Narpat Singh @APPELLANT@Hash State of Rajasthan & Ors.

This writ petition has been filed by the petitioner, inter alia, seeking the following reliefs:-

“a/ by an appropriate writ, order or direction, the impugned order dt. 2.8.2001 (Annex-P/3) and order dt. 18.9.2001 (Annex.-P/4) passed by the

respondents may kindly be quashed and set-aside with all consequences.

b/ By an appropriate writ, order or direction, the respondents may kindly be directed to grant the third selection pay-scale to the petitioner w.e.f.

8.6.96.â€​

It is, inter alia, indicated in the writ petition that the petitioner was initially appointed as a Constable by order dated 7.6.1968 and then the petitioner was

promoted on the post of Head Constable by order dated 20.1.1976 and was given further promotion on the post of Assistant Sub Inspector by order

dated 19.11.1984 and since then the petitioner was working on the said post.

It is then indicated in the writ petition that as per the order dated 25.1.1992 issued by the State Government regarding grant of selection scale to the

employees after completion of 9, 18 and 27 years of service and the petitioner having availed two promotions, on completion of 27 years of service on

7.6.1995, the petitioner was entitled for third selection grade, however, the same was not given to him.

On a representation having been made by the petitioner on 16.7.2001 in this regard, the same was forwarded by respondent No.3 to respondent No.2,

inter alia, indicating that as the petitioner has been awarded six punishments as mentioned in the communication dated 22.8.2001 (Annex.P/3), the

petitioner was entitled to get the third selection grade w.e.f. 8.6.2001 instead of 8.6.1995.

The communication (Annex.P/3) was responded by the respondent No.2 by letter dated 18.9.2001 indicating that besides the punishments indicated

there is another adverse remark in the petitioner’s Annual Performance Appraisal Report (‘APA’) for the year 1988-89 and, therefore, he

is entitled to get the selection grade from 08.6.2002 only.

It is, inter alia, submitted by learned counsel for the petitioner that the respondent - Department has issued a Circular dated 23.7.1992 (Annex.P/5)

laying down that for the purpose of grant of selection grade, the penalty of censure will not be taken into consideration and as out of six penalties

imposed 5 are of censure, therefore, the communications dated 22.8.2001 as well as 18.9.2001 (Annex.P/3 and Annex.P/4 respectively) are contrary

to the said Circular.

Further submission has been made that the adverse entry in the APA of the petitioner for the year 1988-89 was never communicated to the petitioner

and the said un-communicated entry could not be taken into consideration while granting the selection scale. It is further submitted that three penalties

of censure have been imposed on the petitioner on the same date i.e. on 28.1.1993 and the same, therefore, cannot be counted separately.

Further submission has been made that for grant of selection grade, any element of selection or competitive merit is not involved and, therefore,

merely because the petitioner has suffered punishment of censure, he could not be denied selection scale.

Reliance was placed on Devi Singh v. State of Rajasthan & Ors.: 2004 (2) CDR 925 (Raj.).

Learned counsel for the respondents supported the orders impugned. It was submitted that the Circular dated 23.7.1992 (Annex.P/5) already stood

withdrawn by order dated 24.8.1995 (Annex.R/1) and even prior to that on 24.7.1995, the said aspect had been clarified by the Finance Department

(Rules Division). It was submitted that as per Clause 7 of the Circular dated 25.1.1992, the basic requirement is that selection grade shall be granted

only to those employees whose service records are satisfactory and as the petitioner was repeatedly visited with the penalties of censure/stoppage of

grade increment and adverse entry was recorded in his APA, he was not entitled for grant of selection grade and, therefore, the writ petition deserves

to be dismissed.

Regarding non-communication of the adverse entry in APA, it is, inter alia, indicated that the petitioner had examined his service book and remarked

that his service book was correct, which clearly indicated punishment having been imposed on the petitioner. Further submission has been made that

on account of passage of time, the entire record pertaining to the adverse entry has been weeded out and as such allegations in this regard cannot be

appropriately answered.

Regarding the judgment in the case of Devi Singh (supra), it was submitted that the said judgment has been dealt with by Hon’ble Supreme Court

in State of Rajasthan & Ors. v. Shankar Lal Parmar : (2011) 14 SCC 235 and, therefore, the submissions made in this regard have no substance.

I have considered the submissions made by learned counsel for the parties and have perused the material available on record.

It is not in dispute that the petitioner was visited with penalty of censure by orders dated 27.1.1990, 29.12.1992 and 28.1.1993 (three different orders

of censure) and stoppage of one grade increment for 3 years and that the petitioner did not question the validity of the said penalty orders, which

became final.

Though, a Circular dated 23.7.1992 was issued by the respondent â€" Department, inter alia, indicating that for grant of selection grade, the penalty of

censure shall not be taken into consideration, however, subsequently, the said aspect was reviewed and by Circular dated 24.8.1995, the Circular

dated 23.7.1992 providing for non-consideration of penalty of censure for grant of selection grade was withdrawn.

The entire issue relating to the consideration of penalty of censure, issuance of Circular dated 23.7.1992 and its withdrawal by Circular dated

24.8.1995 as well as the judgment of this Court in the case of Devi Singh (supra) has been thoroughly consideration by Hon’ble Supreme Court in

the case of Shankar Lal Parmar (supra), wherein, inter alia, the following directions were issued:-

“26. In the light of the foregoing discussion, we are of the considered opinion that the impugned orders passed by the learned Judges of the Division

benches cannot be sustained in law. Hence, the same are hereby set aside and quashed. However, looking into the controversies which have been

there in the State of Rajasthan since 1992, we deed it fit and proper to pass the following orders:

(i). The appellant State would not be entitled to recover the financial benefits already extended to the employees, pursuant to the first office order

issued by the appellant on 25.1.992.

(ii) The appellant State would not also be entitled to recover any amount which might have been paid to the employees even after issuance of the

second clarificatory Office Order/Letter dated 24-7-1995 as according to us, recovery of such amount would cause great hardships to the employees.

(iii) The employees who have earned censure in the past years for their service record will not be entitled to be granted “selection grade†along

with those who have a clean and unblemished record. They would be granted “selection gradeâ€​ only one year thereafter.

(iv) Any employee who has been promoted before the said period would not be entitled for the grant of “selection gradeâ€​.â€​

In view thereof, submissions made by learned counsel for the petitioner essentially based on the judgment in the case of Devi Singh (supra) have no

substance and the multiple penalty of censure as imposed on the petitioner were required to be taken into consideration for grant of selection grade.

So far as the submission made by learned counsel for the petitioner that as three orders of censure were passed on the same date i.e. 28.1.1993, the

same are required to be counted only as one is concerned, as apparently the said punishments were imposed on the petitioner based on three separate

chargesheets and the same were not questioned by the petitioner in any manner, therefore, the submission made in this regard has no substance.

So far as the submission made pertaining to taking into consideration the adverse entry pertaining to the year 1988-89 having not been communicated

to the petitioner, merely because the petitioner had examined his service book in the year 2002 by itself cannot amount to communicating the said

adverse entry to the petitioner, which was recorded way back in the year 1988-89 and, therefore, to the said extent the adverse entry of the year

1988-89 as recorded in the service book of the petitioner, could not be taken in consideration for delaying grant of selection grade for another year.

In view of the above discussion, the writ petition filed by the petitioner is partly allowed. While the order dated 22.8.2001 (Annex.P/3) does not call for

any interference, the order dated 18.9.2001 (Annex.P/4) indicating that the petitioner would be entitled to grant of selection grade w.e.f. 8.6.2002 on

account of adverse entry for the year 1988-89 cannot be sustained and the same is, therefore, set aside.

The petitioner would be entitled to grant of selection grade w.e.f. 8.6.2001 as indicated in the order dated 22.8.2001 (Annex.P/3), the benefit, if so far

not granted to the petitioner, shall be granted to the petitioner with other consequential benefits within a period of eight weeks from the date of this

order.

No order as to costs.