Bhagwan Das vs Rajasthan State Road Transport Corporation

P.K. Palli, J.—The petitioner was appointed as Lower Division Clerk on 25.8.1974 and confirmed on 30.7.1977 with effect form 25.6.1976. On 2.9.1988 a seniority list of Lower Division Clerks was drawn up in respect of the period 1966-86 and the petitioner figures therein at S. No. 104 Annex. 1 on record. 175 Lower Division Clerks were promoted vide order Annex. 2 dated 24.9.1988. The promotion was denied to the petitioner. There was a charge against the petitioner of way back of the year 1981 Annex. 3 where the allegation pertained to the year 1979 that he had retained Rs. 150/- for a period of 12 days for which he has explained that the sme could not be adjusted as the account had not been furnished by the conductor. The Enquiry Officer was appointed in the year 1982 and nothing proceeded further till date. It is further said by the petitioner that he could not be deprived of his promotion simply on the ground that an enquiry was pending against him and even if it be accepted on its face value, then too if would be a minor penalty and promotion could not be refused to him in the situation where the test and criteria is seniority-cum-merit. The grievance of the petitioner is that several persons from S. No. 105 onwards have been promoted in preference to him and he has been discriminated against and has been denied his legitimate due. Representations were made in this respect to the respondent Corporation, which are Annexs. 5, 6 and 7 on record. The petitioner prays that he be ordered to be promoted as Upper Division Clerk form the date the persons next to him in the seniority of Lower Division Clerks were promoted with all consequential reliefs and further prays for quashing of the enquiry in pursuance of Annex. 3.

In reply, it has been averred by the respondent that the besis for promotion is of coures seniority-cum-merit and it is done by the Departmental Promotion Committee (hereinafter referred to as "the D.P.C.). It is admitted that the persons junior to the petitioner were given promotion and the petitioner as denied because the D.P.C. did not find him fit for promotion and the test laid down in the Regulations of the year 1965 where academic qualifications, experience, tact, energy, intelligence, integrity and previous record of service have to be considered and it was after consideration of these factor the D.P.C. did not find it fit to promote the petitioner Regarding Enguiry it is said that the charge-sheet was served in the year 1981 and the enquiry is pending.

When the matter came dup on 25.5.1993 the respondent was directed to keep the concerned minutes of the proceedings of the D.P.C. available for the scrutiny of the Court.

Learned Counsel for the respondent has passed on the file stated to be containing the deliberations of the D.P.C. a photostat copy whereof has been placed on the record and I have marked it as Annex. C-1 A look at it shows that against the name of the petitioner at S. No. 104 it is written in pen Ink "Not fit for promotion" and in column No. 9 it is stated that enquiry in respect of charge-sheet dated 11.12.1981 is pending.

Learned Counsel has also brought to my notice that several other persons who appeared in the list and who have been selected inspite of having been inflicted punishments and pending enguriy and on the strength of this he argues that the petitioner has not been denied promotion because of the pending enquiry but he was not found fit for promotion by the D.P.C. and for that purpose he has brought my attention to the opening part of the proceedings wherein one paragraph before the names of the selected candidates it is said that the decision has been arrived at after looking into the Confidential Reports, previous record etc. The file stated to be containing the proceedings of the minutes does not inspire confidence and the proceedings are not recorded in the manner the minutes are recorded and the learned Counsel appearing for the petitioner vehemently disputes that these are not the minutes of the proceedings.

Be that, as it may in my opinion, the case of the petitioner was not considered by the D.P.C. and he appears to have been ignored possibly on the ground that an enquiry was pending. It is again a sad state of affairs that an enquiry on such a petty matter should have taken so long and it is the respondent who is to be held responsible for this inordinate delay. Nothing has been said from the side of the respondent that he was not efficient, did not work diligently or his integrity was doubtful or that there was some reason for denying him promotion.

In my opinion, the very fact that no action has been taken against the petitioner would mean that the proceedings have been dropped against him. The pendency of enquiry was no reason to deny to the petitioner his legitimate promotion.

Learned Counsel appearing for the petitioner has further pressed in service a judgment of this Court rendered in the G.S. Rajawat v. Rajesthan Financial Corporation and Ors. (1993 (1) WLC (Raj.) 117) where under the criteria for promotion is seniority-cum-merit then a senior person can be ignored only if it is found that he is unfit. The record does not show on what basis the D.P.C. came to the conclusion that the petitioner was not suitable to be promoted. The file which has been passed on to the Court is simply a list of the persons to whom the Committee considered fit for promotion and against certain persons it is written ''not fit for promotion''. There is no finding of unfit or unsuitability in respect of the petitioner. It is further not clear that the evaluation of the performance of the candidates was considered. The committee appears to have been influenced by the pendency if the departmental enquiry for which the comments have already been made by me above. This factor alone could not weigh other factors in the matter of adjudging the suitability of the petitioner.

Learned Counsel appearing form the side of the respondent has brought to my notice a judgment of the Hon''ble Supreme Court reported in State Bank of India and others Vs. Mohd. Mynuddin, which was a case of promotion to selection post and it was in the situation of that case that it was held that the decision of the selection committee should not ordinarily be interfered with by the court unless it is vitiated by mala fides or bias and that an officer would not claim a right to be promoted merely on the basis of satisfactory remarks in his confidential reports. This decision is not even remotely applicable to the case of the petitioner.

After having considered the rival contentions made by the learned Counsel appearing for the parties at the Bar and having gone through the record of the case, I am inclined to hold that the petitioner should have been promoted on the post of Upper Division Clerk form the date the Lower Division Clerks in his cadre junior to him were promoted.

The petition is consequently allowed and the respondent is directed to grant promotion to the petitioner from the date his juniors were promoted. The petitioner shall also be entitled to all consequential reliefs flowing therefrom i.e. arrears of salary and other emoluments.