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2006 DIGILAW 436 (RAJ)

S. L. Gupta v. State of Rajasthan

2006-02-08

K.S.RATHORE

body2006
Judgment K.S. Rathore, J.-Brief facts of the case are that the petitioner joined his services in Public Health Engineering Department in the year 1966 vide order dated 110.1966. Thereafter, the petitioner was selected by the RPSC in the year 1967 and was confirmed on 210.1967 on the said post. 2. The petitioner was promoted as Superintending Engineer (Mech) on urgent temporary basis vide order dated 06.09.1988. 3. The Departmental Promotion Committee recommended the promotion of three persons including the Respondent No. 2 on 24.03.1990 against the vacancy of 1986-1987 on the post of Superintending Engineer. Against the said promotion, in respect of Respondent No. 2, the order of promotion dated 24.03.1990 was assailed by the petitioner before the Rajasthan Civil Services Appellate Tribunal. 4. The Tribunal vide its Judgment dated 17.01.1991 allowed the appeal and set aside the impugned order dated 24.03.1990 so far it relates to promotion of Shri K.P. Garg. The respondent State was further directed to call the meeting of the DPC for adjudging suitability of eligible candidates for promotion to the post of Superintending Engineer (Mech.) of the year 1987-1988 which is required to be filed in on merit basis as per rules. 5. This order of the Tribunal dated 17.01.1991 is challenged by the petitioner in this writ petition on the ground that three posts of Superintending Engineers and one post of Additional Chief Engineer, PHED were created by the Government by an order dated 30.03.1986 but as per the schedule appended to the Rules of 1968 and as per the composite strength of the service, the service is categorized in three Sections; (i) Civil Engineering; (ii) Mechanical and Electrical Engineering and (iii) Public Health Engineering Laboratories. Thus, there being any categorization of the posts no appointments/promotion should have been made under the scheme of Rules of 1968 6. In view of the creation order dated 30.03.1987, the posts of Superintending Engineer were categorized by the Government by an order dated 18.04.1987 and so far as the post of Additional Chief Engineer is concerned, the same was categorized by order dated 110.1987 and 211.1987. Thus, the post of Superintending Engineer (Mech.) were categorized in the month of April and November, 1987 respectively. 7. Thus, by no stretch of imagination the posts which are said to be available as on 01.04.1986 as determined by the Government, can be considered as such as per rules. 8. Thus, the post of Superintending Engineer (Mech.) were categorized in the month of April and November, 1987 respectively. 7. Thus, by no stretch of imagination the posts which are said to be available as on 01.04.1986 as determined by the Government, can be considered as such as per rules. 8. It was further submitted that so far the consequential vacancy is concerned, which was filled by the Government and determined as on 01.04.1986 was highly unjustified. Shri RC Gupta who was holding substantial post of Superintending Engineer (Mech.) was promoted as Additional Chief Engineer (Mech.) was promoted as Additional Chief Engineer (Mech) by order dated 212.1988. Thus, on account of the consequence of his promotion third post of Superintending Engineer (Mech.) become available only in the month of December, 1988. Thus the said post at the best either to be determined or to be available in view of the amended Rule 9 of the Rules of 1968 as on 01.04.1989 but not on 01.04.1986 or 01.04.1987. 9. Learned Counsel for the petitioner submitted that the findings recorded by the Tribunal in respect of determination of post of Superintending Engineer (Mech.) which has become available as a consequential vacancy on account of promotion of Shri RC Gupta as Additional Chief Engineer vide order dated 212.1988 to be vacancy available as on 01.04.1987 is highly erroneous, unjustified. 10. It is also given much emphasis that the Tribunal failed to make out a distinction between actual vacancy which is available as on 1st April of the year as well as a consequential vacancy which has arisen on account of promotion on a higher post. The literary meaning of consequence is “a thing or circumstance which follows as on effect or result from some thing preceding”. 11. Per Contra, learned Counsel for the respondent vehemently opposed the submissions made on behalf of the petitioner and submitted that three posts of Superintending Engineer and one post of Additional Chief Engineer was created vide order dated 30.03.1987 and subsequently, the above posts were categorized as post of Mechanical and Civil side vide orders dated 211.1997 and 18.04.1997. Shri RC Gupta was promoted on the post of Additional Chief Engineer (Mech.) against the quota of 1986-1987 vide order dated 212.1988. Thus, three posts of Superintending Engineer (Mech.) remain available against the year 1986-1987. Shri RC Gupta was promoted on the post of Additional Chief Engineer (Mech.) against the quota of 1986-1987 vide order dated 212.1988. Thus, three posts of Superintending Engineer (Mech.) remain available against the year 1986-1987. It was further submitted that in the DPC held for the year 1984-1985, the last post was to be filled in by merit quota and as such, for the year 1986-1987 the DPC had to consider first the post to be filled in by seniority-cum-merit quota. And the DPC held on 211.1989 recommended the promotions of Shri RK Jain and Shri VK Jain against the seniority-cum-merit quota and Shri KP Garg Respondent No. 2 against the merit quota. It was also given out that the petitioner was also considered by the DPC which met on 211.1989 against the merit quota but he was not found suitable as Shri KP Garg was found more meritorious than that of the petitioner and was given promotion against the quota of the year 1986-1987. 12. Learned Counsel for the petitioner in support of his submissions placed reliance on the Judgment reported in 1991 (2) WLC 597 and 1996(6) SCC 721 and also referred Rule 9 and Rule 25(6) of the Rajasthan Service of Engineers and Allied Posts (Public Health Branch) Rules, 1968. 13. Having considered the rival submissions of the respective parties and the Judgment s referred by the learned Counsel for the petitioner and after careful perusal of the relevant rules and impugned Judgment passed by the Civil Services Appellate Tribunal dated 17.01.1991, the Tribunal vide its order set aside the promotion order dated 24.03.1990 so far it relate to the promotion of Shri KP Garg, Respondent No. 2 and the matter is remanded back to the respondent for holding fresh DPC to adjudge the suitability of eligible candidate for promotion to the post of Superintending Engineer (Mech.) for the year 1987-1988 which is required to be filled in on merits basis. As it is not disputed that the DPC held for the year 1984-1985, the last post was filled by merit quota, therefore, against three posts, first post is to be filled in by seniority cum merit quota and next two posts were to be filled by merit and seniority quota. And it is not disputed that the petitioner is not meritorious as comparison to the Respondent No. 2. And it is not disputed that the petitioner is not meritorious as comparison to the Respondent No. 2. Even otherwise also the Service Tribunal has remanded the matter back to adjudge the suitability to fill up one post considering the merit quota. I do not find any illegality or error apparent on the face of the record in issuing such direction by the Civil Appellate Tribunal and the petitioner is not able to make out any case which require any interference by this Court with the Judgment passed by the Civil Service Appellate Tribunal. 14. Therefore, this writ petition deserves to be dismissed being devoid of merit and same is dismissed with no orders as to cost.