TaxTMI 
TaxTMI 
2020 (12) TMI 30
X X X X Extracts X X X X
X X X X Extracts X X X X
....e by the learned single judge of that court and 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 "departmental promotes" or "DPs"). The DRs had approached the High Court in the first instance, claiming that the seniority list, showing the DPs in earlier positions, was untenable; the single judge allowed that petition. The Division Bench has, however, allowed the appellants to question the eligibility of DPs to be recruited. 2. The relevant facts are that on 01.09.2009, the Finance Department of the Government of Rajasthan granted approval for creation of 531 posts of Tax Assistants. This newly created post was augmented by further 23 posts, which were added to the cadre; the final tally of such newly created posts of Tax Assistants became 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. Schedule-I of the Amendment Rules defined the manner of filling of the posts in the following terms: "100% by direct recr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on was no different inasmuch as the DPs were shown above the DRs. The appellants again objected; nevertheless on 18-09-2015 the Department substantially confirmed their previous positions in the final list published by it. 5. The Direct Recruits (DRs) filed one set of Writ Petitions- Manohar Lal Jat & Ors. vs. State of Rajasthan &Ors. contending that the seniority lists were contrary to law. Yet another seniority list was issued by the Department on 30.05.2016 in which the previous position of the DPs was left undisturbed. This became the subject matter of challenge before another proceeding- Gajendra Singh & Ors. vs. State of Rajasthan &Ors. CWP Np. 4630 of 2017. Though the two writ proceedings had challenged the seniority position allotted to the DRs except the few DPs and official respondents, no others were impleaded. The prominent grounds of attack in the writ petition, were that the recruitments of the DRs and DPs took place simultaneously and that the departmental candidates were mala fide issued with appointment letters earlier, for no reason except to ensure that their dates of entry into the cadre of tax inspectors were earlier, in order to favour their further career ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....een added. 10. The Court held that the main provision of the Rule 27 was amended on 10.10.2002 which added a second proviso and that the proviso would operate when two selections are for one and the same category. The relevant observations of the Division Bench are as follows: "In our opinion, there is conflict between the main provision of rule 27 and second proviso. If proviso is applied taking into consideration the earlier and subsequent selection followed by appointment then, in a given case, where a selection was started earlier to subsequent but the appointment is given first to those selected pursuant to subsequent selection, the relevance of the date of appointment gets nullified. It is because of appointment of the candidates pursuant to the subsequent selection prior to the appointment of the candidates out of earlier selection. They would not get seniority despite earlier appointment and, thereby, significance to the date of appointment given in Rule 27 would be violated. The proviso cannot nullify the main provision and, in those circumstances, consideration of two provisions has to be made. The proviso would operate when two selections are for one and the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....st earlier the state proceeded with unusual speed and published the results of the DP category candidates for the 20% quota on 14.06.2011 and hastily issued appointment letters on 23.06.2011. It was only thereafter that the appointment letters of DR category candidates (for the 80% open quota) were issued. It was submitted that these 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. 14. Learned counsel highlighted that the representation/letter by the General Secretary of the Departmental Employees Association had pressurised the Commercial Tax Department to recruit DPs earlier and relied upon a letter dated 19.05.2011. 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 the record. The department in fact given unprecedented priority, to select candidates for the 20% departmental quota. 15. Learned counsel also argued that the explanation given by the State for the delay that occurred in issuing appointment letters to the DR quota ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he same post, filled through different categories (sources) of candidates. 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. 19. Dr. Manish Singhvi, the learned Additional Advocate General, appearing on behalf of the State of Rajasthan and Mr. R. Venkatramani, learned Senior Counsel appearing on behalf of the contesting respondents, i.e. the Departmental Promotee (DP) candidates, made their submissions. 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 recruitments in question resorted to in 2011, through the two advertisements issued (one for the 80% quota of DRs and other to fill up 20% quota of DPs) was the first recruitment drive to fill up these newly cre....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Rule 27, squarely applied, however that principle would be inapplicable where the recruits are appointed from different categories such as promotees and direct recruits. In such cases the main part of the Rule i.e. seniority based upon the entry into the cadre would squarely applied. 22. Learned senior counsel highlighted that the consistent view of this Court in several decisions has been to confine the proviso within the field of its operation and not allow it to supplant the main or enacted portion contained in the provision of which the proviso relates to. It is thus urged that the proviso cannot be interpreted as nullifying the enactment or taking away something conferred by the main section or provision. Learned counsel relied upon certain decisions in this regard- Casio India Pvt. Ltd. v. State of Haryana (2016) 6 SCC 209 & Rohitash Kumar v. Om Prakash Sharma and Ors. (2013) 11 SCC 451. The learned AAG emphasized that the facts on record show that the entire cadre was created for the first time by the single notification dated 01.12.2010. The recruitment to the two categories occurred as a first time measure. That advertisements were issued on different dates - one for d....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... States of Rajasthan or the Services of the new State of Rajasthan established by the State Re-organisation Act, 1956, shall be determined, modified or altered by the Appointing Authority on an ad hoc basis; (2) That the persons selected and appointed as a result of a selection, which is not subject to review and revision, shall rank senior to 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;" 25. With effect from 10.10.2002, the main provision of Rule 27 was amended even while maintaining the two provisos below it. This was referred to by the Division Bench in its impugned judgment. The amendment to the Rule is extracted below: "AMENDMENT: In the column of the Schedule attached herewith, following words shall be substituted in place of every Service Rule Col. No.4 with regard to substantial provisions (except their provisions) which means:- "Seniority in respect of persons appointed on the posts included in the cadre of service shall be as per the provisio....
X X X X Extracts X X X X
X X X X Extracts X X X X
....owest categories of posts" in any department was to be determined as from the date of appointment; however, for promotees, it was to be from the date of selection; (b) after the amendment of 2002, seniority has to be fixed (by reason of Rule 27 (1)) as on the date of appointment to the post or service; (c) however, in the case of pre-state integration of state (of Rajasthan) or pre-integration of services, seniority could be "modified or altered by the Appointing Authority on an ad hoc basis"- this clearly was meant to be a "sunset" clause, i.e. operative for a limited period; (d) the second proviso,- which is the one pressed into service by the DRs, states that seniority of those selected earlier will be determined over those selected latter. 30. Plainly, the principal mandate of the rule is that seniority is determined on the basis of date of appointment ("shall be fixed from the date of their appointment"). Proviso (2) lists out two rules. The first is that those selected and appointed through a prior selection would rank senior to those selected and appointed through a later selection process. The High Court, in this case, was of the opinion that this rule (i.e. proviso) app....
X X X X Extracts X X X X
X X X X Extracts X X X X
....(a) Candidates who are sent for initial training to training schools will rank in seniority in the relevant grade in the order of merit obtained at the examination held at the end of the training period before being posted against working posts. (b) Candidates who do not have to undergo any training, the seniority should be determined on the basis of the merit order assigned by the Railway Service Commission or other recruiting authority." Later on sometime in the year 1990 Rule 303(a) was amended by inserting the following expression: "Those who joined the subsequent course for any reasons whatsoever and those who passed the examination in the subsequent chance will rank junior to those who had passed the examination in earlier courses." The aforesaid Rule stood further amended in 1993 which reads thus: "In case however persons belonging to the same RRB panel are sent for initial training in batches due to administrative reasons and not because of reasons attributable to the candidates, the inter se seniority will be regulated batchwise provided persons higher up in the panel of RRB not sent for training in the appropriate batch (as per....