Judgment:
Calla, J.
1. This special appeal under Section 18 of the Rajasthan HighCourt Ordinance is directed against the judgment and order dated 26.3.96 passed bythe Learned Single Judge whereby the petitioner's writ petition against the order ofthe Rajasthan Civil Services Appellate Tribunal was dismissed.
2. There are two sets of Rules namely, the Rajasthan Agriculture Subordinate Service Rules, 1978 (for short 'the Rules of 1978') and the Rajasthan Agriculture Service Rules, 1960 (for short 'the Rules of 1960'). The post of Assistant Agriculture Engineer included at S. No. 14 of the Schedule appended to the Rules of 1960 is the lowest post under Section III i.e. Agricultural Engineering. This post is required to be filled 50% by promotion and 50% by recruitment as mentioned in Col.III and Col.IV against it respectively. The promotions on this post of Assistant Agriculture Engineer are required to be made from amongst the holders of the post of Junior Engineer and equivalent post in Raj. Agriculture Subordinate Service of Engineering Section. Therefore, the post of Junior Engineer or any post equivalent thereto belonging to the Rajasthan Agriculture Subordinate Service is the feeder post for the purpose of promotion to the post of Assistant Agriculture Engineer included at S. No. 14 of the Schedule appended to the Rules of 1960 under Section III of the Agricultural Engineering as mentioned herein above.
3. The appellant herein, a member of the Rajasthan Agriculture Subordinate Service, was an aspirant for promotion to the post of Assistant Agriculture Engineer in the State Service. The selections were held for promotion to the post of Assistant Agriculture Engineer in the year 1980 on two different dates for the vacancies available against the years 1976 and 1979. When the selections were held for according promotions on the aforesaid post, the petitioner was not selected for the year 1979. Aggrieved from this, he preferred an appeal before the Rajasthan Civil Services Appellate Tribunal claiming that he should have been selected against the vacancies available in the year 1979 and prayed before the Tribunal that the order dated 17.5.80 be quashed and set aside and that the selections of the respondents No. 2 to 8 who are also the respondents No. 2 to 8 in this appeal before us may be set aside and that the experience gained by them on the post of Assistant Agriculture Engineer on the basis of the order dated 17.5.80 may be declared to be illegal and that it may not be of any avail to them for any purpose whatsoever.
4. It may be clarified that the order dated 17.5.80 which had been passed with regard to the promotion of these respondents No. 2 to 8 was for the vacancies which were for the year 1979 and it appears that so far as the year 1976 is concerned, the selections were held on 21.1.1980 and for the vacancies of the year 1979, the selections were held on 22.1.80 and on that basis, the order dated 17.5.80 was passed promoting the respondents as Assistant Agriculture Engineer. To the appeal filed by the present appellant before the Tribunal, a reply was filed on behalf of the State of Rajasthan. In para 3 of this reply, it was stated that for the vacancies of the years 1976 and 1979, the D.P.C. was held on 21.1.80 and 22.1.80 : 5 persons were selected for the vacancies of year 1976 and 13 persons were selected for the vacancies of year 1979; in the year 1976, 3 persons were selected on the basis of seniority cum merit and 2 persons were selected on the basis of merit alone ; no person junior to the appellant was selected against the vacancies of 1976. Thus, there is no controversy before us so far as the selections which were made against the vacancies of the year 1976 are concerned and the controversy which is to be considered by us is only for the year 1979.
5. As per the reply filed by the Government that in the year 1979, there were 13 vacancies in all, out of which 6 persons were selected on the basis of seniority-cum-merit. No person junior to the appellant was selected on seniority-cum-merit but 7 persons junior to the appellant were selected on the basis of merit. It is at this juncture that the appellant seeks to join issues with the respondents by saying that when there are 13 vacancies, the D.P.C. should have started with the first vacancy to be available by seniority-cum-merit and had it been so done, there would have been 7 vacancies for seniority-cum-merit and only 6 for merit in the year 1979 and in that case, the appellant would have been certainly selected on the basis of seniority-cum-merit and would not have been made to suffer the loss of promotion to the higher post and the consequential loss of seniority as Assistant Agriculture Engineer.
6. The Tribunal took the view that whereas in the year 1976, the last person who was promoted out of 5 vacancies was a promotee based on seniority-cum-merit, the first vacancy in the year 1979 has to be filled by merit because the proportion of 50:50 is required to be maintained amongst the promotees on the basis of merit and seniority-cum-merit and the cycle is required to be repeated. It appears that no selections were held for the vacancies of the year 1978 as there may not have been any vacancies in the year 1978. It is admitted position before us that there were 5 vacancies in the year 1976 and 13 vacancies in the year 1979. Against the dismissal of the appeal of the appellant by the Tribunal by its judgment and order dated 8.11.83, the appellant preferred a writ petition before this Court challenging the order passed by the Tribunal but the learned Single Judge upheld the order passed by the Tribunal and rejected the writ petition filed by the appellant by order dated 26.3.96. Aggrieved from the order dated 26.3.96 passed by the learned Single Judge in S.B.C.W. No. 177/84 read with the order passed by the Tribunal on 8.11.83, the present appellant has filed this appeal.
7. We have heard learned counsel for the parties, have gone through the impugned orders and the material available on the record and we have also gone through the relevant Rules.
8. The Rules of 1978 were notified vide notification dated 29.6.78 and thereafter an omnibus amendment In various Service Rules in State of Rajasthan was issued vide notification No. F7(10)DOP/A-II/77 dated 17.8.78 w.e.f. 12.5.78 whereby an explanation was inserted in various services Rules and so far as the Rules of 1960 are concerned, this explanation was added after Sub-rule 6 of Rule 25-A. The word, 'after' in the amending notification is very significant. It is not under Sub-rule 6 but after Sub-rule 6 and therefore the 'explanation' applies to all the posts for which selection is required to be made by merit as well as seniority-cum-merit. In the scheme of rules there is a clear demarcation of criteria to be applied to posts up to Sub-rule 6 and those under Sub-rule 7. This explanation as was introduced vide notification dated 17.8.78 w.e.f. 12.5.78 is reproduced as under :-
'Explanation: If in a Service, in any category of post, number of posts available for promotion is an odd number then for purpose of determining the vacancies for selection by promotion on the basis of seniority-cum-merit and merit in the proportion of 50:50, the following cyclic order shall be followed :
The first vacancy by seniority-cum-merit; The subsequent vacancy by merit; The cycle to be repeated.'
9. We find that Rule 25-A provides for revised criteria, eligibility and procedure for promotion to Junior, Senior and other posts encadred in the service and up to Sub-rule 6 thereof, it covers the posts which are to be filled on the basis of seniority-cum-merit and merit in the proportion of 50:50 and after Sub-rule 6, the aforesaid omnibus amendmed explanation was included at the end of Sub-rule 6 and just above Sub-rule 7. It is very clear from the scheme of Rules that the posts which were required to be filled by both the methods i.e. merit as well as seniority-cum-merit have been dealt with up to Sub-rule 6 and thereafter, the posts about which the reference is made in Sub-rule 7 and proviso thereto are the posts which are required to be filled up on the basis of merit alone. The explanation is thus an explanation added after Sub-rule 6 of Rule 25-A and it seems to govern the posts which are required to be filled by merit as well as seniority-cum-merit of course in the ratio of 50:50.
10. Rule 10 of the Rules of 1960 provides for determination of vacancies and we may hasten to add that like most of the service rules prevailing in this State, in the set of the Rules under consideration also, the vacancies are required to be determined yearwise and the obligation to determine the vacancies yearwise is writ large as per the scheme of the Rules and out of the vacancies so determined for every year on the lowest post of Assistant Agriculture Engineer as aforesaid, 50% posts are to be filled bypromotion and 50% by direct recruitment and the proportion of 50:50 is to be maintained every year. In doing so in a given year, the selection for promotion in the regular, line of promotion from the post/posts not included in service to the lowest post or category of post in service have to be made strictly on the basis of merit and seniority-cum-merit in the proportion of 50:50. In terms of the proviso under Sub-rule 4, if the Committee is satisfied that the suitable persons are not available for promotion strictly on the basis of merit in a particular year, selection by promotion on the basis of seniority-cum-merit may be made in the same manner as specified in the Rules. It is, therefore, clear that so far as the lowest post of Assistant Agriculture Engineer is concerned, according to Sub-rule 4 of Rule 25-A, the selections are to be made on the basis of merit and on the basis of seniority-cum-merit in the proportion of 50:50 but in a given case, if the Committee is satisfied that the suitable persons are not available for promotion strictly on the basis of merit in a particular year, the selection by promotion on the basis of seniority-cum-merit may be made in the same manner as specified in the Rules.
11. Sub-Rule 4 of Rule 25-A is reproduced as under :-
(4) Selection for promotion in the regular line of promotion from the post/posts not included in Service to the lowest post or category of post in the Service shall be made strictly on the basis of merit and on the basis of seniority-cum-merit in the proportion of 50:50.
Provided that if the Committee is satisfied that suitable persons are not available for selection by promotion strictly on the basis of merit in a particular year, selection by promotion on the basis of seniority-cum-merit may be made in the same manner as specified in these Rules.'
12. The scheme of the Rules thus on the one hand provided for determination of the vacancies yearwise and on the other hand, it bifurcates the criteria by way of promotion to be seniority-cum-merit and merit for the purpose of promotion to the post of Assistant Agriculture Engineer and through the explanation as added after Sub-rule 6, it has been further made clear that if there are old number of vacancies, the first vacancy has to be filled up on the basis of seniority-cum-merit. Thus, the scheme of Rule 25-A in itself deals with the posts meant for promotion in the regular line of promotion. The next categories of the posts as provided in Sub-rule 5 i.e. promotion from the lowest post or category of post in the State service to the next higher post or category of post in the State service and for all posts in the subordinate service and in ministerial services shall be made strictly on the basis of seniority-cum-merit and in Sub-rule 6, the reference has been made to all other higher posts or higher categories of posts in the State service and after the Sub-rule 6 and the amendment introduced under it as mentioned above, comes Sub-rule 7 which speaks of promotion to the higher posts or highest categories of posts.
13. Mr. Gupta has argued that the cycle is to be repeated every year in continuity and, therefore, when 3 out of 5 vacancies had already been filled up by seniority-cum-merit in the year 1976, for the remaining vacancies, the explanation had to be applied so as to determine the number of available post for promotion to a definite criteria and to maintain the proportion of 50:50. In view of the principle of determination of vacancies yearwise, it is clear that the vacancies are to be determined yearwise and while making selections against such number of vacancies, if number of vacancies is odd, the first vacancy has to be taken into consideration for promotion by seniority-cum-merit. Merely because the scheme of the Rules mentions that the cycle is to be repeated and that under Sub-rule 4, the proportion is mentioned as 50:50, the Tribunal as well as the learned Single Judge by clubbing the vacancies of 1976 and 1979 came to the conclusion that because the last vacancy filled for the year 1976 was by seniority-cum-merit, the first vacancy in the year 1979 out of 13 vacancies, ought to have gone by merit selection and it is precisely for this reason and as a result ofclubbing of the vacancies of the years 1976 and 1979 that the present appellant's appeal before Tribunal and the writ petition before the learned Single Judge were rejected. It may be made clear that the explanation which says that in case of odd number of vacancies, the first must go by seniority-cum-merit was introduced for the first time by notification dated 17.8.78 and was made effective from 12.5.78. Since this amendment came into effect in 1978 and was made effective from 12.5.78, there was no question of application of this Rule so far as the vacancies of the year 1976 is concerned. Once this Rule came into force in the year 1978 and was in force when the promotion for the vacancies of 1979 were made, the criteria as mentioned in the Rule should have been applied. The very fact that the notification dated 17.8.78 as has been published shows that vide this notification, the explanation was added after Sub-rule 6 goes to show that this explanation had to be applied to the procedure which was prescribed under all the sub-rules upto Sub-rule 6 and so far as Sub-rule 7 is concerned, there is no question of applying this notification as under Sub-rule 7, the vacancies are required to be filled on the basis of merit alone subject to the provisions as contained in Sub-rule 7 itself. Even in Sub-rule 4, it is said to be in the same manner as prescribed in these rules and, therefore, the explanation is applicable as part of procedure for the purpose of computing the vacancies on the basis of merit and seniority-cum-merit and we have no hesitation in holding that after the amendment dated. 17.8.78 which was made effective from 12.5.78, there was no question of continuing the cycle which ended in the year 1976 before this amendment. Once it is found that admittedly there were 13 vacancies in the year 1979 and 13 is an odd number, the first vacancy should have been considered on the basis of seniority-cum-merit and had it been so considered, there would have been 7 vacancies for seniority-cum-merit and 6 for merit whereas what has been applied while making the selection for this year 1979 and what has been considered by the Tribunal as well as the learned Single Judge to be correct course of action is that there were 7 vacancies for merit and only 6 vacancies for seniority-cum-merit and it is for this incorrect consideration of the application of explanation dehors the amendment of 1978 which has resulted into rejection of the appeal before the Tribunal and the writ petition before the learned Single Judge.
14. It is transparently clear from the scheme of the Rules that the vacancies are to be determined yearwise as per the interpretion of Rule 10 and this Court in large number of decisions in past, has upheld the yearwise determination of vacancies and yearwise selection. On the basis of proviso mentioned in Sub-rule 4 that the selection by promotion on the basis of seniority-cum-merit and merit may be made in the same manner as specified in these Rules and use of words in the explanation after Sub-rule 6 that 'if in a Service, in any category of post, number of posts available for promotion is an old'number then for purpose of determining the vacancies for selection by promotion on the basis of seniority-cum-merit and merit in the proportion of 50:50, the following cyclic order shall be followed: i.e. the first vacancy by seniority-cum-merit; the subsequent vacancy by merit; the cycle is to be repeated every year and the very fact that this amendment came in the year 1978 before the selections were held for the vacancies of the year 1979 in the year 1980 and in view of the language contained in notification dt. 17.8.78 w.e.f. 12.5.78, the first vacancy has to be by seniority-cum-merit.
15. In view of this interpretation of the Rules, we find that while computing the vacancies for the year 1979 out of 13 vacancies, the D.P.C. should have started with the first vacancy as that of seniority-cum-merit and in that case, the last vacancy too would have been of seniority-cum-merit raising the vacancies to be filled on the basis of seniority-cum-merit to 7 and by merit, there would have been 6 vacancies' whereas the course of action adopted by the D.P.C. is just reverse. The criteria of seniority cum merit which was applied for the last post in the year 1976 could not form the basis to start with the criteria of merit in the year 1979 particularly when the amendment dated 17.8.78 had intervened. The cycle is to be repeated every year and not from year to year. The view taken by the Tribunal and the learned Single Judge is contrary to the scheme of the Rules and the same cannot be sustained.
16. This appeal, therefore, succeeds, the order dated 17.5.80 as was impugned before the Tribunal, the order passed by the Tribunal and the order as has been passed by the learned Single Judge are all set aside. It may also be mentioned that the present appellant had also been selected subsequently on the basis of seniority-cum-merit against the vacancies of 1986-87 and, therefore, now as a result of interpretation as aforesaid the matter is sent back to the respondents to treat seven vacancies for seniority-cum-merit and only six vacancies for merit for the year 1979 and if any change is there on the basis of appellant's selection by way of seniority-cum-merit, the consequential orders shall be passed antedating his promotion as Assistant Agriculture Engineer from the due year instead of 1986-87 and in case, the present appellant is selected on the basis of said consideration, he shall also be entitled to all consequential benefits.
17. The appeal is allowed accordingly.