M.P Agarwal (Petitioner) v. The State Of Rajasthan And Another (S).

S.C Agrawal, J.:— This petition under Article 226 of the Constitution has been filed by the petitioner Dr. M.P Agrawal, for the issue of a writ of mandamus to quash the order of the State Government dated 19th January, 1973, appointing Dr. S.S Srivastava, respondent No. 2, to the post of Junior specialist (Medicine) and also for the quashing of the order dated 31st October, 1974, whereby the petitioner was reverted from the post of Junior Specialist (Medicine) to the post of Civil Assistant Surgeon. In the writ petition aforesaid, the petitioner has also prayed for the issue of an appropriate writ, directing the State Govt. to appoint the petitioner as Junior Specialist (Medicine) against the vacancies of the year 1971 and or 1972.

2. The petitioner joined Government service as C.A.S (Civil Assistant Surgeon) on 3rd January, 1958. While working as C.A.S the petitioner obtained the degree of M.D in general medicine in the year 1965. By order dated 17th July, 1970, the petitioner was promoted to the post of Junior Specialist (Medicine) on an officiating basis. Dr. S.S Srivastava, respondent No. 2 entered Government service as C.A.S in the year 1955. He obtained the M.D Degree in Medicine in June, 1972 The post of Junior Specialist (Medicine) forms part of Rajasthan Medical and Health Service and recruitment to the said post is governed by the Rajasthan Medical and Health Service, Rules, 1963 (‘hereinafter referred to as the Rules’). Under the Rules, till the year 1967 recruitment for the post of Junior Specialist was made 100% by promotion from amongst C.A.S After 1967 the said recruitment was to be made in the ratio of 5% by promotion and 50% by direct recruitment. The qualifications prescribed for promotion to the said post was years service after post graduation in the specialty or 8 years as C.A.S with post graduate qualification. Thus post graduate qualification was necessary for eligibility for promotion to the post of Junior Specialist Daring the years 1969 to 1971, 14 vacancies had occurred in the cadre of Junior Specialist in general medicine out of which 7 vacancies had to be filled by promotion from amongst persons holding the post of Assistant Surgeon. It appears that the Departmental Promotion Committee did not meet during the said years and was convened only in the year 1973, and 7 persons, including respondent No. 2 were selected for promotion to the post of Junior Specialist (Medicine) and by order dated ??? January, 1973, respondent No. 2 was appointed as Junior Specialist (Medicine). In the order dated 19th January, 1973, as it was originally passed, it was stated that the appointment of respondent No. 2 was being made against the promotion quota of the year 1972 by a subsequent order dated January 10, 1974, the figure “1972” in the order dated 19th January, 1973 was deleted. In so far as the petitioner is concerned his name was placed by the Departmental Promotion Committee in the list prepared under Rule 24(3) of the Rules, containing names of persons who had been selected to fill officiating vacancies already existing or likely to accrue till the next meeting of the Committee. The petitioner was appointed as Junior Specialist by order dated 22nd March, 1973. Subsequently, the order dated 31st October, 1974 was passed whereby the petitioner was reverted from the post of Junior Specialist to the substantive to of C.A.S Aggrieved by the aforesaid order dated 19th January, 1973, appointing respondent No. 2 as a Junior Specialist and the order dt. 31st October, 1974, reverting the petitioner from the post of Junior Specialist to the post of C.A.S the petitioner has filed this writ petition.

3. During the pendency of this writ petition the petitioner was appointed as Junior Specialist (Medicine) by order dated 9th July, 1975 and by order dated 21st July 1977, the petitioner was appointed as Senior Specialist (Medicine). Respondent No. 2 was appointed as Senior Specialist (Medicine) by order passed earlier in May, 1977. The grievance of the petitioner is that as a result of the impugned orders dated 19th January, 1973, 31st October, 1974, Respondent No. 2 became senior to the petitioner in the cadre of Junior Specialists and as a result of the said seniority, the petitioner could not be appointed as Senior Specialist earlier than respondent No. 2. The main contention urged by Shri Mridul, the learned counsel for the petitions, is that under Rule 9(1) of the Rules it was incumbent upon the State Government to determine, at the commencement of each year, the number of vacancies anticipated during the calendar year and the number of persons likely to be recruited by each method i.e by direct recruitment and by promotion. It is submitted by the learned counsel that if the aforesaid Rule had been followed and the vacancies occurring in the years 1969, 1970 and 1971 had been filled in those years in accordance with the procedure laid down in the Rules, the petitioner would have been promoted as Junior Specialist in the vacancies which had occurred during the years 1969 to 1971 and respondent No. 2 would not have been appointed as Junior Specialist prior to the petitioner inasmuch as he became eligible for promotion to the post of Junior Specialist (Medicine) only after he obtained the degree of M.D in June, 1972. The submission of the learned counsel for the petitioner is that appointments in respect of vacancies which had occurred prior to June, 1972 could only be made amongst persons who were eligible for appointment on those vacancies at the time when those vacancies had occurred and that the appointment of respondent No. 2 as Junior Specialist (Medicine) on a vacancy which had occurred prior to June, 1972 could not be upheld and that if the appointment of respondent No. 2 on the post of Junior Specialist (Medicine) is set aside, the order reverting the petitioner would also have to set aside inasmuch as in that event the petitioner would have been entitled to be appointed as Junior Specialist on the vacancy. The writ petition is contested by the State only. Respondent No. 2 has chose not to appear.

4. On behalf of the State the learned Deputy Government Advocate has submitted that the provision of Rule 9(1) are not mandatory in character and that it was not incumbent upon the Government to fill the vacancies arising in a particular year in that year only. The submission of the learned Deputy Government Advocate is that under Rule 9(2) of the Rules, it was permissible for the Government to carry forward the vacancies which had occurred during the previous years and to make appointments on the said vacancies in the subsequent year. It has been submitted that the Departmental Promotion Committee had taken into consideration the vacancies which had occurred till 1973 and had made its recommendations for appointment on the vacancies and that at the time when the Departmental Promotion Committee met in January 1973 respondent No. 2 had obtained the post graduate qualification and he had 8 years' or service to his credit and henceforth was eligible for being promoted to the post of Junior Specialist (Medicine) according to the Rules.

5. The question that arise for consideration are whether the provisions of Sub-rule (1) of Rule 9 requiring the Government to determine, at the commencement of each year, the number of vacancies anticipated during the calendar year the number of persons likely to be recruited by each method, are mandatory or whether it is open to the Government to keep the vacancies occurring in a particular year or years vacant and fill up the said vacancies in a subsequent year and whether in view Sub-rule (2) of Rule 9 the Government was entitled to lump up the vacancies of the years 1969 to 1971 and make appointments on the same in 1973. As the said questions involve an interpretation of the provisions of Rule 9, it is necessary to set out the said provisions. Rule 9, as it stood at the relevant time, read as under:—

“9. Determination of vacancies—(1) Subject to the provisions of these rules the Government shall determine at the commencement of each year the number of vacancies anticipated during the calendar year and the number of persons likely to be recruited by each method.

(2) Any vacancies which remain unfilled for non-availability of suitable candida es or otherwise shall be carried forward from year to year provided that the additional vacancies of such of them as are not filled shall lapse at the end of the second year”.

6. It is settled law that while dealing with the question whether a particular statutory provision is of a mandatory or directory nature the court must ascertain the purpose of the said provision as well as the object sought to be achieved by the enactment of which the said statutory provision forms a part and adopt a construction which, while giving effect to the purpose of the said statutory provision also seeks to achieve the, object of the enactment. It is, therefore, necessary to ascertain the object of the Rules as well as the purpose underlying the provision contained in Rule 9.

7. A perusal of the various provisions of the Pules indicate the object of the Rules is to make provision for recruitment, by direct recruitment as well as by promotions of suitable persons, to post in the Rajasthan Medical and Health Service and to lay down the conditions of service of persons appointed to the said service in the muter of promotion, seniority and pay etc. Sub-rule (1) of Rule 9, by requiring the Government to determine it the commencement of each year the number of vacancies anticipated during the calendar year and the number of persons likely to be recruited by each method, seeks to give effect to the other provisions contained in the Rules which prescribe that recruitment to the Service shall be made by direct recruitment and by promotion. The said provisions contemplate the appointment of the vacancies which are likely to occur in an year amongst the two sources of recruitment referred to above Sub-rule (2) of Rule 9 which provides for carrying forward, from year to year, of vacancies which remain unfilled in a particular year seeks to preserve the quota on the basis of which the vacancies have been apportioned between the two sources of recruitment under Sub-rule (1) of Rule 9. The purpose underlying the provisions of Rule 9 is thus to provide for division of the vacancies occurring in a particular year between the two sources of recruitment and to preserve for the next year, the vacancies which could not be filled by a particular method of recruitment in a particular year.

8. If the provision of Sub-rule (1) of Rule 9 are so construed as to leave it in the discretion of the Government to determine or not to determine the number of vacancies anticipated during a particular year and to determine or not to determine the number of persons likely to be recruited by each method of recruitment laid down in Rule 6, then it would be open to the Government not to make appointment on the vacancies for a number of years and 40 fill all these vacancies in one particular year. The result would be that the whole scheme of the Rules would be frustrated. According to Rule 24. It, which days down the procedure for selection for recruitment by promotion, the selection is made from amongst the senior persons who are eligible at the time when it is made from amongst the senior persons who are eligible at the time when it is decided under Rule 9 that a certain number of posts shall be filled by promotion and qualifications of the applicants, if the Government has the discretion to determine or not to determine the number of the posts to be filled by promotion in a particular year it would be open to the Government not to make any appointments on the poets falling vacant in a particular year or years and fill those vacancies in a later year. The consequence would be that a person who was not eligible for selection if the post had been filled in the bear in which the vacancy had occurred and become eligible for selection for the post in the subsequent year, would be entitled to be considered and thereby persons who were eligible for selection in the particular year when the vacancy had occurred would be prejudicially affected. This would open the door for mischief and favoritism. It is settled principle of statutory construction that an interpretation which leads to such consequences must be avoided.

9. In the context reference may also be made to Rule 24-A which lays down that amongst the posts which have to be filled by promotion, certain proportion of posts shall be filled by selection strictly on the basis of merit and rest by selection on the basis of seniority-cum-merit. The proportion originally prescribed for the aforesaid two categories of posts was 50:50 and in 1966 it was altered to 1:2. As regards the fixation of inter-se-seniority of the persons who are appointed by the aforesaid two methods, Sub-rule (8) of Rule 24-A provides that among the persons appointed in the same class or grade of posts during the same year, persons appointed on the basis of seniority-cum-merit shall rank senior to those appointed by promotion on the basis of merit. If the government has the discretion not to fill the vacancies occurring in a particular year in that year the result would be that a vacancy which arises in a particular year against the merit quota and is not filled in that year would be oped up with a vacancy of seniority-cum-merit quota which arises in a subsequent year and both the appointments may be treated to be made at the same time and thereby the person selected by merit well to deprived of his seniority which be would have got if the selection to the post in the merit quotas had been made in the year in which the post fell vacant. Such a consequence would be avoided of Sub-rale (1) of Rule 9 is construed as imposing a mandatory obligation on the Government to determine, at the commencement of each year the number of vacancies anticipated during the calendar year and the number of persons likely to be recruited by each method of recruitment as laid down in Rule 6 and make appointments on that basis only. This does not mean that the Government cannot fill the vacancies occurring in a particular year in a subsequent year. It would be open to the Government to make appointment on a vacancy which occurred in a particular year in a subsequent year also but the said appointments will have to be treated as appointments of the year in which the vacancy, in which the appointment is made had accrued. This necessarily implies that while making appointments on vacancies which arose in an earlier year, the Government will take into consideration the qualifications and other conditions of eligibility as were present in the year in which the vacancies arose and treat the said appointments as appertaining to the year or years in which the vacancies arose for the purpose of seniority.

10. The question that next arises for consideration is as to whether there is any other provision in the Rules which lays down that while making appointments on the vacancies which arose in an earlier year the Government is entitled to make the appointments on the basis of the qualification and other conditions of eligibility as were present on the date on which the appointments are made on those vacancies. Relying upon the provisions of Rule 9(2) of the Rules, the learned Deputy Government Advocate has submitted that it is permissible for the Government to carry forward the vacancies for year to year and to lump up the vacancies in a subsequent year and that Government can make the appointments on the basis of qualifications and other conditions of eligibility as are existing on the date of appointment. The submission of the learned Deputy Government Advocate is that the words “or otherwise” in Rule 9(2) are wide enough to include every contingency, including inaction on the part of the Government in filling the vacancies, and that if the provisions are s? construed, the failure on the part of the Government to fill the vacancies which accrued during the years 1969 to 1971, would entitle the Government to carry forward the said vacancies and to make appointments on the same in the year 1973.

11. The learned counsel for the petitioner has submitted that if the expression “or otherwise” is given the wide construction suggested by the learned Dy. Government Advocate, it would result in completely defeating the other provisions contained in the Rules relating to quota and seniority. The learned counsel submits that word “or otherwise” should be construed ejusdem generis with the words which precede the said expression viz. “for non-availability of suitable candidates”. The submission of the learned counsel is that the expression “or otherwise” will include only these reasons which are similar to the reason set out in the preceding words, i.e soma reason which is beyond the control of the Government on account of which it has not been possible to fill the vacancies. The learned counsel in support of his aforesaid submission, has placed reliance on the decision of the Supreme Court George De Costa v. Controller of Estate Duty Mysore (1) where the expression “or otherwise” in sectioned of the Estate Duty Act, 1953, was construed ejusdem generis with the words “contract” which proceeded the said expression and it was held that in the context of the section the word “otherwise” should be construed ejusdem generis to mean some kind of legal obligation or some transaction enforceable at law or in equality which though not in the form of “contract,” may confer a benefit on the donor. The learned counsel has also placed reliance on the decision of the Supreme Court in Narayan Bhondeo Pimputkar v. Laxman Purshottam Pimputkar (2), wherein ejuedem generis rule has been applied by the Supreme Court.

12. I am in agreement with the contention urged by the learned counsel for the petitioner that the expression “or otherwise” should not be given such a wide construction so as to include even inaction on the part of the Government to fill the vacancies, occurring in a particular year as Rule 9(2), by empowering the Government to carry forward the vacancies to the next year, enables the Government to make appointments on those vacancies on the basis of qualifications and other conditions of eligibility as are present at the time of appointment, a wide construction to the words “or otherwise” would adversely effect the chances of promotion of persons eligible for consideration as well as the seniority of the persons appointed. In my view, the words “or otherwise” must be given a restricted meaning in consonance with the intention expressed by the rule making authority in the preceding clause i.e “for non-availability of suitable candidates”. The ejusdem generis rule as applied by the Supreme Court in George De Consta v. Controller of Estate Duty Mysore (1) can be invoked for adopting such a construction. The same result can also be arrived at by applying the rule “Nossiur a Socilis”. According to the said rule the words preceding an expression may throw light on its meaning and, therefore, the words preceding the expression “or otherwise” can be looked into for the purpose of interpreting the said expression, Thus, whether the ejusdem generis rule or the Nossiur a socilis rule is applied, the result is that the expression “or otherwise” has to be construed in the light of the expression “for non-availability of the suitable candidates” which precedes it and it comprehends only those cases in which due to some reason beyond the control of the Government it has not been possible for the Govt. to fill the vacancies in the particular year. I am not in agreement with the submission of the learned Deputy Government Advocate that putting a narrow construction on the words “or otherwise” in Sub-rule (2) of Rule 9 would result in curtailment of the rights of the Government servants. In my view, the provision which has been conferred by the carry forward Rule contained in Sub-rule (2) is of a very limited nature available for a period of one year only and the mischief which might result on account of giving a wide construction to the expression, or otherwise”, as suggested by the learned Deputy Government Advocate, is much greater than the benefit which may accrue to the Government servants on account of such a wide construction. I am, therefore, of the view that sub-rule (2) of Rule 6 provides for carrying forward of vacancies from one year to the next year only in those cases where the vacancies have remained vacant due to nonavailability of suitable candidates or for other similar reason and that merely because the Government has failed to take any action for the purpose of filling the vacancies in a particular year can be no ground for carrying forward the said vacancies in the subsequent years and to make appointments on these vacancies on the basis of qualifications and other conditions of eligibility subsequently acquired.

13. Now it has to be seen as to what was the reason for not making appointments in the cadre of Junior Specialists (Medicine) on the vacancies, which occurred in the years 1969 to 1971. The only reason which has been given in the reply to the writ petition filed on behalf of the State is that “the D.P.C could not meet from 1970 to 1972 for certain administrative reasons”. No further light is thrown in the reply as to what those administrative reasons were, which prevented the D.P.C (Departmental Promotion Committee) from meeting. In the absence of any elaboration of these administrative reasons, it cannot be said that the failure on the part of the Government to fill the vacancies in the years 1969 to 1971 was due to a reason beyond the control of the Government. The provisions of Sub-rule (2) of Rule 9, cannot be invoked for the purpose of carrying forward the vacancies of 1969 to 1971 and for purpose of making appointments on all those vacancies in the year 1973. It has, therefore, to be held that it was not permissible for the Government to lump together all the vacancies which had occurred in the previous years i.e 1969 to 1971 and make selections for promotion on those vacancies on the basis of eligibility existing on the date of making the said selections i.e in 1973. Even if there was some justification for the Government in not making appointments on the, posts of Junior Specialist (Medicine) which fell vacant during the year 1969 to 1971, the Government ought to have allocated the vacancies according to the years in which the said vacancies accrued and it should have made appointment on these vacancies only from amongst persons who were eligible for consideration at the time when the said vacancies had accrued. If the vacancies has been allocated in accordance with the year in which they accrued and the appointments had been made on that basis it is clear that the 7 vacancies, including the vacancy on which respondent No. 2 has been appointed, arose during the years 1969 to 1971. It is not disputed that respondent No. 2 had not acquired the necessary post graduate qualification till June 1972 and till then he was not eligible for promotion as Junior Specialist. If the vacancies had been filled in the years in which any arose, to accordance with the Rules, respondent No. 2 would not have been eligible for consideration. It has therefore, to be held that the order dated 19th January, 1973 appointing respondent No. 2 has Junior Specialist (Medicine) cannot be sustained and has to be quashed. The result of quashing the said order would be that one vacancy in the cadre of Junior Specialist (Medicine) which had accrued during the years 1969 to 1971 has to be filled by making selection from amongst persons who were eligible for consideration at the time when the said vacancy had accrued.

14. The writ petition is, therefore, allowed to the extent that the order dated 19th January, 1973, appointing respondent No. 2 Dr. S.S Srivastava as Junior Special s: (Medicine, is quashed and it is dire-ted that the vacancy arising in the cadre of Junior Specialist (Medicine) as a result of quashing of the said order should be filled by making selection from amongst persons who were eligible for consideration at the time when the said vacancy had accrued and if the petitioner is selected for the promotion to the said post of Junior Specialist (Medicine) he should be given all the benefits consequential to his promotion. In the circumstances of the case the parties are directed to bear their own costs.

15. Petition allowed.