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2011 DIGILAW 188 (RAJ)

Pannalal Sakerwal v. State of Rajasthan

2011-01-27

GOPAL KRISHAN VYAS

body2011
JUDGMENT 1. - In this writ petition, the petitioner has challenged the order of Rajasthan Civil Services Appellate Tribunal dated 29.10.1993, Annex.-13 and prayed that while quashing the said order, prayer made in the appeal filed by the petitioner before the Tribunal may be allowed with all consequential benefits. 2. As per facts of the case, an appeal was preferred by the petitioner before the Tribunal on 04.09.1987, in which, following prayer was made : "It is, therefore, prayed that the Hon'ble Tribunal be pleased to call for and examine the entire record relating to this case and the respondents be directed to appoint the petitioner by promotion as regular Assistant Engineer (Mechanical) against the appropriate earlier years ranging from 1970 to 1978 and the order dated 6.7.87 may be directed to be modified accordingly and the petitioner's name may be directed to be included therein at appropriate place with all consequential benefits as if his name was already there at the time when the said order was issued." 3. During the pendency of the appeal, the petitioner's case was considered for promotion on the post of Assistant Engineer (Mechanical) in the Review-DPC which is said to have been conducted for the vacancies in existence since 1972 to 1988-89. The petitioner was found suitable for promotion against the vacancy of 1987-88. The said order dated 14.10.1992, Annex.- 8 is on record. 4. Learned counsel for the petitioner submits that during pendency of the appeal in the Tribunal when the petitioner was promoted an amendment application was filed in the appeal and reply was also filed by the respondents to the amendment application in appeal and, after hearing both the parties, the Tribunal dismissed the appeal filed by the petitioner vide the impugned judgment dated 29.10.1993. 5. Learned counsel for the petitioner while assailing the judgment of the learned Tribunal submits that order of the learned Tribunal is erroneous and contrary to the fact that the petitioner being candidate of the Scheduled Caste category was not entitled to be considered for promotion for the vacancy occurred in between 1970 to 1978; because due to wrong determination of the vacancies respondents denied promotion to the petitioner against the vacancy occurred in between 1970 to 1978 and this fact has been ignored by the Tribunal. Therefore, a direction is required to be issued to the respondents to redetermine the vacancies of the post of Assistant Engineer (Mechanical) from 1970 to 1978 and, after determination of the vacancies, the petitioner's case shall be re-considered for promotion under the quota of Scheduled Caste category. 6. Learned counsel for the petitioner submits that although the petitioner was promoted vide order dated 14.10.1992 during the pendency of the appeal before the Tribunal; but, in fact, the petitioner's case was to be considered against the vacancy occurred during 1970 to 1978 but it has not been considered by the respondents, therefore, the petitioner is entitled to the relief prayed for. 7. On behalf of the respondent State, it is submitted by Mr. L.K. Purohit, learned Addl. Govt. Counsel that the learned Tribunal categorically considered all the grounds taken by the petitioner in appeal and, after due consideration, observed that no junior person than the petitioner has been promoted, so also, after determination of vacancy from 1970 to 1988-89 the petitioner was granted promotion while considering his candidature against the vacancy occurred the year 1987-88 which is clear from the order dated 14.10.1992. Therefore, no interference is required in this matter because the Tribunal has considered all aspects of the matter and the writ petition filed by the petitioner is devoid of merit, hence deserves to be dismissed. 8. Learned counsel for the respondents further stated that appeal was filed in the year 1987 and, later on, during pendency of the appeal, the petitioner's candidature was considered by the Review-DPC and petitioner was found suitable against the vacancy of 1987-88 and accorded promotion, it is also pointed out that there is no specific averment in the appeal filed by the petitioner how the vacancies were wrongly determined, therefore, on this ground also, no relief can be granted at this stage. Learned counsel for the respondents while inviting attention of the Court towards recent judgment of the Hon'ble Supreme Court, reported in 2010 (9) SCC 385 , Jai Singh & Others v. Municipal Corporation of Delhi & Another , submits that High Court cannot lightly or liberally act as appellate Court and re-appreciate evidence, upon which, judgment is rendered by the Tribunal. In this view of the matter, there is no force in this writ petition. 9. In this view of the matter, there is no force in this writ petition. 9. After hearing learned counsel for the parties, I have perused the entire writ petition as well as appeal filed by the petitioner before the Rajasthan Civil Services Appellate Tribunal and, impugned judgment dated 29.10.1993. 10. It is accepted in the pleadings by the petitioner that during the pendency of the appeal before the Tribunal the petitioner's case was considered by the Review-DPC held for the vacancies occurred from 1970 to 1988-89 and the petitioner was accorded promotion on the basis of seniority-cum-merit against the vacancy of 1987-88 as diploma holder. In my opinion, when after due application of mind the Tribunal gave finding that no junior person than the petitioner was promoted prior to 1987-88, then, obviously the petitioner cannot claim right of promotion against the vacancy prior to the year 1987-88. In this writ petition also, it is nowhere stated by the petitioner that any candidate from Scheduled Caste category junior to petitioner was promoted prior to 1987-88. 11. It is also one of the important aspects of the matter that appeal was filed in the year 1987 and, during pendency of the appeal, the petitioner was promoted in the year 1987-88 and, at the time of consideration of the petitioner's candidature, all the vacancies which were in existence from 1970 to 1988-89 were taken into consideration and petitioner was found suitable for promotion against vacancy of 1987-88. In my opinion, if consideration was made and petitioner was granted promotion against the vacancy of 1987-88 and no junior person was promoted prior to said promotion, then, the petitioner has no case and, so also, for the ground of wrong determination of vacancy in the year 1992 there is no prayer in the appeal filed by the petitioner. In this view of the matter, when the petitioner's case was considered in the year 1992 and petitioner accepted the promotion and, later on, superannuated, then, it is not proper to open the pandora box after a decade. 12. I have also considered the submission made by learned counsel for the respondents that as per judgment of the apex Court in the case of Jai Singh & Others (supra) while exercising jurisdiction under Articles 226 and 227 of the Constitution of India this Court cannot lightly and liberally act as an appellate Court. 12. I have also considered the submission made by learned counsel for the respondents that as per judgment of the apex Court in the case of Jai Singh & Others (supra) while exercising jurisdiction under Articles 226 and 227 of the Constitution of India this Court cannot lightly and liberally act as an appellate Court. In para 15 of the said judgment, Hon'ble Supreme Court held as under : "15. We have anxiously considered the submissions of the learned counsel. Before we consider the factual and legal issues involved herein, we may notice certain well-recognised principles governing the exercise of jurisdiction by the High Court under Article 227 of the Constitution of India. Undoubtedly the High Court, under this article, has the jurisdiction to ensure that all subordinate courts as well as statutory or quasi-judicial tribunals, exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with the well-established principles of law. The High Court is vested with the powers of superintendence and/or judicial revision, even in matters where no revision or appeal lies to the High Court. The jurisdiction under this Article is, in some ways, wider than the power and jurisdiction under Article 226 of the Constitution of India. It is, however, well to remember the well-known adage that greater the power, greater the care and caution in exercise thereof. The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. The exercise of jurisdiction must be within the well-recognised constraints. It cannot be exercised like a "bull in a china shop", to correct all errors of judgment of a court, or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice." 13. In this view of the matter, in my opinion, in the light of the above judgment, it is not proper to re-appreciate the evidence or facts narrated by the petitioner in this writ petition under supervisory jurisdiction left with this Court under Article 227 of the Constitution of India. 14. Hence, this writ petition is hereby dismissed.Petition dismissed. *******