Full Judgment Text
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PETITIONER:
STATE OF RAJASTHAN AND ANR. ETC. ETC.
Vs.
RESPONDENT:
RAJENDRA KUMAR GODIKA AND ORS. ETC. ETC.
DATE OF JUDGMENT18/02/1993
BENCH:
VERMA, JAGDISH SARAN (J)
BENCH:
VERMA, JAGDISH SARAN (J)
YOGESHWAR DAYAL (J)
VENKATACHALA N. (J)
CITATION:
1993 SCR (1)1087 1993 SCC Supl. (3) 150
JT 1993 (4) 52 1993 SCALE (1)637
ACT:
Service Law.
Education Service:
Rajasthan Educational Service Rules, 1970 : rr. 23, 24, 25,
25(11) Explanation; Circulars dated 11.9.1978, 28.4.1979 and
30.11.1991: Rajasthan Education Service. Promotion-Group
’D’ Section II, Principal Higher Secondary School-
Appointment to-100% by promotion from Group ’E’ Headmaster,
Senior Secondary School and Group ’F’ Headmaster, Secondary
School-Held consideration of all persons in Group ’E’ and
moving to Group ’F’ for filling only remaining vacancies by
selecting outstanding amongst them on merit base ensures
fairness while maintaining efficiency in administration-
Provisions not violative of Articles 14 and 16 of
Constitution. Government suggested to lay down more clearly
its policy for promotion.
HEADNOTE:
Rajasthan Educational Service Rules, 1970 provides for
appointment to Group ’DI, Section 11 of the Rajasthan
Education Service, consistIng of the posts of Principal of
Higher Secondary School/BSTC/RTC (Boys), 100 per cent by
promotion from qualified members of Group ’El comprising the
posts of Headmaster of Higher Secondary School for boys and
from those of Group IF’ representing the posts of
Headmasters of Secondary School of boys. Appointment to
Group ’El posts is made 100 per cent by promotion of the
members of Group IF’.
The persons belonging to Group ’El, who were not selected
for promotion to Group ’DI, Section II, filed writ petitions
before the High Court challenging the constitutional
validity of the provisions In the Rules clubbing together
Groups El and IF’ for the purpose of promotion to Group ’DI,
Section 11.
The High Court held the provisions as violative of Articles
14 and
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16 of the Constitution, allowed the writ petitions and
quashed the orders promoting members of Groups IF’ to the
posts in Group ID’, Section II. The State and the affected
members of Group ’F’ of the Rajasthan Education Service
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filed the appeals by special leave.
It was contended on behalf of members of Group IF’ and the
State that the provision clubbing groups IF’ and ’E’ as
feeder cadre for promotion to Group ’D’ Section 11, is in
consonance with Articles 14 and 16 of the Constitution
inasmuch as the Rules require preparation of a combined
seniority list of all eligible members of Groups ’E’ and IF’
placing the former en bloc above the latter, and among those
selected for promotion to Group ’DI Section 11, all those
from Group ’E’ are to rank above those from Group IF’; and
as no person belonging to Group ’E’ found suitable for
promotion to Group ID’ was left out, filling the remaining
vacancies from amongst suitable and qualified persons
belonging to Group ’F’ cannot be violative of rights, if
any, of the writ petitioners inasmuch as qualitatively those
promoted from Group ’F’ were not inferior to the petitioners
and the principle of equation adopted was fair to all.
Allowing the appeals, this Court,
HELD: I.1. The manner in which the Rule is worked, that
is, consideration first of all persons in Groups ’E’ for
promotion to Group ’D’, Section 11, and moving to Group IF’,
if necessary, for filling only the remaining vacancies by
selecting outstanding amongst them who satisfy the
requirement of Explanation to Rule 25(11) (i.e. who have 5
outstanding/’very good’ annual Confidential Reports in the
immediate preceding 7 years), ensures fairness to all while
also maintaining efficiency in the administration.
[pp.1109E-F; 1111B-C]
1.2. The total number of posts in Group ’DI, Section II is
nearly the same as the total number of posts in Group ’E’,
while the total number of posts in Group IF’ is about rive
times thereof. Since appointment to Group ’D’, Section If
is 100 per cent by promotion, it is a distinct possibility
as. in the instant case, that the requisite number of
suitable candidates from Group ’E’ may not be available to
rill all the existing vacancies in Group ’D’ Section 11. In
such a situation, the only available option is to rill the
remaining vacancies by selection of outstanding persons from
Group ’F’. This is more so because the nature of duties and
functions of the posts in
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Group ’E’ and ’F’ is similar and so is that of the posts in
Group ’D’ Section 11. The High Court overlooked this fact.
[pp.1110G-H; 1111A-B]
13. If the need arises to look to Group IF’ for filling the
remaining vacancies on account of want of suitable. person
in Group ’El, those found unsuitable in Group ’E’ cannot
complain of discrimination if persons duly qualified and
more suitable performing similar functions are selected,
purely on the basis of merit, since the unsuitable left out
in Group ’El are excluded from the competition on the ground
of unsuitability and cease to remain contenders for the
remaining posts. [pp.1111C-E, G-H]
1.4. The provisions made in the Rules for promotion to Group
ID’ Section II, from Group ’E ’ as well as Group IF’ are
therefore, not in any manner violative of Articles 14 or 16
of the Constitution. [pp.1111B-E]
Chiranjit Lal Chowdhuri v. The Union of India and Ors.,
[1950] S.C.R. 869; Mohd Hanif Quareshi & Ors. v. The State
of Bihar, [1959] S.C.R. 629 and Md. Usman & Ors. v. State
of Andhra Pradesh & Ors., [1971] Supp. S.C.R. 549, relied
on.
Constitutional Law by Prof. Willis; cited.
2. From the affidavit of a senior officer giving all the
relevant particulars alongwith a chart indicating the
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comparative position of persons in Group ’E’ not found
suitable for promotion to Group ID’ Section [ with those in
Group IF’ who were found fit for promotion on the basis of
merit, it was established that the principle adopted and
followed was fair and reasonable and does not result in any
injustice to the persons not found fit in Group ’E’ for
promotion; the duties of the office of Principal as well as
Headmaster are of a similar nature and there is no
qualitative difference in the duties performed by persons
belonging to Groups ’E’ and IF’; and that the standard of
annual performance appraisal of the members of the two
groups is also on par. [pp.1107G-H; 1108A-D]
3. It would be advisable for the State Government to lay
down more clearly its policy for the future to avoid even
the semblance of treating unequals as equals for the purpose
of promotion, in consonance with the well-known maxim that
’justice should not only be done but should also be seen to
be done’. [p.1093A-B]
4. The judgment of the High Court* is set aside with the
result that
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the writ petitions filed in the High Court stand dismissed.
[p.1112A]
* Miss Kusum Tandon v. State of Rajasthan, etc., etc., D.B.
Civil Writ Petition No. 2221 of 1990 on the file of
Rajasthan High Court, decided on 3.9.1991.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 691-97 of
1993.
From the Judgment and Order dated 3.9.1991 of the Rajasthan
High Court in D.B. Civil Writ Petition Nos. 2221, 2353 and
3222 of 1990.
P.P. Rao, V.M. Tarkunde, Sushil K. Jain, A.P. Dhamija,
Sudhanshu Atreya, Aruneshwar Gupta, Ms. Mamita Naroola and
Pushpandra Singh Bhatia for the Appellants.
P. Chidambaram, Pallay Shishodia, A.P. Medh and R.M.
Tahija for the Respondents.
The Judgment of the Court was delivered by
VERMA, J. Leave granted.
These appeals by special leave are by the State of Rajasthan
and certain candidates whose promotions are adversely
affected by the impugned judgment of the Rajasthan High
Court. The dispute in the writ petitions filed in the High
Court was between members of the Rajasthan Educational
Service belonging to Group ’E’ and Group ’F pertaining to
their rival claims for promotion to the posts of principal
Higher Secondary School, which posts are in Group ’D’,
Section-II of the Rajasthan Educational Service. The
dispute between these two groups arises from the fact that
in the Rajasthan Educational Service Rules, 1970
(hereinafter referred to as ’the Rules’), the aforesaid two
groups-’E’ and ’F’-are clubbed together as the feeder cadre
for promotion to Group ’D’, Section-II, even though in the
service hierarchy the lowest is Group ’F’, above which is
Group ’E’ and then comes Group ’D’. In the writ petitions
filed in the High Court, the writ petitioners challenged the
constitutional validity of this provision in the Rules
clubbing together Group ’E’ and Group ’F for the purpose of
promotion to Group ’D’. Section-II on the ground that
unequals had been equated. The High Court has allowed these
writ petitions and held that item no. 1(a) in column 5 under
the head "Group ’D’ Section-II" of
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Schedule-1 to the Rules as also Item No. 1 in Schedule-11
under the head ’Group ’D’ Section-11" in column 5 are
unconstitutional, being violative of Articles 14 and 16 of
the Constitution. Accordingly, the High Court has quashed
the orders promoting members of Group ’F to posts in the
Group ’D’. It is this judgment dated 3.9.1991 of the
Rajasthan High Court which is challenged in these appeals by
special leave by the State of Rajasthan and members
belonging to Group ’F of the Service whose promotions are
quashed.
Before we refer to the relevant provisions, mention may be
made of the rival contentions before us Shri P.P. Rao,
learned counsel for the aggrieved Group ’F teachers,
advanced several arguments. He submits that the Rules
require preparation of a combined seniority list of an
eligible members of Group ’E’ and ’F and prescribed the
placing of those in Group ’E’ en bloc above the persons
belonging to Group ’F; and it is also prescribed that
amongst those selected for promotion to Group ’D’, the pre-
existing inter se seniority within the Group and also
between the two groups is to be maintained, that is, all
those from Group ’E’ are to rank above those from Group ’F.
He submits that the interpretation and working of the Rules
in this manner, which is the case of the State Government,
is in consonance with Articles 14 and 16 of the
Constitution. His next submission is that reservation of a
percentage of the promotion quota to be filled exclusively
on the basis of merit does not violate the guarantee of
equality since it promotes the object of greater efficiency
as those considered in the merit quota are all qualified and
eligible for promotion. His further submission is that Rule
25(5) applies to promotion to the next higher grade from the
lowest grade while Rule 25 (6) applies to promotions to all
other higher grades. In other words, for promotion from
Group ’F to Group ’E’, Rule 25(5) applies while for
promotion from Group ’F directly to Group ’D’: Rule 25(6)
applies. He also submitted that Rule 23A does not apply
where promotion to a higher grade is from more than one
grade. Shri Aruneshwar Gupta, appearing for the State of
Rajasthan, adopted the arguments of Shri Rao. He also
submitted that the writ petitioners having appeared for
interview before the D.P.C. and taken their chance, they are
precluded from making the challenge when they failed to get
selected. Shri V.M. Tarkunde, who appeared for one of the
aggrieved appellants, supported Shri Rao and made some more
submissions. Shri Tarkunde submitted that the difference
between members of Group ’F and Group ’E’ is not substantial
since both of them had been
1092
functioning as Headmasters and discharging similar duties so
that they were equally suitable and qualified for promotion
as Principal of a Higher Secondary School. Shri Tankunde
submitted that no person belonging’ to Group ’E’ found
suitable for promotion to Group ’D’ was left out and,
therefore, filling the remaining vacancies from amongst
suitable and qualified persons belonging to Group ’F’ cannot
be violative of the rights, if any, of those in Group ’E’
who were not promoted because they were not found suitable
for promotion. Learned counsel also submitted that
qualitatively those promoted from Group ’F’ were, according
to the service record, not inferior to persons lower down in
Group ’E’who had not been selected and the principle of
equation adopted was fair to all. It was also shown with
reference to the particulars of those not selected for
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promotion from Group ’E’ and those found suitable for
promotion in Group ’F’ that the principle adopted and
applied was fair and reasonable, with no element of
arbitrariness.
In reply, Shri Pallay Shishodia, learned counsel for the
respondents, who arc persons not selected for promotion from
Group’E’ to Group ’D’, attempted to support the impugned
judgment. In all, there were 14 such persons who filed the
three writ petitions in the High Court. The main argument
of Shri Shishodia is that ex-facie clubbing of Group ’F’, a
lower cadre, with Group ’E’ for promotion to Group ’D’.
Section-II, violates the equality clause. Shri Shishodia
contended that the explanation now given by the State
Government to justify the promotions made is not based on a
policy adopted and followed, but on the fortuitous
circumstances which have emerged from the results of the
promotions. Shri Shishodia also submitted that the
yardstick was applied equally rigidly to members of Group’E’
as to those from ’F’ when it should have been more stringent
for those in Group ’F’ which was a lower grade.
In order to satisfy ourselves that the policy adopted by the
State Government was fair in its application to members of
both Group ’E’ and Group ’F, we directed the State
Government to produce the relevant material including the
particulars of candidates selected for promotion and those
not found fit for promotion in Group ’E’, as also the
guidelines followed. On examination. of those details, we
are satisfied that the net result of the working of the
Rules in accordance with the principle adopted has been fair
and it cannot be held that those not selected for promotion
in Group ’E’ have been dealt with unfairly, in any manner,
to justify
1093
quashing the promotions made at this selection.
We may, however, observe that it would be advisable for the
State Government to lay down more clearly its policy for the
future to avoid even the semblance of treating unequals as
equals for the purpose of promotion, in consonance with the
well-known maxim that ’justice should not only be done but
should also be seen to be done. We do hope that the State
Government would take advantage of the experience gained
from this litigation to dispel the misapprehension from the
minds of a section of its employees who think that the
State’s action is not fair. Obviously the High Court was
denied the benefit of the material which the State
Government placed before us, on our directions, which
enabled us to remove the gloss of seeming inequality in the
policy adopted under the Rules read with the guidelines for
its working.
We may first refer to the relevant parts of the Rajasthan
Educational Service Rules, 1970.
"PART II
CADRE
4. Composition and strength of the Service
(1) The Service shall consist of the posts
as arranged in the various groups specified in
the Schedule.
(2) The nature of posts included in each
group of the Service shall be as specified in
Column 2 of the Schedules.
(3) The strength of posts in each group of
the service shall be such as may be determined
by the Government from time to time.
(4) There shall be separate cadres in each
Group of Service specified in the Schedules I
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to VI such as
Schedule I for Boys Institutions.
Schedule II for Girls Institutions.
Schedule III for Science and General
Institutions.
1094
Schedule IV for Institutions of Language
Studies.
Schedule V for Institutions of Physical
Education, and
Schedule VI for Institutions of Arts, Music
and others.
The posts mentioned in each Group of service
in a particular Schedule shall be
interchangeable within the same Group of an),
Schedule provided such posts carry identical
time scale of pay.
5. Initial Constitution of the Service
The Service shall consist of
(a) all persons holding substantively the
posts specified in the Schedule;
(b) all persons recruited to the Service
before the commencement of these rules; and
(c) all persons recruited to the Service in
accordance with the provisions of these rules.
PART III
RECRUITMENT
6. Methods of Recruitment
Recruitment to the Service after the
commencement of these rules shall be made by
the following methods in the proportion
indicated in column 3 of the Schedule, namely-
(a) by direct recruitment in accordance with
provisions of Part IV of the rules; and
(b) by promotion in accordance with the
provisions of Part V of these rules:
xxx xxx xxx
8C Power to remove difficulties :
1095
The State Government may for the purpose of
removing any difficulty in regard to other
matters regarding recruitment, probation,
confirmation, promotion etc. and in im-
plementation of provisions of rules 6A and 6B,
make any general of specific order as it may
consider necessary or expedient in the
interest of fair dealing or in the public
interest in consultation with the Commission
where necessary. "
PART V
PROCEDURE FOR RECRUITMENT BY PROMOTION
23. Eligibility and Criteria for Selection:
(1) The persons holding the posts enumerated
in Column 5 of the Schedules, shall be
eligible, on the basis of merit and seniority-
cum-merit, for promotion to posts specified in
column 2 thereof subject to their possessing
the qualifications and experience on the first
day of the month of April of the year of
selection as specified in column 6 thereof-
Provided that a member of the Service shall
not be debarred from promotion for want to
training qualifications.
XXX
23A:
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No officer shall be considered for promotion
unless he is substantively appointed and
confirmed on the next lower post. If no
officer substantive in the next lower post is
eligible for promotion, officers who have been
appointed on such post on officiating basis
after selection in accordance with one of the
methods of recruitment or under any Service
Rules promulgated under proviso to Article 309
of the Constitution of India may be considered
for promotion on officiating basis only in the
order of seniority in which they would have
been. had they been
1096
substantive on the said lower post.
24. Procedure for selection on the basis of
seniority cum merit:
(1) As soon as it is decided that a certain
number of posts shall be filled by promotion,
the Director shall prepare a correct and
complete list containing names not exceeding
five times the number of vacancies, out of the
senior most persons as mentioned in column 5
of the Schedule, who are qualified under the
rules for pro-notion to the posts concerned.
He shall forward this list alongwith their
confidential rolls and personal files to th
e
Secretary to the Government in the Education
Department.
xxx xxx xxx
(2)(a) For the posts, appointments whereto are
to be made
by Government, a Committee consisting of the
Chairman of the Commission or his nominee
being a member thereof nominated by him, the
Secretary to Government in the Education
Department or the Special Secretary concerned
nominated by him and the Special Secretary to
Government in the Department of Personnel or
his representative not below the rank of
Deputy Secretary as member and the Director as
Member-Secretary, and for the posts, appoint-
ments whereto are to be made by the Director,
a Committee consisting of a Member of the
Commission nominated by the Chairman of the
Commission, Deputy Secretary to Government in
the Education Department and Deputy Secretary
to Government in the Department of Personnel
as members and the Director as Member
Secretary shall consider the cases of all
persons included in the list interviewing such
of them as it may deem necessary and shall
prepare a list containing names of suitable
candidates upto twice the number of such posts
as are indicated in sub-rule (1).
Provided that in case any Member-Secretary, as
the case may be, constituting the Committee
has not been appointed
1097
to the post concerned, the officer holding
charge of the post for the time-being shall be
the Member or MemberSecretary, as the case may
be, of the Committee.
(b) The Chairman or the Member of the
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Commission shall preside at all meetings of
the Committee at which he is present.
(3) The Committee shall prepare a separate
list containing names of persons who may be
considered suitable to fill temporary or
permanent vacancies already existing or are
likely to occur till the next meeting of the
Committee on a temporary or officiating basis
and the list so prepared shall be reviewed and
revised every year and shall remain in. force
until it is so reviewed or revised.
(4) The Committee may coopt an expert from
outside to assist the Committee for selection
of candidates for such posts as are to be
filled by promotion.
(5) The names of the candidates selected as
suitable shall be arranged in the order of
seniority.
(6) The list prepared by the Committee shall
be sent to the appointing authority together
with the confidential rolls and personal files
of the candidates included in them as also of
those superseded, if any.
(7) Where consultation with the Commission
is necessary the lists prepared in accordance
with the sub-rules (2) and (3) shall be
forwarded to the Commission by the Appointing
Authority alongwith
xxx xxx xxx
(8) The Commission shall consider the lists
prepared by the Committee alongwith the other
documents received from the Appointing
Authority and unless it considers any change
to be necessary to be made shall approve the
lists but if the Commission considers such
change as aforesaid to be necessary it shall
inform the appointing authority of
1098
the new changes proposed by it and after
taking into account the comments, if any, of
the Commission the Appointing Authority may
approve the list finally with such
modifications, as may in its opinion, be just
and proper.
25. Revised Criteria, Eligibility and
Procedure for promotion to Junior, Senior and
other posts encadred in the Service:
(1) As soon as the Appointing Authority
determines the number of vacancies under rule
regarding determination of vacancies of these
rules and decides that a certain number of
posts are required to be filled in by
promotion, it shall, subject to provisions of
sub-rule (9), prepare a correct and complete
list of the senior-most persons who are
eligible and qualified under these rules for
promotion on the basis of seniority-cum merit
or on the basis of merit to the class of posts
concerned.
(2) The persons enumerated in column 5 or the
relevant column regarding "posts from which
promotion is to be made", as the case may be,
of the relevant Schedule shall be eligible for
promotion to posts specified against them in
Column 2 thereof to the extent indicated in
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Column 3 subject to their possessing minimum
qualifications and experience on the first day
of the month of April of the year of selection
as specified in Column 6 or in the relevant
column regarding "minimum qualification and
experience for promotion", as the case may be.
(3) No person shall be considered for first
promotion in the Service unless he is
substantively appointed and confirmed on the
lowest post in the Service. After first
promotion in the Service, for subsequent
promotions to higher posts in the Service, a
person shall be eligible if he has been
appointed to such post from which promotion is
to be made after selection in accordance with
one of the methods of recruitment under any
Service Rules promulagated under proviso to
Article 309 of the Constitution of India.
1099
Explanation In case direct recruitment to a
post has been made earlier than regular
selection by promotion in a particular year,
such of the persons who are or were eligible
for appointment to that post by both the
methods of recruitment and have been appointed
by direct recruitment first, shall also be
considered for promotion.
(4)......
(5)Subject to the provisions of sub-rule (7),
selection for promotion from the lowest post
or category of post in the State Service to
the next higher post or category of post in
the State Service and for all posts in the
Subordinate Services and in the Ministerial
Services shall be made strictly on the basis
of seniority-cum-merit from amongst the
persons who have passed the qualifying
examination, if any prescribed under these
rules, and have put in at least five years’
service, unless a different period is
prescribed elsewhere in these rules, on the
first day of the month of April of the year of
selection on the post of category of post from
which selection is to be made:
Provided that in the event of non-availability
of the persons with the requisite period of
service of five years, the Committee may
consider the persons having less than the
prescribed period of service, if they fulfil
the qualifications and other conditions for
promotion prescribed eleswhere in these rules,
and are found otherwise suitable for promotion
on the basis of seniority-cum-merit.
(6)Selection for promoting to all other higher
posts or higher categories of posts in the
State Service shall be made on the basis of
merit and on the basis of seniority-cum-merit
in the proportion of 50:50
Provided that if the Committee is satisfied
that suitable persons are not available for
selection by promotion strictly on the basis
of merit in a particular year, selection by
promotion on the basis of seniority-cum-merit
may be made in the same manner as specified in
these rules.
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1100
Explanation If in a Service, in any category
of post, number of post available for
promotion is an odd number then for purposes
of determining the vacancies for selection by
promotion on the basis of seniority-cum-merit
and merit in the proportion of 50:50 the
following cyclic order shall be followed
The first vacancy by seniority-cum-merit,
The subsequent vacancy by merit,
The cycle to the repeated.
xxx xxx
(10) Except as otherwise expressly provided
in this rule, the conditions of eligibility
for promotion, constitution of the Committee
and procedure for selection shall be the same
as prescribed elsewhere in these rules.
(11) (a) The Committee shall consider the
cases of all the senior most persons who are
eligible and qualified for promotion to the
class of posts concerned under these rules,
and shall prepare a list containing names of
the persons found suitable on the basis of
seniority-cum-merit and/or on the basis of
merit, as the case may be, as per the criteria
for promotion laid down in these rules, equal
to the number of vacancies determined under
rule relating to "Determination of vacancies"
of these rules. The list so prepared on the
basis of seniority-cum-merit and/or on the
basis of merit as the case may be, shall be
arranged in the order of’ seniority on the
category of posts from which .,election is
made.
(b) The Committee shall also prepare a
separate list on the basis of seniority-cum-
merit and/or on the basis of merit, as the
case may be, as per the criteria for promotion
laid (town in the rules containing names of
persons equal to the number of persons
selected in the list prepared under (a) above
to fill temporary or permanent vacancies,
1101
which may occur subsequently. The list so
prepared on the basis of seniority-cum-merit
and/or on the basis of merit shall be arranged
in the order of the seniority in the category
of posts from which selection shall be made.
Such a list shall be reviewed and revised by
the Departmental Promotion Committee that
meets in the subsequent year and that such
list shall remain in force till the end of the
last day of the next year or till the
Departmental Promotion Committee meets,
whichever is earlier.
(c) Such lists shall be sent to the
Appointing Authority together with annual
Confidential Reports/Annual Performance
Appraisal Report and other Service Record of
all the candidates included in the lists as
also of those not selected, if any.
Explanation For the purpose of selection for
promotion on the basis of merit, officers with
"outstanding’ or consistently "Very Good"
record shall only be selected and their names
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arranged in the order of seniority."
PART VI
APPOINTMENT, PROBATION AND CONFIRMATION
xxx xxx xxx
28. Seniority :
Seniority of persons appointed to the lowest
post of the Service or lowest categories of
posts in each of the Group/Section of the
Service, as the case may be, shall be
determined from the date of confirmation of
such persons to the said post but in respect
of persons appointed by promotion to other
higher posts in the Service or other higher
categories of posts in each of the
Group/Section in the Service, as the case may
be, shall be determined from the date of the-
if regular selection to such posts.
1102
Provided
xxx xxx xxx
(7) that the common seniority of persons
appointed to posts mentioned in Group ’E’ and
’F’ for promotion to the posts in the Group
’D’ shall be determined with reference to the
date of their substantive appointment. The
inter se seniority of person selected by the
Commission or Committee shall be as indicated
by the Commission or Committee. litter se
seniority of person-, selected against
departmental promotion quota shall be deter-
mined under rules 24 and 25;
(8).......
(9) that the persons selected and appointed
as a result of a selection, which is not
subject to review and revision, shall rank
senior it) the persons who are selected and
appointed as a result of subsequent selection.
Seniority inter se of persons selected on the
basis of seniority-cum-merit and on the basis
of merit in the same selection shall be the
same as in the next below grade.
xxx xxx XXX
"SCHEDULE-1"
XXK XXX XXX
Group ’D’ Section-II
S.No. (Col. 1) 1 (a)
Name of post Principal, Higher
Sec.
(Col. 2) Sclioo1/BSTC/RTC (Boys)
Method of recruitment 100% by promotion
with percentage (Col. 3)
Post or posts from which Group ’E’ &
promotion is to be made ’E’ posts
(Col. 5)"
1103
"SCHEDULE-11"
xxx xxx xxx
Group ’D’ Section-II
S.No. (Col. 1) I (a)
Name of post: Principal, Higher
Sec.
(Col. 2) School/BSTC/RTC
(Girls)
Method of recruitment 100% by promotion
with percentage (Col. 3)
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Post or posts from which Group ’E’ &
promotion is to be made ’F’ posts
(Col. 5)"
Reference may be made also to the Circular dated 11.9. 1978
(Department of Personnel and Administrative Reforms
Department of Personnel-A-Group II No. F.7(10)DOP/A-107-1
dated 11th September, 1978) relating to sub-rule (6) of Rule
25; and the Circular dated 28.4.1979 (Department of
Personnel (A-II) No. F.7(10) DOP/A-II/77 dated 28th April,
1979) and the Notification dated 30.11.1991 (Department of
Personnel & Administrative Reforms-Department of
Personnel-A-II No. F.7(10)DOP/A-II/77 dated 30th November,
1991), providing guidelines for selection on the basis of
merit, relating to Explanation to sub-rule (11) of Rule 25,
issued by the State Government, wherein it was stated as
under:-
Circular dated 11.9.1978
"Subject Promotion to certain categories of
posts to be filled in on the basis of "Merit"
and "Seniority-cum-Merit".
The existing sub-rule (6) of the relevant
rules regarding revised procedure for
promotion, provides for promotion to certain
categories of posts on the basis of
"seniority-cummerit" and "merit" in the
ratio of 50:50. These rules do not clearly
indicate whether selections for such
categories of post shall be made first on the
basis or "seniority-cummerit" or on the basis
of "merit’.
The matter has been considered by the
Government and
1104
the following procedure should be followed -
"The number of posts to be filled separately
on the basis of seniority-cum-merit and merit
should be determined in accordance with the
Explanation below sub-rule (6) of the rule
laying down the revised criteria of
eligibility, promotion etc. Selection should
first be made for filling up vacancies to be
filled on the basis of seniority-cum-merit.
Thereafter persons should be selected on the
basis of merit for filling up merit quota
vacancies."
xxx xxx xxx
Circular dated 28.4.1979
" xxx xxx xxx
It will-be observed that henceforth officers
with consistently "Very Good" or "Outstanding"
record shall be considered for promotion on
the basis of merit. There will be only one
category for the purpose of selection on the
basis of merit."
Notification dated 30.11.1991
"AMENDMENT"’
For the existing "Explanation below sub-
rule............ or sub-rule (11),...........
shall be substituted by the following,
namely:-
"Explanation:- For the purpose of selection
for promotion on the basis of merit no person
shall be selected if he does not not have
"Outstanding" or "Very Good" record in at
least five out of the 7 years preceding the
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year for which D.P.C. is held."
xxx xxx xxx"
The High Court examined the scheme of these Rules and
pointed out that even though the writ petitions before it
concerned Schedule- I to the Rules relating to the boys’
institutions, yet the principle was enqually
1105
applicable for Schedule-II relating to the girls’
institutions, since the hierarchy of the grades in both the
Schedules is the same. The lowest grade in Schedule-I is
Group ’F’. Item 1(a) of Group ’F is the post of Headmaster.
Secondary School for boys. It is to be filled 50 per cent
by direct recruitment and 50 per cent by promotion from the
lower grade. The minimum qualifications are prescribed in
column 4 and the post or posts from which promotion is to be
made is shown in column 5 which is teachers in grade 1, 11
and teachers grade I in Sections C, D, E, F of the Schedule
appended to the Rajasthan Education Subordinate Service
Rules, 1971. The next higher grade is Group ’E’ which are
posts of Headmaster, Higher Secondary School for boys under
item 1(a) to be filled 100 per cent by promotion from Group
’F’ posts. The minimum qualification and experience
required for this grade is Master’s degree in addition to
those prescribed for Headmasters Secondary School. Accord-
ingly, only such of the Headmasters of Secondary School for
boys belonging to Group ’F’ who possess Master’s degree in
addition to the qualifications prescribed for that post are
eligible for promotion as Headmaster, Higher Secondary
School for boys under Groups ’E’. The next higher grade is
Group ’D’, Section-II of Schedule-I and in item 1(a) there
under are the posts of Principal, Higher Secondary
School/BSTC/RTC (Boys). These posts are to be filled 100
per cent by promotion from Groups ’E’ and ’F’ posts; and the
qualifications prescribed are the same as those for
Headmaster of Higher Secondary School. Above this grade is
Group ’D’, Section-I, in item 1 of which is the post of
Inspector of Schools, which is to be filled 100 per cent by
promotion from Group ’D’, Section-II posts. Then comes
Group ’C’, above which is Group ’B’ which is the highest
post of Joint Director of Education Range in Schedule-I to
be filled 100 per cent by promotion from Group ’C’.
From the hierarchy of posts in Schedule-I indicated above,
it is clear that the lowest grade of Group ’F’ in Schedule-I
is filled 50 per cent by direct recruitment and 50 per cent
by promotion, while all the higher grades are filled
entirely by promotion from the next lower grade, except for
Group ’D’. Section-II, which is filled by promotion for
Groups ’E’and ’F taken together. In other words, the posts
of Principal. Higher Secondary School in Group ’D’,
Section-II are filled 100 per cent by promotion from
Groups’E’and’F’together, that is, Headmaster, Higher
Secondary School
1106
and Headmaster, Secondary School; and those from Group ’F
are considered only if they have the minimum qualifications
prescribed for appointment to Group ’D’, Section- II. It is
this clubbing of Groups ’E’ and ’F’ for promotion to Group
’D’, Section-II which was successfully challenged in the
writ petitions filed before the High Court.
The High Court has taken the view that clubbing of Groups ’F
and ’E’ together for promotion to the next higher post in
Group ’D’ section-II, amounts to clubbing of unequals and
the Rule to this extent is invalid. The contention of the
State has been rejected wherein it was indicated that a
common seniority list was prepared of persons in Groups ’E’
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and ’F with those in Group ’E’ being placed en bloc above
those in Group ’F’; that persons in Group ’F’ were
considered for promotion only after every one in Group ’E’
had been considered and vacancies remained to be filled on
account of suitable persons not being found in Group ’E’ to
fill those vacancies; persons form Group ’F were considered
only then, subject to the prescribed qualifications for
appointment to Group ’D’. Section-II; and the nature of
functions of both the categories of Headmasters being
similar, their equation for this purpose was considered to
be reasonable. The High Court did not accept this as
sufficient justification to consider persons in Group ’F’
for filling the remaining vacancies in Group’D’ Section-II
even when the remaining persons of Group ’E’ were not found
suitable for promotion. The High Court also appears to have
overlooked the fact that all posts in Group ’D’, Section-II
being required to be filled by promotion, there was no other
avenue to fill the remaining vacancies in Group Section-II
except the next lower cadre of Group ’F for want of adequate
number of suitable person in Group ’E’ for appointment to
Group ’D’.
The question really is : Whether the policy adopted by the
State Government of first considering all the persons in
Groups ’E’ for promotion to Group ’D’, Section-II and
promoting all found suitable, and then only considering the
qualified persons in Group’F’for appointment to the
remaining vacancies for want of suitable persons in Group
"E’ for promotion, when the posts in Group ’D’ Section-II
are required to be filled 100 per cent by promotion, is
invalid for any reason? It is in this perspective that the
dispute between members of Group ’E’ and Group ’F’ of the
Service raised in the present case has to be decided.
Obviously, the grievance of members of Group ’E’ can arise
only if those in Group ’F’ are
1107
treated on par with Group ’E’ which is a higher grade or
members of Group ’F’ get appointments by promotion in Group
’D’ which would otherwise have gone to those in Group ’E’
but for the rule making Group ’F also eligible for promotion
to Group ’D’ by clubbing Groups ’E’ and ’F’ together for
this purpose. There can be no legitimate grievance to
members of Group ’E’ in case vacancies remain to be filled
in Group ’D’ which can be filled only by promotion, after
every one in Group ’E’ has been considered and only those
not found fit for promotion therein are left unpromoted.
The appointment to the remaining vacancies by promotion of
members of Group ’P, the next lower cadre, possessing the
prescribed qualifications and found suitable for promotion
cannot result in inequality or injustice to those remaining
in Group ’E’ on account of their unsuitability. There is no
other available avenue to fill the remaining posts in Group
’D’ by promotion. There can be no legitimate claim of an
unsuitable person for promotion to provide foundation for
the challenge so made.
It is for this reason that we required the State Government
to place before us the material indicating the procedure
followed for making the selection for promotion to the posts
in Group ’D’ Section-II from Groups ’E’ and ’F’ of the
Service. It has been shown with reference to full
particulars that it is only the vacancies in Group ’D’
remaining unfilled for want of suitable persons in Group ’E’
which are filled by appointment of persons found suitable in
Group ’F’ who possess the prescribed qualifications and are
also found outstanding. It does appear to be the only
feasible manner in which the remaining vacancies in Group
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’D’ can be fined since promotion from the services is the
only prescribed mode of filling of the posts in Group "D’.
Moreover, the nature of duties and functions of the post of
Principal, Higher Secondary School in Group ’D’, Section-II
is similar to that of Headmaster of a Higher Secondary
School or Secondary School, which are the posts held by
persons in Groups ’E’ and ’F respectively. That apart, an
unsuitable person in Group ’E’ cannot claim placement above
a qualified and suitable person in Group ’F’, when the
nature of duties of both are alike and so is that of the
higher post in Group D’
In order to assure ourselves that the principle adopted was
fair and reasonable and so was its application in making the
promotions to Group D’, Section-II from Groups ’E’ and ’F,
we also directed the filing of an affidavit by a senior
officer giving all the relevant particulars in addition to
1108
production of a chart which would enable comparison of
persons in Group ’E’ who were not found suitable for
promotion to Group ’D’, Section-II with those in Group ’F’
who were found fit for promotion on the basis of merit. On
a scrutiny of these particulars along with the facts stated
in the affidavit of M.R. Advani, Deputy Legal Remembrancer,
Education Department, Government of Rajasthan. We are
satisfied that the principle adopted and followed was fair
and reasonable and does not result in any injustice to the
persons not found fit in Group ’E’ for promotion. The
affidavit of M.R. Advani shows that the duties of the office
of Principal as well as Headmaster are of a similar nature
and there is no qualitative difference in the duties
performed by persons belonging to Groups ’E’ and ’F’. It
has also been stated that the Reporting Officer for the
purpose of annual performance appraisal of persons in Group
’E’ is the Principal and their Reviewing Officer is the
District Education Officer, while in the case of persons
belonging to Group ’F’, the Reporting Officer is the
District Education Officer and the Reviewing Officer is the
Deputy Director/Joint Director. Prior to introduction of 10
+ 2 Scheme, the Reporting Officer for Group ’E’ persons also
was the District Education Officer and the Reviewing Officer
was the Deputy Director/Joint Director. This shows that the
standard of their annual performance appraisal is also on
par, being made in this manner. Paras 10 and 11 of this
affidavit dated 15.10.1992 read as under:
"10.It is respectfully submitted that
pursuant to the subrule (11) of Rule 25 of the
1970 Rules while considering the merits of
candidates the Departmental Promotion
Committee first considered all the candidates
of category ’E.’ who were in the zone of
consideration and every candidate who had 5 or
more ’very good’ or ’outstanding’ report and
not having any adverse report was selected on
merit.
11.After considering all the candidates of
category’E’ the posts which were left unfilled
were filled by considering the merits of
candidates of category’F’. While considering
the merits of category ’F’ candidates, first
of all candidates having 5 or more
:outstanding’ and ’very good’ ACR were
selected. If the number of vacancies are
less, the merit list
1109
is prepared on the basis of those having 6 or
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an 7 ACRs to be ’outstanding’ or ’very good’.
For the year 1989-90 as sufficient vacancies
were available in D-11 category all E and F
category candidates were promoted who had
required minimum merit."
Along with the particulars relating to all the candidates
from Groups ’E’ and ’F considered for promotion to Group
’D’. Section-II, an additional affidavit dated 21.10.1992
was filed on behalf of the State Government by B.C. Bairathi
wherein para 4 is as under:
"4. It is respectfully submitted that it is
evident from the statement that all candidates
of category ’E’ who were in the zone of
consideration and had 5 or more ’outstanding’
and ’very good’ reports and did not have any
adverse reports have been selected on merits.
The leftout candidates in group ’E’ are only
those who had less than 5
’outstanding’or’verygood’reports and they
could not have been selected on merits
pursuant to the express provisions of Rule
25(11) of the 1970 Rules. It is also evident
from the said statements that all candidates
of category’F who have been appointed had 5 or
more outstanding’and’very good’ACRs and none
of them had less than 5’outstanding’ or ’very
good’ ACRs."
The Explanation to Rule 25(11) as amended vide Notification
dated 30.11.1991 prescribes that for such promotion no one
having less than 5 outstanding/very good annual confidential
reports in the immediate preceding 7 years is to be
considered fit for promotion. The facts clearly show that
every one in Group ’E’ satisfying this criterion has been
selected and those not found suitable in Group ’E’ are
persons who do not satisfy this criterion. Vacancies
remained in Group ’D’. Section-II which could not,
therefore, be filled from persons in Group ’E’ since
suitable persons amongst them were not available. The only
manner in which the remaining vacancies in Group ’D’,
Section-II could be filled, since all vacancies were to be
filled by promotion according to the Rules, was by promoting
the outstanding persons from Group ’F. The duties and
functions of persons in Groups ’E’ and ’F being of a similar
nature, consideration of persons
1110
from Group F’ for filling the remaining vacancies in this
situation was neither unreasonable nor arbitrary but the
only available mode left for filling the remaining
vacancies. It also appears that the outstanding persons
selected from Group ’F’ were qualitatively found superior to
those remaining unselected in Group ’E’, particularly in
view of the express requirement of the Explanation to Rule
25(11) which the unsuitable persons in Group ’E’ did not
satisfy.
In Chiranjit Lal Chowdhuri v. The Union of India and Others,
[1950] S.C.R. 869, while dealing with the right to equality,
Fazil Ali. J. indicated that a doctrinaire approach is not
warranted and a passage from Constitutional Law by Prof.
Willis was cited as a correct proposition of the principle
underlying this guarantee where in it was stated as under:
".......... Mathematical nicety and perfect
equality are not required. Similarity, not
identity of treatment, is enough. If any
state of facts can reasonably be conceived to
sustain a classification, the existence of
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that state of facts must be assumed. One who
assails a classification must carry the burden
of showing that it does not rest upon any
reasonable basis." (p.877)
In Mohd. Hanif Quareshi & Others v. The State of Bihar,
[1959] S.C.R. 629, while dealing with the meaning, scope and
effect of Article 14, it was reiterated that ’in order to
sustain the presumption of constitutionality the Court may
take into consideration matters of common knowledge, matters
of common report, the history of the times and may assumed
every state of facts which can be conceived existing at the
time of legislation’.
The validity of the impugned Rules has to be adjudged in
this background. The challenge to the validity, upheld by
the High Court, was on the only ground that clubbing of
Groups ’E’ and ’F’ for promotion to Group ’D’, Section-II
was invalid, since unequals had been equated for the purpose
of promotion. From the undisputed facts, it is clear that
the total number of posts in Group ’D’, Section-II is nearly
the same as the total number of posts in Group ’E’, while
the total number of posts in Group ’F’ is about five times
thereof. Since appointment to Group ’D’, Section-II is 100
per cent by promotion. It is a distinct possibility, as in
the present case, that the requisite number of suitable
candidates from Group ’E’ may
1111
not be available to fill all the existing vacancies in Group
’D’, Section-II. In such a situation, all appointments to
Group ’D’, Section-II posts being by promotion, the only
available option is to fill the remaining vacancies by
selection of outstanding persons from Group ’F. This is
more so because the nature of duties and functions of the
posts in Groups ’E’ and ’F’ is similar and so is that of the
posts in Group ’D’ Section-II. In such a situation, the
provision made. in the Rules for promotion to Group ’D’.
Section-II from Group ’E’ as well as Group ’F’ does not in
any manner offend the guarantee of equality in the
Constitution.
The manner in which the Rule is worked, that is,
consideration first of all persons in Group ’E’ for
promotion to Group ’D’, Section-II and moving to Group ’F’,
if necessary, for filling only the remaining vacancies by
selecting outstanding amongst them who satisfy the
requirement of Explanation to Rule ensures fairness lo all
while also maintaining efficiency in the administration. If
the need arises to look to Group ’F’ for filling the
remaining vacancies on account of want of suitable persons
in Group ’E’, those found unsuitable in Group ’E’ cannot
complain of discrimination if persons duly qualified and
more suitable performing similar functions are selected,
since the unsuitable left out in Group ’E’ are excluded from
the competition on the ground of unsuitability, and cease to
remain contenders for the remaining posts. These provisions
in the Rules are, therefore, not in any manner violative of
Articles 14 or 16 of the Constitution.
Reference may also be made to Md. Usman & Ors. v. State of
Andhra Pradesh & Ors., [1971] Supp. S.C.R. 549, wherein
clubbing of UDCs and LDCs for recruitment to posts of Grade-
II Sub-Registrars was upheld as valid. The contention there
was that the rule permitting the clubbing violated Article
14 of the Constitution by treating unequals as equals. The
High Court struck down the rule as violative of Article 14,
but this Court reversed that decision and upheld validity of
the rule. It was held by this Court that the promotion
based on the principles of seniority-cum-merit, even though
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the position of UDC is superior to that of LDC, satisfies
the guarantee of equality. In the present case, this
decision applies with greater force since the selection from
Group ’F’ is based purely on merit and it is only the
outstanding from the Group who are promoted.
1112
For the aforesaid reasons, we allow the appeals and set
aside the impugned judgment of the High Court with the
result that the writ petitions filed in the High Court stand
dismissed. No costs.
R.P.
Appeals allowed.
1113