Rajasthan High Court - Jodhpur
Sriram Barupal And Anr vs State Of Rajasthan And Ors on 20 November, 2021
Author: Arun Bhansali
Bench: Arun Bhansali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 1024/2018
1. Sriram Barupal, Son Of Shri Laxman Ram, By Caste
Barupal, Resident Of House No. 153, Nehru Colony,
Ratanada, Jodhpur.
2. Smt. Leela Barupal, Wife Of Shri Sriram Barupal, By
Caste Barupal, Resident Of House No. 153, Nehru Colony,
Ratanada, Jodhpur.
----Petitioners
Versus
1. The State Of Rajasthan, Through The Principal Secretary,
Home Department, Government Of Rajasthan, Jaipur.
2. The Director General Of Police, Government Of Rajasthan,
Jaipur.
3. The Police Commissioner, Jodhpur.
4. The Deputy Commissioner Of Police, Head Quarter And
Traffic, Jodhpur Commissionerate, Jodhpur.
----Respondents
For Petitioner(s) : Mr. S.S. Choudhary.
For Respondent(s) : Mr. Anil Bissa.
HON'BLE MR. JUSTICE ARUN BHANSALI
Order 20/11/2021 This writ petition has been filed by the petitioners- husband & wife aggrieved against the action of the respondents, wherein on account of their fathering of/giving birth to third child after the cut-off date, they have been visited with penalty of deferment of promotion for five years as well as deferment of their entitlement of ACP also for five years.
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(2 of 4) [CW-1024/2018] In the case of petitioner No.1 - Sriram Barupal, by order dated 14.07.2014 (Annex.-3), his consideration for promotion was ordered to be stayed for five years from 2011-12 to 2015-16 and by order dated 15.04.2015 (Annex.-5), again his entitlement to ACP was ordered to be deferred for five years.
For the petitioner No.2 - Smt. Leela Barupal, by order dated 02.12.2015 (Annex.-6), her consideration was deferred for the year 2012-13 to 2017-18, however, despite her claim made by Annex.-7 for grant of 2 nd ACP, the same was also not accorded to her though there is no specific order denying her 2nd ACP.
Learned counsel for the petitioners made submissions that action of the respondents in deferring the promotion for five years and stopping the ACP also for five year is contrary to judgment in the case of Parbat Singh v. State of Raj. & Ors.: SBCW No. 10159/2015, decided on 29.11.2016 and, therefore, action of the respondents in this regard deserves to be set aside.
Learned counsel appearing for the respondents made submissions that as the action is being taken under the two different circulars pertaining to the grant of promotion and ACP respectively, the same cannot be faulted.
In the case of Parbat Singh (supra), a coordinate Bench of this Court considering the above aspect, came to the following conclusion:-
"Though the said circular does not speak about the deference of ACP on account of birth of third child after the cut off date but parity is sought to be drawn by the respondents in grant of ACP and promotion as being analogous actions. If a person is given the benefit of ACP rather than the benefit of promotion, both would have the same financial implication. Indisputably the petitioner has been inflicted with one punitive (Downloaded on 20/11/2021 at 08:50:25 PM) (3 of 4) [CW-1024/2018] action of deferment of ACP for a period of 5 years because of the fact that he fathered a third child after 1.6.2002. Having been penalised in this manner once, by no means, the respondents could have inflicted another adversity on the petitioner for the same cause by denying him opportunity to join on the promotional post. Furthermore, the restriction which is imposed in the circular dated 20.6.2001 is to the effect that a Government employee shall be deferred by 5 recruitment years for promotion from the date to which promotion becomes due if he/she has more than two children on or after 1.6.2002. Thus, the restriction is on the consideration for promotion."
The Court clearly opined that the respondents having inflicted one punitive action of deferment of ACP for a period of 5 years because of the fact that the employee fathered a third child after 13.08.2004 and having been penalised, by no means, the respondents could have inflicted another adversity on the petitioner for the same cause.
In that view of the matter, the issue raised by the petitioner is squarely covered by the judgment in the case of Parbat Singh (supra).
So far as the submissions made by learned counsel for the respondents regarding taking action under two different orders is concerned, the mere fact that two different orders dealing with promotion as well as ACP are in existence, does not mean the same has to be applied to the same employee.
The deferment of either promotion or ACP, as the case may be, is required to be applied to the subject employee, however, both the circulars cannot be applied to the same employee, for the same cause.
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(4 of 4) [CW-1024/2018] In view of the above discussion, the petition filed by the petitioners is allowed.
Insofar as the petitioner No.1 is concerned, the order dated 15.04.2015 (Annex.-5) is quashed and set aside. The petitioner would be entitled to the consequential benefits in accordance with law.
So far as the petitioner No.2 is concerned, she would also be governed by same principle i.e. she would be entitled to ACP as and when the same becomes payable to her.
The respondents are directed to do the needful within a period of four weeks from the date a copy of this order is placed by the petitioners with the respondents.
(ARUN BHANSALI),J 94-PKS/-
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