Rajasthan High Court - Jaipur
Smt. Pushpa Dave vs Rajasthan High Court on 2 February, 2001
Equivalent citations: 2001(1)WLC761, 2001(2)WLN5
Author: H.R. Panwar
Bench: H.R. Panwar
ORDER Lakshmanan, C.J.
1. This writ petition has been filed by the petitioner to consider her case for promotion to the post of Upper Division Clerk w.e.f. 23.7.85 in the light of the decision given by this Court in case of Mohammed Rafie] Khan on 6.9.93 vide S.B. Civil Writ Petition No. 3486 of 1991 (1) and grant promotion to the petitioner to the post of Upper Division Clerk w.e.f. 23.7.85.S.B- Civil Writ Petition No. 3486 of 1991 (supra) was disposed of by Hon'ble Shri G.S. Singhvi, J. on 6.9.1993. The learned Single Judge after perusing the entire record was of the opinion that the Departmental Promotion Committee has acted arbitrarily in making recommendations for promotion to the post of Upper Division Clerk, and that, it will not be proper to pass any adverse order which would affect other persons who were not impleaded as parties to the writ petition. Learned Single Judge was of the view that the petitioner therein had been denied fair consideration for promotion by the Departmental Promotion Committee on the recommendation on which the order dated 23.7.1985 was issued, in the result, the learned Single Judge allowed the writ petition in part preferred by petitioner Mohammed Rafiq Khan and further declared that supersession of the petitioner at the time of issue of promotion order dated 23.7.85 was arbitrary and illegal. However the learned single Judge directed the respondent to reconsider the case of the petitioner for promotion as Upper Division Clerk with effect from 23.7.85 and while re-considering the case of the petitioner, the punishments and special report shall not be taken into consideration. This order dated 6.9.93 was challenged by the respondent by filing D.B. Civil Special Appeal No. 766 of 1993. The High Court of Judicature for Rajasthan vs. Mohd. Rafique Khan which was decided by a Division Bench of this Court on 28.2.1994. The learned Judges of Division Bench after perusing of the entire record, were of the opinion that special report obtained at a particular time for a particular purpose is an unruly horse and a very poor substitute for the Annual confidential Reports (for short 'the ACRs'). The ACR is the real record on the basis of which assessment of the work and performance of the employee for the purpose of promotion is to be made and, therefore, such a procedure which was not followed in the said case is not correct. In the circumstances, the Division Bench of this Court was of the opinion that withholding of promotion was not proper and, therefore, affirmed the opinion of the learned Single Judge.
(2). It is now represented by Mr. Singhvi and Mr. Sangeet Lodha, that the case of Mohammed Rafiq Khan was considered and he was given promotion to the post of U.D.C. (3). In the instant case also, a special report was obtained from one Shri Ganesh Dan Charan. The Special report reads and under:-
"Smt. Pushpa Dave : She is presently working in the Writ Section of this Registry. Shri Ganesh Dan Charan Ex-Deputy Registrar (Judicial) has reported as under about the work, conduct and integrity of this official;-
"She is quite a credulous lady, does not perform her work well. She has very little understanding of the work. She is inefficient because of lack of understanding. As far as integrity is concerned, nothing adverse has come to my knowledge".
(4). This was challenged by the present petitioner in her writ petition. According to the learned counsel for the petitioner Mr. Singhvi, the petitioner was superseded without any justification because neither there was any adverse entry recorded in her ACR nor any penalty imposed upon her. Despite absence of any adverse entry in her ACRs, she has been superseded. Our attention was also drawn to the writ petition filed by Mohammed Rafiq Khan and the order dated 28.2.94 passed by the Division Bench. We have gone through the entire record, judgments rendered by Single Bench as also of the Division Bench of this Court. As rightly pointed out by Mr. Singhvi, the case of the petitioner should have also been reviewed by the respondent. It is asserted by Mr. Singhvi that the petitioner's service record was absolutely clean and, therefore, denial of promotion for the post of UDC to the petitioner was highly arbitrary.
(5). We have summoned the record pertaining to the ACRs of the petilioner from the Registry of this Court. Learned counsel Mr. Sangeet Lodha appearing on behalf of the respondent-department has placed the ACRs of the petitioner before us. We have perused the same. In our opinion, there is no, adverse entry entered in her ACRs before 23.7.85, which is the crucial date for consideration of the name of the petitioner for further promotion. It would be relevant to mention here that the petitioner has also been superseded on 23.7.85 along with Mohammed Rafiq Khan who also had adverse record and visited with penalty of censure whereas petitioner's service record is clean and denial of promotion on 23.7.85 was not proper.
(6). It is argued by Mr. Sangeet Lodha, learned counsel for the respondent that the petitioner has challenged the order dated 23.7.85 whereby the petitioner was superseded and 15 other Lower Division Clerks who were juniors to the petitioner were promoted to the post of Upper Division Clerk and they have not been impleaded as parties to the writ petition. According to Mr. Lodha, if the relief claimed is granted to the petitioner then promotion of those persons will be affected adversely. Learned counsel for the respondent Mr. Lodha argued that the writ petition cannot be maintained against these persons whose rights are likely to be affected in the light of aforesaid decision. He also submitted that the writ petition filed by the petitioner badly suffers from the vice of laches. The writ petition was filed against the impugned order dated 23.7.85 Annex. 5 whereby she was superseded and 15 Lower Division Clerks junior to her were promoted to the post of Upper Division Clerk. The writ petition has been filed after long delay of 9 years. The petitioner has obviously slept over her rights and remedies for an inordinately long time, therefore, this Court would not like to interfere in its discretionary jurisdiction under Art. 226 of the Constitution of India.
(7). On merits, Mr. Lodha, learned counsel for the respondent submitted that from S. No. 2 to 16 in the order No. Estt./HC/336/85 dated 23.7.85 who were junior to the petitioner, were found fit to be promoted to the post of Upper Division Clerk and, therefore, they were rightly promoted as Upper Division Clerks in preference to the petitioner. It is submitted that Shri Bhanwani Lal Mathur whose name appears at S.No. 1 in the aforesaid order, was senior to the petitioner. It is also submitted that no notice dated 25.7.85 was received by the respondent. In so far as the case with regard to Mohammed Rafiq Khan was concerned. Mr. Lodha submitted that the said petitioner had challenged both the supersessions but this Court held that supersession of Mohammed Rafiq Khan was justified once i.e. at the time of issue of the order dated 2.1.85 but the second supersession on the basis of the same adverse material in the same year when the persons junior to him were promoted by order dated 23.7.85 can not in any manner be justified. Thus, Mr. Lodha has tried to distinguish the case of Mohammed Rafiq Khan with the case of the present petitioner and according to him, the case of Mohammed Rafiq Khan is quite different and the petitioner cannot take advantage of the decision rendered in case of Mohammed Rafiq Khan. There is no merit in the argument of Mr. Lodha, that the writ petition is liable to be dismissed.
(8). We have perused the entire pleadings, Annual Confidential Reports of the petitioner, other relevant records, order passed by the learned Single Judge in the case of Mohammed Rafiq Khan and affirming the order passed by the Division Bench of this Court.
(9). In regard to first contention of Mr. Lodha, we are of the opinion that this contention has no merit.
(10). The writ petition was filed on 4.7.1994. Notice to show cause was issued by the learned Single Judge on 21.9.94. The notice was served on respondent by order dated 17.10.94. The Court directed the Registry to put up the matter for admission on 24.10.94. On 12.12,94, two weeks time was given to the respondent for filing reply to the writ petition. Again the case was put up for admission on 4.1.95. After several adjournments, on 19.11.1997 the writ petition was admitted. The respondent filed reply on 29.4.1995 i.e. even before admission of the writ petition but after receipt of the notice to show cause as to why the writ pelition should not be admitted. The petitioner filed rejoinder on 12.11.97. Thus, the matter was pending in this Court from 4.7.94 till today. The matter was also heard by this Court on various occasions.
(11). A Division Bench of this Court in Firosh Khan vs. Slate of Rajasthan and others reported in (2), in an identical matter held that the question of maintainability of writ petition does not arise in case of violation of principles of natural justice or any provisions of the Act or Rules or alternative remedy is not proper. In paras 11 and 12 observed as under:-
"(11) A Division Bench of the Kerala High Court in Thressiamma vs. Union of India 1999(2) K.L.T. 683) held that after the writ petition is admitted, it has to be disposed of on merits and the dismissal of the writ petition after the lapse of some years on the ground of alternative remedy or on the ground of delay wilt not ordinarily be justified. In the instant case, the writ petition was entertained by the learned Single Judge and the respondents were given an opportunity to file a reply to the same and in the reply, no objection with regard to the delay had been taken. Further in the writ petition, the petitioner has specifically raised violation of his fundamental rights and has alleged that the findings recorded by the [inquiry Officer are based on sound consideration of evidence and, therefore, the appellate authority has erred in disagreeing with the findings recorded by the Enquiry' Officer. The petitioner has further alleged that there is no reason to disagree with the findings recorded by the Enquiry Officer. It is also alleged in para (ii) of the Grounds of the writ petition that there was no evidence available on record to prove the allegations levied against the appellant and that the findings given by the disciplinary authority arc fully supported by the evidence recorded and available on record. Therefore, if was prayed that the order passed by the State Government should be declared illegal and is liable to be set aside.
(12) The Supreme Court has depricated the practice of dismissing the writ petition on the ground of laches and availability of alternate remedy in a case where violation of fundamental rights and principles of natural justice are alleged in the writ petition. In AIR 1962 SC 1506, the Supreme Court has held that if there is allegation of violation of principles of natural justice or violation of any provision of the Act or the Rules, the dismissal of the writ petition on the ground of delay or laches or alternate remedy is not proper."
(12). In our view, once the writ petition is admitted without any condition and the respondents were asked to file reply etc., the writ petition cannot be dismissed on the ground of laches and availability of alternative remedy and the Court has to dispose of the matter only on merits since all the required materials are already filed and the same are available for adjudication of the court. Therefore, we have no hesitation to reject the contention raised by Mr. Lodha that the writ petition should be dismissed on the question of delay and laches.
(13). Next contention of Mr. Lodha is with regard to non impleading of other promotees. It is true that the pelitioner has come to this Court after delay of 9 years. In our opinion, the delay and laches cannot sland in the way of the petitioner for establishing the right which has already accrued to her. In the instant case, the promotion is also provisional. The Hon'ble Supreme Court in the identical matter reported in AIR 1974 SC 259 (3) has assailed the promotion being provisional, they have * not conferred any rights on those promotes and they are by their very nature liable to be set at naught, if the correct legal position, as finally determined, so requires. In our view, even if the writ petition is allowed and the reliefs claimed by the petitioner are granted to him that would not affect on the other U.D.Cs. who have been promoted and this will not affect their seniority. Hon'ble Supreme Court has held that the claim for enforcement of the fundamental right of equal opportunity under Article 16 is itself a fundamental right guaranteed under Article 32 of the Constitution of India and the Hon'ble Supreme Court which has been assigned the role of a sentinel on the qui vive for protection of the fundamental rights cannot easily allow itself to be persuaded to refuse relief solely on the ground of laches, delay or the like. Hence this contention of the learned counsel for the respondent has not merit and, therefore, the same is rejected.
(14). In our view, it is a fit case For issuing direction to the respondent to re-consider the case of the petitioner for promotion as claimed by her in the writ petition. We, therefore, direct the respondent-Registry to reconsider the case of the petitioner for promotion with reference to the order dated 23.7.85 after giving an opportunity of hearing and after perusing all other relevant Annual Confidential Reports etc. etc. and decide the same within a period of three months from today.
(15). The writ petition is allowed and the matter is remanded to the respondent - Registry for reconsideration of the petitioner's case for promotion to the post of Upper Division Clerk in the light of the judgment rendered by this Court in case of Mohammed Rafiq Khan (supra).