Kishan Singh Aada vs State of Rajasthan and Others

Gopal Krishan Vyas, J.

The instant writ petition has been filed by the petitioner for seeking direction to the respondents to consider his candidature for promotion on the post of Ranger Grade-II and further prayed that order Anex.10 dated 5.5.2010 may kindly be quashed and the adverse entry made in the ACR in the year 2007-08 may also be expunged.

As per the facts of the case, the petitioner was appointed as Forester (Vanpal) on 22.3.1978. A charge-sheet was served upon him under Rule 17 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (hereinafter referred to as the C.C.A. Rules for short) in which after receiving reply from the petitioner, a penalty of Rs. 35,000/- out of total amount of Rs. 50,400/- was imposed alongwith a penalty of censure against the petitioner by the disciplinary authority vide order dated 6.11.2007. Being aggrieved and dissatisfied with the said penalty order, the petitioner preferred SBCWP No. 1515/2008 in which vide order dated 4.3.2008 the petition was dismissed of with liberty to the petitioner to file an appeal before the appellate authority under the C.C.A. Rules. The petitioner preferred an appeal against the order of punishment but the appellate authority vide order dated 17.4.2009 partly allowed the appeal and quashed the cost of Rs. 35,000/- imposed upon him but inflicted penalty of stoppage of one grade increment without cumulative effect. Against the order dated 17.4.2009 passed in appeal, a revision petition was also preferred before His Excellency the Governor but the same was also dismissed on 25.2.2011.

The learned counsel for the petitioner submits that the case of the petitioner was considered for promotion on the post of Ranger Grade-II but the promotion was denied year 2008-09 on the basis of service record and penalty imposed against him. Against the denial of promotion and adverse entry made in the ACR in the year 2007-08 a representation was filed by the petitioner, that representation was also rejected vide order dated 5.5.2010. The learned counsel for the petitioner submits that in the seniority list published by the respondent-department, the name of the petitioner finds place at S. No. 9 but the respondent department denied promotion to the petitioner on the basis of ACR of the year 2007-08 and punishment awarded to him, but in fact, the penalty imposed against the petitioner as well as ACR for the year 2007-08 are contrary to law, therefore, the punishment order passed against the petitioner under Rule 17 of the C.C.A. Rules deserves to be quashed. Further it is submitted that the order of rejection of revision against the adverse entry made in the year 2007-08 is also required to be quashed because both the orders are not in consonance with law.

The learned counsel for the petitioner further submits that while quashing the order of punishment of withholding one grade increment and ACR for the year 2007-08, the respondents may be directed to consider his case for promotion on the post of Ranger Grade-II from the date when his junior persons have been provided promotion. It is also submitted that the petitioner may be given posting as per the seniority. According to the counsel for the petitioner penalty imposed against him under Rule 17 of the C.C.A. Rules is based upon wrong facts, so also, the remarks in the ACR for the year 2007-08 are based upon presumption, therefore, the petitioner is entitled for the relief prayed for in this writ petition.

Per contra, the learned counsel appearing for the respondents submits that this writ petition is not maintainable in view of the fact that remedy by way of filing an appeal before the Rajasthan Civil Services Appellate Tribunal Act, 1976 is available to the petitioner, but the petitioner has directly approached this Court under Article 226 of the Constitution of India, therefore, on this count alone, the writ petition may be dismissed.

The learned counsel for the respondents further argued that for alleged misconduct, the disciplinary authority, appellate authority and reviewing authority gave concurrent finding, therefore, punishment awarded to the petitioner under Rule 17 of the C.C.A. Rules, does not require any interference under Article 226 and 227 of the Constitution of India because the order of punishment is based upon finding of fact, which is further affirmed by the appellate authority as well as revisional authority. With regard to prayer for the place of posting, it is argued that no employee can claim pasting as a matter of right, therefore, on this count also, this writ petition may be dismissed.

After hearing the learned counsel for the parties, first of all this Court is of the opinion that for the grievance of promotion of the petitioner is having statutory remedy by way of filing an appeal before the Rajasthan Civil Services Appellate Tribunal, Jaipur, but without availing said remedy he has directly approached this Court by way of filing the present this writ petition. Although the said remedy is available to the petitioner, but this Court cannot lose sight of the fact that this writ petition was filed in the year 2012 is pending since last 3 years, therefore, in the interest of justice, it is appropriate to decide this writ petition on merits.

Admittedly, the disciplinary authority punished the petitioner under Rule 17 of the C.C.A. Rules for alleged misconduct of committing negligence in its duty for cutting the trees illegally. The finding given by the disciplinary authority for inflicting penalty against the petitioner was upheld by the appellate authority as well as by the reviewing authority while quashing the order of recovery of Rs. 35,000/- but imposed punishment of one grade increment without cumulative effect. In the opinion of this Court, the concurrent finding given by the disciplinary authority, appellate authority and the reviewing authority for imposing penalty does not require any interference because the finding is based upon facts and evidence on record.

In view of the above, it cannot be said that there is illegal denial of promotion to the petitioner more so, the respondents have rightly rejected the case of the petitioner for promotion in the light of the punishment awarded to him under Rule 17 of the C.C.A. Rules and adverse entry recorded against him for the year 2007-08.

On the basis of above fats, no interference is called for in this writ petition because the petitioner has failed to establish his case for his grievance of promotion on the post of Ranger Grade-II.

Consequently, this writ petition is hereby dismissed.