Chand Mal Purohit and Others vs State of Rajasthan

N.K. Jain, J.—These special appeals are directed against the order of the learned Single Judge whereby he dismissed the writ petitions of the petitioners by one common order dated 28.6.1986

Since similar questions of fact and law are involved in these special appeals and as agreed by the learned Counsel for the parties they are being disposed of by one common judgment.

The petitioners have prayed that as they are senior to respondents they be granted promotion to the post of Assistant from 1.7.68 or from the date respondents no.5 to 9 were promoted, with retrospective effect with all consequential benefits. They have further prayed that any person junior to them may not be promoted as Superintendent No. II or I during the pendency of the writ petition. On 18.1.88 the appellants have moved applications for the amendment of the writ petitions and prayed that persons as serial nos. 10 to 29 may be impleaded as respondents. Notice of amendment application was issued on 25.4.1988. Mr. Advani, learned Counsel for the respondandts No. 3 and 4 has filed reply to this application and it was ordered that the application would be heard and decided along with the special appeals.

We have heard Mr. Kamal Joshi and Govind Mathur for the appellants, Mr. B. Advani learned Counsel for the respondents No. 3 and 4 and Mr. H.R. Panwar, learned Addl. G.A. and perused the record.

Mr. Kamal Joshi and Mr. Govind Mathur, learned Counsel for the appellants have argued that the correct facts regarding promotion on the basis of merit or seniority cum merit was not indicated in the order and these facts came to the knowledge of the appellants only on 7.10.1987 and 20.10.1987 when record of the DPC was summoned before the Division Bench and so they have moved for amendment application. It has also been contended that though there was nothing to debar the appellants from promotion, even on the criterian of seniority cum merit they were declared unsuitable on ''seniority cum merit'' whereas respsondents-non- petitioners being junior were wrongly promoted and, therefore, the finding of unsuitability recorded against the appallents in the year 1968 and 1973 be declared illegal and prayed that the amendment applications be allowed of the respondents no.10 to 29 be impleaded as party. The learned Counsel for the appellants is support of this contention drawn our attention to the case of Ramkumar v. State of Raj. 1986 (2) SLR 196 and The General Manager, Southern Central Railway and Anr. v. V. Siddhavti and Ors. 1974 (1) SLR 597.

Mr. B. Advani, learned Counsel for the respondents no. 3 and 4 has opposed the amendment application and submitted that it was moved after inordinate delay and rather new pleas have been taken, which cannot be allowed in special appeal at this stage. That most of the persons have since retired. He has also contended that the learned Single Judge has rightly dismissed the writ petition and thus prayer for amendment of the writ petition deserves to be dismissed. In support of his contention he has placed reliance on the case of University of Jodhpur v. Ramchandra 1976 RLW 674 K.R. Mudgal and Others Vs. R.P. Singh and Others, and Amrit Lal Berry and Another Vs. Collector of Central Excise, New Delhi and Others, .

Mr. H.R. Panwar, Addl. G.A. has submitted that, the order of the learned Single Judge is well reasoned and amendment in the writ petitions cannot be allowed at this stage to upset the promotion of 1958, when most of the persons have retired.

The appellants have averred in the writ petitions that they being senior should have been promoted earlier than the respondents. It is clear from the order of the learned Single Judge who has perused the minutes of the DPC and has observed that Premchand, Rajendra Kumar, Premnarayan and Miss Padma have been promoted against the merit quota. Thus the grievance of the petitioners does not survive that they being senior to the respondents and should have been promoted prior to them. The learned Single Judge has also observed that as the petitioners were not found suitable is the merit quota their claim against the respondents deserves to be rejected. As such the question regarding ''soniority cum merit'' does not arise. It is pertinent to note that certain junior persons no. 5 to 9 who were promoted were made party but the other juniors, who were necessary party were left, and now the appellants want to implead them as respondents no. 10 to 29 alleging that they had no knowledge of the fact at that point of time, which cannot be believed as no satisfactory reason have been given as to why respondents no. 5 to 9 were only made party and other juniors were left, when the appellants were claiming seniority against all juniors who were promoted in the year 1968. The petitioners should have impleaded all the junior persons against whom they claim seniority and they can''t take the plea that certain facts were not in their knowledge as the burden and duty was of the appellants-petitioner to put their case and if such pleas are allowed in the garb of amendment, then there will be no end and it would be deterimental to the interest of the persons who were not before us and were not made party earlier and that will certainly prejudice their rights. The argument that appellants had no knowledge of the fact has no substance for the reason that in the reply dated 1.12.82 to show cause notice, State has mentioned that respondents were not promoted on the basis of merit alone but also promoted in the fixed ratio of merit and ''merit cum seniority''. Further in the reply to the writ petition filed on 4/8.10.1983 in which preliminary objections of non-joinder of party and delay of 14 years in filing the writ petition were raised but the appellants have not filed any amendment application at that time to implead other persons who were necessary party, though rejoinder was filed. That apart, the learned Single Judge has also called the record and after perusal of the record arrived at the conclusion that the respondants were promoted in the merit quota and on the other hand the petitioners were not considered on the basis of merit quota and the petitioners have not raised any grievance before the learned Single Judge. There is nothing to show that they wanted to see the record but were not allowed. It can not, therefore be said that they were not knowing the fact prior to 7.10.87. and 14.10.87. The petitioner-appellants were not diligent to file the amendment applications at the proper stage. The cased cited by Mr. Joshi and Mr. Mathur are not helpful as they have no bearing to the facts of the present, case. Looking to the other aspect of the matter, if the application is allowed and persons are impleaded it would be deterimental to their interest when most of the persons have since retired. Even amongst the parties to the proceedings all except appellant Om Dutt and respondent Prem Chand have retired. In any view of the matter, the amendment in the writ petition cannot be allowed at this stage and are hereby rejected.

The learned Judge has after perusal of the minutes of D.P.C. of 1968, 1973 and 1977 has concluded that the promotions of respondents Premchand Vaid, Rajendra Kumar, Prem Narain Mathur and Miss Padma Advani was on the basis of merit and the petitioners had been considered and were not found suitable in the merit quota. Their claim against the aforesaid respondents having no substance was rejected. The learned Counsel for the appellants as such could not make out a case against them.

Mr. Govind Mathur, however, argued that appellant Jugat Singh is entitled to relief against Shyam Sunder respondent who, even according to the learned Single Judge is junior to the appellant and not promoted in the merit quota. The case put up by the State in the reply, is that Shyam Sunder was selected on the condition that in case he is exonerated in depertmental enquiry pending against him at that time, she will be deemed to have been selected in the year 1976. The departmental enquiry pending against him did not conclude till 26.5.1981. Thereafter he having been exonerated in the departmental enquiry was promoted to the post of Assistant by an order dated 19.1.1982. The pleas of the State regarding selection of Shyam Sunder in the merit quota did not find favour with the learned Single Judge and it has observed that Shyam Sunder was promoted but it has not been specifically mentioned in the recommendation of the D.P.C. whether he was promoted on the basis of merit or on the basis of merit cum seniority. In the revised seniority list Shyam Sunder stands at No. 44 and Jugat Singh stands at 43. Despite that the learned Single Judge has declined to upset situation on the ground that Shyam Sunder was promoted in the year 1977 and the writ petition was filed in the year 1982, which was belated. Jugat Singh could not have filed the writ petition prior to this order promotion made on 19.1.1982. He filed the petition in the year 1982. It seems that these facts were not brought to the notice of the learned Single Judge as Shyam Sunder has not appeared despite service before the learned Single Judge and even before us, so the observations made by the learned Single Judge that the writ petition filed by Jugat Singh was belated and was sufferring from laches is not sustainable and he is entitled to get promotion from the date when Shyam Sunder was promoted.

In view of the above discussion, the appeal filed by Jugat Singh is partly allowed. He shall be given promotion from the date Shyam Sunder was promoted with all consequential benefits. However, the appeals filed by Chand Mal and Om Dutt have no force and are dismissed. No order as to costs.