"Keeping in mind that the advertisements (for filling the entire cadre, in both the quotas or streams of recruitment) were issued one after the other, and more importantly, that this was the first selection and recruitment to a newly created cadre, the delay which occurred on account of administrative exigencies (and also the completion of procedure, such as verification of antecedents) the seniority of the promotees given on the basis of their dates of appointment, is justified by Rule 27 in this case. The impugned judgment, in the opinion of this court, is not erroneous; it does not call for interference."(Para 32)
[Amendments to the Rajasthan Commercial Taxes Subordinate Services General Branch Rules, 1975]
Manohar Lal Jat & Ors. Etc. v. The State Of Rajasthan & Ors.
Civil Appeal No (S). 3832-3833 Of 2020 (Arising Out Of SLP (C) No(S). 26669-26670/2018) with Civil Appeal No. 3834 Of 2020 (Arising Out Of SLP (C) No. 26671/2018)
26th November, 2020.
Counsel for Appellants: Mrs. Aishwarya Bhati, Mr. Prashant Bhushan.
Counsel for Respondents: Dr. Manish Singhvi (Additional Advocate General), Mr. R. Venkatramani.
The Hon'ble Supreme Court Justices Indira Banerjee And S. Ravindra Bhat in an appeal challenging the common judgment of Rajsthan High Court which held that the present Appellants (hereafter referred to as “direct recruits” or “DRs”) were not entitled to claim seniority over and above the respondents, hereafter called the first instance, claiming that the seniority list, showing the DPs in earlier positions, was untenable, observed that the impugned judgment is not erroneous and does not call for interference.
On 01.09.2009, the Finance Department of the Government of Rajasthan granted approval for creation of 531 posts of Tax Assistants which was augmented by further 23 posts, the final tally becoming 554. Amendments to the Rajasthan Commercial Taxes Subordinate Services General Branch Rules, 1975, made with effect from 01.12.2010, prescribed the manner of filling of posts of Tax Assistants. A Departmental Selection Committee was constituted and in accordance with the rules, it was proposed to fill the 80% quota of direct recruits to the extent of 443 vacancies and 111 from amongst DPs. Written examination and typing test was conducted for recruitment of DR’s. Thereafter, provisional results were declared and letters enclosing successful candidates were disclosed for due verification of their character and antecedents. The department advertised for filling up of the 20% quota for DPs when earlier the proposal was to hold written examination. The results were released and the promotion letters were issued.
By the time the appellants were issued with letters for police verification and medical test, the DPs had already been promoted, and had taken charge of their posts. Subsequently appointment orders were issued for DRs. A seniority list was published by the Commercial Taxes Department where those appointed as DPs, in the 20% quota were shown as senior to the DR/the appellants which was objected by some DRs including the appellants. The incident repeated but nevertheless the Department substantially confirmed their previous positions in the final list published by it. Though two writ proceedings had challenged the seniority position allotted to the DRs except the few DPs and official respondents, no others were impleaded. A learned Single Judge of the High Court considered Rule 27 of the concerned Rules and the DRs aggrieved by the Judgment preferred appeals to the Division Bench. The Division Bench allowed these appeals by DPs after noticing that Rule 27 which had been relied upon by the Single Judge had been amended.
The counsel for appellants argued that the Division Bench ignored the fact that recruitments in this case were conducted with two different advertisements for the same post, the appellants who were from open category against 80% quota were selected earlier and the other set of departmental employees were recruited later. Plainly, having regard to the express terms of the rule, i.e. Rule 27, the seniority of the direct recruits (i.e. the appellants and others like them) had to be determined at posts earlier than or senior to the DPs who were selected later. It was argued that the mere incidence of issuance of earlier appointment letters could not have resulted in an undue and unfair advantage to the DPs as to deprive the DRs of earlier slots of the common seniority lists. It was submitted that the circumstances ipso facto established malice against DRs and advertisement on the part of the State and its officers, to grant undue and unfair advantage to the DP category of candidates. The conduct and action of the State in speeding up the process of selection of the DP quota to the utter disadvantage of the DR recruits, was thus established from record. The Division Bench while ignoring the facts of the case, interpreted the Rules 27 of the Rules of 1975 incorrectly. The original Rule 27 reckoned the seniority from the date of appointment. It is argued that pertinently the intent of the rule, in retaining the proviso (2) of the said rule, was to avoid ambiguity in reckoning seniority, in the cases wherein the selection for the same post i.e. “Tax Assistants’ is done through two different sources, wherein the date of advertisements and selection processes are different. Therefore, the main rule will only apply when the recruitment is through the same advertisement. It cannot be applied in a case where another advertisement is issued for the same post after the release of the results of the first advertisement and appointment order is given in the later case. This process of arbitrary recruitment will always deprive of the candidates in their order of seniority in their whole service tenure which is against the principles of Article 14.
It was argued on behalf of the State respondents that the permission for creation of 531 posts was given on 01.09.2009 and later 23 posts were added. The first attempt of the State to fill up a large number of posts was after they were encadred and were lying unfilled for nearly two years. Learned counsel submitted that no doubt advertisements to fill up the DR vacancies were issued prior in point of time, however in response to this advertisement for the 80% vacancies (i.e. 443 vacancies) no less than 15,352 applications were received; these has to be screened to determine eligibility of the candidates. It was urged that two months period for completing this process cannot be considered unreasonable for any stretch of imagination – since Rajasthan is the largest State geographically and has about 35 districts. It was submitted that the Division Bench correctly concluded that the underlying idea behind Rule 27 and the principle of seniority indicated by it which is that those selected earlier would rank earlier to those selected later, would apply in the case of recruits in the same category. It was urged that the proviso cannot be interpreted as nullifying the enactment or taking away something conferred by the main section or provision. The decision to conduct the recruitment and selection process was a composite one – though advertisements were issued on separate dates. Having regard to the fact that the 20% departmental promotion quota could be filled only by those working within the Commercial Tax Department (and which could not be filled by DRs), a different kind of advertisement with relevant eligibility conditions was issued. This does not mean that separate selection processes were held; since the department had vacancies in a new post for the first time, recruitment had to be considered common.
With effect from 10.10.2002, the main provision of Rule 27 was amended even while maintaining the two provisos below it. Thus, the main provision was amended as to clearly provide that seniority in the cadre would be fixed from the dates of appointment of the employees, or officers, to the cadre. Plainly, the principal mandate of the rule is that seniority is determined on the basis of date of appointment. The High Court, in this case, was of the opinion that this rule (i.e. proviso) applied to selections from the same source, i.e. where two sets of direct recruits were appointed, those selected through a previous recruitment process, would rank senior to those recruited through a later recruitment process, which is salutary.
The court held that
"Keeping in mind that the advertisements (for filling the entire cadre, in both the quotas or streams of recruitment) were issued one after the other, and more importantly, that this was the first selection and recruitment to a newly created cadre, the delay which occurred on account of administrative exigencies (and also the completion of procedure, such as verification of antecedents) the seniority of the promotees given on the basis of their dates of appointment, is justified by Rule 27 in this case. The impugned judgment, in the opinion of this court, is not erroneous; it does not call for interference."(Para 32)
The appeal stands dismissed.
View/Download Judgment: Manohar Lal Jat & Ors. Etc. v. The State Of Rajasthan & Ors.
M. Maheswari
