Order :

Ravi Chirania, J.

1. By the instant writ petitions, jointly filed, by the petitioners who were initially appointed on the post of Warder under Rajasthan Jails Subordinate Service Rules 1976 (hereinafter referred to as ‘Rules of 1976’ for short) and were subsequently promoted by the respondents on the next promotional post of Head Warders, the petitioners have approached this Court to challenge the constitutional validity of Rule 35, 36 and 39 of the Rajasthan Jails Subordinate Service Rules, 1998 (hereinafter referred to as ‘Rules of 1998’ for short) being aggrieved by the actions of the respondents of not considering their length of service for next promotional post, and further that the respondents are making promotion to the higher post on State basis instead of circle basis from the date of their initial appointment in the service. The petitioners have also challenged and prayed for quashing of the circular dated 28.02.2011 (Annexure-5 of the writ petition) and the seniority list of Head Warder prepared State wise, dated 28.07.2020, by which the petitioners have been placed below the persons who are junior to them in terms of date of appointment on the basis of initial appointment on the post of Warders under the Rules of 1976.

2. The brief facts of the case as stated by learned counsel Mr.Anshuman Saxena are that the petitioners herein were appointed on various dates under the Rules of 1976 on a substantive basis from 1987 onwards on the post of Warders. Under the Rules of 1976, they were eligible for promotion to the next promotional post of Head Warder, which is filled 100% by promotion, for which, the requirement is 7 years’ experience on the post of Warder, as mentioned in the Schedule appended to the Rules.

3. Learned counsel further submitted that under the Rules of 1976, the procedure for promotion to the next higher post, i.e. Head Warder is provided in Part-V of the Rules. Rule 23 of the Rules of 1976, as referred, is reproduced as under:-

“PROCEDURE FOR RECRUITMENT BY PROMOTION

23. Criteria, Eligibility and Procedure for promotion:-

(1) As soon as the Appointing Authority determines the number of vacancies under rule 9 and decides that a certain number of posts are required to be filled by promotion, it shall prepare a correct and complete list containing names up to five times the number of vacancies out of the senior-most persons who are qualified under these rules for promotion on the basis of seniority-cum-merit or on the basis of merit to the class of posts concerned.

(2) Selection for promotion from lowest post or category of posts in the Service to the next higher post or category of posts in the Service up to Scale No. 11 shall be made solely on the basis of seniority-cum-merit from amongst the persons who have put in at least five years' service, unless a different period is prescribed in these rules, on the first day of the month of April of the year of selection on the post or category of post from which selection is to be made:

Provided that in the event of non-availability of the persons with the requisite period of Service of five years, the Committee may consider the persons having less than the prescribed period of service, if they fulfill the qualifications for promotion prescribed in these rules and are found other-wise suitable for promotion on the basis of seniority-cum-merit.

(3) The persons enumerated in Col.5 of the Schedule shall be eligible for promotion to posts specified against them in Col. 2 thereof to the extent indicated in Column 3 subject to their possessing minimum qualifications and experience on the first day of the month of April of the year of selection as specified in Col. 6.

(4) No person shall be considered for promotion unless he is substantively appointed and confirmed, if no person substantive in the next lower post from which promotion is prescribed in these rules, is eligible for promotion, persons who have boon appointed in such posts after selection in accordance with