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2022 DIGILAW 1884 (RAJ)

Kheta Ram Prajapat v. State Of Rajasthan

2022-06-28

REKHA BORANA

body2022
JUDGMENT Rekha Borana, J. - The present petition has been filed by the petitioner aggrieved of the inaction of the respondent authorities in not including his name in the seniority list prepared for the purposes of promotion to be laid before the proposed DPC. 2. The brief facts of the case are that the petitioner who was appointed as Teacher Grade-III (Level-II) on 01.10.2007 was granted the benefit of 1st ACP on 02.10.2019. The said ACP was granted after a period of three years from the date it became due because of the reason that the petitioner fathered more than 2 children after the cut-off date, that is, 01.06.2002. The ACP which became due in the year 2016 was granted in the year 2019 as the petitioner was penalized in terms of the memorandum dated 01.07.2017 issued by the Finance Department of the State Government. 3. After being penalized in the above manner, when the eligibility list was published by the Department for the purposes of promotion, the petitioner's name found place at serial No. 81. But when the final select list for the purpose was prepared, the name of the present petitioner was deleted whereas the name of the person junior to him, to name in particular - Kamal Nain Ujjwal, who stood at serial No. 110 in the earlier list was included. When inquired upon, it was informed that his name has not been included in the eligibility list because of the fact that he had fathered more than 2 children after the cut-off date and therefore, in terms of the circulars issued by the State Government from time to time, he cannot be considered for promotion. 4. Counsel for the petitioner submitted that the said action of the respondent Department is wholly illegal as any employee cannot be punished twice for the same cause. He submitted that the financial implication of the ACP and the promotion being one and the same and the action of the grant of ACP after a delay of 3 years already having been taken up by the Department, he cannot now be denied the benefit of promotion again for the same reason. He submitted that the financial implication of the ACP and the promotion being one and the same and the action of the grant of ACP after a delay of 3 years already having been taken up by the Department, he cannot now be denied the benefit of promotion again for the same reason. Counsel submitted that the same specifically amounts to double jeopardy and in view of the ratio as laid down in S.B.C.W.P. No. 10159/2015 (Parbat Singh v. State of Raj & Ors.) decided on 29.11.2016 and affirmed by the Division Bench in D.B. S.A.W. No. 1703/2018 (State of Raj & Ors. v. Parbat Singh) decided on 14.11.2018, the said act of the Department deserves to be quashed. 5. Per contra, counsel for the respondents submitted that Rule 26(4) of the Rajasthan Educational Subordinate Service Rules, 1971 (hereinafter referred as "Rules of 1971") specifically provides that: "No person shall be considered for promotion for 5 recruitment years from the date on which his promotion becomes due, if he/she has more than two children on or after Ist June, 2002." 6. Counsel submitted that the restriction imposed by Rule 26(4) of the Rules of 1971 is on consideration of the promotion itself. He submitted that the case of Parbat Singh can specifically be differentiated as in Parbat Singh's case, the petitioner therein had already been granted promotion and the issue was only pertaining to his relieving. He submitted that the two provisions pertaining to the grant of ACP and the grant of promotion being totally different are applicable parallelly and it cannot be assumed that if one of the provision has been applied, the second would suo moto not apply. 7. Heard learned counsel for the parties and perused the material available on record. 8. It is clear on record that the present petitioner was denied the benefit of ACP when it became due at the first instance only because of the reason that he had fathered more than two children after the cut-off date. 9. 7. Heard learned counsel for the parties and perused the material available on record. 8. It is clear on record that the present petitioner was denied the benefit of ACP when it became due at the first instance only because of the reason that he had fathered more than two children after the cut-off date. 9. So far as the contention of the learned counsel for the respondents that the restriction is on the consideration of the promotion itself is concerned, the said question has been replied by the Division Bench in Parbat Singh's case (supra) as under: "The learned Single Judge has noted that the circular does not speak about the deferment of ACP benefit but applying analogous principles even ACP benefits could be deferred. The learned Single Judge has noted that ACP benefit is granted on account of stagnation and promotion not being earned i.e. financial implication being the same whether ACP benefit is deferred by five years or promotion is deferred by five years. The learned Single Judge has held that once ACP benefits was deferred by five years the writ petitioner could not be penalized once again. We agree." 10. The Division Bench specifically held that once the benefit of ACP was deferred, the petitioner could not be penalized again for the same reason. 11. The ratio as laid down in Parbat Singh's case (supra) had further been relied upon in the case of Sriram Barupal & Anr. v. The State of Rajasthan & Ors. (S.B.C.W.P. No. 1024/2018) decided on 20.11.2021, wherein it has been held as under: "The deferment of either promotion or ACP, as the case may be, is required to be applied to the subject employee, however, both the circulars cannot be applied to the same employee, for the same cause." 12. In view of the above observations and analysis, this Court is of the clear opinion that a person cannot be penalized twice for the same cause and two provisions of law cannot be applied to one employee for the same reason if the same results into the same financial implication. 13. Therefore, the writ petition deserves to be allowed and is allowed. It is directed that the name of the petitioner would be considered for promotion in terms of his seniority in the DPC for the year 2020-2021. 13. Therefore, the writ petition deserves to be allowed and is allowed. It is directed that the name of the petitioner would be considered for promotion in terms of his seniority in the DPC for the year 2020-2021. If the DPC for the year 2020-2021 has already been conducted and the promotions have already been granted, the petitioner be also granted promotion in terms of his seniority with all consequential benefits with effect from the date the person junior to him had been promoted. 14. All the pending applications also stand disposed of.