Rajasthan High Court - Jaipur
Rafiq Ahmed vs State Of Raj. And Ors. on 17 February, 1997
Equivalent citations: 1997(2)WLC410, 1997(1)WLN204
JUDGMENT B.J. Shethna, J.
1. This petition was filed before this Court on 13.7.90 by the petitioner. In para H/i/a it was initially prayed that:
the ACRs for the year 1984-85, 1986-87, and 1988-89 are all illegal and the same be quashed, so also the orders rejecting representations of the petitioner against the adverse entries.
2. In para G/i/b it was prayed that:
respondents may be directed not to place before the Departmental Promotion Committee the adverse entries aforesaid.
3. In para G/i/c it was prayed that:
It for any reason adverse entries are placed before the DPC and DPC rejects the Candidature of the petitioner and consequent appointments are made to the exclusion of the petitioner the orders making appointments by promotion made may all be declared invalid and may be quashed and the Respondents be directed to give to the petitioner all benefits consequential thereto.
4. On 16.7.90 this Court (Justice Milap Chand Jain, as he then was) issued notice to the other side on the main writ petition and on stay petition passe an ex parte stay order of keeping one post of Joint Registrar vacant. The said order was confirmed on 15.10.1990 till the final disposal of this writ petition. Except this no other interim order was passed in favour of the petitioner. When the petition was filed no representation to the ACR of 1988-89 was made by the petitioner though it was received on 23.6.1990, but it was stated in the petition that he proposed to make a representation as there was enough time for it. Infact the representation was made lateron i.e. on 24.7.90 after filing of the petition by the petitioner, which was also came to be rejected on 6.12.1990. In 1991, 12 others were found fit to be promoted by the D.P.C. but the petitioner was not promoted to the post of Joint Registrar. One more adverse entry of 1989-90 was communicated to the petitioner on 13.1.1993 against which a representation was made on 2nd March, 1993 which came to be rejected on 10.6.1993. Instead of challenging the same by a fresh writ petition the petitioner thought it fit to amend to writ petition. The amendment was granted and the amended writ petition is now before this Court. In para H/i/a it is prayed that:
It may be declared that ACRs for the years 1984-85, 1986-87, 1988-89 and 1989-90 are all illegal and the same be quashed, so also the orders rejecting representations of the petitioner against the adverse entries.
5. In para H/i/b it is prayed that:
respondents may be directed not to place before the Departmental Promotion Committee the Adverse entries aforesaid.
6. In para H/i/c it is prayed that:
The respondents be directed to accord promotion to the petitioner to the post of Joint Registrar on and from 23.9.1991 and respondents may further be directed to give to the petitioner all benefits consequential thereto.
7. At this stage it may be stated that DPC in its next meeting held for 1993-94 found the petitioner suitable and accordingly he was promoted as Joint Registrar from 5th December, 1994. This fact has come in reply affidavit filed by the respondents.
8. On 22.10.1996 an application under Rule 161 of the Rajasthan High Court Rules (for short the Rules) was filed by the petitioner for expeditious disposal. Rule 161 reads as under:
161. Petition for expedition disposal-If a party desires any particular petition or application to be disposed of expeditiously, he should present a separate stamped petition in that behalf and the urgent petition or application will thereupon be placed by the Registrar before the Court as early as possible.
9. From the order sheet it appears that the submission was made on 30.6.1996 by the office on that application for early disposal of the case and on 31.10.1996 a note was made that, "if approved, the application may be listed before the Hon'ble C.J. on 6.11.1996". However, the order came to be passed by the Hon'ble Chief Justice on 9.12.1996 as under:
9.12.96 Hon'ble the Chief Justice Mr. Vivek Gupta, for the petitioner.
Let this matter be assigned to Hon'ble Mr. Justice B.J. Shethna for an early disposal in accordance with law, preferably within 2 months from this date.
Sd/- (M.G. MUKHERJI), C.J.
10. Rule 54 of the High Court Rules reads as under:
54. Constitution of Benches.-Judges shall sit alone or in such Division Courts, as may be constituted from time to time and do such work, as may be allotted to them by order of the Chief Justice or in accordance with his direction.
11. It is for the learned Chief Justice to arrange the roaster and assign business to the Hon'ble Judges of this Court and accordingly the Judges have to sit alone or in Division Courts as may be constituted from time to time and do such work allotted to them by the Hon'ble Chief Justice or in accordance with his directions. These are the administrative powers of the learned Chief Justice. This Court is allotted final disposal of non-service writ petition. The work of final hearing of service matters has been allotted to another learned Judge.
12. Rule 161 of the High Court Rules clearly provides that the learned Registrar of this Court has to place any particular petition or application to be disposed of expeditiously before the Court, Meaning thereby, the application for early disposal should be put up by the registry before the concerned court taking up such matters. On filing of the application for early disposal the submission was made by the office, "if approved the application may be listed before the Hon'ble C.J. on 6.11.96." It was approved and accordingly it was placed before Hon'ble the Chief Justice on a judicial side on 9.12.1996. The Hon'ble Chief Justice while disposing of that application for early disposal of the main writ petition passed an order in open Court on a judicial side, as stated by Mr. Saluja, that this matter be assigned to B.J. Shethna, J. (this Court) for early disposal in accordance with law, preferably within two months from the date.
13. It is no doubt true that on administrative side the Hon'ble Chief Justice has got full powers as provided under Rule 54 of the High Court Rules to allot any type of work to the Hon'ble Judges of this Court or to assign any matter to any Judge. But the above order was not passed by the Hon'ble Chief Justice on administrative side. It was passed on judicial side. As a Chief Justice he is only the administrative head and except that there is no difference between him and other Judges. He is first among equal with other Judges. Neither he is superior nor any other Judges are subordinate to him.
14. In my humble opinion the Hon'ble Chief Justice or any Hon'ble Judge could not have passed such order and that too with observations to dispose of the case in accordance with law preferably within two months from the date of passing of the order. It goes without saying that the matters are required to be decided only in accordance with law by all Courts. No time limit can be fixed for the disposal of any particular case by the Hon'ble Chief Justice even on administrative side, much less on a judicial side. On appellate side also it is very much doubtful whether such directions could be issued by the appellate Court.
15. Under the aforesaid circumstances I have to discharge my painful duty to bring to the notice of the Registry about the correct position of the matter, therefore, I have narrated all this in this order. It is hope and trust that in future the registry will be more careful and adhere to strict compliance of the Rule 161 of the High Court Rules and place any such type of applications for early disposal only before the concerned court to which the business is assigned by the Hon'ble' Chief Justice as per the roaster.
16. However, the Hon'ble Chief Justice has already passed the above order in this case, therefore, out of sheer respect to the Hon'ble Chief Justice, as desired by him as an exceptional case, I have heard the learned Counsel for the petitioner Shri Saluja and shri Sangeet. Lodha for the respondents on merits and I decided this case in accordance with law only.
17. Learned Counsel Shri Lodha for the respondents raised preliminary objection regarding the maintainability of the writ petition. He submitted that the petitioner could not have filed this petition and challenge the ACRs of 1984-85, 1986-87, 1988-89 and 1989-90. He submitted that the petitioner ought to have filed separate writ petitions for ACRs of different years. He submitted that initially the petitioner had challenged the ACRs of 1984-85, 1986-87, and 1988-89 only but lateron not only he challenged the decision taken by the authorities rejecting his representation against his ACRs of 1988-89 but also ACRs of 1989-90 and rejection order of representation. He also submitted that ACR of the 1984-85 were communicated to the petitioner on 25.4.1987 against which representation was made on 17.3.1987 which was rejected on 8.6.87. In a similar manner ACR of 1986-87 was communicated to the petitioner on 5.8.88. against which the representation was made on 26.8.1988 which was rejected on 30.5.89. He also submitted that petitioner could not have challenged the ACRs of 1984 85, 1985-86 after so many years in a petition filed in 1990. He submitted that the petitioner was lateron promoted on 5.12.1994 and, therefore, this petition for the relief that he should be promoted to the post of Joint Registrar has become infructuous and no relief can be granted in this petition. He submitted that this petition is also required to be rejected on the ground of alternative remedy of statutory appeal available to the petitioner before the Rajasthan Civil Services Appellate Tribunal. Mr. Saluja, however, tried to address the Court on merits. He submitted that on merits the petitioner has got a good case. The ACRs of the year 1985-86, 1986-87, 1988-89 and 1989-90 were unjust as the petitioner could not make an effective recovery of the revenue in view of the Govt. circular. On merits, learned Counsel Shri Lodha submitted that from the record it is clear that the petitioner was not properly recovering the Government revenue, therefore, he was communicated ACRs but he had not improved till 1993. He also submitted that his detail representations were duly considered by the authorities and rejected as they were found without any substance. He submitted that this Court cannot sit in appeal over the decision taken by the disciplinary authority and the appellate authority. The same can be challenged only on the ground of malafide which is not the case of the petitioner.
18. I find lot of substance and force in the preliminary objection raised by Mr. Lodha regarding maintainability of the writ petition. In my opinion the petitioner could not have challenged the ACR of three different years in one joint petition. In fact the petitioner challenged the ACR of 1989-90 also by amending the writ petition instead of filing a separate writ petition. There was a separate cause of action for each year. Every year DPC used to meet, therefore, the petitioner ought to have challenged the ACRs for all these four years by Way of separate writ petitions. Hence, firstly on this ground this petition is required to be dismissed.
19. Mr. Lodha was very much right in submitting that there is a gross delay in challenging the ACRs of 1984-85 and 1986-87. The petitioner challenged the same in this petition in 1990 along with the ACRs of 1988-89. He submitted that if the petitioner had challenged the ACRs of 1984-85 and 1986-87 in separate petitions this Court would not have entertained this petition on the ground of delay. The petitioner has filed this writ petition in 1990 and challenged the same alongwith the ACRs of 1988-89 therefore on the ground of gross delay this writ petition is required to be rejected.
20. In my opinion the petitioner cannot challenge the ACRs of 1989-90 in a petition which was filed in 1990 as the same were communicated to him only in 1993. Against which representation was also made and rejected on 10.6.1993 by the authority. He ought to have filed separate writ petition and should not have amended the writ petition. Hence, on this ground also this petition is required to be rejected.
21. During the pendency of this writ petition the petitioner is already promoted to the post of Joint Registrar on 5.12.1994, therefore, Mr. Lodha was very much right in submitting that practically this matter has almost become infructuous.
22. This petition is also required to be rejected on the ground of alternative, effective remedy of appeal available to the petitioner.
23. On merits also Mr. Lodha was very much right that this Court cannot sit in appeal over the decision of the disciplinary authority communicating the ACRs and rejecting representations made against it. The same can only be challenged on the ground of malafide, which is not there in this writ petition. The facts also show that the petitioner was a lazy and lethargic officer in recovering the Govt. revenue, may be because he was posted in tribal area at that time. Therefore, it cannot be said that the authority was not justified in communicating the ACR to the petitioner for the year 1984-85, 1986-87, 1988-89 and 1989-90 and rejecting his representations.
24. In view of the above discussion, I do not find any merit or substance in this petition and the same is hereby dismissed with no costs.