

STATE OF RAJASTHAN & ORS.

(Civil Appeal No. 6007 of 2019)

AUGUST 21, 2019

[DR. DHANANJAYA Y CHANDRACHUD AND

INDIRA BANERJEE, JJ.]

Rajasthan Land Revenue (Land Records) Rules 1957 – rr.C17-A, 284, 347-A and 347-B – Rajasthan Subordinate Services(Recruitment and other service conditions) Rules 1960 – RajasthanServices (Recruitment by Promotion against vacancies of earlieryears) Rules 1972 – Rajasthan Subordinate Services (Recruitmentand Other Service Conditions) Rules 2001 – The State issuedadvertisement for holding departmental examination/limitedDcompetitive examination in the post of Land Records Inspector (LRI)– Vacancies related to the years 2008-09, 2009-10 and 2010-11 –On 16.05.2013, the appellants appeared for the departmentalexamination and were declared successful – According toappellants, their names were not included in the seniority list despiteEthe fact that the recruitment year was 2010-11 – Thereafter, appellantswere included in the seniority list – However, appellants claimedthat in seniority list they were placed below the persons who werepromoted against vacancies which arose after the year of vacanciesagainst which the appellants were promoted – Thereafter, Statepassed an order directing to remove the appellants from the seniorityFlist and to treat them as appointed in 2014-15 – The Division Benchof the High Court held that the claim for seniority with reference tothe date of the accrual of the vacancy will not be maintainablemerely on the ground that no competitive examination was held inthe years in which the vacancies arose – On appeal, held: It isGnecessary to evaluate the interplay between the Rules of 1957 moreparticularly, rr.171-A, 347-A and 347-B with the Rules of 1960,1972 and 2001 – consistent line of precedent of Supreme Courtfollows the principle that retrospective seniority cannot be grantedto an employee from date when the employee was not borne on

cadre – Seniority amongst members of the same grade has to becounted from the date of initial entry into the grade – The openingwords of r.347-A, the provisions contained in the 1960 Rules wouldhave to give way and be subject to r.171-A(2) which provided fordetermining seniority on the basis of continuous officiation – In theface of r.171-A(2) as it stood prior to amendment, it is not possibleto apply deemed date for determining seniority based on the yearof vacancy – r.171-A(2) rules out the grant of seniority with effectfrom date anterior to the date on which the employee is borne onthe cadre – R. 347-B is prefaced with non-obstante provision –Consequently, conditions of service which are governed by the rulesreferred to in the entries of r.347-B will govern notwithstandinganything contained in the 1957 Rules – Among them is an entrypertaining to the 1972 Rules – r.2 of the 1972 Rules applies in asituation where service rule regulating recruitment “provides forrecruitment by both direct recruitment and promotion” – Whereas,recruitment u/cl.(i) and (ii) of r.284 of the 1957 Rules is fromseniority-cum-merit and competitive departmental examination – Inthe present case, ex facie r.284 of the 1957 Rules is not provisionfalling in that category since there is an absence of service rulerequiring recruitment by direct recruitment and promotion – The1972 Rules have no application – Hence, r.347-B of the 1957 Ruleswill not come to the aid of the appellants – Insofar as 2001 Rulesare concerned, the procedure for recruitment in Part V of the 2001Rules does not comprehend situation involving limitedcompetitive examination for accelerated promotion – Where limitedcompetitive examination is being held for accelerated promotion, r.35 of 2001 Rule governing promotion has no application –Therefore, the view taken by the Division Bench of the High Courtwas justified and in accord with the principles of law enunciated inthe decisions of Supreme Court.The State issued an advertisement for holding adepartmental examination in the post of Land Records Inspector(LRI). The vacancies related to the years 2008-09, 2009-10 and2010-11. On 16.05.2013, the appellants appeared for thedepartmental examination and were declared successful.Thereafter, appointment orders for the 80% seniority-cum-meritvacancies were issued in 2012, while those for the 20 per cent

Acompetitive exam vacancies were issued on 31 March 2014. On7.11.2013, provisional seniority list was issued which excludedappellants. On 24.4.2017, another seniority list was issueddetermining the seniority as on 1.4.2014. The appellants claimedthat they were placed below the persons who were promotedagainst vacancies which arose after the year of vacancies againstBwhich the appellants were promoted. Thereafter, State passed anorder directing to remove the appellants from the seniority listand to treat them as appointed in 2014-15. Aggrieved, appellantsfiled writ petition. The appellants sought computation ofseniority based on the year in which their vacancies arose. TheCwrit petition was allowed by the Single Judge of the High Court.However, the Division Bench of the High Court held that theclaim for seniority with reference to the date of the accrual of thevacancy will not be maintainable merely on the ground that nocompetitive examination was held in the years in which thevacancies arose. Hence, the present appeals.D

Dismissing the appeals, the Court

HELD : 1. It is necessary to evaluate the interplay betweenthe Rajasthan Land Revenue (Land Records) Rules 1957 moreparticularly, Rules 171-A, 347-A and 347-B with the RajasthanESubordinate Services (Recruitment and other service conditions)Rules 1960, Rajasthan services (Recruitment by Promotionagainst vacancies of earlier years) Rules 1972 and RajasthanSubordinate Services (Recruitment and Other Service Conditions)Rules 2001. Rules 347-A and 347-B of the 1957 Rules wereintroduced by amendment on 22 September 1977. Rule 347-AFstipulates that the pay, allowances, pension, leave and otherconditions of service shall be regulated by the rules, as amendedfrom time to time enumerated in the several entries which follow.Among them are other rules for the time being in force, madeunder the proviso to Article 309 of the Constitution prescribingGthe general conditions of service. Any other general order oramendment in the 1960 Rules by the Department of Personnel isto apply mutatis mutandis unless there is an order to the contraryissued by the government. However, Rule 347-A indicates thatthe provisions of the enumerated rules do not have overridingeffect since the opening words contain the phrase “except asH

otherwise provided in these rules”. Where specific provisionis made in the 1957 Rules, that will hence prevail. [Para 24][473-D-F]

2. Rule 347-A contemplates that the conditions of servicewould be governed by the provisions contained in the rulesenumerated (including the 1960 Rules) unless otherwise providedin the 1957 Rules. Rule 171-A was such provision contemplatedby the opening words of Rule 347-A. Until it came to be amendedin October 2014, Rule 171-A(2) specifically contemplated thatthe seniority of the LRIs will be determined from the date oftheir continuous officiation on the post in the land recordsdepartment or any other equivalent post provided that suchofficiation was not fortuitous or ad hoc in nature. After theamendment, Rule 171-A contemplates that the seniority ofInspectors shall be determined on the basis of the recruitmentyear of promotion. The amendment took effect in October 2014.[Para 26] [474-D-F]3. The Counsel for the appellants is justified in submissionthat the 1957 Rules did not make provision specifically for ayear-wise determination of vacancies and that such provisionwas embodied in the 1960 Rules. The difficulty in accepting thesequitur (as Counsel portrayed it) of this submission lies in thefact that Rule 171-A(2) prior to its amendment expresslyincorporated the principle of continuous officiation as the basisfor determining seniority of LRIs. This principle, which isspecifically embodied in Rule 171-A(2) cannot stand overriddenby any provision to the contrary contained in the 1960 Rules.This is for the reason that Rule 347-A expressly stipulates thatwhere there is specific provision contained in the 1957 Rules,that provision will govern. [Para 27] [474-G-H; 475-A]

4. Part IV of the 2001 Rules lays down the procedure fordirect recruitment from Rules 22 to 33. Part V provides for theprocedure for recruitment by promotion. Rule 13 requires adetermination of the actual number of vacancies occurring duringa financial year as on 1 April every year. Where post is filled inby single method then the vacancies as determined shall befilled in by that method. Where more than one method is

448SUPREME COURT REPORTS

Aprescribed posts are filled by apportionment of vacancies. Rule35 applies to promotions which are carried out by departmentalpromotion committee constituted under Rule 34. Rule 35(6)requires the committee to consider the cases of persons whowould have been eligible in the year to which the vacancy relates,irrespective of the year in which the meeting of the committee isBheld. Such promotions would be governed by the criteria andprocedure applicable in the year to which the vacancy relatesand the service / experience of the incumbent who is promotedshall be counted for promotion to higher post for any periodduring which the candidate has not actually performed the dutiesCof the post. Where limited competitive examination is beingheld for accelerated promotion, Rule 35 has no application. Theprocedure for recruitment in Part V of the 2001 Rules does notcomprehend situation involving limited competitiveexamination for accelerated promotion. [Para 29] [476-D-G]

D5. It is evident from Part V of the 2001 Rules moreparticularly, the rules governing promotion contained in Rules34 and 35 that the deeming fiction envisaged in Rule 35(6) appliesto promotions made under the auspices of DPC. In the presentcase, it is evident that the deeming fiction which applies in thecontext of DPC having been convened beyond the year in whichEthe promotional vacancy arose has no application to candidateswho are recruited on the basis of competitive examination forthe grant of accelerated promotion. There is fundamental reasonwhy the deeming fiction cannot be extended to the situationimplicated in Rule 284(ii). In order to appear in the competitiveFexamination contemplated by Rule 284(ii), candidate must fulfillthe conditions of eligibility prescribed in Rule 286. Rule 286stipulates that in-service Patwaris must have minimum serviceof five years before they can appear at the competitiveexamination under Rule 284(ii). Conferment of deemed

seniority may result in situation where candidate securesGseniority with effect from an anterior date on which he or she wasneither borne on the cadre nor was qualified. Such consequencewould be impermissible, at least in the absence of an expressstatutory provision to that effect. [Para 30] [477-B, E-H]

6. consistent line of precedent of this Court follows theprinciple that retrospective seniority cannot be granted to anemployee from date when the employee was not borne on acadre. Seniority amongst members of the same grade has to becounted from the date of initial entry into the grade. [Para 31][478-A-B]

7. In the present case, this Court has dealt with the issueof the applicability of the 1960 Rules in the context of determiningthe principle of seniority. This Court has held that in view of theopening words of Rule 347-A, the provisions contained in the1960 Rules would have to give way and be subject to Rule 171-A(2) which provided for determining seniority on the basis ofcontinuous officiation. In the face of Rule 171-A(2) as it stoodprior to amendment, it is not possible to apply deemed date fordetermining seniority based on the year of vacancy. Rule 171-A(2) rules out the grant of seniority with effect from date anteriorto the date on which the employee is borne on the cadre.[Para 34] [480-F-G]

8. But the submission which now needs to be analysed iswhether different result would follow from the application ofRule 347-B of the 1957 Rules. Rule 347-B is prefaced with anon-obstante provision. Consequently, conditions of service whichare governed by the rules referred to in the entries of Rule 347-B will govern notwithstanding anything contained in the 1957Rules. Among them is an entry pertaining to the 1972 Rules.Hence, it is necessary to consider the applicability of the 1972Rules. plain reading of the 1972 Rules indicates that theyenvisage situation where recruitment is made both by directrecruitment and promotion and the promotional quota is not filledup in the absence of DPC recommendation. On its terms, Rule2 of the 1972 Rules has no application to situation such as thepresent which is governed by Rule 284 of the 1957 Rules. UnderRule 284, there is no direct recruitment at all. Rule 2 of the 1972Rules applies in situation where service rule regulatingrecruitment “provides for recruitment by both direct recruitmentand promotion”. In the present case, ex facie Rule 284 of the1957 Rules is not provision falling in that category since thereis an absence of service rule requiring recruitment by direct

Arecruitment and promotion. The 1972 Rules have no application.Rule 347-B of the 1957 Rules will hence not come to the aid ofthe appellants. [Para 35] [480-H; 481-A-F]

Direct Recruit Class II Engineering Officers’ Association vState of Maharashtra (1990) 2 SCC 715 : [1990] 2 SCR 900B– followed.State of Bihar v. Akhouri Sachindra Nath (1991) Supp 1 SCC334 : [1991] 2 SCR 410 ; State of Uttaranchal v. DineshKumar Sharma (2007) 1 SCC 683 : [2006] 10 Suppl. SCR 1

; Pawan Pratap Singh v. Reeven Singh(2011) 3 SCC 267C: [2011] 2 SCR 831 ; P Sudhakar Rao v. U Govinda Rao(2013) 8 SCC 693 : [2013] 13 SCR 540 – relied on.

Jagdish Prasad v. State of Rajasthan (2011) 7 SCC789 : [2011] 12 SCR 1 – distinguished.

Jagdish Ch. Patnaik v. State of Orissa (1998) 4 SCC 456 :D[1998] 2 SCR 676 – referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6007of 2019.

From the Judgment and Order dated 06.08.2018 of the HighGCourt of Judicature for Rajasthan, at Jodhpur in D.B. Special ApplicationWrit No. 917 of 2018.

With

Civil Appeal Nos. 6009, 6008 of 2019

Paras Kuhad, Sr. Adv., Ms. Shraddha Deshmukh, Jitin Chaturvedi,Ms. Aditi Tripathi, Shuaib Hussain, Rahul Jajoo, Abhishek Gupta, Advs.for the Appellants.

Dr. Manish Singhvi, P. N. Misra, Manoj Swarup, Sr. Advs., HarshaVinoy, Shailja Nanda Mishra, Satendra Kumar, Milind Kumar, Ms. CharuMathur, Hitendra Nath Rath, Rohit K. Singh, Ms. Pratibha Jain , Advs.for the Respondents.

The Judgment of the Court was delivered by

DR. DHANANJAYA Y CHANDRACHUD, J.

1. Adjudicating on vexed issue of service jurisprudence, DivisionBench of the High Court of Judicature of Rajasthan allowed batch ofSpecial Appeals and reversed judgment of the learned Single Judgedated 19 April 2018. The consequence of the judgment of the DivisionBench dated 6 August 2018 is that the writ petition instituted by theappellants under Article 226 of the Constitution stands dismissed. Thishas given rise to the present batch of appeals. Since similar issues arise,all the appeals were heard together.

2. The appellants were appointed as Patwaris in the RevenueDepartment on 21 December 1993. On 17 June 2011, an advertisementwas issued by the State of Rajasthan for holding departmentalexamination to select candidates for 93 vacancies in the post of LandERecords Inspector[1]. The vacancies related to the years 2008-09 and2009-10. fresh advertisement dated 28 January 2013 notified anincrease in the number of vacancies to 155, including the vacancies for2010-11. In response to query made on 24 December 2014 under theRight to Information Act 2005, year-wise bifurcation of the 155Fvacancies was provided indicating that:

67 vacancies arose in 2008-09;

26 vacancies arose in 2009-10; and

62 vacancies arose in 2010-11.

3. On 16 May 2013, the appellants appeared for the departmentalexamination and were declared successful for the post of LRI. On 7November 2013, provisional seniority list was issued from 1 April 2012.The grievance of the appellants is that though (in their submission) they

1 “LRI”

Awere appointed against vacancies that arose in 2008-09, 2009-10 and2010-11, their names were not included in the provisional seniority list.On 31 March 2014, the appellants were promoted as LRIs in pursuanceof which they have been working on that post. On 12 March 2015, theRajasthan Revenue Board[2] issued communication to the Collector toprepare list of persons who were appointed as LRIs against vacanciesBfor the year 2009-10. The names of the appellants did not find mentionin the seniority list as on 1 April 2012. Orders were issued on 11 June2015, 6 July 2015 and 6 August 2015 promoting LRIs to the post ofNayab Tehsildar, treating them to have been appointed on the post ofLRI against the year of promotion in which the vacancies arose. ThisCwas in terms of notification dated 8 October 2014 by which Rule 171-A of the Rajasthan Land Revenue (Land Records) Rules 1957[3] wasamended to change the criterion for determining seniority from the dateof continuous officiation on the post of LRI to the recruitment year ofpromotion. The appellants were aggrieved by the denial of the benefit ofthe notification dated 8 October 2014. Aggrieved by what was perceivedDas differential treatment, representation was submitted on 14 September2015 to the Chairman of the Board of Revenue for granting the appellantsthe benefit of the notification dated 8 October 2014 and placing them inthe seniority list against the recruitment year. final seniority list,computing seniority as on 1 April 2012 was issued on 12 May 2016 inEterms of Rule 171-A(2). According to the appellants, their names werenot included in the seniority list despite the fact that the recruitment yearwas 2010-11.4. This led to the institution of Writ Petition[4] by the appellantsbefore the High Court of Rajasthan seeking direction for the declarationFof appointments; promoting them against the recruitment year ofpromotion and placing them in the seniority list issued on 12 May 2016against the recruitment year of promotion with consequential benefits.On 24 April 2017, another final seniority list was issued determiningseniority as on 1 April 2014. The appellants claim that they were placed

below persons who were promoted against vacancies which arose afterGthe year of vacancies against which the appellants were promoted. Duringthe pendency of the Writ Petition, an order was passed by the State ofRajasthan on 8 May 2017 whereby, persons along with the appellants

2 “Board”3 “1957 Rules”4 SB Civil Writ Petition No 6530/2016H

who were placed in the seniority list dated 24 April 2017, were sought tobe removed from the list and were directed to be treated as appointed in2014-15. This gave rise to subsequent Writ Petition[5] before the HighCourt.

5. By judgment dated 19 April 2018, the Single Judge allowedthe Writ Petition by setting aside the action of the State in not regardingthe year of promotion of those, including the appellants, who were selectedpursuant to the advertisements dated 17 June 2011 and 28 January 2013against vacancies for 2008-09, 2009-10 and 2010-11. The Single Judgeheld that persons selected under Rule 284(2) of the 1957 Rules througha competitive examination restricted to serving Patwaris were entitledto be promoted against the vacancies of the respective years subject totheir eligibility. The State was accordingly directed to place personsselected in the final seniority list issued on 12 May 2016 against therecruitment year of promotion with consequential benefits.

6. The judgment of the Single Judge has been reversed in appealby the Division Bench of the High Court on 6 August 2018.

7. Assailing the judgment of the Division Bench, the appellantsmoved this Court in proceedings under Article 136 of the Constitution.Pleadings have been completed. We have heard Mr Paras Kuhad, SeniorCounsel on behalf of the Appellants; Dr Manish Singhvi, Senior Counselappearing for the State of Rajasthan; Mr P N Misra, Senior Counsel, MrManoj Swarup, Senior Counsel and Mr Hitendra Nath Rath, Mr Rohit KSingh and Ms Pratibha Jain, Counsel for the contesting respondents.

8. In order to appreciate the nature of the controversy in the presentbatch of appeals, it is necessary to understand the enabling legalframework. The State of Rajasthan, in pursuance of its powers conferredby Section 261(2) of the Rajasthan Land Revenue Act 1956[6], laid downprovisions governing the service conditions of the employees of the LandRevenue Department. They were embodied in the 1957 Rules. Rule284 of the 1957 Rules regulates the mode of selection to the post ofLRI. Initially selection was envisaged through direct recruitment and onseniority-cum-merit. Later, as explained below, proportion was set apartfor in-service candidates who passed competitive departmentalexamination. Thereafter, direct recruitment was abolished. Rule 284 wasamended from time to time in the following manner:

5 SB Civil Petition No 6299/2017

6 “Act 1956”

[2019] 11 S.C.R.

AOn 22 September 1977, recruitment to the post was to be madeon the basis of direct recruitment (50 per cent) and seniority-cum-merit (50 per cent);

On 27 June 1981, the quota for promotion through seniority-cum-merit was increased to 65 per cent; 15 per cent was to be throughBa competitive examination amongst serving Patwaris and 20 percent was to be through direct recruitment; and

On 22 August 1985, promotion through seniority-cum-merit wasincreased to 80 per cent, while selection through departmentalexamination for serving Patwaris was increased to 20 per cent.CThe category of direct recruitment was deleted.

Rule 284, as amended, reads thus:

“284. Selection of candidates for admission to the school in therespective cadre strength shall be made:-

(i)by promotion of Patwaris of the Revenue and LandRecords Departments, on the basis of seniority-cum-merit,for 80% of the vacancies;

(ii)on the basis of competitive examination which shall berestricted to serving patwaris of Revenue (Land Records)Department who fulfill the conditions of eligibility as givenEin Rules 286, for 20% of the vacancies. Provided that theminimum age limit for such patwaris shall be 45 years.”

Rule 285 requires the Board to notify the actual number ofvacancies that will be filled up by recruitment from among the servingPatwaris of the Revenue (Land Records) Department and the numberFto be allotted to the Scheduled Castes and Scheduled Tribes.

Rule 286 prescribes the qualifications:

“286. Qualifications - Candidates intending to apply for selectionmust possess the following qualification: -

(i)That he is patwari of Revenue (Land Records)Department and has five years of service experience aspatwari;

(ii)That he has passed Secondary Examination or any otherequivalent examination recognized by Government;

(iii)That he is not above 45 years of age on the first day ofAJanuary, next following the last date fixed for receipt ofapplication for admission to the said school;

(iv)That he is patwar diploma holder or he is exempted fromthis diploma as per rules.”

Rule 287 requires competitive examination to be held by theBoard for recruitment from amongst serving Patwaris of the Revenue(Land Records) Department for admission to the training school in themanner laid down in the 1957 Rules. Rule 288 provides for the submissionof applications, the subjects for the examination, preparation of list ofcandidates securing qualifying marks, making of admissions to the school,reservations, salary during training, grant of diplomas on the passing ofthe training examination and the maintenance of list of successfulcandidates on the basis of the aggregate marks obtained in theexamination. Rule 299 provides that upon the completion of one year ofprobation period, candidates would be eligible for being confirmed. Rule299 stipulates that promotees of the same year shall rank senior to thedirect recruits from serving Patwaris of the same year. Rule 299 containsa reference to direct recruitment though the provision for directrecruitment has been done away with in Rule 284.

9. On 22 September 1977, an amendment was made to the 1957Rules by the introduction of Part V-A containing Rules 347-A and 347-B. Rule 347-A provides thus:

“347-A. Regulation of pay, Leave, allowances, Pension etc.-Exceptas otherwise provided in these rules, the pay allowances, pension,leave and other conditions of service of the Patwaris, Inspectors’Land Records and Sadar Qanungos shall be regulated by thefollowing rules as amended from time to time:-

1.The Rajasthan Travelling Allowance Rules, 1971;

2.The Rajasthan Civil Services (Unification of Pay Scales)Rules, 1950;

3.The Rajasthan Civil Services (Rationalisation of Pay Scales)Rules, 1956;

4.The Rajasthan Service Rules, 1951;

5.The Rajasthan Civil Services (Revised Pay) Rules, 1961;

A6.The Rajasthan Civil Services (New Pay) Rules, 1968

7. Any other rules prescribing general conditions of servicemade by the appropriate authority under the proviso toArticle 309 of the Constitution of India and for the timebeing in force.

8.Any other general order or amendment in the RajasthanSubordinate Services (Recruitment and other ServiceConditions) Rules 1960, issued by the Department ofPersonnel shall mutatis mutandis be applicable unless anyorder to the contrary is issued by the Government.”

CRule 347-B provides thus:

“347-B Application of Certain miscellaneous Rules. -Notwithstanding anything contained in these rules, the followingrules shall apply to the recruitment and other conditions of serviceof the Patwaris, Inspectors, Land Records and Sadar QanungosDas they apply to other categories of Government servants: -

1.The Rajasthan Civil Services (Absorption of SurplusPersonnel) Rules, 1969.

2.The Rajasthan Civil Services (Substantive appointment anddetermination of seniority of temporary employees) Rules,E1972.

3.The Rajasthan Services (Recruitment by promotion againstvacancies of Earlier Years) Rules, 1972.”

10. Rule 347-A provides that except as otherwise provided in theFrules, pay, allowances, pension, leave and other conditions of service areto be regulated by the rules enumerated under eight categories. Amongthe rules which have been enumerated are the Rajasthan SubordinateServices (Recruitment and other Service Conditions) Rules 1960[7]. Anygeneral order or amendment in the 1960 Rules is made applicable, mutatismutandis. Besides this, entry 7 refers to other rules prescribing generalGconditions of service made under Article 309 of the Constitution, for thetime being in force. The opening words of Rule 347-A make theapplicability of the enumerated rules subject to provision specificallycontained in the 1960 Rules. On the other hand, Rule 347-B contains an

overriding provision under which notwithstanding anything contained inthe 1957 Rules, conditions of service would be governed by certainenumerated rules. Among them are the Rajasthan Services (Recruitmentby promotion against vacancies of earlier years) Rules 1972[8].

11. significant distinction which must be noticed between Rule347-A and Rule 347-B, lies in their prefatory words. Rule 347-A beginswith the expression “except as otherwise provided in these rules”. Rule347-B commences with the expression “notwithstanding anythingcontained in these rules”. The significance of this difference interminology lies in the fact that the rules enumerated in Rule 347-A willgovern the conditions of service unless specific provision on the subjectis contained in the 1960 Rules. On the other hand, the rules which havebeen enumerated in Rule 347-B will govern the service conditionsirrespective of what is contained in the other provisions of the 1957Rules. To put it differently, the rules which are enumerated in Rule 347-A of the 1957 Rules are made subservient to provisions contained in the1960 Rules. On the other hand, the rules referred to in Rule 347-B of the1957 Rules have an overriding effect over any other provision containedin the 1957 Rules. This is the plain consequence which ensues from theuse of the expression “except as otherwise provided in these rules” inRule 347-A as distinguished from the expression “notwithstandinganything contained in these rules” in Rule 347-B. The former is anindication of subservience. The latter is an indication of overriding effect.

12. Now, it is necessary to analyse the rules adverted to in entries7 and 8 of Rule 347-A of the 1957 Rules.

13. The 1960 Rules were made to govern the recruitment andother conditions of service of persons appointed to the subordinate servicein various departments of the State other than posts regarding whichseparate service rules had been or would be promulgated. Rule 9 providedfor year-wise determination of vacancies on 1 April of each year bythe appointing authorities. Rule 9 of the 1960 Rules stipulated thus:

“9. Determination of Vacancies: - (1) (a) Subject to the provisionsof these Rules, the Appointing Authority shall determine on 1stApril every year, the actual number of vacancies occurring duringthe financial year.

(b) Where post is to be filled in by single method as prescribedin the rule or schedule, the vacancies so determined shall be filledin by that method.

(c) Where post is to be filled in by more than one method asprescribed in the Rules or Schedule, the apportionment ofBvacancies, determined under clause (a) above, to each such methodshall be done maintaining the prescribed proportion for the overallnumber of posts already filled in. If any fraction of vacancies isleft over, after apportionment of the vacancies in the mannerprescribed above, the same shall be apportioned to the quota ofvarious methods prescribed in continuous cyclic order givingCprecedence to the promotion quota.

(2) The Appointing Authority shall also determine the vacanciesof earlier years yearwise which were required to be filled in bypromotion, if such vacancies were not determined and filled earlierin the year in which they were required to be filled in.”

14. On 2 March 2001, the Rajasthan Subordinate Services(Recruitment and Other Service Conditions) Rules 2001[9] were notifiedunder the proviso of Article 309 of the Constitution. Rule 13 of the 2001Rules requires the appointing authority to determine the vacancies actuallyoccurring on 1 April of every financial year:

“13. Determination of vacancies: -

(1) Subject to the Provisions of these rules, the Appointing Authorityshall determine on 1st April every year, the actual number ofvacancies occurring during the financial year.

(2) Where post is to be filled in by single method as prescribedin the Rule or Schedule, the vacancies so determined shall befilled in by that method.

(3) Where post is to be filled in by more than one method asprescribed in Rules or Schedule, the apportionment of vacancies,determined under sub-rule (1) above, to each such method shallbe done maintaining the prescribed proportion for the overallnumber of post(s) already filled in. If any fraction of vacancies isleft over, after apportionment of the vacancies in the mannerprescribed above, the same shall be apportioned to the quota of

various methods prescribed in continuous cyclic order givingprecedence to the promotion quota.

(4) The Appointing Authority shall also determine the vacanciesof earlier years year wise which were required to be filled in bypromotion, if such vacancies were not determined and filled earlierin the year in which they were required to be filled in.”

Rule 9(1)(c) of the 1960 Rules and Rule 13 of the 2001 Rulesrequire vacancies to be apportioned between each method of promotion.Rule 9(2) of the former and Rule 13(4) of the latter requires thedetermination of vacancies of earlier years which were required to be,but were not filled in by promotion, in the year in which the vacanciesshould have been filled in.

Rule 35 speaks of the eligibility, criteria and procedure forpromotion. Rule 35, insofar as is material, reads thus:

“35. Eligibility, Criteria and Procedure for Promotion: -

(1) As soon as the Appointing Authority determined the numberof vacancies under rule 13 of these rules and decides that certainnumber of post(s) are required to be filled in by promotion, it shallsubject to provisions of sub-rule (4), prepare correct and completelist of the senior most persons who are eligible and qualified underthese rules for promotions to the class of post(s) concerned.

(2) the persons enumerated in Column 6 of Schedule shall beeligible for promotion to posts specified against them in Column 4subject to their possessing minimum qualification and experienceon the first day of the month of April of the year of selection asspecified in Column 7.

(6) If any subsequent year, after promulgation of these rulesvacancies relating to any earlier year are determined underrule 14 which were required to be filled by promotion, theCommittee shall consider the cases of all such persons whowould have been eligible in the year to which the vacanciesrelating irrespective of the year in which the meeting ofthe Committee is held and such promotions shall begoverned by the criteria and procedure for promotion aswas applicable in the particular year to which the vacancies

Arelate and the Service/Experience of an incumbent who hasbeen so promoted, for promotion to higher post for anyperiod during which he/she has not actually performed theduties of the post to which he/she would have beenpromoted, shall be counted. The pay of person who hasbeen so promoted shall be refixed at the pay which he/sheBwould have derived at the time of his/her promotion but noarrears of pay shall be allowed to him/her...”

(Emphasis supplied)

Under Rule 13 of the 2001 Rules, the appointing authority mustCdetermine the actual number of vacancies occurring during the financialyear on the first day of April of each year. When post is filled in bymore than one method, the vacancies have to be apportioned, to everysuch method by maintaining the prescribed proportion. Vacancies whichwere required to be filled in by promotion in earlier years, but whichwere not determined and filled in earlier are similarly required to beDdetermined. Under Rule 35(2), eligibility for promotion is defined withreference to the possession of minimum qualifications and experienceon the first day of April of the year of selection. Under sub-rule (6) ofRule 35, where vacancies of an earlier year are determined as beingrequired to be filled by promotion, the committee is under mandate toEconsider all such persons who would have been eligible in the year towhich the vacancies relate, irrespective of the year in which the meetingis held. The criteria and procedure for promotion would be governed bywhat is applicable to the year to which the vacancy related. Significantly,the service or experience of person who has been promoted shall becounted for promotion to higher post for any period during which theFcandidate has not actually performed the duties of the post. While thepay of person promoted would be re-fixed, no arrears of pay are requiredto be given.

15. Rule 347-B of the 1957 Rules contains reference to the1972 Rules. The 1972 Rules comprised of six rules, which are extractedGbelow:

“1. Short title and commencement

(1) These rules may be called the Rajasthan Services(Recruitment by Promotion against Vacancies of earlier years)Rules, 1972.H

(2) They shall come into force at once.

2. Where service rule, regulating recruitment and condition ofservice made under the proviso to Article 309 of the Constitutionof India, provides for recruitment by both direct recruitment andpromotion and where promotion quota of any earlier year couldnot be filled up in the absence of recommendations of theDepartmental Promotion Committee appointed under the rulepertaining to the Service the appointing authority shall determinethe number of vacancies which were required to be filled up bypromotion specifying the year with reference to which thevacancies are to be filled up.

3. The Departmental Promotion Committee, appointed under theservice rules referred to in rule 2 shall make their recommendationwithin period of three months from the date the competentauthority makes the determination of the number of vacanciesand specifies the year of vacancies of earlier years under the saidrule whereupon the appointing authority shall giving due regard tothe recommendations of the Departmental Promotion Committee,make the appointments by promotion in the promotion quotavacancies relevant to the year specified under rule 2.

4. When the appointing authority make appointments by promotionunder rule 3, it shall specify the year in which such promotionshall be deemed to have been made.

5. Where any vacancy existed in the promotion quota in yearearlier than that in which an appointment by promotion was madeon the recommendation of the Departmental Promotion Committeethe appointing authorities shall modify the appointment order byspecifying the year in which such promotion shall be deemed tohave been made.

6. Where any appointment by promotion has been made underrule 3 or where the appointing authority has specified the year ofpromotion under rule 5, the person who has been so promotedshall not be entitled to claim any arrears of pay for any periodduring which he has not actually performed the duties of the postto which he has been promoted.”

ARule 2 contemplates situation in which the service rules framedunder the proviso to Article 309 for regulating recruitment and conditionsof service provide for bothdirect recruitment andpromotion. Where thepromotional quota of any earlier year is not filled in the absence of arecommendation of the Departmental Promotion Committee[10], theappointing authority has to determine the vacancies which were requiredBto be filled up by promotion. Thereupon, the DPC has to make itsrecommendation within three months of the determination by thecompetent authority specifying the number and the year of vacancies.The appointing authority is then required to make appointments bypromotion in the promotion quota vacancies relevant to the year specifiedCin Rule 2. While making an appointment under Rule 3 by promotion, theappointing authority has to specify the year in which the promotion shallbe deemed to have been made. Consequently, where vacancy existedin the promotion quota in an earlier year, prior to the year in which theappointment by promotion is made, the appointing authority has to specifythe year in which the promotion shall be deemed to have been made.DHowever, in such case, no arrears of pay for the period during whichthe appointed candidate has not worked are payable.

16. In order to complete the narration of the relevant provisions, areference is necessary to Rule 171-A of the 1957 Rules which dealswith seniority. Rule 171-A, read as follows insofar as is material prior toEits amendment:

“171-A. Seniority. - (1) The seniority of Inspectors, Land Recordworking in the various districts will be interlaced by the Board ofRevenue and the Secretary (Land Records) Revenue Board willmaintain an up-to-date list of seniority of the Inspectors, LandFRecords working in the Department.

(2) The seniority of the Inspector, Land Records will be determinedfrom the date of their continuous officiation on the post of InspectorLand Records in the Land Records Department and/or Inspectorin the Settlement/Consolidation /Colonization Department or anyGother equivalent post in such Departments provided such officiationwas not fortuitous or ad hoc in nature and subject to the conditionthat they possess diploma of having passed the GirdawarQanungo Examination:…”

By an amendment which was notified on 8 October 2014, sub-rule 2 of Rule 171-A has been substituted to read thus:

“(2) The seniority of inspector, Land Records shall be determinedon the basis of recruitment year of promotion on the post ofInspector, Land Records in the Land Records Department andinspector in the Settlement Department, Colonisation Departmentand Consolidation Department.”

17. Now, it is in this background, that it becomes necessary toadvert to the area of contest, as it emerges from the rival submissionswhich have been urged before this Court.

18. Mr Paras Kuhad, learned Senior Counsel appearing on behalfof the appellants, submitted thus:

(i)The judgment of the Division Bench of the High Court dated6 August 2018 denies to the appellants selected by the‘competitive examination route’, the benefit of seniority onthe post of LRI, based on the year of vacancy, thoughDpersons who have been promoted on the basis of senioritycum-merit have been granted seniority on the basis of theyear of vacancy;

(ii)Though vacancies arose in years 2008-09, 2009-10 and2010-11 on the post of LRI, selections were not held intime. These vacancies were to be filled up in the proportionof 80 per cent for seniority-cum-merit and 20 per cent bycompetitive examination. The selection process for thesevacancies was not held year-wise and the vacancies for allthe three years were clubbed together. Appointment ordersfor the 80 per cent seniority-cum-merit vacancies wereissued in 2012, while those for the 20 per cent competitiveexam vacancies were issued on 31 March 2014;

(iii)Originally, while drawing up the provisional list on 7November 2013, LRIs who were appointed by senioritycum-merit were accorded seniority based on the date ofappointment as LRIs and were not allowed seniority basedon the year of vacancy;

(iv)The right to seniority based on the year of vacancy flowsstatutorily from the provisions of the 1972 Rules and the

464SUPREME COURT REPORTS

[2019] 11 S.C.R.

A2001 Rules. These rules provide for ‘deemed appointment’,a ‘deemed date of officiation / experience’ and forpromotions that relate back to the year of vacancy;

(v)The seniority-cum-merit promotees filed petition beforethe Rajasthan Civil Services Appellate Tribunal[11] whichBallowed them the benefit of seniority based on the year ofvacancy. The State of Rajasthan accepted the judgment ofthe Tribunal as result of which the above promotees were,in the final list of seniority prepared in 2016, accordedseniority based on the year in which the vacancy arose;

C(vi)The appellants were however denied the benefit upon whichthey represented to the Board on 4 September 2015, claimingparity under Article 14 of the Constitution in the computationof seniority based on the year in which their vacancies arose;

(vii)The appellants were compelled to file Writ Petition beforeDthe High Court in which the following issues arose forconsideration:

“A. Whether or not filling up of vacancies by seniority-cummerit and competitive examination are both subsets ofappointment by promotion; and

EB.If the answer to is in the affirmative, whether theappellants too are entitled to promotion from the year inwhich the vacancies arose on account of the interplaybetween the Rules of 1957, Rules of 2001 and the Rulesof 1972.”

F(viii) Appointment by competitive examination under Rule 284 isalso method of promotion. This position was accepted bythe judgment of the learned Single Judge and by the DivisionBench in appeal upon analysing the provisions of Rule 284;

(ix)On three different occasions, the Department of PersonnelGof the State Government accepted the position that selectionin the case of 20 per cent of the vacancies on the basis ofa limited competitive examination is method of promotion;

(x)As to the interplay between the Rules of 1957, 1960 (asrepealed and substituted by the 2001 Rules) and 1972, theH11 “Tribunal”

Single Judge correctly held that the 1957 Rules do notprovide for situation where the selections under Rule 284are not held in the year in which the vacancies arose. Rules347-A and 347-B were introduced to obviate such situationby making the 1960 and 1972 Rules applicable;

(xi)The Division Bench of the High Court held that since Rule347-B begins with non-obstante clause, the question ofincorporating principle from some other rule would notarise if on that subject parent rule holds the field. Thisconclusion of the Division Bench is flawed because:

(a) Rule 347-B brought about the incorporation of the 1972Rules as result of which effect has to be given to thelatter, even if there is any inconsistency with the 1957Rules;

(b) The 1957 Rules are silent on the determination ofvacancies and holding of year-wise promotions;

(c) The 1972 Rules introduced an obligation to determineyear-wise vacancies and to hold year-wise promotions.Where the appointing authority has failed to carry outits obligations to do so, it has to issue an order fordeemed appointment from the date on which thevacancy arose. The selections, when held, would bewith reference to the year in which the vacanciesarose; and

(d) The 2001 Rules introduced deeming fiction ofservice / experience from the date on which thevacancy arose.

(xii)The 1957 Rules are silent in regard to the above conditionsof service and hence, full effect has to be given to the legalfiction, as result of Rules 347-A and 347-B. The object ofthe rule making authority in creating the legal fiction is toneutralize the adverse effect caused by lapse of thegovernment to carry out its obligations of making year-wisedeterminations of vacancies and appointments;

(xiii) As result of the deeming fiction, persons promotedbelatedly, are deemed to be appointees of an earlier date,

carrying experience from an earlier date. By virtue of thefiction, such persons are deemed to be holding the post ofLRI from the date on which they were entitled to hold thepost in terms of the accrual of vacancy. This position hasbeen accepted by the Tribunal and was given effect to bythe Board;

(xiv) Rule 284 provides for two streams of promotion: oncepromoted, promotees of both streams constitute one class.Both the Tribunal and the State Government found that byvirtue of Rule 347-A and Rule 347-B, promotees on thepost of LRI are entitled to have their seniority computedCand have the benefit of seniority and experience from thedate of occurrence of the vacancy. The State cannot accorddifferential treatment to two different streams of promoteessince this would be subversive of Article 14;

(xv)The amendment to Rule 171-A on 8 October 2014 isDclarificatory. The judgment of the Tribunal has been actedupon and attained finality. Rule of law principles requirethat the appellants should not be denied the benefit;

(xvi) The object of Rules 347-A and 347-B is to bring about auniformity in the conditions of service for all members ofEthe subordinate staff across the State. The appellants cannotbe denied the benefit of the 2001 Rules;

(xvii) Depriving them of the benefit of the Rules of 1972 and2001 would make the rights of the appellants dependent onthe fortuitous event of the date on which the selectionFprocess was held; and

(xviii) The State cannot escape the consequence of not holdingtimely selections and delaying them for years on an end.19. Opposing the above submissions, Dr Manish Singhvi, learnedSenior Counsel appearing on behalf of the State of Rajasthan submitted:G

(i)The 1972 Rules have to be read in conjunction with the1957 Rules. The 1972 Rules make reference to DPC.The concept of DPC applies to promotions made on thebasis of seniority-cum-merit and cannot be equated with

competitive examinations. The rights of persons who areeligible or those who are recommended by the DPC in aparticular year are crystalised. The importance of the 1972Rules is that the delay in convening DPC should not deprivepersons who are otherwise eligible of their legitimate rights.In contrast, the holding of competitive examination isuncertain. The year of vacancies has no correlation withthe competitive examination. Consequently, the deemingfiction relatable to the year of vacancy is confined to personswhose rights have crystalised in the year when the DPCwas required to have been convened and will not extend topersons selected through competitive exams. Even thepromotees of 2013 have been given substantiveappointments from the date of appointment and not fromthe year of vacancy;

(ii)The 2001 Rules do not apply per se for the following reasons:

(a) The 2001 Rules do not expressly state that the 1960Rules have been repealed;

(b) The 2001 Rules are not general in nature so as to fallwithin the purview of entry 7 of Rule 347-A. The 2001Rules apply to services specified in the schedule theretoand posts of Inspectors / Naib Tehsildars / Patwarisare not part of the posts specified in the schedule. The2001 Rules are only meant to cover residuary cadres /services which are not already covered by the state /subordinate services;

(c) The 1960 Rules have been repealed, and the 2001 Rulescannot be termed as rules providing for generalconditions of service;

(d) The 2001 Rules do not apply to regular / state /subordinate / ministerial services which are governedby their own rules. Rule 4(g) of the repealed 1960 RulesGwas all encompassing and covered posts under theRajasthan Civil Services (Classification, Control andAppeal) Rules 1958[12]. The CCA Rules 1958 covered

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all appointments in subordinate / state services. The2001 Rules are confined to specific categoriesmentioned in the schedule; and

(e) Even if the 2001 Rules apply, the scheme of those rulesdoes not contemplate competitive examination asBbeing method of promotion. Part IV of the 2001 Rulesdeals with the procedure for direct recruitment bycompetitive examinations, while Part V pertains topromotion. The case of the appellants will not fall withinPart V. In the absence of any statutory basis, theappellants cannot claim seniority or promotion from anCanterior date. Rule 347-A is subject to the provisionscontained in the 1957 Rules and hence, if any field isoccupied, the Rules of 1960 and 2001 shall not apply.Rule 171-A which provided at the material time forseniority on the basis of continuous officiation held theDfield.

(iii)The amendment to Rule 171-A which replaced the word“continuous officiation” with the expression “recruitmentyear of promotion”, was effected in October 2014, whereasthe present controversy relates to 2012-13. ContinuousEofficiation refers to person actually working on the postand cannot incorporate the concept of deeming experienceor retrospective claim of seniority. The State Governmenthas treated even the promotees on the basis of seniority-cum-merit from the date of appointment. The situation hasaltered only after the amendment of Rule 171-A in OctoberF2014;

(iv)The requirement of determining year-wise vacancies doesnot by itself lead to the grant of seniority from the date ofvacancy. If the State ignores one source of recruitment foran unreasonable period of time or if its action is mala fide,Gthe court can issue writ of mandamus to make recruitmentsfrom the ignored source of recruitment. This was the situationin Jagdish Ch. Patnaik v State of Orissa[13](“JagdishCh. Patnaik”). In the present case, no mala fides have

been urged and the State simply clubbed together vacanciesfor three years to hold competitive examination; and

(v)The service jurisprudence emanating from Articles 14 and16 of the Constitution provides that seniority has to bereckoned from the date of the substantive appointment.However, if statutory rule so provides, it can be reckonedBfrom retrospective date. Retrospective operation ofseniority, however, has to be confined to appointment bypromotion and cannot extend to competitive examinations.Candidates in competitive examinations cannot be givenseniority from retrospective date because they are notCborne on the cadre. Candidates drawn from the source ofcompetitive examinations are borne on the cadre from thedate of substantive appointment after undergoing probationand confirmation. In the present case, the appellants wereselected by open competitive examination from Patwarisfor the post of LRI. If retrospective seniority was to beDgiven from the date on which the vacancy arose, it wouldlead to situation where person who is not qualified totake the examination on the date when the vacancy arosewould get seniority. In the present case, some persons wererecruited by departmental examinations from the feederEcadre. The statutory rules did not envisage retrospectiveseniority from the date when the vacancy had arisen. Thegrant of seniority is not facet of fundamental right. Hence,there is no violation of fundamental right when personwho takes competitive examination is given seniority from

the date of substantive appointment.

20. Supporting the submissions which were urged on behalf ofthe State of Rajasthan, Mr P N Misra and Mr Manoj Swaroop, learnedSenior Counsel appearing on behalf of the contesting respondentssubmitted:

(i)Recruitment under clause (i) and (ii) of Rule 284 of the1957 Rules is from two different streams: clause (i) providesfor seniority-cum-merit, while clause (ii) provides for acompetitive departmental examination. The appellants aregoverned by Rule 284(ii) and only those amongst the servingPatwaris who qualify and meet the requirements under Rule

286 could appear for an open competitive examination heldpursuant to Rules 286-287. After completing their trainingsuch persons have to undergo probation. Rule 298(iii)specifies that persons who obtain the diploma are notimmediately entitled for appointment since appointment canbe granted when vacancies occur on the basis of seniority;

(ii)Rule 171-A (2) embodies the criteria of continuousofficiation. The private respondents are governed by Rule284(i). They faced DPC in 2012-13 and the recruitmentyear for them was 1 April 2013. The private respondentsare not claiming seniority from the year of vacancy. ThoughCfor some of them the DPC was 2009-10, their date of joiningas LRI was in the year 2013 as result of which they weregiven promotion only with effect from 1 April 2013;

(iii)Rule 347-A of the 1957 Rules commences with theexpression “except as otherwise provided in these rules”.DRule 7 of the 2001 Rules provides three sources ofrecruitment namely - (i) direct recruitment; (ii) promotion;and (iii) transfer. Chapter V of the 2001 Rules deals withthe procedure for promotion. The 2001 Rules provide forpromotion on the basis of DPC and do not contemplate aEselection of candidates by limited competitive examination.The 2001 Rules will not be applicable to LRIs appointedunder the 1957 Rules and seniority has to be fixed underRule 171-A;

(iv)The 1972 Rules apply to promotions which are made on theFrecommendation of DPC hence, if the rules are construedin their entirety, it is evident that those rules are applicableto promotions made on the recommendation of DPC andnot to those selected on the basis of departmentexamination;

G(v)The appellants cannot claim seniority from date on whichthey were not borne on the cadre. The appellants appearedin the competitive exam in 2013 for advertisements issuedin 2011 and 2013. They are not entitled to claim seniority, asthey seek to do, from the year of vacancy; and

(vi)It is well settled that promotion takes effect from the dateof promotion and not from the date of the occurrence of thevacancy or the creation of post.

The above submissions have been reiterated by the other counsel.We now proceed to consider the submissions.

21. Part IV of the 1957 Rules provides for training school forPatwaris and Qanungos. Among the Chapters comprised in Part IV isChapter III which deals with admission, training and examination ofcandidates to the Patwari school. Rule 284 of the 1957 Rules contemplatesselection of candidates for admission to the school from two sources.The first, comprised in clause (i) is the promotion of Patwaris of theRevenue and Land Records Departments through seniority-cum-merit.The second source in clause (ii) is competitive examination which isrestricted to serving Patwaris of the Revenue (Land Records)Department who fulfill the conditions of eligibility in Rule 286. The quotafor promotion on the basis of seniority-cum-merit is 80 per cent, whilethat for candidates selected on the basis of competitive examination is20 per cent. Candidates seeking selection need to fulfill qualificationsprescribed for selection in Rule 286. The requirements of eligibilitymandate, among other things that the candidate must have five years’experience as Patwari. After completion of the training, candidatewill be granted diploma of the training school and list of successfulcandidates is maintained in order of seniority based on the aggregate ofmarks obtained. The grant of diploma does not entitle candidate toimmediate appointment but makes the candidate eligible to be consideredas and when vacancy arises, on the basis of seniority. On the completionof probationary period of one year, the candidate is eligible for beingconfirmed in terms of Rule 299.

22. Rule 284 indicates that there are two sources of selection onthe basis of which admission to the training school is made namely: (i)promotion; and (ii) departmental examination for in-service Patwaris.The departmental examination is, as described in-service jurisprudence,a limited departmental examination since within-service candidates whoare working as Patwaris with the requisite experience and who fulfillthe conditions of eligibility can only be considered under Rule 284(ii)read with Rule 286. Rule 284(ii) is evidently not source of open directrecruitment since only in-service candidates fulfilling the conditions ofeligibility can apply. The history of Rule 284 indicates that initially there

DEF

Awas 50 per cent quota in 1977 for direct recruitment while the balancewas for seniority-cum-merit. In 1981, promotion on the basis of seniority-cum-merit was enhanced to 65 per cent, while 15 per cent was to takeplace on the basis of limited competitive examination among servingPatwaris. As consequence, the quota for direct recruitment wasreduced to 20 per cent. In 1985, the method of direct recruitment wasBaltogether abolished resulting in an enhancement of the quota for seniority-cum-merit promotion to 80 per cent while the balance of 20 per centwas through limited departmental examination. This history clearlyindicates progressive dilution of the quota that was prescribed for directrecruitment until it was eventually abolished altogether. In consequence,Cselection within the meaning of Rule 284 is governed by promotionalquota (80 per cent) based on seniority-cum-merit and quota forcandidates passing limited department examination (20 per cent) drawnfrom those who are serving as Patwaris.

23. Now, it is in the above context, that both the Single Judge asDwell as Division Bench in appeal came to the conclusion that theexamination which is confined to candidates drawn from the feedercategory would essentially be case of accelerated promotion. Thelearned Single Judge held:

“…the very fact that at one stage there were three sources forEselection / appointment, which included that direct recruitment,regular promotion and accelerated promotion is sufficient to cometo conclusion that selection through competitive examinationcannot be equated with direct recruitment…”

The Single Judge held that the quota of 20 per cent is to be filledFup by accelerated promotion and merely because competitiveexamination for entry to the training school is envisaged that does notchange the status of the selection. Though, the streams are different,essentially, the selection is by way of promotion. The Division Benchaccepted this analysis of the learned Single Judge, holding:

G“…An examination restricted only to the feeder categoryprescribed for promotion by seniority-cum-merit, would thereforeessentially be case of promotion by way of selection oraccelerated promotion as learned single judge has rightly put andnot direct recruitment...”

The Division Bench noticed that Rule 299 of the 1957 Rules (inthe context of the completion of the probationary period) provides thatpromotees of the same year will rank senior to the direct recruits fromserving Patwaris of the same year. The mere use of the expression“direct recruitment” in Rule 299 was held not to render the sourcecomprehended in Rule 284(ii) as source of direct recruitment. For thepurpose of the present proceedings, we accept the correctness of thisview which has been adopted both by the Single Judge and by the DivisionBench. This is also the consistent view of the Department of Personnelof the State Government. Hence, we hold that the limited departmentalexamination for in-service Patwaris under Rule 284(ii) is means ofaccelerated promotion. Rule 284 provides for selection by promotionthrough two streams: one by seniority-cum-merit and the other on thebasis of limited departmental examination for in-service Patwaris.

24. Now it is in this context, that it become necessary to evaluatethe interplay between the Rules of 1957 more particularly, Rules 171-A,347-A and 347-B with the Rules of 1960, 1972 and 2001. Rules 347-Aand 347-B of the 1957 Rules were introduced by amendment on 22September 1977. Rule 347-A stipulates that the pay, allowances, pension,leave and other conditions of service shall be regulated by the rules, asamended from time to time enumerated in the several entries whichfollow. Among them are other rules for the time being in force, madeunder the proviso to Article 309 of the Constitution prescribing the generalconditions of service. Any other general order or amendment in the 1960Rules by the Department of Personnel is to apply mutatis mutandisunless there is an order to the contrary issued by the government.However, Rule 347-A indicates that the provisions of the enumeratedrules do not have overriding effect since the opening words contain thephrase “except as otherwise provided in these rules”. Where specificprovision is made in the 1957 Rules, that will hence prevail.

25. The 1960 Rules governed the recruitment and conditions ofservice of persons appointed to subordinate service posts in variousdepartments, except where there existed separate service rules. Rule 2provided:

“2. Scope. - These rules shall govern the recruitment and otherconditions of service in respect of persons appointed to thesubordinate service posts in the various departments other than

Aposts regarding which separate service rules have beenpromulgated or may be promulgated in future.”

Rule 9 of the 1960 Rules required the appointing authority todetermine the actual number of vacancies occurring during the financialyear, on 1 April every year. Under Rule 9, where post is filled up byBmore than one method prescribed in the rules or schedule, anapportionment of vacancies to every such method was to be done formaintaining the required proportion. The appointing authority was alsoduty bound to determine the year-wise vacancies of earlier years, whichwere required to be filled in by promotion, if such vacancies were notdetermined and filled earlier in the year in which they were required toCbe filled in. Rule 9 in specific terms contemplated year-wisedetermination of vacancies, allocation of vacancies to different methodsof appointment and the determination of vacancies of earlier years whichwere not filled in the relevant year. However, Rule 9 did not, in expressterms, provide for deemed seniority or deemed date of promotion.

26. Rule 347-A contemplates that the conditions of service wouldbe governed by the provisions contained in the rules enumerated (includingthe 1960 Rules) unless otherwise provided in the 1957 Rules. Rule 171-A was such provision contemplated by the opening words of Rule 347-A. Until it came to be amended in October 2014, Rule 171-A(2)Especifically contemplated that the seniority of the LRIs will be determinedfrom the date of their continuous officiation on the post in the land recordsdepartment or any other equivalent post provided that such officiationwas not fortuitous or ad hoc in nature. After the amendment, Rule 171-A contemplates that the seniority of Inspectors shall be determined onthe basis of the recruitment year of promotion. The amendment tookFeffect in October 2014.

27. Mr Paras Kuhad, learned Senior Counsel is justified in hissubmission that the 1957 Rules did not make provision specifically fora year-wise determination of vacancies and that such provision wasembodied in the 1960 Rules. The difficulty in accepting the sequitur (asGlearned Counsel portrayed it) of this submission lies in the fact that Rule171-A(2) prior to its amendment expressly incorporated the principle ofcontinuous officiation as the basis for determining seniority of LRIs.This principle, which is specifically embodied in Rule 171-A(2) cannotstand overridden by any provision to the contrary contained in the 1960HRules. This is for the reason that Rule 347-A expressly stipulates that

where there is specific provision contained in the 1957 Rules, thatprovision will govern.

28. On 2 March 2001, the 2001 Rules were notified under theproviso to Article 309 of the Constitution. Rule 2 defines the scope ofthe 2001 Rules:

“2. Scope. - These rules shall govern the recruitment and otherconditions of service in respect of persons appointed to thesubordinate service posts in the various departments other thanpost(s) regarding which separate service rules have beenpromulgated or may be promulgated in future.”

Rule 3(h) defines the expression “member of service”:

“(h). ‘Member of Service’ means person appointed in asubstantive capacity to post in the service under the provisionsof these rules or the rules or orders superseded by rule 48 andincludes probationer.”

Rule 6 defines the constitution of the service:

“6. Constitution of Service-the Service shall consist of-

(a) all person holding substantively the post(s) or recruited tothe Subordinate Service post(s) specified in the Scheduleor orders issued by the Government or the AppointingAuthority before the commencement of these rules;

(b) all persons recruited to the service in accordance with theprovisions of these rules, except an urgent temporaryappointment.”

Rule 7 provides for the method of recruitment:

“7. Method of recruitment:- (1) Subject to the provisions hereinafter contained in these rules, recruitment or appointment to post(s)in the service shall be made by the following methods in theproportion as indicated in the Schedule:-

(i) by direct recruitment in accordance with the provisions containedin part-IV of these rules;

(ii) by promotion in accordance with the provisions contained inpart-V of these rules;

A(iii) (a) by transfer from amongst the person(s) holding equivalentpost(s) in other Department.

provided that if the post(s) to which transfer is proposed to bemade within the purview of the Commission. Such person shouldhave already been approved by the Commission on such equivalentBpost.

(b) by transfer of persons from any institution that has been takenover by the State Government with the condition to suitablyabsorbed its staff:…”

Rule 7 contemplates three modes of recruitment, namely:C

(i) Direct recruitment in terms of Part IV;

(ii) Promotion in terms of Part V; and

(iii) Transfer.

29. Part IV of the 2001 Rules lays down the procedure for directDrecruitment from Rules 22 to 33. Part V provides for the procedure forrecruitment by promotion. Rule 13 requires determination of the actualnumber of vacancies occurring during financial year as on 1 Aprilevery year. Where post is filled in by single method then the vacanciesas determined shall be filled in by that method. Where more than oneEmethod is prescribed posts are filled by apportionment of vacancies.Rule 35 applies to promotions which are carried out by departmentalpromotion committee constituted under Rule 34. Rule 35(6) requires thecommittee to consider the cases of persons who would have been eligiblein the year to which the vacancy relates, irrespective of the year inwhich the meeting of the committee is held. Such promotions would beFgoverned by the criteria and procedure applicable in the year to whichthe vacancy relates and the service / experience of the incumbent whois promoted shall be counted for promotion to higher post for anyperiod during which the candidate has not actually performed the dutiesof the post. Where limited competitive examination is being held forGaccelerated promotion, Rule 35 has no application. The procedure forrecruitment in Part V of the 2001 Rules does not comprehend situationinvolving limited competitive examination for accelerated promotion.Rule 48 which is the repeal and savings provision stipulates that all rulesand orders relating to matters covered by those rules and in forceimmediately before the commencement of the rules are repealed. TheH

2001 Rules contains schedule and as we have seen earlier, Rule 6(a)provides that the service shall consist of persons holding substantiveposts or persons recruited to subordinate service posts or persons specifiedin the schedule, besides persons recruited in accordance with theprovisions of the rules.

30. It is evident from Part V of the 2001 Rules more particularly,the rules governing promotion contained in Rules 34 and 35 that thedeeming fiction envisaged in Rule 35(6) applies to promotions made underthe auspices of DPC. In the case of such promotions, Rule 35 mandatesthat the committee constituted under Rule 34 must consider the cases ofpersons who were eligible in the year to which the vacancy relatesirrespective of the year in which the meeting of the committee is held.The underlying rationale for Rule 35(6) is that on the determination ofyear-wise vacancies, rights are crystalised with reference to the year inwhich the vacancy has arisen. Consequently, the delay on the part of theDPC in convening its meeting should not result in prejudice to thosecandidates who were eligible for promotion and ought to have beenpromoted but were not considered with reference to the year in whichthe vacancy arose. This principle in Rule 35(6) is in the nature of adeeming fiction. Undoubtedly, once deeming fiction comes into being,full effect must be given to its ambit. Equally, deeming fiction canapply to the extent to which and in situation where the law mandatesthat it be applied. In the present case, it is evident that the deemingfiction which applies in the context of DPC having been convenedbeyond the year in which the promotional vacancy arose has no applicationto candidates who are recruited on the basis of competitive examinationfor the grant of accelerated promotion. There is fundamental reasonwhy the deeming fiction cannot be extended to the situation implicatedin Rule 284(ii). In order to appear in the competitive examinationcontemplated by Rule 284(ii), candidate must fulfill the conditions ofeligibility prescribed in Rule 286. Rule 286 stipulates that in-servicePatwaris must have minimum service of five years before they canappear at the competitive examination under Rule 284(ii). Confermentof deemed seniority may result in situation where candidate securesseniority with effect from an anterior date on which he or she was neitherborne on the cadre nor was qualified. Such consequence would beimpermissible, at least in the absence of an express statutory provisionto that effect.

A31. consistent line of precedent of this Court follows the principlethat retrospective seniority cannot be granted to an employee from adate when the employee was not borne on cadre. Seniority amongstmembers of the same grade has to be counted from the date of initialentry into the grade. This principle emerges from the decision of theConstitution Bench of this Court in Direct Recruit Class IIBEngineering Officers’ Association v State of Maharashtra[14]. Theprinciple was reiterated by this Court in State of Bihar v AkhouriSachindra Nath[15]and State of Uttaranchal v Dinesh KumarSharma[16]. In Pawan Pratap Singh v Reeven Singh[17], this Courtrevisited the precedents on the subject and observed:C

“45. … (i) The effective date of selection has to be understood inthe context of the service rules under which the appointment ismade. It may mean the date on which the process of selectionstarts with the issuance of advertisement or the factum ofpreparation of the select list, as the case may be.

(ii) Inter se seniority in particular service has to be determinedas per the service rules. The date of entry in particular serviceor the date of substantive appointment is the safest criterion forfixing seniority inter se between one officer or the other or betweenone group of officers and the other recruited from differentEsources. Any departure therefrom in the statutory rules, executiveinstructions or otherwise must be consistent with the requirementsof Articles 14 and 16 of the Constitution.

(iii) Ordinarily, notional seniority may not be granted from thebackdate and if it is done, it must be based on objectiveconsiderations and on valid classification and must be traceableFto the statutory rules.

(iv) The seniority cannot be reckoned from the date of occurrenceof the vacancy and cannot be given retrospectively unless it is soexpressly provided by the relevant service rules. It is so becauseseniority cannot be given on retrospective basis when an employeehas not even been borne in the cadre and by doing so it may

14 (1990) 2 SCC 715

15 1991 Supp (1) SCC 334

16 (2007) 1 SCC 683

17 (2011) 3 SCC 267H

adversely affect the employees who have been appointed validlyin the meantime.”

This view has been re-affirmed by Bench of three judges of thisCourt in P Sudhakar Rao v U Govinda Rao[18].

32. During the course of the hearing, learned Counsel appearingon behalf of the appellants placed reliance on decision of two judgeBench of this Court in Jagdish Prasad v State of Rajasthan[19](“Jagdish Prasad”). The issue in that case pertained to promotionsfrom the post of District Transport Officer[20] to the post of Motor VehicleInspector. Prior to April 1992, candidates were required to pass aqualifying examination for the post of DTO but by an amendment, therequirement was deleted. Under Rule 10 of the Rajasthan TransportService Rules 1979[21], the appointing authority was required to make ayear-wise determination of vacancies and to make an apportionment toeach method prescribed for filling up the posts. In doing so, the authoritywas to determine the vacancies of earlier years which were required tobe filled up by promotion but were not in fact filled in that year. Rule 24of the 1979 Rules contains sub-rule (11) which is pari materia withRule 35(6) of the 2001 Rules. Under the 1979 Rules, 50 per cent of thevacancies were allocated for direct recruitment and 50 per cent forpromotion. This Court noted that the 1979 Rules postulated merit to bethe criteria for promotion to the higher posts. Right from 1983-84 until1993-94, no examination was conducted. Faced with the question ofdelay in holding the qualifying examination, this Court observed:

“29. In light of this, we now come to the conduct of theGovernment which we cannot but help to comment upon. Rightfrom 1983-1984 till 1993-1994 no examination has been conductedby the appropriate authority despite the fact that they also issuednotifications for holding exams on few of these occasions. Ifthere was representation from the Rajasthan TransportInspectors’ Union, it cannot be considered as sufficient causeor reason for not holding the examinations for more than ten yearsand causing serious prejudice to the candidates who might havebeen sufficiently meritorious to qualify in the exams and be

18 (2013) 8 SCC 693

19 (2011) 7 SCC 789

20 “DTO”

21 “1979 Rules”

DEFG

Aconsidered for promotion to 50% of the posts under the promotionquota. It is matter of regret that Government can take such astand before court of law and expects the Court to accept sucha submission. It is ex facie untenable. Once the rules stand clear,the authority concerned is expected to act in accordance withlaw and not to defeat the law. One who defeats the law by hisBunjustifiable and unsustainable acts is liable for the consequencesof such default. We fail to understand why the Government andits entire hierarchy had shut its eyes to this gross violation ofstatutory rules over such long period.”

The process of selection was held to be in violation of the statutoryCrules. In this background, this Court noticing the illegality in the process,issued directions for holding fresh process of selection.

33. Jagdish Prasad is decision which has been rendered in asituation where the 1979 Rules applicable to the Transport departmentcontained specific provision for considering the case for promotion ofDpersons who are eligible in the year to which the vacancy relates andwho could not be considered as result of the failure of the DPC toconvene. The decision related to situation where the State Governmenthad acted arbitrarily and even mala fide in failing to hold the qualifyingexamination for decade on the specious ground that there was aErepresentation from the union. The action of the State was held to beunsustainable because it was designed to defeat the law. Thisdistinguishing feature is absent in the present case.

34. In the present case, we have dealt with the issue of theapplicability of the 1960 Rules in the context of determining the principleFof seniority. We have held that in view of the opening words of Rule347-A, the provisions contained in the 1960 Rules would have to giveway and be subject to Rule 171-A(2) which provided for determiningseniority on the basis of continuous officiation. In the face of Rule 171-A(2) as it stood prior to amendment, it is not possible to apply deemeddate for determining seniority based on the year of vacancy. Rule 171-GA(2) rules out the grant of seniority with effect from date anterior tothe date on which the employee is borne on the cadre.

35. But the submission which now needs to be analysed is whethera different result would follow from the application of Rule 347-B of the1957 Rules. Rule 347-B, as we have noted, is prefaced with non-H

obstante provision. Consequently, conditions of service which aregoverned by the rules referred to in the entries of Rule 347-B will governnotwithstanding anything contained in the 1957 Rules. Among them isan entry pertaining to the 1972 Rules. Hence, it is necessary to considerthe applicability of the 1972 Rules. Rule 2 contemplates situation wherethe service rules regulating recruitment and conditions of service madeunder the proviso to Article 309 of the Constitution provide for recruitmentby both direct recruitment and promotion. Where the promotion quota ofa previous year cannot be filled in due to the absence of DPCrecommendation, the appointing authority is to determine the number ofvacancies required to be filled up by promotion with reference to theyear when the vacancies were required to be filled up. In such situation,upon determination of the vacancies by the appointing authority, theDPC is required to convene within stipulated period. Upon therecommendations of the DPC, the appointing authority must makeappointments to promotion quota vacancies relevant to the year inquestion. Where vacancy relates to year earlier than the year inwhich the appointment has been made, the order of appointment has tobe modified so as to take effect from the year in which the promotion isdeemed to have been made. plain reading of the 1972 Rules indicatesthat they envisage situation where recruitment is made both by directrecruitment and promotion and the promotional quota is not filled up inthe absence of DPC recommendation. On its terms, Rule 2 of the1972 Rules has no application to situation such as the present which isgoverned by Rule 284 of the 1957 Rules. Under Rule 284, there is nodirect recruitment at all. Rule 2 of the 1972 Rules applies in situationwhere service rule regulating recruitment “provides for recruitmentby both direct recruitment and promotion”. In the present case, exfacie Rule 284 of the 1957 Rules is not provision falling in that categorysince there is an absence of service rule requiring recruitment by directrecruitment and promotion. The 1972 Rules have no application. Rule347-B of the 1957 Rules will hence not come to the aid of the appellants.

36. The situation, as we have noted has been altered by the rulemaking authority which amended the provisions contained in Rule 171-A(2) of the 1957 Rules. As result of the amendment, sub-rule (2)came to be substituted with effect from 8 October 2014. Postamendment, the seniority of LRIs has to be determined on the basis ofthe recruitment year of promotion. The provision for continuous officiation

CDEF

Aas embodied in Rule 171-A(2) prior to the amendment was to the contrary.A deliberate departure has been made in the rules which were modifiedon 8 October 2014. We cannot accept the submission that the amendmentwas clarificatory in nature. The present case relates to the exerciseconducted prior to the amendment of Rule 171-A(2).

B37. For the above reasons, we are of the view that the DivisionBench of the High Court was justified in coming to the conclusion, thoughfor the reasons which we have indicated, that the claim for senioritywith reference to the date of the accrual of the vacancy will not bemaintainable merely on the ground that no competitive examination washeld in the years in which the vacancies had arisen. The view taken byCthe Division Bench of the Rajasthan High Court is in accord with theprinciples of law enunciated in the decisions of this Court and consistentwith the statutory rules as they held the field at the material time.

38. For the above reasons, we find no merit in the appeals. Theappeals are accordingly dismissed. There shall be no order as to costs.DPending application(s), if any, shall stand disposed of.

Ankit Gyan

Appeals dismissed.