Pradeep Nandrajog,CJ
1. The appellants of SAW No.852/2018 were respondents 4 and 5 in S.B.Civil Writ Petition No.6530/2016 filed by Ganga Vishan Gujarati and four
others, which has been allowed vide impugned judgment dated 19.4.2018 challenged in SAW No.852/2018. The appellants of SAW No.850 and SAW
No.917/2018 have been granted leave to appeal by this Court to challenge the same judgment dated 19.4.2018.
2. Whether Patwaris appointed through Limited Departmental Competitive Examination under Rule 284(ii) of the Rajasthan Land Revenue (Land
Records) Rules, 1957 (hereinafter referred to as the 1957 Rules), to the post of Inspector Land Records, are entitled to seniority from the date of such
appointment or from the year when the vacancies against which they were promoted became available is the controversy involved in the above
captioned intra-court appeals.
3. The facts as pleaded by the parties would reveal that the Revenue (Land Records) Department issued an advertisement on 17.6.2011 to fill up 93
vacancies to the post of Inspector Land Records by way of Limited Departmental Competitive Examination from amongst the serving Patwaris of the
Revenue (Land Records) Department. The number of posts to be filled was enhanced to 155 vide subsequent notification dated 28.1.2013. The result
of the examination was declared on 16.5.2013 wherein the writ petitioners were selected. By a posting order dated 31.3.2014 the writ petitioners were
promoted as Inspector Land Records.
4. On 7.11.2013, a provisional seniority list of Inspector Land Records as on 1.4.2012, was published in terms of Rule 171-A of the 1957 Rules, in
which names of the writ petitioners were not included. Vide notification dated 8.10.2014, Sub-rule (2) of Rule 171-A was amended, altering the
criteria for determining seniority of Inspector Land Records from the then ‘the date of continuous officiation’ to ‘the recruitment year of
promotion’. Post amendment, the Revenue Board issued communication dated 12.3.2015 seeking details of such Inspector Land Records who
had been promoted in DPC years 2009-10 or before and whose names were not included in the seniority list as on 1.4.2010. Later, orders for
promotion of eligible Inspector Land Records were issued promoting them to the next higher post of Nayab Tehsildar on ad-hoc basis. This gave
birth to the grievance of the writ petitioners and a representation dated 4.9.2015 was made to the Revenue Board, claiming that since the Inspector
Land Records promoted under Rule 284(ii) of the 1957 Rules, have been accorded seniority from their respective vacancies years, the Patwaris
promoted as Inspector Land Records through departmental competitive examination under Rule 284(ii) of the 1957 Rules are also entitled to seniority
with reference to the year when the vacancies against which they were selected had accrued. On 12.5.2016 the State issued a final seniority list of
Inspector Land Records wherein names of the writ petitioners were not included.
5. In the writ petitions a challenge was made to the final seniority list dated 12.5.2016 pleading that since recruitment through departmental competitive
examination had been made for the vacancies which accrued in the years 2008-09, 2009-10 and 2010-11, the petitioners selected against these
vacancies were entitled to seniority from the respective vacancy years. It was submitted that Rule 347A(8) incorporates Rajasthan Subordinate
Services (Recruitment and other Services Conditions) Rules, 1960; since replaced by Rajasthan Subordinate Services (Recruitment and other Service
Conditions) Rules, 2001, which by Rule 9 of the 1960 Rules and Rule 13 of the 2001 Rules, require determination of actual number of vacancies
occurring during a financial year, as of 1st day of April of each year. It was also submitted that by application of Rule 347B of the 1957 Rules, the
Rajasthan Services (Recruitment by Promotion Against Vacancies of Earlier Years) Rules, 1972 also apply to the service. It was submitted thatÂ
1972 Rules provided that where any vacancy existed in the promotion quota in a year earlier than that in which an appointment by promotion was
made on the recommendation of the Departmental Promotion Committee, the Appointing Authority ought to have modified the appointment order by
specifying the year in which such promotion would be deemed to have been made. It was further submitted that in the present case, out of the total
155 vacancies advertised and filled, 67 vacancies had arisen in the year 2008-09, 26 in the year 2009-10 and 62 in the year 201011. Therefore, the
Appointing Authority was obliged to specify in the promotion order, the year in which the respective vacancies occupied by the petitioners had arisen
and also to accord them the seniority accordingly.
6. Per contra, the stand of the State was that the candidates recruited through departmental competitive examination could not claim seniority anterior
from the date of their actual appointment on the premise that they were selected against the vacancies of earlier years. It was also submitted that
Rule 347A (8) permits applicability only of any general order or amendment issued in the 1960 Rules by the Department of Personnel and not the
entire body of the Rules. The 1972 Rules have no application and in the absence of any provision in the 1957 Rules which govern the field, to accord
seniority with reference to the vacancy year, the writ petitioners were not entitled to any retrospective seniority. It was further submitted that
recruitment through departmental competitive examination could not in strict sense be termed as promotion. Therefore, the concept of seniority with
reference to the date of availability of vacancy was even otherwise inapplicable. For record, we note that stand of the appellants before us was the
same as was taken by the State before the learned Single Judge.
7. The learned Single Judge in the impugned judgment before us rejected the submission by the State that the recruitment through departmental
competitive examination cannot be termed as promotion and thus has held it to be akin to direct recruitment. Relying upon Rule 347A and 347B, the
learned Single Judge has held that the 1960 Rules and 2001 Rules were applicable. The learned Single Judge has relied upon Rule 13 (3) and (4) of the
2001 Rules and has held that these cast a duty upon the Department to determine vacancies on year-wise basis and also to determine the
persons who would have been eligible for promotion against such vacancies. The learned Single Judge has further held that the provisions of the 1972
Rules envisaged a situation where the DPC meets to consider for promotion against vacancies of earlier years and concluded that non-holding of
departmental competitive examination against vacancies accruing in such earlier years will also result in the same situation for the Patwaris selected
through this mode. The learned Single Judge thus held that the 1972 Rules have been introduced to neutralize such fortuitous circumstances so as to
ensure that those promoted against the vacancies of previous year are not deprived of their due and therefore those appointed through competitive
examination meant for granting accelerated promotion would not stand on a worse footing but for non-holding of the examination in the years when
the vacancies had arisen. The learned Single Judge has further held that the spirit of the provisions of the 1972 Rules therefore deserves to be applied
in the present case along with 1960 Rules and the 2001 Rules. Having held thus, the learned Single Judge allowed the writ petitions, set aside the
action of the State in not according the writ petitioners seniority with reference to the year in which the vacancies had arisen and has issued a
direction declaring that those selected/appointed under Rule 284(ii) by way of competitive examination are entitled to be promoted against the
vacancies of the respective years, subject to their eligibility.
8. The 1957 Rules framed in exercise of the power conferred by Sub-section (2) of Section 261 of the Rajasthan Land Revenue Act, 1956
provide for the recruitment and other conditions of service of various posts including Patwari, Inspector Land Records and Office Qanungo etc.
in the Revenue Department. Recruitment and conditions of service to the posts of Inspector Land Records, relevant for the present purpose are
dealt with in Part II of these Rules. Rule 171 provides for appointment of Inspector Land Records in accordance with the procedure laid down in
Rules 284 and 301. Rules 284 to 301 provide the qualifications and complete procedure for selection of candidates to the posts of Inspector Land
Records. Thus, it shall be profitable to reproduce Rule 171 and Rules 284 to 301 of the 1957 Rules which are as under:-
“171. Appointment. As per procedure laid down in rules 284 and 301 of these rules the [Commissioner of the Division] shall select candidates for
training of Inspector Land Records. The [Commissioner of the Division] shall maintain a list of those candidates who have received training and
obtained diploma when there is a substantive vacancy in the cadre of Inspector Land Records or a vacancy which is likely to become substantive, the
Collector shall, for the purpose, send a requisition to the [Commissioner of the Division]. The [Commissioner of the Division] shall then make allotment
of the senior most person/them as Inspector Land Records. xxxxx
284. Selection of candidates for admission to the school in the respective cadre strength shall be made:â€
(i) by promotion of Patwaries of the Revenue and Land RecordsDepartments, on the basis of seniority-cum-merit, for 8O% of the vacancies;
(ii) on the basis of a competitive examination which shall be restrictedto Serving Patwaries of Revenue (Land Records) Department who fulfill the
conditions of eligibility as given in Rules 286, for 20% of the vacancies. Provided that the minimum age limit for such patwaries shall be 45 years.
285. Recruitment from among the serving Patwaries of Revenue(LR) Department.-The Board of Revenue will notify in the local newspapers and in
such other manner as it deem fit the actual number of vacancies that will be filled up by Recruitment from among the serving patwaries of Revenue
(Land Records) Department and the number that will be allotted to the scheduled castes and tribes out of these vacancies.
286. Qualifications.-Candidates intending to apply for selection must possess the following qualification:-
(i) That he is a patwari of Revenue (Land Records) Departmentand has five years of service experience as patwari;
(ii) That he has passed Secondary Examination or any otherequivalent examination recognised by Government;
(iii) That he is not above 45 years of age on the first day ofJanuary, next following the last date fixed for receipt of application for admission to the
said school;
(iv)That he is patwar diploma holder or he is exempted from this diploma as per rules.
287. Competitive Examination.- A competitive examination shall be held by the Board of Revenue for recruitment from amongst the serving patwaries
of the Revenue (Land Records) Department for admission to the training school in the manner laid down in the following rules.
xxxxxx
293. Board of Revenue shall prepare a list of the candidates and names of all candidates who have secured the qualifying marks prescribed under
Rules 292 arranged in the order of merit on the basis of the aggregate marks obtained by each candidate and the Board of Revenue shall make
admissions to the School out of the list in the same order, in accordance with the number of vacancies available.
xxxxxx
297. On going through the Examination of the Training success fully, the candidates will be granted Diploma by the Principal of the Training School.
298.(i) The Board of Revenue shall maintain a list of all successful candidates (diploma holders) in order of seniority based or aggregate marks
obtained by them in the Examination of Training.
(ii) The recruitment on the post of Inspector Land Records OfficeQanungo and Assistant Qanungo in districts will be made by the Collectors in
accordance with the provisions contained in Rule 171.
(iii) The Diploma holders shall not be eligible for appointmentimmediately on getting Qanungo-ship Diploma but they shall be eligible for appointment as
and when vacancies occur on the basis of their seniority.
299. Completion of probation.-On completion of one year of probation the I.L. Rs/Office Qanungo and Assistant Sadar Qanungo shall be eligible for
being confirmed. Promotees of the same year shall however rank senior to the direct recruits from serving patwaries of the same year. xxxxxx
301. Submission of applications.-(1) For the purpose of selection of candidates by promotion as provided in subrule (1) of Rule 284, the [Divisional
Commissioner] shall prepare an interlaced seniority list of all the Patwaries of the Revenue and Land Records Departments serving in the [Division]
irrespective of the district cadre to which they belong.
(2) Such number of the Patwaries shall be considered for the preparation of the interlaced seniority list as are within the zone of consideration for
promotion on the post of Inspector, Land Records, [the selection of candidates for promotion shall be made by a committee consisting of the
following:-
1. Divisional Commissioner Chairman
2. District Collector of the Divisional Headquarter Member
3. Addl. Divisional Commissioner Member-Secretary]
Explanation.- The ‘zone of consideration’ for the purpose of this rule shall mean five times the number of existing and anticipated vacancies in
the cadre of Inspector, Land Records to be filled by promotion in the course of the calender year.
(3) On the basis of the interlaced seniority list so prepared the[Divisional Commissioner] shall select persons on the basis of senioritycum-merit.
(4) Candidates so selected will be admitted to the Qanungo TrainingSchool for training:
Provided that the Patwaries who attain the age of 45 years on the 1st day of January next following the year of selection shall be exempted from the
training and shall be eligible for appointment as Kanoongo or Inspector, Land Records without such training.â€
9. A reading of the Rules in Part-II as above, depicts that Rule 284 requires the Commissioner to make selection of candidates for training of
Inspector (Land Records) from amongst the Patwaris. Rule 284(i) requires 80% of the vacancies to be filled by promotion on seniority-cum-merit
and the remaining 20% are to be filled under sub-rule (ii) through a competitive examination restricted to the serving Patwaris who have attained the
age of 45 years and have served the Revenue (Land Records) Department for 5 years besides the other qualifications prescribed under Rule 286. The
competitive examination is held under Rule 287 in the manner prescribed under Rule 288 to 292. Candidates selected under Rule 284 are granted
Diploma under Rule 297, on successful completion of training and Rule 298 requires the Board of Revenue to maintain a list of all such successful
candidates in the order of seniority based on the aggregate marks obtained by them in such examination.
10. It was submitted on behalf of the State that the provision made under Rule 298 would depict that the selection to 20% of the vacancies is by way
of direct recruitment and merely because the field of selection is restricted to serving Patwaris, would not render it any less than direct recruitment as
this would amount only a condition of eligibility which the State is competent to prescribe. Reliance is also placed on Rule 299 which provides that
on completion of the period of probation prescribed, Inspector (Land Records) will be eligible for confirmation and also that the promotees of the same
year shall rank senior to the direct recruits. It is urged that the use of words “direct recruit†in Rule 299 essentially refers to recruitment to 20%
of the vacancies under Rule 284(ii) and therefore the recruitment thereunder is nothing but by way of direct recruitment.
11. Learned Single Judge while dealing with these submission, traced the history of amendments made in the 1957 Rules and noticed that by an
amendment made in the year 1977, the post of Inspector (Land Records) was to be filled to the extent of 50% by direct recruitment and 50% by
selection from amongst the Patwaris on the basis of seniority cum merit. The Rules were further amended in the year 1981 now providing for
selection to the extent of 65% by promotion; 20% by direct recruitment and remaining 15% by competitive examination restricted to the serving
Patwaris. Later, in the year 1985 the Rules were further amended to now provide for 80% by promotion on the basis of seniority-cum-merit and
remaining 20% by competitive examination restricted to serving Patwaris of the department. By this amendment itself, Rule 299 was also amended
to now read as under:
“299. Completion of probation-On completion of one year of probation, the I.L. RS/Office Qanungos and Assistant Sadar Qanungo shall be
eligible for being confirmed. Promotees of the same year will however rank senior to the direct recruits from serving Patwaris of the same year.â€
Learned Single Judge therefore held that merely because the phrase “direct recruits†which existed in Rule 299 at the time when direct
recruitment was also prescribed as one of the methods of recruitment, has been retained in Rule 299 as amended, has no relevance whatsoever and
will not make selections made under Rule 284(ii) as by way of direct recruitment. Learned Single Judge noticed the two different sources from
which recruitment to the post of Inspector (Land Records) are provided under Rule 284 and rejected the contention that recruitment by way of
competitive examination amounts to direct recruitment and not by way of promotion holding as follows:
“So far as the principle issue raised regarding the nature of selection of the petitioners based on competitive examination is concerned, a perusal of
the entire scheme as noticed hereinbefore would reveal that initially alongwith providing promotion to the serving Patwaris, the major portion of the
vacancies were being filled-up in by direct recruitment, however, as noticed, the position kept on changing and ultimately while the selection based on
promotion based on senioritycum-merit has been enhanced to 80%, the selection through competitive examination restricted to serving Patwaris has
been provided for 20% of the vacancies. The above two sources have been provided under Rule 284, which are essentially two modes of selection
while the 80% posts are to be filled-up in by regular promotions, 20% are to be filled up in by accelerated promotions and merely because the said
accelerated promotion provides for competitive examination for entry to the training school, cannot and does not change the status of such selection.Â
Though the streams are different i.e. (I) regular, and (ii) accelerated, the result is the same i.e. the promotion. The very fact that at one stage there
were three sources for selection/appointment, which included the direct recruitment, regular promotion and accelerated promotion is sufficient to come
to a conclusion that selection through competitive examination cannot be equated with direct recruitment and as such the submissions made in this
regard on behalf of the respondents cannot be countenanced.â€
12. The concept of direct recruitment is well known in law and involves recruitment open to all holding the qualifications prescribed under the Rules.Â
An examination restricted only to the feeder category prescribed for promotion by seniority-cum-merit, would therefore essentially be a case of
promotion by way of selection or the accelerated promotion as learned Single Judge has rightly put and not direct recruitment. We therefore do not
find any merit in the contention that merely because Rule 299 use the phrase “direct recruit†or Rule 298 enjoins upon the Board to maintain a list
of the successful candidates in the order of seniority based on aggregate marks obtained by them in the examination, that by itself would make the
selection in the present case, by way of direct recruitment.
13. Having held thus, the question for our consideration remains as to how the candidates selection under Rule 284(ii) are to be interlaced in seniority
with those promoted under Rule 284(i) of the 1957 Rules.
14. Supreme Court in 1994(4) SCC 474 Dr. N.D. Mitra & Anr. Vs. Union of India & Ors., has held that in the absence of any statutory rules or
executive instructions to the contrary, inter-se seniority has to be fixed on the basis of continuous length of service.
15. In 1996(2) SCC 168 Union of India vs. S.S. Uppal, the Court observed that seniority in a cadre is to be determined in terms of the seniority rule
provided in the recruitment rules in force.
16. Again in 2005(10) SCC 670 Kulwant Kumar Sood vs. State of H.P., the Court observed that seniority of an employee is always required to be
determined in a cadre on the basis of relevant principles enunciated either in the rules for recruitment or in the absence of a rule, by an administrative
instruction which remains operative in the field.
17. Rule 171-A of the 1957 Rules prescribes the method of determination of seniority of Inspector (Land Records). Rule 171A as originally stood,
reads as under:
“171-A. Seniority- (1) The seniority of Inspectors, Land Record working in the various districts will be interlaced by the Board of Revenue and the
Secretary (Land Records) Revenue Board will maintain as up-todate list of seniority of the Inspectors. Land Records working in the Department.
(2) The seniority of the Inspector, Land Records will be determined from the date of their continuous officiation on the post of Inspector, Land
Records in the Land Records Department and/or Inspector in the Settlement/Consolidation/Colonization Department or any other equivalent post in
such Departments provided such officiation was not fortuitous or ad-hoc in nature and subject to the condition that they possess a diploma of having
passed the Girdawar Qanungo Examination.â€
As noticed by us in the forgoing paragraphs, by notification dated 08.10.2014, sub-rule (2) of Rule 171-A was amended. Post amendment, sub-rule
(2) of Rule 171-A reads as under:
“(2) The seniority of the Inspector, Land Records shall be determined on the basis of recruitment year of promotion on the post of Inspector, Land
Records in the Land Records department and Inspector in the Settlement Department, Colonisation Department and Consolidation Department:
Provided that the inter-se seniority of Inspectors promoted in same recruitment year shall be determined on the basis of regular date of appointment on
the post of Patwari. If the date of appointment of post of Patwari is same the seniority shall be determined on the basis of the date of birth. The
employee whose date of birth stands first shall deemed to be senior. In case of same appointment date and the same date of birth, the order of the
English alphabet of the name of employee shall be criterion for determination of seniority.â€
18. A reading of the seniority rule as above, would reveal that the seniority of Inspector (Land Records) is to be determined on the basis of
recruitment year of promotion on the post. Proviso to sub-rule (2) however incorporates the principle of length of service in case of determination of
inter-se seniority of Inspectors promoted in the same recruitment year. Thus in case of promotion in a recruitment year, seniority in the feeder
cadre is retained. The other rule which may relate to inter-se seniority, can be traced in Rule 299 which recognizes the principle that amongst the
promotees and direct recruits of the same (recruitment) year, promotees shall rank senior to the direct recruits. On a plain grammatical reading of
the seniority rule contained in the recruitment rules, it is clear that seniority of Inspector (Land Records) is to be determined on basis of recruitment
year of promotion in the post and application of the continuous officiation rule, is consciously omitted.
19. Supreme Court in 1994 Supp. (2) SCC 490 Harish Candra Ram vs. Mukhram Dubey, has defined the term “recruitment year†as the year in
which recruitment takes place but not each successive years in which the vacancies exist. It is thus clear from the seniority rule that seniority to the
post of Inspector (Land Records) is to be determined on the basis of the year in which recruitment takes place and not the years in which the vacancy
for such recruitment arose. In the present case, it is an admitted position that the advertisement for recruitment was issued on 28.01.2013, the result
was declared on 16.05.2013 and the promotion order were issued on 31.03.2014. The recruitment rules governing the field in the present case
specifically provide the method and manner in which seniority in the grade of Inspector (Land Records) has to be determined. Thus the year in
which the vacancies for which such recruitment was held, arose would be irrelevant for the purpose of determination of seniority in terms of sub-rule
(2) of Rule 171-A.
20. Learned Single Judge has however relied upon the 1960 Rules since replaced by 2001 Rules as also the 1972 Rules, to conclude that it was
incumbent upon the appointing authority to not only determine the vacancies yearwise but also to ensure that those promoted against the vacancies of
previous year are not deprived of their due viz. Seniority of the years when such vacancies had arisen.
21. Part V-A of the 1957 Rules provides for application of other service Rules. Rule 347-A and 347-B contained in this part, relevant for the
present purpose read as under:
“347A. Regulation of pay, Leave, allowances. Pension etc.Except as otherwise provided in these rules, the pay allowances pension, leave and
other conditions of service of the Patwaris, Inspectors Land Records and Sadar Qanungos shall be regulated by the following rules as amended from
time to time:
1. The Rajasthan Travelling Allowances Rules, 1971:
2. The Rajasthan Civil Services (Unification of Pay Scales) Rules, 1950.
3. The Rajasthan Civil Services (Rationalization of Pay Scales) Rules 1956:
4. The Rajasthan Service Rules, 1951:
5. The Rajasthan Civil Services (Revised pay) Rules, 1961:
6. The Rajasthan Civil Services (New Pay) Rules, 1968:
7. Any other rules prescribing general conditions of service made by the appropriate authority under the proviso to Article 309 of the Constitution of
India and for the time being in force.
8. Any other general order or amendment in the Rajasthan Subordinate Services (Recruitment and other Services Conditions) Rules 1960, issued by
the Department of Personnel shall mutatis mutandis be applicable unless any order to the contrary is issued by the Government.
 347-B.  Application of certain miscellaneous Rules.
-Notwithstanding anything contained in these rules, the following rules shall apply to the recruitment and other conditions of service of the Patwaris,
Inspectors, Land Records and Sadar Qanungos as they apply to other categories of Government servants:-
1. The Rajasthan Civil Services (Absorption of Surplus Personnel) Rules, 1969.
2. The Rajasthan Civil Services (Substantive Appointment and Determination of Seniority of Temporary Employees) Rules, 1972.
3. The Rajasthan Services (Recruitment by Promotion against Vacancies of Earlier Years) Rules, 1972.â€
22. It has been the case of the petitioners that Rules 347-A & 347-B of the 1957 Rules clearly permit applicability of the 1960 Rules as also the 1972
Rules to the post of Inspector (Land Records); Rule 9 of 1960 Rules require the appointing authority to determine on 1st day of April of each year the
actual number of vacancies that may occur during the financial year and that Rule 5 of the 1972 Rules, require the appointing authority to modify the
appointment order by specifying the year in which the promotion shall be deemed to have been made in case vacancies existed in promotion quota in a
year earlier than that in which appointment by promotion was made.
23. Incorporation of an earlier Act is a well known legislative device adopted as a matter of legislative convenience whereby an earlier Act or certain
of its provision are incorporated by reference into a later Act so as to make the provisions so incorporated, the part and parcel of the later Act. The
other legislative device wherein an earlier legislation may be referred to, is by incorporation whereby the earlier Act or a provision thereof, is bodily
lifted and incorporated into the later Act.
24. Supreme Court in a constitution bench decision in 2011(3) SCC 1 Girnar Traders vs. State of Maharashtra & Ors. while dealing with these
principles, observed that when there is general reference in the Act in question to some earlier Act but there is no specific provisions of the former
Act then it is clearly considered as legislation by reference. In the case of legislation by reference, the amending laws of the former Act would
normally become applicable to the later Act; but when the provisions of an Act are specifically referred and incorporated in the later statute then those
provisions alone are applicable and the amending provisions of the former Act would not become the part of the later Act. This principle is generally
called legislation by incorporation.
25. In 2012 (13) SCC 281, State of Uttarakhand Vs. Mohan Singh, it is held that a distinction has to be drawn between a mere reference or citation of
one statute in another and incorporation. In case of mere reference of citation a modification, repeal or reenactment of the statute that is referred will
also have effect for the statute in which it is referred; but in the latter case any change in the incorporated statute by way of amendment or repeal has
no repercussion on the incorporating statute.
26. In 1998 (2) SCC 467 U.P Avas Evam Vikas Parishad Vs. Jainul Islam, the Supreme Court held that the question as to whether a particular
legislation falls in the category of referential legislation or legislation by incorporation, depends upon the language used in the statute in which
reference is made to the earlier legislation and other relevant circumstances.
27. A reading of Rules 347-A & 347-B of the Rules would clearly depict that sub-rule (8) of Rule 347 A makes a general reference of any other
general order or amendment in the 1960 Rules issued by the department of personnel unless any order to the contrary is issued by the government. No
such order issued by the government has been brought to our notice. The language of Subrule (8) clearly suggests that it merely refers to the 1960
Rules in the 1957 Rules. Thus it would clearly be a case of legislation by reference. Similarly Rule 347-B makes a reference to 1972 Rules and does
not bodily lift any of its provisions or the rules as a whole. Therefore this also would fall in the category of legislation by reference. The 1960 rules,
have since been replaced by the 2001 Rules and therefore the 2001 Rules will automatically get attracted to the 1957 Rules by the application of sub-
rule (8) of Rule 347-A.
28. The 2001 Rules have been enacted vide notification dated 2.3.2001 in exercise of power conferred by proviso to Article 309 of the constitution of
India. Rules 13 and Rule 35 of the 2001 Rules relevant for present purposes read as under:
“13. Determination of vacancies.-
(1) Subject to the Provisions of these rules, the Appointment shall determine on 1st April every year, the actual number of vacancies occurring during
the financial year.
(2) Where a post is to be filled in by a single method as prescribed in the Rule or Schedule, the vacancies so determined shall be filled in by that
method.
(3) Where a post is to be filled in by more than one method as prescribed in Rules or Schedule, the apportionment of vacancies, determined under sub-
rule (1) above, to each such, method shall be done maintaining the prescribed proportion for the overall number of post(s) already filled in. If any
fraction of vacancies is left over, after apportionment of the vacancies in the manner prescribed above, the same shall be apportioned to the quota of
various methods prescribed in a continuous cyclic order giving precedence to the promotion quota.
(4) The Appointing Authority shall also determine the vacancies of earlier years, year wise which were required to be filled in by promotion, if such
vacancies were not determined and filled earlier in the year in which they were required to be filled in.
35. Eligibility, Criteria and Procedure for Promotion:-
(1) As soon as the Appointing authority determined the number of vacancies under rule 13 of these rules and decides that a certain number of post(s)
are required to be filled in by promotion, it shall subject to provisions of sub-rule (4), prepare a correct and complete list of the senior most persons
who are eligible and qualified under these rules for promotions to the class of post(s) concerned.
(2) The persons enumerated in Column 6 of Schedule shall be eligible for promotion to posts specified against them in Column 4 subject to their
possessing minimum qualification and experience on the first day of the month of April of the year of selection as specified in Column 7.
(3) No person shall be considered for first promotion in the service unless he/she 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/she has been
appointed to such post from which promotion is to be made after selection in accordance with the provisions of these rules:
Provides that for first promotion in the Service if number of persons substantively appointed and confirmed on the lowest post, equal to the number of
vacancies, are not available then persons who have been appointed to the lowest post in the Service after selection in accordance with one of the
method of recruitment prescribed under these rules, shall also be eligible if they fulfill other conditions of eligibility.
(4) The zone of consideration of persons eligible for promotion shall be as under:-
(i) Number of vacancies  Number of eligible person be considered.
(a) For one vacancy Five eligible persons
(b) For two vacancies  Eight eligible persons.
(c) For three vacancies Ten eligible persons.
(d) For four or more Three times the number vacancies  of vacancies.
(ii) Where, the number of eligible persons for promotion to higher post is less than the number specified above, all the persons so eligible shall be
considered.
(iii) Where, adequate number of candidates belonging to the Scheduled Castes and the Scheduled tribes, as the case may be, are not available within
the zone of consideration specified above, the zone of consideration may be extended to five times the number of vacancies and the candidates
belonging to the Scheduled Castes or the Scheduled Tribes, as the case may be (and not any other) coming within the extended zone of consideration
shall also be considered against the vacancies reserved for them.
(5) (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 equal to the
number of vacancies determined under rule relating to arranged in the order of seniority in the category of posts from which selection is made.
(b) The Committee shall also prepared a separate list on the basis of seniority-cum-merit containing names of persons equal to the temporary or
permanent vacancies, which may occur subsequently. The list so prepared on the basis of seniority-cum-merit shall be arranged in the order of the
seniority in the category of post from which selection shall be made. Such a list shall be revised and revised by the committee that meets in the
subsequent year and that such list shall remain in force till the end of the last day of the year for which the meeting of the Departmental promotion
committee is held.
(c) Such list shall be sent to the appointing authority together with Annual Confidential Reports/Annual performance Appraisal reports and other
service record of all the candidates including in the lists as also of those not selected, if any.
(6) If any subsequent year, after promulgated of these rules vacancies relating to any earlier year are determined under rule 14 which were required
to be filled by promotion, the Committee shall consider the cases of all such persons who would have been eligible in the year to which the vacancies
relating irrespective of the year in which the meeting of the Committee is held and such promotions shall be governed by the criteria and procedure for
promotion as was applicable in the particular year to which the vacancies relate and the Service/Experience of an incumbent who has been so
promoted, for promotion to higher post for any period during which he/she has not actually performed the duties of the post to which he/she would
have been promoted, shall be counted. The pay of a person who has been so promoted shall be re-fixed at the pay which he/she would have derived
at the time of his/her promotion but no arrears of pay shall be allowed to him/her...â€
29. An analysis of the above rules would depict that sub-rule (1) of Rule 13 requires the appointing authority to determine on 1st day of April, the
actual number of vacancies occurring during the financial year. Sub-rule (4) require the appointing authority to also determine year-wise vacancies of
earlier years which were required to be filled by way of promotion, if such vacancies have not been determined and filled. Sub-rule (3) of Rule 13
however deals with the cases where a post is to be filled by more than one method prescribed in these rules or the schedule appended thereto. The
appointment to the vacancies determined under subrule (1) by each of such method, is to be done maintaining the prescribed proportion for the overall
number of posts already filled in. The rules as well as the schedule, as the scheme of the rules would depict direct recruitment and promotion as the
two methods of appointment. Sub-rule (3) however essentially requires adherence to the quota in the matters of recruitment by direct recruitment and
promotion. Part IV of these Rules prescribe the procedure for direct recruitment whereas the procedure for recruitment by promotion is laid down in
Part V. Rule 35 placed in Part V of these Rules deals with the eligibility criteria and procedure for promotion. Sub-rule (1) of Rule 35 requires the
appointing authority to prepare a list of senior most persons eligible for promotion to such posts on determination of the number of vacancies to be
filled in by promotion. Sub-rule (2) provides that the persons in column 6 of the Rules namely the feeder categories shall be eligible for promotion to
the posts in column 4 thereof. Sub-rule (5) specifically deals with cases of promotion on the basis of seniority-cum-merit and requires the Committee
(DPC) to consider cases of all the senior most persons, eligible and qualified for promotion on seniority-cum-merit whereas sub-rule (6) enjoins upon
the committee to consider cases of all persons who would have been eligible if in any subsequent years, the vacancies relating to earlier years are
determined under rule 14 {Rule 13(4)}. Rules 13 as well as Rule 35 of the 2001 Rules therefore essentially require determination of vacancies
including the vacancies of previous years and prescribe the procedure for filling up of such vacancies by seniority-cummerit. Rule 347-A however,
begins with the clause “except as otherwise provided in these rulesâ€. The phrase ‘except as otherwise provided’ has been interpreted by
the Supreme court in several decisions including the constitution bench decision in 1985 (3) SCC 398, Union of India V/s Tulsi Ram Patel & Ors. and
also in 2014 (6) SCC 351 Union of India v. S.P.Sharma. Supreme Court in the latter decision, while dealing with an identical phrase contained in
Article 310(1) of the Constitution held that the expression means that the article is subject only to the express provisions made in the Constitution. The
expression thus so read, gives primacy to the 1957 Rules and records that any general order or amendment in the 2001 Rules would apply when not
provided otherwise in the 1957 Rules. Therefore the field occupied by 1957 Rules will receive primacy and the 2001 Rules will be applied only on a
supplemental role. The 1957 Rules clearly prescribe the method and manner in which seniority of the Inspectors (Land Records) recruited under Rule
284(i) and (ii) is to be determined. Thus the 2001 Rules are of no help in determination of the controversy in hand.
30. Rule 347-B which by reference permits applicability of 1972 Rules, again begins with a non-obstante clause. Therefore, the 1972 Rules can be
read as carving out a limited exemption from the provision of 1957 Rules insofar as the 1972 Rules operate in a field occupied by the 1957 Rules. A
reading of the statement of the objects and reasons for the 1972 Rules would reveal that the State government took cognizance of the vacancies in
promotion quota being not filled on regular basis as the departmental promotion committee could not meet for administrative reasons. Therefore to
obviate the resultant hardships caused to eligible persons appointed on ad-hoc or officiating basis, who otherwise were eligible for appointment by way
of promotion against the vacancies in their quota, the 1972 Rules were enacted under proviso to Article 309 of the Constitution of India. The Scheme
of these Rules also unfolds the object for their enactment. It shall be useful to reproduce the 1972 Rules. These Rules read as follows:
“1. Short title and commencement (i) These rules may be called the Rajasthan Services (Recruitment by Promotion against Vacancies of Earlier
Year) Rules, 1972.
 (ii) They shall come into force at once.
2. Where a service rule, regulating recruitment and condition of service made under the proviso to Article 309 of the Constitution of India, provides for
recruitment by both direct recruitment and promotion and where promotion quota of any earlier year could not be filled up in the absence of
recommendation of the Departmental Promotion Committee appointed under the rules pertaining to that service, the appointing authority shall
determine the number of vacancies which were required to be filled up by promotion specifying the year with reference to which the vacancies are to
be filled up.
3. The Departmental Promotion Committee, appointed under the service rules referred to in rule 2, shall make their recommendation within a period of
three months from the date the competent authority makes the determination of the number of vacancies and specifies the year of vacancies of earlier
years under the said rule whereupon the appointing authority shall giving due regard to the recommendations of the Departmental Promotion
Committee, make the appointments by promotion in the promotion quota vacancies relevant to the year specified under rule 2.
4. When the appointing authority make appointment by promotion under rule 3, it shall specify the year in which such promotion shall be deemed to
have been made.
5. Where any vacancy existed in the promotion quota in a year earlier than that in which an appointment by promotion was made on the
recommendation of the Departmental Promotion Committee, the appointing authority shall modify the appointment order by specifying the year in
which such promotion shall be deemed to have been made.
6. Where any appointment by promotion has been made under rule 3 or where the appointing authority has specified the year of promotion under rule
5, the person who has been so promoted shall not be entitled to claim any arrears of pay for any period during which he has not actually performed the
duties of the post to which he has been promoted.â€
A reading of above rules would depict that Rule 2 requires the appointing authority to determine the number of vacancies to be filled by promotion in a
year in cases where the recruitment rules governing the service provide for recruitment both by direct recruitment and promotion. Rule 3 prescribes
the procedure to be adopted by the DPC appointed under rule 2. Rule 4 requires the appointing authority to specify the year in which the promotion
shall be deemed to have been made in cases of appointment made by promotion under rule 3. Rule 5 enjoins upon the appointing authority to modify
the appointing order specifying the year in which a promotion shall be deemed to have been made if a vacancy existed in a promotion quota in a year
earlier than that in which the appointment by promotion is made. The scheme of the 1972 Rules therefore essentially refers to recruitment strictly
by promotion giving weightage to the seniority of the person recruited. But it assumes importance to note that the Rules of 1957, vide Rule 171-A
prescribe the method of determination of seniority of Inspector (Land Records) and suffice it to highlight that if on a subject a parent Rule covers
the field, the question of incorporating the principle from some other Rule does not arise. As originally enacted Rule 171-A required seniority to be
determined from the date of continuous officiation on the post of Inspector (Land Records) because of sub-rule (2) thereof. Post amendment of sub-
rule (2), the seniority has to be determined on the basis of recruitment year of promotion, subject to the proviso. We have highlighted this in para 18
above.
31. Rule 298 of the 1957 Rules requires the board of revenue to maintain a list of all the successful candidates in the competitive examination held
under Rule 287 in the order of seniority based on aggregate marks obtained by them in such examination irrespective of their seniority position in the
feeder category namely the Patwaris. Thus the rule clearly envisages alteration of seniority position of candidates appointed through competitive
examination based on their performance in such examination. The Patwaris so selected are therefore born in the cadre of Inspector Land Records on
their successfully qualifying the competitive examination held under Rule 287. The thrust of the matter therefore is as to how the seniority of such
candidates is to be determined in the light of the claim that they are recruited in a subsequent recruitment year against the vacancies of previous
years.Â
32. Supreme Court in 2009(12) SCC 49 State of Rajasthan vs. Jagdish Narayan Chaturvedi, held that a person becomes member of a service when he
satisfies four conditions namely (i) appointment must be in a substantive capacity; (ii) to a post in a service i.e. in a substantive vacancy; (iii) made
according to rules; and (iv) within the quota prescribed for the source.
33. In 1991 Supp. (1) SCC 334 State of Bihar vs. Akhouri Sachindra Nath, the Court held that no person can be promoted with retrospective effect
from a date when he was not even born in the cadre.
34. In S.S. Uppal (Supra) it was held that weightage in seniority cannot be given retrospective effect unless it is specifically provided in the rule in
force at the material time.
35. In 1998(4) SCC 456 Jagdish Ch.Patnaik & Ors. V/s State of Orissa & ors., the Court while dealing with an issue identical to the issue in hand in
the present case held as follows:-
“32. The next question for consideration is whether the year in which the vacancy accrues can have any relevance for the purpose of determining
the seniority irrespective of the fact when the persons are recruited? Mr. Banerjee's contention on this score is that since the appellant was recruited
to the cadre of Assistant Engineer in respect of the vacancies that arose in the year 1978 though in fact the letter of appointment was issued only in
March 1980, he should be treated to be a recruit of the year 1978 and as such would be senior to the promotees of the years 1979 and 1980 and would
be junior to the promotees of the year 1978. According to the learned counsel since the process of recruitment takes a fairly long period as the Public
Service Commission invites application, interviews and finally select them whereupon the Government takes the final decision, it would be illogical to
ignore the year in which the vacancy arose and against which the recruitment has been made. There is no dispute that there will be some time lag
between the year when the vacancy accrues and the year when the final recruitment is made for complying with the procedure prescribed but that
would not give a handle to the Court to include something which is not there in the rules of Seniority under Rule 26. Under rule 26 the year in which
vacancy arose and against which vacancy the recruitment has been made is not at all to be looked into for determination of the inter se seniority
between direct recruits and the promotees. It merely states that during the calendar year direct recruits to the cadre of Assistant Engineer would be
junior to the promotee recruits to the said cadre. It is not possible for the Court to import something which is not there in Rule 26 and thereby legislate
a new Rule of Seniority. We are, therefore, not in a position to agree with the submission of Mr.Banerjee, the learned senior counsel appearing for the
appellants on this score.â€
36. In 2007 (1) SCC 683 State of Uttaranchal & Anr. V/s Dinesh Kumar Sharma, the Supreme Court while dealing with a claim for retrospective
seniority premised on accrual of vacancy in previous years, held as follows (SCC pp.691-692, para 34):
“34. Another issue that deserves consideration is whether the year in which the vacancy accrues can have any relevance for the purpose of
determining the seniority irrespective of the fact when the persons are recruited. Here the respondent's contention is that since the vacancy arose in
1995-96 he should be given promotion and seniority from that year and not from 1999, when his actual appointment letter was issued by the appellant.
This cannot be allowed as no retrospective effect can be given to the order of appointment order under the Rules nor is such contention reasonable to
normal parlance. This was the view taken by this Court in Jagdish Ch.Patnaik V/s State of Orissa.â€
37. In 2008 (14) SCC 29 Nirmal Chandra Sinha V/s Union of India, the Court held that promotion takes effect from the date of being granted and not
from the date of occurrence of vacancy or creation of the post. It is further held therein that it is settled in law that date of occurrence of vacancy
is not relevant for the determination of seniority.
38. In (2010) 12 SCC 635 Ashok Pal Singh & Ors. V/s Uttar Pradesh Judicial Services Association & Ors., while dealing with a similar question
though in the context of claims of direct recruits for ante dated seniority on the premise that they were appointed against the vacancies of previous
recruitment years, the Court rejected such claim as not tenable and held that “no direct recruit at a subsequent recruitment can claim that as he is
being appointed against a direct recruitment vacancy of previous recruitment, his seniority should be reckoned from any date earlier to the date of his
joining the service.â€
39. In 2013(8) SCC 693 P.Sudhakar Rao & Ors. V/s U.Govinda Rao & Ors., the Court held that the mere existence of vacancies is not enough to
enable an employee to claim seniority. The date of actual appointment in accordance with the required procedure becomes important in such a case.
40. In 2014(4) SCC 720 State of U.P. V/s Ashok Kumar Srivastava, the Court while dealing with such contention traced the law on the subject and
concluded that the year in which vacancy arose can have no relevance for the purpose of seniority. 41. In the present case, a candidate selected
through competitive examination held under Rule 284(ii) gets entry into the cadre of Inspector (Land Records) on his successfully qualifying the
competitive examination. The seniority rule as amended, prescribes the seniority to be determined on the basis of recruitment year of promotion and
there is no provision in the recruitment rules to accord seniority to such candidate from a date anterior to his becoming eligible for promotion to the
post of Inspector (Land Records) through the competitive examination. Therefore no such claim of seniority with reference to the date of accrual of
vacancy on the premise that no competitive examination was held in the years when such vacancy had arisen would be maintainable.
42. Learned Single Judge while holding in favour of such claim proceeded to rely upon the 1960 Rules/2001 Rules as also the 1972 Rules. Learned
Single Judge however has not recorded any reasons justifying applicability of these rules to a candidate recruited through competitive examination. We
may note that the State relied upon a judgment of this Court in Shivdutt Singh Rathore V/s State & ors. (SBCW No.11309/2017 decided on 1.11.2017)
wherein this Court has held as follows:-
“Rule 347-A deals with service conditions of the employees who are appointed, as how their pay, leave, allowance will be governed. Subrule (7)
of Rule 347-A provides for General conditions of service made by the appropriate authority under the proviso to Article 309 of the Constitution of
India. The Court finds that sub-rule (7) of Rule 347-A will not be attracted in the present case as has been submitted on behalf of the petitioners.
The submission of the learned counsel for the petitioners that by invoking sub-rule (8) of Rule 347-A, the amendment made or general order issued in
the Rajasthan Subordinate Services (Recruitment and other Service Conditions) Rules, 1960 will apply mutatis mutandis, is also without any substance.
The Court finds that the post of Patwari is included in the Land Revenue Act and complete mechanism is provided for filling the post. The entire
selection process has been enumerated in Section 273 of the Land Record Rules and as such, application of Rule 347-A cannot be made applicable in
the instant case.
The submission of the learned counsel for the petitioners that Rules of 1960 being repealed, the new Rules of 2001 will govern the field, is without any
substance. The Court finds that the Rules of 2001 or Rule 15 of the Rules of 2014 will not come into play. The post of Patwari is not included and
incorporated in the Rajasthan Subordinate Service (Recruitment and other Service Conditions) Rules 1960 or newly promulgated Rule of 2001.â€
Learned Single Judge however distinguished the above judgment on the ground that the said judgment dealt with the issue of “recruitment†and
not promotion etc.
43. We find the above reasoning to be erroneous in law. The word “Recruitment†includes the process of enlisting, selecting and appointing a
candidate to a post. Recruitment will embrace within itself, appointment, selection, promotion, deputation etc. Supreme Court in 1993 Supp (3) SCC
181 Prafulla Kumar Swain V/s Prakash Chandra Mishra has defined the term “recruitment†in the following words:
“The term recruitment connotes and clearly signifies enlistment, acceptance, selection or approval or appointment.â€
44. In 1994 Supp (1) SCC 44, K.Narayanan V/s State of Karnataka, the Court held:
“6..’Recruitment’ according to the dictionary means ‘enlist’. It is a comprehensive term and includes any method provided for
inducting a person in public service. Appointment, selection, promotion, deputation are well known methods of recruitment. Even appointment by
transfer is not unknown..â€
45. In view of the position of law settled as above, the judgment of this Court in Shivdutt Singh Rathore (supra) will be relevant to the controversy
involved in the present case. This Court held that since complete mechanism is provided for filling the post of Patwari in the Land Revenue Act and
the entire selection process has been enumerated in Rule 273 of the 1957 Rules, as such the provisions of the 1960 Rules cannot be applied by
application of Rule 347A. As concluded by us in the foregoing paragraphs, the same also holds good in the case of appointment to the post of
Inspector (Land Records) by way of competitive examination.
46. In result, we allow the present appeals and set aside the judgment and order dated 19.4.2018 in S.B.Civil Writ Petition No.6530/2016. The writ
petition of the petitioners stands dismissed accordingly.
