TMI Blog2020 (12) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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. 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) 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. This interpretation is, in this court s opinion, salutary. There may be various reasons why the ultimate appointment of one batch of recruits may be delayed: challenges to some part of the recruitment process (such as shortlisting, calling of candidates for interviews etc.), during which period, a subsequent recruitment may be undertaken. Keeping i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants 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 recruitment: (a) 80% by the appointing authority in accordance with Schedule III (b) 20% by selection from amongst ministerial staff of the commercial taxes department that by way of departmental examination in accordance Schedule II 3. On 4th October 2010, a Departmental Selection Committee was constituted for recruitment of both categories and proceedings were initiated soon filling all the for 554 posts of Tax Assistants. 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. Accordingly, on 25.01.2011 and advertisement was issued for recruitment of DRs. The written examination, stipulated under the rules was conducted for recruitment of DR s; thereafter a typing test was conducted on 15.05.2011. 356 candidates participated in this typing test. On 16.05.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tack 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 progression. 6. A learned Single Judge of the High Court by Judgment dated 25.05.2017 considered Rule 27 of the concerned Rules (hereafter called the Seniority Rules )- Rajasthan Commercial Taxes Subordinate Services (General Branch) Rules, 1975 . 7. The Single Judge took particular notice of Rule 27(2) which stated that those who undergo recruitment process in an earlier selection will be placed at senior positions to those who undergo recruitment in a selection by a later process. The Single Judge concluded as follows: 16. A glance of Rule 2 (1) would reveal that the advertisement dated 25th January, 2011, was issued with reference to the vacancies of the year 2010-2011. Obviously, the advertisement dated 24th May, 2011, would be a recruitment process with reference to the vacancies of the subsequent year 2011-2012. The respondents are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld 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 same category. 11. According to the Division Bench thus the two categories DPs and DRs were different and it was not open to the DRs especially after a long lapse of time, to question the placement in the seniority list of the DPs. However, since the DRs/Original Writ Petitioners had argued before the Division Bench about the ineligibility of DPs (or some of them) to participate in the selection (which was held in 2011) that issue was kept open. Arguments of parties 12. Mrs. Aishwarya Bhati, learned Senior Counsel and Mr. Prashant Bhushan appearing on behalf of the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 candidates (which was that sometime was taken in police verification and medical check up) has to be considered in the light of these established facts. The learned counsel emphasised that it was only after the appointment letters were issued to the DP candidates in the 20% category on 24.06.2011 that a mere 10 days later, i.e. 14.07.2011, appointment letters were issued to the DR candidates. 16. It was lastly argued that the Division Bench while ignoring the facts of the case, interpreted the rules (Rules 27 of the Rajasthan Commercial Taxes Subordinate Service (General Branch) Rules, 1975 (in short, the Rules of 1975) incorrectly. The original Rule 27 which was amended by notification dated 10.10.2002, which reckoned the seniority from the date of appointment. However, the proviso (2) of the Rules 27 was retained, which clearly stipulates that the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 created posts which had hitherto not existed. It was urged on behalf of the State that these circumstances of the case are to be kept in mind from an important perspective i.e. the first attempt of the State to fill up a large number of posts 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 i.e. in January 201, 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; thereafter the written examination was conducted on 17.04.2011. A typing test was also conducted on 15.05.2011 for 356 candidates. A provisional result was declared on 16.05.2011. The learned Additional Advo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umar 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 direct recruits (DRs) and the other for direct promotees (DPs) did not make them separate recruitment processes. They were contemporaneous in that the State intended the selected candidates to man the same post. Thus, it could not be argued that appointments made in the 80% quota for DR candidates was for a previous year (having regard to the definition of Year under the recruitment rules- Rule 2 reads as follows: Definition 2.In these rules, unless the context otherwise requires: (a) .. (b) xxxxxx xxxxxx xxxxxx (l) Year means financial year . 23. It was highlighted in this regard that the decision to conduct the recruitment and selection process was a composite one though advertisements were issued on separate dates. If one kept this in mind, it was clear that the entire recruitment process was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 provisions of these rules and shall be fixed from the date of their appointment. Those appointed on ad hoc or urgent temporary basis, they shall not be considered after their regular selection. 26. The following provisos to the above main provision (i.e. Rule 27 [1]) were left intact: Provided that (1) That the seniority inter-se of the persons appointed to the Service before the commencement of the rules, and/or in process of integration of the Services of the pre-reorganisation of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) 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. This interpretation is, in this court s opinion, salutary. There may be various reasons why the ultimate appointment of one batch of recruits may be delayed: challenges to some part of the recruitment process (such as shortlisting, calling of candidates for interviews etc.), during which period, a subsequent recruitment may be undertaken. To forestall any apprehensions as to which of the appointees would be senior, and if those from the earlier process are appointed later, the proviso clarifies that candidates from the earlier process would rank senior, despite the main rule speaking of a date of appointment based seniority. The same logic would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 seniority) due to administrative reasons shall be clubbed along with the candidates who took the training in the appropriate batch for the purpose of regularising the inter se seniority provided such persons pass the examination at the end of the training in the first attempt. 5. In view of our conclusion that the posts fell vacant prior to July 1989 and the process of selection was completed and the Recruitment Board selected the candidates on 11-7-1989 the amendment that was introduced on 5-5-1990 and the further amendment of 1993 will have no application and it is the unamended Rule 303(a), as it stood on 11-7-1989, that would govern the case of inter se seniority. The analysis of the provisions of para 303 indicates that where candidates are required to undergo some training after being selected through Railway Service Commission or any other recruiting authority, their seniority i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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