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2006 DIGILAW 2008 (RAJ)

Rajvardhan Singh v. State of Rajasthan

2006-06-02

MOHAMMAD RAFIQ

body2006
Judgment Mohammad Rafiq, J.-The petitioner in this writ petition prayed for a mandamus to be issued to the respondents to promote him as Personal Assistant (Stenographer Grade-I) w.e.f. 26.08.1988 and 210.1988, the dates from which his batch mates of the year 1987 were promoted. He also sought further direction issued to the respondents to make payment of salary on the post of P.A. (Stenographer Gr.I) and also to assign him seniority of the said post from the same date on which his other batch mates were promoted. 2. The background facts of the case are that the petitioner was holding the post of Stenographer Gr. II and was posted in the Office of District Education Officer, Dholpur. An advertisement issued by the Rajasthan Public Service Commission, Ajmer for holding a competitive examination for promotion to the post of Personal Assistant (Stenographer Gr. I) for Subordinate Officess, in the year 1987. In response to the said advertisement, the petitioner submitted his application form. He was allowed to appear in the said examination conducted under the provisions of Rajasthan Subordinate Offices (Ministerial Staff) Service Rules, 1957 (herein after referred to as The Rules of 1957). The petitioner qualified the said examination by securing 75% marks and thus became entitled to be promoted on the aforesaid post of P.A. (Stenographer Gr.I). His application alongwith option was forwarded by the Dy. Director (Administration), Primary and Secondary Education Rajasthan, Bikaner to the Dy. Secretary, Department of Personnel (Group III), Jaipur vide letter dated 10.06.1988 for posting either in the parent department or elsewhere. The Director, Primary and Secondary Education, Bikaner sent a requisition vide his letter dated 28.04.1988 alongwith the original applications of the candidates who had passed the competitive examination in the year 1987 for seeking appointment or issuing non availability certificate so as to enable him to give promotion to all such candidates who had passed such competitive examination. The DOP then issued non availability certificate vide its letter dated 01.06.1988 and in pursuance of the said NAC. The Director, Primary and Secondary Education, Bikaner granted promotion to Mr. Pradeep Kumar Gupta and also to Shri Shailendra Kumar vide order dated 26.08.1988 which is marked as Annexure-3. The Director, Primary and Secondary Education again issued another order dated 210.1988 and granted promotion to two other persons namely; Shri Hari Ram Kumhar and Shri Nathu Singh. 3. Mr. The Director, Primary and Secondary Education, Bikaner granted promotion to Mr. Pradeep Kumar Gupta and also to Shri Shailendra Kumar vide order dated 26.08.1988 which is marked as Annexure-3. The Director, Primary and Secondary Education again issued another order dated 210.1988 and granted promotion to two other persons namely; Shri Hari Ram Kumhar and Shri Nathu Singh. 3. Mr. M.B. Sharma, the learned Counsel for the petitioner has contended that all the aforesaid four persons were of the same batch and also appeared in the same competitive examination and obtained lesser marks in comparison to petitioner. Not only this, the Director vide its letter dated 20.02.1990 granted adhoc promotion to as many as 15 persons. This time also claim of the petitioner was ignored in spite of availability of post. Faced with this situation, the petitioner made several representation to the respondents, especially to the Director. Details of representation submitted by the petitioner which are 12 in number have been given in Para 9 of the writ petition. It is further submitted that on a reference being made by the District Education Officer, Dholpur to the Director, Primary and Secondary Education, Bikaner (Rajasthan) vide his letter dated 23.04.1991, the Deputy Director (Administration), Primary and Secondary Education, Bikaner vide his letter dated 29.06.1991 sent to the District Education Officer (Boys), Dholpur a copy of promotion order of the petitioner on the Post of Personal Assistant (Stenographer Gr. Ist) and directed that the petitioner be relieved him to join his duty at the new place of his posting on promotion at Jhunjhunu and the compliance report be sent within 15 days. In that letter, it was also mentioned that request for extension of time shall not be entertained. It has been argued that the petitioner by this letter for the first time came to know about his promotion order issued on 210.1990. However, copy of the said order was never served upon him. It was further argued that the petitioner was not relieved by the DEO to join his duty at the new place of his posting i.e., Government District Education and Training Institute, Jhunjhunu. The DEO Dholpur in response to the letter of Dy. Director (Admn.) again sent a letter to the Dy. It was further argued that the petitioner was not relieved by the DEO to join his duty at the new place of his posting i.e., Government District Education and Training Institute, Jhunjhunu. The DEO Dholpur in response to the letter of Dy. Director (Admn.) again sent a letter to the Dy. Director (Admn.) stating therein that since no one has posted in place of the petitioner and there is lack of staff in his office, it would not be possible for him to relieve the petitioner till any other stenographer was posted vice him. The Director, Primary and Secondary Education, Bikaner vide his order dated 15.02.1992 modified earlier order dated 210.1990 and mentioned therein that the petitioner Rajvardhan Singh, Stenographer on being selected by the Rajasthan Public Service Commission, Ajmer is posted in the office of District Education and Training Institute, Dholpur. He was allowed 15 days time to join his duties. District Education Officer finally in compliance of the order dated 15.02.1992 issued by the Director, Primary and Secondary Education, Bikaner, relieved the petitioner to join his duty at the new place of his posting on 21.02.1992. 4. Grievance of the petitioner is that although he was granted promotion to the post of Personal Assistant (Stenographer Gr. Ist) vide order dated 23.06.1990 after two years, his batch mates who were less meritorious had already been promoted and further that despite his promotion order dated 210.1990, the petitioner was not informed about his promotion and even after specific direction issued by the Director on 15.02.1992, the petitioner was relieved by the District Education Officer, Dholpur on 21.02.1992 after eight months. Resultently, the petitioner had to suffer loss of salary of the higher post on which he was given promotion and also loss of seniority for no fault on his part. 5. The writ petition filed by the petitioner has been contested by the respondents who have filed a detailed reply. The respondents in their reply have stated that posts in the subordinate offices are filled in according to seniority and not according to percentage of marks obtained in the competitive examination as has been clearly provided in Sub-rule (7) of Rule 15 of the Rajasthan Subordinate Ministerial Staff Service Rules. The respondents in their reply have stated that posts in the subordinate offices are filled in according to seniority and not according to percentage of marks obtained in the competitive examination as has been clearly provided in Sub-rule (7) of Rule 15 of the Rajasthan Subordinate Ministerial Staff Service Rules. The examination conducted by RPSC was not competitive but only a qualifying examination and therefore, the inter-se merit of those who passed the said examination was hardly relevant for grant of promotion. It was further submitted that the petitioner was junior to Mr. Pradeep Kumar Gupta, Shailendra Kumar, Shri Ram and Natthu Singh who were given promotion vide orders dated 26.08.1988 and 210.1988 respectively and therefore, they were rightly promoted earlier to the petitioner. Those persons were promoted in the year 1988 because of the reason that there were only four vacancies available with the respondents and no other post was fallen-vacant in that year. Therefore, the petitioner could not be promoted in that year alongwith them. It was further submitted that when proposal for appointment of petitioner as P.A. in other department was sent to the Government, the Government vide its order dated 01.08.1988 instructed the respondents to give promotion to the petitioner in Education Department itself . The Government vide its circular dated 10.08.1989 clearly stated that all posts of Personal Assistant shall be filled in 100% by promotion and not by way of direct recruitment and therefore, the provisions of Sub-rule (7) of Rule 15 of the Rules, are no longer in force. In fact, the application form of the petitioner for appointment on the post of P.A. was received in the office of the respondents on 05.09.1990 though the date marked on this application form was 27.08.1990. Soon thereafter the promotion order of the petitioner was issued on 210.1990 and he was posted at Jhunjhunu and was asked to join his duties within 15 days. The petitioner again on 23.04.1991 claimed for his promotion in the same office at Dholpur. It has been denied that the petitioner has been deprived of right of promotion. The petitioner was given promotion on the post but he at his own did not accept the promotion and did not join his duties in pursuance of order dated 210.1990. The petitioner again on 23.04.1991 claimed for his promotion in the same office at Dholpur. It has been denied that the petitioner has been deprived of right of promotion. The petitioner was given promotion on the post but he at his own did not accept the promotion and did not join his duties in pursuance of order dated 210.1990. With regard to large number of representations made by the petitioner, it was stated in Para 9 of the reply that the promotion on the post of Personal Assistant is made according to seniority and on the basis of percentage of marks obtained in the qualifying examinations. It was asserted that the petitioner came to know about his promotion prior to issuance of order dated 210.1990 and he for the reasons best known to him did not choose to join his duty at the new place of posting. The petitioner was now making false excuses that for the first time, he came to know about the fact of his promotion on 29.06.1991. In so far as the letter of the DEO dated 30.09.1991 refusing to relieve the petitioner till another stenographer is posted is concerned, it was stated that there was no bad intention on the part of the respondents in sending the aforesaid letter. The only motive was that no hinderence may come across the way in functioning of the department. It was therefore, prayed that the writ petition should be dismissed. 6. I have heard the arguments advanced by Mr. M.B. Sharma, the learned Counsel for the petitioner and Mr. Harshvardhan Nandwana, the learned Dy. G.A. appearing for the respondents. So far as the contention of the learned Counsel for the petitioner that the petitioner is more meritorious and had secured higher marks than Mr. Pradeep Kumar Gupta, Mr. Shailendra Kumar, Mr. Hari Ram and Mr. Nathu Singh is concerned, the same cannot be accepted. The examinations which was conducted through RPSC for appointment by way of promotion on the Post of PA in fact not a competitive examination but it was only qualifying examination. Inter-se merit secured by candidates in such qualifying examination according to the scheme of the rules would have no baring on grant of consequential promotion and posting. The examinations which was conducted through RPSC for appointment by way of promotion on the Post of PA in fact not a competitive examination but it was only qualifying examination. Inter-se merit secured by candidates in such qualifying examination according to the scheme of the rules would have no baring on grant of consequential promotion and posting. Those four persons who were given promotion vide order dated 26.08.1988 and 210.1988 are admittedly senior to the petitioner and therefore, claim of the petitioner which he repeatedly made through number of representations and the relief prayed for by him in the present petition that he should be given promotion on the post w.e.f. 26.08.1988 and 210.1988 cannot be accepted. 7. The petitioner has asserted in Paras 10, 11 and Ground (d) of the writ petition that he for the first time came to know about his order of promotion dated 210.1990 when copy of this order was forwarded to the DEO Dholpur by the Dy. Director (Admn.) with his order dated 29.01.1991. In response to such specific plea made by the petitioner, the respondents have not given any categorical reply as to when and in what manner, copy of the order of promotion dated 210.1990 was served upon the petitioner. On the contrary, Paras 10, 11 and Ground (d) of the reply are neither specific nor equivocal and they mainly state that DEO Shri Kailash Nath Vyas wrote a letter to the higher authorities for promotion to the petitioner. In Para 11 of the reply, it has been stated that avermens made by the petitioner in the writ petition that they did not come to know about his promotion order is false, baseless and frivolous for the reasons best known to him. The petitioner is taking this plea in order to cover up the delay in joining the post of promotion and cannot make the department liable for his own negligence and fault. In Ground (d) again similar averment has been made. Not only this, the respondents have not given any satisfactory explanation as to why the DEO Dholpur refused to relieve the petitioner for joining on the post of promotion. In this letter, the DEO in response to the letter of Dy. Director (Admn.) dated 19.06.1991 has written that the petitioner cannot be relieved till any other Stenographer is posted as there is a shortage of staff . In this letter, the DEO in response to the letter of Dy. Director (Admn.) dated 19.06.1991 has written that the petitioner cannot be relieved till any other Stenographer is posted as there is a shortage of staff . The respondents in their reply have not denied that the DEO refused to relieve the petitioner but have rather tried to justify his action and have stated that the DEO had no bad intention in sending the letter dated 30.09.1991 as the only motive behind it was that "no hinderence may come in the way in the functioning of the department". The order of promotion of the petitioner was passed on 210.1990. However, it will be seen by the large number of representations made by the petitioner to the respondents on various dates that there are as many as 4 representations Annexure-14 dated 111.1990, Annexure-15 dated 16.01.1991, Annexure-16 dated 02.04.1991 and Annexure-17 dated 22.04.1991 which were all made subsequent to issuance of the aforesaid promotion order. In all these representations the petitioner repeatedly draw attention of the respondents towards the fact that he has not been promoted, though he passed the qualifying examination way aback in the year 1988 and that he has been agitating his grievance for a long time and that four other persons who qualified the said examinations alongwith him already stood promoted and further that he should also be promoted from the date of that order by which the other persons were promoted. None of these representations were answered by the respondents so much so in the reply to the writ petition filed by them. The respondents also did not deny that they had not received these representations. The respondents have not come forward to take a stand even before this Court that these four representations made by the petitioner subsequent to passing of promotion order were superfluous or were designed to avoid the joining at the new place of his posting on promotion. The plea of the respondents that the petitioner avoided the joining at the new place of his posting also cannot be accepted in view of the categorical refusal contained in the letter of DEO Dholpur wherein he stated that it was not possible to relieve the petitioner till any other Stenographer joins and there is also shortage of staff . The plea of the respondents that the petitioner avoided the joining at the new place of his posting also cannot be accepted in view of the categorical refusal contained in the letter of DEO Dholpur wherein he stated that it was not possible to relieve the petitioner till any other Stenographer joins and there is also shortage of staff . In my view, the non joining of the petitioner at the place of his posting and a delayed joining at the new place of his posting cannot be attributed to the petitioner while at the same time, I do not find him entitled to claim promotion w.e.f. 26.08.1988 and 210.1988 when other four persons were promoted. However, petitioner has certainly been able to out a case for grant of relief in so far as the delayed joining on the post of promotion pursuant to order dated 210.1990 is concerned. 8. For the reasons discussed above, the present writ petition deserves to be allowed. The respondents are directed to treat the petitioner to have been promoted vide order dated 210.1990 with 15 days time being allowed him to join the duty. However, the petitioner on this count will not be entitled to get actual benefits of pay as he has not physically discharged duties as Personal Assistant, which is a promotion post. He will however be entitled to get notional benefit of pay etc. and seniority for this period. The respondents are further directed to comply with the directions given in this order within a period of three months from the date of receipt of the certified copy of this order. There shall be no order as to costs.