Rajasthan High Court - Jodhpur
The Central Cooperative Bank Ltd And Anr vs Daulat Ram And Ors on 22 May, 2019
Author: Dinesh Mehta
Bench: S. Ravindra Bhat, Dinesh Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Special Appeal (Writ) No. 329/2017
1. The Central Cooperative Bank Ltd. Jodhpur Through Its
Managing Director Head Office, Jodhpur.
2. The Executive Officer Bank Jodhpur, Central Cooperative
Bank Ltd., Jodhpur.
----Appellants
Versus
1. Daulat Ram S/o Sh. Choga Ram Ji, R/o Ghodo Ka Chowk,
Ghanchiyon Ka Bas, Jodhpur Raj.
2. The State Of Rajasthan Through The Deputy Secretary To
The Government Of Rajasthan, Department Of
Cooperative Secretariat Jaipur Raj.
3. Sh. Jeev Raj Panwar S/o Sh. Hari Ram Panwar, R/o G-
146, Behind Bijali Ghar, Pratap Nagar, Jodhpur.
----Respondents
For Appellant(s) : Mr. Kamal Dave.
For Respondent(s) : Mr. S. K. Malik.
HON'BLE THE CHIEF JUSTICE MR. S. RAVINDRA BHAT
HON'BLE MR. JUSTICE DINESH MEHTA
Judgment Reserved on :: 06/05/2019 Pronounced on :: 22/05/2019 (Per Hon'ble Dinesh Mehta J.) The present intra-court appeal is directed against the judgment dated 07.02.2017, passed by the learned Single Judge of this Court whereby writ petition filed by the respondent No.1- writ petitioner was allowed and the bank was directed to conduct review Departmental Promotion Committee for 13 posts of Group-D Officers, while following roaster system. (Downloaded on 28/06/2019 at 05:57:59 AM)
(2 of 8) [SAW-329/2017] As per Rule 41 of the Rajasthan Cooperative Assistance Rules 1966, the post of Group-D Officer is required to be filled as under :
"(a) 60% by promotion out of which
(i) 50% by seniority cum merit
(ii) 50% by merit only from cadre of clerk
(b) 40% by direct recruitment."
On the relevant date, the total cadre strength of Group-D Officer was 19, out of which 11 posts (below 60%) were meant to be filled by promotion while eight posts were to be filled by direct recruitment. For the purpose of filling 11 promotional posts of Group-D Officers, a Departmental Promotion Committee (DPC) was convened for recommending suitable candidates from amongst clerks.
The DPC in its meeting held on 25.09.1997, recommended to give promotion to following 10 persons :
"1. Shri G.M. Mehta - On the basis of Seniority-cum-merit
2. Shri Amlaram Sirvi - On the basis of Seniority-cum-merit
3. Shri Nain Singh - On the basis of Seniority-cum-merit
4. Shri Poonaram Choudhary - On the basis of merit
5. Shri Prabhulal Choudhary - On the basis of merit
6. Shri Ramrakh Choudhary - On the basis of merit
7. Shri Jairamaram -SC : On the basis of Seniority-cum- merit
8. Shri Bhawani Shankar Meena-ST - On the basis of Seniority-cum-merit
9. Shri Jeevraj-SC - On the basis of merit
10. Shri Batilal Meena-ST - On the basis of merit"
Decision regarding a candidate namely Nar Singh Bhandari was kept in the sealed cover in wake of departmental enquiry pending against him. Besides this, the DPC prepared a reserve panel of following 5 persons :
1. Shri Lumbaram Choudhary
2. Shri Mehraram Choudhary
3. Shri Harchandram Vishnoi
4. Shri Tilaram
5. Shri Lakharam (Downloaded on 28/06/2019 at 05:57:59 AM) (3 of 8) [SAW-329/2017] In furtherance of the DPC held on 25.09.1997, an order dated 26.09.1997 came to be passed according promotion to the above referred 10 persons to the post of Group-D Officers.
It is to be noticed that on 26.09.1997 itself, another order came to be passed by the respondents whereby Lumbaram Choudhary and Meharam Choudhary were also promoted to the post of Group-D Officer.
Faced with such situation, the petitioner filed a writ petition in this Court inter alia with a grievance that the respondents had promoted Jeevraj Panwar, who was below him in the seniority list and also showing concern that they had filled in 13 posts without maintaining roaster point and also without giving due consideration to the SC category candidate. Petitioner contended that according to 100 point Roaster, 13 points goes to Scheduled Caste Category and thus for the 13th post, he had to be promoted. He relied on two orders dated 26.09.1997, pointing out that 10 persons were promoted by the first order (Annex.P/3); and 2 were promoted by the second order (Annex.P/4) and one Nar Singh Bhandari, was also subsequently promoted, whose consideration was earlier kept in a sealed cover.
A reply to the writ petition was filed by the respondents and it was indicated that out of the 10 persons promoted by the first order, the first candidate namely G. M. Mehta declined to accept his promotion by way of writing a letter dated 26.09.1997, whereas Nar Singh Bhandari was promoted after completion of enquiry in his favour.
Learned Single Judge after hearing contentions of rival parties allowed the writ petition and quashed the recommendations of DPC dated 25.09.1997 and directed the (Downloaded on 28/06/2019 at 05:57:59 AM) (4 of 8) [SAW-329/2017] appellant-Bank to conduct review DPC for all the 13 posts while strictly following the roaster system, in following terms :
"Taking into consideration the aforesaid aspects, the recommendations of DPC which met on 25.09.1997 are quashed and set aside and it direct that the Bank will conduct review DPC for all 13 posts and follow the roster system and also strictly follow the seniority cum merit and merit criteria after taking into consideration the petitioner as well as respondents case and pass necessary orders within the period of three months from today. Till then the promotion orders dated 26.09.1997 should remain in force. If on the basis of recommendations of the review DPC, the petitioner name finds place for promotion list, he shall be given all consequential benefits. So far as the respondent No.4 is concerned, he will be continue on the post and if the DPC also finds him eligible for promotion then he will be continue further. On finding that for any good reasons the respondent No.4 is not to be promoted, then no action shall be taken for recovery and he will considered for future promotions."
Mr. Kamal Dave learned counsel for the appellant submitted that learned Single Judge has erred in allowing petitioner's writ petition. He submitted that out of the cadre strength of 19, only 11 posts were available to be filled in by promotion and as such decision of learned Single Judge to convene review DPC for promotion on 13 posts for Group-D Officer was erroneous.
Upon Court's query as to why another order dated 26.09.1997 came to be passed, promoting Lumba Ram Choudhary and Meharam Choudhary, making the total number of promotion to 13, when only 11 posts were available, Mr. Dave informed that (Downloaded on 28/06/2019 at 05:57:59 AM) (5 of 8) [SAW-329/2017] since the candidate shown at Serial No.1-Shri G. M. Mehta declined to avail promotion, it was decided to operate reserve panel and Lumba Ram Choudhary was promoted. At the same time, as a result of promotion of some Group-D Officers to Group-C Officers another post became available with the appellant, against which Mehra Ram Choudhary was accommodated.
According to the appellants, Lumba Ram Choudhary and Mewaram Choudhary were promoted by order dated 1.10.1997 and not by order dated 26.09.1997 as was claimed by the petitioner. Learned counsel for the appellant invited our attention towards an additional affidavit filed on 26.10.2018, with a view to show that above referred two persons have joined on the promotional posts in pursuance of the order dated 1.10.1997.
Mr. Malik, learned counsel for the respondents, on the other hand, submitted that two orders (Annex.P/3 and P/4) clearly reveal that though the appellant-bank had considered promotion for 13 posts, they ignored the roaster point inasmuch as the 13 th post was to be given to an SC candidate, for which the writ petitioner (an SC Candidate) was entitled, while supporting the order of learned Single Judge.
We have heard learned counsel for the parties and perused the material available on record.
It is not in dispute that out of the list of persons recommended for promotion by the DPC on 25.09.1997, one G. M. Mehta refused to join on promotional post. As such, Lumba Ram Choudhary, the person mentioned at serial No.1 in reserve panel No.1, being entitled for promotion, was rightly given promotion. (Downloaded on 28/06/2019 at 05:57:59 AM)
(6 of 8) [SAW-329/2017] We do not find any infirmity in the order dated 26.09.1997 so far as it relates to giving promotion to Lumba Ram Choudhary.
However, the stand of the appellant that on account of promotion of persons from Group-D to Group-C on 1.10.1997, two more posts of Group-D Officers became available to be filled in by promotion, is absolutely unsustainable.
For the purpose of promotion, the DPC can consider only such number of vacancies, as were notified for promotion. It is not in dispute that when the DPC met on 25.09.1997, only 11 posts were available to be filled in by promotion. In case two or more vacancies arose, as a result of promotion of persons from Group-D to Group-C, the appellant-Bank was required to notify the posts available for promotion. These vacant posts could not be filled in from the reserve panel of DPC dated 25.09.1997.
If the factum of promotion of Officers from Group-D to Group-C was to be taken into consideration, then in that case 5 posts became available, as is evident from perusal of minutes of DPC dated 25.09.1997 filed along with the additional affidavit dated 23.04.2017.
Be that as it may, we are of the firm view that in furtherance of DPC dated 25.09.1997, the appellant could promote only 11 persons, as the recommendation was made for 11 posts, which were available to be filled by promotion.
The learned Single Judge treated 13 posts as available for promotion on the basis of two orders (Annex.P/3 and P/3), by which 10 and 2 persons and recommendation of 1 candidate was kept in sealed cover. While doing so, the appellant's version that 1 out of the first 10, viz. G. M. Mehta had foregone his promotion, was over looked.
(Downloaded on 28/06/2019 at 05:57:59 AM)
(7 of 8) [SAW-329/2017] Resultantly Lumba Ram Choudhary, the first candidate in the reserve panel was correctly promoted, against the post falling vacant due to refusal by G. M. Mehta. But in any case, Mehra Ram Choudhary being No.2 in the reserve panel, could not have been promoted.
We find that the writ-petitioner had not impleaded the two affected persons namely Lumba Ram Choudhary and Mehra Ram Choudhary, who were promoted by order dated 26.09.1997. Respondent No.1-writ petitioner had approached this Court with a case that as the Bank has promoted 13 persons, his candidature for promotion ought to have been considered at least qua 13th post meant for SC Candidate, on the basis of roaster point.
According to us, the appellant-Bank could have promoted only 11 persons and thus, promotion to Lumba Ram Choudhary in place of G. M. Mehta can be said to be in order, but in any case, promotion to Mehra Ram Choudhary was illegal and cannot be countenanced.
An appraisal of facts noticed above reveals that the appellant-Bank had promoted 12 persons in all, and thus the finding recorded by the learned Single Judge that the Bank had promoted 13 persons is contrary to record and the consequential finding that the respondent-writ petitioner (an SC candidate) was to be considered for the 13th post on the basis of roaster points also turns out to be incorrect.
The appeal is allowed and the impugned order of learned Single Judge dated 07.02.2017 is quashed and set aside.
As a parting remark, we wish to clarify that though we have found that promotion to Mehra Ram Choudhary by order dated 26.09.1997 was not in accordance with law, yet noticing the fact (Downloaded on 28/06/2019 at 05:57:59 AM) (8 of 8) [SAW-329/2017] that he is not before us, we do not propose to pass any order prejudicial to his interest, more particularly because there is no challenge to his promotion.
(DINESH MEHTA),J (S. RAVINDRA BHAT),CJ
48-Aarora/-(Reserved)
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