JUDGMENT 1. - Dr. B.K. Choudhary who is holding the post of Junior Specialist in the Medical and Health Department of the Government of Rajasthan, has filed this writ petition with a prayer for quashing of the charge-sheet dated 12.10.88 and for grant of consequential benefits in the matter of promotion to the post of Senior Specialist. 2. In brief, the case of the petitioner is that he joined Government service as Civil Assistant Surgeon on 11.5.77. He was selected for the post of Junior Specialist in the year 1985 and presently he is holding that post. He is eligible for promotion to the post of Senior Specialist (Surgery). He has been denied promotion to the post of Senior Specialist on account of pendency of departmental enquiry against him. 3. The petitioner has stated that while he was working as Civil Assistant Surgeon and Tutor in Forensic medicines, he had conducted a post-mortem of Mrs. Radha on 1.3.79 at S.P. Medical College, Bikaner. The petitioner was falsely implicated in a criminal case under sections 218 and 302 I.P.C. The case was tried by the learned Sessions Judge, Bikaner, alongwith the main case of State v. Surajmal . By his judgment dated. 2.8.83, learned Sessions Judge found Surajmal guilty of culpable homicide and sentenced him to life imprisonment. The learned Sessions Judge found that Smt. Radha had died due to drowning and Surajmal was guilty of murdering Smt. Radha by drowning. Learned Sessions Judge found that no case was established against the petitioner and apparently, the case had been made out on the basis of suspicion. The Court further held that the allegations of having given false evidence has not been established against the petitioner. 4. During the pendency of the criminal case, the petitioner was placed under suspension by order dated, 29.4.82. He was reinstated in service on 28.11.83 after the judgment of the learned Sessions Judge, Bikaner. Notwithstanding his reinstatement, the petitioner was not given consequential benefits, he, therefore, served a notice on the respondents and then filed a writ petition before the High Court. D.B Civil Writ Petition No. 3177/88, Dr. He was reinstated in service on 28.11.83 after the judgment of the learned Sessions Judge, Bikaner. Notwithstanding his reinstatement, the petitioner was not given consequential benefits, he, therefore, served a notice on the respondents and then filed a writ petition before the High Court. D.B Civil Writ Petition No. 3177/88, Dr. B.K. Choudhary v. State of Rajasthan and another was decided by the Court on 8.12.88 and a direction was issued to the respondents to decide the case of the petitioner within three months and to make payment of all the arrears of salary payable to him within three months. After filing of the writ petition by the petitioner, charge-sheet dated, 12.10.88 was served on the petitioner for initiation of enquiry against him under rule 17 (aa) of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (for short rules of 1958). The allegation against the petitioner is that he had not submitted a correct report of post-mortem and, had therefore, neglected the discharge of his duties. In the statement of allegations reference his been made to the factum of post-mortem having been conducted by the petitioner, subsequent post-mortem having been conducted by the Medical Board on 10.3.79, Medical Board having been constituted under the orders of the C.J.M. Bikaner and after making reference to some parts of the report it has been alleged that the, petitioner has not properly discharged his duties and has committed negligence in preparing the post-mortem report. The petitioner submitted a detailed reply dated, 27.1.89. Thereafter, Additional Commissioner (Departmental Enquiries-I was appointed as Enquiry Officer. Subsequently, by order dated. 4.12.90, the Special Secretary, Food and Civil Supplies Department, was appointed as Enquiry Officer. After 4.12.90, the petitioner had appeared before the Enquiry Officer on 23.2.91, 12.3.91, 23.4.91 and 26.6.91. However, no further progress has been made in the enquiry. At one time, Shri M.D. Korani acted as Enquiry Officer in the capacity of Secretary, Food and Civil Supplies Department, and, thereafter, Shri Nayar acted as Enquiry Officer. Thereafter, another person has taken over as Secretary, Food and Civil Supplies Department. On account of the pendency of enquiry the petitioner has been denied promotion and, according to him, he has been denied promotion and, according to him, he has been harassed and penalised for the last 12 years in the garb of prosecution and pending enquiry. Thereafter, another person has taken over as Secretary, Food and Civil Supplies Department. On account of the pendency of enquiry the petitioner has been denied promotion and, according to him, he has been denied promotion and, according to him, he has been harassed and penalised for the last 12 years in the garb of prosecution and pending enquiry. A notice for demand of Justice dated, 31.8.91 was served on behalf of the petitioner, but, no action has been taken by the respondents State to drop the proceedings and to consider the case of the petitioner for promotion to the post of Senior Specialist. 5. The petitioner's grievance is that once the learned Sessions Judge has recorded a specific finding that the death of Smt. Radha had been caused due to drowning and that was the finding of the petitioner himself, there could be no justification for issuing a charge-sheet to him for a departmental enquiry or on the ground of negligence in the preparation of the post-mortem report. Moreover, the petitioner was acquitted by the learned Sessions judge from the charge of having given false evidence. The petitioner has claimed that none of the three Medical Boards could find fault with the report submitted by the petitioner. Moreover, when the learned Sessions Judge found that the cause of death was drowning and he convicted Surajmal on the charge of culpable homicide there is no reason for prosecuting the petitioner by disciplinary proceedings. The petitioner cannot be charged with the allegation of misconduct or alleged negligence or mistake in the preparation of the post-mortem report. No allegation of ulterior motive has been levelled against the petitioner in regard to the preparation of the post-mortem report. The petitioner has further submitted that the charge-sheet has been issued against him after a period of almost one decade of his having submitted the post-mortem report. Moreover, after filing of the reply by him, the Government did not apply its mind as per the requirements of rule 16(4) and has continued the enquiry without any reason or rhyme. 6. Reply to the writ petition has not been filed on facts despite more than three opportunities having been given to the respondents. Moreover, after filing of the reply by him, the Government did not apply its mind as per the requirements of rule 16(4) and has continued the enquiry without any reason or rhyme. 6. Reply to the writ petition has not been filed on facts despite more than three opportunities having been given to the respondents. Learned Additional Government Advocate has placed before the court the record on the basis of which the decision to initiate disciplinary proceedings against the petitioner was taken as also the decision to appoint Enquiry Officer was taken by the respondents. This record shows that after the decision of the learned Sessions Judge, Bikaner, in the criminal case, the matter was referred to the Law Department for its opinion, as to whether the appeal should be filed for enhancement of sentence of accused Surajmal and against the acquittal of the petitioner. On 22.2.84, the Director, State Litigation, expressed the opinion that it was not a fit case for filing the appeals. This opinion was agreed to by the Law Secretary and, thereafter, decision was taken not to file any appeal. Dy. Secretary, Medical and Health Department expressed opinion on 3.2.84 that although the petitioner had been acquitted by the Court on technical grounds, since the Medical Board had given different opinion on the report of the petitioner, it will be proper to propose departmental enquiry against the petitioner. This proposal was approved by the Health Secretary. Thereafter the matter was examined by the Department of Personnel and Administrative Reforms in July 1985 and it was opined by the Dy. Secretary, Department of Personnel on 6.9.85 that it was not a fit case for initiation of departmental enquiry. He however, further expressed the view that since the Medical and Health Department had sent the proposal for initiation of enquiry, the said Department should be asked to again give its opinion in the light of the note of the Department of Personnel. The Medical and Health Department again expressed the opinion that an enquiry under Rule 17 of 1958 Rules be initiated. The Department of Personnel then asked the Medical and Health Department to send draft charge-sheet against the petitioner under Rule 17 of 1958 Rules. The proposal of enquiry under rule 17 of 1958 rules was repeated by the Medical and Health Department on 7.6.86 and 30.6.1988. The Department of Personnel then asked the Medical and Health Department to send draft charge-sheet against the petitioner under Rule 17 of 1958 Rules. The proposal of enquiry under rule 17 of 1958 rules was repeated by the Medical and Health Department on 7.6.86 and 30.6.1988. However, on 1.9.88, the Section Officer of the Medical and Health Department expressed the opinion that enquiry be initiated under rule 17 (aa) of 1958 Rules and, thereafter, the petitioner was served with the charge-sheet under rule 17 (aa) of 1958 Rules. The petitioner submitted his reply to the charge-sheet on 27.1.89. The Head Legal Assistant of the Department of Personnel examined the reply and pointed out that since technical questions were involved in the matter and enquiry had been initiated at the instance of the Enquiry Department, namely, the Department of Personnel, file is submitted for taking a decision after thorough consideration of the reply. However, on this note, the Dy. Secretary, Department of Personnel, recorded following one line on 10.4.89: "We may appoint Additional Commissioner (I) as Enquiry Officer for regular enquiry under Rule 17 (AA)". 7. This was approved by the Secretary, Department of Personnel who appended his signatures. Thereafter an order was issued on 17.3.90 appointing the Additional Commissioner (I) Department of Enquiries as Enquiry Officer. Subsequently, by an order dated 4.12.90, the Secretary of Food and Civil Supply Department was appointed as Enquiry Officer. Different orders were passed for appointing of the presenting officer and additional presenting officer and correspondence exchanged between the Department of Personnel and Secretary, Food and Civil Supply Department for conduct of the enquiry for the last over one year and four months, but, no tangible step has been taken for the purpose of actual holding of the enquiry. The entire record shows that a strange approach was adopted by the departmental authorities of Medical and Health Department and the Department of Personnel. The file relating to the decision to initiate enquiry against the petitioner has been passed from one table to another in a period of almost five years before the issue of charge-sheet to the petitioner under rule 17 (aa). The file relating to the decision to initiate enquiry against the petitioner has been passed from one table to another in a period of almost five years before the issue of charge-sheet to the petitioner under rule 17 (aa). It is very pertinent to note that while Department of Personnel had expressed categorically that it was not a fit case for initiation of the departmental enquiry, it ultimately succumbed to the wishes of the Medical and Health Department for initiation of the enquiry. Medical and Health Department expressed the view that enquiry be initiated under Rule- 17. However, before a final decision was taken, rule 17 (aa) was inserted by notification dated, 16.11.87, which was published in the gazette dated, 18.11.87 and, therefore, when the charge-sheet was actually issued, it was issued under rule 17 (aa) of 1958 Rules. When the petitioner submitted a comprehensive reply dated 27.1.89, which runs into 32 typed sheets, the Dy. Secretary, Department of Personnel did not even bother to examine the reply of the petitioner on merits to decide as to whether it was a fit case for holding further enquiry against the petitioner or not, but simply wrote one line of which reference has been made herein above and the Special Secretary Department of Personnel merely approved the opinion of the Dy. Secretary (D.O.P.). There has been no consideration worth the name of the various points raised by the petitioner in his comprehensive reply to the chargesheet served upon him. Instead of making an objective consideration of the reply filed by the petitioner, Department of Personnel acted as if, submission of reply by the petitioner and passing of order of appointment of Enquiry Officer were empty formalities. 8. In the context of fact situation which has been narrated in the writ petition and which has been borne out from the record produced before the Court, I may now deal with the submissions advanced by the learned counself for the petitioner. 9. Shri Rajendra Soni, learned counsel for the petitioner has in the first instance, argued that no allegation of misconduct could possibly be levelled against the petitioner in regard to his alleged negligence in the discharge of duties in the preparation of the post-mortem report. 9. Shri Rajendra Soni, learned counsel for the petitioner has in the first instance, argued that no allegation of misconduct could possibly be levelled against the petitioner in regard to his alleged negligence in the discharge of duties in the preparation of the post-mortem report. The argument of Shri Soni is that the petitioner had opined in the post-mortem report that the death was caused due to drowning and that Surajmal had caused death of Smt. Radha by drowning. Shri Soni argued that the three Medical Boards which were constituted one after the other, have not expressed any definite opinion about the death of Smt. Radha. Thus, there is no justification for proceeding against the petitioner on the charge of alleged negligence in the performance of his duties. Shri Soni submitted that there is no allegation of mala fide or ulterior motive against the petitioner. The difference of opinion amongst the professionals is not unusual and merely on that ground a professional person falling in the category of the doctors cannot be proceeded against on the charge of misconduct. Shri Soni submitted that none of the three Medical Boards expressed any opinion about the lapses on the part of the petitioner in the preparation of the report. The second contention of Shri Soni, learned counsel for the petitioner is that there has been an abnormal delay in the initiation of departmental enquiry against the petitioner. The death of Smt. Radha took place on 1.3.79. The petitioner was placed under suspension on 29.4.82 and was prosecuted before the learned Sessions Judge, Bikaner. The judgment was given by the learned Sessions Judge on 2.8.83. The charge-sheet has been served on the petitioner only in the month of October 1988. Thus, from the date of incident, charge-sheet has been given after over 9 years and 7 months and even from the date of judgment of the learned Sessions Judge charge-sheet has been given to the petitioner after over five years. By making reference to the various Circulars issued by the Government in the matter of holding of departmental enquiry, Shri Soni argued that mere exchange of nothings in different departments cannot justify the extra-ordinary delay of over five years in the initiation of the departmental enquiry against the petitioner and this delay by itself, is sufficient for quashing of the charge-sheet. Shri Soni further submitted that although, the petitioner had filed a detailed reply in January, 1989, but, without any objective application of mind to the reply the Department of Personnel arbitrarily appointed the Enquiry Officer. Thus, there has been a clear non-compliance of rule 16(4) of 1958 Rules. Shri Soni submitted that even after the appointment of Enquiry Officer in March 1990, no steps have been taken for effective holding of the Departmental Enquiry. This abnormal delay in the service of the charge-sheet, non-consideration of the reply filed by the petitioner and non-holding of the actual enquiry has gravely affected the right of the petitioner for promotion to the post of Senior Specialist and he has been harassed to the extreme. 10. Shri Ashok Parihar, Additional Government Advocate, on the other hand, has strongly pleaded that this Court must not interfere with the enquiry proceedings at this stage merely on the ground of delay in the initiation of enquiry or in the matter of appointment of the Enquiry Officer. Shri Parihar submitted that the petitioner had undoubtedly acted without due care and caution in preparing the post-mortem report of Smt. Radha and therefore, he has rightly been charged with the dereliction of his duties. Shri Parihar sought to explain the delay of five years by arguing that the matter was being considered by the Administrative Department as well as the Department of Personnel at different levels and after complete examination of the matter decision to issue charge-sheet under Rule 17 (aa) was taken. Shri Parihar argued that so far as consideration of the reply is concerned, it is not necessary for the departmental authorities to pass a speaking order. The very fact that a decision was taken to appoint Enquiry Officer shows that the reply of the petitioner has not been treated as satisfactory. 11. Rule 17(1) (aa) was inserted vide notification No. F. 3(9) DOP/A-III/85, dated, 16.11.87 (published in Rajasthan Gazette Extraordinary dated. 16.11.87). The very fact that a decision was taken to appoint Enquiry Officer shows that the reply of the petitioner has not been treated as satisfactory. 11. Rule 17(1) (aa) was inserted vide notification No. F. 3(9) DOP/A-III/85, dated, 16.11.87 (published in Rajasthan Gazette Extraordinary dated. 16.11.87). This rule reads as under: "17 (a) --- (aa) holding an enquiry, in the manner laid down in Rule 16, in every case, in which it is proposed to withhold increments of pay for a period exceeding three years, or with cumulative effect for any period or so as to adversely affect the amount of pension payable to him or in which the disciplinary authority is of the opinion that such inquiry is necessary." Rule 16(2) "The Disciplinary Authority shall frame definite charges on the basis of the allegations on which the inquiry is proposed to be held. Such charges together with a statement of the allegations on which they are based, shall be communicated in writing to the Government servant, and he shall be required to submit, within such times as may be specified by the Disciplinary Authority, a written statement indicating whether he admits the truth of all or any of the charges what explanation or defence, if any, be has to offer and whether he desires to be heard in person: Provided that it shall not be necessary to frame any additional charge when it is proposed to take action in respect of any statement or allegation made by the person charged in the course of his defence. " 16 (4) On receipt of the written statement of defence, or if no such statement is received within the time specified, the disciplinary authority may itself enquire into such of the charges, as are not admitted or if, it considers it necessary so to do, appoint a Board of Inquiry or an Inquiring Authority for the purpose, and whereall the articles of charges have been admitted by the Government servant in his written statement of defence, the Disciplinary Authority shall record its findings on each charge." 12. A perusal of the above rules shows that penalty of with holding increments of pay for a period exceeding three years with cumulative effect can be imposed only after holding of an enquiry in the manner laid down in Rule- 16 and for holding enquiry under Rule -16 it is obligatory for the disciplinary authority to frame definite charges on the basis of allegations on which enquiry is proposed to be held. 13. Rajasthan Civil Services (Conduct) Rules, 1971 have been framed by the Governor of Rajasthan in exercise of the powers under proviso to Article 309 of the Constitution. These rules specify acts and omissions of the Government servants which can be construed as misconduct. Rule-4 of 1971 Rules lays down that a Government servant must work with full devotion to duties. 14. The question, as to whether mere negligence on the part of the Government servant, in all cases, can be considered as misconduct so as to warrant a disciplinary action, came up for consideration before the Supreme Court in Union of India v. J. Ahmad (1979) 2 SCC 286 . That was a case in which allegations levelled against the respondent, who was a member of the All India Services, were that he had negleted in the performance of his duties. High Court of Assam and Nagaland found that the allegations levelled against the respondent cannot be termed as misconduct. While upholding the judgment of the High Court, their Lordships of the Supreme Court observed as under : "Failure to come up to the highest expectations of an Officer holding responsible post or lack of aptitude or qualities of leadership, would not constitute as failure to maintain devotion to duty. The expression 'devotion to duty' appears to have been used as something opposed to indifference to duty or easy going or light-hearted approach to duty." Their Lordships further observed : The inhibitions in the Conduct Rules dearly provide that an act or omission contrary thereto so as to run counter to the expected code of conduct would certainly constitute misconduct. Some other act or omission may as well constitute misconduct. Allegations in the various charges do not specify any act or omission in derogation of or contrary to Conduct Rules save the general Rule 3 prescribing devotion to duty. Some other act or omission may as well constitute misconduct. Allegations in the various charges do not specify any act or omission in derogation of or contrary to Conduct Rules save the general Rule 3 prescribing devotion to duty. It is, however difficult to believe that lack of efficienty, failure to attain the highest standard of administrative ability while holding a high post would themselves constitute misconduct. If it is so, every officer rated average would be guilty of misconduct. Charges in this case as stated earlier clearly indicate lack of efficiency, lack of foresight and indecisiveness as serious lapses on the part of the respondent. These deficiencies in personal character or personal ability would not constitute misconduct for the purpose of disciplinary proceedings." Their Lordships further observed: "Code of conduct as set out in the Conduct Rules clearly indicates the conduct expected of a member of the service. It would follow that conduct which is blameworthy for the Government servant in the context of Conduct Rules would be misconduct. If a servant conducts himself in a way in consistent with due and faithful discharge of his duty in service, it is misconduct (see Pieerce v. Foster, 17 QB 536 ). A disregard of an essential condition of the contract of service may constitute misconduct (see Laws v. Landon Chronicle (Indicator News paper, (1959) WLR 698) . This view was adopted in Shardaprasad Onkarprasad Tiwari v. Divisional Superintendent, Central Railway, Nagpur Division, Nagpur, 61 Bom LR 23) and Satubha K. Vaghela v. Moosa Raza (10 Guj LR 23) . The High Court has noted the definition of misconduct in Stroud's Judicial Dictionary which runs as under: Misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct." 15. Relying on this decision a Division Bench of this Court in Gauri Shankar Mishra v. State of Rajasthan, 1987 (2) R.L.R. 560 , held that the allegations levelled against a Naib Tehsildar that he passed orders of mutation beyond territorial jurisdiction will not constitute misconduct, so as to warrant the disciplinary action under the Rajasthan Civil Service (Classification, Control and Appeal) Rules, particularly when no allegation of mala fide was levelled against the petitioner. 16. In Dr. 16. In Dr. R.K. Sharma v. State of Rajasthan 1989 (1) RLR 659 , S.C. Agrawal, J. (as he then was), considered more or less a case which is identical even on facts to the case of the petitioner. That was a case in which the petitioner Dr. R.K. Sharma was posted as Medical Jurist at Prince Vijai Singh Men's Memorial Hospital, Bikaner. He conducted the post-mortem on the dead body of Smt. Dayawati on 17.4.62. Earlier to this, he had examined the injuries of one Hanuman Das Chandak and prepared injury report of Shri Chandak while acting as Medical Jurist. The petitioner was charge-sheeted under Rule 16 of the Rules of 1958. Allegations levelled against him were that he had deliberately suppressed the truth in the post-mortem report of Smt. Dayawati and had prepared a false injury report in respect of the injuries of Hanuman Das and that he gave false statement which was inconsistent with the injury report. It was also alleged that he was in the habit of giving flase reports and false statements. The Inquiry Officer exonerated the petitioner, Dr. R.K. Sharma from charge Nos. 1 and 3. Regarding charge No.2 he held that the petitioner had committed an error in considering a grievous injury to be a simple one. An order of compulsory retirement was passed by the Government after issue of show cause notice and receipt of the reply of the petitioner. While dealing with the argument that a professional cannot be hauled up with the allegation of misconduct in case of mere error of judgment and negligence, Agrawal, J. observed : "In my opinion, a distinction has to be drawn between a mere error of judgment or negligence on the one hand and misconduct on the other. Misconduct means intentional wrong doing. It implies failure to act honestly and reasonably either according to the ordinary and natural standared or according to the standard of a particular profession and it does not cover mere negligence in duty. (2)In re 'P' an Advocate : AIR 1963 S.C 1313 it has been observed that mere negligence of error of judgment on the part of the Advocate would not amount to professional misconduct, and error of judgment cannot be completely eliminated in all human affair. Similarly, in Ganesan v. A.K. Joscelyne : AIR 1957 Cal. (2)In re 'P' an Advocate : AIR 1963 S.C 1313 it has been observed that mere negligence of error of judgment on the part of the Advocate would not amount to professional misconduct, and error of judgment cannot be completely eliminated in all human affair. Similarly, in Ganesan v. A.K. Joscelyne : AIR 1957 Cal. 33 , it has been held as under : "Professional misconduct on the part of the person exercising one of the technical profession cannot fairly or reasonably be found, merely on a finding of a bare non- performance of a duty or some default in performing it. The charge is not one of inefficiency, but of misconduct and in an allegation of misconduct, an imputation of a certain mental condition is always involved. I think, it would be impossible for any professional man to exercise his profession if he was to be held guilty of misconduct simply because he had not, in a given case, been able to do all that was required in the circumstances or that had misconceived his duty or failed to perform a part of it. I think, the test must always be whether in addition to the failure to do the duty, partial or'entire, which had happened, there had also been a failure to act honestly and reasonably." 17. In the light of the principles of law laid down in the three cases referred to above, the facts of this case deserve a close scrutiny. The petitioner had conducted the post-mortem and prepared a post-mortem report in January, 1979. A Medical Board was thereafter, constituted. A post-mortem was again conducted. Thereafter, two other Medical Boards were constituted. These two Medical Boards expressed their opinions on the basis of the record relating to the case. While, the petitioner gave a cause of death as drowning, the three Medical Boards did not express any definite opinion about the cause of death. The learned Sessions Judge, Bikaner, prosecuted the petitioner for offence under section 218 I.P.C., found that the case had been instituted against the petitioner only on the basis of suspicion and, there was no evidence to bring home the charge against the petitioner under section 218 I.P.C. Learned Sessions Judge also held that the death of Smt. Radha was caused due to drowning and her husband Surajmal was responsible for the same. From the perusal of the charge-sheet it is clear that there is no allegation against the petitioner of having prepared the post-mortem report with ulterior motive or ill intention. The only allegation levelled against the petitioner is in the context of the opinion expressed by the concerned Medical Board. Thus, what has been alleged against the petitioner is that he has not acted with utmost care in preparing the medical report and has not acted in accordance with the requirements laid down in the Medical Jurisprudence. At the best the allegation levelled against the petitioner is to the effect that he has not properly prepared the medical report and has acted carelessly. It has not been shown that on account of the error, or negligence or carelessness on the part of the petitioner the accused has, in any manner, been benefited. It has not been alleged that the petitioner prepared report in order to help the accused. Thus, the basis of allegation levelled against the petitioner lies only in the element of error or negligence in the performance of his duties as Medical Jurist. This cannot be made basis for a departmental enquiry against the petitioner, particularly, when there is a total absence of allegation of mala fide against the petitioner. It must, therefore, be held that the charge-sheet issued to the petitioner vide memorandum dated 12.10.88 is without jurisdiction and without justification. 18. Initiation of proceedings against the petitioner also deserves to be quashed on the ground of abnormal delay in the initiation of the enquiry. As it is evident from the facts mentioned in the earlier part of the judgment, the incident relates to the month of January 1979 and the charge-sheet has been issued in the month of October, 1988. Thus, there has been a delay of over 9 years and 9 months in the initiation of enquiry against the petitioner with reference to the date of incident. Even if, I were to ignore the period during which the petitioner was prosecuted, it is clear that after the judgment of the learned Sessions Judge it took a period of over five years to the Government to issue charge-sheet to the petitioner. The casual approach adopted by the respondents in issuing the charge-sheet to the petitioner under Rule 17 (aa) also shows that the respondent was never serious in initiating enquiry against the petitioner. The casual approach adopted by the respondents in issuing the charge-sheet to the petitioner under Rule 17 (aa) also shows that the respondent was never serious in initiating enquiry against the petitioner. The Department of Personnel, which should normally have taken decision in the matter virtually shifted its discretion to the Administrative Department, namely, the Medical and Health Department. The charge-sheet which was to be given under Rule- 17 simpliciter, was issued ultimately under Rule 17 (aa). This rule was not even in existence when decision was taken to initiate the enquiry. Merely because, the file was being tossed from one department to another and from one officer to the another, it is not possible to ignore the delay of five years in the issue of charge-sheet to the petitioner. I have discussed the circumstances in which this Court quashed the proceedings of enquiry on the ground of delay in K.M. Dani v. State of Rajasthan, S.B. Civil Writ Petition No. 1662/87 , decided today. After placing reliance on the several decisions of this Court and also on the decision of the Supreme Court in State of Madhya Pradesh v. Bani Singh, AIR 1990 S.C. 1308 , I have held that in the absence of sufficient explanation, this Court can, in appropriate cases, quash the proceedings of the enquiry. The petitioner has, in the present case, already suffered the agony of prosecution for about four years and now the sword of enquiry is hanging over his head for about four years. He was compelled to file writ petition for getting the benefits which were due to him after the suspension order passed against him was revoked. He had earlier suffered suspension as well. It is a case in which neither the interest of service nor the public interest warrant continuance of disciplinary enquiry initiated after over 9 years of the incident and after five years of the judgment of the learned Sessions judge, Bikaner. Above all, for the last four years, no tangible progress has been made in the departmental enquiry. Evidence of not a single witness has been recorded. Even though the Enquiry Officer had been appointed two years ago, the respondent has not shown any enthusiasm to expeditiously conclude the enquiry against the petitioner. Above all, the petitioner has suffered immensely because of denial of promotion to the post of Senior Specialist on account of pendency of enquiry. Evidence of not a single witness has been recorded. Even though the Enquiry Officer had been appointed two years ago, the respondent has not shown any enthusiasm to expeditiously conclude the enquiry against the petitioner. Above all, the petitioner has suffered immensely because of denial of promotion to the post of Senior Specialist on account of pendency of enquiry. Thus, I am clearly of the opinion that the proceedings of the enquiry must not be allowed to continue. 19. The additional reason for not allowing further holding of the enquiry is that even though, the petitioner had submitted a comprehensive reply running into 30 pages, the competent authority did not even bother to consider the reply before it, issued an order for appointment of the Enquiry Officer. Requirement of rule 16(4) has been treated as an empty formality by the respondents. The competent authority did not examine the various contentions raised by the petitioner in his reply to the show cause notice, instead, it simply passed one line order for appointment of the Enquiry Officer. In Dr. K.N. Sachdeva v. State of Rajasthan and others, decided on 3.2.87, S.C. Agrawal, J (as he then was), allowed the writ petition of the petitioner on the ground that before issuing the order of appointment of the Enquiry Officer, the disciplinory authority had failed to apply its mind to the reply submitted by the delinquent. Similar view has ben expressed by the Division Bench in Sukhraj Singh Bajwa v. State of Rajasthan, 1988(1) RLR 613 . 20. For all the reasons mentioned above, this writ petition is allowed. The initiation of disciplinary enquiry against the petitioner vide charge-sheet dated, 12.10.88, is declared illegal and the proceedings of the enquiry are quashed. The respondent State is directed to give all consequential benefits to the petitioner including consideration of his case for promotion to the post of Senior Specialist from the date persons junior to him have been promoted. If, he is otherwise found suitable, he shall be given retrospective promotion with all consequential benefits. 21. Costs made easy.Appeal allowed. *******