Judgment:
Suresh Chander Agrawal, J.
1. This appeal has been filed under Section 18 of the Rajasthan High Court Ordinance, 1949 against the order of the learned Single Judge (K.S. Sidhu, J.) dated 17th February, 1984 dismissing the writ petition filed by the appellant. In the writ petition the appellant had challenged the order dated 24th July, 1980 passed by the Rajasthan Civil Services Appellate Tribunal, Rajasthan, Jaipur(here in after referred to as 'the Tribunal') allowing the appeal filed by Shri Rameshwar Dayal Bhartari, respondent No, 2 against the orders dated 26th October, 1978, 11th November, 1978 promoting Lokesh Kumar respondent No. 5 on the post of Excise Inspector Gr.-I and the order dated 11th December, 1978 promoting respondent No. 5 on the post of Asstt. Excise Officer. The Tribunal while not setting aside the said orders directed that the of respondent No. 2 vis-a-vis respondent No. 5 and other seniors, if eligible, shall be considered according to the Rules and according to the same principles which were decided by the Court in the case of respondent No. 5.
2. In the Excise Department there were three grades of Excise Inspectors, namely, Excise Inspector Grade III, Excise Inspector Grade II and Excise Inspector Gr.-I. The next post higher to that of Excise Inspector Gr.-I is that of Asstt. Excise Officer. The posts of Excise Inspector Grade I, II and III were subordinate service posts. Prior to the promulgation of the Rajasthan Excise Subordinate Services (General Branch) Rules, 1974 (here in after referred to as ('the Subordinate Service Rules') vide notification dated 30th May, 1974 published in the Rajasthan Rajpatra dated 6th June, 1974, appointment to the said posts was governed by the Rajasthan Subordinate Service (Recruitment and other Service Conditions) Rules, 1960 (here in after referred to as the 1960 Rules'). The post of Asstt. Excise Officer forms part of the Rajasthan Excise Service (General Branch) and appointment to the said post is governed by the Rajasthan Excise Service (General Branch) Rules, 1974 (here in after referred to as 'the Excise Service Rules').
3. The appellant was appointed to the post of Excise Inspector Grade II by order dated 13th September, 1960 on temporary basis. He was confirmed on the said post of Excise Inspector Grade II with effect from 1st July, 1970 but the said order of confirmation was with drawn by order dated 13th November, 1973 and the petitioner was subsequently confirmed as Excise Inspector Grade II on 23rd November, 1974 after being screened in accordance with the provisions of Rule 6 of the Subordinate Service Rules. Respondents No. 2 & 5 were appointed as Inspector Gr. II after selection by the Rajasthan Public Service Commission by order dated 30th November, 1965 and they were appointed on probation for a period of two years. As he was not confirmed on the Inspector Grade II, while persons junior to him were so confirmed the respondent No. 5 filed a writ petition (S.B. Civil Writ Petition No. 1903 of 1970) in this Court on 19th September, 1970. During the Pendency of this writ petition the order dated 2nd March, 1973 was passed whereby respondent No. 5 as well as respondent No. 2 were both confirmed retrospectively on the post of Inspector Grade-II with effect from 30th November, 1965. Thereafter both the said respondents were promoted as Inspector Grade I on 10th January, 1975 but were reverted again to the post of Inspector Grade II. A Departmental Promotion Committee (for short the DPC) was convened for making selections for promotion of Inspector Grade-II to Inspector Grade I in the year 1976. At that time promotion to the post of Inspector Grade I was required to be made on the basis of merit only. The DPC placed the appellant in 'outstanding' category whereas respondents No. 2 and 5 were placed in 'good' category. By order dated 12th March, 1976 the appellant was promoted on the post of Inspector Grade-I, but respondent Nos. 2 and 5, even though they were senior to the appellant, were not so promoted. They were promoted as Inspector Grade-I on temporary basis by order dated 13th November, 1976. On the basis of the order dated 12th March, 1976, a provisional seniority list of Inspector Grade-I and Grade II, as on 1st March, 1977, was issued on 20th March, 1978 and in that seniority list the name of the appellant was shown at S.No. 7 amongst Inspector Grade-I and the names of the respondents Nos. 2 and 5 were shown at S.No. 1 and 14 respectively amongst the Inspector Grade-II. The writ petition of respondent No. 5 was decided by the learned Single Judge (M.L. Jain, J,) by order dated 1st May, 1978. By the said order the learned Single Judge allowed the said writ petition of respondent No. 5 and directed that his seniority in Inspector Grade-II should have been determined on the basis of his having been confirmed with effect from 30th November, 1965 and since promotions of Inspector Grade-I were made either on merit or seniority-cum-merit, the said respondent should be considered accordingly and if he was so selected, then he will be entitled to appointment as Inspector Grade-I with retrospective effect. As regards considerations for the post of Assistant Excise Officer, it was directed that if the said respondent was appointed Inspector Grade-I with retrospective effect, then he may also further be considered for the post of Assistant Excise Officer on the date on which any person junior to him was promoted provided he possesses qualifications prescribed under the Excise Service Rules. Civil Special appeal No. 48/1978 filed against the aforesaid order of the learned Single Judge was dismissed by a division bench of this Court by order dated 9th November, 1978. In pursuance of the directions given by the learned Single Judge in the writ petition of respondent No. 5 the State Government passed an order dated 26th October, 1978 whereby it was directed that respondent No. 5 be promoted as Inspector Grade-I with effect from 14th August, 1967 and be confirmed as Inspector Grade-I with effect from 13th June. 1968 and in pursuance of the said order of the State Government the Excise Commissioner, Rajasthan passed an order dated 11th November, 1978 whereby respondent No. 5 was promoted as Inspector Gr.-I with effect from 14th August, 1967 and he was confirmed on the post of Inspector Grade-I with effect from 13th June 1968. By another order dated 11th December, 1978 passed by the State Government, respondent No. 5 was appointed on the post of Asstt. Excise Officer on purely temporary/urgent basis with effect from 26th August, 1967 to 30th April, 1979 or till regularly selected candidates in accordance with the method prescribed under the Rules, is made available, whichever is earlier.
4. Since respondent No. 2 was senior to respondent No. 5 in the cadre of Inspectors Grade II, he filed an appeal before the Tribunal against the aforesaid orders dated 26th October, 1978, 11th November, 1978 and 11th December, 1978, with regard to promotion of respondent No. 5 as Inspector Grade I and Asst. Excise Officer. The appellant was not impleaded as a party in the said appeal, but the Shri K.L. Arora who had been promoted as Inspector Grade I by order dated 12th March, 1976 and was senior to the appellant in the cadre of Inspector. Grade I, was allowed to intervene as an intervener in the said appeal by the Tribunal. The aforesaid appeal of respondent No. 2 was disposed of by the Tribunal by order dated 24th July 1980. The Tribunal rejected the objection raised with regard to the maintainability of the appeal on the ground of limitation and held that a new situation had arisen as a result of the orders passed in favour of respondent No. 5 and that respondent No. 2 was entitled to challenge those orders on the ground of violation of his fundamental rights guaranteed under Articles 14 and 16 of the Constitution of India in as much as respondent No. 2 being senior to respondent No. 5 had a right to challenge the orders of promotion of respondent No. 5. The Tribunal further held that according to the decision of this Court, consideration of respondent No. 5 for promotion had to be done according to the Rules which implied consideration according to the procedure i.e., eligibility, seniority etc. and that the order of promotion of respondent No. 5 was not strictly in accordance with the directions of this Court as necessary provisions of the service rules had neither been followed nor the Government had considered his case according to the seniority vis-a-vis others nor the provisions for making promotion had been adhered to, the Tribunal did not consider it necessary to quash the orders that were impugned by respondent No. 2 in his appeal, but directed that the case of respondent No. 2, vis-a-vis respondent 5 and other seniors, if eligible, shall be reconsidered according to the rules and according to the same principles as decided by this Court in the case of respondent No. 5.
5. Feeling aggrieved by the aforesaid order of the Tribunal, the appellant filed the writ petition giving rise to the special appeal. The said writ petition was dismissed by the learned Single Judge (K.S. Sidhu, J.) on the view that the appellant cannot legitimately make any grievance against the order dated July 24, 1980 passed by the Tribunal because the Tribunal had directed the State Govt. first to consider the case of respondent No. 2 and other eligible officers senior to respondent No. 5 for promotion according the Rules and according to the same principles as decided by this Court in the case of respondent No. 5. The learned Single Judge has observed that in the case of respondent No. 5 this Court had directed that the respondent No. 5 should be considered for promotion with retrospective effect as Excise Inspector Grade I and that if he is promoted as such he should further be considered for promotion as Assistant Excise Officer if eligible for such promotion & that instead of considering the case of respondent No. 5 for promotion according to the Rules, the appointing authority misconstrued the order of this Court as a categorical direction for retrospective promotion of respondent No. 5 although this Court had merely directed that he should be considered for promotion according to the rules & that such consideration would not necessarily involve the simultaneous consideration of all eligible officers, including respondent No. 2, senior to respondent No. 2, senior to respondent No. 5 for promotion as Excise Inspector Grade I and Asst. Excise Officers and since there was no simultaneous consideration of respondent No. 2 and others who were senior to respondent No. 5 the Tribunal felt impelled to direct the Government to reconsider the entire case of respondent No. 2 and other seniors, vis-a-vis respondent No. 5 for their promotion as Excise Inspectors Grade I and thereafter as Asstt. Excise Officers. The learned Single Judge also pointed out that the appellant, who is admittedly junior even to respondent No. 5 in the gradation list of Excise Inspectors Grade II, cannot be heard to complain about what orders have been passed or may be affecting respondent No. 2 respondent No. 5 and their seniors inter se. The learned Single Judge has further observed that if the appellant finds that such orders as they finally emerge on reconsideration of the entire case impinge on his legal rights, he would be free to seek his remedy according to law. Feeling aggrieved by the aforesaid order passed by the learned Single Judge, the appellant has filed this special appeal.
6. At this stage it may be mentioned that another writ petition (S.B.C.W. No. 1587/1980) was filed in this Court by respondent No. 5 against the order of the Tribunal dated 24th July, 1980 which has been challenged by the appellant in his writ petition. The said writ petition of respondent No. 5 was dismissed by another learned Judge of this Court (P.D. Kudal, J.) by order dated 8th Dec, 1981.
7. The learned Government Advocate has submitted that this appeal may be heard along with other matters which are pending in this Court relating to promotions of Excise Inspectors Grade II to the post of Excise Inspectors Grade I. The other matters to which reference has been made by the learned Government Advocate involve challenge to other orders of the Government and they do not relate to the order dated 24th July, 1980 passed by the Tribunal which is the order under challenge in this special appeal. We, therefore, did not agree to connect this special appeal with the other metters referred to by the learned Government Advocate.
8. The first contention that was urged by Shri M.R. Calla, the learned Counsel for the appellant, was that the appellant was a necessary party in the appeal that was filed by respondent No. 2 before the Tribunal and the order that has been passed by the Tribunal in the absence of the appellant is, therefore, a nullity. In this connection Shri Calla has submitted that the order passed by the Tribunal would adversely affect the rights of the appellant in the matter of seniority in the cadre of Inspector Grade-I as well as his further promotion to the higher post of Asstt. Excise Officer in as much as a result of the order of the Tribunal respondent No. 2 and other persons would be promoted as Excise Inspector Grade I above the appellant and may rank senior to the appellant and thereby adversely affect his rights. We are unable to agree with the aforesaid contention of Shri Calla. In his appeal before the Tribunal the respondent No. 2 had challenged the orders dated 26th October, 1978 and 11th November, 1978 whereby the respondent No. 5 was promoted as Excise Inspector Grade I with effect from 14th August, 1967 and was confirmed as Inspector Grade I with effect from 13th June, 1968 and order dated 11th December, 1978 whereby the respondent No. 5 was appointed on the post of Asstt. Excise Officer on purely temporary/urgent basis with effect from 26th August, 1967 to 30th April, 1979. The appellant was not even a confirmed Inspector Grade II till 1974, and was much junior to respondent No. 5 in the cadre of Inspector Grade-II, in as much as the respondent No. 5 had been confirmed as Inspector Grade II with effect from 30th November, 1965. In the appeal of respondent No. 2 before the Tribunal, the grievance of respondent No. 2 was that the orders with regard to promotion of respondent No. 5 on the post of Inspector Grade I and Asstt. Excise Officer could not be passed without considering him (respondent No. 2) as he was senior to respondent No. 5. The appellant, who came into picture much later, had no say in the masters in controversy in the appeal of respondent No. 2 before the Truibunal because at the relevant time he had no right to be considered for the post of Inspector Grade I and Asstt. Excise Officer. The mere fact that as a result of the order of the Tribunal, respondent No. 2 and certain other officers senior to respondent No. 5 may be promoted as Excise Inspectors Grade I from the date earlier than 12th March, 1976 when the appellant was promoted as Excise Inspector Grade I would not mean that the appellant was a necessary party to the appeal filed by respondent No. 2 in the Tribunal. The appellant has acquired his right to hold the post of Excise Inspector Grade I by virtue of order dated 12th March, 1976 and the said order was not under challenge in appeal filed by respondent No. 2 before the Tribunal. In the circumstances, it cannot be said that the appellant was a necessary party to the appeal filed by respondent No. 2 before the Tribunal and for that reason the order passed by the Tribunal in the said appeal is a nullity. More over, it may be mentioned that in the appeal of respondent No. 2 before the Tribunal, Shri K.L. Arora was allowed to intervene as an intervener and he had made his submissions before the Tribunal. Shri K.L. Arora was promoted as Inspector Grade I along with the appellant by order dated 12th March, 1976 and he is senior to the appellant in the cadre of Inspector Grade I. The interests of the appellant and Shri K.L. Arora were similar and Shri K.I Arora was permitted to make his submissions before the Tribunal.
9. Shri Calla has assailed the order of the Tribunal on the ground that the Tribunal has misconstrued the order passed by M.L. Jain, J. dated 1st May, 1978 allowing the writ petition of respondent No. 5. He has also urged that the orders dated 26th Oct., 1978, and 11th Nov. & 11th Dec., 1978 with regarding promotion of respondent No. 5 were not passed in accordance with the directions given by the writ petition of respondent No. 5 and that M. L Jain, J., in his order dated 1st May, 1978, while allowing the writ petition of respondent No. 5, had directed that the case of respondent No. 5, for information for the post of Inspector Grade 1 should be considered in accordance with the Subordinate Service Rules which were introduced in 1974 and that in view of the said direction respondent No. 5 could not be given promotion on the post of Inspector Grade II from a date prior to promulgation of the Subordinate Service Rules. We are unable to accept the aforesaid contention of Shri Calla. A perusal. of the order of M.L. Jain, J. in the writ petition of respondent No. 5 would show that the grievance of respondent No. 5 in the said writ petition was that on account of his non-confirmation on the post of Inspector Grade II number of persons who were junior to him as Inspector Grade II had been promoted as Inspector Grade I and as Asstt. Excise Officer. In that case respondent No. 5 had urged that according to Rule 21 of the 1960 Rules, the seniority of persons appointed to the posts in the same category is determined by the date of the order of their substantive appointment to the post and respondent No. 5 having been confirmed earlier than the respondents in that writ petition, stood senior to them and should have been considered for promotion to the post of Inspector Grade I and Asstt. Excise Officer on the various dates on which the respondents were so considered and promoted. The said contention of respondent No. 5 was accepted by the learned Judge (M.L. Jain) and he held that all the rules relating to seniority make it clear that seniority is determined by the date of the order of confirmation and that as soon as respondent No. 5 was confirmed with effect from 30th November, 1965, his seniority in Inspector Grade II must be determined on that basis and since promotions to Inspector Grade-I were made either on merit or seniority-cum-merit vide Rule 23 of the Subordinate Service Rules, respondent No. 5 should be considered accordingly and if he is selected, then he would be entitled to appointment to Inspector Grade I with retrospective effect and that as regards the consideration for the post of Asstt. Excise Officer if respondent No. 5 was appointed Inspector Grade I with retrospective effect, then he may also be further considered for the post of Asstt. Excise Officer on the date on which any person junior to him was promoted provided he possesses the qualification prescribed by the Excise Service Rules. In the aforsaid order the learned Judge gave a specific direction for promotion to respondent No. 5 for the post of Inspector Grade I with retrospective effect as well of his consideration for the post of Asstt. Excise Officer from the date on which any person junior to him was so promoted. The aforesaid direction with regard to retrospective appointment was made on the basis that respondent No. 5 had been denied consideration even though he was entitled to such consideration in view of the fact that he was confirmed on the post of Inspector Grade II with effect from 30th November, 1965. Since the denial of consideration of respondent No. 5 had taken place from 30th November, 1965 onwards when the 1960 Rules were in operation the consideration of respondent No. 5 for retrospective appointment on the post of Excise Inspector Grade I had to made in accordance with the Rules which were operative at that time i.e. the 1960 Rules. The Tribunal as well as the State Government cannot be said to have misconstrued the directions given in the said order by the learned Single Judge, when they decided to promote inspector Grade 1 and Asstt. Excise Officer with retrospective effect from dates prior to the promulgation of the Subordinate Service Rules and the Excise Service Rules.
10. Another contention that was urged by Shri Calla was that the no direction could be given for ,c 'respondent No. 5 for promotion to the post of Excise Inspector earlier than the promulgation of the Subordinate Service Rules because the 1960 Rules, which were applicable earlier, have been expressly repealed by Rule 37 of the Subordinate Service Rules. In our opinion there is no substance in the aforesaid contention. By Rule 37 of the Subordinate Service Rules all Rules and orders in relation to matters covered by the Subordinate Service Rules immediately before commencement of the said Rules were repealed in the proviso to Rule 37 it has been laid down that any action taken under the rules and orders so superseded shall be deemed to have been taken under the provisions of the Subordinate Service Rules. As a result of the aforesaid rule, the 1960 Rules, in so far as they relate to matters covered by the Subordinate Service Rules, stood repealed from the date of coming into force of the Subordinate Service Rules. But the 1960 Rules were operative till the date of promulgation of the Subordinate Service Rules. The validity of the orders passed at the time when the 1960 Rules were in operation would have to be judged on the basis of the said Rules and if the Court found that the said orders were not in accordance with the 1960 Rules, it could set aside the said orders and give a direction for reconsideration in accordance with the Rules which were in force at that time. The repeal of the 1960 Rules by Rule 37 of the Subordinate Service Rules could not preclude the Court from giving such a direction. The learned Judge while deciding the writ petition of respondent No. 5 found that there was denial of consideration of respondent No. 5 in the matter of promotion to the post of Inspector Grade I and Asstt. Excise Officer in view of his confirmation on the post of Inspector Grade II with effect from 30th November, 1965. The said denial of consideration took place during the period from 30th November, 1965 onwards. The 1960 Rules were operative upto 6th June, 1974, i.e. the date of promulgation of the Subordinate Service Rules. The said denial of consideration thus took place when the 1960 Rules were operative. The learned Single Judge, therefore, could give a direction for re-consideration of the case of respondent No. 5 and Asstt. Excise Officer in accordance with the provisions of the 1960 Rules which were applicable at the time when such consideration was denied to respondent No. 5. In our opinion, therefore, the repeal of the 1960 Rules by the Subordinate Service Rules could not preclude the reconsideration of the case of respondent No. 5 under the provisions of the 1960 Rules. The respondent No. 2 was admittedly senior to respondent No. 5. While passing the orders regarding promotion of respondent No. 5 on the post of Excise Inspector Grade I and Asstt. Excise Officer, the cases of respondent No. 2 and other persons senior to respondent No. 5 were not considered. In the circumstances the Tribunal, has rightly directed that the cases of respondent No. 2 and all other persons senior to respondent No. 5 should have been considered for promotion to the post of Excise Inspector Grade I and Asstt. Excise Officer. The learned Single Judge was right in dismissing the writ petition of the appellant and there is, therefore, no merit in this special appeal.
11. Before parting with this case, we may observe that the learned Govt. Advocate during the course of his submission before us, sought to challenge the order passed by the Tribunal and urged that the said order is not in accordance with the judgment of this Court in the writ petition of respondent No. 5. It is difficult to appreciate the aforesaid contention of the learned Government Advocate especially in view of the reply that has been filed on behalf of the State to the writ petition. In the said reply the order passed by the Tribunal has been supported and it has been submitted that the appellant was not a necessary party to the appeal filed by respondent No. 2 before the Tribunal and that the writ petition was liable to be dismissed. In the said reply, it has also been submitted that the order of the Tribunal has been upheld by this Court in order dated 9th December, 1981 in S.B. Civil writ petition No. 1587 of 1980. In view of the aforesaid reply that has been filed on behalf of the State, we cannot entertain the submission of the learned Government Advocate assailing the order of the. Tribunal.
12. In the result, the special appeal fails and is hereby dismissed. There will be no order as to costs.