Rajasthan High Court - Jaipur
The State Of Rajasthan vs Sukhvinder Singh Saluja S/O Shri ... on 30 August, 2024
Author: Sameer Jain
Bench: Sameer Jain
[2024:RJ-JP:26399]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 15692/2023
1. Satish Kumar S/o Shri Samay Singh, Assistant Engineer
(Civil), Pwd, Sub-Division, Weir, Circle Bharatpur, Residing
At Pushp Vihar, Opposite Dainik Bhaskar, Janta Colony,
Mungaska, Alwar-301001.
2. Jai Prakash Yadav S/o Shri Jagdish Prasad Yadav, Aged
About 38 Years, Resident Of Plot No. 16, New Siddharth
Vihar, 60 Ft. Road, Alwar. Presently Posted As Assistant
Engineer, Public Works Department, Construction, Suib-
Division-Ii, Jaipur.
3. Ravindra Singh S/o Shri Haribava Choudhary, Aged About
31 Years, Resident Of Bpo Bhatawali, Tehsil Kumher,
District Bharatpur. Presently Posted As Assistant Engineer,
Qc Bharatpur.
4. Harish Yadav S/o Shri Dalip Singh, Aged About 33 Years,
Resident Of Village Sagar, Post Kalakhari, Tehsil Buhana,
Jhunjhunu. Opresently Posted As Assistant Engineer,
Buhana.
----Petitioners
Versus
1. State Of Rajasthan, Represented Through Principal
Secretary, Public Works Department, Government Of
Rajasthan, Government Secretariat, Jaipur.
2. Principal Secretary, Department Of Personnel,
Government Of Rajasthan, Secretariat, Jaipur, Rajasthan.
3. Chief Engineer-Cum-Additional Secretary, Public Works
Department, Jacob Road, Civil Lines, Jaipur, Rajasthan.
4. Lokesh Gupta S/o Shri Kapoor Chand Gupta, Presently
Working On Deputation In The Office Of Project Director,
Rsrdc, Unit-3, Jaipur On Post Of Assistant Engineer (Civil)
Diploma, Residing At D-62-A, Nirman Nagar, Gautam
Marg, Jaipur (Rajasthan).
5. Sawai Singh Rathore S/o Shri Durga Singh Rathore,
Holding The Post Of Assistant Engineer (Civil), Degree
Holder And Through Chief Engineer Cum Additional
Secretary, Public Works Department, Jacob Road, Civil
Lines, Rajasthan.
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----Respondents
Connected With S.B. Civil Writ Petition No. 16147/2023 Sawai Singh Rathore S/o Shri Durga Singh Rathore, Holding The Post Of Assitant Engineer (Civil) Degree Holder And Through Chief Engineer Cum Additional Secretary, Public Works Department, Jacob Road, Civil Lines, Jaipur (Raj.).
----Petitioner Versus
1. Lokesh Gupta S/o Shri Kapoor Chand Gupta, R/o D-62-A, Nirman Nagar, Gautam Marg, Jaipur (Raj.).
2. The State Of Rajasthan, Through Principle Secretary, Public Works Department, Govt. Of Rajasthan , Secretariat, Jaipur(Raj.).
3. Principle Secretary, Department Of Personnel, Govt Of Rajasthan, Secretariat, Jaipur (Raj.).
4. Chief Engineer Cum Additional Secretary, Public Works Department, Jacob Road, Civil Lines, Jaipur (Raj.).
5. Satish Kumar S/o Shri Samay Singh, R/o Pushp Vihar, Janta Colony, Mungaska, Alwar (Raj.).
----Respondents S.B. Civil Writ Petition No. 17604/2023
1. The State Of Rajasthan, Through Principal Secretary, Public Works Department, Government Of Rajasthan, Secretariat, Jaipur, Rajasthan.
2. Principal Secretary, Department Of Personnel, Government Of Rajasthan, Secretariat, Jaipur (Rajasthan)
3. Chief Engineer Cum Additional Secretary, Public Works Department, Jacob Road, Civil Lines, Jaipur, Rajasthan
----Petitioners Versus
1. Lokesh Gupta Son Of Shri Kapoor Chand Gupta, Presently Working On Deputation In The Office Of Project Director, R.s.r.d.c., Unit-3, On The Post Of Assistant Engineer (Civil) And Diploma, Resident Of D-62(A), Nirman Nagar, Gautam Marg, Jaipur, Rajasthan.
2. Sawai Singh Rathore Son Of Shri Durga Singh Rathore, (Downloaded on 02/09/2024 at 09:07:06 PM) [2024:RJ-JP:26399] (3 of 23) [CW-15692/2023] Holding The Post Of Assistant Engineer (Civil) Degree Holder And Through Chief Engineer Cum Additional Secretary, Public Works Department, Jacob Road, Civil Lines, Jaipur, Rajasthan.
3. Satish Kumar Son Of Shri Samay Singh, Assistant Engineer (Civil), P.w.d., Sub-Division, Weir, Circle Bharatpur.
----Respondents S.B. Civil Writ Petition No. 17623/2023
1. The State Of Rajasthan, Through Principal Secretary, Public Works Department, Government Of Rajasthan, Secretariat, Jaipur, Rajasthan.
2. Principal Secretary, Department Of Personnel, Government Of Rajasthan, Secretariat, Jaipur (Rajasthan)
3. Chief Engineer Cum Additional Secretary, Public Works Department, Jacob Road, Civil Lines, Jaipur, Rajasthan
----Petitioners Versus
1. Sukhvinder Singh Saluja S/o Shri Kuldeep Singh Saluja, Presently Working As Assistant Engineer In The Office Of Sub Division, Beawar, Rajasthan, Resident Of Plot No.5, Pushkar Ganj, Sunari Ka Nohra, Beawar, District Alwar, Rajasthan.
2. Sawai Singh Rathore Son Of Shri Durga Singh Rathore, Holding The Post Of Assistant Engineer (Civil) Degree Holder And Through Chief Engineer Cum Additional Secretary, Public Works Department, Jacob Road, Civil Lines, Jaipur, Rajasthan.
----Respondents S.B. Civil Writ Petition No. 17624/2023
1. The State Of Rajasthan, Through Principal Secretary, Public Works Department, Government Of Rajasthan, Secretariat, Jaipur, Rajasthan.
2. Principal Secretary, Department Of Personnel, Government Of Rajasthan, Secretariat, Jaipur (Rajasthan)
3. Chief Engineer Cum Additional Secretary, Public Works Department, Jacob Road, Civil Lines, Jaipur, Rajasthan
----Petitioners (Downloaded on 02/09/2024 at 09:07:06 PM) [2024:RJ-JP:26399] (4 of 23) [CW-15692/2023] Versus
1. Pawan Kumar Jain S/o Shri Padam Kumar Jain, Presently Working As Assistant Engineer At Office Of Rsrdc, Unit-4, Jaipur, Rajasthan. Resident Of Bakliwal Bhawan, Manak Chowk, Todaraisingh, District Tonk, Rajasthan.
2. Sawai Singh Rathore Son Of Shri Durga Singh Rathore, Holding The Post Of Assistant Engineer (Civil) Degree Holder And Through Chief Engineer Cum Additional Secretary, Public Works Department, Jacob Road, Civil Lines, Jaipur, Rajasthan.
----Respondents S.B. Civil Writ Petition No. 17627/2023
1. The State Of Rajasthan, Through Principal Secretary, Public Works Department, Government Of Rajasthan, Secretariat, Jaipur, Rajasthan.
2. Principal Secretary, Department Of Personnel, Government Of Rajasthan, Secretariat, Jaipur (Rajasthan)
3. Chief Engineer Cum Additional Secretary, Public Works Department, Jacob Road, Civil Lines, Jaipur, Rajasthan
----Petitioners Versus
1. Sanjay Kumar Verma S/o Shri Yadram Verma, Presently Working As Assistant Engineer On Deputation In The Office Of Medical Health Division, Alwar, Rajasthan, Resident Of Plot No. 231/232, Shanti Kunj, Alwar, Rajasthan.
2. Sawai Singh Rathore Son Of Shri Durga Singh Rathore, Holding The Post Of Assistant Engineer (Civil) Degree Holder And Through Chief Engineer Cum Additional Secretary, Public Works Department, Jacob Road, Civil Lines, Jaipur, Rajasthan.
----Respondents S.B. Civil Writ Petition No. 17628/2023
1. The State Of Rajasthan, Through Principal Secretary, Public Works Department, Government Of Rajasthan, Secretariat, Jaipur, Rajasthan.
2. Principal Secretary, Department Of Personnel, Government Of Rajasthan, Secretariat, Jaipur (Rajasthan) (Downloaded on 02/09/2024 at 09:07:06 PM) [2024:RJ-JP:26399] (5 of 23) [CW-15692/2023]
3. Chief Engineer Cum Additional Secretary, Public Works Department, Jacob Road, Civil Lines, Jaipur, Rajasthan
----Petitioners Versus
1. Digamber Singh S/o Shri Kanhaiya Lal, Presently Working As Assistant Engineer At Office Of Pwd, Sub Division, Chittorgarh, Rajasthan. Resident Of Plot No.42, Udai Residency, Nimbahera, District Chittorgarh, Rajasthan.
2. Sawai Singh Rathore Son Of Shri Durga Singh Rathore, Holding The Post Of Assistant Engineer (Civil) Degree Holder And Through Chief Engineer Cum Additional Secretary, Public Works Department, Jacob Road, Civil Lines, Jaipur, Rajasthan.
----Respondents S.B. Civil Writ Petition No. 17629/2023
1. The State Of Rajasthan, Through Principal Secretary, Public Works Department, Government Of Rajasthan, Secretariat, Jaipur, Rajasthan.
2. Principal Secretary, Department Of Personnel, Government Of Rajasthan, Secretariat, Jaipur (Rajasthan)
3. Chief Engineer Cum Additional Secretary, Public Works Department, Jacob Road, Civil Lines, Jaipur, Rajasthan
----Petitioners Versus
1. Shahzad Mohammed S/o Shri Mohammed Noor, Presently Working As Assistant Engineer At The Office Of Pwd Sub Division, Banela, District Bhilwara, Rajasthan. Resident Of Razamanzil, Near Jama Masjid, Ashapura, Mandir Chowk, Jahazpur, Bhilwara, Rajasthan.
2. Sawai Singh Rathore Son Of Shri Durga Singh Rathore, Holding The Post Of Assistant Engineer (Civil) Degree Holder And Through Chief Engineer Cum Additional Secretary, Public Works Department, Jacob Road, Civil Lines, Jaipur, Rajasthan.
----Respondents S.B. Civil Writ Petition No. 17632/2023
1. The State Of Rajasthan, Through Principal Secretary, Public Works Department, Government Of Rajasthan, (Downloaded on 02/09/2024 at 09:07:06 PM) [2024:RJ-JP:26399] (6 of 23) [CW-15692/2023] Secretariat, Jaipur, Rajasthan.
2. Principal Secretary, Department Of Personnel, Government Of Rajasthan, Secretariat, Jaipur (Rajasthan)
3. Chief Engineer Cum Additional Secretary, Public Works Department, Jacob Road, Civil Lines, Jaipur, Rajasthan
----Petitioners Versus
1. Sohan Lal Bairwa S/o Shri Bheru Lal Bairwa, Presently Working As Assistant Engineer At Office Of Pwd, Sub Division, Kotori, District Bhilwara. Resident Of Plot No.g- 263, New Bapu Nagar, Near Central Academy School, Bhilwara, Rajasthan.
2. Sawai Singh Rathore Son Of Shri Durga Singh Rathore, Holding The Post Of Assistant Engineer (Civil) Degree Holder And Through Chief Engineer Cum Additional Secretary, Public Works Department, Jacob Road, Civil Lines, Jaipur, Rajasthan.
----Respondents S.B. Civil Writ Petition No. 17633/2023
1. The State Of Rajasthan, Through Principal Secretary, Public Works Department, Government Of Rajasthan, Secretariat, Jaipur, Rajasthan.
2. Principal Secretary, Department Of Personnel, Government Of Rajasthan, Secretariat, Jaipur (Rajasthan)
3. Chief Engineer Cum Additional Secretary, Public Works Department, Jacob Road, Civil Lines, Jaipur, Rajasthan
----Petitioners Versus
1. Suresh Chandra Ladha S/o Shri Ram Swaroop Ladha, Presently Working As Assistant Engineer In The Office Of Pwd Circle, Chittorgarh, Rajasthan. Resident Of Plot No. 31-32, Madhuban-V, Chittorgarh, Rajasthan.
2. Sawai Singh Rathore Son Of Shri Durga Singh Rathore, Holding The Post Of Assistant Engineer (Civil) Degree Holder And Through Chief Engineer Cum Additional Secretary, Public Works Department, Jacob Road, Civil Lines, Jaipur, Rajasthan.
----Respondents (Downloaded on 02/09/2024 at 09:07:06 PM) [2024:RJ-JP:26399] (7 of 23) [CW-15692/2023] For Petitioner(s) : Mr. R.N. Mathur, Sr. Adv. assisted by Mr. Shovit Jhajharia Mr. Mahendra Shah, Sr. Adv. assisted by Mr. Akshit Gupta For Respondent(s) : Mr. G.S. Gill, AAG with Mr. Surya Pratap Singh Mr. A.K. Sharma, Sr. Adv. assisted by Mr. C.P. Sharma HON'BLE MR. JUSTICE SAMEER JAIN Order REPORTABLE Reserved on 17/05/2024 Pronounced on 30/08/2024
1. In the present batch of writ petitions, the scope of the controversy involved is broadly and predominantly defined by the challenge raised to the determination of the private-respondent's experience for promotion on the post of Executive Engineer, as ascertained vide order impugned dated 22.09.2023, passed by the Rajasthan Civil Services Appellate Tribunal.
2. Therefore, considering the fact that the writ petitions warrant adjudication on common questions of law, with the consent of learned counsel appearing on behalf of all the parties, the petitions are co-jointly taken up for final disposal, by way of a common order. It is clarified that for the purpose of recording arguments, S.B. Civil Writ Petition No. 15692/2023 titled as Satish Kumar and Ors. vs. State of Rajasthan and Ors., is taken as the lead file.
3. At the outset, Senior Counsel Mr. R.N. Mathur, appearing on behalf of the petitioners, submitted that the order impugned dated 22.09.2023, is passed not only in blatant (Downloaded on 02/09/2024 at 09:07:06 PM) [2024:RJ-JP:26399] (8 of 23) [CW-15692/2023] violation of the settled position of the law, but also the statutory rules governing the facet of appointment and promotion of employees, more specifically Executive Engineers in the State of Rajasthan.
4. While asserting that the directions issued vide order impugned dated 22.09.2023 are arbitrary and legally unfounded insofar as they provided for counting the experience/service of the private respondents on the post Assistant Engineers from 01.04.2008 for the purpose of promotion on the post of Executive Engineer, Mr. Mathur submitted as under:-
4.1 That the post of Assistant Engineer, on which the private respondents were rendering their services, was upgraded on 27.05.2008. The promotion of such private respondents on the said post was effectuated on 17.06.2008 only. Therefore, as such, not a single vacancy of Assistant Engineers was available on 01.04.2008 i.e. statutory date ascertained for recording experience/service for promotion.
4.2 That as per Rule 24A of the Rajasthan Subordinate Engineering (Building and Roads Branch) Services Rules 1973 (hereinafter, Rules of 1973), the calculation of minimum qualification and experience for the purpose of promotion has to ascertained as on 01.04.2023 i.e. first day of the month of April of the year of selection on the post from which the selection is to be made. Therefore, if the experience/service of the private respondents is calculated from the date of creation of their post i.e. 27.05.2008, then in such an eventuality, the private respondents as on 01.04.2023, shall categorically fail to possess the minimum 15 years of experience, as mandated by Schedule-I (Downloaded on 02/09/2024 at 09:07:06 PM) [2024:RJ-JP:26399] (9 of 23) [CW-15692/2023] of the Rajasthan Engineering (Building and Road Branch) Service Rules, 1954 (hereinafter, Rules of 1954).
4.3 That the notification dated 23.05.2008, issued under Article 309 of the Constitution of India, by way of which the entry in Schedule I of the Rules of 1954 under the head of 'Junior Posts' was substituted, categorically provided that the said notification shall come into force on 23.05.2008 only, thereby having no retrospective application.
4.4 That placing reliance upon the Rules of 1954, more specifically Rule 2(h) defining "service" or "experience", Rule 23A which provides for the criteria for promotion, Rule 24A which lays down the revised criteria, eligibility and procedure for promotion and Rule 26 which defines the required experience for appointment on the post of Executive Engineer for Degree and Diploma Holders, learned Senior Counsel submitted that when there was no clear post available for promotion on 01.04.2008, on account of the upgradation having been only effectuated subsequently i.e. on 23.05.2008, then as per the statutory requirements, the requisite experience of 15 years on the post of Assistant Engineer was not possessed by the private respondents as on 01.04.2023.
4.5. That since the Rules of 1954 are clear and unambiguous, the experience for promotion on the post of Executive Engineer has to be counted on the post of Assistant Engineer from the date a person has been promoted under the Rules of 1954. Whereas, in the facts of the present case, the private respondents being Diploma Holders, were only upgraded as opposed to promoted on the said post, after the amendment on 23.05.2008.(Downloaded on 02/09/2024 at 09:07:06 PM)
[2024:RJ-JP:26399] (10 of 23) [CW-15692/2023] 4.6 That in support of the foregoing arguments, learned counsel for the petitioners placed reliance upon the dictum enunciated in Bharat Sanchar Nigam Ltd. vs. R. Santhakumari Velusamy and Ors. reported in (2011) 9 SCC 510, B. Thirumal vs. Anand Sivakumar and Ors. reported in (2014) 16 SCC 593, Debabrata Dash and Ors. vs. Jatindra Prasad Das and Ors. reported in (2013) 3 SCC 658, Ganga Vishan Gujarati and Ors. vs. State of Rajasthan and Ors. reported in (2019) 16 SCC 28 and State of Jharkhand vs. Bhadey Munda and Ors. reported in (2014) 10 SCC 398.
4.7 That while placing reliance upon the said judgments, learned counsel submitted that 'promotion' and 'upgradation' are two different notions and therefore, are distinguishable. At this juncture, it was averred that in upgradation, the assessment of the eligible candidate is not made and straight away, appointment is given on the upgraded post after abolition of the lower post. In the present case, the private respondents were upgraded on the post of Assistant Engineer, after the post of Junior Engineer was abolished.
4.8 That promotion is not a matter of right and nor a condition of service. It is the prerogative of the State. Promotion can be effectuated only if there exists a vacant post for appointment and in absence of any existing vacancy, promotion cannot be granted.
(a) In the instant matter, on 01.04.2008, there was no creation of post;
5. Therefore, placing cumulative reliance upon the foregoing arguments, Mr. Mathur conclusively contended that on 01.04.2008, there was no creation of post of Assistant Engineer (Downloaded on 02/09/2024 at 09:07:06 PM) [2024:RJ-JP:26399] (11 of 23) [CW-15692/2023] qua the private respondents. The notification in this regard was issued for the first time on 23.05.2008 under Article 309, with no retrospective effect. Therefore, drawing and/or accrual of rights qua promotion w.e.f. 01.04.2008, prior to the issuance of the said notification i.e. 23.05.2008, is misconceived. Lastly, it was averred that as per the statutory definition of "service" or "experience" as enumerated under Rule 2(h) of the Rules of 1954 and calculation of experience as per Rule 23A, actual work performed by the officer ought to be analyzed and no notional calculation of work can be undertaken for a preceding date, when the incumbent post did not even exist. Therefore, it was prayed that the instant petition be allowed and the private respondents be not considered for promotion on the post of Executive Engineer on 01.04.2023, as they lack of the requisite experience of 15 years as mandated by the Rules of 1954, on account of their post having been created only on 23.05.2008.
6. Per contra, learned Senior Counsel Mr. A.K. Sharma, appearing on behalf of the respondents, has submitted that the basic aim and object of reorganizing the post of Junior Engineer with that of Assistant Engineer was stagnancy, which had prevented promotions for Diploma Holders such as the private respondents, for a period exceeding 25 years. Therefore, a conscious decision was taken by the State of Rajasthan on 19.03.2007 under the Chairmanship of the Chief Minister and the same was given effect vide notification dated 23.05.2008, and consequentially promotions were awarded to the private respondents on 27.06.2008.
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7. In this background, Mr. Sharma submitted that in order to cater to the said situation, the State Government under its administrative and commanding department i.e. Department of Personnel issued certain guidelines to meet out and/or provide clarity on the aspects such as further promotion and counting of experience and as a result, Rule 24A(11a) was introduced in the Rules of 1973 which provided that if a promotion is given at a latter date but which was substantively due, the effective date qua the same would be taken as the first of April of the said year. Therefore, the date of promotion, for counting experience of the private respondents, was rightly ascertained as 01.04.2008 by the learned Tribunal. On this aspect, learned counsel placed reliance upon the dictum of this Court enunciated in S.B. Civil Writ Petition No. 9479/2015 titled as Prakash Chand Meena vs. State of Rajasthan, which has been accepted by the State as well. Additionally, reliance was also placed upon the dictum enunciated in S.B. Civil Writ Petition No. 4712/1998 titled as M.L. Jain vs. State of Rajasthan, and it was conclusively submitted that as the private respondents were promoted as against the vacancy year of 2008-2009, their experience for the promotion ought to have been counted from 01.04.2008, as per which, they have duly fulfilled the criteria of possessing 15 years of experience as on 01.04.2023 for promotion on the post of Executive Engineer.
8. Therefore, placing reliance upon the aforesaid, learned counsel for the respondents contended that the order impugned dated 22.09.2023 has been passed in consonance with the settled (Downloaded on 02/09/2024 at 09:07:06 PM) [2024:RJ-JP:26399] (13 of 23) [CW-15692/2023] position of law and as a result, calls for no interference of this Court. Hence, the present petitions ought to be dismissed.
9. Heard and considered the arguments advanced by the learned counsel appearing on behalf of both the sides, scanned the record of the petitions and perused through the judgments cited at Bar.
10. As a precursor to recording findings on the arguments noted herein-above, this Court deems it appropriate to briefly take note of the factual background of the dispute at hand. The facts are noted herein-under:-
10.1 That the private respondents before this Court, who were the appellants before the learned Tribunal, were initially appointed on the post of Junior Engineer Diploma Holder (Civil).
10.2 That on 17.06.2008, the said private respondents were allowed promotion on the post of Assistant Engineer Diploma Holder (Civil) against the vacancy year of 2008-2009, in pursuance of the Departmental Promotion Committee recommendation dated 10.06.2008. (Annexure A/3).
10.3 That as per the Rules of 1954, for promotion on the post of Executive Engineer (Civil), the channel is 100% by way of promotion through Assistant Engineers, which requires that Assistant Engineers (Civil) Degree Holders ought to have possessed 5 years of experience and similarly, Assistant Engineers (Civil) Diploma Holders, such as the private respondents, ought to have 15 years of experience as Assistant Engineer, prior to their promotion.
10.4 That the private respondents, whilst they held the post of Assistant Engineer Diploma Holder (Civil), filed various appeals (Downloaded on 02/09/2024 at 09:07:06 PM) [2024:RJ-JP:26399] (14 of 23) [CW-15692/2023] before the learned Tribunal, claiming that since the said respondents possessed 15 years of experience on the post of Assistant Engineer, they ought to be promoted on the post of Executive Engineer Diploma Holder (Civil). In order to substantiate upon the requirement of requisite experience of 15 years, the private respondents claimed that as they were promoted against the vacancy year 2008-2009, then as per the guidelines dated 04.06.2008 issued by the Department of Personnel, the vacancies for the next promotion shall be determined as the 1 st of April of the promotion year i.e. 2008, and therefore, the private respondents shall have possessed 15 years of experience to be promoted on the post of Executive Engineer i.e. from 01.04.2008 to 01.04.2023.
10.5 That in all the appeals preferred by the private respondents, the learned Tribunal initially gave directions to the PWD Department for considering the representations/legal notices furnished by the private respondents, by way of a speaking order. 10.6 That vide order dated 25.08.2023, the PWD Department declined the claim of the private respondents seeking promotion on the post of Executive Engineer whilst holding that the private respondents did not possess the requisite experience of 15 years on the post of Assistant Engineer as on 01.04.2023 and therefore, could not be promoted against the vacancy year 2023-2024. (Annexure- A/1).
10.7 That being aggrieved by the order dated 25.08.2023, the private respondents preferred various appeals before the learned Appellate Tribunal, and such appeals came to be allowed vide order impugned dated 22.09.2023 by way of which directions (Downloaded on 02/09/2024 at 09:07:06 PM) [2024:RJ-JP:26399] (15 of 23) [CW-15692/2023] came to be issued to the PWD Department to count the service/experience of the private respondents on the post of Assistant Engineer from 01.04.2008 for the purpose of promotion to the post of Executive Engineer (Civil). (Annexure 1).
11. In this background, this Court deems it appropriate to note that the central and paramount issue for the consideration of this Court pertains to the determination of the date, which may be used for counting the experience of employees on the post of Assistant Engineer for the purpose of next promotion on the post of Executive Engineer. Therefore, in the facts and circumstances of the present case, the question which warrants adjudication by this Court, is delineated herein-under:-
"Whether the private respondents (Diploma Holders) who were upgraded and promoted on the post of Assistant Engineer(s) in terms of the notification dated 23.05.2008 and promotion order dated 17.06.2008, are eligible for promotion on the post of Executive Engineer (Civil) for the Year 2023-2024, especially looking to the indispensable requirement of possessing 15 years of experience on the post Assistant Engineer as per the Rules of 1954?"
12. Upon a perusal of the record before this Court, it is noted that the State Government, after considering the fact that there was stagnancy in promotion from the post of Junior Engineer and that the post of Assistant Engineers was filled 50% by direct recruitment and 50% by promotion, forwarded certain proposals to the Finance Department for upgradation of the post of Junior Engineer to that of Assistant Engineer (Civil). Subsequent to the consideration of the said proposal, the Finance Department (Downloaded on 02/09/2024 at 09:07:06 PM) [2024:RJ-JP:26399] (16 of 23) [CW-15692/2023] abolished the post of Junior Engineer and upgraded the same to the post Assistant Engineer (Civil). It was ascertained that the posts so upgraded i.e. Assistant Engineer shall be filled 100% by way of promotion and therefore, necessary amendments were carried out by the Department of Personnel vide notification dated 23.05.2008. The said notification, in categoric terms, specified that the post of Assistant Engineer (Civil) shall be filled 100% by way of promotions, till the time all the Junior Engineers are promoted and only thereafter, by way of direct recruitment. Therefore, since the Rules of 1954 were amended by way of the notification dated 23.05.2008, by way of which the entry in Schedule I of the Rules of 1954 under the head of 'Junior Posts' was substituted, consequentially the post of Assistant Engineer was upgraded on 27.05.2008 and thereafter, promotion was awarded to the private respondents on the said post on 17.06.2008.
13. At this juncture, this Court deems it appropriate to note that vide order dated 25.08.2023, the PWD Department turned down the claim of the private respondents seeking promotion on the post of Executive Engineer, whilst holding that the vacancies to the post of Assistant Engineer were created only in pursuance to the order dated 27.05.2008 due to upgradation, against which the private respondents were promoted and therefore, since the posts came to be available only on 27.05.2008, their requisite experience of 15 years for promotion on the post of Executive Engineer, could only be calculated from the said date. Therefore, as on 25.08.2023, they did not possess adequate experience of 15 (Downloaded on 02/09/2024 at 09:07:06 PM) [2024:RJ-JP:26399] (17 of 23) [CW-15692/2023] years as mandated by Schedule-I of the Rules of 1954 for promotion on the post of Executive Engineer.
14. However, upon a bare perusal of the order dated 27.05.2008 (Annexure A/7), by way of which 621 posts of Junior Engineers were upgraded into the posts of Assistant Engineer (Civil), it is made abundantly clear that for such upgradation of post to that of Assistant Commissioner, the Finance Department, Government of Rajasthan had already sanctioned the approval on 19.03.2007 itself.
15. At this juncture, this Court deems it appropriate to place reliance upon the Promotion Guidelines dated 04.06.2008, issued by the State (Annexure A/8), more particularly, Clause 6.1, 7.5, 7.5.2 and 15.1 KA, which are reproduced herein-under:-
Clause 6-1 %& fjfDr;ksa dk vo/kkj.k foHkkxh; inksUufr lfefr o"kZ ds izFke fnol vFkkZr izR;sd o"kZ dh 1 vizSy dh okLrfod fjfDr;ksa dks feykrs gq;s fd;k tkuk gaS ftlesa iwjs foRrh; o"kZ dh okLrfod ,oa laHkkfor miyC/k gksus okyh fjfDr;ka lfEefyr gksaA Clause 7- 5 %& iwjs foRrh; o"kZ esa okLrfod :i ls miyC/k gks jgha fjfDr;ka x.kuk ;ksX; gksaxh ftuesa fuEu in Hkh lfEefyr gksx Clause 7- 5- 2 %& uohu in tks foHkkxh; inksUufr lfefr dh cSBd ds vk;kstu ls iwoZ l`ftr gksrs gSa vFkok tks ctV esa lfEefyr fd;s x;s gksa ;k ftuds fy;s ml frfFk dks tcfd fjfDr;ksa dk vo/kkj.k fd;k tk,] foRr foHkkx }kjk lgefr ns nh xbZ gksaA Clause 15.1 KA ^^ftu jktlsodksa dks foHkkxh; inksUufr lfefr }kjk ,d vizSy dh fLFkfr esa miyC/k Li"V fjfDr;ksa ds fo:) inksUur fd;k x;k gSa] ds vuqHko vof/k dh x.kuk inksUufr o"kZ dh ,d vizSy ls dh tk;sxh vkSj mlds ckn vFkkZr~ ,d vizSy i'pkr~ miyC/k gksus okyh fjfDr;ksa ds fo:) inksUur jktlsodksa ds vuqHko vof/k dh x.kuk iwokZuqlkj gh vFkkZr~ 15-1 ds vuqlkj ¼fuEu in (Downloaded on 02/09/2024 at 09:07:06 PM) [2024:RJ-JP:26399] (18 of 23) [CW-15692/2023] ij fu;fer fu;qfDr ds ckn ds ,d vizSy ls inksUufr o"kZ ds ,d vizSy rd½ dh tk;sxhA**
16. Upon a perusal of the aforesaid, it can be conclusively deduced that as per Clause 6.1, all the vacancies, be it actual or anticipated, in the whole financial year, shall be determined by the Department as lying vacant on the 1st of April of that year.
Similarly, Clause 7.5 of the said guidelines clarifies that all the vacancies which are available in a financial year (actual or anticipated), shall be determined for the purpose of promotion. Moreover, Clause 7.5.2 further clarified that the new posts which are created before conducting the DPC or for creation of such posts qua which the Finance Department has given the approval, such posts shall be treated as lying vacant against the same financial year. Correspondingly, even Clause 15.1KA clarified that the experience of an employee on a lower post shall be calculated from the 1st of April of the year in which the vacancy arises.
17. Therefore, in light of the Promotion Guidelines dated 04.06.2008, it is noted that it is an undisputed fact that the private respondents were granted promotion on the post of Assistant Engineers against the vacancy year 2008-2009 vide order dated 17.06.2008, and as per Clause 6.1, the determination of the vacancies is made on the 1 st of April of the said year i.e. 01.04.2008. Moreover, for the said upgradation of the private respondents post, the approval of the Finance Department was also secured on 19.03.2007 itself.
18. Therefore, in terms of the Guidelines dated 04.06.2008, as the private respondents were granted promotion on the post of (Downloaded on 02/09/2024 at 09:07:06 PM) [2024:RJ-JP:26399] (19 of 23) [CW-15692/2023] Assistant Engineers against the vacancy year 2008-2009 on 17.06.2008 with due prior financial approval, the determination of vacancies ought to be treated from 01.04.2008.
19. At this juncture, this Court also deems it appropriate to take note of Rule 24-11A of the Rules of 1954, which provides for the determination of experience of the services for promotion, from the vacancy year as opposed to the actual date of promotion. For ready reference, sub-rule 11A of Rule 24 is reproduced herein- under:-
"(11-A). If in any subsequent year, after promulgation of these rules, vacancies relating to any earlier year are determined to determination of vacancies which were required to be filled by promotion, the Departmental Promotion Committee shall consider the cases of all such persons who would have been eligible in the year to which the vacancies relate irrespective of the year in which the meeting of the Departmental Promotion Committee is held and such promotions shall be governed by the criteria and procedure for particular year to which the vacancies relate, and the service/experience of an incumbent who has been so promoted, for promotion to higher post for any period during which he has not actually performed the duties of the post to which he would have been promoted, shall be counted. The pay of a person who has been so promoted shall be re-fixed at the pay which he would have derived at the time of his promotion but no arrears of pay shall be allowed to him."
20. A bare perusal of sub-rule 11A makes it categorically clear that experience of service for promotion shall be determined from the vacancy year and not from the actual date of promotion. In the facts and circumstances of the present case, it is an admitted fact that the vacancy qua the post of Assistant Engineers arose in the Year 2008-2009 and therefore, for the purpose of (Downloaded on 02/09/2024 at 09:07:06 PM) [2024:RJ-JP:26399] (20 of 23) [CW-15692/2023] calculating experience of promotion, the date shall be taken as the 1st of April of the year when the incumbents were due for promotion i.e. in the Year 2008. In this regard, this Court deems it appropriate to place reliance upon the dictum of this Court as enunciated in Prakash Chand Meena (Supra), wherein whilst placing reliance upon Rule 24-11A of the Rules of1954, the Court held that the incumbents were entitled to get the period of experience calculated from the year when they were due for promotion, as opposed to the actual date of promotion on the higher post. The relevant extract of the judgment enunciated in Prakash Chand Meena (Supra) is reproduced herein-under:-
"The only question for my consideration is as to whether petitioners were eligible for promotion to the post of Executive Engineer against the vacancy year 2014-15. It is after considering the experience of 5 years on the lower post of Assistant Engineer as given in Schedule appended to Rules of1954. It would be gainful to refer sub-rule 11A of Rule 24 of the Rules of 1954 which is quoted thus:
"(11-A). If in any subsequent year, after promulgation of these rules, vacancies relating to any earlier year are determined under sub-rule (2) of rule relating to determination of vacancies which were required to be filled by promotion, the Departmental Promotion Committee shall consider the cases of all such persons who would have been eligible in the year to which the vacancies relate irrespective of the year in which the meeting of the Departmental Promotion Committee is held and such promotions shall be governed by the criteria and procedure for promotion as was applicable in the particular year to which the vacancies relate, and the service/experience of an incumbent who has been so promoted, for promotion to higher post for any period during which he has not actually performed the duties of the post to which he would have been promoted, shall be counted. The pay of a person who has been so promoted shall be re-fixed at the pay which he would have derived at the time of his promotion but no arrears of pay shall be allowed to him."(Downloaded on 02/09/2024 at 09:07:06 PM)
[2024:RJ-JP:26399] (21 of 23) [CW-15692/2023] As per the rule quoted above, it has been clarified that the promotion to the post would be made as per the criteria and procedure applicable in the particular year to which vacancies relate and the service/experience of incumbent who has been so promoted, for promotion to the higher post for any period during which he has not actually performed the duties of the post, to which he would have been promoted, shall be counted.
In view of the aforesaid rule, the petitioners were entitled to get the period of experience from the year when he was due for promotion on the lower post. In the instant case, it was the post of Assistant Engineer on which the petitioners were given promotion against the vacancy year 2009-
10. As per the rule, the petitioners are entitled to count his experience since01.04.2009."
21. Similarly, this Court also deems it appropriate to place reliance upon the dictum of this Court as previously enunciated in M.L. Jain (Supra), relevant extract of which is reproduced herein-under:-
"The only question which is to be determined is whether though promotion on selection scale has been granted for the year 1991-92, the period should be counted from 1.4.92 or 1.4.92. It is not disputed that 1991-92 year stats from 1.4.91 and ends on 31.3.92. In the present case, if the petitioner has been promoted even according to the respondents on 1.4.91, his experience is bound to be counted from 1.4.91 and not from 1992. The contention of the respondents in this regard cannot be accepted. To substantiate his arguments that for counting experience the period is to start from 1.4.91, the petitioner relies on the judgment of this Court passed in Jai Narayan Meena V. State of Rajasthan and Others, 1994(3) WLC 534 wherein it was held that Jai Narayan Meena who was allotted the year 1987-88 was deemed to have been regularly selected one of them would have fulfilled the experience as required in that case. In yet another order passed by this Court in D.B. Civil Special Appeal No.1052/98 decided on 18.1.99, it was held as under:-(Downloaded on 02/09/2024 at 09:07:06 PM)
[2024:RJ-JP:26399] (22 of 23) [CW-15692/2023] "According to the relevant rules and the instructions issued by the State Government the 1 st of April of the year of selection would be the date for counting the minimum experience which is laid down for granting promotion to the higher post. The respondent No.1 being selected for the post of Excise Inspector Grade 1 in the year 1992-93, his experience shall be counted from 1st April of the relevant year."
22. Therefore, in cumulative consideration of the fact that the private respondents before this Court were allowed promotion on the post of Assistant Engineer Diploma Holder (Civil) against the vacancy year 2008-2009 on 17.06.2008, in pursuance of the DPC recommendation dated 10.06.2008; that the financial approval for the 621 posts of Junior Engineers which were upgraded to the post of Assistant Engineer (Civil) was already sanctioned by the Finance Department on 19.03.2007 itself; that as per the specific Promotion Guidelines dated 04.06.2008, issued in order to resolve the facets of promotion on account of the creation/upgradation of such posts, more particularly Clause 6.1, 7.5 and 7.5.2, it is noted that it is an undisputed fact that the private respondents were granted promotion on the post of Assistant Engineers against the vacancy year 2008-2009 vide order dated 17.06.2008, and as per Clause 6.1, the determination of the vacancies is made on the 1 st of April of the said year i.e. 01.04.2008; that Rule 24-11A of the Rules of 1954 provides for the determination of experience of the services for promotion, from the vacancy year as opposed to the actual date of promotion and therefore, as the vacancy year qua the private respondents promotion was 2008-2009, the date for computing experience shall be taken as 01.04.2008; that the Coordinate Bench of this Court in Prakash Chand Meena (Supra) whilst placing reliance (Downloaded on 02/09/2024 at 09:07:06 PM) [2024:RJ-JP:26399] (23 of 23) [CW-15692/2023] upon Rule 24-11A of the Rules of1954 held that the incumbents were entitled to get the period of experience calculated from the year when they were due for promotion, as opposed to the actual date of promotion on the higher post; that similarly in M.L. Jain (Supra), this Court held that for an employee promoted against the vacancy year 1991-1992, shall be eligible for getting his experience computed from 01.04.1991; that taking note of the fact that the private respondents were promoted against the vacancy year 2008-2009, their experience for promotion on the post of Executive Engineer shall be computed from 01.04.2008, as per which they shall possess due experience of 15 years as on 01.04.2023 to be promoted on the post of Executive Engineer, this Court deems it appropriate to dismiss the instant petition.
23. As a result, in light of the foregoing observations, the instant batch of writ petitions is dismissed. Pending applications, if any, stand disposed of.
(SAMEER JAIN),J JKP/s-260-269 (Downloaded on 02/09/2024 at 09:07:06 PM) Powered by TCPDF (www.tcpdf.org)