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2022 DIGILAW 1896 (RAJ)

Rakesh Kumar Bhati v. State Of Rajasthan

2022-06-29

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 Lower Division Clerk (Clerk Grade-II) on 03.08.2001 was granted the benefit of 1st ACP on 23.11.2015. The said ACP was granted after a period of five 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 2010 was granted in the year 2015 and the petitioner was penalized in terms of the memorandum issued by the Finance Department of the State Government. 3. Later, the seniority list of LDCs' from year 01.04.1998 to 31.03.2010 was issued by the Department and the petitioner stood at seniority No. 334 in the said list. Subsequently, DPC for promotion from LDC to UDC against the vacancies of year 2014-15 and 2015-16 was conducted and vide order dated 10.05.2016, promotions were accorded to various LDCs' including the persons junior to the petitioner but he was not promoted. When inquired upon, it was informed that he had not been promoted because of the fact that he had fathered more than 2 children after the cutoff 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 grant of ACP after a delay of 5 years had already been taken up by the Department, he cannot now be denied the benefit of promotion 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. Civil Writ Petition No. 10159/2015 (Parbat Singh v. State of Raj & Ors.) decided on 29.11.2016 as affirmed by the Division Bench in D.B. Special Appeal (Writ) Petition No. 1703/2018 (State of Raj & Ors. Counsel submitted that the same specifically amounts to double jeopardy and in view of the ratio as laid down in S.B. Civil Writ Petition No. 10159/2015 (Parbat Singh v. State of Raj & Ors.) decided on 29.11.2016 as affirmed by the Division Bench in D.B. Special Appeal (Writ) Petition 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 1st June, 2007." 6. Counsel submitted that the restriction imposed by Rule 26(4) of the Rules of 1971 is for consideration of the promotion itself. He submitted that the case of Parbat Singh can specifically be differentiated as in the case of Parbat Singh (supra), 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. 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) and it has been held that:- "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 one 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. In view of the specific ratio as laid down in the case of Parbat Singh (supra) and further 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 the coordinate Bench of this Court 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. 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 upcoming DPC. If the DPC for the year 2020-2021 has already been conducted and the promotions have been granted, the petitioner be also granted promotion in terms of his seniority with all consequential benefits with effect from the date the persons junior to him had been promoted. 14. All the pending applications also stand disposed of.