Rajasthan High Court - Jaipur
Ajay Singh And Ors. vs Rajasthan Civil Services Appellate ... on 20 February, 2003
Equivalent citations: RLW2003(2)RAJ1293, 2003(2)WLC559
Author: K.S. Rathore
Bench: K.S. Rathore
JUDGMENT Rathore, J.
1. Since all these writ petitions are directed against the order dated 25.10.99 as common question is involved, all the abovesaid four writ petitions are decided by this common order.
2. Before proceeding in this case it is pertinent to mention here that how these cases came to be listed before me. For this I would like to cite the proceedings taken in the case of Ajay Singh v. Rajasthan Civil Services Appellate Tribunal and Ors. (1)
3. This writ petition was listed before this Court on 13.3.2000. On that date, Hon'ble Mr. Justice Shiv Kumar Sharma made it exception and ordered that the writ petition be placed before another Bench. Again, the matter came to be listed on 17.4.2000 before Justice Ashok Parihar and on the request it was ordered that this writ petition No. 791/2000 be listed along with S.B. Civil Writ Petition No. 775/2000. On 28.4.2000 these writ petitions came to be listed along with writ petition No. 444/2000 and these writ petitions were admitted and notices were issued. On 31.7.2000, on the request made by the respective parlies all the aforesaid four petitions were ordered to be listed together for final disposal.
4. On 30th May, 2001, when the matter came up for final disposal, Hon'ble Justice V.S. Kokje expressed that since he has pronounced a decision in S.B. Civil Writ Petition No. 2968/2000 that day, these petitions required to be re-heard in the light of the aforesaid case and the matter was ordered to be listed for hearing in the first week of July, 2001. Thereafter, the matter was listed on 26.4.2002 and arguments were partly heard by Hon'ble Justice PP Naolekar and the matter was posted for further arguments.
5. Since Hon'ble Justice PP Naolekar was elevated as Chief Justice of Guwahati High Court, the matter was listed before the regular Bench. On 27.11.2002 the regular Bench observed that these cases are part heard of me. But the record was perused and it was found that these cases were never marked as part heard of me, therefore, the matter was again placed before Hon'ble the Acting Chief Justice. The Acting Chief Justice vide order dated 16.12.2002 placed the matter before the regular bench and since these cases have already been made exception by Hon'ble Shiv Kumar Sharma, J., the matter was again place before the Acting Chief Justice and vide order dated 17.12.2002 the matter was ordered to be listed before me. On 20.12.2002, the arguments were heard and since learned counsel for both the parties agreed to exchange their written submission, they were directed to file their written submissions and order was kept reserved.
6. In appeal No. 791/2000 Shri C.K. Garg learned counsel for the petitioner submits that vide order dated 10.2.1992, the respondent State had promoted several personal to the post of Selection Scale of Rajasthan Administrative Service against the vacancies of the,'year 1991-92 on the basis of merit. The petitioner was also promoted . against the vacancies of the year 1991- 92. The order dated 10.2.1992 was further reviewed by the respondent No. 2 in a review D.P.C. and, again on 22.7.1993 another promotion order was issued whereby, the respondent No. 3 Smt. Pramila Surana, was promoted against the vacancy of year 1991-92 in the selection scale of R.A.S. And vide order dated 23.2.1996 the petitioner was promoted against the vacancies of the year 1991-92 on the basis of merit.
7. Smt. Pramila Surana, respondent No. 3 challenged the order dated 23.2.1996 by way filing an appeal before the respondent No. 1 wherein she claimed that the order dated 23.2.96 be declared null and void so far it relates to the appellant whereby her year of allotment of selection grade against merit cum seniority quota has been lowered down from 1991-92 to 1992-93. On 17.9.1996, respondent No. 1 called for the record of the respondent No. 3 and after examining the APARs and other relevant record he gave a categorical finding that the respondent No. 3 was not morilorious enough for promotion against the vacancy of 1991-92.
8. The respondent No. 3 challenged the order dated 17.9.1996 by way of filing writ petition before this Court. This court without reversing or disturbing the findings given by the respondent No. 1 accepted the writ petition vide order dated 16.12.1997.
9. The respondent No. 2 preferred a D.B. Special Appeal against the order dated 16.12.97 and same was rejected vide order dated 13.11.98.
10. Respondents No. 4 to 12 including the petitioner were not made party to the writ petition filed by Prarnila Surana. Therefore, the review petition was preferred by the petitioner and other affected persons of the same cadre. The review petition was decided on 16.3.99 and in the review petition it was held by this court that the judgment and order of this Court will not affect the petitioner as well as other six officers.
11. Against the decision of this court dated 16.3.99, the respondent No. 3 preferred an appeal before the respondent No. 1 claiming the relief for promotion against the vacancies of the year 1988-89 of selection scale of R.A.S.
12. The petitioners have challenged the order dated 25.10.99 passed by the Tribunal on the ground that the appeal of the appellant respondent No. 3 was barred by constructive res judicata as the jurisdiction has already challenged the order dated 23.2.1996 before the Tribunal by way of filing appeal which is numbered as 138/96 wherein the respondent No. 3 claimed the promotion to the selection scale of R.A.S. against the vacancies of the year 1991-92.
13. In the appeal preferred by respondent No. 3 before the respondent No. 1 she has not claimed any relief for promotion against the vacancy of the year 1988-89 although the respondent could have sought relief for promotion against the vacancy ofyear 1988-89.
14. On the question of constructive res judicata it was given out that since cause of action was also available at that time when Shri Dungar Dan Charan was promoted by the original order dated 23.2.1996 against the vacancies of the year 1988-89 although the respondent 3 has challenged the order dated 23.2.1996 in the appeal preferred before respondent No. 1, but did not claim promotion for the year 1988-89.
15. Learned Sr. Counsel Shri C.K. Garg also referred the provisions of Order 2. Rule 2 of CPC and submitted that respondent No. 3 has not sought any relief based on the seniority of Shri D.D. Charan in the said appeal preferred before the respondent No. 1, therefore, the appeal which was filed by the respondent No. 3 before the Tribunal was barred by principle of res judicata. He given much emphasis on Section 11 of CPC and its Explanation IV.
16. Mr. Garg further referred Rule 9 of the Tribunals Act, 1976 and submitted that appeal of the respondent No. 3 was obviously barred by limitation. An appeal can be preferred within 60 days from the date of the order and in the present case the appeal was filed on 26.12.1998 against the order dated 23.2.1996 without supporting with the application for condonation of delay. It was also contended that the respondent No. 3 was having knowledge of the order dated 23.2.1996 as she has already challenged the order dated 23.2.1996 in previous appeal.
17. Mr. Garg further submitted that without considering the argument advanced on behalf of the petitioner that the appeal which has been filed beyond limitation and without filing an application for condonation of delay the Tribunal cannot exercise its discretion for condoning the delay as the respondent No. 3 had failed to show sufficient cause for condoning the delay.
18. Mr. Garg submits that the learned Tribunal has committed gross illegality in not considering this aspect that the respondent No. 3 has failed to implead Shri Doongar Dan Charan who was necessary party and on account of nonjoinder of necessary party. the appeal was deserved to be dismissed.
19. The Tribunal has also not properly appreciated the arguments advanced by the petitioners-respondents that the record of the appellant was not meritorious enough even if in the year 1985-86 she has been rated as Above Average by the reporting authority as well as reviewing authority. It is also submitted by Shri Garg that after the year 1985-86 the state Government has changed the proforrna of A.P.A.R. and the words 'Above Average' were deleted from that proforrna.
20. The Division Bench of this Court in the case of Govind Narayan v. State of Rajasthan held that Above Average may be treated as very good and in view of the Explanation substituted vide Notification dated 30.11.1991, it was clear that for the purpose of selection for promotion on the basis of merit officer with outstanding or consistently very good record shall only be selected, which makes it clear that the case of 'above average' Officer was to be considered for purposes of selection and the Tribunal gave an incorrect finding while relying tin the Circular dated 3.12.1996 and that Circular was not in existence at the time of D.P.S.
21. An Explanation was added under Rule 28-B sub Clause (11) of Rajasthan Administrative Service Rules, 1954 on 30.10.1991. After the aforesaid explanation was added, some controversies raised as to whether it was having retrospective effect or not and this controversy was resolved by the Apex Court in the case of Shambhu Singh Meena, 1995(2) SCC 117, wherein it was held that prior to 1991-92, for promotions on the basis of merit one should possess 7 out of 7 consistently 'outstanding or very good' APARs of the preceding years.
22. In view of the directions issued in the case of Shambhu Singh Meena review DPC was held on 23.2.1996. In the review DPC, respondent No. 3 was allotted the vacancy of the year 1992-93 for promotion in the selection on the basis Seniority-cum-Merit.
23. Mr. R.C. Joshi is appearing in the writ petition No. 1281/2000 Vinod Ajmera and Ors. v. Smt. Pramila Surana and Ors. In addition to the arguments advanced on behalf of Shri C.K. Garg, Mr. Joshi submits that Pramila Surana was promoted in merit quota in the year 1991-92 despite the fact that her APAR for the year 1984-85 1985-86 is 'above average' and for the year 1985-86 is 'average.'
24. In compliance of the judgments of Apex Court and that of the Tribunal the review DPC was held for the year 1987-88 to 1994-95. By this order the petitioners were promoted against the merit quota for the year 1991-92 and respondent Pramila Surana was given promotion against seniority quota for the year 1992-93.
25. Mr. Joshi further submits that in the earlier DPCs the error was committed by the Government because persons having five out of seven outstanding APARs were treated as meritorious while as per law laid down by this Court as well as Apex Court the persons having seven out of seven outstanding APARs were to be treated as meritorious.
26. The respondent again filed an appeal No. 2680/98 challenging the order dated 23.2.96 and claimed promotion against the year 1988-89 concealing the judgment of review and the Tribunal has allowed the appeal of the respondent vide order dated 25.10.99.
27. Mr. Joshi submits that while deciding the appeal, the learned Tribunal has not considered the decision of the Division Bench passed in the review petition as the Division Bench clarified that the petitioners who were not parties will'not be affected by the judgment and the matter between the petitioners and the respondent was finally adjudicated and it could never have been re-opened before the Tribunal by challenging the order dated 17.9.96 second time before the Tribunal. While allowing the appeal not only the Tribunal exceeded its jurisdiction but also nullified the directions issued by the High Court.
28. Mr. Joshi also pointed out the contradictions in the judgment of the Tribunal by reading Para 6 and 7 that APARs for the year 1984-85 1985-86 were filled by two different reporting officers whereas the Tribunal in para No. 6 of the judgment held that it was filled by the same officer. Thus, the judgment is based on factually incorrect premise.
29. Mr. Joshi further submits that the Tribunal has been the record of the respondent three times, which shows that her APAR for the year 1984-85 is above average and the second part of 1985-86 is good. Thus, she does not come within the category of meritorious as per law. And the Tribunal has committed serious error of law treating above average equivalent to very good ignoring the ratio decided in Govind Narain's case.
30. Mr, Joshi also submitted his arguments on the principle of res judicata and referred Section 11 CPC and placed reliance on the case Dariyav v. State of U.P., AIR 1961 SC 1457, and also submitted that the appeal ought to have been rejected on the ground of res judicata and delay and in this respect the petitioner relied upon the judgment of this Court reported in 1999(2) WLC 59 (3) and AIR 1987 SC 1353 (4).
31. Mr. R.A. Katta who is appearing in the writ of Sriram Meena (S.B. Civil Writ Petition No. 444/2000) had adopted the arguments advanced by Shri C.K. Garg and Shri R.C. Joshi.
32. Mr. Mohd. Rafiq, learned Additional Advocate General, has assailed the judgment of the Tribunal on the ground that the Tribunal has completely over-looked the preliminary objection of the petitioner that the appeal filed by respondent No. 2 was bared by the principles of constructive res judicata.
33. It was also stated that the order dated 23.2.1996 was already challenged by the respondent in her earlier appeal before the Tribunal. In earlier appeal which was filed against the order dated 23.2.1996 the grievance was that the year of selection scale was wrongly changed from 1991-92 (merit) to 1992-93 (seniority-cum-merit). If at all the respondent was aggrieved by the selection of Dungar Dan Charan against the vacancies of 1988- 89, she should have raised this objection then and there in the earlier appeal and she having failed to do so, she is precluded from raising this ground now and the appeal was liable to be rejected on the theory of 'might and ought'. This objection has not been properly considered by the Tribunal and the Tribunal has also seriously erred in not considering the preliminary objection that the order dated 23.2.1996 was the very same order which was challenged by respondent No. 2 in her appeal she initially filed which was decided by the Tribunal on 17.9.1996 and the order dated 23.2,1996 was based on a Apex Court judgment in the case of Shambhu Singh Meena (supra) and Shri Doongar Dan Charan was given promotion to selection scale against the.merit vacancies of 1988- 89 vide order dated 23.2.1996 itself.
34. Mr. Rafiq further submits that the Tribunal has taken an altogether new approach while directing that review DPC should be held. It has not only directed that review DPC should be held, but has also sought to govern the discretion of members of DPC and has virtually taken upon itself the task of consideration by DPC in directing that regarding the grading of the APARs, the DPC should keep in view the finding given by the Tribunal in Para 6. By making such observation the Tribunal silted itself in place of DPC.
35. Mr. Rafiq further states that on question whether or not the above average should be treated 'very good' as reflected tn para 6, is not legally correct and In fact such a view is contrary to the case of Govind Narayan (supra) and the Tribunal has proceeded to bye-pass the said judgment to take a view itself that above average is at par with very good.
36. On behalf of respondent No. 3 Mr. Virendra Lodha, at the very outset submitted that the present case has a chequered history and this court in the facts and circumstances of the case normally should not intervene and the present writ petition is clearly an abuse of the process of Court. The petitioner has been assigned promotion quota merit in the year 1991-92 and this assignment of quota to him has not been challenged in any manner and is not even open to be challenged. So far as respondent No. 3 is concerned, she will get her merit promotion quota of the year 1988-89 and she is already senior to the petitioner even if the promotion quota of this respondent remains 1991-92. Thus, in the present case, how does it matter for the petitioner whether this respondent is in promotion quota of 1991-92 or in the promotion quota of 1988-89.
37. Mr. Lodha further submits that Shri Dungardan Charan is also person junior to the respondent No. 3 who was assigned promotion quota of 1988-89 and who has retired from service on 31.10.93 much before promotion quota of 1988-89 was given to Shri D.D. Charan by order dated 23.2.96 and many of those who were assigned promotion quota of 1988-89 have also retired in the meanwhile. Thus, promotion quota accorded to Shri Dungardan Charan was nothing more than a paper quota nationally assigned to him which did not bring any further benefits to him not even monetary one.
38. The DPC met for the first time to make recommendations for appointment being accorded by promotion in the promotion quota of 1988-89 onwards and ultimately vide order dated 10.2.1992 whereby this respondent was placed above Shri Dungardan Charan in the promotion quota of 1991-92 the petitioner was placed in the reserve list meant for the purpose of according promotion on adhoc basis subject to review and revision at the end of the year and so that he was not given any substantive appointment.
39. The order dated 10.2.1992 was challenged by Shri K.G. Agarwal vide his appeal No. 116/92 and the Tribunal while upholding appointment of this respondent in the promotion quota of 1991-92 arrived at the conclusion that APARs of 7 years of this respondent preceding 1991-92 were outstanding. The appeal was allowed so far as it related to Sarva Shri Chouthmal Khatri, Hemant Goswami, Doongardan Charan, M.S. Kala and Suraj Bhan Meena as the Tribunal found that the APARs of these persons for all the 7 years preceding the year 1991-92 were neither outstanding nor very good.
40. Pursuant to the judgment of this court in Shambhu Singh Meena's case the review DPC has been convened and consequent to the recommendation of this review DPC vide order dated 23.2.1996, Pramila Surana was given promotion of year 1992-93 and Shri Doongardan Charan was given promotion of quota of 1988-89 by merit.
41. With regard to non joinder of necessary party Mr. Lodha submitted that the petitioner has no reason to make any grievance on this count particularly because the petitioner is in no way affected by the assignment of promotion quota of 1988-89 to the respondent so because even if this were not to be done the petitioner will remain junior to her and thus question raised by the petitioner in regard to non joinder or necessary parties is nothing more than a technically so that even if it is considered that some error on this count has occurred nevertheless that is not one which warrants interference of this court which can be expected to be interfered by this court in its extraordinary jurisdiction.
42. In relation to the preliminary objection raised by the petitioner regarding maintainability of appeal filed by Smt. Pramila Surana before the Tribunal on the question of res judicata, Mr. Lodha submits that principle laid down in. Section 11 of the CPC are not applicable to the proceeding before the Administrative Tribunal and thus the provision of Section 11 of CPC are not attracted. Similarly, the provisions of order 2 Rule 2 CFC also are not applicable. Even assuming that the order 2 Rule 2 is attracted in the present case this court will certainly not like to interfere on this ground in its equitable jurisdiction when the courts have declined to interfere on this ground even in exercise of their Appellate Jurisdiction.
43. In support of the contentions on the point of res judicata Mr. Lodha placed reliance on the judgment 1999 (2) J.T. 288 (5), 1995 (6) SCC 733 (6) and he submitted that on the question of limitation the Tribunal has rightly condoned the delay and in this regard placed reliance on 2000 JT SC 389 (7).
44. Mr. Lodha has challenged the locus standi of the petitioner as the order passed by the Tribunal as the petitioners are junior to the respondent Mrs. Pramila Surana since they have never claimed promotion for the year 1988-89 and are not even in the zone of consideration for the year 1988-89. In this regard Mr. Lodha placed reliance on the judgment reported in 1966 SC 828.
45. Heard rival submissions of the respective parties. In these writ petitions judgment of Rajasthan Civil Services Appellate Tribunal dated 25.10.99 has been challenged by the petitioner mainly on the grounds of res judicata and that of limitation.
46. The appeal was preferred before the Tribunal by the respondent No. 3 on the ground that Shri D.D. Outran is junior to the respondent No. 3 and had been given promotion of the year 1988-89 on 23.2.96 on the basis of merit, therefore, the respondent No. 3 also entitled to be placed above Shri D.D. Charan but the cause of action was available to the respondent No. 3 at the time of filing earlier appeal No. 138/96 before the Tribunal against the order dated 23.2.96 and which was decided by the Tribunal on 17.9.96 in which her claim even for the year 1991-92 has been rejected and the order dated 23.2.96 was maintained by the Tribunal and respondent No. 3 was found to be entitled for the year 1992-93 on the basis of seniority cum merit. The appellant- respondent No. 3 again by way of appeal No. 2080/98 has challenged the order dated 23.2.96.
47. Regarding maintainability of the appeal the petitioner raised objection before the Tribunal on the ground of constructive res judicata and limitation. On the question that since the order dated 23.2.96 has been challenged by the respondent No. 3 in appeal No. 138/96 and same has been decided on 17.9.96 again in view of the order 2 Rule 2 of CPC the petitioner should have asked to give the year 1988-89 on the ground that Shri D.D. Charan is junior to the respondent No. 4 in the earlier appeal itself.
48. A bare perusal of provision of Order 2 Rule 2 reveals that respondent No. 3 can sought relief from the Tribunal while challenging the seniority list dated 23.2.96 for the first time whereby the respondent was given promotion for the year 1992-93 on the basis of seniority cum merit basis but this relief has not been claimed by the respondent No. 3 and as per Order 2 Rule 2 in case of relinquishment of part of claim where a plaintiff omits to sue in respect of or intertionally relinquishes, any portion of his claim, he shall not aforewards sue in respect of the portion so omitted or relinquished. Here, in the instant case also the respondent No. 3 at the time of challenging the order dated 23.2.96 relinquished the other reliefs and since she herself relin-quished the reliefs suit is not maintainable for relief which has not been claimed in earlier suit.
49. I have also carefully gone through the judgment dated 25.10.96. The tribunal has not dealt with this question in view of the provision of Order 2 Rule 2 of CPC and held that the provision of CPC are not automatically applicable is the working of the Tribunal. Only for certain limited purposes, the powers of the Civil Court under the Civil Procedure Code have been conferred upon the Tribunal and the Tribunal wrongly arrived at the conclusion that the Tribunal is totally free to follow its own procedure.
50. I have also perused the provision of res judicata in Section 11 which, is quoted as under :-
"No Court shall try any suit or issue in which the matter directly and subsequently in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court."
51. A bare perusal of Section 11 of CPC Explanation 4 provides that Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substatantially in issue in such suit. In the instant case also subsequent appeal of respondent No. 3, does not lie as it was barred by principle of constructive res judicata as Explanation 4 of Section 11 of CPC clearly postulates that any ground of attack or defence which might have been taken at the time when earlier proceedings were being agitated, it will be deemed to have been a matter directly and substantially issue in earlier proceedings. The learned Tribunal without considering the principle of constructive res judicata and without considering Section 11 of CPC relied upon Section 22 of the Tribunal Act.
52. In Section 22 procedure and powers of Tribunals are laid down under Sub-section 1 of Section 22:-
A Tribunal shall not be bound by the procedure laid down in the Code of Civil Procedure 1908 but shall be guided by the principles natural justice and subject to the other provisions of this Act and of any rules made by the Central Government, the Tribunal shall have power to regulate its own procedure including the fixing of places and times of its inquiry and deciding whether to sit in public or in private. And relying upon Section 22 Section (1) the Tribunal held that it is not necessary to follow the procedure laid down under the CPC.
53. The Tribunal on this aspect has not properly considered this question. It is of-course true that the Tribunal has been given this power to regulate its own procedure but this procedure only includes the fixing of place and times and its inquiry in deciding whether to sit in public or in private where a specific constitute provides the procedure as provided under Section 11 and the principle of res judicata and the Tribunal ought to have been examined the matter in view of principle of constructive res judicata as this objection has been raised on behalf of the petitioner-respondent.
54. Thus, so far Section 22 of the Tribunal is concerned, it is not disputed that the Tribunal has power to regulate its procedure.
55. 1 have also perused the judgments referred before me on this point in M.S.M. Sharma v. Dr. Shree Krishna Sinha and Ors., AIR 1960 SC 1186, Daryav and Ors. v. State of U.P., AIR 1961 SC 1457 and State of W.B. v. Hemant Kumar Bhattarcharjee, AIR 1966 SC 1061.
56. On the question of limitation I have also carefully gone through the judgment of the Tribunal. Admittedly, the appeal was filed by respondent No. 3 beyond the period of limitation and no application for condonation of delay has been filed along with the appeal, and without giving explanation for condonation of delay the appeal could not have been maintained but the Tribunal has condoned the delay even when no application had been made for condonation of the appeal and the Tribunal has wrongly relied upon Rule 37 and entertained the appeal.
57. The Tribunal can only entertain the appeal in case respondent No. 3 filed an application under Section 5 of the Limitation Act which empowers a Court to admit any appeal or application after expiry of the period of limitation is pre- conditioned with satisfaction of that court about existence of sufficient cause, that could have prevented the applicant from filing the appeal or application as the case may be. Such satisfaction can only be reached on existence of some objective material. The Court does not enjoy the power of deciding the issue about admitting the appeal/application or suit beyond period of limitation unless and except subject to conditions prescribed under the law. Whereas; in the instant case, there was no material on record of Tribunal to find out objective satisfaction and committed error on the fact of record while entertaining the appeal of the respondent No. 3. And the limitation for tiling appeal is prescribed 60 days from the date of order from which the appeal is filed. Admittedly, the appeal has been filed in the year 1998 against the order dated 23.2.1996, thus, the appeal was barred by limitation. The judgments referred by the petitioners and ratio decided by the Apex Court and the High Court in aforesaid judgments are fully applicable to the instant case. The judgments referred by the petitioners in this regard are as under :
(1) Smt. Ujjam Bai v. State of Uttar Pradesh and Anr., AIR 1962 SC 1621.
(2) Hira Lal Loonkaransar Bikaner v. B.O.R., 2001(4) WLC (Raj.) 197.
(3) State of Raj. v. Smt. Usha Sahini and Anr., 1992 (2) WLC (Raj.) 579.
(4) AIR 1987 SC 1353(14).
58. The observation made by the Tribunal with regard to above average have also been carefully examined within the Tribunal has observed that the so far APARs are concerned there is not a shred of doubt that Smt. Surana has had a consistently meritorious record from 1981-82 to 1987-99 which is the relevant period for this appeal. In this period she has three outstanding APARs and four Above Average APARs which is considered very good. Thus, all the seven APARs are considered by the Tribunal in the meritorious category. The Tribunal also considered its earlier judgment in the case of KG Agarwal and found Smt. Surana's record as meritorious and in later decision of this Tribunal (Pramila Surana v. State of Rajasthan Appeal No. 138/96 this Tribunal perhaps fallen into error in holding that 'above average' cannot be equated with 'very good' and held that above average is at par with very good, and also referred certain portion of the judgment rendered by the Tribunal in the case of O.P. Shaharan v. State of Rajasthan Appeal No. 320/96 but has failed to consider the law laid down by the Apex Court wherein the Apex Court has held that person having seven out of seven outstanding APARs were to be treated as meritorious.
59. And this finding of the Tribunal is contrary to the provision of Explanation given under Rule 28-B( 11) particularly when alter incorporating the provision, the Apex Court in the case of Shambhu Singh Meena has held that prior to 1991-92 for promotion on the basis of merit one should possess 7 out of 7 consistently outstanding or very good APARs of the proceeding years.
60. The explanation added under Rule 28-B sub Clause (11) of Rajasthan Administrative Service Rules, 1954 on 30.11.1991 reads as under :-
"For the purpose of selection for promotion on the basis of merit, no person shall be selected if he does not have outstanding or very good record in at least five years out of 7 years preceding of the year for which DPC is held."
61. After the Explanation was added some controversies raised as to whether it had having retrospective effect or not. This controversy was resolved by the Apex Court in the case of Shri Shambhu Singh Meena (15) and it was held that prior to 1991-92 for promotions on the basis of merit one should possess 7 out of 7 consistently outstanding or very goods APARs of the preceding years.
62. In view of the direction issued in the case of Shambhu Singh Meena review DPC was held on 23.2.96 by which respondent No. 3 was allotted the vacancy of the year 1992-93 for promotion in the selection on the basis seniority-cum-merit.
63. The Tribunal has also not properly considered the record of respondent No. 3 which shows that her APARs for the year 1984-85 is above average and second part of 1985-86 is good, thus, in view of the Explanation under Rule 28-B (11) the respondent does not come within the category of meritorious as per the law laid down by the Apex Court. The Tribunal has erred to treat above average equivalent to very good and while making observation the Tribunal totally ignored the law laid down in Govind Narain's case.
64. The Tribunal also not properly examined the judgment rendered by this court in review petition by the Division Bench of this Court wherein the Division Bench has clarified that the review petitioners were not parties will not be affected by the judgment and the matter between the petitioner and respondent was finally adjudicated.
65. It is also seen that the Tribunal has arrived at a wrong conclusion that the provisions of res judicata as well as the provision of Order 2 Rule 2 does not apply to the instant case.
66. Therefore, as discussed and observed hereinabove, the Tribunal not only seriously erred in not considering the provisions of Section 11 of CPC and Order 2 Rule 2 but also seriously erred in observing that above average is equivalent to very good which is contrary to the judgment rendered by the Apex Court in Shambhu Singh Meena's case.
67. Consequently, the order passed by the Rajasthan Civil Services Appellate Tribunal in the appeal No. 2080/98 Smt. Pramila Surana v. State of Rajasthan dated 25.10.99 is quashed, and set aside. Accordingly, the writ petitions are allowed with no order as to costs.
68. Consequently, the interim stay order granted by this court dated 28.4.2000 is rejected.
69. In the present matter Learned Additional Advocate General Mr. Mohm. Rafiq moved an application seeking clarification of the order dated 28.4.2000 passed by this Court whereby this Court has directed the respondent State not to make further exercise in regard to promotion in the present matter till next date. In this regard it is observed that as the final order has been passed and interim order itself has been vacated no order is required to be passed on the application filed by the respondent State. The application is therefore, stands disposed of.