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2003 DIGILAW 942 (RAJ)

Rajendra Swami v. State of Rajasthan

2003-07-10

SUNIL KUMAR GARG

body2003
Honble GARG, J.–This writ petition under Article 226 of the Constitution of India has been filed by the petitioner against the respondents on 18.12.2001 with a prayer that by an appropriate writ, order or direction the impugned seniority list dtd. 12.11.2001 (Annex. 8) issued by the State Government be quashed and set aside and the respondents be directed to prepare fresh seniority list by reckoning entire service of the petitioner i.e. service from the first appointment i.e. 2.7.83. (2). It arises in the following circumstances: i) The petitioner was initially appointed as Junior Engineer in the Municipal Board, Sangaria vide order dtd. 30.6.83 (Annex. 1) passed by the Chairman, Municipal Board, Sangaria and after completion of probation period, the petitioner was made permanent by order dtd. 16.11.90 (Annex. 2) with effect from the date he completed his probation period i.e. 2.7.85. ii) Thereafter the petitioner submitted a representation citing the similar cases wherein the persons on completion of probation period were made substantive from the date of initial appointment and, therefore, vide order dtd. 22.9.99 (Annex. 3) passed by the Executive Officer, Municipal Board, Sangaria (respondent No. 2), the order dtd. 16.11.90 (Annex. 2) was amended and the petitioner was made permanent with effect from 2.7.83, the date of his initial appointment in place of 2.7.85. (Thus, through order dtd. 22.9.99 (Annex. 3), earlier order dtd. 16.11.90 (Annex. 2) was amended and the petitioner was made permanent with effect from 2.7.83 in place of 2.7.85). iii) Further case of the petitioner is that a provisional seniority list was published on 21.5.97. The petitioner submitted his objection vide application dtd. 28.5.97 (Annex. 4). However, without considering the petitioners representation a final seniority list was issued on 6.11.97 (Annex. 5) in which the name of the petitioner was shown at serial No. 65 while the persons shown at serial No. 55 to 64 were those who were appointed after the date of initial appointment of the petitioner i.e. 2.7.83, meaning thereby that junior persons were shown senior to the petitioner. The ground which had prevailed in the mind of the respondents was that since the petitioner vide order dtd. 16.11.90 (Annex. 2) was made permanent with effect from the date he completed the probation period i.e. on 2.7.85, therefore, the petitioner was shown junior. iv) Further case of the petitioner is that the seniority list dtd. 6.11.97 (Annex. The ground which had prevailed in the mind of the respondents was that since the petitioner vide order dtd. 16.11.90 (Annex. 2) was made permanent with effect from the date he completed the probation period i.e. on 2.7.85, therefore, the petitioner was shown junior. iv) Further case of the petitioner is that the seniority list dtd. 6.11.97 (Annex. 5) was challenged by the petitioner before this Court and this Court directed the petitioner first to avail alternative remedy before the Rajasthan Civil Services Appellate Tribunal, Jaipur and in consequence of that, the petitioner filed an appeal bearing No. 293/97 before the Rajasthan Civil Services Appellate Tribunal and the same is pending before the Rajasthan Civil Services Appellate Tribunal at Jaipur. v) That while the appeal of the petitioner was pending before the Rajasthan Civil Services Appellate Tribunal at Jaipur, the Director, Local Bodies (respondent No. 1) again issued a tentative seniority list (Annex. 6) of Junior Engineers on 16.8.2001 and in that list, the petitioner was shown at serial No. 18 below the private respondents. vi) Further case of the petitioner is that he submitted a representation dtd. 20.8.2001 (Annex. 7) against the tentative seniority list dtd. 16.8.2001 (Annex. 6). However, without considering his representation, a final seniority list (Annex. 8) was published by the State Government on 12.11.2001 and again in that seniority list (Annex. 8), the petitioner was shown at serial No. 34 below the persons whose date of initial appointment was later than the petitioners date of initial appointment. vii) Aggrieved from the seniority list dtd. 12.11.2001 (Annex. 8), this writ petition has been filed by the petitioner. (3). In this writ petition, the main submission of the learned counsel for the petitioner is that the petitioner should have been treated as permanent with effect from the date of initial appointment i.e. 2.7.83 and not from 2.7.85, the date of confirmation as vide order dtd. 22.9.99 (Annex. 3), the earlier order dtd. 16.11.90 (Annex. 2) by which the petitioner was made permanent with effect from 2.7.85 (the date of completion of probation period), was amended and the petitioner was made permanent with effect from 2.7.83 (the date of initial appointment) and not from 2.7.85 (the date of confirmation). (4). 22.9.99 (Annex. 3), the earlier order dtd. 16.11.90 (Annex. 2) by which the petitioner was made permanent with effect from 2.7.85 (the date of completion of probation period), was amended and the petitioner was made permanent with effect from 2.7.83 (the date of initial appointment) and not from 2.7.85 (the date of confirmation). (4). Reply to the writ petition was filed by the respondents No. 1 and 2 and it is submitted by the learned counsel for the respondents that the petitioner has been assigned correct seniority list and further more, since the petitioner has challenged the seniority list dtd. 6.11.97 (Annex. 5) before the Tribunal by filing appeal No. 293/97 and the same is pending before the Tribunal, therefore, subsequent seniority list dtd. 12.11.2001 (Annex. 8) should also have been challenged before the Rajasthan Civil Services Appellate Tribunal and thus, the present writ petition is not maintainable and deserves to be dismissed. (5). Rejoinder affidavit was filed by the petitioner and it has been submitted by the petitioner that no doubt appeal is pending before the Rajasthan Civil Services Appellate Tribunal, but the present writ petition is not barred by the Principles of Constructive Res Judicata. It has further been submitted by the petitioner that before the Rajasthan Civil Services Appellate Tribunal, he has challenged the seniority list dtd. 6.11.97 (Annex. 5), while in the present case, subsequent cause of action has arisen and that is why he has challenged the seniority list dtd. 12.11.2001 (Annex. 8). Hence, the writ petition should be held to be maintainable. It has further been submitted by the petitioner that even the file of the appeal of the petitioner pending before the Tribunal is not traceable in which the seniority list dtd. 6.11.97 (Annex. 5) was challenged and therefore, if the petitioner has approached this Court for challenging the subsequent seniority list dtd. 12.11.2001 (Annex. 8), this Court has jurisdiction writ petition should not be thrown on the ground of alternative remedy. (6). I have heard both and perused the record. (7). There is no dispute on the point that in the seniority list dtd. 6.11.97 (Annex. 5), the petitioner was shown junior to respondents No. 3 to 7. There is also no dispute on the point that seniority list dtd. 6.11.97 (Annex. (6). I have heard both and perused the record. (7). There is no dispute on the point that in the seniority list dtd. 6.11.97 (Annex. 5), the petitioner was shown junior to respondents No. 3 to 7. There is also no dispute on the point that seniority list dtd. 6.11.97 (Annex. 5) was challenged by the petitioner by filing appeal No. 293/97 before the Rajasthan Civil Services Appellate Tribunal, Jaipur and the same is pending there. (8). There is also no dispute on the point that subsequent to issuance of seniority list dtd. 6.11.97 (Annex. 5), another seniority list dtd. 12.11.2001 (Annex. 8) was published by the State Government in which also the petitioner was shown junior to respondents No. 3 to 7 and this seniority list dtd. 12.11.2001 (Annex. 8) has been challenged by the petitioner before this Court by way of filing present writ petition without first approaching the Rajasthan Civil Services Appellate Tribunal. (9). There is also no dispute on the point that the basis on which the petitioner was shown junior to respondents No. 3 to 7 in the seniority list dtd. 6.11.97 (Annex. 5) has been taken into consideration by the respondents in issuing seniority list dtd. 12.11.2001 (Annex. 8). (10). Now the question which arises for consideration is whether in the facts and circumstances of the present case and when the appeal filed by the petitioner against the seniority list dtd. 6.11.97 (Annex. 5) is pending before the Rajasthan Civil Services Appellate Tribunal, the present writ petition is maintainable or not or whether a fresh cause of action has arisen to the petitioner when seniority list dtd. 12.11.2001 (Annex. 8) was issued by the respondents and for that whether he can approach this Court directly by way of filing present writ petition or not without first approaching the Rajasthan Civil Services Appellate Tribunal. (11). In my considered opinion, when the appeal is pending before the Rajasthan Civil Services Appellate Tribunal and the same has not been decided, the present writ petition is not maintainable simply because the basis of issuing seniority list dtd. 12.11.2001 (Annex. 8) is the previous seniority list dtd. 6.11.97 (Annex. 5). When the seniority list dtd. 6.11.97 (Annex. 5) is under challenge and if the seniority list dtd. 6.11.97 (Annex. 5) is quashed by the Tribunal, the seniority list dtd. 12.11.2001 (Annex. 8) would automatically come to an end. 12.11.2001 (Annex. 8) is the previous seniority list dtd. 6.11.97 (Annex. 5). When the seniority list dtd. 6.11.97 (Annex. 5) is under challenge and if the seniority list dtd. 6.11.97 (Annex. 5) is quashed by the Tribunal, the seniority list dtd. 12.11.2001 (Annex. 8) would automatically come to an end. From this point of view, the petitioner is not entitled to get any relief under Article 226 of the Constitution of India from this Court. (12). The argument that the file before the Tribunal is not traceable is concerned, the same is baseless argument and for that there are many ways and file can be reconstituted by the Tribunal, but on this ground, the petitioner is not entitled to invoke extraordinary jurisdiction of this Court. (13). Apart from this, where the petitioner had already availed remedy of appeal under the ordinary law, no petition under Article 226 will ordinarily be entertained on the same questions, at least so long as those proceedings are not disposed of. (14). In my opinion, the petitioner cannot be allowed to pursue two parallel remedies at the same time as in the present case not only that the alternative remedy is available to the petitioner, the petitioner has already availed that remedy by filing appeal before the Rajasthan Civil Services Appellate Tribunal and that appeal is still pending and simply because appeal has not been decided, it would not give a cause to the petitioner to file writ petition under Article 226 of the Constitution of India. (15). The Honble Supreme Court in the case of K.S. Rashid and son vs. Income Tax Investigation Commission and Ors. (1), has observed as under: ``The remedy provided for in Article 226 of the Constitution is a discretionary remedy and the High Court has always the discretion to refuse to grant any writ if it is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere. Where the petitioners have already availed themselves of the remedy provided for in Section 8(5) of the Taxation of Income (Investigation Commission) Act and a reference has been made to the High Court in terms of that provision which is awaiting decision, it would not be proper to allow the petitioners to invoke the discretionary jurisdiction under Article 226 of the Constitution at this stage. (16). (16). The case of K.S. Rashid (supra), clearly covers the point in dispute as the petitioner has already availed the remedy of appeal by filing appeal before the Rajasthan Civil Services Appellate Tribunal. Hence, jurisdiction under Section 226 of the Constitution of India should not be exercised in favour of the petitioner. (17). Similarly in the case of Shriram Refrigeration Industries Ltd. vs. Commercial Tax Officer and Ors. (2), the Honble Supreme Court has held that when the appeal is pending before the appellate Authority on similar issue by same party, the writ petition cannot be entertained. This authority also goes to the very root of the maintainability of the present writ petition. (18). In my considered opinion a right to appeal may be an ``adequate remedy to bar the issue of a writ. In this regard the following authority of Honble Supreme Court may be referred to: Bhopal Sugar Industries Ltd. vs. D.P. Dube, Sales Tax Officer (3) (19). For the reasons mentioned above, the present writ petition is not maintainable as the petitioner has already availed alternative remedy available to him by way of filing appeal before the Rajasthan Civil Services Appellate Tribunal and the same appeal is still pending and hence the present writ petition is liable to be dismissed as not maintainable. However, a liberty is given to the petitioner to challenge the seniority list dtd. 12.11.2001 (Annex. 8) either in the same appeal No. 293/97 pending before the Rajasthan Civil Services Appellate Tribunal, Jaipur or by filing fresh appeal before the Rajasthan Civil Services Appellate Tribunal, Jaipur. Accordingly, this writ petition is dismissed as not maintainable. Cost made easy.