Rajasthan Council of Diploma Engineers and anr. Vs. the State of Rajasthan and anr. - Court Judgment

M.R. Calla, J.

1. These three cases involve common questions of law and facts and hence we propose to decide all these three cases by this common judgment.

2. The facts of these cases present a typical lis between the in-serving Engineers seeking appointments to the post of Assistant Engineer by direct recruitment and the Engineer graduates in the open market who are also seeking appointments to the post of Assistant Engineer by direct recruitment. This Us between the candidates of two different types both seeking direct recruitment to the post of Assistant Engineers has engaged the attention of this Court because of the dismal fact that although the scheme of the Rules, namely, the Rajasthan Service Engineers (Buildings and Roads Branch) Rules, 1954 (hereinafter to be referred to the Rules of 1954) provides for both the names of recruitment on the post of Assistant Engineer i.e. by direct recruitment as well as promotion, there has been no direct recruitment on the post of Assistant Engineer in this service since 1983 and, therefore, the in-service Engineers who are holders of the post of Junior/Engineers/Sub-Engineers and who have been working against the post of Assistant Engineers by way of that is called as working arrangement or otherwise could not be considered against the vacancies of various years on year-wise basis from 1983 on wards and now the direct recruitment is being held against the clubbed vacancies of all these years for which the fresh Engineering graduates available now in the open market who may have acquired the eligibility later than 1983 or even recently have also entered the race against the in-service candidates for the purpose of direct recruitment to the post of Assistant Engineer. Thus whether the selection and appointments even by direct recruitment are required to be held on year-wise basis Lice a in the constitutional confined to only these candidates who were eligible for such direct recruitment in the particular earlier year only and as to whether the direct recruitment against the vacancies a of particular earlier year should be kept confined to only these who were so eligible in that particular year to the exclusion of such Engineers graduates who did not postsess the ligibility in that particulars year; as to whether the requirements of eligibility for direct recruitment as were in force in the particular year should only be applied for the purpose of vacancies of that year, as to whether the vacancies of various earliest years in which the direct recruitment was not held can be allowed to be clubbed or not on the promise that Rule 9 of the Rules of 1954 is mandatory or directory, as to whether the selection through direct recruitment can be allowed to be held solely on the basis of interviews and as to whether Rule 20 of the aforesaid Rules of 1954 is valid or not are the pivotal question on which the adjudication of these cases hinges.

3. In 2 of the three cases before us the Association in the name of Rajasthan Council of Diploma Holders and Association of graduate Engineers have come to challenge the selections seeking to protect the interest of their respective members who are already in service as Junior Engineers/Sub Engineers or Engineering subordinates and in the third case, the three petitioners who are Engineering Graduates of 1979 and 1980 who were appointed as Junior Engineers and claims to have been working as Assistant Engineers Under Order dated 21.12.87 and 7.3.88 have challenged the selections through direct recruitment for the post of Assistant Engineers against the vacancies of the year 1983 and onwords.

4. The case of the petitioners is that a notice inviting applications was issued by the Rajasthan Public Service Commission Ajmer through Advertisement No. 11 of 89-90 inviting applications for appointment to the post of Assistant Engineers (Civil) against 115 vacancies in the Public Works Department of the Government of Rajasthan and 7 vacancies of Assistant Engineers (Mechanical). In behalf of the petitioners it has been submitied that the appointment to the post of Assistant Engineers are required to be made 50% of direct recruitment and 50% by promotion from amongst Junior Engineers/Sub-Engineers. The appointments have been made by promotion, but ever since 1983 no appointments have been made by direct recruitment and the vacancies for which the notice inviting applications, was issued vide Advertisement No. 11/89-90 dated 15th February 1990 refers to the 115 vacancies of AEN (Civil) and 7 vacancies of AEN (Mechanical) and these vacancies are clubbed vacancies for the various earlier years from the year 1983 on wards. The Rajasthan Council of Diploma Engineers has challanged the selections to be held on the basis of the aforesaid Advertisement on the basis that its members i.e. Diploma Holders were eligible for direct recruitment as Assistant Engineers between the period 7.12.85 to 21.7.88. Their case is that an amendment in the aforesaid Rules of 1954 was issued on 7.12.1985 whereby the Diploma holders were made eligible for direct recruitment as Assistant Engineers; whereas by a notification dated 21.7.88 such eligibility in respect of Diploma holders for appointment by direct recruitment on the post of Assistant Engineer was taken away and, therefore, they have challenged the validity of the notification dated 21.7.88 and have further submittied that a serious prejudice has been caused to them on account of non- holding of the selections by direct recruitment in the quota prescribed for direct recruitment during the period 7.12.85 i.e. the date of the notification and amendment in the Rules enclosed as Anx. 2 in writ petition No. 1641 of 1990 and 21.7.88 i.e. the date of the notification with regard to the amendment to the Rules which has been placed on record as Anx. 3 in the same writ petition No. 1641 of 1990. It has been submitted on behalf of the Rajasthan Council of Diploma holders by Shri N.N. Mathur that had the direct recruitment been held during this period of 7.12.85 to 21.7.88 against the vacancies which had become available during that period, the members of the Rajasthan Council of Diploma Holders could have also competed against such vacancies of Assistant Engineers for appointment as Assistant Engineer by direct recruitment; whereas they do not even have a right of consideration now, for appointment as Assistant Engineers by direct recruitment and those candidates who were not eligible during the period of 7.12.85 to 21.7.88 and who have acquired the eligibility later on cannot be considered against the vacancies which had become available during the aforesaid period. Their grievance is that the vacancies which have been notified vide Advertisement dated 15.2.90 include the vacancies which had become available between 7.12.85 to 22.7.88 and, therefore, they have been wrongly deprived of their right of consideration against these vacancies merely because no selections through direct recruitment was held during the relevant period. Shri N.N. Mathur has also challenged the amendment dated 21.7.88 on the ground that the provision with regard to the eligibility of diploma holders for appointment as Assistant Engineer by direct recruitment was wrongly deleted from Schedule I of the Rules of 1954 as the exclusion of the Diploma holders for appointment as Assistant Engineer by direct recruitment, is unlawful and unconstitutional and hence the notification dated 21.7.88 is invalid. It has also been submitted by Shri N.N. Mathur that this amendment dated 21.7.88 is not retrospective and, therefore, there is no basis to deprive them and their right of consideration against the vacancies of Assistant Engineers which had become available during the period when they were eligible cannot be denied merely because the selections were not held at that time while they were eligible under the Rules because under the amendment dated 7.12.85 the Diploma holders with 10 years' experience as Junior Engineer were eligible and such eligibility under the Rules continued up to 21.7.88. In the other two writ petition Nos.1696 of 1990 and 4243 of 1990 a direction has been sought that the selection by direct recruitment against 115 vacancies should be held on year-wise basis limiting the consideration of the candidtaure of the candidates who were eligible for appointment by direct recruitment in the respective earlier years against the vacancies falling in the quota of direct recruitment for such year. An alternative prayer has been made in writ petition No. 1696 of 1990 that a direction be issued to fill in the 115 vacancies by promotion and not by direct recruitment by taking resorrt to proviso (i) of Rule 7(1) of the Rules and a prayer has also been made that Rule 20 of the Rules may be declared to be invalid and consequential direction be given and in the meanwhile the Public Service Commission may be restrained from proceeding with the selection to fill up the 115 vacanies and further that the respondent State Government may be directed not to revert the petitioners from the post of Assistant Engineers which they are holding at present.

5. In reply to the writ petition the respondents have stated that they were always vigilant to fill up all these vacancies regularly through P.S.C. but the same could not be filled up in the year such vacancies occurred due to the following reasons:

1) In November, 1984 requisition for 31 posts was sent to RPSC but one post was filled in against direct recruitment quota by appointing a dependent of a deceased Govt. servant and, therefore, revised requisition for 30 posts of AEN(Civil) was sent to RPSC.

2) Meanwhile Notification dated 7.12.85 was issued amending the Rules of 1954 and RPSC advertised the posts inviting applications and conducted examinations for selection to the post of Asstt. Engineers (Civil).

3) The said process of selection was under progress but number of writ petitions No. 318/86, 321/81, 1019/86 and 556/86 were filled challenging the validity of the said amending Notification dated 7.12.1985 before the Hon'ble High Court and the Hon'ble High Court passed stay order on 1.4.86 issuing direction not to make any regular appointment on the post of AEN. The RPSC ultimately withdrew their advertisement and directed no regular appointment could have been made.

4) The above writ petitions were dismissed by the Hon'ble High Court on 18.12.87 and the Answering Respondents started process for the filling up the posts of AEN(Civil) borne on direct recruitment quota.

5) Subsequently, the matter reaching the eligibility of Diploma-holders against the post of AEN borne on direct recruitment quota was reconsidered and issued the amending Notification dated 21.7.88 according to which the diploma- holders Engineers were no more eligible for the post of AEN borne on direct recruitment quota.

6) There were again some representations received from the Diploma Holders Association against the amending Notification dated 21.7.88 which was under consideration of the State Govt. and finally, it was decided to fill up the vacancies of the posts of Asstt. Engineers, Civil, Electrical and Mechanical and to send requisition to the RPSC and was directed to select the candidates as per existing Rules in force.

The requisition was sent to RPSC for 115 posts of AEN(Civil) and the RPSC has advertised those posts, invited applications, screening test held and has started interviews.

The case of the respondents is that merely because the vacancies falling in the quota of direct recruitment could not be filled for reasons beyond their control and on account of the Us between the diploma holders and the degree-holders and the stay order passed by the High Court, the candidates who are eligible at the time of holding the actual recruitment cannot be deprived of their right of consideration, there is no question of invoking proviso (i) to Rule 7(1) in favour of such in-service Engineers who may have been working against the post of Assistant Engineers by working arrangement or otherwise and the provisions in para materia to Rule 20 has already been held to be valid by this Court and so far as the question of eligibility of diploma holders and the validity of the notification dated 21st July 1988 is concerned, it is open for the Rule Making Authority to prescribe the minimum qualifications for appointment on a particular post and such a rule prescribing the qualification is not open to challange.

6. Under the Advertisement dated 15th February, 1990 the last date for submission of the appliction was 15th February 1990 and those writ petitions were filed before this Court on 5th April, 1990, 9th April, 1990 and 6th October, 1990. Shri J.P. Joshi learned Additional Advocate General has submitted that 4940 applications were received in response to the aforesaid notice inviting applications out of which 4659 applications were of the candidates belonging to general category, 1% of Scheduled Caste and 85 of Scheduled Tribes. Looking to the number of applications received it became necessary to screen the candidates to be called for interview and after scrutiny of the application the Commission was to decide the number of candidates desirable to be called for interview as provided in Rule 20 of the Rules and accordingly a screening test was held in September 1990, the result of which was declared on 22nd of November, 1990 and after holding the interviews when the select list was about to be issued, on 6th March, 1991 an interim order was passed by this Court in D.B. Civil Writ Petition No. 4243/90 that the result of the interview will not be declared by the RPSC Ajmer. However, Shri J.P Joshi Additional Advocate General submitted that the Public Service Commission did not come to know of this order and the selected list was affixed on the notice Board of the Public Service Commission on 7th March, 1991 and thereafter when the matter came before the Court on 16th of April, 1991 it was recorded that for notice dated 1.4.1991 issued by R.P.S.C. Ajmer the result which has been declared on 7th March, 1991 was kept in abeyance and the select list declared by the RPSC was not in force.

7. The first contention raised by Shri M. Mridul is with reference to Rule 9 and he has submitted that the provisions Under Rule 9 are mandatory and the requirement of holding year-wise selection without clubbing the vacancies and by considering only such candidates who are eligible in a particular year applies with equal force even in the case of direct recruitment as it applies in the case of promotion. Rule 9 of the Rules of 1954 as was amended by notification No. F. 7(1)DOP/A-II/81 dated 21.12.81 which amendment was made effective from 1.4.81 is reproduced as under:

9. Determination of vacancies:

(1)(a) Subject to the provision of these rules, the Appointing Authority shall determine on 1st April, every year the actual number of vacancies occurring during the financial year.

(b) Where a post is to be filled in by a single method as prescribed in the rule of Schedule, the vacancies so determined shall be filled in by that method.(c) Where a post is to be filled in by more than one method as prescribed in the rules of Schedule, the apportionment of vacancies, determined Under Clause (a) above, to each such method shall be done maintaining the prescribed proportion for the over all number of posts already filled in. If any fraction of vacancies is left over, after apportionment of the vacancies in the manner prescribed above, the same shall be apportioned to the quota of various methods prescribed in a continuous cycle order giving precedence to the promotion quota.

(2) The appointing Authority shall also determine the vacancies of earlier years, yearwise which were required to be filled in by promotion, if such vacancies were not determined and filled earlier in the year in which they were required to be filled in.

The submission of Shri Mridul is that this rule is mandatory and accordingly the vacancies falling in the quota of direct recruitment and promotion are to be determined on 1st April every year and since the requirement of prescirbed quota is mandatory, the requirement of maintaining the prescribed quota cannot be achieved unless the vacancies falling in the direct recruitment quota are also determined every year and the same are filled in on year-wise basis. He has submitted that it is a case of not holding the selection at all by direct recruitment since 1983 and thus Rule 9 has been flouted for all these years. Since it has been repeatedly hold by the Supreme Court that the eligibility has to be soon as against the year in which the vacancies became available, it is all the more necessary to hold the selections on year-wise basis keeping the consideration confined to only those candidates who are eligible in that particular year, lest, it will result in discrimination because the candidates who acquired the eligibility later on would enter the race vis a vis those who were duly eligible in the earlier years and thus if will be a case of treating unequals in an equal manner. He has relied upon P. Mahendran v. State of Karnataka : AIR1990SC405 , N.T. Devinkatti v. Karnataka PSC : (1990)IILLJ456SC , P. Ganeshwar Rao v. State of A.P. : AIR1988SC2068 , and Y.V. Rangaish V. J. Sreenivasa Rao : (1983)IILLJ23SC . In P. Mahendra's case (Supra) an amendment was made in the Rules after the commencement of the process of selection and by such amendment the eligibility criteria was changed. The Supreme Court ruled that the amendment had no retrospective effect and the selection of the candidates already made earlier is not effected. So far as the case before us is concerned, it is no body's case that any amendment has been made changing the eligibility criterion after the commencement of the process of selection and as such this judgment is of no help to the point involved in the present case. In N. T. Devinkatti's case (Supra) also there was an amendment in the Rules subsequent to the commencement of the process of selection and the Supreme Court hold that right to be considered has to be determined in accordance with the existing rules or order in terms of the advertisement inviting applications. P. Ganeshwar Rao's case (Supra) is also a case in which the vacancies arose prior to the amendment and the Supreme Court observed in the end of para 8 of the judgment that had it been the intention of the State Government, while promulgating the amendment that the amendment should be applicable to the vacancies which had aresen prior to the date of the amendment, simultaneously the State Government could have addressed a letter to the P.S.C. to take recruitment in accordance with the special Rules as amended on 25.4.80 but no such action was taken by the State Government in the case and the Supreme Court while referring to its earner decisions, followed that the vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules and that the post which fell vacant prior to the amended rules would be governed by the old rules and not by the new Rules. The effect of these observations we will separately examine while considering the submission of Shri N.H. Mathur made on behalf of the Rajasthan Council of Diploma Engineers but so far as the reliance placed by Shri Mridul on this judgment is concerned, it will be sufficient to say that there is no amendment in the scheme of fules after the issue of the advertisement dated 15th of February 1990 and as such this judgment is of no avail on this point. Y.V. Rangaiah's case (Supra) has already been considered and taken note of in P. Ganeshwar Rao's case (Supra) referred to hereinabove. Thus there is no quarrel with the proposition that in case any amendment in the Rules is issued after the commencement of the process of selection, such amendment will not have any effect on the eligibility criteria in respect of the vacancies which had become available prior to the date of amendment unless the amendment is given the restrospective effect, never-the-less, none of these decisions can be said to be any authority for the proposition that the scheme of the rules remaining the same, if certain vacancies falling in a particular quota are not filled up in that very year, as and when such vacancies are filled up in future, by way of direct recruitment, the consideration should be kept confined to only such candidates who were eligible in such particular earlier year. No doubt the Rule 9 and the requirement of determination of the vacancies thereunder cannot be read in iscation to the requirement of quota rule and for the purpose of adhering to the quota rule, all vacancies falling in the quota should be determined every year and all possible efforts must be made to adhere to the requirement of yearwise vacancies, yearwise selections from amongst the eligible candidates of such year, but on that basis it cannot be said that if vacancies falling in the quota of direct recruitment are not filled up in that very year, the candidates who are eligible at the time of holding the actual recruitment now should not be considered against those vacancies. However, the question posed is as to whether in the situation like this, the persons who were not qualified in a particular year and who could not be considered against the vacancies of the year falling in the direct recruitment quota, had the selection been held in the year in which the vacancies became available, should also be considered against such vacancies, merely because the vacancies of various years are clubbed together by not holding selections by direct recruitment for various years in the past. This is the question which has to be answered in accordance with the scheme of the rules under consideration. In this regard it has been argued by the conusel for the petitioners that Rule 9 is mandatory and if that be so, the selections by direct recruitment must be held on year wise basis from amongst the candidates eligible in the respective years. Reliance has been placed on certain observations made in the recent Division Bench decision dated 14th September, 1990 in Prakash Chandra v. State of Rajasthan and Anr. D.B.C.W. No.37/89 and 2 other connected writ petitions decided at Jaipur Bench. Stress has been laid on the following observations at pages 15 and 16 of the aforesaid decision of Jaipur Bench.

However, once we have held that there is an obligation to make yearwise determination of vacancies for direct recruitment as well as promotion, the competent authority cannot avoid this responsibility by sheer inaction or omission and failure on the part of the competent authority cannot be used as a basis for denying eligibility to those who are eligible in a particular year but becomes ineligible on account of absence of determination of vacancies on yearly basis.

. . . . . . . . . . . . . .We are of the view that the vacancies for direct recruitment must also be determined on yearly basis and efforts should be made to fill those vacancies during the course of the year. After determination of vacancies, the same shall be advertised immediately or within reasonable time, so that the candidates who are eligible, can apply. The process of selection may be completed at a subsequent point of time. In that event, the disputes relating to eligibility with reference to age and qualifications would be obviated. For the subsequent years, the same very process can be repeated. After the vacancies of different years are advertised the process of selection shall be held separately and panel shall be drawn separately, so that the charge of clubbing the vacancies may also not be levelled against the appointing authority.

Union of India

20. In other words, the enunciation of the reason or principle upon which a question before a court has been decided is alone binding as a precedent. The ratio decidendi is the underlying principle, namely, the general reasons or the general grounds upon which the decision is based on the test or abstract from the specific peculiarities of the particular case which gives rise to the decision. The ratio decidendi has to be ascertained by an analysis of the facts of the case and the process of reasoning involving the major premise consisting of a pre-existing rule of law either statutory of Judge-made, and a minor premise consisting of the material facts of the case under immediate consideration. If it is not clear, it is not the duty of the court to spell it out with difficulty in order to be bound by it. In the words of Halsbury (4th Edn. Vol. 26, para 573)

The concrete decision alone is binding between the parties to it but it is the abstract ratio decidendi, as ascertained on a consideration of the judgment in relation to the subject matter of the decision, which alone has the force of law and which when it is clear it is it is not part of a Tribunal's duty to spell out with difficulty a ratio decidendi in order to bound by it, and it is always dangerous to take one or two observations out of a long judgment and treat them as if they gave the ratio decidendi of the case. If more reasons than one are given by a Tribunal for its judgment, all are taken as forming the ratio decidendi.

8. I have gone through Prakash Chandra's case decided by the Division Bench at Jaipur and it does appear that the ratio decidendi of aforesaid decision is that if on account of administrative difficulties vacancies of direct recruitment cannot be filled in for a particular year, the candidates who are within the age limit with reference to the eligible even if the selection is held subsequently and, therefore, this decision cannot be extended on the basis of the reference to the work 'qualification' on the basis of the part of the observations made therein and on that basis when direct recruitment is held in a latter year against the vacancies of the various years in past, exclusion of the candidates who have acquired qualification later on cannot be inferred. Much argument was made on the basis that Rule 9 of the Rules under consideration is mandatory or directory. Shri Mridul, Shri Mathur and Shri Trivedi appearing on behalf of the petitioners have argued that Rule 9 is mandatory and Shri J.P. Joshi, Shri D.S. Shishodia and Shri Mahendra Singh has submitted that Rule 9 is only directory. On behalf of the respondents through reliance was placed on R.P.S.C. and Ors. v. Dr. (Miss) Dayamanti Dadhich etc. etc. (R.L.R. 1983 P. 473) a Division Bench decision of Jaipur Bench and my attention was invited to para 16 of this judgment which reads as under:

Turning now to the question as to whether Rule 9 of the Rules is directory or mandatory, the learned single Judge has held that it is directory and that the direction contained therein must be taken to have been complied with in the instant case as soon as vacancies anticipated to occur in 1980 were determined in the year 1979. Rule 9 has been reproduced by the learned single Judge in his judgment under appeal. We agree with the learned Judge that this rule embodies a direction requiring the Appointing Authority to determine each year the number of vacancies anticipated during the following 12 months. This rule is in the nature of a statutory instruction to or guidance for the Appointing Authority. If the Appointing Authority fails to comply with it his failure in that behalf may creats administrative difficulties and he would certainly be answerable to his superiors for his failure in that behalf. The failure of the Appointing Authority to comply with this rule in any particular year cannot invalidate the process of selection for making appointments to the vacancies already determined for a previous years Rule 9 has indeed no application whatever to a process of selection pending with the commission for making requirement to the vacant posts for which the Appointing Authority has already sent requisition to it. This rule addresses itself to the Appointing Authority and not to the Commission. If the Appointing Authority has failed to discharge its statutory duty and such failure adversely affects the legal rights of the petitioner they may if so advised, seek redress for compelling the Appointing Authority to perform its duty but they cannot on the ground alone he allowed to obstruct the process of selection in respect of the vacancies for a previous year which may remain pending with the Commission for reasons beyond its control. We would therefore endorse the finding of the learned single Judge that Rule 9 is directory and not mandatory. In any case the alleged non-compliance with the rule by the Appointing Authority in the years 1980 and 1981 cannot adversely affect the process of selection pending with the Commission for making recruitment to the vacancies already determined in the year 1979 for the year 1980.

According to this Division Bench decision Rule 9 has been held to be directory and the counsal for the respondents have submitted that once Rule 9 has been held to be directory the whole edifice on the basis of which the case has been built up by the petitioners fails and collapses. It is of course true that in Dr. (Miss) Dayamanti Dadhich's case (Supra) which was a case in the matter of direct recruitment Rule 9 was held to be directory in categorical terms, but this decision in Dr. (Miss) Dayamanti Dadhich's case (supra) has been considered and explained in yet another letter judgment of the Division Bench at Jaipur in L.N. Maheshwari v. State of Rajasthan D.B. Civil Special Appeal (Writ) No. 136/85 decided on 28th September 1988. This is a latter decision of the Division Bench and offer considering the question of determination of vacancies Under Rule 9 and the various other decisions of this Court the Division Bench has observed as under:

We have carefully gone through the various judgments referred to above and we are of the view that the view taken by this Court in M. P. Agrawal, H.K. Hingorani, Daleep Singh, Maqbool Ahmed and Bhagirathdan and J.P. Acharya (supra) is quite justified and does not require any reconsideration or interference as we are also of the view that the provisions of Rule 9(1) are mandatory and not directory and, therefore, we do not think that necessary to burden this judgment with the reasoning given in those judgments over again. The view expressed by the Division Bench of this Court in Miss Dayamanti Dadheech's case relied by appellant (supra) is quite distinguishable. In that case, the Division Bench was considering a case of direct recruitment through the R.P.S.C. The case of the petitioner in that case was that the vacancies which had been determined in the year 1977 for direct recruitment had not in fact, been filled and the R.P.S.C. continued to process beyond the period of 12 months. The petitioner in that case was not eligible in the year 1977 but became eligible in 1978 and therefore, her contention was that she should have been considered eligible and that the R.P.S.C. could not have rejected her claim. It was in this background that the Bench has stated that Rule 9 is directory and not mandatory. The point involved in the present case was not before the Division Bench in Dayamanti's case (supra) and that Division Bench did not take into consideration the earlier view of this Court holding Rule 9 as mandatory.

Thus in this decision of L.N. Maheshwari's case the Division Bench has categorically held that provisions of Rule 9 are mandatory and not directory. No doubt the language of the Rule 9 as it was under consideration in L.N. Maheshwari's case (supra) has undergone certain changes by subsequent amendment, but we are also of the opinion that the Rule 9 as has been placed for our consideration even after the amendment of 1981 as it was made applicable from 1.4.1981 is mandatory and the appointing authority is certainly under an obligation to hold the recruitment every year, but Rule 9 imposing the obligation to determine the vacancies every year and to hold the recruitment accordingly cannot be read in isolation to the other provisions contained in the Rules. We have gone through the language of Rule 9 again and again and we find that while Rule 9(1)(a) imposed an obligation on the appointing authority to determine the vacancies occurring during the financial year on 1st of April of everey year. So far as the question of vacancies of earlier years are concerned, the rule making authority has not treated the vacancies of promotion quota at par with those meant for direct recruitment. Rule 9(2) takes care with regard to the vacancies of the earlier years and which are required to be filled by promotion and takes care of a situation in which the vacancies for the earlier years were not determined and filled in the year in which they were required to be filled in and provides that the appointing authority shall also determine the vacancies of earlier years yearwise which were required to be filled in by promotion. It cannot be said that the rule making authority was not aware that such a situation may also crop up in respect of the vacancies meant for direct recruitment and yet the specific provision has been made with regard to the vacancies of the earlier years in respect of the promotion quota and the Scheme of the rules is conspicuously silent and makes no such analogous or identical provision with regard to the vacancies of earlier years which may remain unfilled^ in the quota, of direct recruitment. There being no challenge before us to the validity of Rule 9 as it stands, we have to consider that even if Rule 9 is held to be mandatory and even if it is found that the appointing authority failed to comply with the requirement of filling up the vacancies falling in the quota of direct recruitment, in the earlier years whether the principle of holding yearwise selection against the vacancies which were available in the various earlier years on the basis of the eligibility qualifications pertaining to that year should be invoked and applied in the same manner as in the case of such vacancies falling in promotion quota. Having given our thoughtful consideration on this question we find that the rule making authority has not made any provisions with regard to the unfilled vacancies of the earlier years falling in direct recruitment quota as has been done in the case of such vacancies falling in promotion quota despite full awareness of the entire scheme of all rules including the provisions of Rule 9 and the quota prescribed for direct recruitment and promotion. It may be observed that the direct recruitment is hold through Public Service Commission, whereas the question of promotion is decided by the Departmental Promotion Committee. No doubt the Public Service Commission is also represented in the Departmental Promotion Committee, but in case of the vacancies falling in the quota of direct recruitment the Public Service Commission is the sole recruiting agency and all can be done at the level of the Government is to send the requisition. Once the requistion is sent it is for the Public Service Commission to complete the process of recruitment and for that purpose neither any time schedule has been prescribed, nor such a time schedule can possibly be prescribed as the Public Service Commission has to make recruitment for various service and for various posts. In such a situation unless and until any time schedule is prescribed by rules in which the process of recruitment is to be completed by the Public Service Commission, the requirement of holding yearwise selection cannot be pressed in the matter of appointments by direct recruitment in the same manner as it is applied in the matter of appointments in promotion quota. The language of Rule 9(1)(c) also contemplates the apportionment of the vacancies determined Under Clause (a) of Rule 9(1) to each such method maintaining the prescrided proportion for the over all number of posts already filled. Thus it is clearly discernible from the scheme of the rules as a whole Rule 9(1) and Rule 9(2) read with the quota rule, that so far as the number of vacancies falling in the quota of direct recruitment and promotion is concerned, it has to be strictly followed with airthmetical exactitute and in case there are any vacancies of earlier years which could not be filled, the provisions are there to take care of such vacancies falling in promotion quota, but there is no analogous provision with regard to the vacancies of earlier years falling in the quota of direct recruitment if they remained unfilled. In such a situation when we have not been called upon to decide the validity of Rule 9 as it stands and there is a total absence of any provision with regard to the unfilled vacancies of earlier years falling in direct recruitment quota, Rule 9 even if mandatory we do not find any justification to apply it with the same rigor in the case of the unfilled vacancies of earlier years in the quota of direct recruitment as it is to be applied in the case of the vacancies falling under promotion quota.

9. Shri Mridul has submitted that the equality of an opportunity in matters relating to appointment means an effective opportunity timely opportunity and, therefore, in case such opportunity is not afforded to any in-service candidate at the appropriate time and such opportunity is given to him at a stage when other persons from the open market also join the race who could not have otherwise entered the race, is not effective opportunity in the eye of law. It is not a real opportunity as the scope of competition stands enlarged and is also made open to those who could not be the competitors in the relevant year when the vacancies in fact became available. This argument made by Shri Mridul certainly appears to be attractive but is not worth accepting, for the simple reason that the right of consideration does not stand denied to any in-service candidate against any vacancy of any year falling in the quota of direct recruitment and hence it cannot be said that the right of consideration which is essence of Article 16 of the Constitution of India is being dcenied to any in-service candidate. So far as the question of entry of the candidates who could not be considered had the selections been timely held, it will be sufficient to say that the right of consideration cannot be denied to the candidates who are eligible at the time when the actual recruitment is being held. If the argument of Shri Mridul is accepted, it may certainly be beneficial to the in-service candidates or those who were eligible in the respective earlier years, but that course of action would be more vulnerable in the sense that in the first type of cases it only seeks to enlarge the scope of competition keeping the right of consideration intact whereas in the latter case it would mean the absolute denial of the right of consideration to the candidates who are eligible at the time of holding the actual recruitment. We are quite conscious of the counter argument which may be raised against the aforesaid proposition that the candidates who have acquired eligibility later on had no right of consideration in respect of the vacancies of the earlier years and for such vacancies only those candidates could be considered who were eligible in the respective earlier year. But the fact situation is that neither, there is any provision under the Rules to keep the consideration against such vacancies confined to the candidates who were eligible in that year in the matter of direct recruitment to the exclusion of the candidates who acquired eligibility later on, nor the absence of such a provision in the scheme of rules like the one has been made in the matter of promotion quota for earlier years I has been made a subject matter of challenge. Moreover at this stage if the consideration I against the vacancies of earlier years is kept confined to only those who were eligible in such earlier years for direct recruitment, it will be impossible to identify the eligible candicate because many of the candidates who were so eligible in the respective earlier years may have been appointed elsewhere and it is difficult to identify all such eligible candidates who could enter the race at that time and on a comparison of the advancement of the object sought to be achieved by Article 14 and Article 16 in the two cases we find that the object of Articles 16 and 14 will be advanced to a greater extent in case all the candidates eligible at the time of holding the recruitments are considered against all the vacancies rather than keeping the consideration confined to the candidates who are eligible in the respective earlier year only, I as by very nature of the terms 'exclusion' of the eligible candidates at the time of recruitment I is more discriminatory in comparison to the 'restriction' on consideration of the candidates I who were eligible in the respective earlier years.

10. The next argument of Mr. Mridul is that the in-service Engineers were not given an opportunity in the respective earlier years for direct recruitment and had such opportunity been given to them at the relevant time they could have been considered and selected against such vacancies in those years itself, but equally true it is that such candidates or the bodies who seek to represent and protect the interest and rights of such parties ere fully aware with the scope of Rule 9 and they could have sought a mandamus for holding the recruitment in the year in which the vacancies were available, but no such relief was asked from the Court as no such writ petition was filed for each of the respective earlier years. It has been brought to my notice that a writ petition was filed in the year 1988 at Jaipur Branch in the name of Association of Graduate Engineers as S.B.C.W. No.3257/88 decided in July 1989 seeking the relief that appointment should be made as per rule 27 and the ratio of 70-30 should be maintained in the case of degree holders. The Court directed as under:

No ad hoc or stop gap working arrangements made so far shall be continued after four months. Such ad hoc appointments made shall automatically come to an end and the State Government is allowed to make appointments as per rules within a period of four months by determining the vacancy. In future also the appointment should be made on stop gap arrangement or ad hoc arrangement as per rules.

The writ petition is disposed of accordingly.

The situations in which the direct recruitment could not be held have already been indicated hereinabove. It is, therefore, clear that the in-service Engineers who were working against: the posts of Assistant Engineers by way of working arrangements or otherwise also did not remain as vigilant as they should have been. Shri Mridul seeks to invoke proviso (i) Under Rule 7(1) which reads as under:

(i) that if Government is satisfied in consultation with the commission, that suitable persons are not available for appointment by either method of recruitment in a particular year, appointment by the other method in relaxation of the prescribed proportion may be made in the same manner as specified in these rules.

The contention of Shri Mridul is that the non availability of suitable persons takes within its sweep even the contingency of nonavailability of suitable candidates on account of non-holding of the selections and, therefore, if the suitable candidates have not become available by direct recruitment, the inservice Engineers who were working against the post of Assistant Engineers by way of working arrangement or otherwise should be appointed by promotion in relaxation of the prescribed preparation. Shri Mridul has submitted that it is a case in which there has been a want on violation of the quota rule and the quota rule has irretrievably failed and broken down and therefore by deeming the nonavailability of the suitable candidates the proviso (i) to Rule 7(1) should be invoked, and the inservice Engineers who have been working against the posts of Assistant Engineers by working arrangement or otherwise should be appointed by promotion by making the unfilled vacancies of direct recruitment quota available in promotion quota in relaxation of the prescribed proportion. Shri Mridul has further submitted that though Rule 9 and the quota rule, as prescribed in column No. 3 of the Schedule appended to these rules against the post of Assistant Engineers, under the heading of Junior Posts are mandatory, they are so mandatory qua the appointing authority and since the appointing authority itself has failed to carry out the mandate, the provision should be treated as directory qua the in-service Engineers and the quota should be relaxed by treating these provisions to be directory qua the petitioners or the members of the petitioner association and he has invoked the principle that no one can take the advantage of his own fault and has referred to the decision in D.B. Civil Special Appeal No. 303/85 Shivlal v. Jalore Central Cooperative Bank decided on 8th September 1987. Shri Mridul has also placed reliance on L.S. Lamba v. Union of India : (1985)IILLJ282SC . As against this Shri J.P. Joshi Additional Advocate General, Shri M.S. Singhvi and Shri D.S. Shishodia have submitted that the nonavailability of suitable candidates cannot be presumed merely because the selections were not held. The nonavailability of the suitable candidates must process the actual exercise of selections and according to the language of proviso (i) to Rule 7(1) itself the question of relaxation of the prescribed proportion arises only after the application of mind about the suitability of the candidates in the process of selection and if the Government is satisfised in consultation with the Commission that suitable- persons are not available for appointment. Admittedly in the instant case no such exercise was held and therefore, it will be preposterous to assume that suitable candidates were not available for appointment by direct recruitment so as to invoke proviso (i) to Rule 7(1) and relax the prescirbed proportion and make the vacancies falling in direct recruitment quota available for appointments to be made by promotion in favour of the in-service Engineers who were working against the posts of Assistant Engineers for which no direct recruitment was held.

11. We have gone through the rival submissions made by the counsel for the parties and the authorities cited in this regard. So far as the D.B. judgment dated 8th September 1987 in Shivlal v. Jalore Central Cooperative Ltd. Jalore and Anr. D.B. Civil Special Appeal No. 307/85 at Jodhpur is concerned, it does consider a situation in which the provisions of statute relating to the performance of a public duty and the case is such that to hold null and void the acts done in negligence of this duty would work serious general inconvenience or injustice to persons who have no controlled over those entrusted with the duty and at the same time would not permit the main object of the legislature, it has been the practice to hold such provision to be directory only, the negligence of them though punishable would not affect the validity of the acts done. We find that this principle propounded in Montrial Street Railway Company v. Nomadin A.I.R. 1971 P.C. 142 was followed in Narendra Chanera V---- : [1986]1SCR211 . The Division Bench in this case while considering the aforesaid two decisions of Privy Council and Supreme Court was dealing with a case in which the appointment of several persons which has continued for a period of more than 3 1/2 years were sought to be nullity, merely because of the defect in constitution of the committee for want of quorum. In this context it was observed that the employees who had been selected and appointed and who had continued in appointment for a period of more that 3 1/2 years had no control over the matter with regard to the number of members of the selection committee and it was in this context that the Division Bench found that the presence of two members out of four instead of minimum of 3 as prescribed in the directions issued by the Registrar must be taken to fulfil the object of ensuring that the appointments were not made by a single invididual but at least by 2 out of the 3 concurring in the appointment, and it observed as under:

It is settled that a provision may be mandatory and binding between parties to the transaction, even though it may be invalid as against third person. In other words, the requirement even though binding on the employer bank, it is ineffective against other persons so as to disentitle the employer bank from taking advantage of its own lapse in a situation like the present for the reasons already indicated.

Reference was also made to National Grindlay Bank Ltd. v. Dharam C. Vallabhji and Ors. (1966) 2 All England Reporter P. 626. Even if the aforesaid principle is applied to the facts of the present case that direct recruitment was not held for all these years in the past and on the basis that the inservice Engineers who are continuing against the posts of Assistant Engineers had no control over the holding of the direct recruitment and, therefore, even if Rule 9 and the quota rule are mandatory, qua the appointing authority, it should be held to be directory, in our considered opinion, does not warrant a situation to invoke proviso (i) to Rule 7(1) in favour of such candidates, for the simple reason that whether the rule regarding determination of vacancies and quota rule is mandatory or directory, the relaxation in the prescribed proportion has to be invoked only when the Government is satisfied in consultation with the commission that suitable persons are not available and this fact situation is wanting in the facts of this case. In our opinion the satisfaction of the Government in consultation with the commission with suitable persons are not available cannot be arrived at unless the exercise of selection is held. This condition is, therefore, a condition in the nature of a condition precedent or a prerequisite for arriving at the required satisfaction and accordingly we are of the opinion that even if Rule 9 and quota rule are held to be mandatory qua the appointing authority and only directory qua the petitioners, the benefit of making the vacancies of direct recruitment quota available as promotion quota vacancies in relaxation of the prescrided proportion is not possible to enure the advantage of proviso (i) to Rule 7(1) in favour of the inservice Engineers who were working against the post of Assistant Engineers.

12. In C.S. Lamba's case (supra) the Supreme Court was concerned with the situation in which the appointments in promotion quota were made in excess of the promotion quota prescribed under the Rules and it was done to meet the exigencies of the service and such promotions had not been made on adhoc basis; rather the promotions were regular and had been made in substantive vacancies in the service and the question was about the seniority of direct recruits and promotees. In C.S. Lamba's case(supra) the rule 29(a) which was considered was as under:

29 (a) Where the Controlling authority is of opinion that it is necessary or expedient so to do, it may be ordered, for reasons to be recorded in writing to relax any of the provisions of these rules with respect to any class or category of persons or posts:

Provided that in relation to posts falling within the purview of the commission, no order in respect of a class or category of persons or posts shall be made except after consultation with the Commission.

13. Considering the aforesaid rule the Supreme Court observed in para 27 referring to State of U.P. v. Manbodhan Lal Srivastava : (1958)IILLJ273SC a decision of the Constitution Bench of Supreme Court wherein it was specifically held that where consultation with the Public Service Commission is directed as required by Article 320(3)(c) of the Constitution such provision is not mandatory and they do not confer any rights on Public Servant so that absence or consultation or irregularity under consultation does not afford him a cause of action in a court of law. The Supreme Court further observed that there are number of subsequent decisions reiterating the same principle and, therefore, assuming that there was a failure to consult the Union Public Service Commission before exercising the power to relax the mandatory quota rule and further assuming that the posts in integrated grades II and III were within the purview of the Union Public Service Commission and accepting for the time being that the Commission was not consulted before power to relax the rule was exercised yet the action taken would not be vitiated nor would it furnish any help to Union of India. Which itself cannot take any advantage of its failure to consult the Commission. It was on this premise that in the case of C.S. Lamba (supra) the appointments made by promotion in excess of the quota were held as not vitiated. The Supreme Court considered that the requirement of consultation with the Commission was not mandatory and power to deal with a case in which the relaxation has already been permitted in which the appointments had already been made in excess of quota. In the case before us the language of the proviso (i) Under Rule 7(1) is entirely diffierent as compared to Rule 29(a) which was considered by the Supreme Court as has been quoted hereinabove. According to the language of proviso (i) to rule 7(1) the consultation with the Public Service Commission is not the only requirement, the rule requires the satisfaction of the Government in consultation with the Commission as to the fact that suitable candidates are not available, such a satisfaction has to be arrived at on the basis of an objective fact and this objective fact cannot come into existence unless the exercise of the selection by direct recruitment is actually held. In this view of the matter in our opinion, the principle on which C.S. Lamba's case (supra) was decided by the Supreme Court does not support the argument raised by Shri Mridul on the basis of proviso (i) to Rule 7(1) of the Rules and we accordingly hold that the petitioners are not entitled to a direction by this Court that the nonavailability of the suitable candidades must be assumed because selections were not held and the appointing authority should relax the prescribed proportion in the quota of direct recruitment and make the vacancies of direct recruitment quota available as promotion quota vacancies for such in-service Engineers who were holding the lower post of Junior Engineer/Sub Engineer who did not hold any regular appointment against the post of Assistant Engineer, but were only working against the post of Assistant Engineer against the vacancies falling in the quota of direct recruitment because no such direct recruitment was held and, therefore, the submission of Shri Mridul on the basis of proviso (i) to Rule 7(1) fails.

14. It was then argued by Shri Mridul that in the instant case the selections have been held solely on the basis of the interview and he has submitted that the moral fibre of the country is going down and in such circumstances to allow the selection entirely on the basis of interview would open the flood gates of nepotism and favouritism and he has further submitted that Rule 20 of the Rules is bereft of any guidelines inasmuch as while providing for interviews it does not lay down as to how selections be made and he has referred to the process of selection in I.A.S., Rajasthan Administrative Service and Rajasthan Police Service etc. Rule 20 of the Rules is reproduced as under:

20. Scrutiny of application:

The Commission shall scrutinize the application received by them and required as many candidates qualified for appointment under these rules as sear to them desirable to appear before them for Interview.

To decide the desirability of the candidates to be called for interview, the Commission has held the screening test and only such candidates have been called for interview who have qualified in the screening test keeping in view the number of vacancies which were notified.

15. Shri Mridul referred to some decisions wherein it has been hold that only a limited. weightage should be given to interviews and the marks awarded in the interview should not play a decisive role in the selection. We are not referring to such decisions in details because the cases in which the selections are based on written examination and interview both as in the case of Rajasthan Administrative Service, Rajasthan Police Service, Indian Administrative Service etc. have to be treated differently than the case in which there is no written examination to assess the merit and the assessment of suitability is held on the basis of interview alone from amongst the candidates who are found to be desirable to be interviewed. Moreover the argument based on the moral fibre of the society and challange to the validity of Rule 20, should not detain us any further because the rules of other service in para materia with Rule 20 of this service as have already been stated were challenged before this Court and the same has been held to be valid. Reference in this connection may be made to R.P.S.C. v. Dr. (Miss) Dayamanti Dadheech (supra) and the Division Bench decision dated 7th of August, 1990 in D.B. C.W. No. 999/90 in Medical Post Graduates Association v. State of Rajasthan and Ors. In this case Rule 19 of the Rajasthan Medical and Health Rules, 1963 was under consideration. The Division Bench considered the comparison with the Rajasthan Administrative Service Rules and other subordinate Service Rules, also referred to Dayamanti Dadheech's case and hold after reviewing the case-law on the subject as under:

There is no 2 opinion that the written test along with interview is one of the test suitable mode for recruitment in the Public Service Commission, but it cannot be said that recruitment made by way of interview to a technical like the person one is arbitrary or illegal.

Hence the argument of Shri Mridul on the question of challenge to the validity of Rule 20 also fails.

16. Shri N .N. Mathur has argued on behalf of diploma holders that on the basis of the amendment dated 7.12.85 which held the field till 21.7.88, diploma holders were eligible to be considered for appointment as AEN by direct recruitment. Had the selections been hold between 7.12.85 to 21.7.88 the diploma holders could also be considered against the vacancies of direct recruitment quota and now even though the vancancies notified include the vacancies of the period of 7.12.85 to 21.7.88 diploma holders cannot be considered even against those vacancies. Shri Mathur also challenged the validity of the amendment dated 21.7.88 by which the eligibility of diploma holders was deleted. He has relied upon Y.V. Rangaiah's case and P. Ganeshwarrao's case (supra). On the other hand it was submitted by Shri J.P. Joshi on behalf of the respondents that the amendment dated 7.12.85 was a subject matter of challenge before this Court in four writ petitions Nos. 318/86, 321/86, 1019/86 and 566/86 and a stay order had been passed on 1.4.86 directing not to make any regular appointment on the post of AEN. Shri Joshi has further submitted that this challenge was withdrawn on 18.7.88 (as given out securing the course of arguments) and with the issue of the notification dated 21.7.88 the eligibility of diploma holders was also deleted. Thus in effect the amendent dated 7.12.85 could not be operated because of this Court's stay order which had to be obeyed.

17. The facts in this regard are not in dispute and the fact cannot be lost sight of that there was a question mark on the validity of the amendment dated 7.12.85 as the same was subjudice before this Court and a stay order against regular appointment was also there. The close proximity between the date of withdrawal of the writ petition challenging the validity of the amendment dated 7.12.85 and the issuance of the amendment dated 21.7.88 deleting the eligibility of diploma holders i.e. 18.7.88 and 21.7.88 indicates that the challenge was withdrawn keeping in view the ensuing amendment. It is in the backdrop of above facts that we have to examine the contention of Shri N.N. Mathur regarding the filling up of the vacancies available for direct recruitment during 7.12.85 to 21.7.88 in respect of diploma holders. In earlier part of the judgment we had dealt with Y.V. Rangaiah's case and R. Ganeshwar Rao's case (supra) in a different context. In these two cases it has been held that vacancies which occurred prior to amended rules would be governed by old rules-but this principle cannot be applied in the facts of this case bacause the old rule (as per the amendment dated 7.12.85) could not be operated in view of the stay order passed by this Court. The above reason is in addition on with regard to the submissions made on behalf of diploma holders) to the other reasons given by us for not accepting the plea of applying year wise selections in respect of the vacancies in direct recruitment quota which have remained unfilled in the earlier year. The challenge to the validity of the amendment dated 21.7.88 taking away eligibility of Diploma holders cannot be sustained because it is based on academic qualification. We are aware that Diploma holders may compensate the lock of degree by experience and we can not best the experience, but to lay down the qualification for eligibility is a matter for the rule making authority and the Supreme Court has held in Umpteen number of cases that any rule of eligibility based on academic qualification cannot be held to be discriminatory.

18. Shri S.N. Trivedi appearing for the Association of Graduates Engineers (Writ Petition No.4243 filed on 6.10.90) has argued that in the advertisement the reserved vacancies are in excess and not inconfirmity with the roster and that 90 post upgraded in 1988 could not be taken into consideration for giving 45 post in direct recruitment as all these vacancies were to be filled by promotion and hence 115 vacancies have been wrongly advertised, but for that purpose no factual foundation has been laid, no circular of roster points as it was prior to 1986 and their offer has been placed or pleaded and in absence of complete and effective pleadings in this regard it is difficult for this Court to decide those issues. The submission of Shri Trivedi challenging the process of short listing the candidates (in case of large number of applications) on the basis of screening and not giving any credit to the marks obtained in the screening test except for the purpose of calling candicates for interview stands completely answered by more than one decisions of this Court including Dr.(Miss) Dayamanti Dadheech's case and same cannot be accepted. Shri Trivedi also attempted to raise the controversy that certain questions in the screening test were out of course. This Court cannot substitute itself as an expert to examine the scope of course/syllabus prescribed vis a vis the question papers and this contention of Shri Trivedi is outrightly rejected. It was also submitted by Shri Trivedi that Scheduled Caste/Tribe candidates had not been subjected to screening and they were called for interview without any screening test. This objection stands answered by the respondent on facts as it was pointed out that the number of applicants in case of S/T candidates was within the zone decided by the P.S.C. looking to the number of vacancies received for them. In view of this reply we need not to take any more on this issue and the same is rejected. Thus we hold as under:

(1) Rule 9 of the Rajasthan Service of Engineer (Building and Roads Branch) Rules, 1954 as amended vide notificaction No. F.7(1) D.O.P. A-II/81 dated 21.12.81 with effect from 1.4.1981 is mandatory, but in view of the absence of any provision regarding unfilled vacancies of earlier years falling in direct recruitment quota, it cannot be applied for year-wise selections in case of direct recruitment with the same rigour as it is to be applied in the case of vacancies of earlier years in respect of promotion quota.

(2) The total exclusion of the candidates eligible at the time of holding direct recruitment against the unfilled vacancies of earlier years will be more vulnerable to Article 14 and Article 16 of the Constitution in comparison to restricting the direct recruitment to the candidates eligible in the earlier years against the vacancies of such years, yearwise.

(3) The non-availability of suitable candidates under proviso (i) to Rule 7 (1) of the Rajasthan Service of Engineers (Building and Roads Branch) Rules, 1954 cannot be presumed in absence of the actual exercise of selection, nor the satisfaction of Government in consultation with the Public Service Commission can be inferred on that basis and, therefore, even if the rule regarding determination of vacancies and quota are mandatory qua the appointing authority, and directory qua the petitioner, the facts situation to invoke the relaxation of the prescribed procedure in favour of inservice Engineers holding lower posts working against the post of Assistant Engineers by way of working arrangement or otherwise is wanting in the faces of this case.

(4) The proviso(i) Under Rule 7(1) of the Rajasthan Service of Engineers (Building and Roads Branch) Rules ,1954 cannot be invoked to relax the prescribed proportion of quota so as to make the vacancies falling in direct recruitment quota to be available in promotion quota for in service Engineers holding lower posts even if working against the post of Assistant Engineers byway of working arrangement or otherwise.

(5) Rule 20 of the Rajasthan Service of Engineers (Buildings and Roads Branch) Rules, 1954 is valid and in case of technical posts even if the interviews are held on the basis of interviews alone without holding the written test, such selections cannot be held to be invalid on this ground alone.

(6) The screening test held by the R.P.S.C. for short-listing the eligible candidates to be called for interview keeping in view the number of applications received in response to the limited number of vacancies does not suffer from any infirmity.

(7) The amendment dated 21.7.88 by which the eligibility of diploma holders was deleted is not invalid and in the facts of these cases no direction can be issued to consider the diploma holders for appointment as Assistant Engineer by direct recruitment against the vacancies which had become available during the period 7.12.85 to 21.7.88.

19. Before parting with the case we may observe that in the facts of these cases we of course decline to interfere with the selection which have already been held, but we do feel that the non-holding of the selection by any of the modes prescribed under the Rules for number of years is certainly a bad practice which cannot be approved and the same is depricated. The apathy of the Government/Appointing Authority towards holding the yearwise selections according to the Rules causes a great hardship to the candidates desirious of seeking recruitment by promotion or by direct recruitment and we would like to leave a word of caution to the concerned authorities to see that such situation warranting uncalled for litigation is avoided in future particularly in case of direct recruitment for which there is no provision in the rules to take care of the vacancies of earlier years. We do hope, expect and believe that the concerned authorities would act with/all possible promptitute and make earnest efforts to see that the selections are held yearwise in future and in order to ensure the same even in the matter of direct recruitment, if necessary, appropriate amendment may be made in the Rules.

20. The net result of the aforesaid adjudication of the rival submission is that we do not find any force in any of the three writ petitions, worth accepting them and all the three writ petitions are hereby dismissed. No order as to costs.