JUDGMENT 1. - The petitioner joined the services of the Rajasthan State Electricity Board for short "the R.S.E.B." hereinafter referred to as the Board as L.D.C. w.e.f. 15.6.1966 and was confirmed on the said post on 18.9.1968. Thereafter in the year 1970, 70 posts of Stenographers Grade-II were to be filled in from amongst departmental employees as well as from open market candidates under the quota of direct recruits and the petitioner came to be selected on the post of Stenographer Grade- 11 w.e.f. 9.12.1970. 2. During the course of hearing, learned counsel for the petitioner has contended at the bar that the next higher post from the post of Stenographer Grade-11 is Stenographer Grade-I and the criteria governing the promotions to the posts higher than the Lower Division Clerks, Assistant Store Keepers and Stenographers Grade-II has been provided in the Rajasthan State Electricity Board Ministerial Staff Regulations, 1962 (hereinafter referred to as "the Regulations"). As per Regulation-17 of the aforesaid Regulations, the appointing authority shall prepare a consolidated list Seniority-wise of the respective candidates with all the required particulars and place it before a Selection Committee nominated by the appointing authority. The Selection Committee shall thereafter examine the confidential reports of the persons concerned and may also interview them if considered necessary. 3. The note appended to the Regulation-17 stipulates that the April last from the day on which the D.P.C. holds its 1st meeting shall be the crucial date for counting minimum experience as laid down in these regulations for promotion. 4. The committee shall thereafter prepare a panel of respective candidates found eligible for promotion in order of preference and forward it to the appointing authority and the appointing authority will make appointments from that panel and the said panel shall be operative for a period of one year from the date of its constitution. It has further been submitted with regard to the said regulation that a list of candidates having qualified the examination will be supplied to the Appointing Authority for making promotions. The promotions from the said list will be made on the basis of seniority as on the date of promotion. 5. It has further been submitted with regard to the said regulation that a list of candidates having qualified the examination will be supplied to the Appointing Authority for making promotions. The promotions from the said list will be made on the basis of seniority as on the date of promotion. 5. Regulation 21 which deals with probation of the candidates provides as under:- "All persons appointed to any cadre be placed on probation for one year except that in the case of Accountant/Internal Auditors/Revenue Accountant appointed by direct recruitment, the period of probation will be two years. The period of probation may be extended by the appointing author by six months." Regulation 22, which deals with Unsatisfactory progress during probation provides as under: "1. If it appears to the appointing authority at any time during or at the end of the period of probation that a probationer has failed to give satisfaction, the appointing authority may revert him to the post held substantively by him immediately preceding his appointment on probation provided he holds a lien thereon and in other cases may revert him to. a lower post or may remove him from service. 2. A probationer reverted or removed from service during or at the end of the period of probation under sub-rule (1) shall not be entitled to any compensation." Regulation 23, which deals with confirmation of the candidate, who has satisfactorily completed his probationary period stipulates as under: "A person appointed on probation shall after the satisfactory completion of probation, be confirmed in his appointment if the appointing authority is satisfied that he fulfils all other conditions such as passing of departmental, examination, if any, and his integrity is unquestionable and that he is otherwise fit for confirmation and there is a clear vacancy of a permanent post in the absence of a clear vacancy of a permanent post, he will officiate against temporary vacancy." 6. It is thus clear from the perusal of above regulations that promotion from the post of Stenographer Grade-II to Stenographer Grade-I cannot be claimed as a matter of right since it is subject to the fulfilment of the conditions stipulated in the aforesaid Regulations and with regard to a candidate, who is appointed on a probation for a fixed duration of one year or more, the period of probation may at the discretion of the Appointing Authority be extended by another six months and if it is found by the Appointing Authority that the performance of a particular candidate during probationary period is unsatisfactory, then the Appointing Authority has its discretion either to revert the said candidate to the post held by him substantively immediately preceding his appointment on probation and in any other case may revert him to a lower post or may direct his removal from service. 7. From Regulation-23, it is apparent that confirmation cannot be claimed by a probationer as a matter of right as the same is again subject to the satisfaction of the appointing authority that the said candidate fulfills of other requisite conditions as stipulated in the said Regulation and his regularisation in service is based on overall assessment of his work to the satisfaction of his immediate superiors who have the opportunity of watching his conduct and is based on the subjective satisfaction of the Appointing Authority on fair assessment of his performance. 8. With regard to the filling up of the posts of Personal Assistants, to which the petitioner has staked his claim for promotion and has also assailed the decision of the Board in not giving him promotion on the said post from due dace, I deem it appropriate to refer to Regulation 6(x) of the Regulations, which stipulates as under : "All the posts of Personal Assistants shall be filled up by promotion on the basis of seniority-cum-merit from amongst the Stenographers Grade-I who have served in the Board for atleast 10 years out of which he must have held the post of Stenographer Grade-I for at least 5 years." 9. It is thus clear from the above that promotion to the post of Personal Assistant from Stenographer Grade-I, the candidate cannot claim the same as a matter of right as the criteria for selection is seniority-cum-merit from amongst the candidates, who have served as Stenographers Grade-I in the services of the Board for at least 10 years, out of which the said candidate must have held the post of Stenographer Grade-I for at least 5 years for the purpose of promotion from the post of Stenographer Grade-II to Stenographer Grade-I. The criteria provided in Regulation 6 (VIII) reads as under: xx All the posts of Stenographers Grade-I shall be filled by promotion in the order of seniority from amongst Stenographers Grade-If who have served in the Board for atleast 9 years as Stenographer Grade-II xx "including the employees of the Erstwhile E&M Department." 10. It is thus clear from the above that for considering the eligibility of a candidate for promotion from Stenographer Grade- II to Stenographer Grade-I, the concerned candidate must have completed atleast 9 years of satisfactory service as Stenographer Grade-II and for being considered for promotion for the post of Personal Assistant, the said candidate must have satisfactorily completed atleast 10 years of service as Stenographer Grade-I, out of which he must have held the post of Stenographer Grade-I, for atleast 5 years. The criteria of selection of Personal Assistant is not seniority alone but. the merit of the said candidate is equally important to be considered before he is recommended by the Departmental Promotion Committee for being promoted as Personal Assistant. 11. During the course of hearing, learned counsel for the petitioner has contended at the bar that the petitioner had become eligible for being considered for the promotion on the post of Stenographer Grade-I in the year 1979 as per Regulation 6(viii) and the respondents did not consider the petitioner for being promoted on substantive basis on the post of Stenographer Grade-II till 1989 as no D.P.C. was convened till then for providing substantive promotion to the incumbents on the post of Stenographer Grade-I. It has further been contended that earlier the last D.P.C., which was convened, was in the year 1985 and that the respondents are duty bound to fill up the vacancy either by direct recruitment or by promotion by determining the year- wise vacancies. 12. 12. The petitioner has placed reliance upon Regulation-4, which makes it obligatory on the Board to determine the strength of the Staff in each Officer from time to time and it further empowers the appointing authority to leave the vacancies un-filled or to be kept vacant, but so far as the determination of vacancies by the D.P.C. is concerned, it must be determined by the Board as per the strength of the staff. 13. Regulation-8 imposes an obligation on the Board particularly on the Secretary to determine the year-wise vacancies on such date as the Chairman may require, which are anticipated during the following 12 months and the number of persons likely to be required by each method of recruitment. 14. During the course of hearing, learned counsel for the petitioner in this regard has further contended at the bar that the respondents have violated the aforesaid Regulations by not determining either the strength of the Staff or the year-wise vacancies for the post of Stenographer Grade-I from 1979 outwards and that the respondents also did not convene the D.P.C. from 1979 to 1981 and the D.P.C. was convened in the year 1985 and thereafter in the year 1989, 1991, 1992 and 1993. It has also been contended by the petitioner that he was placed on probation for a period of one year as Stenographer Grade-I vide Board's Orders dated 25.3.1982 and this probationary period has been construed by the petitioner as a regular promotion to this post of Stenographer Grade-I w.e.f the said date i.e. 25.3.1982 instead of having been given promotion on the said post w.e.f. 1979. 15. The petitioner has further raised the grievance that in the final seniority list of Stenographers Grade-I as published vide Notification dated 22.8.1991, the petitioner's name did not find mention in the said seniority list as he was excluded from the same. He has further contended that the said seniority list had not been circulated to the petitioner and he came to know this fact on 2.6.1993. He has Further contended that vide another circular dated 22.4.1993 a tentative seniority list had been published, but in the said list as well the petitioner's name does not find mention anywhere. He has further contended that the said seniority list had not been circulated to the petitioner and he came to know this fact on 2.6.1993. He has Further contended that vide another circular dated 22.4.1993 a tentative seniority list had been published, but in the said list as well the petitioner's name does not find mention anywhere. Enquiry from the board's office revealed that petitioner's name had not been included in the aforesaid seniority list for the reason that he was not confirmed on the post of Stenographer Grade-I as on 22.8.1991. 16. During the course of hearing learned counsel for the petitioner has vehemently contended at the bar that since the petitioner had been promoted on the post of Stenographer Grade-I w.e.f. 25.3.1982 and was kept on probation for a period of one year and on the expiry of the said period, he should have been automatically confirmed on the said. post, whereas he had been treated as un-confirmed employee. 17. Learned counsel for the petitioner has also assailed the impugned action of the Board as being violative of Regulations 21 to 23 as referred to above, which deal with the conditions of probation and confirmation of the Board's employees. 18. During the course of hearing, learned counsel for the petitioner had assailed the impugned order dated 1.10.1991 vide (Annexure-3), which is an order passed by the Joint Secretary (Administration) of the Board and the perusal of which reveals that at the time of promotion from Stenographer Grade-11 to Stenographer Grade-I vide board's letter dated 25.3.1982, the petitioner was placed on probation for a period of one year in terms of the Regulation 21 of the Board and since at the time of selection, an enquiry was pending against the petitioner, the matter was placed before the Review Selection Committee and it was decided by the said committee to extend the probationary period by another is months and on the expiry of the said extended period of probation, the petitioner's appointment may be regularised. 19. 19. The petitioner has also assailed the aforesaid decision of the Board on the ground that it was beyond the purview and competence of the Board to have extended his probationary period since he had satisfactorily completed his probationary period, his confirmation on the post of Stenographer Grade-I should be deemed to have been automatic since the respondents had neither terminated the services of the petitioner nor had reverted him from Stenographer Grade-I to Stenographer Grade-II and that he had continued on the said post for a period of 11 years. The petitioner has further challenged Regulation-23 on the ground that it does not empower the Review Selection Committee to review the period of probation of an employee, but it empowers the appointing authority to issue the confirmation order after the completion of probationary period, if the action had not been taken under Regulation 22. He has further contended that apart from the above, the said regulation does not envisage the extension of the probationary period on account of the pendency of the departmental enquiry. He has further assailed the impugned order dated 1.10.1991 on the ground that it has indirectly resulted in postponement of the increments, which were due to him by six months being contrary to Clause-V of the C.C.A. Regulations, 1962. 20. The learned counsel for the petitioner has further contended at the bar that the petitioner had been illegally deprived of his promotion to the post of Personal Assistant after 1987 onwards or at-least from the year 1989 w.e.f. 4.9.1989 i.e. the date, when his immediate juniors were promoted on the said post vide Order dated 4.9.1989. 21. In reply to the show-cause notice, the respondents while controverting the aforesaid contentions of the petitioner have contended at the bar that the petitioner suffers from material concealments of fact and deserves dismissal on the grounds inter-alia that the petitioner had filed a suit for permanent injunction in the Court of Civil-Judge-cum-J.M.No.1, Jaipur City, Jaipur vide suit No. 770/93. (old No. 177/91) assailing the impugned action of the Board in not having confirmed the petitioner on the post of Stenographer Grade-I and further in not having given promotional benefits to the petitioner on account of the pendency of the departmental. enquiry against him. (old No. 177/91) assailing the impugned action of the Board in not having confirmed the petitioner on the post of Stenographer Grade-I and further in not having given promotional benefits to the petitioner on account of the pendency of the departmental. enquiry against him. During the pendency of the said suit, the petitioner without taking the leave of the Civil Court and without withdrawing the said suit also simultaneously moved to this Court by way of the instant writ petition on 24.7.1993 without informing this Court that he has filed the said suit and which was pending in the said Court. In the petition also the petitioner has nowhere stated regarding his having already availed the alternative remedy of having filed the civil suit. This fact had come to the notice of this Court only when the file of the review D.P.C. dated 1.5.1995 was summoned by this Court. Hence the petitioner is guilty of having suppressed this material aspect of the matter from the notice of this court. 22. The respondents have also challenged the action of the present writ petitioner on the ground that no explanation has been furnished by the petitioner for ensuing delay in having filed this writ petition with inordinate delay which by itself disentitles him from challenging the impugned order of the respondent-Board after the delay of more than two years and it suffers from un-due lathes. 23. On merits the respondents have contended that as per Regulation-IV, it is only after the determination of year-wise vacancies that the petitioner was promoted on substantive basis on the post of Stenographer Grade-I and was kept on probation for a period of one year vide Board's Order dated 25.3.1982 and which was extended by the Review Committee by another six months. 24. In order to assess the bona-fide of the petitioner regarding his aforesaid contentions, I had summoned his official record from the Boards's office and the same was produced. From the proceedings of the Review D.P.C. dated 25.6.1992, which was specially convened for considering the petitioner's case for promotion to the post of Personal Assistant, the said Committee on perusal of the petitioner's record was of the view that on the conclusion of enquiry proceedings against the petitioner, a penalty of stoppage of two annual grade increments with cumulative effect was imposed on him vide order dated 12.11.1990. Consequent upon his selection by the Selection Committee as approved by the appointing authority, and that since the petitioner had been kept on probation for a period of one year, the said Committee was of the view that his probationary period should be extended by another six months and the matter pertaining to his further promotion to the post of Personal Assistant may be looked into by the relevant Selection Committee. 25. Subsequently on 20.2.1992, the review D.P.C. was again convened to consider the candidature of the petitioner and it was found that since the petitioner had challenged the impugned order of the Board dated 11.4.1991 by filing a Civil Suit in the court of Munsiff-cum-Judicial Magistrate, Jaipur City, Jaipur, the petitioner's case may be considered along with his juniors and the recommendations of the Selection Committee be kept in a sealed cover. It was desired that on finalisation of the departmental enquiry, his promotion to the post of Personal Assistant be regulated in accordance with the recommendations of the Selection Committee and in case he is exonerated of the charges as a result of the enquiry, he may be allowed promotion on the basis of the recommendations of the Selection Committee, otherwise his promotion will be based subject to the decision of the departmental enquiry. The Committee was further of the view that since in view of the departmental enquiry, a penalty of stoppage of two annual grade increments with the cumulative effect had been imposed on the petitioner, his case was not considered for promotion by the earlier D.P.C. which was met on 11.8.1989 since the enquiry was pending against him. 26. From the perusal of the order dated 12.11.1990 (Annexure-A) and the Minutes of the Review D.P.C dated 20.2.1992, it is apparent that a memorandum with charge-sheet containing statement of allegations was served on the petitioner vide order dated 20.2.1989 for disciplinary action under Article 7 for the reason that the petitioner had without prior approval and permission of the board had engaged himself in the business of Civil Contractor ship styled as M/s Patni Traders, Jaipur with proprietorship of his wife Smt. Kamla Jain and a departmental enquiry was initiated against him and a penalty of stoppage of two annual grade increments was imposed on the petitioner with cumulative effect. 27. 27. Subsequently an order dated 1.10.1991 (Annexure-8) of the minutes of the review D.P.C. was passed by the respondent-Board, as per which a decision was taken to regularise the appointment of the petitioner after the expiry of the extended period of probation of six months and that he will draw his regular annual grade increments after the completion of the probationary period in accordance with sub-regulation(IV) of Regulation 24 (A) of R.S.E.B. ESR, 1964. 28. In support of his contentions advanced at the bar, learned counsel for the petitioner has placed reliance upon the following judgments: Het Ram Dudi v. State of Rajasthan & Another reported in 1992 (3) W.L.C. page 726 , The State of Madhya Pradesh v. Bani Singh & Ann reported in 1990 C.L.R. (1) S.C. page 679 : [1990(2) SLR 798 (SC)] , Union of India and Others v. K.V. Jankiraman and Others reported in 1991 (4) S.C.C. page 109 : [1991(5) SLR 602 (SC)] , Narpat Singh Rathod v. The Rajasthan Financial Corporation and Ors. reported in 1993(1) W.L.C. page 14 , Union of India v. J. Ahmed reported in 1979 S.L.J. page 308, 1980 (3) S.L.R. page 254 , State of Kerala and another v. N.M. Thomas and others reported in 1976 S.C. page 490 : [1976(l) SLR 805 (SC)] , N. Srinath, M.A. Somashekar, Assistant Director Industries v. The State of Mysore and others, reported in 1972 S.L.R. page 449 , Shri Shadi Lal v. The Deputy Commissioner, Gurgaon and others reported in 1974 (1) S.L.R. page 217 , State of Kerala and another v. N.M. Thomas and others reported in 1976 (1) S.L.R. page 805 : 1996 (8) Supreme Today Page 127 . 29. In the matter of Het Ram Dudi v. State of Rajasthan & another (supra) similar controversy had arisen for consideration of this Court with reference to Rajasthan Service of Engineers (Irrigation Branch) Rules, 1954. It was held by this court that it is highly inequitable to indirectly punish a Government servant by denial of promotion though temporarily by application of sealed cover procedure irrespective of point of time of initiation of enquiry and above all irrespective of nature of allegations. 30. In the matter of The State of Madhya Pradesh v. Bani Singh and Anr. 30. In the matter of The State of Madhya Pradesh v. Bani Singh and Anr. (supra), it was held by the Apex Court: "Normally pendency of contemplated initiation of disciplinary proceedings against a candidate must be considered to have absolutely no impact upon, to his right to be considered. If the departmental enquiry has reached the stage of framing charges, the normal procedure followed was "sealed cover" procedure. In this case the stage of framing charges was not reached and therefore deferring the consideration in the Screening Committee meeting held on 26.11.80 on this ground was unsupportable." 31. In the matter of State of Kerala and another v. N.M. Thomas and others (supra) it was held by the Apex Court: "Under Article 16 there can be reasonable classification of the employees in matters relating to employment or appointment Article 16(1) does not prohibit the prescription of reasonable rules for selection to any employment or appointment to any office." 32. In the matter of Narpat Singh Rathod v. the Rajasthan Financial Corporation and ors. (supra), the promotion of the petitioner was withheld by R.F.C. in view of the pendency of the disciplinary proceedings. The said disciplinary proceedings had ended with the imposition of penalty of censure. The petitioner was subsequently promoted not against the earlier vacancies of 1981, but against the vacancies of the latter year. Sealed cover procedure was not adopted in respect of the pending proceedings. This court direct the authorities to decide the effect of non-consideration of the petitioner's candidature for promotion against the vacancy of 1981 and reason for not following the sealed cover procedure in respect of the pending proceedings against the petitioner. 33. I have heard learned counsel for the parties at length, examined their rival claims and contentions and also the relevant material on the record as well as to ratio of the aforesaid decisions relied upon by the learned counsel for the petitioner. 34. 33. I have heard learned counsel for the parties at length, examined their rival claims and contentions and also the relevant material on the record as well as to ratio of the aforesaid decisions relied upon by the learned counsel for the petitioner. 34. Prima-facie, I am of the considered opinion that the petitioner is not entitled as a matter of right to claim promotional benefits either in the quota of 1987 or against the vacancies of the year 1989 since the petitioner was not eligible for being considered for promotion on the post of Personal Assistant during the said period for the reason that his service record was not found satisfactory by the Review D.P.C. as well as Selection Committee which were convened on 11.8.1989, 27.2.1991, 25.6.1991 and 20.2.1992, (review D.P.C.). 35. My observations in the regard are fortified from the minutes of the Review D.P.C. dated 2 5.6.1991 as well as 20.2.1992, wherein the said Committee has specifically observed that after careful consideration of the petitioner's case for selection to the 1Dost of Stenographer Grade-I and for his promotion to the post of Personal Assistant respectively, the Committee was of the view that the recommendation; of the earlier Selection Committee, which met on 11.1.1982 for selection to the post of Stenographer Grade-I may not be disturbed and he may be regularised by extending his original probationary period of one year by another six months. 36. The review D.P.C., which was convened on 20.2.1992 was, however, of the view that since in the departmental enquiry a penalty of stoppage of two annual grade increments with cumulative effect had been imposed on the petitioner vide order dated 12.11.1990, the D.P.C. which met on 11.8.1989 did not consider his case in view of the pendency of the departmental enquiry at the relevant point of time. The said Committee consequently recommended his case for promotion to the post of Personal Assistant after August, 1991 i.e. two years after his juniors were promoted. 37. I am further of the view that the aforesaid minutes of the Selection Committee as well as the Review D.P.Cs. dated 25.6.1991 as well as the 20.2.1992 are not open to challenge by way of claiming promotion on the post of Personal Assistant as against the vacancies of 1987 or against the vacancies of 1989, as claimed by the petitioner. 38. dated 25.6.1991 as well as the 20.2.1992 are not open to challenge by way of claiming promotion on the post of Personal Assistant as against the vacancies of 1987 or against the vacancies of 1989, as claimed by the petitioner. 38. I find no arbitrariness or illegality, committed by the Selection Committee as well as the Review D.P.C. and the said findings are not open to challenge and the same are accordingly confirmed. 39. Consequently, the impugned orders, dated 1.10.1991 (Annexure-3) by which the probation of the petitioner on the post of Stenographer Grade-I was extended by another six months as well as the order dated 11.12.1992 (Annexure-12) by which the penalty of stoppage of two grade increments with cumulative effect was imposed on the petitioner as Stenographer Grade-I are also confirmed being not open to challenge. 40. In view of the above observations, the writ petition is partly allowed and disposed of with a direction of the respondents to consider the case of the petitioner for promotion from the post of Stenographer Grade-I to Personal Assistant in pursuance of the recommendations of the review D.P.C. convened on 20.2.1992 as referred to above. In the event of petitioner being promoted on the said post, he shall be entitled to all consequential benefits as admissible to him for the said post from due date till the date of payment in accordance with Rules. There shall be no order as to costs. The departmental enquiry if still pending against the petitioner, the same should be completed and the result conveyed to the petitioner immediately. 41. The Deputy Registrar (Judicial) is directed to send to summoned file immediately to the R.S.E.B., Jaipur along with a copy of this order for immediate compliance.Petition allowed. *******