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Rajasthan High Court · body

2002 DIGILAW 762 (RAJ)

Gopi Ram v. State of Rajasthan

2002-04-11

SUNIL KUMAR GARG

body2002
Honble GARG, J.–This writ petition under Article 226 of the Constitution of India has been filed by the petitioner against the respondent on 1.5.1991 with a prayer that by an appropriate writ order or direction the respondent may be directed to reconsider the case of the petitioner for promotion to the post of District Agriculture Officer Group C ignoring the orders dated 14.3.89 (Annex. 5) and 18.12.89 (Annex. 6) and they may be directed to promote the petitioner on the post of District Agriculture Officer Group C from 28/29.12.90 with all consequential benefits. (2). It arises in the following circumstances: (i) The petitioner was appointed in the Agriculture Department of the Government of Rajasthan on 3.2.69 as Grading Assistant. (ii) The petitioner was sent on deputation to the Department of Agricultural Marketing in the year 1976 and there the petitioner was posted as Secretary to Krishi Upaj Mandi Samiti. (iii) A seniority list (Annex. 1) at page 24 of Agricultural Subordinate Service Personnel was issued on 5.1.88 which contained the names of 685 persons. Another list (Annex. 2) at page 36 was issued containing the names of 1070 persons. In the seniority list (Annex. 2), the name of the petitioner was shown at serial No. 451. (iv) The promotion to the post of District Agriculture Officer Group C are governed by the provisions contained in the Rajasthan Agricultural Service Rules, 1960 (hereinafter referred to as the Rules of 1960). Rule 9 of the Rules of 1960 provides for reservation of seats for Scheduled Castes & Scheduled Tribes and it provides that the reservation shall be in accordance with the orders of the Government. (v) Vide order dated 10.5.89 (Annex. 3) at page 61 promotions were made to the post of District Agriculture Officer Group C. By this order 72 persons were promoted to the post of District Agriculture Officer Group C, but not a single person against the Scheduled Caste/Scheduled Tribes quota was promoted. (vi) Vide order dated 28/29.12.1990 (Annex. 4) 91 promotions were made to the post of District Agriculture Officer, Group C. (vii) A perusal of order dated 28/29.12.90 will reveal that two persons were promoted against the Scheduled Tribes quota and one person was promoted against the Scheduled Caste quota. (vi) Vide order dated 28/29.12.1990 (Annex. 4) 91 promotions were made to the post of District Agriculture Officer, Group C. (vii) A perusal of order dated 28/29.12.90 will reveal that two persons were promoted against the Scheduled Tribes quota and one person was promoted against the Scheduled Caste quota. When the petitioner was not promoted, he made enquiries and he came to know that he was not promoted on account of the fact that two minor penalties under Rule 17 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 were imposed on him vide orders dated 14.3.89 (Annex. 5) and 18.12.89 (Annex. 6). (viii) Against the order dated 18.12.89, the petitioner had submitted an appeal before the State Government and that appeal is still pending before the State Government. (3). It has been submitted by the petitioner that since both the penalties were minor penalties, therefore withholding of promotion on the ground of minor penalties is contrary to law and thus, the petitioner deserves to be promoted. Further more, the petitioner has completed 15 years of service in February, 1984, but he has not been granted selection grade and the reason for denial of selection scale appears to be that minor penalties have been imposed on the petitioner. Hence non-promoting the petitioner as well as non-grant of selection grade is contrary to law and both have been challenged in this writ petition and according to the petitioner, since because of minor penalties, he has been punished twice, therefore, it is a case of double jeopardy and orders dated 14.3.89 and 18.12.89 are illegal and violative of Articles 20 of the Constitution of India and thus, ignoring them he may be promoted to the post of District Agriculture Officer Group C. (4). A reply to the writ petition has been filed by the respondent on 18.11.92. (5). In reply to para 8 to the writ petition, the respondent submitted that the promotion order dt. 10.5.89 contained the names of 72 persons only and they promoted in various years from 1984-95 to 1986-87 and the petitioners name was not in the zone of consideration and, therefore, he was not entitled to be promoted to the post of District Agriculture Officer Group-C. Order dated 10.5.89 Annex. 3 was rightly issued. (6). 10.5.89 contained the names of 72 persons only and they promoted in various years from 1984-95 to 1986-87 and the petitioners name was not in the zone of consideration and, therefore, he was not entitled to be promoted to the post of District Agriculture Officer Group-C. Order dated 10.5.89 Annex. 3 was rightly issued. (6). In reply to para 9 of the writ petition, the respondent submitted that promotion order was issued on 28/29.12.90 and since prior to that two minor penalties were imposed on the petitioner, therefore his case was considered, but he was not found fit for promotion and, therefore, to say that promotion was denied to him violating his right is not correct. It was further stated that through order dt.14.3.89 (Annex.5) recorded warning was given to the petitioner as punishment and through order dated 18.12.89 (Annex.6) two annual grade increments were withheld and thus refusing promotion on the ground of these two minor penalties is just in law. Hence, the petitioner is not entitled to the relief claimed for in the writ petition and the same be dismissed. (7). I have heard both and perused the record. (8). Through order dated 14.3.89 (Annex. 5), punishment of recorded warning was imposed on the petitioner and through order dated 18.12.89 (Annex. 6) punishment of stoppage to two annual grade increments without cumulative effect was imposed on the petitioner. (9). The learned counsel for the petitioner has argued that since imposing of recorded warning is not punishment and, therefore, first promotion should have been given to him in accordance with law when 72 persons were promoted vide order dated 10.5.89 (Annex. 3). (10). This argument is not tenable. From perusal of the reply filed by the respondent, it is clear that when 72 persons were promoted vide order dated 10.5.89, his name was not in the zone of consideration. Therefore, this argument is not sustainable and order dated 10.5.89 is not to be quashed. (11). It may be stated that the promotion is not a right of a Government servant, but consideration of promotion is right. Since the case of the petitioner was considered by the Departmental Promotion Committee and he was not found suitable for promotion because of imposition of two penalties, in these circumstances, if he was not promoted and was not granted selection grade, it cannot be said that the order dated 28/29.12.90 (Annex. Since the case of the petitioner was considered by the Departmental Promotion Committee and he was not found suitable for promotion because of imposition of two penalties, in these circumstances, if he was not promoted and was not granted selection grade, it cannot be said that the order dated 28/29.12.90 (Annex. 4) refusing him promotion as well as selection grade is violative of any of the articles of the Constitution of India. In this regard, following judgment of the Honble Supreme Court may be referred to: Union of India vs. K.V. Jankiraman (1) (12). In the case of Union of India vs. K.V. Jankiraman (supra), the Honble Supreme Court has held as under: ``It cannot be said that when an officer is found guilty in the discharge of his duties, an imposition of penalty is all that is necessary to improve purity in the administration. In the first instance, the penalty short of dismissal will vary from reduction short of dismissal will vary from reduction in rank to censure. The officer cannot be rewarded by promotion as a matter of course be rewarded by promotion as a matter of course even if penalty is other than that of the reduction in rank. An employee has no right to promotion. He has only a right to be considered for promotion. The promotion to a post and more so, to a selection post, depends upon several circumstances. To qualify for promotion, the least that is expected of an employee is to have an unblemished recorded. That is the minimum expected to ensure a clean and efficient administration and to protect the public interest. An employee found guilty of misconduct cannot be placed on par with the other employees and his case has to be treated differently. There is, therefore, no discrimination when in the matter of promotion, he is treated differently. The least that is expected of any administration is that it does not reward an employee with promotion retrospectively from a date when for his conduct before that date he is penalised in praesenti. When an employee is held guilty and penalised and is, therefore, not promoted at least till the date on which he is penalised, he cannot be said to have been subjected to a further penalty on that account. A denial of promotion in such circumstances is not a penalty but a necessary consequence of his conduct. When an employee is held guilty and penalised and is, therefore, not promoted at least till the date on which he is penalised, he cannot be said to have been subjected to a further penalty on that account. A denial of promotion in such circumstances is not a penalty but a necessary consequence of his conduct. In fact, while considering an employee for promotion his whole record has to be taken into consideration and if promotion committee takes the penalties imposed upon the employee into consideration and denies him the promotion, such denial is not illegal and unjustified. If, further, the promoting authority can take into consideration the penalty or penalties awarded to an employee in the past while considering his promotion and deny him promotion on that ground, it will be irrational to hold that it cannot take the penalty into consideration when it is imposed at a later date because of the pendency of the proceedings, although it is for conduct prior to the date the authority considers the promotion. (13). Thus, promotion of a person can be withheld on account of imposition of some minor penalties under Rule 17 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958. (14). Keeping the above aspect in mind, if the respondent after considering the case of the petitioner has not found him fit for promotion because of two minor penalties imposed on him, it cannot be said that any fundamental right of the petitioner has been infringed. Hence the order dated 28/29.12.90 is also not to be quashed. (15). When this being the position, no interference is called for and this writ petition is liable to be dismissed. For the reasons mentioned above, the present writ petition fails and is hereby dismissed. Cost made easy.