Rajasthan High Court
Ghanshyam Meena Son Of Shri ... vs State Of Rajasthan on 14 August, 2023
Bench: Sudesh Bansal
[2023:RJ-JP:18357]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 7553/2023
Cinu Sebastian Daughter Of Shri P J Sebastian, Aged About 44
Years, Resident Of F-144, Ram Nagar Extension, Sodala, Jaipur
(Rajasthan).
----Petitioner
Versus
1. State Of Rajasthan, Through The Principal Secretary,
Energy Department, Secretariat, Jaipur.
2. Principal Secretary, Department Of Personnel,
Government Of Rajasthan, Secretariat, Jaipur.
3. Jaipur Vidyut Vitran Nigam Limited, Through Its Chairman
Cum Managing Director, Vidyut Bhawan, Jyoti Nagar,
Jaipur.
4. Secretary Administration, Jaipur Vidyut Vitran Nigam
Limited, Vidyut Bhawan, Jyoti Nagar, Jaipur.
5. Jai Kumar Singh S/o Sh. Suraj Mal, Working As Dd(Hr),
Rajasthan Rajya Urja Vikas Nigam Ltd.
6. Ghanshyam Meena S/o Kalu Ram Meena, Vill. Devanwara,
Post Gothara Via Bhandarej, Dausa - 303501.
----Respondents
Connected With
S.B. Civil Writ Petition No. 17206/2018
Jai Kumar Singh Son Of Shri Surajmal, Aged About 42 Years,
Resident Of 10 Ma 181, Indira Gandhi Nagar, Jagatpura, Jaipur.
----Petitioner
Versus
1. State Of Rajasthan Through Its Principal Secretary,
Energy Department, Rajasthan, Secretariat, Jaipur
2. Chairman Cum Managing Director, Jaipur Vidhyut Vitaran
Nigam Limited, Vidhyut Bhawan, Jyoti Nagar, Jaipur.
3. Secretary, Administration, Jaipur Vidhyut Vitaran Nigam
Limited, Vidhyut Bhawan, Jyoti Nagar, Jaipur
4. Cinu Sebastian D/o Sh. P.j. Sebastian, W/o Sh. Jyotish
Kalathy, Aged About 42 Years, R/o F-144, Ram Nagar,
Extension, New Sanganer Road, Sodala, Jaipur.
----Respondents
S.B. Civil Writ Petition No. 18236/2018
Ghanshyam Meena Son Of Shri Kaluram Meena, Aged About 36
Years, Resident Of Village Devan Bara, Post Gothara, Via
Bhandarej, District Dausa
----Petitioner
Versus
1. State Of Rajasthan, Through Its Principal Secretary,
Energy Department, Rajasthan, Secretariat, Jaipur
(D.B. SAW/1686/2019 and 1 more have been filed in this matter. Please refer the same for further orders)
[2023:RJ-JP:18357] (2 of 23) [CW-7553/2023]
2. Chairman Cum Managing Director, Jaipur Vidhyut Vitaran
Nigam Limited, Vidhyut Bhawan, Jyoti Nagar, Jaipur
3. Secretary, Administration, Jaipur Vidhyut Vitaran Nigam
Limited, Vidhyut Bhawan, Jyoti Nagar, Jaipur
----Respondents
For Petitioner(s) : Mr. Rajendra Prasad, Sr. Adv. with
Mr. Sunil Samdaria
Mr. Shobit Tiwari with
Mr. Rohit Tiwar,
Mr. Pushpendra Singh Tanwar
Dr. Saugath Roy
For Respondent(s) : Mr. R.N. Mathur, Sr. Adv. with
Mr. Prateek Mathur
Mr. S.S. Raghav, AAG
Mr. Ganesh Parihar, AAG with
Mr. Sameer Sharma
Mr. Ashok Bansal
Mr. David Mahla for
Mr. Sandeep Singh Shekhawat
HON'BLE MR. JUSTICE SUDESH BANSAL
Judgment
14/08/2023
1. In the instant writ petitions, three petitioners are claiming
their entitlement for promotion from the post of Personnel Officer
to Deputy Director (Personnel) in the Jaipur Vidyut Vitran Nigam
Limited (hereinafter for short "JVVNL"). Petitioner Cinu Sebastian,
is person of unreserved category, petitioner Jai Kumar Singh is
person of Scheduled Caste (SC) category and third petitioner
Ghanshyam Meena is person of Scheduled Tribes (ST) category. It
is an admitted case before this Court that two vacancies on the
promotional post arose in the year 2018-19 and one vacancy
arose in the year 2022-23. The clinching issue is that petitioners
Jai Kumar Singh and Ghanshaym Meena being member of SC/ST
reserve category are claiming promotion against two vacancies
arose in the year 2018-19, vis a vis the claim of petitioner Cinu
(D.B. SAW/1686/2019 and 1 more have been filed in this matter. Please refer the same for further orders)
[2023:RJ-JP:18357] (3 of 23) [CW-7553/2023]
Sebastian, for promotion qua vacancies of 2018-19 as per roster
point in L-shape roster. Hence, all three petitioners have preferred
separate writ petitions.
2. The factual matrix as culled out from the record is that the
cadre strength of the promotional post of Deputy Director
(Personnel) in JVVNL is five in number and vacancies of promotion
posts are to be filled by following 'L-shape' roster. All petitioners
are direct recruitee on the post of Personnel Officer vide common
order dated 06.04.2011. As per statutory regulations, it is
essential to acquire 5 years of experience (earlier 7 years) as
Personnel Officer to consider the candidature for promotion on the
post of Deputy Director (Personnel). It is not in dispute that the
date of joining of petitioners pursuant to common appointment
order dated 06.04.2011 is different, however, as per guidelines of
DOP dated 06.04.2002 for the purpose of promotion on the post of
Deputy Director (Personnel), their experience is to be counted
w.e.f. 01.04.2012. The current position of existing Personnel
Officers as on 01.04.2018, as per inter se seniority among them
according to their merit/date of joining, stands in following
manner:
"नाम प्रथम ननयियुकुक्ति ि दति दिनादिनांक
1. श्री ति दि्रीपीपेन 06.04.2011
2. श्रीमनमति स्रीनीनू सीपेबीपेसेस्टियन (Petitioner) 06.04.2011
3. श्री लललमति म मोहन शमशर्मा 06.04.2011
4. श्रीमनमति क कीनमतिर पाल्रीीवाल 06.04.2011
5. श्री जय कियुमार सससिंह (अनियुसीनूचिमति जामति्री) (Petitioner) 06.04.2011
6.श्री घनशाम म्रीमीणा (अनियुसीनूचिमति जनजानमति)(Petitioner) 06.04.2011"
3. It is not in dispute that against the sanction strength of 5
posts of Deputy Director (Personnel), the selection of eligible
(D.B. SAW/1686/2019 and 1 more have been filed in this matter. Please refer the same for further orders)
[2023:RJ-JP:18357] (4 of 23) [CW-7553/2023]
candidates from unreserved (UR), SC and ST category, is
considered for promotion following the L-shape roster points in
following manner:
Cadre Initial
Strength Recruitment
1. UR
2. UR
3. UR
4. UR
5. UR UR SC UR ST
6. 7. 8. 9.
Thus, up to six point, candidate from unreserved category
shall be considered and then on 7 th point, candidate from SC
category, then on 8th point unreserved category and on 9 th point,
the candidate of ST category shall be considered. After exhaustion
of nine points, again the roster points would be repeated in the
same manner.
4. It has been pointed out that following the ratio of judgment
of the Hon'ble Supreme Court in case of R.K. Sabharwal Vs.
State of Punjab [1995 (2) SCC 745], which was held to be
prospective in operation as clarified in Ajit Singh Vs. State of
Punjab [1999 (7) SCC 209], the Department of Personnel has
determined the cut-off date for applying the L-shape roster for
promotion, w.e.f. 20.11.1997, which is reflected in the circular of
DOP dated 24.06.2008, and on that day the existing members of
service/cadre will be treated against the initial recruitment roster
points in the year of their joining services/posts or seniority, then
firstly the initial roster points, for which category the roster point
(D.B. SAW/1686/2019 and 1 more have been filed in this matter. Please refer the same for further orders)
[2023:RJ-JP:18357] (5 of 23) [CW-7553/2023]
is ear-marked, shall be exhausted and a vacancy will be filled by
the category of which the roster point is ear-marked.
5. It has been pointed out that the Department of Personnel,
vide notification dated 17.01.2013 has promulgated Rajasthan
Various Services (Amendment) Rules, 2013 and Rule 4(B), dealing
with the consideration of roster point as prescribed in respect of
promotion matters, has been inserted with proviso which reads as
under:-
"4(B) In the event of non-availability of the
eligible and suitable candidates for promotion amongst
the Scheduled Castes and the Scheduled Tribes, as the
case may be, in a particular year, the vacancies so
reserved for them shall be carried forwarded until the
suitable Scheduled Castes and the Scheduled Tribes
candidate(s), as the case may be, are available. In any
circumstances no vacancy reserved for Scheduled
Castes and the Scheduled Tribes candidates shall be
filed by promotion from General category candidates.
In exceptional cases, where in the public interest the
Appointing Authority feels that it is necessary to fill up
the vacant reserved post(s) by promotion from the
General category candidates on urgent temporary
basis, the Appointing Authority may make a reference
to the Department of Personnel, they may fill up such
post(s) by promoting the General category candidate(s)
on urgent temporary basis clearly stating in the
promotion order that the General category candidate(s)
who are being promoted on urgent temporary basis
against the vacant post reserved for Scheduled Castes
or the Scheduled Tribes candidates, as the case may
be, shall have to vacate the post as and when the
candidate(s) of that category become available:
Provided that there shall be no carry forward of
the vacancies in posts or class/category/group of posts
in any cadre of Service to which promotions are made
on the basis of merit alone, under these rules."
6. It is also not in dispute that the notification of the DOP dated
17.01.2013 has been adopted by the JVVNL and initially, services
of petitioners were governed by the RSEB Officers (Recruitment,
Promotion and Seniority) Regulations, 1974, but later on such
regulations, have been amended and superseded by the Jaipur
(D.B. SAW/1686/2019 and 1 more have been filed in this matter. Please refer the same for further orders)
[2023:RJ-JP:18357] (6 of 23) [CW-7553/2023]
Vidyut Vitran Nigam Limited (Officers Services Regulations), 2017.
In the previous regulations 1974, promotion post of Deputy
Director (Personnel) was required to be filled by 100% selection
from Personnel Officer and 7 years experience as Personnel Officer
was essential but in the amended Regulations of 2017, came in
operation w.e.f. 24.11.2017, the criteria has been changed and
promotional posts of Deputy Director (Personnel) is required to be
filled 50% by way of seniority-cum-merit and 50% by merit from
the Personnel Officers, who have completed 5 years of service. All
petitioners have completed 5 years of service as Personnel Officer
(w.e.f. 01.04.2012), hence, are claiming their entitlement for
promotion on the post of Deputy Director (Personnel) against
vacancies of 2018-19, under the new Regulations, 2017.
7. It has been stated that in the year 2013-14, four vacancies
of the promotional post of Deputy Director (Personnel) arose and
as per the roster point of L-shape scheme, two posts were to be
filled from the unreserved category and one from SC category and
one from ST category, however, since in the year 2013-14, the
existing employees posted as Personnel Officer i.e. petitioner Jai
Kumar Singh, SC candidate, and petitioner Ghanshyam Meena, ST
candidate, could not acquire the essential eligibility experience of
seven years w.e.f. 01.04.2012, and, no other candidates from
SC/ST category was available in the Department, therefore, the
roster point for SC/ST were skipped and all four vacancies came to
be filled by candidates of unreserved category. Both posts, which
were to be filled as per roster points of SC and ST candidates were
not carried forward and the Rule 4(B), notified vide notification
dated 17.01.2013 was not followed, in view of proviso appended
(D.B. SAW/1686/2019 and 1 more have been filed in this matter. Please refer the same for further orders)
[2023:RJ-JP:18357] (7 of 23) [CW-7553/2023]
thereto and in the interest of administration, posts were filled from
the unreserved category candidates on merits.
8. Thereafter, two vacancies of promotional post arose in the
year 2018-19 and according to L-shape roster point, these two
posts fall consideration for candidate from unreserved category,
however, by that time i.e. up to 2018-19, petitioner Jai Kumar
Singh, SC candidate, as well as petitioner Ghanshyam Meena, ST
candidate, have completed the minimum eligibility of 5 years
experience as Personnel Officer as per amended Regulations,
2017, hence, both these petitioners led a claim for entitlement of
consideration of their candidature for promotion against such two
vacant posts. Both petitioners made a claim that two vacancies of
the promotional post on which the candidates of SC and ST were
required to be considered in the year 2013-14, have been skipped
and came to be filled by candidates belonging to unreserved
category, therefore, in view of Rule 4(B) of the amended Rules of
2013, as promulgated vide notification dated 17.01.2013,
candidature of petitioners be considered for promotion against two
posts fallen vacant in the year 2018-19. It has been contended
that the proviso appended to Rule 4(B) has no application because
the promotion post is not post to be filled only on the basis of
merit. Reliance on the notification of DOP dated 23.07.2003 has
been placed to contend that the post of Deputy Director
(Personnel) is first promotion post whereas as per circular, the
third promotion post shall be considered to be the merit post and
further in the amended Regulations, 2017, criteria of 100% by
way selection has been changed to 50% by way of seniority-cum-
merit and 50% by way of merit.
(D.B. SAW/1686/2019 and 1 more have been filed in this matter. Please refer the same for further orders)
[2023:RJ-JP:18357] (8 of 23) [CW-7553/2023]
9. Petitioner Jai Kumar Singh preferred SBCWP No.17206/2018
wherein the Coordinate Bench of this Court vide interim stay order
dated 06.08.2018, restrained respondents from proceeding for
promotion with reference to one post of category of petitioner.
Thereafter, petitioner Ghanshyam Meena preferred separate
SBCWP No.18236/2018 wherein vide interim order dated
16.08.2018, the Coordinate Bench of this Court, restrained
respondents from proceedings for promotion with reference to one
post of category of petitioner. It may be noticed here that though,
application under Article 226 (3) of the Constitution of India was
moved by respondents to vacate interim stay orders, however,
interim orders were not vacated and vide order dated 23.09.2019,
interim orders were ordered to be continued till disposal of writ
petitions.
10. Thereafter, in the year 2022-23, one additional post of
Deputy Director (Personnel) has also fallen vacant and when
respondent Department proceeded to convene the DPC to fill the
vacant post of promotion, at this juncture, petitioner Cinu
Sebastian has preferred the writ petition No.7553/2023, praying
not to convene the DPC to fill the vacant post. This Court vide
interim order dated 12.05.2023, restrained respondent- JVVNL not
to convene the DPC to fill the third vacant post.
It appears that interim order dated 12.05.2023 came to be
assailed by the JVVNL before the Division bench of this Court by way of
filing DBSAW No.615/2023: JVVNL Vs. Cinu Sebastian and vide order
dated 27.07.2023, without interfering with the stay order dated
12.05.2023, the Hon'ble Division Bench disposed of the appeal and it
was observed that the learned single Judge would make an effort to
(D.B. SAW/1686/2019 and 1 more have been filed in this matter. Please refer the same for further orders)
[2023:RJ-JP:18357] (9 of 23) [CW-7553/2023]
decide the writ petition as early as possible preferably within a period of
two weeks. Then, counsel for petitioner made a request to the Hon'ble
Chief Justice to tag and hear earlier two writ petitions bearing
No.17206/2018 & 18236/2018 with this writ petition, which was allowed
and under orders of the Hon'ble Chief Justice, all three writ petitions
have come up for hearing before this Court.
11. Heard learned Senior Counsels as well as learned counsels
appearing for respective parties at length and perused the record
of all three writ petitions, with assistance of respective counsels.
12. It appears to this Court that learned counsels for both sides
are ad idem to the issue that the promotional post of Deputy
Director (Personnel) in JVVNL were to be filled by applying the L-
shape roster points as detailed out hereinabove. As per
regulations of 1974, the promotional post of Deputy Director
(Personnel) was required to be filled from Personnel Officers
having seven years services on the post and 100% by way of
selection but Regulations of 1974 have been superseded and vide
order dated 24.11.2017, the JVVNL (Officers services
Regulations), 2017 have come in force with immediate effect. As
per regulations of 2017, the promotional post of Deputy Director
(Personnel) is to be filled, 50% by seniority-cum-merit and 50%
by merit from the Personnel Officer who have 5 years of
experience of service. Thus, the criteria of selection to the
promotion post has been amended in regulations of 2017. Since
petitioners have completed service of 5 years on the post of
Personnel Officer w.e.f. 01.04.2012, hence, it is not in dispute that
they have acquired the eligibility for consideration on promotional
(D.B. SAW/1686/2019 and 1 more have been filed in this matter. Please refer the same for further orders)
[2023:RJ-JP:18357] (10 of 23) [CW-7553/2023]
post of Deputy Director (Personnel), as the amended Regulations
of 2017 against vacancies arose in 2018-19 and thereafter.
13. Counsel for both parties admit that the notification of the
Government of Rajasthan (Amendment) Rules, 2013 has been
adopted by the JVVNL and Rule 4(B) as envisaged in the Rules of
2013 governs the scheme of promotion on the post of Deputy
Director (Personnel) as well.
14. According to learned Senior Counsel appearing for and on
behalf of petitioners Cinu Sebastian (a candidate of unreserved
category), by virtue of proviso appended to Rule 4(B), since the
promotion on the post of Deputy Director (Personnel) is based on
merit alone, the main provision of Rule 4(B) does not apply and
two vacancies of promotion post of Deputy Director (Personnel)
arose in the year 2018-19 cannot be filled by candidates from SC
category and ST category, merely on account of fact that because
two posts of such categories were skipped to be filled in the year
2013-14. Learned Senior Counsel vehemently argued that
applying the L-shape roster points, vacancies arose after 2013-14
of the promotional post should be continuously filled following the
L-shape roster points because vacancies of SC/ST roster points
which have been filled by unreserved category candidates in the
year 2013-14, were never carried forward. Learned Senior
Counsel pointed out that on the issue in controversy, the opinion
from the Department of Personnel was asked by the JVVNL vide
letter dated 25.05.2018 (Ann-7 in SBCWP No.7553/2023), which
was answered by the State Government vide letter dated
07.08.2018 (Ann-8) in following manner:
(D.B. SAW/1686/2019 and 1 more have been filed in this matter. Please refer the same for further orders)
[2023:RJ-JP:18357] (11 of 23) [CW-7553/2023]
"सचिीव (प्रशासन)
जयपियुर नीवघियुमति नीवमतिरमीण ननगम लल०
जयपियुर।
नीवषय:- पति दि मोन्ननमति म में आरक्षमीण कीपे सम्बन्ध म में माग्ध में मार्ग ति दिश्ध में मार्गन ।
सन्दर्ध में मार्ग:- आपका पात्र क्रमादिनांक जीपेप्रीपीड्री/ प्रशा /एि आर / सदिनांसा / 2 (नन
प) प्रीपे 1038 ि दति दिनादिनांक 25.05.2018
मह मोति दिय,
उपर मोुक्ति नीवषय एीवदिनां सन्दलररमति पत्र कीपे क्रम म में आप में आप दारा प्रीपेकषमति प्ररा प्रेषित प्रसाीव काकमरक
नीवराग क मो लरजीवाया गया था। जजस पर काकमरक नीवराग क की ि द टिपण्री ननयमानियुसार
है:-
"यि दति दि अनियुसीनूचिमति जानमति/ अनियुसीनूचिमति जनजानमति का क मोई य मोग्य एीवदिनां पात्र
अभ्यथ्यर्थी अपन्री स्वयदिनां क की ीवर्रीयमतिा (Own Merit) अथशर्मामति सीपेीवा म में प्रीवीपेश कीपे समय क की
ीवर्रीयमतिा कीपे आधार पर नबना आरक्षमीण का लार ललए ीवररष्ठ है मति मो सामान्य ीवग्ध में मार्ग क की
ररकुक्तियतियों कीपे नीवरुद्ध पति दि मोन्ननमति नकया जा सकमतिा है। पीनूीव्ध में मार्ग म में नकस्री नबसिंति दि ियु कीपे Skip ह मोनीपे का
क मोई आधार नहीं बनमतिा है । "
यह ि द टिपण्री काकमरक नीवराग क की आई पीड्री सदिनांंखा 842/DOP/42 ि दति दिनादिनांक
03.08.2018 कीपे अनियुसरमीण म में जार्री क की गय्री है।
रीवति दि्रीय
शासन उप सचिीव "
Learned Senior Counsel has referred the judgment of the
Hon'ble Supreme Court in case of R.K. Sabharwal (supra) and
suggested that since three vacancies of promotional post are
available, two against year 2018-19 and one against 2022-23,
therefore, by following the roster point of L-shape roster, against
the two vacancies of year 2018-19. Petitioner Jai Kumar Singh (SC
category) would also come in the line for consideration eligible
candidates from UR category shall be considered and then against
one vacancy of 2022-23 and so on for future vacancies. Thus, the
JVVNL be directed to fill the vacant promotional posts strictly by
following L-shape roster points and by following the notification
dated 17.01.2013, petitioner Cinu Sebastian be considered for
promotion against year 2018-19.
(D.B. SAW/1686/2019 and 1 more have been filed in this matter. Please refer the same for further orders)
[2023:RJ-JP:18357] (12 of 23) [CW-7553/2023]
15. Per contra, learned counsel appearing for and on behalf of
petitioner Jai Kumar Singh (SC category candidate) and
Ghanshyam Meena (ST category candidate) urged that the
promotion would be governed by main provision of Rule 4(B) of
the Rules of 2013 and not by the proviso appended thereto, firstly
for the reason that the promotional post of Deputy Director
(Personnel) may not be treated as to be filled on the basis of merit
alone in view of circular dated 23.07.2003 and secondly, after
commencement of regulations of 2017 w.e.f. 24.11.2017, the
criteria of selection on the promotional post has been changed to
that of 50% by Seniority-cum-merit and 50% by merit, hence, the
proviso appended to Rule 4(B) stands cease to operate for
vacancies of year 2018-19. Learned counsel has urged that
against two vacancies of promotion post arose in the year 2018-
19, firstly, candidates belonging to reserve category who have
completed the minimum eligibility criteria of having 5 years of
experience of working on the post of Personnel Officer, like
petitioners Jai Kumar Singh and Ghanshyam Meena should be
considered for promotion and then on the third vacancy of year
2022-23 and for the future vacancies, if any, candidates from
unreserved category may be considered according to the L-shape
roster points, and such method would be correct in the spirit of
judgments of the Apex Court, in order to maintain the ratio of
candidates between unreserved and reserved categories on the
promotion post of Deputy Director (Personnel) and that would be
in conformity to the aim and object of the L-shape roster as well.
Learned counsel has pointed out that the erstwhile opinion of DOP
dated 07.08.2018 (as extracted hereinabove) has been
(D.B. SAW/1686/2019 and 1 more have been filed in this matter. Please refer the same for further orders)
[2023:RJ-JP:18357] (13 of 23) [CW-7553/2023]
superseded and thereafter, taking into consideration of no
representation from reserve category to the promotional post of
Deputy Director (Personnel), the DOP has written to the
Department on 23.08.2022 as under:-
"पैरा 116-125 एन कीपे क्रम म में:-
ीवमति्ध में मार्गमान म में नकस्री र्री सदिनांीवग्ध में मार्ग म में सीवं सर्वोच्च पति दि जजसीपे य मोग्यमतिा कीपे आधार
पर ररीपे जानीपे का प्राीवधान है, उस पति दि क की ररकुक्ति क मो अगीपेकषमति नहीं नकयीपे जानीपे
का प्राीवधान सीपेीवा ननयम मो म में है लीपेनकन साथ ह्री यह स्पष्ट नकया जामतिा है क की
यि दति दि नकस्री ीवष्ध में मार्ग म में पात्र असधकार्री उपलब्ध न ह मोनीपे कीपे कारमीण आरसक्षमति शीपेमीण्री
क की ररकुक्ति क मो अनारसक्षमति शीपेमीण्री कीपे पात्र असधकार्री उपलब्ध ह मोनीपे पर आरसक्षमति
शीपेमीण्री कीपे र मोेस्टिर नबसिंति दि ियु / ररकुक्ति का इदिनांमतिजार नकयीपे नबना जैसीपे ह्री ररकुक्ति
(अनारसक्षमति ) उपलब्ध ह मोमति्री है मति मो पहलीपे आरसक्षमति शीपेमीण्री कीपे अभ्यथ्यर्थी कीपे मीपेरर टि
कीपे अनियुसार उपयियुुक्ति पाए जानीपे पर उसक की पति दि मोन्ननमति पर नीविार नकया जायीपे ,
मतिानक सदिनांीवग्ध में मार्ग म में आरक्षमीण एीवदिनां प्रनमतिननसधत्व का समानियुपामति बना रहीपे।
यह काकमरक नीवराग म में सक्षम रा प्रेषित प्रसर सीपे अनियुम मोि दति दिमति है ।
s/d
सदिनांयियुुक्ति शासन सचिीव
काकमरक (क-2) नीवराग"
In addition, attention of the Court has been invited to the
letter dated 30.12.2022, produced by the JVVNL with reply to
SBCWP No.7553/2023 as Annexure-R/2, which reads as under:-
"क्रमादिनांक :- प ० 4(25) ऊजशर्मा । 2012 पा टि्ध में मार्ग जयपियुर, ि दति दिनादिनांक 30.12.2022
प्रबदिनांध ननति दिीपेशक,
जयपियुर नीवघियुमति नीवमतिरमीण ननगम लल० जयपियुर।
नीवषय:- पति दि मोन्ननमति म में आरक्षमीण कीपे सम्बन्ध म में माग्ध में मार्ग ति दिश्ध में मार्गन बाबमति।
सन्दर्ध में मार्ग:- आपका पात्र क्रमादिनांक 1108 ि दति दिनादिनांक 24.05.2022 एीवदिनां इस नीवराग कीपे
समसदिनांंखक पत्र ि दति दिनादिनांक 05.12.2022 कीपे क्रम म में
मह मोति दिय,
उपर मोुक्ति नीवषयान्तग्ध में मार्गमति सन्दलररमति पत्र कीपे क्रम म में ननति दिीपेशानियुसार लीपेख है क की पति दि मोन्ननमति म में आरक्षमीण कीपे
सदिनांबदिनांध म में काकमरक नीवराग में आप दारा प्रति दित्त राय (प्रनमति सदिनांलग) एीवदिनां श्री जय कियुमार सससिंह में आप दारा मानन्रीय
उच्च न्यायालय म में ति दिायर कप टि्रीशन ीवाप्रीड़ लीपेनीपे क की शमति्ध में मार्ग पर ननयमानियुसार अनगम आीवशक
काय्ध में मार्गीवाह्री करनीपे का कष्ट करीपे :-
"नीवनीवध सीपेीवा ननयम मो म में जार्री सदिनांश मोसधमति असधसीनूिना ि दति दिनादिनांक 17.01.2013 कीपे
(D.B. SAW/1686/2019 and 1 more have been filed in this matter. Please refer the same for further orders)
[2023:RJ-JP:18357] (14 of 23) [CW-7553/2023]
बाति दि सीपेीवा ननयम मो म में प्राीवधान ह मो जानीपे कीपे कारन नकस्री र्री पररिसरा प्रेषित प्रसचथ म में आरसक्षमति
ीवग्ध में मार्ग कीपे नबन्द ियु क मो अनारसक्षमति ीवग्ध में मार्ग कीपे अभ्यथ्यर्थी सीपे नहीं ररा जा सकमतिा है , लीपेनकन पीनूीव्ध में मार्ग
म में पात्र अभ्यथ्यर्थी उपलब्ध नहीं ह मोनीपे कीपे कारमीण आरसक्षमति ीवग्ध में मार्ग कीपे नबसिंति दि ियु क मो अनारसक्षमति
ीवग्ध में मार्ग कीपे अब्यथ्यर्थी सीपे ररा जा िीनूका है मति मो जैसीपे ह्री आरसक्षमति ीवग्ध में मार्ग का पात्र अभ्यथ्यर्थी
उपलब्ध ह मो जामतिा है मति मो उसीपे रनीवष्य म में उपलब्ध ह मोनीपे ीवाल्री अनारसक्षमति ीवग्ध में मार्ग क की ररकुक्ति
कीपे नीवरुद्ध पति दि मोन्ननमति नकया जाएगा ।"
रीवति दि्रीय
s/d
सहायक शासन सचिीव"
16. It has further been pointed out that both the petitioners i.e.
Jai Kumar Singh and Ghanshyam Singh were appointed on the
post of Personnel Officer under the appointment order dated
06.04.2011 and petitioner Cinu Sebastain was also appointed on
the same date i.e. 06.04.2011 with them. According to
applicability of L-shape roster, roster point to fill the promotion
post from category of SC and ST candidates has been skipped in
the year 2013-14 and till date, no person from SC and ST
category came to be promoted on the post of Deputy Director
(Personnel), hence, in order to adequate representation of reserve
category on the promotional post, it would be just and proper to
consider both petitioners of reserve category against two
vacancies of year 2018-19. If petitioners belonging to reserve
category were not considered against vacancies in the year 2018-
19 despite of acquiring the eligibility, same would be in violation to
judgments of Hon'ble Supreme Court in case of R.K. Sabharwal
(supra) and other cases and the ratio of reservation, would be
disturbed and that would be against the Rule 4(B) as also
tantamounts to breach of the aim and object of L-shape roster as
well. Learned counsel has also placed reliance on the judgment of
Coordinate Bench passed in State of Rajasthan Vs. N.K. Verma
(D.B. SAW/1686/2019 and 1 more have been filed in this matter. Please refer the same for further orders)
[2023:RJ-JP:18357] (15 of 23) [CW-7553/2023]
SBCWP No.9604/2017 dated 13.11.2017, which has been said
to be affirmed by the Division Bench as well as by the Apex Court.
17. Learned counsel for JVVNL strenuously urged that the post of
Deputy Director (Personnel) is a selection post, required to be
filled on the basis of merit alone and that too by applying the L-
shape roster points.
This Court put a query to learned Senior Counsel for JVVNL
that the criteria of 100% selection post on merit as envisaged
under regulations of 1974 has been changed in regulations of
2017 and now after coming into force of Regulations 2017, the
promotional post of Deputy Director (Personnel) is to be filled 50%
by seniority-cum-merit and 50% by merit so what is its effect on
the applicability of proviso appended to Rule 4(B) of notification
dated 17.01.2013. Learned counsel replied that it would be in the
fitness of things that the Department of Personnel, Government of
Rajasthan should express its comments/opinions in this context
and as on date no such opinion is available on record in this
respect, however, counsel for JVVNL admits that vacancies of the
Deputy Director (Personnel) for year 2018-19 and 2022-23 shall
be filled by applying the L-shape roster and as per directions of
the State Government in accordance with law.
18. Learned Additional Advocate General appearing on behalf of
DOP, Government of Rajasthan, as well as Energy Department,
admits that in respect of promotion to the post of Deputy Director
(Personnel) in JVVNL, there are two divergent opinions have been
placed on record, therefore, one and final opinion, in accordance
with the prevailing rules, regulations, and as per the proposition of
law would be processed as per directions of this Court.
(D.B. SAW/1686/2019 and 1 more have been filed in this matter. Please refer the same for further orders)
[2023:RJ-JP:18357] (16 of 23) [CW-7553/2023]
19. Heard. Considered.
20. This Court finds that the factual scenario which emerge in
these writ petitions makes it clear that in the year 2013-14, out of
four available vacancies of the promotional post of Deputy Director
(Personnel) in JVVNL, as per the L-shape roster points, one post
was to be filled from candidates of SC category and one post was
to be filled from candidates of ST category, however, since both
candidates of SC/ST category i.e. petitioners Jai Kumar Singh (SC
candidate) and Ghanshyam Meena (ST candidate) could not
acquire the experience of 7 years as Personnel Officer w.e.f.
01.04.2012 at that point of time, and post was 100% selection
posts, hence, both roster points of reserve post were skipped and
candidates from unreserved category were considered on merits
to fill the vacancies, apparently by applying the proviso appended
to Rule 4(B), substituted by the Government of Rajasthan vide
notification dated 17.01.2013. The two vacancies of SC/ST were
not carried forward. Thereafter, two vacancies of promotional post
have arisen in the year 2018-19 and one vacancy has arisen in
year 2022-23, which are yet to be filled. In the meanwhile, the
criteria of promotion has been changed because erstwhile
Regulations of 1974 have been amended and stand superseded by
the Regulations of 2017. In light of the amended Regulations of
2017, the Personnel Officer having experience of 5 years of
service is eligible for promotion on the post of Deputy Director
(Personnel). All three petitioners who are direct appointee on the
post of Personnel Officer under the common appointment order
dated 06.04.2011 and their experience for the promotional post is
to be counted w.e.f. 01.04.2012 onwards as per the circular of
(D.B. SAW/1686/2019 and 1 more have been filed in this matter. Please refer the same for further orders)
[2023:RJ-JP:18357] (17 of 23) [CW-7553/2023]
DOP dated 06.04.2002, have completed experience of 5 years as
Personnel Officer and as such have gained eligibility for
consideration for the promotional post of Deputy Director
(Personnel) against vacancies arose in the 2018-19 and for
subsequent year of 2022-23. In the Regulations of 2017, the
criteria of 100% selection by way of merit, has also been changed
to that of 50% by way of Seniority-cum-merit and 50% by way of
merit. Thus, the amended Regulations of 2017 would be applicable
as a whole, to govern the promotion of petitioners against
vacancies arose thereafter in the year 2018-19 and subsequent
thereto.
21. In the celebrated judgment of the Apex Court by the
Constitutional Bench in case of R.K. Sabharwal (supra), it was
observed that in order to maintain the balance between the
reserve category and general category candidates, the percentage
of reservations has to be worked out in relation to number of
posts which form the cadre strength and the concept of vacancy
has no relevance in operating the percentage of reservations. The
ratio decidendi, expounded by the Apex Court in R.K. Sabharwal's
case was held to be applicable prospectively. This issue came to
rest in the subsequent judgment of the Apex Court in case of Ajit
Singh (supra) wherein while dealing with the issue of prospectivity
of the decision dated 10.02.1995 delivered in R.K. Sabharwal's
case, following observations were made in para 87. It would be
apposite to reproduce para 87 of the judgment as under:
"87. Before Sabharwal was decided on 10-2-
1995, it appears that in several services, the roster
was initially put in operation and promotions at all
the roster points were filled up. But the roster was
once again operated on future vacancies, even
though all the required reserved candidates were in
(D.B. SAW/1686/2019 and 1 more have been filed in this matter. Please refer the same for further orders)
[2023:RJ-JP:18357] (18 of 23) [CW-7553/2023]
position at the promotional level. It was not realised
that once the roster points were all filled, the roster
had served its purpose and fresh members of the
reserved classes could claim promotional posts only
if any promotional posts already filled by the
reserved candidates fell vacant. This misapplication
of the roster came to be removed for the first time
on 10-2-1995 when Sabharwal was decided.
Obviously, by that time several reserved candidates
had got promotion in excess of their quota because
of the wrong "reoperation" of the roster points. If
the law declared in Sabharwal were to be treated as
retroactive as is the normal position whenever the
law is declared by this Court, it would have resulted
in reversions of several officers of the reserved
classes as their promotions before 10-2-1995 by the
fresh operation of the roster as aforesaid were
wholly unjustified. This Court in Sabharwal therefore
tried to prevent such reversions and declared as
follows at the end of the judgment: R.K. Sabarwal
(supra)
"We, however, direct that the interpretation given by
us to the working of the roster and our findings on
this point shall be operative prospectively.
(emphasis supplied)
22. The issuance of notification dated 17.01.2013 by the
Department of Personnel, Government of Rajasthan wherein the
Rajasthan Various Services (Amendment) Rules, 2013 were
promulgated and Rule 4(B) in respect of event of non-availability
of the eligible and suitable candidates for promotion amongst the
Scheduled Caste and Scheduled Tribes category was substituted.
Perusal of main provision of Rule 4(B), as extracted hereinabove,
clarify the intention of the State Government to maintain the ratio
of reservations on the promotional post between the unreserved
category and reserve category candidates as also to achieve the
object of adequate representation of reserve category candidates
on the promotional post. However, by virtue of proviso appended
to the main rule, it was made clear that where promotions are
made on the basis of merit alone, there shall be no carry forward
(D.B. SAW/1686/2019 and 1 more have been filed in this matter. Please refer the same for further orders)
[2023:RJ-JP:18357] (19 of 23) [CW-7553/2023]
of vacancies in posts or class/category/group of posts in any cadre
of service.
23. This Court finds that after coming into force of Regulations of
2017 w.e.f. 24.11.2017, when the criteria of selection on the
promotional post of Deputy Director (Personnel), 100% by way of
merit has been changed to 50% by way of Seniority-cum-merit
and 50% by way of merit, the applicability of the proviso
appended to Rule 4(B) in its strict sense stands affected.
Obviously on the vacant promotional posts, the criteria of
selection would be followed as envisaged under Regulations of
2017. Therefore, it is within powers and jurisdiction of the JVVNL
to adopt the manner of considering the candidature of eligible
candidates for promotion on the vacant posts of Deputy Director
(Personnel) that in what manner merit would be analyzed and
selection would be made.
24. This Court finds that in order to apply the roster points for
promotion on the promotional post of Deputy Director (Personnel)
according to L-shape roster points, the Department is required to
take the date 20.11.1997 as cut-off date in light of the circular of
DOP dated 24.06.2008 and then after considering the aim and
object of applicability of L-shape roster, providing reservations to
candidates of SC at the 7th roster point and reservation to
candidate of ST at the 9th roster point coupled with the effect of
notification dated 17.01.2013 issued by the DOP, Government of
Rajasthan, as adopted by the JVVNL as well as effect of Regulation
of 2017 came in operation w.e.f. 24.11.2017 amending the criteria
of selection of promotional post, the exercise has to be done at
the level of JVVNL. Though, it is open for the JVVNL to get
(D.B. SAW/1686/2019 and 1 more have been filed in this matter. Please refer the same for further orders)
[2023:RJ-JP:18357] (20 of 23) [CW-7553/2023]
clarification, from the Department of Personnel, Government of
Rajasthan to achieve the object of L-shape roster and for adequate
representation of reserve category candidates on the promotional
post of Deputy Director (Personnel).
It would be apropos to observe here that consideration of
roster points according to L-shape roster up to the year 2013-14,
when four vacancies of the post of Deputy Director (Personnel)
became available and out of which one post was to be considered
from the SC candidate and one post was to be considered from ST
candidate, however, both roster points of reserve category
candidates were skipped, the JVVNL hopefully have followed the L-
shape roster points and to that extent, both parties have not
raised any dispute, however, in view of undisputed factual scenario
that none of candidates from reserve category has been promoted
on the promotional post of Deputy Director (Personnel), it is
desirable to keep in mind the ratio to be maintained between
reserve category and unreserved category candidates, the JVVNL
is required to fill the vacancies for year 2018-19 and 2022-23
accordingly, from the eligible candidates of reserved and
unreserved category.
25. As far as clarification extended by the Government of
Rajasthan, Energy Department vide letter dated 07.08.2018 as
extracted hereinabove and on which counsel for petitioner Cinu
Sebastian has placed reliance, this nowhere deals with the change
in criteria of promotion as envisaged under Regulations of 2017 so
also such clarification may not be accepted as final. Moreso, in
view of subsequent clarifications, given by the Department of
Personnel on the same point on 23.08.2022 and as reproduced in
(D.B. SAW/1686/2019 and 1 more have been filed in this matter. Please refer the same for further orders)
[2023:RJ-JP:18357] (21 of 23) [CW-7553/2023]
the letter of Energy Department dated 30.12.2022 which have
also been extracted hereinabove. However, clarifications, referred
hereinabove obviously travel in two different directions, hence, it
is necessary for the State to give a clear-cut and final view to be
followed by the JVVNL.
26. This Court is of the opinion that adherence to the L-shape
roster points should not be taken that the State is not required to
consider the point of adequate representation of the reserve
category candidates on the promotional post, so that the ratio of
reservations may be kept in balance. The applicability of L-shape
roster points to consider the candidates from unreserved and
reserved category candidates, against post of Deputy Director
(Personnel), for the year 2018-19 and 2022-23, has to be
considered vis-a-vis the object sought to be achieved for adequate
representation of reserve category candidates on the promotional
post of Deputy Director (Personnel). It is for the State to strike a
balance and at the same time ratio decidendi as expounded by the
Supreme Court in R.K. Sabharwal's case and provisions of Article
14, 16(4), 16(4) (A) and 16(4) (B) and 335 of constitution should
not be ignored. If a strict and literal adherence to the L-shape
roster points are applied for the existing vacancies in question,
forgetting the spirit of the decision of the Constitution Bench in
R.K. Sabharwal, coupled with the Rule 4(B) as notified vide
notification dated 17.01.2013 and Regulations of 2017 of JVVNL,
as well the relevant provisions of the Constitution, the candidates
of ST category would not be able to represent the promotional
post of Deputy Director Personnel, against the existing three
vacancies.
(D.B. SAW/1686/2019 and 1 more have been filed in this matter. Please refer the same for further orders)
[2023:RJ-JP:18357] (22 of 23) [CW-7553/2023]
27. Therefore as a result, this Court directs the JVVNL to ignore
and circumvent both divergent comments made by the DOP and
proceed to convene the DPC, in order to fill the three vacancies of
promotional post of Deputy Director Personnel by maintaining the
balance between applicability of L-shape roster points vis-a-vis the
object of State sought to be achieved for adequate representation
of reserve category candidates of SC/ST in proportionate ratio of
reservation on the promotional posts. It would be in the fitness of
things as also in the interest of both parties that a fresh
clarification be issued by the Government of Rajasthan,
Department of Personnel in order to clarify applicability of L-shape
roster points by the JVVNL to fill the vacant promotional post of
Deputy Director (Personnel). Needless to observe that while
issuing such clarification, the Department of Personnel would
adhere to the ratio decidendi as expounded by the Apex Court in
R.K. Sabharwal's case and subsequent judgments on the similar
lines to maintain the balance between the reserve category and
unreserved category candidates to fill the promotional posts,
keeping in mind that the object of adequate representation of
SC/ST candidates on promotional post be fulfilled. It is also hereby
observed that the Department of Personnel, forthwith will make
the clarification on the issue in question to enable the JVVNL to
proceed with process of promotion to fill in the vacant posts
expeditiously as early as possible, in the interest of
administration, for which the Learned Additional Advocate General
for the DOP, Government of Rajasthan, is agreeable.
28. Undisputedly, the DPC by the JVVNL has not convened yet,
apparently for the reason that in respect of two vacancies, arose
(D.B. SAW/1686/2019 and 1 more have been filed in this matter. Please refer the same for further orders)
[2023:RJ-JP:18357] (23 of 23) [CW-7553/2023]
against the year 2018-19 further promotion is stayed by this Court
in SBCWP No.17206/2018 and 18236/2018 and in respect of one
vacancy arose in the year 2022-23, the convening of DPC has
been stayed by this Court in SBCWP No7553/2023. Therefore, this
Court deems it just and proper to vacate stay orders operating in
all three writ petitions and to allow the JVVNL to proceed to fill the
available vacant posts of Deputy Director (Personnel) in the
manner discussed/ observed by this Court hereinabove.
29. It is expected that the whole exercise of promotion at the
level of respondents would be completed within a period of three
months to fill the three existing vacancies for the post of Deputy
Director (Personnel). All pending application(s), if any, also stand
disposed of.
30. Accordingly, all three writ petitions stand disposed of.
31. Copy of order be placed in each file.
(SUDESH BANSAL),J
NITIN/172-174
(D.B. SAW/1686/2019 and 1 more have been filed in this matter. Please refer the same for further orders)
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