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Rajasthan High Court · body

2019 DIGILAW 2119 (RAJ)

Mohd. Yakub Khan v. State of Rajasthan

2019-08-06

ARUN BHANSALI

body2019
JUDGMENT : ARUN BHANSALI, J. 1. This writ petition has been filed by the petitioner aggrieved against the order dated 10.8.2016 (Annex. 7) passed by the respondents, whereby, the representation made by the petitioner has been rejected and prayer has been made that the respondents be directed to hold review DPC for the year 2013-14 and consider the candidature of the petitioner for promotion to the post of Teacher Gr. II, subject Urdu, against the vacancies of the year 2013-14, with all consequential benefits. 2. It is inter alia indicated in the writ petition that the petitioner entered the services of the respondent-Department on 8.10.2007 on the post of Teacher Gr. III and was allotted district Jodhpur. On a request made by the petitioner, he was transferred from district Jodhpur to District Churu in the year 2010 and as a consequence, he was placed at bottom of the seniority in Churu Division. 3. It is submitted that the qualification for promotion to the post of Teacher Gr. II inter alia requires 5 years' teaching experience on the feeder post. It is claimed that as the petitioner was appointed in the year 2007, he had acquired the requisite 5 years' experience in the year 2012 and was therefore, eligible for promotion on the post of Teacher Gr. II in subject Urdu. 4. The respondents have initiated the process for promotion in subject Urdu in Churu Division in the year 2014. At the relevant time, in the Churu Division there were 5 districts i.e. Churu, Jhunjhunu, Bikaner, Hanumangarh and Sriganganagar and, therefore, the teachers eligible from the said districts were to be considered for promotion for the DPC held in the year 2014 for the year 2013-14 and as there were 59 vacant posts of Teacher Gr. II against the promotion quota, eligibility list of the year 2013-14 was published, which included only 31 names and, therefore, the petitioner though he was in zone of consideration, his name was not included. 5. Further submissions have been made that the DPC considered the candidates as indicated in the eligibility list and promoted 31 persons and on remaining vacancies despite the petitioner being eligible, he was not considered without any justification. 6. The petitioner made a representation to include him in the zone of consideration and sought information under Right to Information Act, 2005, which was provided to him vide Annex. 4. 6. The petitioner made a representation to include him in the zone of consideration and sought information under Right to Information Act, 2005, which was provided to him vide Annex. 4. When the representation made by the petitioner was not decided, the petitioner approached the Jaipur Bench of this Court by filing SBCWP No. 7298/2016, which writ petition was decided on 2.6.2016, whereby, the respondents were directed to decide the representation made by the petitioner. 7. Pursuant to the directions, the petitioner submitted a detailed representation (Annex. 6), however, by order impugned dated 10.8.2016, the representation made by the petitioner has been rejected. 8. It is submitted by the petitioner that the action of the respondents in rejecting the representation of the petitioner is ex facie incorrect. Submissions have been made that the representation has been rejected by indicating that as the petitioner had joined Churu Division in the year 2010, he was not entitled for promotion. 9. It is further submitted that the determination made is ex facie contrary to the provisions of Explanation to Rule 29(10) of the Rules of Rajasthan Educational Subordinate Service Rules, 1971 (‘the Rules of 1971’) inasmuch as, the said Rule only provides that when a person working on the post of Teacher is transferred from one district/range to another district/range on his own request, he shall be placed just below the junior most person in seniority and will cease to have any right of his seniority in the district/range from which, he has been transferred. 10. The said provision only affects the seniority and does not wipe out the services rendered and, therefore, as the petitioner was eligible for consideration in the year 2013-14, the rejection of his representation/denial of promotion is not justified. 11. Reliance has been placed on judgments of Hon'ble Supreme Court in Union of India and Others vs. M. Mathivanan, (2006) 6 SCC 57 , Dwijen Chandra Sarkar vs. Union of India, (1999) 2 SCC 119 and Union of India vs. V.N. Bhatt, (2003) 8 SCC 714 . 12. Learned counsel appearing for the respondent-State opposed the submissions. It was submitted that the DPC in the year 2013-14 was convened and the candidates, who were eligible, promoted on the post of Teacher Gr. II in subject Urdu. 12. Learned counsel appearing for the respondent-State opposed the submissions. It was submitted that the DPC in the year 2013-14 was convened and the candidates, who were eligible, promoted on the post of Teacher Gr. II in subject Urdu. Teachers appointed upto 31.3.2009, were considered for promotion and the name of the petitioner was not included in the list of eligible candidates as he had joined in Churu Division only in the year 2010 and the list was prepared by including the candidates, who were eligible to be promoted on the post in question upto 31.3.2009 and no promotion was accorded in subsequent years as the post of Teacher Gr. II (Urdu) was not available against the promotion quota. 13. Further submissions have been made that on 59 posts available, only 31 candidates were found eligible and, therefore, they were promoted and as the petitioner was not eligible, his case was not considered. Submissions were also made that the representation has been rejected by way of a speaking order, which does not call for any interference. Reliance was placed on Union of India and Others vs. C.N. Ponnappan, AIR 1996 SC 764 and Scientific Advisor to Raksha Mantri and Others vs. V.M. Joseph, AIR 1998 SC 2318 . 14. I have considered the submissions made by the petitioner and learned counsel for the respondents and have perused the material available on record. 15. The facts are not in dispute, wherein, the petitioner entered the services in the year 2007 and sought transfer from district Jodhpur to Churu Division in the year 2010, whereby, he was transferred to Churu Division in the year 2010. The DPC was held for promotions to the post of Teacher Gr. II for the eligible candidates and for the year 2013-14, 59 posts were available, however, appointments were granted on 31 posts only and 28 posts were remained vacant, which is clear from the information disclosed under Right to Information vide Annex. 4. 16. The candidature of the petitioner was not considered and after directions were given by this Court, the representation made by the petitioner was decided/rejected vide Annex. 4. 16. The candidature of the petitioner was not considered and after directions were given by this Court, the representation made by the petitioner was decided/rejected vide Annex. 7 with the following observations:- ^^vihykFkhZ ds vH;kosnu ij xgu fopkj ,oa eUFku fd;k x;kA vihykFkhZ dh ÁFke fu;qfDr o"kZ 2007&08 esa tks/kiqj ftys esa gqbZA rRi'pkr vihykFkhZ vUrZe.My LFkkukUrj.k ij pq: ftys esa o"kZ 2010 esa dk;Zxzg.k fd;kA pwafd o"kZ 2013&14 dh Mhihlh gsrq pq: e.My ds v/khu fnukad 31-03-2009 rd ds ik= dkfeZdksa dh ofj"Brk lwph fufeZr dh xbZ FkhA tc rd mDr dkfeZd us bl e.My ds v/khu dk;Zxzg.k ugha fd;k x;k Fkk ftlds dkj.ko'k vihykFkhZ dk uke inksUufr gsrq fufeZr ofj"Brk lwph esa vafdr ugha fd;k x;kA vihykFkhZ }kjk bl e.My ds v/khu o"kZ 2010 esa dk;Zxzg.k fd;k gS ftlds vk/kkj ij o"kZ 2013&14 esa inksUufr dk ykHk fn;k tkuk laHko ugha gSA o"kZ 2014&15 o 2015&16 esa inksUufr ds in miyC/k ugha gksus ds dkj.k mnwZ fo"k; esa Mhihlh p;u 'kwU; jgk gSA o"kZ 2016&17 dh Mhihlh dk dk;Z ÁfØ;k/khu gSA vr% vihykFkhZ ds vH;kosnu ij xgu fopkj ,oa eUFku dj vH;kosnu vLohdkj fd;k tkrk gSA lacaf/kr i{kdkj lwfpr gksaA** (Emphasis supplied) 17. A perusal of the above determination made by the respondents indicates that the reason indicated is that as the petitioner joined the Churu Division in the year 2010, for the year 2013-14 he cannot be granted the benefit of promotion. The said determination made by the respondents is apparently based on the understanding that as the petitioner joined Churu Division in the year 2010 at his own request at bottom seniority, he did not have the requisite experience of 5 years in the feeder cadre. The said determination made is ex-facie faulty and contrary to the law. Explanation to Rule 29(10) of the Rules of 1971, reads as under:- "Explanation - A person working on the post of (Senior Teachers/Teacher) or equivalent posts when transferred from one district/range to another district/range on his own request shall be place just below the junior most person in seniority list of the new district/range from the date of taking over the charge in the new district/range and will cease to have any right of his seniority in the district/range from which he has been transferred." 18. A perusal of the above provision would indicate that on transfer from one district to another district on own request, the person is required to be placed below the junior most person in seniority. The said stipulation cannot be read to mean that the period for which, the teacher has served in the district from which he has sought transfer, would be wiped out for all purposes. 19. The only implication is that on transfer to another district at one's own request, he is to be placed at the bottom seniority, nothing more. 20. The law in this regard is well settled. The Hon'ble Supreme Court in the case of V.N. Bhatt (supra) laid down as under:- "The well-settled principle of law is that even in the case where the transfer has been allowed on request, the employee concerned merely loses his seniority, but the same by itself would not lead to a conclusion that he should be deprived of the other benefits including his experience and eligibility for promotion." 21. The same principle has been laid down in all the judgments cited by the petitioner. The judgments cited by learned counsel for the respondents also lay down the identical principle that period of services rendered by employee at earlier place cannot be excluded for consideration for determining his eligibility for promotion as eligibility and seniority are two distinct and different factors. 22. The respondents themselves have accorded the benefit of first selection grade at the end of 9 years' service to the petitioner by order dated 21.11.2016 indicating his date of appointment as 08.10.2007, which also clearly establishes the fact that petitioner's services rendered at Jodhpur are to be reckoned for all purposes except as provided in explanation to Rule 29(10) of the Rules of 1971. 23. In view of the above provisions of law as well as law laid down by Hon'ble Supreme Court specifically holding that the provision does not wipe out the services rendered by the employee at the place from where he was transferred at his own request for the purpose of eligibility for promotion, the determination made by the respondents in this regard cannot be sustained. 24. Consequently, the writ petition filed by the petitioner is allowed. The order dated 10.8.2016 (Annex. 6) is quashed and set aside. 24. Consequently, the writ petition filed by the petitioner is allowed. The order dated 10.8.2016 (Annex. 6) is quashed and set aside. It is held that period during which the petitioner served at Jodhpur district, would be reckoned while calculating the eligibility of the petitioner for promotion against the vacancies of the year 2013-14 and exclusion of the petitioner from consideration is not justified. 25. The respondents would hold the requisite review DPC for promotion to the post of Teacher Gr. II (Urdu) for the year 2013-14 and if the petitioner is found otherwise eligible, accord him promotion against the available vacancies of the year 2013-14, which have been reflected in Annex. 4 with all consequential benefits, to which, the petitioner would have been entitled, in case, he was promoted alongwith other candidates. 26. Needful may be done by the respondents within a period of six weeks from the date of this order.