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2002 DIGILAW 104 (RAJ)

State of Rajasthan v. Rikeshwar Joshi

2002-01-14

O.P.BISHNOI, RAJESH BALIA

body2002
JUDGMENT 1. - Heard learned counsel for the parties.The appellant have challenged the order passed by learned Single Judge setting aside the order of reversion of respondent No. 1 Rikeshwar Joshi from the post of Conservator of Forest to Office Assistant by impugned order dated 19.4.86. 2. The facts revealed from the petition disclose that by order dated 28.9.84, four persons namely Damodarlal Pareek. Hari Kishan Sharma, L.T. Paruwani and Anandilal were promoted from the post of Office Assistant working at different places under the Forest Department to the post of Conservator of Forest. Shri Hari Kishan Sharma who was then posted at Jaipur was not inclined to accept promotion offered at Jodhpur. So also Shri Anandilal who was holding post of Office Assistant at Kota was not inclined to accept promotion post at Jodhpur. For filling the existing vacancies for which promotion exercise was being undertaken, on refusal to accept promotion by two of the persons who were senior in order and were found suitable for the post by same methodology in order of seniority, promotion was offered to the petitioner-respondent on his turn by order dated 22.11.84 while he was functioning as a Conservator of Forest, Jodhpur. Very important factor to be noticed is that promotion was foregone by persons then posted at Jaipur and Kota to avoid going to Jodhpur, where the promotion post existed. Harikishan was also one of such senior candidate who in order to avoid leaving Jaipur had declined to accept promotion. 3. The petitioner was ordered by order dated 19.4.86 to be reverted on the post of Office Assistant as a result of transfer of the post of office Assistant from Jaipur to Jodhpur. By the order of even date i.e. 19.4.86, Shri Hari Kishan Sharma, who had been promoted by order dated 10.3.86 again as Conservator of Forest at Jodhpur was transferred to Jaipur by amending the order of promotion. Thus, the chain of events goes to show that while Hari Kishan was ultimately able to achieve his object of having a promotion at the same place where he was serving namely Jaipur after foregoing the promotion offered at Joahpur in 1984 is operated adversely to petitioner Rikeshwar Joshi. The favour shown is evident from the fact that after making order of promotion on 10.3.86, at Jodhpur, the post itself was transferred to Jaipur. The favour shown is evident from the fact that after making order of promotion on 10.3.86, at Jodhpur, the post itself was transferred to Jaipur. It may be noticed that petitioner was not reverted simultaneously with promotion of Hari Kishan Sharma with posting at Jodhpur, but his reversion came with transfer of post and accommodation of Hari Kishan Sharma against transferred post. Had it been the case of only available post, the order of reversion would have taken simultaneously. Two persons could not have been continued to be posted against same post. The petitioner had to pay the penalty for not shrinking to take higher responsibilities to make room for the persons who had shown total lack of devotion to duty by refusing to accept earlier promotion, just because posting on promotion was not at the place where he wanted. In a transferable posts such an attitude requires to be dealt with seriously rather than by rewarding at the dismay of junior officers. 4. The amendment in promotion order of Hari Kishan by change of his pace of posting from Jodhpur to Jaipur, a transfer of the post of Office Assistant from Jaipur to Jodhpur and demotion of promotion holding the Conservator of Forest, Jodhpur where Hari Kishan was appointed is pregnant with the suggestion that there is something wrong in the basic approach in the matter of offering promotions to the persons waiting in the wings by showering favours in the matter of availing the promotions. The malice in law in the functioning of the promotional exercise is apparent from the facts of the present case. 5. Aggrieved with demotion in the aforesaid circumstances, the petitioner has in the first instance, approached the Rajasthan Civil Service Appellate Tribunal. The Rajasthan Civil Service Appellate Tribunal taking a view on the literal interpretation of the order made on promoting the petitioner-respondent held that since promotion has been granted to those persons who had foregone earlier promotion after expiry of the one year and the petitioner having been promoted as a substitute candidate, his reversion was justified. There is nothing wrong in offering promotion to those who had earlier foregone promotion, when the review committee again met and finds them suitable. 6. On such literal interpretation of the rules, we are of the opinion that the petitioner's right cannot be defeated on that count also. There is nothing wrong in offering promotion to those who had earlier foregone promotion, when the review committee again met and finds them suitable. 6. On such literal interpretation of the rules, we are of the opinion that the petitioner's right cannot be defeated on that count also. The rule which has been referred in this connection is Rule 76-D of the Rajasthan Subordinate Offices Ministerial Staff Rules, 1957. It is alleged and in the present case while offering promotion to Rikheswar Joshi, the petitioner-respondent, the sub-Rule 11(b) had operated which reads as under : "11(b) The Committee shall also prepare a separate list on the basis of seniority-cum-merit and/or on the basis of merit, as the case may be, as per the criteria for promotion laid down in the rules, containing name of persons equal to the number of persons selected in the list prepared under (a) above to fill temporary or permanent vacancies, which may occur subsequently. The list so prepared on the basis of seniority-cum-merit and/or on the basis of merit shall be arranged in the order of seniority in the category of posts from which selection shall be made. Such a list shall be reviewed and revised by the Departmental Promotion Committee that meets in the subsequent year and that such list shall remain in force till the end of the last day of the next year or till the Departmental Promotion Committee meets, whichever is earlier." 7. The rule clearly declares the field of its operation when it says "to fill temporary or permanent vacancies which may occur subsequently." This clearly suggests that this rule operates only in such cases where after existing vacancies for which exercise of promotion is undertaken is filled and some vacancy whether temporary or permanent occurs thereafter. It does not operate to fill the existing vacancies for which promotional exercise is conducted. It is apparent that if there are 10 vacancies and appointment is offered to 10 persons, one or more of them do not join, it cannot be said that the filling of such vacancies by the persons waiting in the list is filling of the vacancy which has occurred subsequently. The filling of the vacancy in such case is continuing exercise of filling the existing vacancy and the promotion is offered to next man. The filling of the vacancy in such case is continuing exercise of filling the existing vacancy and the promotion is offered to next man. Merely by offering promotion, the vacancy does not get filled unless such promotion is accepted by the incumbent. In such case there cannot be an exercise of filling the vacancies subsequently arising temporarily or permanently. It remains a part of the primary exercise of filling the existing vacancies by promotion. Thus even on literal interpretation of Rule relied on by appellants, the appellants cannot succeed. 8. It may also be pertinent to notice that the criteria for promotion for enlisting any person in either of the promotion remain the same in order of seniority, as is the criterion for regular promotion. The list prepared under rule 11(a) is also founded on the criterion by considering the case on the criterion prescribed for filling the post concerned and contains the names of persons found suitable on the basis of seniority-cum-merit and/or on the basis of merit, as the case may, as per the criteria for promotion laid down in the rules. So also the list which is prepared under rule 11(b) contains the names of persons in order of seniority as per the same criteria for promotion laid down in the rules on the basis of seniority-cum-merit and/or on the basis of merit. Obviously, if all vacancies are filled up in the list prepared under rule 11(a), the question of further operation of rule 11(a), would not arise but if some of the persons offered appointment out of list under rule 11(a) refused to join, the question may arise whether fulfillment of the post from the second list amounts to filling of the post under sub-rule 11(a) or 11(b). 9. In our opinion, all vacancies which occurred subsequent to the exercise of filling the vacancies is complete by exhausting the existing vacancies, until then, there is no room for the subsequent occurrence of the posts of invite operation of sub-rule 11(b). Operation of sub-rule 11(b) cannot be envisaged in a manner so as to put a person who has foregone promotion earlier to again give him a chance to reoccupy his place in the seniority amongst promotees in preference to the persons who had been promoted against existing vacancies. Operation of sub-rule 11(b) cannot be envisaged in a manner so as to put a person who has foregone promotion earlier to again give him a chance to reoccupy his place in the seniority amongst promotees in preference to the persons who had been promoted against existing vacancies. Else it would result in breach of the principle under Article 16 which requires offering equal opportunities in the matter of employment but does not countenance to keep the opportunities waiting to be availed in future. Providing such opportunity at the cost of somebody else who has competed alongwith him and found equally suitable than lower in seniority but offered appointment due to default of such senior person himself, would be manifestly unjust and arbitrary. 10. The learned Single Judge examined the case and has allowed the writ petition by relying on the judgment of Hon'ble Supreme court. We are in agreement with the conclusion in the facts and circumstances of the present case, that the petitioner could not have been denied promotion by the process of reversion made to put back the defaulters in first instance to regain their position. To hold otherwise would amount to undue preference to those persons. Accordingly the learned Single Judge was right in holding that reversion of the petitioner-respondent was bad in the first instance and by promoting him lateron he cannot be denied seniority on the basis of his earlier promotion in 1984. All consequential benefits from the judgment of learned Single Judge shall be given to the petitioner-respondent within a period of 3 months. 11. Accordingly, the appeal fails and is hereby dismissed with no order as to costs.Appeal dismissed. *******