# GANGA VISHAN GUJRATI & ORS v. STATE OF RAJASTHAN & ORS

- **Citation:** [2019] 11 S.C.R. 444
- **Court:** Supreme Court of India
- **Decided:** 2019-08-21
- **Case number:** Civil Appeal No. 6007 of 2019
- **Bench:** Dr. Dhananjaya Y Chandrachud, Indira Banerjee
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ganga-vishan-gujrati-ors-v-state-of-rajasthan-ors-33052
- **Pages:** 39

## Headnote

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
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444
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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 for holding a
departmental examination in the post of Land Records Inspector
(LRI).

## Text

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GANGA VISHAN GUJRATI & ORS.
v.
STATE OF RAJASTHAN & ORS.
(Civil Appeal No. 6007 of 2019)
AUGUST 21, 2019
[DR. DHANANJAYA Y CHANDRACHUD AND
INDIRA BANERJEE, JJ.]
Rajasthan Land Revenue (Land Records) Rules 1957 - rr.
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
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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 for 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
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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
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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
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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]
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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
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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.
Case Law Reference
[1998] 2 SCR 676
referred to
Para 19 (iv)
[1990] 2 SCR 900
followed
Para 31
[1991] 2 SCR 410
relied on
Para 31
[2006] 10 Suppl. SCR 1
relied on
Para 31
[2011] 2 SCR 831
relied on
Para 31
[2013] 13 SCR 540
relied on
Para 31
[1998] 2 SCR 676
distinguished
Para 32
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6007
of 2019.
From the Judgment and Order dated 06.08.2018 of the High
Court of Judicature for Rajasthan, at Jodhpur in D.B. Special Application
Writ No. 917 of 2018.
With
Civil Appeal Nos. 6009, 6008 of 2019
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Paras Kuhad, Sr. Adv., Ms. Shraddha Deshmukh, Jitin Chaturvedi,
Ms. Aditi Tripathi, Shuaib Hussain, Rahul Jajoo, Abhishek Gupta, Advs.
for the Appellants.
Dr. Manish Singhvi, P. N. Misra, Manoj Swarup, Sr. Advs., Harsha
Vinoy, Shailja Nanda Mishra, Satendra Kumar, Milind Kumar, Ms. Charu
Mathur, Hitendra Nath Rath, Rohit K. Singh, Ms. Pratibha Jain , Advs.
for the Respondents.
The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD, J.
1. Adjudicating on a vexed issue of service jurisprudence, a Division
Bench of the High Court of Judicature of Rajasthan allowed a batch of
Special Appeals and reversed a judgment of the learned Single Judge
dated 19 April 2018. The consequence of the judgment of the Division
Bench dated 6 August 2018 is that the writ petition instituted by the
appellants under Article 226 of the Constitution stands dismissed. This
has given rise to the present batch of appeals. Since similar issues arise,
all the appeals were heard together.
2. The appellants were appointed as Patwaris in the Revenue
Department on 21 December 1993. On 17 June 2011, an advertisement
was issued by the State of Rajasthan for holding a departmental
examination to select candidates for 93 vacancies in the post of Land
Records Inspector1. The vacancies related to the years 2008-09 and
2009-10. A fresh advertisement dated 28 January 2013 notified an
increase in the number of vacancies to 155, including the vacancies for
2010-11. In response to a query made on 24 December 2014 under the
Right to Information Act 2005, a year-wise bifurcation of the 155
vacancies was provided indicating that:
67 vacancies arose in 2008-09;
26 vacancies arose in 2009-10; and
62 vacancies arose in 2010-11.
3. On 16 May 2013, the appellants appeared for the departmental
examination and were declared successful for the post of LRI. On 7
November 2013, a provisional seniority list was issued from 1 April 2012.
The grievance of the appellants is that though (in their submission) they
1 "LRI"
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were appointed against vacancies that arose in 2008-09, 2009-10 and
2010-11, their names were not included in the provisional seniority list.
On 31 March 2014, the appellants were promoted as LRIs in pursuance
of which they have been working on that post. On 12 March 2015, the
Rajasthan Revenue Board2 issued a communication to the Collector to
prepare a list of persons who were appointed as LRIs against vacancies
for the year 2009-10. The names of the appellants did not find mention
in the seniority list as on 1 April 2012. Orders were issued on 11 June
2015, 6 July 2015 and 6 August 2015 promoting LRIs to the post of
Nayab Tehsildar, treating them to have been appointed on the post of
LRI against the year of promotion in which the vacancies arose. This
was in terms of a notification dated 8 October 2014 by which Rule 171A of the Rajasthan Land Revenue (Land Records) Rules 19573 was
amended to change the criterion for determining seniority from the date
of continuous officiation on the post of LRI to the recruitment year of
promotion. The appellants were aggrieved by the denial of the benefit of
the notification dated 8 October 2014. Aggrieved by what was perceived
as differential treatment, a representation was submitted on 14 September
2015 to the Chairman of the Board of Revenue for granting the appellants
the benefit of the notification dated 8 October 2014 and placing them in
the seniority list against the recruitment year. A final seniority list,
computing seniority as on 1 April 2012 was issued on 12 May 2016 in
terms of Rule 171-A(2). According to the appellants, their names were
not included in the seniority list despite the fact that the recruitment year
was 2010-11.
4. This led to the institution of a Writ Petition4 by the appellants
before the High Court of Rajasthan seeking a direction for the declaration
of appointments; promoting them against the recruitment year of
promotion and placing them in the seniority list issued on 12 May 2016
against the recruitment year of promotion with consequential benefits.
On 24 April 2017, another final seniority list was issued determining
seniority as on 1 April 2014. The appellants claim that they were placed
below persons who were promoted against vacancies which arose after
the year of vacancies against which the appellants were promoted. During
the pendency of the Writ Petition, an order was passed by the State of
Rajasthan on 8 May 2017 whereby, persons along with the appellants
2 "Board"
3 "1957 Rules"
4 SB Civil Writ Petition No 6530/2016
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who were placed in the seniority list dated 24 April 2017, were sought to
be removed from the list and were directed to be treated as appointed in
2014-15. This gave rise to a subsequent Writ Petition5 before the High
Court.
5. By a judgment dated 19 April 2018, the Single Judge allowed
the Writ Petition by setting aside the action of the State in not regarding
the year of promotion of those, including the appellants, who were selected
pursuant to the advertisements dated 17 June 2011 and 28 January 2013
against vacancies for 2008-09, 2009-10 and 2010-11. The Single Judge
held that persons selected under Rule 284(2) of the 1957 Rules through
a competitive examination restricted to serving Patwaris were entitled
to be promoted against the vacancies of the respective years subject to
their eligibility. The State was accordingly directed to place persons
selected in the final seniority list issued on 12 May 2016 against the
recruitment year of promotion with consequential benefits.
6. The judgment of the Single Judge has been reversed in appeal
by the Division Bench of the High Court on 6 August 2018.
7. Assailing the judgment of the Division Bench, the appellants
moved this Court in proceedings under Article 136 of the Constitution.
Pleadings have been completed. We have heard Mr Paras Kuhad, Senior
Counsel on behalf of the Appellants; Dr Manish Singhvi, Senior Counsel
appearing for the State of Rajasthan; Mr P N Misra, Senior Counsel, Mr
Manoj Swarup, Senior Counsel and Mr Hitendra Nath Rath, Mr Rohit K
Singh and Ms Pratibha Jain, Counsel for the contesting respondents.
8. In order to appreciate the nature of the controversy in the present
batch of appeals, it is necessary to understand the enabling legal
framework. The State of Rajasthan, in pursuance of its powers conferred
by Section 261(2) of the Rajasthan Land Revenue Act 19566, laid down
provisions governing the service conditions of the employees of the Land
Revenue Department. They were embodied in the 1957 Rules. Rule
284 of the 1957 Rules regulates the mode of selection to the post of
LRI. Initially selection was envisaged through direct recruitment and on
seniority-cum-merit. Later, as explained below, a proportion was set apart
for in-service candidates who passed a competitive departmental
examination. Thereafter, direct recruitment was abolished. Rule 284 was
amended from time to time in the following manner:
5 SB Civil Petition No 6299/2017
6 "Act 1956"
GANGA VISHAN GUJRATI v. STATE OF RAJASTHAN
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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On 22 September 1977, recruitment to the post was to be made
on the basis of direct recruitment (50 per cent) and senioritycum-merit (50 per cent);
On 27 June 1981, the quota for promotion through seniority-cummerit was increased to 65 per cent; 15 per cent was to be through
a competitive examination amongst serving Patwaris and 20 per
cent was to be through direct recruitment; and
On 22 August 1985, promotion through seniority-cum-merit was
increased to 80 per cent, while selection through a departmental
examination for serving Patwaris was increased to 20 per cent.
The category of direct recruitment was deleted.
Rule 284, as amended, reads thus:
"284. Selection of candidates for admission to the school in the
respective cadre strength shall be made:-
(i)
by promotion of Patwaris of the Revenue and Land
Records Departments, on the basis of seniority-cum-merit,
for 80% of the vacancies;
(ii)
on the basis of a competitive examination which shall be
restricted to serving patwaris of Revenue (Land Records)
Department who fulfill the conditions of eligibility as given
in Rules 286, for 20% of the vacancies. Provided that the
minimum age limit for such patwaris shall be 45 years."
Rule 285 requires the Board to notify the actual number of
vacancies that will be filled up by recruitment from among the serving
Patwaris of the Revenue (Land Records) Department and the number
to be allotted to the Scheduled Castes and Scheduled Tribes.
Rule 286 prescribes the qualifications:
"286. Qualifications - Candidates intending to apply for selection
must possess the following qualification: -
(i)
That he is a patwari of Revenue (Land Records)
Department and has five years of service experience as
patwari;
(ii)
That he has passed Secondary Examination or any other
equivalent examination recognized by Government;
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(iii)
That he is not above 45 years of age on the first day of
January, next following the last date fixed for receipt of
application for admission to the said school;
(iv)
That he is patwar diploma holder or he is exempted from
this diploma as per rules."
Rule 287 requires a competitive examination to be held by the
Board for recruitment from amongst serving Patwaris of the Revenue
(Land Records) Department for admission to the training school in the
manner laid down in the 1957 Rules. Rule 288 provides for the submission
of applications, the subjects for the examination, preparation of a list of
candidates securing qualifying marks, making of admissions to the school,
reservations, salary during training, grant of diplomas on the passing of
the training examination and the maintenance of a list of successful
candidates on the basis of the aggregate marks obtained in the
examination. Rule 299 provides that upon the completion of one year of
probation period, candidates would be eligible for being confirmed. Rule
299 stipulates that promotees of the same year shall rank senior to the
direct recruits from serving Patwaris of the same year. Rule 299 contains
a reference to direct recruitment though the provision for direct
recruitment has been done away with in Rule 284.
9. On 22 September 1977, an amendment was made to the 1957
Rules by the introduction of Part V-A containing Rules 347-A and 347B. Rule 347-A provides thus:
"347-A. Regulation of pay, Leave, allowances, Pension etc.-Except
as otherwise provided in these rules, the pay allowances, pension,
leave and other conditions of service of the Patwaris, Inspectors'
Land Records and Sadar Qanungos shall be regulated by the
following rules as amended from time to time:-
1.
The Rajasthan Travelling Allowance Rules, 1971;
2.
The Rajasthan Civil Services (Unification of Pay Scales)
Rules, 1950;
3.
The Rajasthan Civil Services (Rationalisation of Pay Scales)
Rules, 1956;
4.
The Rajasthan Service Rules, 1951;
5.
The Rajasthan Civil Services (Revised Pay) Rules, 1961;
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6.
The Rajasthan Civil Services (New Pay) Rules, 1968
7.
 Any other rules prescribing general conditions of service
made by the appropriate authority under the proviso to
Article 309 of the Constitution of India and for the time
being in force.
8.
Any other general order or amendment in the Rajasthan
Subordinate Services (Recruitment and other Service
Conditions) Rules 1960, issued by the Department of
Personnel shall mutatis mutandis be applicable unless any
order to the contrary is issued by the Government."
Rule 347-B provides thus:
"347-B Application of Certain miscellaneous Rules. -
Notwithstanding anything contained in these rules, the following
rules shall apply to the recruitment and other conditions of service
of the Patwaris, Inspectors, Land Records and Sadar Qanungos
as they apply to other categories of Government servants: -
1.
The Rajasthan Civil Services (Absorption of Surplus
Personnel) Rules, 1969.
2.
The Rajasthan Civil Services (Substantive appointment and
determination of seniority of temporary employees) Rules,
1972.
3.
The Rajasthan Services (Recruitment by promotion against
vacancies of Earlier Years) Rules, 1972."
10. Rule 347-A provides that except as otherwise provided in the
rules, pay, allowances, pension, leave and other conditions of service are
to be regulated by the rules enumerated under eight categories. Among
the rules which have been enumerated are the Rajasthan Subordinate
Services (Recruitment and other Service Conditions) Rules 19607. Any
general order or amendment in the 1960 Rules is made applicable, mutatis
mutandis. Besides this, entry 7 refers to other rules prescribing general
conditions of service made under Article 309 of the Constitution, for the
time being in force. The opening words of Rule 347-A make the
applicability of the enumerated rules subject to a provision specifically
contained in the 1960 Rules. On the other hand, Rule 347-B contains an
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overriding provision under which notwithstanding anything contained in
the 1957 Rules, conditions of service would be governed by certain
enumerated rules. Among them are the Rajasthan Services (Recruitment
by promotion against vacancies of earlier years) Rules 19728.
11. A significant distinction which must be noticed between Rule
347-A and Rule 347-B, lies in their prefatory words. Rule 347-A begins
with the expression "except as otherwise provided in these rules". Rule
347-B commences with the expression "notwithstanding anything
contained in these rules". The significance of this difference in
terminology lies in the fact that the rules enumerated in Rule 347-A will
govern the conditions of service unless a specific provision on the subject
is contained in the 1960 Rules. On the other hand, the rules which have
been enumerated in Rule 347-B will govern the service conditions
irrespective of what is contained in the other provisions of the 1957
Rules. To put it differently, the rules which are enumerated in Rule 347A of the 1957 Rules are made subservient to provisions contained in the
1960 Rules. On the other hand, the rules referred to in Rule 347-B of the
1957 Rules have an overriding effect over any other provision contained
in the 1957 Rules. This is the plain consequence which ensues from the
use of the expression "except as otherwise provided in these rules" in
Rule 347-A as distinguished from the expression "notwithstanding
anything contained in these rules" in Rule 347-B. The former is an
indication of subservience. The latter is an indication of overriding effect.
12. Now, it is necessary to analyse the rules adverted to in entries
7 and 8 of Rule 347-A of the 1957 Rules.
13. The 1960 Rules were made to govern the recruitment and
other conditions of service of persons appointed to the subordinate service
in various departments of the State other than posts regarding which
separate service rules had been or would be promulgated. Rule 9 provided
for a year-wise determination of vacancies on 1 April of each year by
the appointing authorities. Rule 9 of the 1960 Rules stipulated thus:
"9. Determination of Vacancies: - (1) (a) Subject to the provisions
of these Rules, the Appointing Authority shall determine on 1st
April every year, the actual number of vacancies occurring during
the financial year.
8 "1972 Rules"
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(b) Where a post is to be filled in by a single method as prescribed
in the rule or 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 or Schedule, the apportionment of
vacancies, determined under clause (a) above, to each such method
shall be done maintaining the prescribed proportion for the overall
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 cyclic 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."
14. On 2 March 2001, the Rajasthan Subordinate Services
(Recruitment and Other Service Conditions) Rules 20019 were notified
under the proviso of Article 309 of the Constitution. Rule 13 of the 2001
Rules requires the appointing authority to determine the vacancies actually
occurring on 1 April of every financial year:
"13. Determination of vacancies: -
(1) Subject to the Provisions of these rules, the Appointing Authority
shall determine on 1st April every year, the actual number of
vacancies occurring during the financial year.
(2) Where a post is to be filled in by a single method as prescribed
in the Rule or Schedule, the vacancies so determined shall be
filled in by that method.
(3) Where a post is to be filled in by more than one method as
prescribed in Rules or Schedule, the apportionment of vacancies,
determined under sub-rule (1) above, to each such method shall
be done maintaining the prescribed proportion for the overall
number of post(s) 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
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various methods prescribed in a continuous cyclic order giving
precedence to the promotion quota.
(4) The Appointing Authority shall also determine the vacancies
of earlier years year wise 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."
Rule 9(1)(c) of the 1960 Rules and Rule 13 of the 2001 Rules
require vacancies to be apportioned between each method of promotion.
Rule 9(2) of the former and Rule 13(4) of the latter requires the
determination of vacancies of earlier years which were required to be,
but were not filled in by promotion, in the year in which the vacancies
should have been filled in.
Rule 35 speaks of the eligibility, criteria and procedure for
promotion. Rule 35, insofar as is material, reads thus:
"35. Eligibility, Criteria and Procedure for Promotion: -
(1) As soon as the Appointing Authority determined the number
of vacancies under rule 13 of these rules and decides that a certain
number of post(s) are required to be filled in by promotion, it shall
subject to provisions of sub-rule (4), prepare a correct and complete
list of the senior most persons who are eligible and qualified under
these rules for promotions to the class of post(s) concerned.
(2) the persons enumerated in Column 6 of Schedule shall be
eligible for promotion to posts specified against them in Column 4
subject to their possessing minimum qualification and experience
on the first day of the month of April of the year of selection as
specified in Column 7.
...
(6) If any subsequent year, after promulgation of these rules
vacancies relating to any earlier year are determined under
rule 14 which were required to be filled by promotion, the
Committee shall consider the cases of all such persons who
would have been eligible in the year to which the vacancies
relating irrespective of the year in which the meeting of
the Committee is held and such promotions shall be
governed by the criteria and procedure for promotion as
was applicable in the particular year to which the vacancies
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relate and the Service/Experience of an incumbent who has
been so promoted, for promotion to higher post for any
period during which he/she has not actually performed the
duties of the post to which he/she would have been
promoted, shall be counted. The pay of a person who has
been so promoted shall be refixed at the pay which he/she
would have derived at the time of his/her promotion but no
arrears of pay shall be allowed to him/her..."
(Emphasis supplied)
Under Rule 13 of the 2001 Rules, the appointing authority must
determine the actual number of vacancies occurring during the financial
year on the first day of April of each year. When a post is filled in by
more than one method, the vacancies have to be apportioned, to every
such method by maintaining the prescribed proportion. Vacancies which
were required to be filled in by promotion in earlier years, but which
were not determined and filled in earlier are similarly required to be
determined. Under Rule 35(2), eligibility for promotion is defined with
reference to the possession of minimum qualifications and experience
on the first day of April of the year of selection. Under sub-rule (6) of
Rule 35, where vacancies of an earlier year are determined as being
required to be filled by promotion, the committee is under a mandate to
consider all such persons who would have been eligible in the year to
which the vacancies relate, irrespective of the year in which the meeting
is held. The criteria and procedure for promotion would be governed by
what is applicable to the year to which the vacancy related. Significantly,
the service or experience of a person who has been 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. While the
pay of a person promoted would be re-fixed, no arrears of pay are required
to be given.
15. Rule 347-B of the 1957 Rules contains a reference to the
1972 Rules. The 1972 Rules comprised of six rules, which are extracted
below:
"1. Short title and commencement
(1) These rules may be called the Rajasthan Services
(Recruitment by Promotion against Vacancies of earlier years)
Rules, 1972.
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(2) They shall come into force at once.
2. Where a service rule, regulating recruitment and condition of
service made under the proviso to Article 309 of the Constitution
of India, provides for recruitment by both direct recruitment and
promotion and where promotion quota of any earlier year could
not be filled up in the absence of recommendations of the
Departmental Promotion Committee appointed under the rule
pertaining to the Service the appointing authority shall determine
the number of vacancies which were required to be filled up by
promotion specifying the year with reference to which the
vacancies are to be filled up.
3. The Departmental Promotion Committee, appointed under the
service rules referred to in rule 2 shall make their recommendation
within a period of three months from the date the competent
authority makes the determination of the number of vacancies
and specifies the year of vacancies of earlier years under the said
rule whereupon the appointing authority shall giving due regard to
the recommendations of the Departmental Promotion Committee,
make the appointments by promotion in the promotion quota
vacancies relevant to the year specified under rule 2.
4. When the appointing authority make appointments by promotion
under rule 3, it shall specify the year in which such promotion
shall be deemed to have been made.
5. Where any vacancy existed in the promotion quota in a year
earlier than that in which an appointment by promotion was made
on the recommendation of the Departmental Promotion Committee
the appointing authorities shall modify the appointment order by
specifying the year in which such promotion shall be deemed to
have been made.
6. Where any appointment by promotion has been made under
rule 3 or where the appointing authority has specified the year of
promotion under rule 5, the person who has been so promoted
shall not be entitled to claim any arrears of pay for any period
during which he has not actually performed the duties of the post
to which he has been promoted."
GANGA VISHAN GUJRATI v. STATE OF RAJASTHAN
[DR.