Holding

Amendments that delete the qualifying examination do not nullify the statutory mandate that promotions be effected on a 50:50 merit and seniority‑cum‑merit basis with year‑wise vacancy determination, and the State must conduct fresh merit‑based selections and cannot club vacancies beyond the prescribed period.

Summary

The case concerned promotion of Motor Vehicle Inspectors to District Transport Officer (OTO) in Rajasthan. The State had amended the 1979 Rajasthan Transport Service Rules in 1992, deleting the qualifying examination requirement and clubbing vacancies from 1983‑84 to 1993‑94, promoting candidates without merit‑based exams. The petitioners challenged this, arguing violation of Rules 6, 10 and 24 which require promotions on a 50:50 merit and seniority‑cum‑merit basis and year‑wise vacancy determination. The Supreme Court held that the amendment could not override the statutory provisions; the State must determine vacancies each year, fill 50% by merit (via an exam or equivalent) and 50% by seniority‑cum‑merit, and may not club vacancies beyond the three‑year limit. The Court set aside the 1994 promotion order, directed a fresh selection process within three months, and ordered an enquiry into officials responsible for the lapse. The appeals were partially allowed and disposed of with directions.

Issues considered

The amendment deleting the qualifying examination and clubbing of vacancies violated Rules 6, 10 and 24 of the Rajasthan Transport Service Rules, 1979.
Whether promotions must be made on a 50:50 merit and seniority‑cum‑merit basis despite the amendment.
Whether vacancies can be clubbed for more than three years for promotion purposes.
Whether the State’s failure to conduct qualifying examinations for ten years infringed the rule of fairness and the right to promotion under Articles 14 and 16.

Legislation cited

Constitution of Indias. Article 14, s. Article 16, s. Article 309
Rajasthan Transport Service Rules, 1979s. Rule 10, s. Rule 24, s. Rule 24(6), s. Rule 6, s. Rule 7

Subjects

service lawpromotionmeritseniority‑cum‑meritRajasthan Transport Service Rulesrule of fairnessreservationqualifying examinationclubbing of vacanciesadministrative law

Judgment

[2011] 12 S.C.R. 1

JAGDISH PRASAD A
v.
STATE OF RAJASTHAN & ORS.
(Civil Appeal Nos. 5102-5103 OF 2011)
JULY 07, 2011
B
[DR. B.S. CHAUHAN AND SWATANTER KUMAR, JJ.]

, Service Law - Selection by promotion - Rajasthan
Transport Service Rules, 1979 - rr. 6, 10 & 24 - Selection/
promotion process - Validity of -Promotion to post of District c
Transport Officer (OTO) from the post of Motor Vehicle
Inspectors - Amendment to Schedule I and deletion of
Schedule II of the 1979 Rules in the year 1992 leading to
deletion of requirement of passing qualifying examination for
the higher post of OTO - Effect of- Selection/promotion order 0
dated 8th July, 1994 - Action of the State government in
clubbing all the vacancies of more than 10 years (from 1983-
84 till 1993-94) and giving promotions challenged - Whether
by amendment to Schedule I and the deletion of Schedule II
of the 1979 Rules the effect of the statutory provisions like E
rr. 6, 10, 24 read in their plain language stood diluted and the
statutory provisions were rendered ineffective and inoperative
- Held: The services of the Transport Department in all
relevant posts are covered under the provisions of the 1979
Rules and their purpose is to make promotions on merit or
merit-cum-seniority in the prescribed proportion of 50: 50 - F
The Schedule of the 1979 Rules has to be in conformity with,
and is required to advance the object of the primary statutory
provision and cannot in any way wipe out its effect and spirit
- Even if Schedule II of the 1979 did not exist, it was obligatory
on the part of the respondent to evolve a me;lhodology to G
make promotions purely on merit - Right from 1983-84 till
1993-94 no examination was conducted by the appropriate
authority despite issuance of notifications for holding exams
on a few of these occasions - Representation from the
1 H
2 SUPREME COURT REPORTS [2011] 12 S.C.R.

A Transport Inspector's Union cannot be considered as a
sufficient cause or reason for not holding the examinations
for more than ten years and cau$ing serious prejudice to the
candidates who might have been sufficiently meritorious to
qualify in the exams and be considered for promotion to 50%
B of the posts under the promotion quota - Even after 1993-94,
the process of selection adopted by the State Government
cannot be accepted - The preparation of seniority list, method
of selection and clubbing of vacancies were apparently in
violation of the statutory Rules - Selection/promotion order
c dated 8th July, 1994 accordingly set aside with further
directions - Fresh process of selection to be held by the
competent authority in accordance with Rules - Selection by
promotion for yearwise vacancies shall be filled in by
compliance to r.24(6) - The authorities shall fill 50% of the
promotion vacancies purely by merit, for ,which it will evolve
0
a methodology, either by holding a qualifying examination as
was being conducted prior to 1992, or by any other
examination which would satisfy the basic criteria of selection
by merit - Remaining 50% of the promotion posts shall be
E filled by seniority-cum-merit for which the departmental DPC
shall meet within stipulated time - Secretary (Transport),
Government of Rajasthan directed to conduct an enquiry
personally and fix responsibility on all the officers/officials
responsible for not conducting qualifying examination in
accordance with Rules from 1983 to 1994 and subsequent
F thereto in accordance with law - The vacancies would be
clubbed only for the purposes of calculating an arithmetical
figure but, will be filled in accordance with yearwise vacancies
and considering the officers eligible for promotion to the post
of OTO in accordance with seniority cum merit rule for 50%
G of the promotion post - All remaining 50% posts shall be filled
up purely on merit and by holding an examination - Persons
already promoted would not be reverted and none of them
would be entitled to claim any financial benefits, if they have
already retired from the post of OTO - Candidates now
H
JAGDISH PRASAD v. STATE OF RAJASTHAN & 3
ORS.
' '

selected in furtherance to the directions contained in the A
judgment shall not be entitled to any arrears of pay because
though their promotion may be relatable to a previous year,
such promotion shall be notional without any consequential
benefits.
8
Administrative Law - Rule of fairness - Held: Is an
essential feature in Government action.
The issue relating to promotion to the post of District
Transport Officer (OTO) from the post of Motor Vehicle
Inspectors arose for consideration In the present appeal. C

On 13th April, 1992, a notification was issued by the
respondents amending the Rajasthan Transport Service
Rules, 1979 whereby Schedule 1 and Schedule 2 of the
1979 Rules were amended. Earlier the candidates were 0
required to pass a qualifying examination for the post of
OTO. However, by this amendment, the said requirement
was deleted under Schedule 1 and syllabus for the same
was deleted from Schedule 2. In other words, promotion
became possible without holding the said examination for E
the higher post

It was alleged before the Service Tribunal that the
S~te of Rajasthan had violated Rules 10 & 24 of the 1979
Rules and that the action of the State government in
clubbing all the vacancies of more than 1O years (from F
198~:84 till 1993-94) was improper as the respondents
were obliged
v
to consider the vacancies
'
in each given
year in terms of Rule 10. The State filed reply before the
Tribunal stating that though the vacancies had been
determined year wise no one had passed the qualifying G
examination and nobody had been found eligible for
promotion upto 1st April, 1994 as per Schedule II of the
1979 Rules; that thereafter, for administrative reasons
Including the representation made by Rajasthan
Transport Inspector's Union, the qualifying examination H .
4 SUPREME COURT REPORTS [2011) 12 S.C.R.

A was done away with, and appointment/promotion to the
post of OTO was made simply by promotion. The further
case of the State Government was that vacancies In the
post of DTOs could not be filled for want of ellglble
candidates and, therefore, the vacancies were carried
B forward for consideration to the subsequent years.

The Tribunal quashed the selection/promotion order
dated 8th July, 1994 and directed the State Government
to hold review Departmental Promotion Committee (OPC)
C to determine yearwise vacancies afresh holding that the
State Government could not have circumscribed or
diluted the provision regarding "year-wise" filling up of
vacancies.
The High Court in substance upheld the order of the
D Service Tribunal and issued certain further directions to
the respondents to undertake fresh exercise for
promotion to the post of OTO from the post of Motor
Vehicle Inspectors. The High Court held that the State
Government had given a complete go-bye to the
E provisions of the relevant Rules; and that mere deletion
of the condition of qualifying examination in the year
1992 did not justify the action of the State government in
clubbing all the vacancies of more than 10 years (from
1983-84 till 1993-94) and giving promotions to persons
F making a new zone of consideration and reservation also
accordingly. The Court held that clubbing of vacancies
could be made only for the purpose of direct recruitment
while promotions have to be made on the basis of year
wise determination of vacancies to the candidates eligible
G for the particular year who come in the zone of
consideration for the particular year; and that clubbing
of vacancies for more than 10 years not only created
complications so far as reservation of the posts as .per
relevant roster were concerned, but entire procedure of
zone of consideration for each year was disturbed.
J-l
JAGDISH PRASAD v. STATE OF RAJASTHAN & 5
ORS.
In the instant appeal, the question that arose for A
consideration was whether by amendment to Schedule I
and the deletion of Schedule II of the 1979 Rules the effect
of the statutory provisions like Rules 6, 1o and 24 of the
1979 Rules read in their plain language stood diluted and
the statutory provisions were rendered ineffective arid B
inoperative.
Disposing of the appeal, the Court
HELD:1. The Rajasthan Transport Service Rules,
1979 clearly postulate merit to be the criterion. for c
promotion to higher posts. The vacancies have to be
determined as per Rule 10 of the 1979 Rules, on the 1st
April of every year. If any fraction of vacancies is left over,
after the apportionment of vacancies ~in the manner
prescribed, the same shall be appointed through the 0
quota of various methods prescribed in continuous cyclic
1
order, giving precedence to the promotion quota ••

Appointing authority has to determine yearwise
vacancies of earlier years, which were required to be filled
in by promotion if such vacancies were not determined
E· ·-
and filled earlier in the year they were required to be filled
in, in the subsequent years:-The emphasis of the
language ofthese rules is on yearly vacancies and they
are required to be filled in with reference to each particular
year. The vacancies are required to be determined and ·-
filled in as on 1st April of every year, .for the vacancies F
occurring during the financial year, in terms of Rule
10(1 )(a). Under Rule 7(1 ), the requisite vacancies are to
be reserved for Scheduled Castes and Scheduled Tribes
in accordance with the order of the Government in force
at the time of recruitment that is by direct recruitment or G
by promotion. These vacancies are to be filled by
seniority-cum-merit and merit. If the vacancies, for the·
.reasons stated, remained unfilled they can be ·carried
forward only for a limited period of three recruitment
years in total, and thereafter such reservation would 1 H
6 SUPREME COURT REPORTS (2011] 12 S.C.R.

A lapse, in terms of Rule 7(4) of the 1979 Rules. [Para 20]
[25-B-G]

2. Another very important aspect of the Rules Is that
merit and seniority-cum-merit are the only relevant
B criteria for promotion to various posts. The language of
Rule 24(1) of the 1979 Rules does not allow for any
ambiguity and clearly says that a list of senior most
persons, who are eligible and qualified under the 1979
Rules, will be prepared and from that list, promotion on
the basis of seniority-cum-merit or on the basis of merit
C to the concerned class of posts will be made. Rule 24(6)
of the 1979 Rules further postulates that all other higher
posts or higher categories of posts in the Service shall·
be made on the basis of merit and on the basis of
seniority-cum-merit in the proportion of 50:50. If upon
D merit alone candidates are not available then selection
by promotion on the basis of seniority cum merit may be
made in the same manner as is specified in the 1979
Rules. On reading of Rule 24 (6), 24(11) and 24 (11 A) of
the 1979 Rules conjointly, it is clear that promotions have
E to be made by the DPC by the criteria and procedure for
promotion as applicable In that particular year, to which
the vacancies relate. The service experience of an
incumbent who has been so promoted, for promotion to
higher posts for any period during which he has not
F actually performed the duties of the post to which he
would have been promoted, shall be counted. It also
requires that pay of a person who has been so promoted
shall be re-fixed at the pay scale which he would have
derived at the time of his promotion, but no arrears of
G pay shall be allowed to him. The Government or the
appointing authority has the power to order for the
review of the proceedings of DPC held earlier on account
of some mistake apparent on the face of the record or
on account of substantial error affecting the decision of
H the DPC or even for any other sufficient reason like
JAGDISH PRASAD v. STATE OF RAJASTHAN & 7
ORS.
change in seniority, wrong determination of vacancies A
etc. [Para 21] [25-H; 26-A-B]
3. It is a settled principle of law that the Schedule of
the 1979 Rules has to be in conformity with, and is
required to advance the object of the primary statutory
8
provision. Thus, a schedule cannot in any way wipe out
the statutory provisions of the Act in effect and spirit. It
is nobody's case, and in fact, nothing has been brought
to the notice of this Court, that Rules 6, 10, 11 and 24 of
the 1979 Rules have been subjected to any amendment
by the competent authority. Once these provisions stand C
in the statute book, then respondents cannot escape
from complying with them in the appropriate manner and
without defeating the object of these Rules. The services
of the Transport Department in all relevant posts is
covered under the provisions of the 1979 Rules and their D
purpose is to make promotions on merit or merit-cum-
seniority. ·Their prescribed proportion of 50:50 has to be
maintained. When Schedule 1 of the 1979 Rules is read
along with the above indicated provisions, it is obvious
that under Clause 4 of Schedule 1 of the 1979 Rules, 50% E
posts of OTO are to be filled up by direct recruitment and
50% posts by promotion. [Para 23) [27 -B-E]

4. Rule 24(6) of the 1979 Rules mandates that
selection for promotion to all other higher posts or higher F
categories of posts In the Service shall be made on the
basis of merit and on the basis of seniority-cum-merit in
the proportion of 50:50.. In other words, 50% vacancies
are to be filled up on the basis of merit while the
remaining 50% vacancies In the promotion quota are to G
be filled up by seniority-cum-merit. The persons have to
be within the appropriate position In the seniority list
before they can be considered for promotion under the
latter category. Eligibility requirements have been
specified under the 1979 Rules, which candidates must
H
8 SUPREME COURT REPORTS [2011] 12 S.C.R.

A satisfy to be considered under the seniority-cum-merit
category. The other persons who are to be promoted to
the post of OTO are on the basis of merit alone. Even !f
Schedule II of the 1979 Rules does not exist, it is
obligatory on the part of the respondent to evolve a
8 methoaology to make promotions purely on merit. Once
the framers of the Rules have intended to provide merit
as the sole criteria of promotion, the appointing authority
is not vested with the jurisdiction to waive the same or
completely wipe out the same, on a flimsy excuse such
C as the one proposed in the present case. [Para 23] (27-
E·H; 28·A-B]
5. Right from 1983-84 till 1993-94 no examination has
been conducted by the appropriate authority despite the
, fact that they also issued notifications for holding exams
D on a few of these occasions. If there was a
representation from the Rajasthan Transport Inspector's
Union, it cannot be considered as a sufficient cause or
reason for not holding the examinations for more than ten
years and causing serious prejudice to the candidates
E who might have been sufficiently meritorious to qualify
in the exams and be considered for promotion to 50% of
the posts under the promotion quota. It is a matter of
regret that a Government can take such a stand before a
Court of law and expects the Court to accept such a
F submission. It is ex facle untenable. Once the rules stand
clear, the Authority concerned is expected to act in
accordance with law and not to defeat the law. One who
defeats the law by his unjustifiable and unsustainable
aets is liable for the consequences of such default. One
G falls to understand why the Government and Its entire
hierarchy had shut its eyes to this gross violation of
statutory rules over such a long period. It Is a matter of
concern that any rule of good governance that an
obligation Is Imposed upon the State to select the best
H candidates to higher posts and not to frustrate rules
JAGDISH PRASAD v. STATE OF RAJASTHAN & 9
ORS.

which prescribe merit as this is essential to the process A
of selection. It is painful to note that the Government has
put forward such a flimsy excuse for its inaction and
unfortunately the same has weighed with the High Court
to some extent, though it has dismissed the appeal of the
State. The Government has no justification whatsoever B
in not holding the qualifying t~st to'r a long period of ten
years and this is a matter which lhe hierarchy of the State
Government ne~ds to examine and fix responsibility.
[Para 24] [28-C-H; 29-A-B]
6. Even after 1993-94, the process of selection C
adopted by the State Government cannot be accepted.
The preparation .of seniority list, method of selection and
clubbing of vacancies are apparently in violation of the
statutory Rules. The Tribunal, in its judgment, tras
· noticed Rule 24(ii) of the 1979 Rules and observed that D
even if the DPC held together vacancies of several years,
yet the vacancy of each year should be determined and
also filled up separately. This Court does not approve
of the observations made by the Tribunal that on the one~
hand the department has treated the rules as sacrosanct E
and on the other hand, right .from introduction of the 1979
Rules not even a single examination was held. The
fallaciousness in the stand of the Government, is clear
from the fact that the representations against the
procedure started after 8 to .9 years, but right from the F
first year i.e. from 1983, there can be no justification for
not holding the examination In accordance with the
Rules. .It appears that the attempt was intended to
suppress·the rule of selection by merit. The Tribunal
failed to notice other provisions of the rel~vant rules. It G
finally quashed the selection I promotion order dated 8th
July, 1994 and issued direction to hold review DPC within
the specified time by filling yearwise vacancies. One
direction of the Tribunal, as is appearing from Its order,
certainly cannot be sustained. The Tribunal could not H
10 SUPREME COURT REPORTS (2011) 12 $.C.R.
!.

A have directed that 'ideally the notification dated 13.4.1992
should be amended retrospectively'. It hs not clear
whether the Tribunal meant that this notification should
be given effect to retrospectively, in relation to the
vacancies from of 1983-84, or that the said notification
e itself should be amended. This ambiguity was entirely
uncalled for. [Para 25) [29-B-H; 30-A)
Vinod Kumar Sangal v. Union of India (1995) 4 SCC 246:
1995 (3) SCR 734 and B.L. Gupta v. M.C.D. (1998) 9 SCC
223 - referred to.
c
7. The High Court referred to the Rules to some
extent and to the fact that for one vacancy, 5 eligible
persons are required to be considered and for 2
vacancies, 8 eligible persons should be considered; and
0 that such proportion in accordance with the zone of
consideration as specified under Rule 24(6) of the 1979
Rules should be maintained. The High Court also
ref&rred to the judgment of this Court in coming to the
conclusion that clubbing of vacancies was not proper,
E and that such a course could be adopted only In the case
of direct recruitment. The High Court directed the making
a completely fresh exercise and directed that the persons
already promoted were not to be demoted but promotion
be made yearwise. Though for somewhat different
F reasons, partially accepting the findings recorded by the
Tribunal, this Court accepts some of the findings of the
Tribunal and the High Court; but the conclusions arrived
at cannot be accepted in their entirety. This Court 13 not
only concerned with promotion or otherwise of any relief
to the appellants or any persons in service but mu1St also
G ensure that Rule$ are Implemented and selection is made
strictly in accordance with such Rules. Also this Court
cannot Ignore tho fact that a Government servant gets a
right, (though not indefeasible right), to be considered for
promotion to the appropriate post to which he Is ellglble
H and entitled, In accordance with law. [Para 26].(30-B·G]
JAGDISH PRASAD v. STATE OF RAJASTHAN & 11
ORS.
Union ~fIndia and Another v. Hemraj Singh Chauhan A
and others (2010) 4 SCC 290: 2010 (3) SCR 755 - referred
to.

8. It is equally true that the rule of fairness in
Governmentaction is an essential feature. However, such
8
fairness· has to be founded on reasons. Usually, the
providing of reasons demonstrates the concept of
reasonableness but where the statutory rules provide the
circumstances and criteria, ambit and methods by which
the selection should be governed, they would become the C
yardstick of fairness. [Para 27) [31-C-D]

Manager Government Branch Press and Anr. v. D. 8.
Belliappa (1979) 1 SCC 477: 1979 (2) SCR 458 - referred
to.
D
9. In the instant case, in view of the infirmities and
illegalities from which the selection process suffers, this
Court, though for different reasons, has come to the
same conclusion as the High Court while also issuing
directions. Therefore, while setting aside the selection/ E
promotion order dated 8th July, 1994, this <;:ourt further
:ssues the following directions for strict compliance by
all the authorities concerned and without any further
delay: 1) Fresh process of selection shall be held by the
competent authority in accordance with Rules, as F
expeditiously as possible and in any case not later than
three months; 2) The selection by promotion for the
yearwise vacancies shall be filled in by compliance to
Rule 24(6) of the 1979 Rules. The authorities shall fill
50% of the promotion vacancies purely by merit, for
which It will evolve a methodology, either by holding a G
qualifying examination as was being conducted prior to
1992, or by any other examination which would satisfy
the basic criteria of selection by merit. 3) Remaining 50%
of the promotion posts shall be filled by seniority-cum-
' H
12 SUPREME COURT REPORTS . [2011) 12 S.C.R.

A merit for which the departmental DPC shall meet within
the stipulated time as afore-directed. 4) The Secretary
(Transport), Government of Rajasthan Is hereby directed
to conduct an enquiry personally and fix responsibility
on all the officers/officials responsible for not conducting
s qualifying examination in accordance with Rules from
1983 to 1994 and subsequent thereto in accordance with
law. In other words, the officers must be held responsible
for their lapses and be punished in accordance with law.
5) The vacancies would be clubbed only for the purposes
c of calculating an arithmetical figure but, will be filled in
accordance with yearwise vacancies and considering the
officers eligible for promotion to the post of OTO in
accordance with seniority cum merit rule for 50% of the
promotion post. 6) All remaining 50% posts shall be filled
up purely on merit and by holding an examination. 7) The
0
persons who have already been promoted would not be
reverted and none of them would be entitled to claim any
financial benefits, if they have already retired from the
post of- OTO. 8) The candidates now selected in
E furtherance to the directions contained in the judgment
shall not be entitled to any arrears of pay because though
their promotion may be relatable to a previous year, such
promotion shall be notional without any consequential
benefits. [Para 28) [31-E-H; 32-A-H; 33-A-B]

F Case Law Reference:
1995 (3) SCR 734 referred to Para 25
(1998) 9 sec 223 referred to Para 25
2010 (3) SCR 755 referred to Para 26
G
1979 (2) SCR 458 referred to Para 27
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
5102-5103 of 2011.
H
JAGDISH PRASAD v. STATE OF RAJASTHAN & 13
ORS.
From the Judgment & Order dated 17.4.2009 of the High A
Court of Judicature for Rajasthan at Jaipur Bench, Jaipur in D.B.
Civil Special Appeal No. 1069 of 2006 and D.B. Civil Special
Appeal No. 1364 of 2008.

M.R. Calla, Charu Mathur for the Appellant.
B
Dr. Manish Singhvi, AAG, R.N. Mathur, R. Gopalakrishnan,
Bina Madhavan, Banwari Sharma (for Lawyer's Knit & Co.) for
the Respondents.

The Judgment of the Court was delivered by c
SWATANTER KUMAR J. 1. Leave granted.
2. These appeals are directed against the common
judgment of the High Court of Judicature of Rajasthan, Jaipur
Bench, at Jaipur dated 17th April, 2009 whereby the High Court D
,. in substance upheld the order of the Rajasthan Civil Services
Appellate Tribunal, Jaipur (in short the 'Tribunal') dated 8th
Febru~ry. 1999 and issued certain further dir~i::tions to the
respondents to undertake fresh exercise for promotion to the
post of District Transport Officer (in short the 'OTO') from the E
post of Motor Vehicle Inspectors. At the very outset we may
refer to the relevant part of the Division Bench judgment dealing
with the subject in question and issuing'the directions which
reads as under:
"There cannot be any dispute and as has been decided · F
by the Apex Court that clubbing of vacancies could be
made only for the purpose of direct recruitment. However, "
promotions have to be made on the basis of year wise
determination of vacancies to the candidates eligible for
the particular year who come in the ione of consideration G
for the particular year as also been referred above. In the
present case, it appears that State Government had given
a complete go-bye to the provisions of the relevant Rules
and while clubbing the vacancies from 1983-84 fill 1993-
H
14 SUPREME COURT REPORTS [2011] 12 S.C.R.

A 94, the promotions have been made accordingly. The
clubbing of vacancies for more than 10 years have not only
created complications so far as reservation of the posts
as perrelevant roster are concerned, but entire procedure
of zone of consideration for each hear have been disturbed.
B Merely deletion of the condition of qualifying examination
in the year 1992 will not justify the action of the State
government in clubbing all the vacancies of more than 10
years and give promotions to persons making a new zone
of consideration and reservation also accordingly. On the
c face of it the whole action of the State Government cannot
be sustained in the eyes of law. More so when it is also
not a case of one time promotion which also require a
special notification and amendment in the Rules.
Having considered entire facts and circumstances,
D since after due consideration proper discretion has been
used by the learned Tribunal as also learned Single Judge,
we find no ground for any further interference. The
appellant State may now make a complete fresh exercise
as per directions of the Tribunal as early as possible
E preferably within four months. It is further made clear that
persons already promoted shall not be demoted till the
exercise is made and fresh orders of promotions on the
basis of yearwise determination of vacancies are passed.
In case any person is not found suitable for the particular
F year and have already been given benefit of promotion, in
case of reversion or change of year of promotion, the
salary already paid, may not be recovered, however, pay
fixation has to be made accordingly. If any person has
retired during the intervening period, his retiral benefits
G already paid on the basis of last pay drawn may also not
be recovered except for revision of pension if required.
With the above observations and direction, the
appeals are disposed of accordingly."
H
JAGDISH PRASAD v. STATE OF RAJASTHAN & 15
ORS. [SWATANTER KUMAR, J.]
3. In order to examine the challenge to the impugned A
judgment in its proper perspective, it will be useful for us to refer
to the basic facts giving rise to the present appeal. ihe
appellant belongs to a Scheduled Caste and was initially
appointed as a Motor Vehicle Sub-Inspector vide order dated
23rd August, 1980. He was confirmed in this post on 3rd May, s
1983 whereafter, he was promoted upon his satisfactory
performance of his duties to the post of Motor Vehicle Sub
Inspector through Departmental Promotion Committee (in short
the 'DPC') on the principle of seniority-cum-merit vide order
dated 20th January, 1987. He was thereafter regularized in the C
said post on 15th October, 1988. On 13th April, 1992, a
notification was issued by the respondents amending the
Rajasthan Transport Service Rules, 1979 (in short the '1979
Rules') (marked as annexure P-5 to the Petition). By this
amendment, Schedule 1 and Schedule 2 of the 1979 Rules to
the existing Rules were amended. The Notification read as D
under:

"in exercise of the powers conferred by the proviso to
Article 309 of the Constitution of India, the Governor of
Rajasthan hereby makes the following amendments with E
immediate effect in the Rajasthan Transport Service Rules,
1979m namely:

AMENDMENT

In the said rules:- F

1. Amendment of Schedule-1:

(i) the existing entries at item

(ii) occurring in column 6 against to S.No. 4 shall G
be deleted.

2. The existing Schedule II shall be deleted."

4. As is evident from the above Schedule, earlier the H
16 SUPREME COURT REPORTS [2011] 12 S.C.R.

A candidates were required to pass the qualifying examination
for the post of District Transport Officer. However, by this
amendment, the said requirement was deleted under Schedule
1 and syllabus for the same was deleted from Schedule 2. In
other words, promotion would be possible without holding the
s said examination for the higher post.

5. On 27th May, 1994 a seniority list of Motor Vehicle
Inspectors was issued. On the basis of this seniority list, a
number of persons, including the appellant, were promoted to
the post of District Transport Officer vide order dated 8th July,
C 1994. One Shri Pooran Singh, respondent No.2 belonging to
the General Category, who was holding the post of Motor
Vehicle Inspector in the Transport Department, preferred an
appeal before the Tribunal against the order dated 8th July,
1994. According to him, he was senior to the persons who
D were promoted by that order and this was a supercession,
contrary to the 1979 Rules. Therefore, it was to be declared
as illegal and unjustifiable. He also prayed for consequential
reliefs.

E 6. Another contention raised before the Tribunal was that
the State ..of Rajasthan violated Rules 10 & 24 of the 1979
Rules and hence, the exercise of the State was arbitrary and
discriminatory. The clubbing of the vacancies from the years
1983-84 to 1993-94 was for the total 21 vacancies, which was
F improper as the respondents were obliged to consider the
vacancies in each given year in terms of Rule 10. According
to the challenge raised before the Tribunal, out of the 17
promotees from the Motor Vehicle Inspector cadre, 10 from
general category were actually senior to Poo.ran Singh but the
G candidates at serial nos.12 to 17 belonging to the Scheduled
Castes, were junior to him. He was at serial No.23 of the
seniority list and as such was entitled to promotion in
preference to those candidates. The State filed a reply before
the Tribunal and stated that though the vacancies had been
determined year wise no one had passed the qualifying
H
JAGDISH PRASAD v. STATE OF RAJASTHAN & 17
ORS. [SWATANTER KUMAR, J.]
examination and nobody had been found eligible for promotion A
upto 1st April, 1994 as per Schedule II of the 1979 Rules.
Thereafter,· for administrative reasons including the
representation made by Rajasthan Transport Inspector's Union,
the qualifying examination was done away with, as already
referred, and appointmenUpromotion to the post of OTO was B
made simply by promotion. 21 vacancies became available
and out of that 4 persons have already been promoted, leaving
a balance of 17 vacancies. Out of these 17 vacancies, 5
vacancies were reserved for Scheduled Castes, 3 for
Scheduled Tribes candidates and the remaining vacancies c
were clubbed and promotions were made on the basis of
seniority cum merit. The detail of the yearwise vacancies are
as follows:
Year Vacancies
D
1983-84 2
1984-85 2
1985-86 1
E
1986-87 2
1987-88 2
1988-89 1
F
1989-90 1
1990-91 1
1991-92 2
G
1992-93 1
1993-94 2
7. It was further the case of the State that the vacancies
H
18 SUPREME COURT REPORTS . [2011)12 S.C.R.

A have to be carried forward from year to year and in want of
eligible candidates, vacancies could not be filled in accordance
with rules. It was further urged by the State that the vacancies
in the post of DTOs could not be filled for want of eligible
candidates and, therefore, the vacancies were carried forward
B for consideration to the subsequent years. It is also averred in
the petition that the High Court had passed a judgment on 7th
April,.1997 in SBCW No. 3423 of 1995 titled Hirai Lal Joshi
v. State directing that Review DPC be held with regard to
vacancies for the year 1993-94 to 1996-97 and then the
C appointments were made, however, averrnents with regard to
supercession of Pooran Singh was denied.

8. Vide order dated 8th February, 1999, the appeal filed
by Pooran Singh was set aside by the Tribunal, and the
0 operative part of the judgment reads as under: ·

"In the light of the above discussion, Annexure-6 dated
8.7.1994 is quashed and the State Government is directed
tci hold review DPC within two months to determine
yearwise vacancies afresh. The State Government has
E already indicated yearwise vacancies in page 2 of its
reply. The review DPC should be convened year wise and
the promotion be done on the basis of year wise vacancies
only. Since the departmental examinations were not
organized by State Government from time (sic) and then
F that provision was deleted therefore, no candidate for any
particular year should be treated to be unqualified on
account of not clearing the departmental examination.
Ideally the notification dated 13.4.1992 should be
amended retrospectively but even if it is not done so, the
G State Government cannot circumscribe or dilute the
provision regarding "year-wise· filling up of vacancies.

In the net result this appeal succeeds and is accepted.
The State Government would pay the cost to the Appellant
which is determined at Rs.1000/-."
H
JAGDISH PRASAD v. STATE OF RAJASTHAN & 19
ORS. [SWATANTER KUMAR, J.]
9. This order of the Tribunal dated 8th February, 1999 was A
challenged by the State Government before the High Court. The·.
High Court vide its order dated 18th July, 2005 passed in Civil
Writ Petition No. 2111 of 1999, dismissed the Writ Petition and
maintained the direction to the State Government to hold review
DPC. Another writ petition was also filed by private persons B
being Writ Petition No. 1025 of 1999 which was also dismissed
vide order dated 23rd July, 2008. It may be noticed here that
reversion of Pooran Singh-petitioner was stayed by an interim
order. Later he sought voluntary retirement and retired.
However, appellant Jagdish Prasad was promoted as Assistant c
Transport Commissioner vide order dated 24th January, 2003.

10. Against the order passed by the learned Single Judge,
as afore-noticed, the appellant preferred an appeal before the
Division Bench of that High Court. All these appeals came to
be dismissed by the Division Bench vide its order dated 17th D
April, 2009, the relevant portion of which has already been
reproduced above.
11. The judgment of the Division Bench is impugned in the
present appeal. Before we proceed to discuss the contentions E
in relation to the factual matrix of the case, it will be useful to
examine the scheme of the 1979 Rules. The 1979 Rules had
been notified vide notification of December, 1979. In terms of
Rule 2(e) of the 1979 Rules, 'Direct Recruitment' means
recruitment made in accordance with Part IV of the 1979 Rules. F

12. Rule 2(k) of the 1979 Rules contemplates that 'Service'
or 'Experience', wherever prescribed in these Rules, as a
condition for promotion from one service to another, or within
the service from one category to another, or to senior posts in
the case of a person holding a lower post eligible for promotion G
. to higher post, shall include the period for which the person has
continuously worked on such lower post after regular selection
in accordance with Rules promulgated under proviso to Article
309 of the Constitution of India.
H
20 SUPREME COURT REPORTS [2011] 12 S.C.R.

A 13. Rule 7 of the 1979 Rules deals with Reservation of
vacancies for the Scheduled Castes and the Scheduled Tribes.
Such reservation has to be made in accordance with the orders
of the Government for such reservation in force at the time of
recruitment i.e. by direct recruitment and by promotion. ·
B Furthermore Rule 7(4) of the 1979 Rules requires that
appointments shall be made strictly in accordance with the
rosters prescribed separately for direct recruitment and
promotion. In the event of non-availability of the eligible and
suitable candidates amongst the Scheduled Castes and the
c Scheduled Tribes, as the case may be, in a particular year, the
vacancies so reserved for them shall be filled in accordance
with the normal procedure and an equivalent number of
additional vacancies shall be reserved in the subsequent year.
Such of the vacancies which remain so unfilled shall be carried
0 forward to the subsequent three recruitment years in total and
thereafter such reservation would lapse, provided that there
shall be no carry forward of the vacancies in the post or class/
category/group of posts in any cadre of service to which
promotions ·are made on the bash:. of both by merit and by
E seniority-cum-merit under these Rules.
14. The proviso to Rule 7(4) of the 1979 Rules obviously
restricts the application of carry forward. How the vacancies
are to be determined has been specified in Rule 10 of the 1979
Rules and the same reads as under:
F
"10. "Determination of vacancies:- (1 )(a) Subject to the
provisions of these Rules, the Appointing Authority shall
determine on 1st April every year, the actual number of
vacancies occurring during the financial year.
G (b) 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.
(c) Where a post is to be filled in by more than one method
H
JAGDISH PRASAD v. STATE OF RAJASTHAN & 21
ORS. [SWATANTER KUMAR, J.]
as prescribed in the rules or Schedule, the apportionment A
of vacancies, determined under clause (a) above, to each
such method shall be done maintaining the prescribed
proportion for the overall number of posts already filled
in. If any fraction of vacancies is left over, after
apportionment of the vacancies in the manner prescribed B
above, the same shall be apportioned to the quota of
various methods prescribed as a continuous cyclic order
giving precedence to the promotion quota.

(2) The Appointing Authority shall also determine the
vacancies of earlier years, yearwise which were required C
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."

15. Procedure for Direct recruitment is dealt with in Part D
-IV of the 1979 Rules, which requires inviting of applications,
scrutiny of applications, recommendations of the Commission,
disqualifications for appointment and selection by the
Appointing Authority.

16. Part-V of the 1979 Rules deals with 'Procedure for E
Recruitment by Promotion' with which we are primarily
concerned in the present case.

17. Rule 24 of the 1979 Rules provides Criteria, Eligibility
and Procedure for Promotion to Junior, Senior and other posts F
encadred in the Service.

18. It is not necessary for us to re-produce the entire Rule
24 of the 1979 Rules. It would suffice to refer to the relevant
part of the said Rule 24 of the 1979 Rules which is as follows: G

"24. Criteria, Eligibility and Procedure for Promotion to
Junior, Senior and other posts encadred in the service:-
(1) As soon as the Appointing Authority determines the
number of vacancies under rule 10 and decides that a
22 SUPREME COURT REPORTS [2011] 12 S.C.R.

A certain number of posts are required to be filled in by
promotion, the Appointing Authority shall, subject to
provisions of sub-rule (9), prepare a correct and complete
list of the senior-most persons who are eligible and
qualified under these Rules for promotion on the basis of
B seniority cum-merit or on the basis of merit to the class of
posts concerned.

(2) The persons enumerated in Column 5 of Schedule-1
shall be eligible for promotion to posts specified against
them in Column 2 thereof to the extent indicated in Column
c 3 subject to their possessing minimum qualifications and
e>glerience on the first day'of the month of April of the year
of selection as specified in Column 6.

xxx xxx xxx
D
(6) Selection for promotion to all other higher posts or
higher categories of posts in the Service shall be made
on the basis of merit and on the basis on seniority-cum-
merit in the proportion of 50:5J.

E Provided that if the Committee is satisfied that
suitable persons are not available for selection by
promotion strictly on the basis of merit in a particular year,
selection by promotion on the basis of seniority-cum-merit
may be made in the same manner as specified in these
F Rules.

xxx xxx xxx
(11) If in any subsequent year, after promulgation of these
Rules, vacancies relating to any earlier year are
G determined under sub-rule (2) of rule relating to
determination of vacancies which were required to be filled
by promotion, the Departmental Promotion Committee
shall consider the cases of all such persons who would
have been eligible in the year to which the vacancies relate
H
JAGDISH PRASAD v. STATE OF RAJASTHAN & 23
ORS. [SWATANTER KUMAR, J.]
irrespective of the year in which the meeting of the A
Departmental Promotion 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 B
to higher post for any period during which he has not
actually performed the duties of the post to which he 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 would have derived at the time of his c
promotion but no arrears of pay shall be allowed to him.

(11A) The Government or the Appointing Authority may
order for the review of the proceedings of the D.P.C. held
earli~r on account of some mistake or error apparent on
the face of record, or on account of a factual error D
substantially affecting the decision of the D.P.C. or for any
other sufficient reasons e.g. change in seniority, wrong
determination of vacancies, judgment/direction of any
Court or Tribunal, or where adverse entries in the
Confidential Reports of an individual are expunged or E
toned down or a punishment inflicted on him is set aside
or reduced. The concurrence of the Department of
Personnel and the Commission (where Commission is
associated) shall always be obtained before holding the
meeting of the review D.P.C." F

19. Schedule I of the 1979 Rules provided for Post,
Sources of recruitment, Qualification for Direct recruitment and
Post from which promotion is to be made. Clause 4 of
Schedule I of the 1979 Rules deals with the Post .of OTO which G
reads as under, after amendment:

H
.

S. Name Sources Minimum Post from Qualifications Remarks
No. of the recruit- qualification which and CJ)

post ment for direct promotion experience c
-0
with recruitment is to be for ;;o
percen- made promotion m
tage
s:
m
()
4. District 50% by Degree in Science Motor (i) 5 years' (i) Service rendered against the 0
Transport direct Commerce, Arts or vehicle experience post of Sales Tax Inspector or c
Officer recruit- Engineering from a Inspector in th~ post Inspector Excise and Taxation ~
mentand recognized Univer- ., mentioned prior to posting in the Transport ;;o
50% by sity established· in Columns. Department or Motor Vehicle m
-0
promotion by law in India or +(ii) Deleted Inspector shall count in computing 0
~
declared equivalent the period of 5 years' service as
thereto by the Motor Vehicle Inspector.
Government. (ii)Till directly recruited candidates
are not available posts may be
filled up from amongst the
Rajasthan Administrative officers
or Officers of any other State ~

Service or Rajasthan Tehsildar
Service. "'
CJ)

h
;;o
JAGDISH PRASAD v. STATE OF RAJASTHAN & 25
ORS. [SWATANTER KUMAR, J.]

20. As it is evident prior to the amendment, the expression A
used in the Schedule was "in addition to the above must have
passed qualifying examination as prescribed in Schedule -
//" This was notified to be deleted from the Rules vide
Notification dated 13 April, 1992. Consequentially, Schedule
II of the 1979 Rules was also amended and the syllabus B
provided for this qualifying examination was deleted in its
entirety. If we analyse the above Rules in their correct
perspective, it becomes evident that the Rules clearly postulate
merit to be the criterion for promotion to higher posts. The.
vacancies have to be determined as per Rule 10 of the 1979 c
Rules, on the 1st April of every year. If any fraction of vacancies
is left over, after the apportionment of vacancies in the manner
prescribed, the same shall be appointed through the quota of
various methods prescribed in continuous cyclic order, giving
precedence to the promotion quota. Appointing authority has 0
to determine yearwise vacancies of earlier years, which were
required to be filled in by promotion if such vacancies were not
determined and filled earlier in the year they were required to
be filled in, in the subsequent years.- In other words, the
emphasis of the language of these rules is on yearly vacancies E
and they are required to be filled in with reference to each
particular year. The vacancies are required to be determined
and filled in as on 1st April of every year, for the vacancies
occurring during the financial year, in terms of Rule 10(1 )(a).
Under Rule 7(1 ), the requisite vacancies are to be reserved for F
Scheduled Castes and Scheduled Tribes in accordance with
the order of the Government in force at the time of recruitment
that is by direct recruitment or by promotion. These vacancies
are to be filled by seniority-cum-merit and merit If the
vacancies, for the reasons stated, remained unfilled they can
be carried forward only for a limited period of three recruitment G
years in total, and thereafter such reservation would lapse, in
terms of Rule 7(4) of the 1979 Rules.

21. Another very important aspect of the Rules is that merit
and seniority-cum-merit are the only relevant criteria for H
26 SUPREME COURT REPORTS [2011] 12 S.C.R.

A promotion to various posts. The language of Rule 24(1) of the
1979 Rules does not allow for any ambiguity and clearly says
that a list of senior most persons, who are eligible and qualified
under the 1979 Rules, will be prepared and from that list,
promotion on the basis of seniority-cum-merit or on the basis
B of merit to the concerned class of posts will be made. Rule
24(6) of the 1979 Rules further postulates that all other higher
posts or higher categories of posts in the Service shall
be made on the basis of merit and on the basis on seniority-
cum-merit in the proportion of 50:50. If upon merit alone
c candidates are not available then selection by promotion on the
basis of seniority cum merit may be made in the same manner
as is specified in the 1979 Rules. On reading of Rule 24 (6),
24(11) and 24 (11 A) of the 1979 Rules conjointly, it is clear that
promotions have to be made by the DPC by the criteria and
0 procedure for promotion as applicable in that particular year,
to which the vacancies relate. The service experience of an
incumbent who has been so promoted, for promotion to higher
posts for any period during which he has not actually performed
the duties of the post to which he would have been promoted,
E shall be counted. It also requires that pay of a person who has
been so promoted shall be re-fixed at the pay scale which he
would have derived at the time of his promotion, but no arrears
of pay shall be allowed to him. The Government or the
appointing authority has the power to order for the review of
the proceedings of DPC held earlier on account of some
F mistake apparent on the face of the record or on account of
substantial error affecting the decision of the DPC or even for
any other sufficient reason like change in seniority, wrong
determination of vacancies etc.

G 22. The first and the foremost question that arises for
consideration by this Court is whether merely by the amendment
to Schedule I and the deletion of Schedule II of the 1979 Rules
the effect of the statutory provisions like Rules 6, 10, 24 of the
1979 Rules read in their plain language would stand diluted.
H Can it be argued that amendment to these schedules renders
JAGDISH PRASAD v. STATE OF RAJASTHAN & 27
ORS. [SWATANTER KUMAR, J.]

the statutory provisions ineffective and inoperative? A

23. It is a settled principle of law that the Schedule of the
1979 Rules has to be in conformity with, and is required to
advance the object of the primary statutory provision. Thus, a
schedule cannot in any way wipe out the statutory provisions
8
of the Act in effect and spirit. It is nobody's case, and in fact,
nothing has been brought to our notice, that Rules 6, 10, 11 and
24 of the 1979 Rules have been subjected to any amendment
by the competent authority. Once these provisions stand in the
statute book, then respondents cannot escape from complying C
with them in the appropriate manner and without defeating the
object of these Rules. We have already discussed the scheme
of the Act, which shows that the services of the Transport
Department in all relevant posts is covered under the provisions
of the 1979 Rules and their purpose is to make promotions on
merit or merit-cum-seniority. Their prescribed proportion of D
50:50 has to be maintained. When Schedule 1 of the 1979
Rules is read along with the above indicated provisions, it is
obvious that under Clause 4 of Schedule 1 of the 1979 Rules,
50% posts of DTO are to be filled up by direct recruitment and
50% posts by promotion. Now, the question is how the 50% E
promotions are to be filled up by the respondents. Rule 24(6)
of the 1979 Rules mandates that selection for promotion to all
other higher posts or higher categories of posts in the Service
shall be made on the basis of merit and on the basis of
seniority-cum-merit in the proportion of 50:50. In other words, F
50% vacancies are to be filled up on the basis of merit while
the remaining 50% vacancies in the promotion quota are to be
filled up by seniority-cum-merit. The persons have to be within
the appropriate position in the seniority list before they can be
considered for promotion under the latter category. Eligibility G
requirements have been specified under the 1979 Rules, which
candidates must satisfy to be considered under the seniority-
cum-merit category. The other persons who are to be
promoted to the post of DTO are on the basis of merit alone.
H
28 SUPREME COURT REPORTS [2011] 12 S.C.R.

A Even if Schedule II of the 1979 Rules does not exist, it is
obligatory on the part of the respondent to evolve a
methodology to make promotions purely on merit. Once the
framers of the Rules have intended to provide merit as the sole
criteria of promotion, the appointing authority is not vested with
B the jurisdiction to waive the same or completely wipe out the
same, on a flimsy excuse such as the one proposed in the
present case.

24. In light of this, we now come to the conduct of the
Government which we cannot but help to comment upon. Right
C from 1983-84 till 1993-94 no examination has been conducted
by the appropriate authority despite the fact that they also
issued notifications for holding exams on a few of these
occasions. lf there was a representation from the Rajasthan
Transport Inspector's Union, it cannot be considered as a
D sufficient cause or reason for not holding the examinations for
more than ten years and causing serious prejudice to the
candidates who might have been sufficiently meritorious to
qualify in the exams and be considered for promotion to 50%
of the posts under the promotion quota. It is a matter of regret
E that a Government can take such a stand before a Court of law
and expects the Court to accept such a submission. It is ex
facie untenable. Once the rules stand clear, the Authority
concerned is expected to act in accordance with law and not
to defeat the law. One who defeats the law by his unjustifiable
F and unsustainable acts is liable for the consequences of such
default. We fail to understand why the Government and its
entire hierarchy had shut its eyes to this gross violation of
statutory rules over such a long period. It is a matter of concern
that any rule of good governance that an obligation is imposed
G upon the State to select the best candidates to higher posts
and not to frustrate rules which prescribe merit as this is
essential to the process of selection. It is painful to note that
the Government has put forward such a flimsy excuse for its
inaction and unfortunately the same has weighed with the High
H Court to some extent, though it has dismissed the appeal of
JAGDISH PRASAD v. STATE OF RAJASTHAN & 28
ORS. [SWATANTER KUMAR, J.]
the State. We have no hesitation in observing that the A
Government has no justification whatsoever in not holding the
qualifying test for a long period of ten years 'and this is a matter
which the hierarchy of t_he State Government needs to examine
and fix responsibility.
B
25. Even after 1993-94, the process of selection adopted
by the State Government cannot be accepted. The preparation
of seniority list, method of selection and clubbing of vacancies
are apparently in violation of the statutory Rules as afore-
noticed. The Tribunal, in its judgment, has noticed Rule 24(ii) C
of the 1979 Rules and observed that even if th~ DPC held
together vacancies of several years, yet the vacancy of each
year should be determined and also filled up separately. In this
regard the reference was also made to the judgment of this
Court in the case of Vinod Kumar Sanga/ v. Union of India
((1995) 4 SCC 246]. We do approve of the observations made 0
by the Tribunal that on the one hand the department has treated
the rules as sacrosanct and on \the other hand, right from
introduction of the 1979 Rules not even a single examination
was held. The fallaciousness in the stand of the Government,
to our mind, is clear from the fact that the representations E
against the procedure started after 8 to 9 years, but right from
the first year i.e. from 1983, there can be no justification for not
holding the examination in accordance with the Rules. It
appears that the attempt was intended to suppress the rule of
selection by merit. The Tribunal failed to notice other provisions F
of the relevant rules. While referring to the judgment of this Court
in the case of B.L. Gupta v. M.C.D. [(1998) 9 SCC 223], it finally
quashed the order dated 8th July, 1994 and issued direction
to hold review DPC within the specified time by filling yearwise
vacancies. One direction of the Tribunal, as is appearing from G
its order, certainly cannot be sustained. The Tribunal could not
have directed that ~ideally the notification dated 13.4.1992
should be amended retrospectively'. It.is not clear whether the
Tribunal meant that this notification should be given effect to
H
30 SUPRE~E COURT REPORTS [2011] 12 S.C.R.

A retrospectively, in relation to the vacancies from of 1983-84, or
that the said notification itself should be amended. This
ambiguity was entirely uncalled for.

26. The Division Bench, while dealing with the judgment
B of the learned Single Judge and the Tribunal, referred to the
Rules to some extent and to the fact that for one vacancy, 5
eligible persons are required to be considered and for 2
vacancies, 8 eligible persons should be considered; and that
such proportion in accordance with the zone of consideration
C as specified under Rule 24(6) of the 1979 Rules should be
maintained. The High Court also referred to the judgment of
this Court in coming to the conclusion that clubbing of vacancies
was not proper, and that such a course could be adopted only
in the case of direct recruitment. The High Court directed the
making a completely fresh exercise and directed that the
D persons already promoted were not be demoted but promotion
be made yearwise. Though for son.ewhat different reasons,
partially accepting the findings recorded by the Tribunal, which
we. have discussed above, we would accept some of the
findings of the Tribunal and the High Court; but the conclusions
E arrived at cannot be accepted in their entirety. We are not only
concerned with promotion or otherwise of any relief to the
appellants or any persons in service but we must also ensure
that Rules are implemented and selection is made strictly in
accordance with such Rules. We also cannot ignore the fact
F that a Government servant gets a right, (though not indefeasible
right), to be considered for promotion to the appropriate post
to which he is eligible and entitled, in accordance with law. In
the case of Union of India and Another v. Hemraj Singh
Chauhan and others [(2010) 4 SCC 290] this Court while
G dealing with somewhat similar situation held as under:

"35. The Court must keep in mind the constitutional
obligation of both the appellants/Central Government as
also the State Government. Both the Central Government
and the State Government are to act as model employers,
JAGOISH PRASAD v. STATE OF RAJASTHAN & 31
ORS. [SWATANTER KUMAR, J.] .
which is consistent with their role in a welfare State. A

36. It is an accepted legal position that the right of eligible
employees to be considered for promotion is virtually a part
of their fundamental right guaranteed under Article 16 of
the Constitution. The guarantee of a fair consideration in
8
matters of promotion under Article 16 virtually flows from
guarantee of equality under Article 14 of the Constitution."

27. It is equally true that the rule of fairness in Government
action is an essential feature. However, such fairness has to
be founded on reasons. Usually, the providing of Reasons C
demonstrates the concept of reasonableness but where the
statutory rules provide the circumstances and criteria, ambit and
methods by which the selection should be governed, they would
become the yardstick of fairness. In the case of Manager
Government Branch Press and Anr. v. D.B. Belliappa [(1979) D
1 sec 477], this Court held that the essence of the guarantee
under Articles 14 and 16 of the Constitution is 'fairness
founded on reasons'.

28. Having discussed in detail the infirmities and illegalities E
from which the selection process suffers, we, though for
different reasons, have come to the same conclusion as the
High Court while also issuing directions. Therefore, while
setting aside the selection/promotion order dated 8th July,
1994, we further issue the following directions for strict F
compliance by all the authorities concerned and without any
further delay:

1. Fresh process of selection shall be held by the
competent authority in accordance with Rules, as
expeditiously as possible and-in any case not later G
than three months from today;

2. The selection by promotiori for the yearwise
vacancies shall be filled in by compliance to Rule
H
32 SUPREME COURT REPORTS [2011] 12 S.C.R.

A 24(6) of the 1979 Rules. The authorities shall fill
50% of the promotion vacancies purely by merit, for
which it will evolve a methodology, either by holding
a qualifying examination as was being conducted
prior to 1992, or by any other examination which
B would satisfy the basic criteria of selection by merit.

3. Remaining 50% of the promotion posts shall be
filled by seniority-cum-merit for which the
departmental DPC shall meet within the stipulated
time as afore-directed.
c
4. The Secretary (Transport), Government of
Rajasthan is hereby directed to conduct an enquiry
personally and fix responsibility on all the officers/
officials responsible for not conducting qualifying
D examination in accordance with Rules from 1983
to 1994 and subsequent thereto in accordance with
law. In other words, the officers must be held
responsible for their lapses and be punished in
accordance with law.
E
5. The vacancies would be clubbed only for the
purposes of calculating an arithmetical figure but,
will be filled in accordance with yearwise vacancies
and considering the officers eligible for promotion
to the post of DTO in accordance with seniority
F
cum merit rule for 50% of the promotion post.

6. All remaining 50% posts shall be filled up purely on
merit and by holding an examination.

G 7. The persons who have already been promoted
would not be reverted and none of them would be
entitled to claim any financial benefits, if they have
already retired from the post of DTO.

H
JAGDISH PRASAD v. STATE OF RAJASTHAN & 33
ORS. [SWATANTER KUMAR, J.]
8. The candidates now selected in furtherance to the A
directions contained in the judgment shall not be
entitled to any arrears of pay because though their
promotion may be relatable to a previous year, such
promotion shall be notional without any
consequential benefits. 8
29. The appeals are partially accepted and are disposed
of, with no order as to costs, with the directions afore-indicated.
All the authorities concerned shall comply with these directions
without default and submit their compliance report to the C
Registry of the High Court within 16 weeks from today.
8.8.8. Appeals disposed of.