Rajasthan High Court - Jodhpur
Union Of India & Ors. vs . Ramesh Kumar Panwar on 26 May, 2015
Author: Govind Mathur
Bench: Govind Mathur
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR.
ORDER
Union of India & ors. vs. Ramesh Kumar Panwar
& anr
D.B.Civil Writ Petition No. 5148/2013 under
Articles 226 and 227 of the Constitution of India.
Date of Order: 26.5.2015
PRESENT
HON'BLE MR. JUSTICE GOVIND MATHUR
HON'BLE MISS JUSTICE JAISHREE THAKUR
Mr. K.K. Bissa, Mr. H.G. Chanda & Mr. G.S.Chauhan, counsel for the
petitioners.
Mr.Kamal Dave, counsel for the respondent no.1.
BY THE COURT:(Per Hon'ble Miss Jaishree Thakur,J.)
1. The present writ petition has been filed seeking to challenge the order dated 9.8.2012 passed by the Central Administrative Tribunal at Jodhpur.
2. The brief facts are that the respondent no.1 herein filed an Original Application before the Central Administrative Tribunal at Jodhpur challenging the action of the petitioner-Department in failing to consider his candidature for promotion to the post of Senior Tax Assistant despite the fact that he was eligible. He had made a representation in this regard and the same came to be rejected on 23.6.2011 on the ground that he did not have the eligibility of three years of regular service in Rajasthan Division. Aggrieved against the said order, the respondent filed an application stating that he had been selected as Tax Assistant on 24.10.2007 and posted in the 2 Gujarat Region in Ahmedabad and thereafter he submitted an application seeking inter charge transfer from Gujarat Region to Rajasthan Region. The said request was accepted by the Department and subsequent thereto, the applicant-respondent joined the Department as Tax Assistant. The applicant-respondent joined as junior most in the Division and his seniority was to be reckoned from the date of joining in the Rajasthan Division. On 29.6.2011, the D.P.C. was convened for considering promotion to the post of Senior Tax Assistant. As per the contention of the applicant-respondent, he fulfilled the necessary qualifications under the Recruitment Rules of 2003 but despite that he was denied promotion. Reply to the Original Application was filed wherein a specific stand was taken that the applicant-respondent could not be considered for promotion since he was transferred from Gujarat Region to the Rajasthan Region vide order dated 4.8.2010 and had not completed three years of service. It was contended that one of the conditions in the transfer order was that:-
"His seniority in Rajasthan Region will be reckoned from the date of his joining there and his name will be placed below all the Tax Assistants(whether temporary or permanent) in Rajasthan Region on the date of his joining."
3. The learned Tribunal after hearing counsel for the parties held that the applicant would be entitled for promotion to the post of Senior Tax Assistant under the Relevant Recruitment Rules and that the period of service was to be counted from the date of initial appointment in Gujarat Region, i.e., from 24.10.2007 and till the 3 date of D.P.C. 29.6.2011, he had completed three years of service.
4. The Department aggrieved against the said order, preferred this present writ petition on the ground that the learned Tribunal had failed to appreciate the fact that the petitioner had not completed three years of service in the Gujarat Cadre and that his name was rightly not put up in the D.P.C. that was held on 29.6.2011.
5. We have heard the learned counsel for the parties and have perused the record of the case.
6. Admittedly, the respondent-applicant joined the service in Gujarat as Tax Assistant on 24.10.2007. He got an inter charge transfer from Gujatat Region to Rajasthan Region vide order dated 4.8.2010. Prior thereto, respondent had completed two years of probation and was confirmed on 24.10.2009.
7. One of the conditions mentioned in the said transfer order was that his seniority in the Rajasthan Region would be reckoned from the date of joining there and his name will be placed below all the Tax Assistants(whether temporary or permanent) in Rajasthan Region on the date of his joining. Thus, at the time of transfer he had already put in about two years and ten months of service. As per the condition for promotion from Tax Assistant to the Post of Senior Tax Assistant which was circulated vide CBDT notification No.GSR 321 dated 2.9.2003 at S.No. 12, promotion to Senior Tax Assistant was prescribed as under:-
"100% by promotion from amongst Tax Assistants who have rendered a minimum regular service of three years in the grade and have qualified the prescribed departmental examination for Ministerial Staff."4
8. Learned counsel for the petitioner has relied upon Circular dated 14.5.1990 which is annexed as Annex. 9 with the writ petition to contend that on a transfer, the transferee will forfeit all claims for promotion/confirmation and that his seniority in the cadre after transfer will start from the date such persons reports on duty in that charge. However, the service in the old charge will not be counted in the new charge for the purpose of seniority. Relying upon the said circular, the counsel for the petitioner has argued that since the respondent had only joined on 4.10.2010, he would not have completed three years in the grade to have qualified for consideration for promotion by the D.P.C. which was held on 29.6.2011. This argument is devoid of any merit. A reading and perusal of Annex.9 dated 14.5.2990 shows that a person on his transfer would not be entitled to maintain his seniority from the old charge and that he would be placed at the bottom of the list. A further reading of the said circular shows that on a transfer, the transferee will forfeit all claims for promotion/confirmation in the old charge. However, the said circular does not stipulate that on a transfer, the transferee would lose his length of service as well. As in the present case, the respondent herein lost his seniority, he would not lose the length of service and the length of service would be counted from the date of initial appointment. The argument raised by the petitioner that the applicant had not rendered service three years continuous service on the post of Tax Assistant in Rajasthan Region, is wholly fallacious and is hereby rejected. It has to be kept in mind that there is no discontinuation of service of the 5 respondent as a Tax Assistant. There is only a change in the Division. The recruitment rules do not bar the applicant-respondent from promotion and the regular service of the applicant is to be counted from the date of initial appointment, i.e. 24.10.2007. Keeping that in mind, the respondent-applicant had completed a period of three years of service to be considered for promotion as Senior Tax Assistant.
9. There is no infirmity in the reasonings given in the judgment rendered by the Central Administrative Tribunal. Hence the writ petition being devoid of any merit, is dismissed with no order as to costs.
(JAISHREE THAKUR), J. (GOVIND MATHUR),J. mlt.