Rajasthan High Court - Jaipur
Naveen Kumar Mahamwal vs Raj High Court Jodhpur on 15 September, 2017
Bench: Ajay Rastogi, Ashok Kumar Gaur
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
D.B. Civil Writ Petition No. 4822 / 2003
Naveen Kumar Mahamwal son of Shri K.C.Mahamwal, resident of
Srimalon ka Mohallah, Jhunjhunu. At present posted as Civil Judge
(J.D.), Kumbhalgarh, District Rajsamand.
----Petitioner
Versus
High Court of Judicature for Rajasthan at Johdpur through
Registrar General.
----Respondent
Connected With D.B. Civil Writ Petition No. 18494 / 2011 Naveen Kumar Mahamwal son of late Shri K.C.Mahamwal, resident of Shrimalon ka Mohallah, Jhunjhunu, at present 3957, K.G.B. Ka Rasta, Johari Bazar, Jaipur.
----Petitioner Versus
1. Rajasthan High Court, Jodhpur through Registrar General.
2. State of Rajasthan through the Secretary, Department of Law and Legal Affairs, Secretariat, Jaipur.
3. The Director, Department of Pension & Pensionary Welfare, Government of Rajasthan, Jaipur.
----Respondent _____________________________________________________ For Petitioner(s) : Mr.M.M.Ranjan, Senior Advocate assisted by Mr.Rajat Ranjan, Advocate with the petitioner in person.
For Respondent(s) : Mr.A.K.Sharma, Senior Advocate assisted by Mr.V.K.Sharma, Advocate.
_____________________________________________________ HON'BLE MR. JUSTICE AJAY RASTOGI HON'BLE MR. JUSTICE ASHOK KUMAR GAUR Judgment Judgment reserved on : 8th September, 2017.
Date of Judgment : 15th September, 2017.
(2 of 10)
[ CW-4822/2003]
By the Court (Per Hon'ble Mr.Justice Ajay Rastogi):
The petitioner is a retired Judicial Officer who has been compulsorily retired u/R.53(1) of the Rajsathan Civil Services (Pension) Rules, 1996 vide order dt.13.07.2004 and that came to be challenged by the Officer by filing of the writ petition which came to be dismissed on 07.05.2007 on account of non- compliance of peremptory order passed by the court. It reveals from the record that without any delay application for restoration of the writ petition came to be filed in 2007 itself having some defects but the Officer failed to pay any heed after filing of the restoration application and on removal of defects, it was registered as D.B.Writ Restoration Application No.559/2011 and the application for restoration was also dismissed by the Division Bench of this court vide order dt.12.01.2017. In consequence thereof, a substantive writ petition filed assailing order of compulsory retirement dt.13.07.2004 was not examined on merits.
It further manifest from the service record that the adverse remarks recorded in the ACRs for the years 1989, 1990, 1991 & 1992 were separately challenged by the Officer in D.B.Civil Writ Petition No.491/1996 that came to be dismissed vide order dt.13.02.2006 on the premise that as he has been compulsorily retired from service, what is being prayed for by him has become infructuous.
Be that as it may, in D.B.Civil Writ Petition No.4822/2003 the Officer has challenged the order of his reversion passed by the (3 of 10) [ CW-4822/2003] respondents to his substantive post of Civil Judge (Jr.Division)- cum-Judicial Magistrate, on which he was initially appointed after his selection through the Rajasthan Public Service Commission after qualifying the competitive examination on 29.11.1976.
For all practical purposes, he has served as a Judicial Officer for 27 years 7 months and 11 days and stood compulsorily retired from service from the substantive post on which he initially joined in 1976. It may be further noticed that because of the adverse service record he was not found fit for promotion for 1990, 1992 & 1993 and that apart he was not found suitable for ACP scales introduced vide notification dt.07.05.2003. It reveals from the record that he was promoted as Civil Judge (Sr.Division)-cum- Additional Chief Judicial Magistrate on adhoc basis vide order dt.07.07.1997 and subsequently when he was considered for regular promotion, the Full Court, in its meeting held on 20.05.1999, did not find him suitable for regular promotion on account of his adverse service record and in consequence thereof, the Officers who were found suitable were promoted vide order dt.13.06.1999 & in furtherance when the transfer/posting took place vide order dt.18.06.1999, the present petitioner was posted on the substantive post of Civil Judge (Jr.Division)-cum-Judicial Magistrate.
The grievance of the petitioner was that vide order dt.18.06.1999 he has been demoted to his substantive post without affording a reasonable opportunity of hearing to him and their action was in violation of principles of natural justice. The Officer also tried to justify that promotions were made on (4 of 10) [ CW-4822/2003] seniority-cum-merit and if his preceding seven years record of service is being looked into at least what has been taken note of by the Full Court in arriving to the conclusion holding him unsuitable, needs to be re-visited by this court.
Counsel further submits that his service record was looked into at the time when he was promoted on adhoc basis to the post of Civil Judge (Sr.Division)-cum-Additional Chief Judicial Magistrate vide order dt.07.07.1997 and in the given facts & circumstances there was no change in the service record of the Officer and no adverse inference can be drawn of his unsuitability, the post on which he was promoted vide order dt.07.07.1997 and the action of the respondents in the given circumstances demoting him to the substantive post by a later order dt.18.06.1999 is not legally sustainable and deserves to be quashed.
Reply has been filed by the respondents and in defence it has been averred that it is not a case of demotion from the post of Civil Judge (Sr.Division)-cum-Additional Chief Judicial Magistrate to Civil Judge (Jr.Division)-cum-Judicial Magistrate in reference to the posting order dt.18.06.1999 and the fact is that the Full Court in its meeting held on 30.05.1997 recommended to grant adhoc promotion to the petitioner along with other Officers for the reason that at the relevant point of time two years of ACRs of good number of Officers were not available including that of the petitioner and in the given circumstances, he was considered for adhoc promotion on account of non-availability of ACRs and subsequently when he was considered for regular promotion to the post of Civil Judge (Sr.Division)-cum-Additional Chief Judicial (5 of 10) [ CW-4822/2003] Magistrate, the Full Court in its meeting dt.20.05.1999 after appraising preceding seven years' service record of the year under consideration has not found him suitable for regular promotion and accordingly those who were recommended for promotion were appointed as Civil Judge (Sr.Division)-cum-Additional Chief Judicial Magistrate vide order dt.13.06.1999 and by a subsequent order dt.18.06.1999 further transfer/posting was made of the RJS Officers and the petitioner since was not found suitable for regular promotion and earlier promotion vide order dt.07.07.1997 being on adhocc basis, no right could be conferred and he was transferred and posted on the substantive post of RJS - Civil Judge (Jr.Division)-cum-Judicial Magistrate and this cannot be construed to be his demotion on the substantive post, as prayed for by him.
It has come on record that the Committee which was constituted to consider the candidature of the Judicial Officers for promotion to the post of Civil Judge (Sr.Division)-cum-Additional Chief Judicial Magistrate took a decision that those who have completed seven years of service be considered for promotion on the basis of seniority-cum-merit on the criteria having unblemished record be considered on the basis of their seniority.
The record of service of the present petition reveals that in the year 1991 there was adverse remarks recorded in his ACR which was communicated to him vide letter dt.09.02.1993 and after due consideration, his representation was rejected. In the year 1994 there was again adverse remarks recorded in his ACR which was communicated to him vide letter dt.27.01.1997 and partially the remarks were expunged on consideration of his (6 of 10) [ CW-4822/2003] representation but rest of the remarks regarding low disposal stood maintained and even the review application which was preferred by the petitioner also came to be dismissed. In the year 1996 there was yet again adverse remarks recorded in his ACR which was communicated to him on 16.02.1999 and his representation too was considered and rejected and his integrity certificate was also withheld.
After we have taken note of the submissions made and the perusal of record of service of the Officer and looking to the adverse remarks being recorded in his ACRs which were duly communicated to the reportee Officer and after due consideration such representations have been rejected in the given facts & circumstances, we find no error in the decision making process adopted by the respondent in finally holding the Officer to be unsuitable for promotion to the post of Civil Judge (Sr.Division)- cum-Additional Chief Judicial Magistrate and that apart it was not the case of his demotion to the substantive post of Civil Judge (Jr.Division)-cum-Judicial Magistrate and the fact is that he was recommended earlier for adhoc promotion because of non- availability of two years ACRs of good number of Officers including of the present petitioner and adhoc promotion would not confer any right to the petitioner and at the same time, when he was considered for regular promotion, the Committee looked into his preceding seven years' record of service and arrived to the conclusion holding him to be unsuitable, because of his adverse service record on the basis of seniority-cum-merit.
(7 of 10) [ CW-4822/2003] Accordingly, we find no error in the decision making process adopted by the respondents in reverting him to the substantive post of Civil Judge (Jr.Division)-cum-Judicial Magistrate while transfers/postings were made vide order dt.18.06.1999. D.B.Civil Writ Petition No.18494/2011 After the Officer was compulsorily retired vide order dt.13.07.2004 and he relinquished his charge on 14.07.2004, order came to be passed by the respondents on 02.09.2004 for making recovery from his salary on the premise that although he stood reverted to the substantive post of Civil Judge (Jr.Division)- cum-Judicial Magistrate while transfers/postings were made vide order dt.18.06.1999 but he was allowed to continue in the pay- scale admissible to Civil Judge (Sr.Division)-cum-Additional Chief Judicial Magistrate till he was compulsorily retired in July, 2004 and that was an apparent error being committed by the authority in permitting the Officer to continue in the higher pay-scale after 18.06.1999 and accordingly action being taken for making recovery from his salary and retiral dues after his fixation stood revised.
That apart, it has also been prayed by the Officer while assailing the order of recovery passed by the respondents dt.02.09.2004 that the respondents should not make any recovery from his salary of 14th of July, 2004 paid to him and a direction be issued to the respondents not to make recovery of Rs.2,700/- on account of books at his residence which, as alleged, he failed to deposit.
(8 of 10) [ CW-4822/2003] Reply to the petition came to be filed by the respondent and it has been averred that after passing of the order dt.18.06.1999 when the Officer was ordered to be posted on the substantive post of Civil Judge (Jr.Division)-cum-Judicial Magistrate his pay fixation in the ordinary course deserves to have been revised but inadvertently, the same could not have been carried out and he was continued in the higher pay-scale of Civil Judge (Sr.Division)- cum-Additional Chief Judicial Magistrate till passing of the order of compulsory retirement dt.13.07.2004 and as per the record maintained by the respondents, from 1999 to May, 2004 he has been paid excess amount of Rs.77,445/- which was recoverable from him. At the same time, it has also been averred that so far as his salary for the day of 14.07.2004 is concerned, there is a specific provision u/R.4(2) of the Rajasthan Civil Services (Pension) Rules, 1996 which provides that in the case of a Government servant who is retired prematurely or voluntarily u/sub-Rule (1) of R.53, the date of retirement shall be treated as non-working day and accordingly, the salary of 14.07.2004 could not have been paid to him and thus, revised Last Pay Certificate (LPC) was issued by the authority.
It has also been averred in reply to the writ petition that as per the record, 11 books at the home library for the year 1997 were issued to the Officer and he failed to deposit the same and out of 11 books, 9 books of Rajasthan Local Laws costing Rs.300/- each and for rest two books, there was no price printed thereon and thus, towards the cost of the books - Rs.2,700/- was recoverable from him but the petitioner failed to respond and has (9 of 10) [ CW-4822/2003] not deposited the cost of the books despite notice being served to him.
Having heard counsel for the parties and perused of the record, we find that it is not a case of misrepresentation on the part of the Officer who while serving in the pay-scale of Civil Judge (Sr.Division)-cum-Additional Chief Judicial Magistrate from 1999 to 14.07.2004 was allowed to continue in the higher pay-scale admissible to Civil Judge (Sr.Division)-cum-Additional Chief Judicial Magistrate and the ultimate fact remains that the petitioner has served for 27 years 7 months and 11 days while he was compulsorily retired on 13.07.2004 and in the given situation, in our considered view, there appears no justification for the respondents to make any recovery from the petitioner and order which has been passed to make recovery from the salary of the petitioner dt.02.09.2004, in our considered view, on either counts is not legally sustainable.
The other two justifications tendered by the respondent for one day's salary of 14.07.2004 and that the petitioner failed to deposit the cost of books which he has not surrendered, in our considered view, after the Officer has retired compulsorily in 2004 and because of the technical reasons his retiral dues in full have not been released to him and even if we take note of his entitlement which was due and delay could not be attributed to the petitioner alone still remain withheld for a sufficient long time and we are of the view that both the two objections of the respondents for depositing the salary of 14.07.2004 and so also (10 of 10) [ CW-4822/2003] depositing the cost of books are not sustainable and we hereby reject both of their objections.
It has also come on record that the petitioner is presently getting provisional pension as envisagesd u/R.86 of the Rules, 1996 and the reason attributed by the respondents is that delay is on the part of the petitioner. We are not going in the question as to who was at fault but the ultimate fact indeed is that the petitioner is the sufferer and still getting provisional pension and the legitimate retiral dues to which he is entitled for remain withheld for almost 13 years which certainly is a sufficient long time and for such a technical reason if retiral dues are withheld that certainly needs indulgence of this court.
Consequently, D.B.Civil Writ Petition No.4822/2003 is dismissed and D.B.Civil Writ Petition No.18494/2011 succeeds & is allowed. The order impugned dt.02.09.2004 is hereby quashed and set aside and no further recovery is required to be made from the salary of the petitioner even of one day i.e. 14.07.2004 and of the alleged cost of books at his residence of Rs.2,700/- and the respondents are directed to get all the formalities completed, if so required from the petitioner within a period of one month and release all the terminal benefits to which he is entitled for under the law within a month thereafter and depute an Officer to ensure compliance/formalities required within the stipulated period. No costs.
(ASHOK KUMAR GAUR)J. (AJAY RASTOGI)J. Solanki DS, PS