Rajasthan High Court - Jaipur
Madan Lal Sharma vs Rajasthan High Court, Jodhpur & Ors on 25 January, 2010
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION No.2485/1996. Madanlal Sharma Versus Rajasthan High Court Jodhpur & Anr. Date of Order:- January 25, 2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri G.K. Garg for the petitioner. Shri V.S. Gujar for the respondents. ***** BY THE COURT:-
This writ petition was filed by the petitioner challenging Order No.107 dated 7/4/1975 by which, petitioner who is working on the post of Office Superintendent, was reverted to the post of LDC for a period of four years with immediate effect. However, his pay which he was drawing was protected for this period but with the rider that he would not be eligible for being promoted on the post of UDC for the said period. The said order was passed by the District and Sessions Judge, Bharatpur. Petitioner filed review petition against the aforesaid order which was partly allowed vide order dated 10/9/1975 (Annexure-2). It was directed that instead of protecting pay of the petitioner on the post of UDC, he shall be entitled to draw maximum salary of LDC. Petitioner filed appeal against the aforesaid order before the Registrar of Rajasthan High Court which was partly allowed vide order dated 3/9/1976 to the extent that he shall now be reverted to the post of UDC and shall draw the maximum salary of the post of UDC. During pendency of the present writ petition, petitioner was complaining that he has not received the copy of Order No.107 dated 7/4/1975 which fact although was contested by the respondents. Petitioner was permitted to amend the writ petition so as to assail the validity of Order No.107 dated 7/4/1975. The matter was heard on merits.
2) Shri G.K. Garg, learned counsel for petitioner has argued that Order No.108 despite being the consequential order of Order No.107, is not in conformity therewith. Order No.107 in fact directed that petitioner would be reverted to the post of LDC for a period of four years and for that he shall be treated as UDC, however, the pay which the petitioner was drawing shall remain protected. When Order No.108 provides that he shall not be eligible for being promoted as UDC during this period of four years. Learned counsel submitted that this order merely directed that petitioner would not be eligible promotion as UDC during this period of four years and after expiry of four years his promotion shall automatically stand restored to the UDC which post he was holding otherwise. Learned counsel for the petitioner made an alternative argument that even if it is assumed though contested, that petitioner was to be again considered for promotion on the post of Office Assistant, which was the next promotional post of UDC, respondents were under obligation to consider his case again after expiry of four years i.e. after 7/4/1979 when the currency of that year of penalty expired but despite specific case set up by the petitioner, they have not bothered to file reply to the writ petition specifically answering this question.
3) Shri V.S. Gujar, learned counsel for respondents opposed the writ petition and submitted that the order in appeal passed by the Registrar of the Rajasthan High court shall have to be read conjointly with Orders No.107 & 108 of the penalty order dated 7/4/1975. When part of the order categorically states that order of penalty is modified only to the extent that instead of reverting the petitioner on the post of LDC, he shall stand reverted to the post of UDC, other stipulation of order having not been interfered with petitioner would not be entitled for automatic restoration of promotion on the post of Office Assistant. He will have to face another selection. Learned counsel for petitioner submits that one post of Office Assistant became available on account of compulsory retirement of Shri R.C. Garg on 1/10/1975 and petitioner was also considered along with Ramjilal but since petitioner was found not suitable in view of currency of penalty, Shri R.K. Sharma was granted promotion. Learned counsel for respondents further submitted that in response to the communication of the Registrar Rajasthan High Court addressed to the District Judge Bharatpur dated 29/2/1984 (Annexure-5), District Judge Bharatpur vide communication dated 18/10/1984 (Annexure-R/3) informed the Rajasthan High Court with a copy thereof to the petitioner that no post of Assistant was vacant from 7/4/1979 till 29/2/1980 when petitioner was retired on superannuation, claim of the petitioner for promoting as Assistant therefore could not be considered.
4) Learned counsel for petitioner has rejoined and submitted that when petitioner was not considered for promotion during the aforesaid period, he filed writ petition before this court being SBCWP No.1772/1995 which was decided vide order dated 16/8/1995 directing respondents to consider his representation and to pass appropriate orders within three months. Pursuant to this, petitioner submitted representation to the District Judge Bharatpur on 24/2/1996 who decided the same vide order dated 4/11/1996 in view of Rule 33(2)(b) of the Rajasthan Service Rules, 1951 observing that petitioner could not be restored back to the post of next promotion as the post of Office Assistant was not available. In view of the fact that pursuant to the order deciding representation of the petitioner which was not conveyed to him, the plea now set up by the respondents cannot be accepted especially when Registrar Rajasthan High Court vide communication dated 29/2/1984 (Annexure-5) directed the District Judge Bharatpur to consider the case of the petitioner for promotion on the post of Office Assistant on expiry of four years. Registrar Rajasthan High Court vide further communication dated 28/3/1985 (Annexure-6) categorically directed the District Judge Bharatpur to consider the case of promotion of petitioner on the post of Assistant from 7/4/1979 on the basis of his suitability and if he is found suitable then he may be promoted after reverting the official working on the post of Office Assistant from 7/4/1979 to 28/2/1980.
5) In view of above, I find no reason or cogent ground with the respondents not to consider the case of the petitioner for promotion inspite of the clear direction of the High Court on the administrative side. Non-availability of vacancy could not be taken as a reason for not considering case of the petitioner for promotion.
6) In the result, writ petition is allowed. Respondent No.2 is directed to consider the case of petitioner for promotion on the post of Office Assistant from 7/4/1979 on the basis of his suitability and if he is found suitable then he may be promoted after reverting the official working on the post of Office Assistant from 7/4/1979 to 28/2/1980 with all consequential benefits.
7) Compliance of the judgment shall be made within a period of three months from the date copy of this order is produced before the respondents.
(MOHAMMAD RAFIQ), J.
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