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2011 DIGILAW 151 (RAJ)

Vijay Singh Shekhawat v. State

2011-01-20

MOHAMMAD RAFIQ

body2011
JUDGMENT 1. - This writ petition was filed by the petitioner way back in the year 1997 inter alia with the prayer that the respondents be directed to promote him on the post of Executive Officer, Class-III on substantive basis by convening review DPC on vacant post of the year 1988-89 caused by non acceptance of the promotion by one Mahendra Kumar Jain, who was his immediate senior of feeder cadre of Assessor. 2. Ms. Anita Agarwal, learned counsel appearing for the petitioner has argued that in the seniority list dated 14.11.1990, name of petitioner Vijay Singh Shekhawat was at S.No.39, whereas Mahendra Kumar Jain was at S.No.38. Once this seniority list is maintained state wise according to the schedule appended to the Rajasthan Municipal Service Rules, 1963, the source of recruitment for appointment on the post of Executive Officer-Class-IV is 100% by promotion on the basis of seniority-cum-merit. 60% of the posts are to be filled in by promoting Executive Officer Class-IV, whereas 20% are earmarked for Revenue Officers Gr.II., 10% of the posts are filled in by promoting there against the Assessor and Superintendent. 3. Learned counsel submitted that Mahendra Kumar Jain was an Assessor and therefore if he had foregone the promotion, the respondents should have immediately thereafter convene review DPC to consider candidature of the petitioner, but they did not do so despite the petitioner repeatedly represented them. Petitioner was rather promoted belatedly by order dated 6.10.2001 against the vacancies of the year 1993-94. It is therefore prayed that the writ petition be allowed. 4. Shri Jinesh Jain, learned Government Counsel opposed the writ petition and submitted that the petitioner was junior to one Maharatan Gehlot both in the seniority list of 1999 and thereafter in the revised seniority list dated 14.6.2001. In the earlier seniority list of 1990, name of Maharatan Gehlot appeared at S.No.37 much above the petitioner, which was at S.No.39. In the revised seniority list dated 14.6.2001 also while the name of petitioner appeared at S.No.39, Maharatan Gehlot was placed at S.No.38. In that situation, vacancy would be liable to be offered to Maharatan Gehlot, who was also from the stream of Assessor. Petitioner was not promoted in the vacancy of the year 1988-89 because he was not eligible. In the revised seniority list dated 14.6.2001 also while the name of petitioner appeared at S.No.39, Maharatan Gehlot was placed at S.No.38. In that situation, vacancy would be liable to be offered to Maharatan Gehlot, who was also from the stream of Assessor. Petitioner was not promoted in the vacancy of the year 1988-89 because he was not eligible. When he was found eligible he was given promotion against the vacancy of the year 1988-89 vide order dated 6.10.01 on the post of Executive Officer, Gr.III and thereafter he was further promoted on the post of Executive Officer Gr.II against the vacancies of the year 2001-02 vide order dated 7.1.2002. It is therefore prayed that the writ petition be dismissed. 5. This Court by order dated 6.1.2011 directed the respondents to produce on record copy of the revised seniority list dated 14.6.2001 and also complete service particulars of Maharatan Gehlot which has not been done so far, despite the fact that respondents filed reply to the writ petition way back on 6.5.07. Petitioner has also not clarified whether Maharatan Gehlot was already promoted earlier than promotion granted to Mahendra Kumar Jain or he was not adjudged suitable or he was promoted thereafter. Record, however, discloses that in earlier seniority list of the year 1990, this Maharatan Gehlot was at S.No.37, immediately above Mahendra Kumar Jain, who was at S.No.38, whereas respondents now assert that in revised seniority list dated 14.6.01, Maharatan Gehlot came to be placed at S.No.38 immediately below Mahendra Kumar Jain. Neither of the parties however have brought to the notice of the Court, correct facts as to when Maharatan Gehlot was promoted. Nevertheless, it is also not denied that at the time when Mahendra Kumar Jain was promoted it was on the basis of seniority list then existing in which petitioner was placed immediately below Mahendra Kumar Jain.If the vacancy had become available in 1988-89 on account of refusal of Mahendra Kumar Jain to accept promotion, review DPC ought to have been convened by the respondents. The subsequent promotion of the petitioner on the post of Executive Officer Gr.III against the vacancies of the year 1993-94 may be known fullest to the petitioner because if he was entitled to promotion against the vacancy of the year 1988-89 just because the respondents did not timely convene DPC, he cannot be denied right to consideration against such vacancies in accordance with rules. This Court, in fact, on petitioner's own request vacated the earlier stay order dated 12.5.1998 by which they were directed to not hold DPC by subsequent order dated 31.8.2006 and required the respondents to hold DPC for the post of Executive Officer- III to be filled-up from the post of Assessor in the quota of 1988-89 and to keep one post vacant. In that event, they were also required to convene review DPC also for the period 1988-89. 6. Ms. Anita Agarwal, learned counsel for petitioner has produced copy of the order dated 29.10.1991 and argued that according to this order Shri Maharatan Gehlot was already promoted and was posted as E.O. III at Municipal Board, Sangria, whereas it was petitioner who was required to be considered. 7. Shri Jinesh Jain, learned Government Counsel has produced copy of the note sheets, according to which there was some confusion in the Directorate of Local Bodies whether post which had become available because of refusal of Mahendra Kumar Jain to accept the promotion would go in circulation to be treated as part of general post or would remain earmarked only for the category of Assessor. Ultimately, the matter was referred to DOP which advised that it should go back to the same stream. What appears from the record is that the respondent did not convene review DPC so far as the vacancy of the year 1988-89 is concerned. They rather made fresh promotion against the vacancy of the subsequent years. There is no justification, if the contention that the petitioner was not eligible, cannot be accepted because petitioner in the present case was promoted on 15.10.1979 on ad hoc basis and in that capacity worked in various municipalities. The only eligibility for promotion from Assessor to E.O. Gr.III is that the candidate should have experience of five years and therefore it cannot be said that he was not eligible. The reply of the respondents is absolutely vague. The only eligibility for promotion from Assessor to E.O. Gr.III is that the candidate should have experience of five years and therefore it cannot be said that he was not eligible. The reply of the respondents is absolutely vague. They did not clarify as to on what basis, they treated him ineligible for right to consideration for vacancies of the year 1988-89 on which promotion was granted to Mahendra Kumar Jain. 8. In the result, this writ petition is allowed. The respondents are directed to convene review DPC for the vacancies of the year 1988-89 while considering petitioner and other eligible candidates and pass appropriate order if the petitioner is adjudged suitable with all the consequential benefits to him. If in the intervening period, petitioner has already been granted the benefit of selection scale on completion of 9, 18 and 27 years, benefits may be liable to be adjusted accordingly to that extent. 9. Compliance of the judgement be made within a period of three months from the date copy of this order is produced before the respondents.Petition allowed. *******