Hon'ble BHANDARI, J.—By this writ petition, a challenge has been made to the order dated 7.12.2009 passed by the Rajasthan Civil Services Appellate Tribunal (hereinafter to be referred as "the Tribunal") were by the appeal preferred by the private respondents was allowed with the direction to the official respondents to convene review Departmental Promotion Committee (hereinafter to be referred as "the DPC") meetings for promotion to the post of Executive Engineer against the vacancy for the year 2002-03 and 2003-04.

2. The appeal was preferred to challenge recommendation of D.P.C. meeting held on 9.2.2004. It was with a further prayer that provisional list dated 24.4.1999 should be first finalized and consideration of the candidature for promotion may be made thereupon.

3. Learned counsel for the petitioners submits that 89 posts of Assistant Engineer were up-graded to the posts of Executive Engineer vide the order dated 13.12.2002. On creation of those posts, the private respondent No. 3 filed a writ petition bearing S.B. Civil Writ Petition No. 176/2003. This was to challenge benefit of reservation to the candidates for promotion to the afore-said vacancies for the year of 2002-03 and 2003-04. Similar controversy came up before the High Court, Principle Seat at Jodhpur in S.B. Civil Writ Petition No. 376/2003 (Rajeev Choudhary & Ors. vs. State & Ors.). The writ petition of Rajeev Choudhary was thereafter dismissed vide the judgment dt. 19.9.2003 and accordingly, the writ petition filed by one of the private respondents herein was also dismissed. Against the judgment of the learned Single Judge, an appeal was preferred therein even the ground as was raised in the appeal before the Tribunal though the new ground was taken for the first time before the Hon'ble Division Bench in the Special Appeal and not before the learned Single Judge. The facts, however, remain that the issue involved in the present matter is sub judice now before the Hon'ble Division Bench.

4. Apart from the aforesaid, the facts on merit are that for the year 2002-03, 35 vacancies were existing and all were reserved for SC and ST candidates. Since no candidate of the reserve category was found eligible, these vacancies were carry forward to the year 2003-04 as per the Notification dated 10.10.2002. So far as creation of 89 vacancies to the post of Executive Engineer is concerned, it was vide the order dated 13.12.2002, thus to be counted as vacancies for the year 2003-04 in view of the Rule 50 of R.S.R. Even as per service rules, determination of vacancies have to be made as on 1st April of the year concerned, thus while determining the vacancies of year 2002-03, one cannot anticipate up-gradation of post in the month of December, 2002 so as to include those vacancies for the year 2002-03. Accordingly, while determining the vacancies of the year 2003-04, 89 vacancies were taken note of as existing on 1st April, 2003. This is apart from 60 vacancies of the year 2003-04, accordingly 184 vacancies came up for promotion in the year 2003-04 i.e. 35 vacancies of reserve caste candidate of the year 2002-03 as it remained unfilled, 89 posts so upgraded vide the order dated 13.12.2002 and 60 vacancies of the year 2003-04.

5. To support the arguments, a reference of the clarification made by the Department of Personnel (hereinafter to be referred as "the DOP") dated 7.10.2003 has been made apart from the opinion of the said department to treat 89 posts of Executive Engineer to be for the year 2003-04. The respondents, accordingly held meeting of D.P.C. thereupon but the Tribunal erroneously held that 89 posts so upgraded should be treated to be vacancies of the year 2002-03 and consideration for promotion be made accordingly by determining the zone of consideration against those vacancies. If the aforesaid is done, the petitioners are ousted from the benefit of promotion but then the order of promotion of the petitioners was not challenged before the Tribunal, thus a dir

Click Here to Read the rest of this document