Rajasthan Land Revenue (Land Records) Rules 1957 – rr. 17-A, 284, 347-A and 347-B – Rajasthan Subordinate Services (Recruitment and other service conditions) Rules 1960 – Rajasthan Services (Recruitment by Promotion against vacancies of earlier years) Rules 1972 – Rajasthan Subordinate Services (Recruitment and Other Service Conditions) Rules 2001 – The State issued advertisement for holding a departmental examination/limited competitive examination in the post of Land Records Inspector (LRI) – Vacancies related to the years 2008-09, 2009-10 and 2010-11 – On 16.05.2013, the appellants appeared for the departmental examination and were declared successful – According to appellants, their names were not included in the seniority list despite the fact that the recruitment year was 2010-11 – Thereafter, appellants were included in the seniority list – However, appellants claimed that in seniority list they were placed below the persons who were promoted against vacancies which arose after the year of vacancies against which the appellants were promoted – Thereafter, State passed an order directing to remove the appellants from the seniority list and to treat them as appointed in 2014-15 – The Division Bench of the High Court held that the claim for seniority with reference to the date of the accrual of the vacancy will not be maintainable merely on the ground that no competitive examination was held in the years in which the vacancies arose – On appeal, held: It is necessary to evaluate the interplay between the Rules of 1957 more particularly, rr.171-A, 347-A and 347-B with the Rules of 1960, 1972 and 2001 – A consistent line of precedent of Supreme Court follows the principle that retrospective seniority cannot be granted to an employee from a date when the employee was not borne on a cadre – Seniority amongst members of the same grade has to be counted from the date of initial entry into the grade – The opening words of r.347-A, the provisions contained in the 1960 Rules would have to give way and be subject to r.171-A(2) which provided for determining seniority on the basis of continuous officiation – In the face of r.171-A(2) as it stood prior to amendment, it is not possible to apply a deemed date for determining seniority based on the year of vacancy – r.171-A(2) rules out the grant of seniority with effect from a date anterior to the date on which the employee is borne on the cadre – R. 347-B is prefaced with a non-obstante provision – Consequently, conditions of service which are governed by the rules referred to in the entries of r.347-B will govern notwithstanding anything contained in the 1957 Rules – Among them is an entry pertaining to the 1972 Rules – r.2 of the 1972 Rules applies in a situation where a service rule regulating recruitment “provides for recruitment by both direct recruitment and promotion” – Whereas, recruitment u/cl.(i) and (ii) of r.284 of the 1957 Rules is from seniority-cum-merit and competitive departmental examination – In the present case, ex facie r.284 of the 1957 Rules is not a provision falling in that category since there is an absence of a service rule requiring recruitment by direct recruitment and promotion – The 1972 Rules have no application – Hence, r.347-B of the 1957 Rules will not come to the aid of the appellants – Insofar as 2001 Rules are concerned, the procedure for recruitment in Part V of the 2001 Rules does not comprehend a situation involving a limited competitive examination for accelerated promotion – Where a limited competitive examination is being held for accelerated promotion, r.
35 of 2001 Rule governing promotion has no application – Therefore, the view taken by the Division Bench of the High Court was justified and in accord with the principles of law enunciated in the decisions of Supreme Court.
The State issued an advertisement f or holding a departmental examination in the post of Land Records Inspector (LRI). The vacancies related to the years 2008-09, 2009-10 and 2010-11. On 16.05.2013, the appellants appeared for the departmental examination and were declared successful. Thereafter, appointment orders for the 80% seniority-cum-merit vacancies were issued in 2012, while those for the 20 per cent competitive exam vacancies were issued on 31 March 2014. On 7.11.2013, a provisional seniority list was issued which excluded appellants. On 24.4.2017, another seniority list was issued determining the seniority as on 1.4.2014. The appellants claimed that they were placed below the persons who were promoted against vacancies which arose after the year of vacancies against which the appellants were promoted. Thereafter, State passed an order directing to remove the appellants from the seniority list and to treat them as appointed in 2014-15. Aggrieved, appellants filed a writ petition. The appellants sought computation of seniority based on the year in which their vacancies arose. The writ petition was allowed by the Single Judge of the High Court. However, the Division Bench of the High Court held that the claim for seniority with reference to the date of the accrual of the vacancy will not be maintainable merely on the ground that no competitive examination was held in the years in which the vacancies arose. Hence, the present appeals.
Dismissing the appeals, the Court
HELD : 1. It is necessary to evaluate the interplay between the Rajasthan Land Revenue (Land Records) Rules 1957 more particularly, Rules 171-A, 347-A and 347-B with the Rajasthan Subordinate Services (Recruitment and other service conditions) Rules 1960, Rajasthan services (Recruitment by Promotion against vacancies of earlier years) Rules 1972 and Rajasthan Subordinate Services (Recruitment and Other Service Conditions) Rules 2001. Rules 347-A and 347-B of the 1957 Rules were introduced by amendment on 22 September 1977. Rule 347-A stipulates that the pay, allowances, pension, leave and other conditions of service shall be regulated by the rules, as amended from time to time enumerated in the several entries which follow. Among them are other rules for the time being in force, made under the proviso to Article 309 of the Constitution prescribing the general conditions of service. Any other general order or amendment in the 1960 Rules by the Department of Personnel is to apply mutatis mutandis unless there is an order to the contrary issued by the government. However, Rule 347-A indicates that the provisions of the enumerated rules do not have overriding effect since the opening words contain the phrase “except as otherwise provided in these rules”. Where a specific provision is made in the 1957 Rules, that will hence prevail. [Para 24] [473-D-F]
2. Rule 347-A contemplates that the conditions of service would be governed by the provisions contained in the rules enumerated (including the 1960 Rules) unless otherwise provided in the 1957 Rules. Rule 171-A was such a provision contemplated by the opening words of Rule 347-A. Until it came to be amended in October 2014, Rule 171-A(2) specifically contemplated that the seniority of the LRIs will be determined from the date of their continuous officiation on the post in the land records department or any other equivalent post provided that such officiation was not fortuitous or ad hoc in nature. After the amendment, Rule 171-A contemplates that the seniority of Inspectors shall be determined on the basis of the recruitment year of promotion. The amendment took effect in October 2014. [Para 26] [474-D-F]
3. The Counsel for the appellants is justified in submission that the 1957 Rules did not make a provision specifically for a year-wise determination of vacancies and that such a provision was embodied in the 1960 Rules. The difficulty in accepting the sequitur (as Counsel portrayed it) of this submission lies in the fact that Rule 171-A(2) prior to its amendment expressly incorporated the principle of continuous officiation as the basis for determining seniority of LRIs. This principle, which is specifically embodied in Rule 171-A(2) cannot stand overridden by any provision to the contrary contained in the 1960 Rules. This is for the reason that Rule 347-A expressly stipulates that where there is a specific provision contained in the 1957 Rules, that provision will govern. [Para 27] [474-G-H; 475-A]
4. Part IV of the 2001 Rules lays down the procedure for direct recruitment from Rules 22 to 33. Part V provides for the procedure for recruitment by promotion. Rule 13 requires a determination of the actual number of vacancies occurring during a financial year as on 1 April every year. Where a post is filled in by a single method then the vacancies as determined shall be filled in by that method. Where more than one method is prescribed posts are filled by apportionment of vacancies. Rule
35 applies to promotions which are carried out by a departmental promotion committee constituted under Rule 34. Rule 35(6) requires the committee to consider the cases of persons who would have been eligible in the year to which the vacancy relates, irrespective of the year in which the meeting of the committee is held. Such promotions would be governed by the criteria and procedure applicable in the year to which the vacancy relates and the service / experience of the incumbent who is promoted shall be counted for promotion to a higher post for any period during which the candidate has not actually performed the duties of the post. Where a limited competitive examination is being held for accelerated promotion, Rule 35 has no application. The procedure for recruitment in Part V of the 2001 Rules does not comprehend a situation involving a limited competitive examination for accelerated promotion. [Para 29] [476-D-G]
5. It is evident from Part V of the 2001 Rules more particularly, the rules governing promotion contained in Rules
34 and 35 that the deeming fiction envisaged in Rule 35(6) applies to promotions made under the auspices of a DPC. In the present case, it is evident that the deeming fiction which applies in the context of a DPC having been convened beyond the year in which the promotional vacancy arose has no application to candidates who are recruited on the basis of a competitive examination for the grant of accelerated promotion. There is a fundamental reason why the deeming fiction cannot be extended to the situation implicated in Rule 284(ii). In order to appear in the competitive examination contemplated by Rule 284(ii), a candidate must fulfill the conditions of eligibility prescribed in Rule 286. Rule 286 stipulates that in-service Patwaris must have a minimum service of five years before they can appear at the competitive examination under Rule 284(ii). Conferment of a deemed seniority may result in a situation where a candidate secures seniority with effect from an anterior date on which he or she was neither borne on the cadre nor was qualified. Such a consequence would be impermissible, at least in the absence of an express statutory provision to that effect. [Para 30] [477-B, E-H]
6. A consistent line of precedent of this Court follows the principle that retrospective seniority cannot be granted to an employee from a date when the employee was not borne on a cadre. Seniority amongst members of the same grade has to be counted from the date of initial entry into the grade. [Para 31] [478-A-B]
7. In the present case, this Court has dealt with the issue of the applicability of the 1960 Rules in the context of determining the principle of seniority. This Court has held that in view of the opening words of Rule 347-A, the provisions contained in the 1960 Rules would have to give way and be subject to Rule 171A(2) which provided for determining seniority on the basis of continuous officiation. In the face of Rule 171-A(2) as it stood prior to amendment, it is not possible to apply a deemed date for determining seniority based on the year of vacancy. Rule 171A(2) rules out the grant of seniority with effect from a date anterior to the date on which the employee is borne on the cadre. [Para 34] [480-F-G]
8. But the submission which now needs to be analysed is whether a different result would follow from the application of Rule 347-B of the 1957 Rules. Rule 347-B is prefaced with a non-obstante provision. Consequently, conditions of service which are governed by the rules referred to in the entries of Rule 347B will govern notwithstanding anything contained in the 1957 Rules. Among them is an entry pertaining to the 1972 Rules. Hence, it is necessary to consider the applicability of the 1972 Rules. A plain reading of the 1972 Rules indicates that they envisage a situation where recruitment is made both by direct recruitment and promotion and the promotional quota is not filled up in the absence of a DPC recommendation. On its terms, Rule
2 of the 1972 Rules has no application to a situation such as the present which is governed by Rule 284 of the 1957 Rules. Under Rule 284, there is no direct recruitment at all. Rule 2 of the 1972 Rules applies in a situation where a service rule regulating recruitment “provides for recruitment by both direct recruitment and promotion”. In the present case, ex facie Rule 284 of the 1957 Rules is not a provision falling in that category since there is an absence of a service rule requiring recruitment by direct recruitment and promotion. The 1972 Rules have no application. Rule 347-B of the 1957 Rules will hence not come to the aid of the appellants. [Para 35] [480-H; 481-A-F]
Direct Recruit Class II Engineering Officers’ Association v State of Maharashtra (1990) 2 SCC 715 : [1990] 2 SCR 900 – followed.
State of Bihar v. Akhouri Sachindra Nath (1991) Supp 1 SCC
334 : [1991] 2 SCR 410 ; State of Uttaranchal v. Dinesh Kumar Sharma (2007) 1 SCC 683 : [2006] 10 Suppl. SCR 1 ; Pawan Pratap Singh v. Reeven Singh (2011) 3 SCC 267 : [2011] 2 SCR 831 ; P Sudhakar Rao v. U Govinda Rao (2013) 8 SCC 693 : [2013] 13 SCR 540 – relied on. Jagdish Prasad v. State of Rajasthan (2011) 7 SCC
789 : [2011] 12 SCR 1 – distinguished.
Jagdish Ch. Patnaik v. State of Orissa (1998) 4 SCC 456 : [1998] 2 SCR 676 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.