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2020 DIGILAW 424 (RAJ)

State Of Rajasthan v. Mohd Yakub Khan

2020-02-27

PUSHPENDRA SINGH BHATI, SANGEET LODHA

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JUDGMENT Sangeet Lodha, J. - This intra-court appeal is directed against order dated 6.8.19 passed by the learned Single Judge of this Court, whereby the writ petition preferred by the respondent seeking directions to the appellants herein to hold review DPC and consider his candidature for promotion to the post of Teacher Gr.II, subject Urdu, against the vacancies of the year 2013-14, with all consequential benefits, has been allowed. 2. The facts relevant are that the respondent entered the service of the Department of Education, Government of Rajasthan, on being appointed as Teacher Gr.III on 8.10.07 and was allotted Jodhpur District. Later, on the request made by the respondent, he was transferred from Jodhpur District to Churu District. As the seniority of the Senior Teachers/Teachers or equivalent posts under the Rajasthan Educational Subordinate Service Rules, 1971 ('the Rules'), is maintained at the district/range level, by virtue of Explanation attached to Rule 29(10), the respondent on being transferred to Churu District, on his own request, was placed just below the junior most person in seniority list of Churu District. 3. The Departmental Promotion Committee ('DPC') was convened for consideration of eligible candidates for promotion from the post of Teacher Gr.III to Teacher Gr.II, in subject Urdu, against 59 vacancies of the year 2013-14 in Churu Division consisting of 5 districts i.e. Churu, Jhunjhunu, Bikaner, Hanumangarh and Sriganganagar. The respondent's name was not included in the list of eligible candidates as only the candidates appointed upto 31.3.19 in the various districts were taken into consideration, whereas the respondent had joined the service in Churu District in the year 2010. Against the 59 vacant posts of Teacher Gr.II in subject Urdu, in the eligibility list prepared only 31 names were included and the respondent though in zone of consideration, his name was not included inasmuch as according to the appellants, he was lacking in the requisite 5 years teaching experience. As a matter of fact, the respondent was not found eligible inasmuch as his teaching experience prior to his transfer to Churu District was not counted. 4. Aggrieved by non consideration for promotion to the post of Teacher Gr.II, the respondent made a representation to the appellants, which was not considered. As a matter of fact, the respondent was not found eligible inasmuch as his teaching experience prior to his transfer to Churu District was not counted. 4. Aggrieved by non consideration for promotion to the post of Teacher Gr.II, the respondent made a representation to the appellants, which was not considered. The respondent approached Jaipur Bench of this Court by filing S.B. Civil Writ Petition No.7298/16, which was disposed of vide order dated 2.6.16, with the directions to the appellants to decide the representation made. 5. Pursuant to the directions issued as aforesaid, the respondent submitted a detailed representation, however, the same stood rejected vide order dated 10.8.16 passed by the Deputy Director, Secondary Education, Churu Division, Churu. 6. In these circumstances, the respondent preferred a writ petition no.15051/16 before this Court, which has been allowed by the learned Single Judge by the order impugned. 7. The learned Single Judge after due consideration of the relevant provisions of the Rules and various decisions cited at the Bar arrived at the conclusion that the services rendered by the employee at the place from where he was transferred to other district, at his own request, does not stand wiped out and the same has to be considered for determining his eligibility for promotion as eligibility and seniority are two distinct and different factors. Accordingly, while quashing the order dated 10.8.16, rejecting the representation of the respondent, the appellants have been directed to hold the requisite review DPC for consideration of candidature of the respondent for promotion to the post of Teacher Gr.II (Urdu) against the vacancies of the year 2013-14, if he is found otherwise eligible, with all consequential benefits to which he would have been entitled, in case he was promoted along with other candidates. 8. Learned counsel appearing for the appellants contended that as per the provisions of the Rules, a person working on the post of Senior Teacher/Teacher or equivalent post when transferred from one district/range to another district/range on his own request, shall be placed just below the junior most person in the 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. Learned counsel submitted that since seniority is district wise, the promotions are also accorded keeping in view the seniority of the person in the district and thus, the teaching experience acquired by the person prior to his transfer to new district/range cannot be counted for determination of eligibility for promotion to the higher post. In support of the contention, learned counsel has relied upon a decision of the Supreme Court in Union of India and Others Vs. M. Mathivanan, 2006 6 SCC 57 . Learned counsel submitted that unless a candidate transferred from one district/range to another, has put in requisite number of years of service in the new district/range, he cannot be considered eligible for promotion to the higher post against the vacancies in the new district/range. 9. On the other hand, counsel appearing for the respondent while supporting the order impugned, relying upon the decisions of the Supreme Court in Dwijen Chandra Sarkar Vs. Union of India, 1999 2 SCC 119 , Union of India Vs. V.N. Bhatt, 2003 8 SCC 714 , M.M. Thomas and Others Vs. Union of India and Others, 2017 AIR(SC) 2510 and Pratibha Rani & Ors. Vs. Union of India & Ors. : Civil Appeal No.3792 of 2019, decided on 10.4.19, submitted that seniority and experience are two different factors and 5 years experience cannot be interpreted to mean that the candidate should have served for 5 years in the district/range where he seeks promotion and the experience acquired while posted in the district/range prior to transfer has to be excluded. Learned counsel submitted that the decision rendered by the learned Single Judge after due consideration of all the relevant aspects does not warrant any interference in exercise of intra court appeal jurisdiction. 10. We have considered the rival submissions and perused the material on record. 11. Indisputably, the respondent appointed as Teacher Gr.III on 8.10.07 in district Jodhpur was later transferred to district Churu in the year 2010 on his own request and accordingly, as per Explanation attached to Rule 29 of the Rules, he lost his seniority in the Jodhpur district and was placed just below the junior most person in the seniority list of Churu district from the date taking over the charge. 12. 12. As per Rule 24 of the Rules, the criteria for promotion to the post of Teacher Gr.II from the post of Teacher Gr.III is senioritycum-merit subject to the candidates possessing the minimum qualifications and experience specified in Column 6 of the Schedule attached to the Rules. It is not in dispute that for promotion to the post of Teacher Gr.II besides the minimum educational qualification prescribed, a candidate must possess five years experience on the post of Teacher Gr.III. 13. Admittedly, the respondent was in zone of consideration of persons eligible for promotion to the post of Teacher Gr.II, however, his candidature was not considered inasmuch as, he was not fulfilling the eligibility criteria of experience of 5 years as provided under Column 6 of the Schedule as noticed above. 14. According to the appellants against the 59 vacancies of Teacher Gr.II belonging to promotion quota of the year 2013-14, only 31 candidates found eligible were promoted. It is common ground between the parties that if the experience acquired by the respondent while posted as Teacher Gr.III in Jodhpur district is counted, the respondent was eligible to be considered for promotion to the post of Teacher Gr.II. 15. As per Explanation to Rule 29 (10) of the Rules, on a member of service being transferred from one district/range to another district/range he will ceased to have any right of his seniority in the district/range from which he has been transferred but in no manner it could be inferred therefrom that on such transfer, the experience acquired by him shall also stand lost and the same cannot be taken into consideration while determining eligibility for promotion to the higher post against the vacancies belonging to promotion quota in the new district or range. The respondent being in zone of consideration having requisite experience was required to be considered for promotion on the post of Teacher Gr.II in preference to his seniors in the cadre who were not fulfilling the eligibility criteria of experience of the post of Teacher Gr.III. To put in other words, the rule cannot be interpreted to mean that for fulfilling the eligibility criteria of experience envisaged under the Rules, the candidate must have acquired the requisite experience while serving in transfer range/district where he is seeking promotion on the higher post. 16. To put in other words, the rule cannot be interpreted to mean that for fulfilling the eligibility criteria of experience envisaged under the Rules, the candidate must have acquired the requisite experience while serving in transfer range/district where he is seeking promotion on the higher post. 16. In V.N.Bhat's case (supra), the decision of the Supreme Court relied upon by the learned Single Judge it was categorically laid down : "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." 17. In M.M.Thomas's case (supra), the Supreme Court while considering the rule governing eligibility requiring five years regular service in the respective regions categorically held that the rule cannot be interpreted to mean that candidate should have served for five years in region where he seeks promotion and the services rendered by him in the region posted earlier and transferred region both shall be counted. 18. In Pratibha Rani's case (supra), the Supreme Court while relying upon M.M.Thomas case (supra), reiterated that insofar as issue of eligibility of promotion is concerned, the service rendered in the previous region prior to transfer will be counted towards service for eligibility for consideration of such promotion. 19. Suffice it to say that the experience acquired by the candidate is in no manner linked with his seniority in the particular district/range and on account of his losing the right of seniority in the district/range from which he is transferred and his placement just below the junior most person in the seniority list of new district/range, the experience acquired by him in the district/range from which he has been transferred shall not stand lost and cannot be excluded while considering his candidature for promotion to the post of Teacher Gr.II from the post of Teacher Gr.III in the new district/range. 20. In M.Mathivanan's case (supra) while considering the issue involved regarding the completion of eligibility of 16 years of service, the Supreme Court has followed the decision in Dwijen Chandra Sarkar's case (supra) and thus, the same does not help the appellants in any manner whatsoever rather, supports the case of the respondent. 21. 20. In M.Mathivanan's case (supra) while considering the issue involved regarding the completion of eligibility of 16 years of service, the Supreme Court has followed the decision in Dwijen Chandra Sarkar's case (supra) and thus, the same does not help the appellants in any manner whatsoever rather, supports the case of the respondent. 21. For the aforementioned reasons, we are in agreement with the view taken by the learned Single Judge. 22. No case for interference by us in intra court appeal jurisdiction is made out. 23. The special appeal is therefore, dismissed. No order as to costs.