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2022 DIGILAW 2246 (RAJ)

State Of Rajasthan v. Vijay Singh

2022-08-16

KULDEEP MATHUR, SANDEEP MEHTA

body2022
JUDGMENT 1. The instant-intra court appeal has been preferred by the State of Rajasthan for assailing the judgment dated 07.09.2021 passed by learned Single Bench of this court whereby the writ petition preferred by the writ petitioner was disposed of with a direction upon the appellants-respondents to consider and decide comprehensive representation, to be submitted by the petitioner-respondent for passing formal order of reinstatement along with notional fixation of salary and other benefits for the period he had served in the appellant-department (including the period of his termination due to conviction in a criminal case). 2. Brief facts relevant and essential for disposal of the instant intra-court appeal are that the respondent-petitioner, while working on the post of constable in the appellants-respondents department (Police Department) was convicted vide Judgment dated 29.06.2015 passed by ACD Court, Jodhpur in Case No. 02/2007. Consequent to respondent-petitioner's conviction, the appellants-respondents, by an order dated 29.07.2015, terminated his services by exercising powers available under Rule 14(7) of the Rajasthan Civil Services (Classification, Control & Appeal) Rules 1958. On an appeal preferred by the respondent-petitioner against the Judgment of conviction, the appellate court acquitted him vide Judgment dated 15.05.2018. The respondent-petitioner filed an application dated 18.09.2018 before competent authority praying reinstatement in service but to no avail. Being aggrieved by the inaction of appellants-respondents on the application dated 18.09.2018, a writ petition was filed before learned Single Bench seeking direction upon the respondents to reinstate the petitioner in service with proper pay fixation. While the writ petition filed by the respondent-petitioner was pending adjudication before the learned Single Bench, the respondent-petitioner came to be selected and appointed on the post of Teacher Grade-II in the Education Department w.e.f. 02.11.2018. In view of the changed circumstances, the learned Single Bench was apprised that the respondent-petitioner does not wish to join services on the post of 'Constable', therefore, appellants-respondents may be directed to pass formal order of reinstatement so as to allow him fruits of the services rendered in the Police Department. The writ petition preferred by the respondent-petitioner was disposed of with a direction to the competent authorities to decide the representation, to be filed by the respondent-petitioner for issuance of a formal order of reinstatement with notional pay fixation and other ancillary benefits. 3. The writ petition preferred by the respondent-petitioner was disposed of with a direction to the competent authorities to decide the representation, to be filed by the respondent-petitioner for issuance of a formal order of reinstatement with notional pay fixation and other ancillary benefits. 3. Shri Manish Vyas, learned AAG urged that during the pendency of the application dated 18.09.2018 seeking reinstatement, the respondent-petitioner, without the permission of Police Department appeared in the recruitment process for the post of Teacher Grade-II and joined service in Education Department w.e.f. 02.11.2018. Considering the fact that the respondent-petitioner had joined Education Department on the post of Teacher Grade-II w.e.f. 02.11.2018 without obtaining permission from the employer i.e. Police Department, he relinquished his right to seek formal order of reinstatement with notional pay fixation in the erstwhile department i.e. Police Department. Learned Counsel prayed that the impugned judgment dated 07.09.2021 deserves to be reversed. 4. Per contra, learned counsel for the respondent-petitioner submitted that at the time when the respondent-petitioner had applied for the post of Teacher Grade-II, he was not in service of the Police Department and therefore, no permission was required to be sought for applying against the post of Teacher Grade-II. 5. We have heard and considered the submissions advanced at bar and have gone through the material available on record. 6. Indisputably, the services of the respondent-petitioner were terminated from the post of 'Constable' solely on the ground of conviction by ACD Court, Jodhpur in Case No. 02/2007. The conviction was set aside by the appellate court vide Judgment dated 15.05.2018. Once the conviction stands set aside by the appellate court, the natural consequence would be setting aside of the termination and reinstatement of the respondent-petitioner with effect from the date of his termination. The application dated 18.09.2018 seeking reinstatement in service remained unattended by the authorities of the appellant-department. The respondent-petitioner, in these circumstances was absolutely justified in applying for the post of Teacher Grade-II. As he was not in service as on the date of filing the application, there was no occasion to obtain permission from the erstwhile employer i.e. Police Department. 7. The respondent-petitioner, in these circumstances was absolutely justified in applying for the post of Teacher Grade-II. As he was not in service as on the date of filing the application, there was no occasion to obtain permission from the erstwhile employer i.e. Police Department. 7. Now since, the respondent-petitioner has already been appointed on the post of Teacher Grade-II w.e.f. 02.11.2018 and as he is not desirous to join on the post of 'Constable', it is just and proper, if on a representation filed by the respondent-petitioner, a formal order of reinstatement along with notional pay fixation is passed by the competent authority of the appellant-department from the date of his termination enabling the respondent-petitioner to claim the benefit of services rendered in Police Department. The respondent-petitioner, however would not be entitled to payment of back wages for the period he was not in service with the appellant-department. 8. With the above observations, the special appeal filed by appellants-respondents is dismissed. 9. No order as to costs.