Aadu Ram vs State of Rajasthan and Others

Govind Mathur, J.—The Petitioner, an Inspector Land Revenue (Land Recods) suffered with the penalty of withholding of one annual grade increment without cumulative effect vide order dated 16/19.10.2002 passed by the Collector, Churu, Subsequent thereto, the Board of Revenue vide order dated 15.7.2006 promoted certain Land Revenue (Land Records) Inspectors as Nayab Tehsildar purely on ad-hoc basis. The candidature of the petitioner was not considered while making such promotions in view of the penalty imposed vide order dated 16/19.10.2002. By another order dated 6.8.2008, the Board of Revenue while exercising powers under Rule 31 of the Rajasthan Tehsildar Service Rules, 1956 (hereinafter referred as ''the Rules of 1956'') made promotions to the post of Nayab Tehsildar on urgent temporary basis from amongst eligible Land Revenue (Land Records) Inspectors. This time too candidature of the petitioner was not considered for promotion. The respondents also denied selection grades to the petitioner in view of the penalty imposed under order dated 16/19.10.2002. By this petition for writ a challenge is given by the petitioner for not considering his candidature while making promotions and also denial for grant of selection grades.

The Contention advanced by the learned Counsel for the petitioner is that as per the Rules of 1956 the criteria for promotion to the post of Nayab Tehsildar from the post of Land Revenue Inspector is seniority-cum-merit and as such merely on the count that the petitioner suffered with a minor penalty, promotion could not have been denied to him. On the same analogy, it is stated that selection grade II would have not been withheld by the respondents.

In reply to the writ petition preferred by the respondents other than private respondent, it is stated that the petitioner was punished by the competent authority in the year 2002 and as such the petitioner''s case was not considered while making ad-hoc/urgent tmeporary promotions. It is also said that as and when regular promotions shall be made, the Departmental Promotion Committee shall consider the candidature of all eligible candidates including the petitioner. Nothing is said in the reply regarding denial of selection grades to the petitioner.

A reply to the writ petition has also been filed on behalf of the respondent No. 5, a private respondent, who is said to be junior than the petitioner. The stand of private respondent is same as of government, with an additional assertion that there are at least 44 other junior persons, who were promoted as Nayab Tehsildar and therefore, the promotion, if given to the petitioner, that will not effect the respondent No. 5.

Precisely, controversy involved in the writ petition is that whether the respondents were right while making promotions. on ad-hoc/urgent temporary basis without considering petitioner''s candidature for promotion on the count that he suffered a minor penalty?

Under the Rules of 1956 urgent temporary appointments are permissible under Rule 31 and such appointments may that be against the vacancies of direct recruitment or of promotion, can be filled in only from amongst the persons eligible for such appointment. The respondents as such while making promotions to the post of Nayab Tehsildar from the post of Inspector Land Revenue (Land Records) were required to consider the candidature of all eligible candidates. No. denial could have been made for consideration ipse dixit on the count that the employees concerned as petitioner in the present case suffered with minor penalty. This Court in Satyamani Tiwari v. State of Rajasthan and Ors. (S.B. Civil Writ Petition No. 2878/2003), while examining the issue regarding consideration of an incumbent of promotion who has suffered minor penalty held as under:

While examining suitbility of an incumbent various factors are required to be taken into consideration and imposition of a minor penalty cannot be a sole criteria for denying promotion to a person. The procedure for selection under Rule 28 in quite unambiguous terms states that while preparing a list under the criteria of seniority-cum-merit remarks are required to be given for not recommending a person for promotion being unsuitable. No such remarks are available in the record of entire selection proceedings including the minutes of Departmental Promotion Committee. The Departmental Promotion Committee was required to see the entire service record including the annual confidential reports/annual performance appraisal reports, awards/commendation certificates, entiries relating to punishments or pending departmental enquires etc. and then by analysis of the same an objective remark in relation to suitability was required to be made. The Departmental Promotion Committee should have recorded that how the misconduct for that the petitioner was penalised by a minor penalty effected his efficiency to the extent that he is not suitable to be promoted to Rajasthan Police Service. While doing so the Committee must keep in mind that under the criteria of seniority-cum-merit it is the seniority that will prevail as the term "merit" under the criteria concerned means the minimum merit necessary for efficiency of administration.

This Court in the case of Avadhesh Chandra v. State of Rajasthan and Ors. 2008 WLC 230 has also taken a view that imposition of minor penalty of a civil servant cannot be a reason to exclude him for consideration from promotion.

True it is, in the present case no regular promotions are yet made ignoring petitioner''s candidature, however even while making appointment on urgent temporary / ad-hoc basis a reasonable criteria is require to be adopted and in normal course it should be the same as application in regular promotions. While making such promotion seniority of a person should not be ignored on the grounds other than sustainable legal reasons. In the case in hand the respondents declined to consider candidature of the petitioner solely for the reason than he suffered with a minor penalty. In view of the law discussed in the judgments referred above, the denial so made is not justified. As such, I do not find any reason to ignore the petitioner''s candidature for consideration from promotion as Nayab Tehsildar. In view of whatever said above, the respondents were under obligation to consider the candidature of the petitioner for the purpose of promotion to the post of Nayab Thesildar though that was made purely on urgent temporary basis. For the same reason, the denial of the selection grades to the petitioner on the count he suffered with a minor penalty is bad. The criteria for grant of selection grade is the same as it is from promotion and therefore denial of selection grades to the petitioner virtually amounts to denial of promotion even on regular basis. The respondents should have considered the candidature of the petitioner for grant of selection grades as on the count that the petitioner suffered with a minor penalty the selection grades could not have been denied ipse-dixit. The respondents are required to have definite and sustainable legal reasons to do so and those are required to be recorded while denying a valuable right to an incumbent.

In view of whatever said above, this petition for writ succeed, therefore, the same is allowed. The respondents are directed to consider the candidature of the petitioner for the purpose of promotion as Nayab Tehsildar even on urgent temporary basis from the date the persons junior to him were considered and promoted. The respondents are further directed to consider the candidature of the petitioner for the purpose of grant of selection grades ignoring the fact regarding imposition of minor penalty under order dated 16/19.10.2002.

No Order as to cost.