Research › Search › Judgment

Rajasthan High Court · body

2007 DIGILAW 884 (RAJ)

Sumer Chand Jain v. State of Rajasthan

2007-04-27

P.S.ASOPA

body2007
Honble ASOPA, J.–By this common order, three connected cases filed by the same petitioner- S.B. Civil Writ Petition No. 5099/1998, S.B. Civil Contempt Petition No. 239/1999 and S.B. Civil Writ Petition No. 568/2005 are being decided. (2). In Writ Petition No. 5099/1998 the petitioner has challenged order dated 23.9.1998 (Anx. 11) whereby he has been reverted from the post of Supervisor to that of Class IV servant on the ground that there is no post of Supervisor in the Kherliganj Kraya Vikraya Sahkari Samiti Ltd. Kherliganj, Alwar (in short `the Society). Petitioner has also prayed for a direction to the respondents to allow him to work on the post of U.D.C. or in the alternative, to post him on the post of Supervisor. (3). In this writ petition, an interim order was passed on 16.10.1998 to the following effect: ``Issue notice to the respondent to show cause as to why this petition may not be admitted. Issue notice of the stay application also. In the meanwhile operation of order dated 23.9.98 is stayed. (4). For non compliance of the aforesaid order dated 16.10.1988 S.B.Civil Contempt petition No. 239/1999 has been filed. (5). In S.B. Civil Writ Petition No. 568/2005 which was filed by the petitioner after his retirement, the petitioner has prayed for a direction to the respondents to make payment of dues of Gratuity with interest at the rate of 18% p.a. as also leave encashment for 150 days unavailed earned leave. S.B.C.W.P. No. 5099/1998 (6). In this writ petition, it has been stated in the writ petition that the petitioner was rightly promoted to the post of Supervisor in the year 1969, then as L.D.C. in 1975 and then to the post of U.D.C. in 1980 and without issuing any notice he has been reverted from the post of Supervisor to that of Class-IV servant. Alternate prayer for his continuation as UDC has also been made. Petitioner has further submitted that he should be allowed to work on the post of Supervisor looking to his past experience of twenty years though he is Class VIII pass. (7). In reply, the contents of paras 3, 4, 5 of the writ petition relating to promotion of the petitioner have been denied by the respondents. Petitioner has further submitted that he should be allowed to work on the post of Supervisor looking to his past experience of twenty years though he is Class VIII pass. (7). In reply, the contents of paras 3, 4, 5 of the writ petition relating to promotion of the petitioner have been denied by the respondents. It was further stated in reply to para No. 6 of the writ petition that the petitioner was the senior most employee therefore, he was handed over the charge of the post of Supervisor in routine. The respondents have also stated that the petitioner was promoted under the wrong notion that he was having due qualification and that there was post of Supervisor in the Society. The respondents have placed reliance on enquiry conducted by the Assistant Registrar in respect of the illegal appointment of Supervisor/demand of continuation as UDC wherein the Enquiry Officer has come to the conclusion that the post of Supervisor is not available in the Society and that the petitioner does not possess the qualification for the post of UDC which is Graduate even for the lower post of Junior Assistant. S.B. Civil Writ Petition No. 568/2005 (8). In the aforesaid writ petition, the respondents in their reply while controverting the claim as put forth by the petitioner for payment of gratuity and leave encashment etc., with interest and have further stated that the petitioner has been paid Rs. 54,302/- being gratuity for 16 months and a half and Rs. 16,455/- being the amount of earned leave for five months, thus totalling to Rs. 70,757/-. (9). The respondents have stated in the reply that vide order dated 5.12.2002, an amount of Rs. 40,785/- towards provident fund with interest has also been paid to the petitioner. S.B. Civil Contempt Petition No. 239/99 (10). Since the interim order dated 16.10.1998 passed in SBCWP No. 5099/1998 was not complied and recovery of Rs. 6,202/- was effected from the pay of the petitioner the petitioner filed the above contempt petition. (11). Submission of the counsel for the petitioner is that considering his past experience of the job of clerical nature he is entitled to promotion as well as continuation as Supervisor but ignoring his past experience and without issuing any notice, he was reverted to the initial post of Class IV by the respondents. (11). Submission of the counsel for the petitioner is that considering his past experience of the job of clerical nature he is entitled to promotion as well as continuation as Supervisor but ignoring his past experience and without issuing any notice, he was reverted to the initial post of Class IV by the respondents. Counsel has also placed reliance on the following judgment on the issue that experience is to be given weightage:- 1. Smt. Gulab & others vs. State of Rajasthan & ors. (RLR 1990(1) 523). 2. Ram Swaroop Bairwa vs. The State of Rajasthan (1977 WLC (Raj.) UC 116) 3. Bhagwati Prasad vs. Delhi State Mineral Development Corporation AIR 1990 SC 371 . (12). Counsel for the respondent Society has submitted that in the matter of promotion, qualifications carry much weight rather than in case of regularization where experience is sometimes given weightage in order to continue initial employment. The judgments cited by the counsel for the petitioner are distinguishable. As regards payment, he has submitted that the entire payment of the gratuity and other dues was made to the petitioner. (13). On the issue of contempt, counsel for the contemner submitted that the said deduction is on account of some audit objection and the same is not related to any court order. (14). I have heard counsel for the parties and gone through the record of the writ petition as also considered the rival submissions of the parties. (15). I am of the view that the judgments relied upon by the petitioner are of regularization and grant of minimum pay scale and further the same are not related to promotion. In case of promotion, unless the qualification is relaxed no weightage can be given to experience above the educational qualifications. The petitioner being a Class IV employee cannot be equated with Graduate simply on account of long experience which was ultimately found by the respondents to be an illegal promotion. In case of illegal promotion, if a person is lacking in qualifications no purpose will be served to remand back on the issue of the alleged violation of the principles of natural justice. Therefore, I hold that the petitioner was ineligible for the post of UDC or even L.D.C. inasmuch as he was not having requisite educational qualification therefore. In case of illegal promotion, if a person is lacking in qualifications no purpose will be served to remand back on the issue of the alleged violation of the principles of natural justice. Therefore, I hold that the petitioner was ineligible for the post of UDC or even L.D.C. inasmuch as he was not having requisite educational qualification therefore. Moreover, power of relaxation in educational qualifications has not been exercised by the competent authority in favour of the petitioner so as to make him eligible for the post of UDC/LDC. As regards the post of Supervisor, since there was no post, there can neither be any consideration on the said issue nor can any direction be issued on this count. The qualification even for the lower post of Junior Assistant is Graduate for direct recruitment and promotion. Once the qualification of lower post is prescribed as Graduate there cannot be lesser qualification for the higher post which is to be filled as per Item No. 7 Senior Assistant 75% by promotion and 25% by direct recruitment. (16). Since the petitioner retired and as per the respondents they have paid entire amount to the petitioner but the petitioner has disputed the same, therefore, it will be better for the petitioner to give a representation to the respondents for the balance amount if any, which shall be decided by a reasoned order within a period of one month from the date of receipt of representation. (17). In view of the above, the contempt petition does not survive and the contempt notice issued is discharged. This issue of deduction can also be included in the representation and the respondents will pass a reasoned order in this regard. (18). Resultantly, S.B. Civil Writ Petition No. 5099/1998 is dismissed. S.B. Civil Writ Petition No. 568/2005 and S.B. Civil Contempt Petition No. 239/99 are disposed of.