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2005 DIGILAW 600 (RAJ)

Girdhari Lal v. State of Rajasthan

2005-02-22

RAJESH BALIA

body2005
Judgment Rajesh Balia, J.-Heard learned Counsel for the parties. 2. The petitioner was inducted in service as a Forest Guard in 1970 and he joined on 20.10.1970. The respondents No. 5 to 6 were also appointed as Forest Guard in 1970 by the same appointment order. However, Shri Vijay Singh, respondent No. 6 joined service on 210.1970, Shri Ramchandra-respondent No. 5 though joined service on 20.10.1970 but both the respondents were younger in age than the petitioner. 3. The respondents No. 5 and 6 were promoted as Assistant Foresters on 28.1972 and were further promoted as Foresters on 9.1978. On promotion, when the respondents No. 5 and 6 were made Foresters, the petitioner was promoted as Assistant Forest on 211.1978. The petitioner having come to know that his juniors have been promoted prior to him, made a representation through the Workers Union on 111.1980 pointing out these facts which reveal that though the appointment date was one and the same in respect of all the concerned incumbents, as per rules, the petitioner being oldest amongst three persons would rank senior to other two person, who were his co-appointees. 4. This representation stated to have been rejected on 11.1991 vide Exh. 3 but appears to have not been endorsed to the petitioner and trade Union and obviously could not have been communicated to them. The endorsement to the petitioner is dated 9.7.1993. 5. Significantly, the letter reveals that at the relevant time, the petitioners representation was declined on the ground that he did not fulfill the requirement of the rules for promotion at that time. At the same time, it also stated that the respondents No. 5 and 6 had also been promoted contrary to the rules and information was sought in that regard from the concerned authority. Thus, admittedly, a benefit was conferred on respondents No. 5 and 6 to which they were not entitled to according to respondents letter dated 11.1991 (Exh. 3), to the detriment of the petitioner. 6. From the report submitted by the Conservator of Forest, Jodhpur to the Director of Forest on 111.1992 it has categorically been stated after perusing the record that the petitioner was senior to both the respondent Nos. 5 and 6. 3), to the detriment of the petitioner. 6. From the report submitted by the Conservator of Forest, Jodhpur to the Director of Forest on 111.1992 it has categorically been stated after perusing the record that the petitioner was senior to both the respondent Nos. 5 and 6. His service record was satisfactory and no enquiry was pending against him nor he has ever been punished for any misconduct and, therefore, he is entitled to be promoted alongwith Shri Ram Chandra and Shri Vijay Singh. respondent Nos. 5 and 6 respectively. However, this was not accepted by the concerned authority on the ground that no action can be taken after 18 years when the promotion was accorded to Shri Ram Chandra and Shri Vijay Singh in the year 1972. However, the fact that the petitioner has not been promoted in accordance with the seniority is not in dispute, nor it is in dispute that had the respondents considered the case of the petitioner as per his seniority, he could not have been superseded by the said respondents at any stage. 7. From the aforesaid facts, it is apparent that all the three persons having been appointed together, the petitioner could come to know of actual position of seniority on coming to know of the respective dates of birth of person standing at par. The final seniority list has not been published and from the seniority list names of the respondents No. 5 and 6 having been eloped, the fault does not lie with the petitioner in not making his claim at the time ad-hoc and temporary promotion was accorded to respondents No. 5 and 6. In fact, promotion of respondents No. 5 and 6 accorded by the respondent way back in 1972 also was not in accordance with the rules as per Annexure-3. 8. The date of appointment having been same and the principle governing seniority been the age of the respective appointees and comparative dates of birth appointment being within the specific knowledge of the respondent State, which was not made known as concern incumbent at the time the impugned promotions were made, it is difficult to find fault with the petitioner for not having made a representation earlier before inter-se seniority was published revealing the foundation of the seniority. In these circumstances it was incumbent upon the respondent State when they were made aware about the inter-se seniority position and they found that the petitioners right has been defeated, it was duty of the concerned authority to have remedied the petitioners grievance failing which has resulted in violation of fundamental rights of the petitioner to equality in the matter of opportunities of employment. 9. The first opportunity for the State was available in 1980 when representation was made by the petitioner. The State Government has rejected the claim of the petitioner for being promoted alongwith respondents No. 5 and 6 for the post of Forester in 1978 inter alia on the ground that all the three were not eligible to be promoted. Still promotion accorded to respondents No. 5 and 6 were continued but petitioners grievance has not been remedied nor the petitioner was brought at par with respondents No. 5 and 6 by giving him promotion which could have prevented further violation of Article 16 which guarantees equality of opportunity in the matter of promotion. Even when the petitioner was promoted in 1989 and immediately he made his grievance of giving him promotion with back date with effect from the date, juniors to him have been promoted, the same was rejected on the jejune ground of delayed representation ignoring the fact that the petitioner has been promoted as Forester only in 1989 and he had immediately made a representation soon thereafter to place him at par with his juniors within a year of such promotion. The representation could not have been said to be delayed on any ground. If the ground stated while rejecting the petitioners grievance against the promotion to post in 1980 is taken to be correct neither the petitioner nor the respondents No. 5 and 6 were eligible to be promoted on the post of Forester. The respondents No. 5 and 6 were continued on the post of Foresters notwithstanding finding that the promotion was not made in accordance with the rules. Else the petitioner was equally eligible to be promoted and thus could be promoted but he was not promoted. 10. During the pendency of the writ petition, DPC has made further promotion subject to the decision of the writ petition. 11. In the aforesaid facts and circumstances, the writ petition is allowed. Else the petitioner was equally eligible to be promoted and thus could be promoted but he was not promoted. 10. During the pendency of the writ petition, DPC has made further promotion subject to the decision of the writ petition. 11. In the aforesaid facts and circumstances, the writ petition is allowed. The respondents are directed to date back the petitioners promotion as Assistant Forester as well as Forester w.e.f. the date respondents No. 5 and 6 have been promoted on respective posts and further consider the case of the petitioner for promotion on the next higher post from the date persons junior to him have been promoted and promote him to such post, if he is otherwise found suitable, with effect from the date persons junior to him have been promoted. .12. The fixation of the petitioner as a consequence of this direction shall be made by relating back dates of his promotions, However, the actual benefits of refixation on the respective post is to be paid to the petitioner only w.e.f. the date of filing of the petition. 13. No order as to costs. 14. The effect shall be given of this order within three months.