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2018 DIGILAW 2183 (RAJ)

Ravindra Kumar Jain v. State of Rajasthan

2018-11-02

SANJEEV PRAKASH SHARMA

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JUDGMENT Sanjeev Prakash Sharma, J. - Counsel for the respondent informs that Rule 25(c) of the Conduct Rules of 1971 has been deleted vide notification dated 11.5.2016. It is also informed that the petitioner has already been granted second selection scale as well as promotion on the post of Accountant for the year 2017-18. The Division Bench in DBCW Pet. No.8796/2014 (Jairam v. State and ors.) and connected petitions, struck down the date of application of the Notification dated 20.11.2015. The notification dated 20.11.2015 provided that any person who has performed remarriage which is not against the law, and was not disqualified from promotion prior to such remarriage, would not be disqualified if a child is born out of such remarriage. 2. Learned counsel for the petitioner submits that he had remarried and a child was born from second wedlock on 5.1.2005 and on account of same, the petitioner was denied selection scale and also denied promotion w.e.f. 21.6.2013. The petitioner was entitled to receive selection scale w.ef. 23.4.2008. Learned counsel points out that vide order dated 7.7.2009, he was punished with Censure and second ACP was also denied to him vide order dated 29.12.2011. 3. I have heard learned counsel for the parties. 4. Keeping in view the judgment passed in Jairam Meena v. State of Rajasthan (DBCW Pet. No.8796/14) (supra), it has to be held that the notification dated 20.11.2015 could apply from 1.6.2002 itself i.e. retrospectively. Notification dated 20.11.2015 reads as under: "3. Amendment.- After the existing last proviso to sub-rule (4) of rule as mentioned in column number 4 against each of the Service Rules aas mentioned in column number 2 of the Schedule given below, the following new proviso shall be added, namely:- "Provided also that any person who performed remarriage which is not against any law and before such remarriage he is not disqualified for promotion under this subrule, he shall not be disqualified if any child is born out of single delivery from such remarriage." 5. The third child was born to the petitioner on 5.1.2005. Thus the provisions of aforesaid notification dated 20.11.2015 would apply and the petitioner cannot be said to have committed misconduct within the meaning of rule 25(c) as existed at the relevant point of time. In the circumstances, the order of punishment of Censure dated 7.7.2009 is vitiated and the same is accordingly quashed and set aside. Thus the provisions of aforesaid notification dated 20.11.2015 would apply and the petitioner cannot be said to have committed misconduct within the meaning of rule 25(c) as existed at the relevant point of time. In the circumstances, the order of punishment of Censure dated 7.7.2009 is vitiated and the same is accordingly quashed and set aside. The order of not granting second ACP to the petitioner dated 29.12.2011 would also be quashed on the basis of aforesaid judgment passed by Division Bench. Since the petitioner cannot be said to have committed any misconduct nor can it be said that the petitioner would be effected by circular dated 1.6.2002, the proceedings initiated against him denying him grant of selection scale w.e.f. 23.4.2008 and not considering his case for promotion w.e.f. 21.6.2013 are also held to be unjustified. 6. In view of above, writ petition is allowed. The respondents are directed to reconsider the case of the petitioner for promotion to the post of Accountant w.e.f. 21.6.2013 or from the date his juniors have been promoted by convening the review DPC. The petitioner would also be allowed second selection scale w.e.f. 23.4.2008 i.e. on completion of 18 years of service. While considering his case for promotion, punishment of Censure awarded vide order dated 7.7.2009 shall also be ignored as the same is held to be unjustified and is quashed in the present case. 7. The petitioner would also be entitled to receive second ACP and the order dated 29.12.2011 with-holding the second ACP for five years also stands quashed. 8. Consequential benefits shall be awarded to the petitioner. Exercise in this regard be made within a period of three months. The writ petition is accordingly allowed. 9. Writ Petition Allowed - Petitioner Held entitled also to second ACP and order withholding same, Dated 29.12.2011 also quashed.