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2023 DIGILAW 1592 (RAJ)

Vasudev S/o Shri Prabhu Singh v. State Of Rajasthan

2023-08-24

VINIT KUMAR MATHUR

body2023
ORDER : 1. Heard learned counsel for the parties. 2. The present batch of writ petitions are based on similar facts, therefore, they are being decided by this common order. 3. For brevity, the facts of S.B. Civil Writ Petition No.15496/2022 (Sukha Ram V/s State of Rajasthan & Ors.) are being considered for deciding the controversy involved in the present case. 4. Briefly, the facts in the matter are that the petitioner-Sukha Ram was appointed on the post of Senior Teacher as per provisions of the Rajasthan Education Subordinate Service Rules, 1970 (hereinafter referred to as ‘the Rules’). Subsequently, the petitioner, being eligible for the post of School Lecturer, was considered for promotion by the Departmental Promotion Committee (hereinafter referred to as ‘the DPC’) convened as per Rule 24(2)(a) of the Rules by the respondents on 15.07.2016 against the vacancies of the year 2016-2017. The petitioner was promoted by the respondents vide order dated 30.08.2016 (Annex.2). In pursuant thereto, the petitioner joined on the promoted post of School Lecturer on 05.09.2016. 5. After assuming the charge of School Lecturer on 05.09.2016, the petitioner continued to serve the department on the said post and he was paid the salary and remuneration accordingly. Thereafter, the respondents vide order dated 09.07.2018 (Annex.7) reviewed the promotion year of the petitioner and granted him promotion on regular basis from the year 2018-19 instead of 2016-17. Thereafter, in pursuance of the order dated 09.07.2018, the provisional seniority list was issued by the respondents reflecting the name of the petitioner showing his promotion year as 2018-19. In these circumstances, the petitioner filed a detailed representation to the respondents, however, the promotion year of the petitioner was not changed. Thereafter, the provisional and final seniority list of the School Lecturer for the year 2016-17 was published by the respondents on 07.06.2022 (Annex.10) and 28.09.2022 (Annex.12) respectively. In these two seniority lists, the name of the petitioner was also not reflected. 6. Aggrieved of the action of the respondents, the petitioner has preferred the present writ petition. In other writ petitions identical prayer has been made that the promotion year of the petitioners may be maintained as 2016-2017 for inclusion of their names in the provisional & final seniority lists against the vacancies for the year 2016-17 and their promotion year may not be shifted. 7. In other writ petitions identical prayer has been made that the promotion year of the petitioners may be maintained as 2016-2017 for inclusion of their names in the provisional & final seniority lists against the vacancies for the year 2016-17 and their promotion year may not be shifted. 7. Learned counsel for the petitioners vehemently argued that the petitioners were eligible to be promoted on the post of School Lecturer and, thus, taking recourse of Rule 24 of the Rules, the duly constituted DPC considered the cases of the petitioners and, thereafter, promotion orders for the post of School Lecturer were issued. Learned counsel further submit that in pursuance of the promotion orders issued, the petitioners joined on their respective posts and rendering their services as a School Lecturer with effect from the date on which they assumed the charge of their promoted post. He further submits that the petitioners were duly paid the salary and remuneration for the post of School Lecturer since the date of their promotion. The petitioners are performing the same duties of School Lecturer as having performed by the persons who are regularly promoted and similarly situated to them. 8. Learned counsel submits that the order dated 09.07.2018 (Annex.7) changing the year of promotion to the subsequent years has been issued without giving any show cause notice or an opportunity of hearing to the petitioners. He submits that the order dated 09.07.2018 entails civil and evil consequences, therefore, pre decisional hearing is necessary in consonance with the principles of natural justice. He, therefore, prays that the writ petitions may be allowed and the petitioners may be allowed to be retained as School Lecturer from the promotion year of 2016-17. 9. Per contra, learned counsel for the respondents vehemently opposed the submissions made by the learned counsel for the petitioners and submits that the petitioners were promoted by the DPC convened by the respondents on 15.07.2016 under the review and revision category and a separate list was prepared. He further submits that since the cases of the petitioners for promotion were considered by the DPC under review and revision category, therefore, they are not required to be given promotion for the year 2016-2017. The respondents were well within their right to consider the cases of the petitioners for promotion on substantive basis in the subsequent years. He further submits that since the cases of the petitioners for promotion were considered by the DPC under review and revision category, therefore, they are not required to be given promotion for the year 2016-2017. The respondents were well within their right to consider the cases of the petitioners for promotion on substantive basis in the subsequent years. Learned counsel submits that the petitioners were promoted in consonance with Rule 24 Sub-clause-3 of the Rules. He further submits that the respondents were well within their right to pass the order dated 09.07.2018 (Annex.7) without issuing any show cause notice as the petitioners were promoted only on officiating basis and since their cases for promotion on substantive basis were considered by a regular DPC subsequently, they were rightly promoted on the post of School Lecturer on substantive basis against the vacancies for the year 2018-19 and for subsequent year. Learned counsel further submits that while following the procedure for promoting the candidates, the eligibility list of the candidates on provisional and regular basis was not taken into consideration and, therefore, the petitioners have no right to be promoted from the year 20162017. He, therefore, prays that no pre decisional hearing is warranted in such cases and the writ petitions are, therefore, prayed to be dismissed. 10. I have considered the submissions made at the Bar and gone through the relevant record of the cases. 11. The undisputed facts of the present cases are that the petitioners, while working as Senior Teachers in the relevant subjects, were considered for promotion on the post of School Lecturer by the DPC convened by the respondents on 15.07.2016 for the year 2016-17 and the petitioners were found suitable, consequently, they were promoted on the post of School Lecturer (w.e.f. 30.08.2016-in case of Sukha Ram). In pursuance of the promotion orders, the petitioners joined on the respective posts. All the petitioners are performing the duties of School Lecturer from the date on which they assumed the charge of promoted posts. 12. The promotional exercise of the petitioners was conducted by the respondents as per Rule 24 of the Rules of 1970. 13. For brevity, Rule 24 of the Rules of 1970 is reproduced as under : - “24. All the petitioners are performing the duties of School Lecturer from the date on which they assumed the charge of promoted posts. 12. The promotional exercise of the petitioners was conducted by the respondents as per Rule 24 of the Rules of 1970. 13. For brevity, Rule 24 of the Rules of 1970 is reproduced as under : - “24. Procedure for selection on the basis of seniority-cum-merit-(1) As soon as it is decided that a certain number of posts shall be filled by promotion, the Director shall prepare a correct and complete list containing names not exceeding five times the number of vacancies, out of the senior most persons as mentioned in column 5 of the Schedule, who are qualified under the rules for promotion to be posts concerned. He shall forward this list along with their confidential rolls and personal files to the Secretary to the Government in the Education Department: Provided that for promotion to the posts in Group ‘F’ two separate lists shall be prepared one relating to teachers in Grade-II and the other relating to the teachers in Grade-I. (2) (a) For the posts, appointments whereto and to be made by Government, a Committee consisting of the Chairman of the Commission or his nominee being a member thereof nominated by him, the Secretary to Government in Education Department or the Special Secretary concerned nominated by him [and the (Secretary/Special Secretary to the Government in the Department of Personnel) or his representative not below the rank of Deputy Secretary as member and the Director as Member Secretary, and for the posts, appointments whrereto are to be made by the Director, a Committee consisting of a Member of the Commission nominated by the Chairman of the Commission, Deputy Secretary to Government in the Education Department and Deputy Secretary to Government in the [Department of Personnel] as members and the Director as Member Secretary shall consider the cases of all persons included in the list interviewing such of them as it may deem necessary and shall prepare a list containing names of suitable candidates upto twice the number of such posts as are indicated in sub-rule (1): [Provided that in case any Member or Member Secretary, as the case may be, constituting the Committee, has not been appointed to the post concerned, the officer holding charge of the post for the time being shall be the member or Member-Secretary, as the case may be, of the Committee.] (b) The chairman or the member of the Commission shall preside at all meeting of the committee at which he is present. (3) The Committee shall prepare a separate list containing names of persons who may be considered suitable to fill temporary or permanent vacancies already existing or are likely to occur till the next meeting of the Committee on a temporary or officiating basis and the list so prepared shall be reviewed and revised every year and shall remain in force until it is so reviewed or revised. (4) The Committee may co-opt an expert from outside to assist the Committee for selection of candidates for such posts as are to be filled by promotion. (4) The Committee may co-opt an expert from outside to assist the Committee for selection of candidates for such posts as are to be filled by promotion. (5) The names of the candidates selected as suitable shall be arranged in the order of seniority. (6) The list prepared by the Committee shall be send to the appointing authority together with the confidential rolls and personal files of the candidates included in them as also of those superseded, if any. (2) and (3) shall be forward to the Commission by the appointing authority alongwith (a) confidential rolls and personal files of all persons who are proposed to be superseded by the recommendations made by the Committee. (8) The Commission shall consider the lists prepared by the Committee alongwith the other documents received from the appointing authority and unless it consider any change to be necessary to be made [(7) Where consultation with the Commission is necessary the lists prepared in accordance sub-rules shall approve the the Commission changes proposed by it and after taking into account the comments, if any, of the commission the appointing authority may approve the list finally with such modification, as may in its opinion, be just and proper.]” 14. A bare perusal of Rule 24 of the Rules of 1970 clearly reveals that the promotion shall be made by the duly constituted Departmental Promotion Committee (DPC). In the present cases, the petitioners were promoted by a duly constituted DPC in consonance with Rule 24(2)(a) of the Rules of 1970. The fact that the petitioners were holding the requisite qualifications and eligibility is not disputed by the respondents by way of filing any counter or by making any submissions that the promotions of the petitioners on officiating basis though were done by the DPC, however, they were having different eligibility criteria than the persons whose cases are considered by the DPC for promotion on regular basis. Since, the petitioners were holding the requisite eligibility criteria, they were rightly promoted by the DPC held on 15.07.2016. Merely because the DPC was under review and revision, it cannot be presumed that the candidature of the petitioners was considered dehors the Rules and the petitioners were not eligible to hold the post of School Lecturer. After their promotion, the petitioners performed their duties of School Lecturer and continued to perform the same till date. Merely because the DPC was under review and revision, it cannot be presumed that the candidature of the petitioners was considered dehors the Rules and the petitioners were not eligible to hold the post of School Lecturer. After their promotion, the petitioners performed their duties of School Lecturer and continued to perform the same till date. The only change made by the respondents by passing the order dated 09.07.2018 is the promotion year of the petitioners which has been changed from 2016-2017 to subsequent years. 15. The fact of change of promotion year of the petitioners has civil and evil consequences as by changing the same, the petitioners will rank junior in the seniority list and they will have bleak chances to be considered for promotion on the post of Vice Principal. Even otherwise, this Court is firmly of the view that if any order is passed by the respondents having civil and evil consequences, the compliance of the principle of natural justice is mandatorily required to be followed by the respondents. In the present case, since no pre decisional hearing has been extended to the petitioners before changing their year of promotion, the same has got evil consequences and, therefore, the order dated 09.07.2018 passed by the respondents is not sustainable. 16. The argument of the learned counsel for the respondents that apart from a list prepared by the DPC for the promotion of the candidates on substantive basis stands on a different footing, and since the petitioners’ cases were considered by the DPC on review and revision basis by preparing a separate list, the respondents have the right to change their promotion year, is noted to be rejected on the ground that the date on which the petitioners were promoted, the respondents were having the vacancies for the post of School Lecturer and the promotions were granted to the petitioners on the post of School Lecturer as they were holding the requisite eligibility criteria. Therefore, the change of promotion year by passing an order impugned dated 09.07.2018 is arbitrary and unreasonable. 17. It is not the case of the respondents that persons senior to the petitioners are available in the respondent-Department and they are required to be promoted on the post of School Lecturer against the vacancies for the year 2016-17. Therefore, the change of promotion year by passing an order impugned dated 09.07.2018 is arbitrary and unreasonable. 17. It is not the case of the respondents that persons senior to the petitioners are available in the respondent-Department and they are required to be promoted on the post of School Lecturer against the vacancies for the year 2016-17. Thus, it can safely be presumed that the vacancies in the respondent-Department were available on which the petitioners were promoted and they are not sought to be replaced by any person senior to them. 18. In view of the discussions made above, the present writ petitions merit acceptance and the same are allowed. The action of the respondents in changing the promotion years of the petitioners from 2016-17 to subsequent years is quashed and set-aside. The order dated 09.07.2018 (Annex.7) in CWP No.15496/2022 is also quashed qua the petitioners. The petitioners’ promotion year for the post of School Lecturer shall be considered as 2016-17 only and the petitioners will be entitled for all the consequential reliefs treating their promotion year as 20162017. 19. The stay application(s) as well as other pending application(s), if any, also stand disposed of.