Prakash Chand Meena and Others vs State of Raj. and Others

M.N. Bhandari, J.—With the consent of the parties, the writ petition was heard finally.

By this petition, a direction is sought for consideration of the candidature of the petitioners for promotion to the post of Executive Engineer (Civil) against the vacancy year 2014-15. The petitioners'' candidature was not considered against the said vacancy year for want of five years'' experience, though the petitioners are in possession of the required experience. The petitioners were promoted on the post of Assistant Engineer (Civil) against the vacancy year 2009-2010 vide order dated 18.05.2010. The determination of the vacancies is made as on first April of the year concerned. The delay in holding DPC for promotion can not be to the detriment of the petitioners for counting his experience. It is otherwise contrary to Rule 24-11A of the Rajasthan Services of Engineers and Research Officers (Irrigation Branch) (Rules of 1954) (in short, "the Rules of 1954"). Rule 24 of the Rules of 1954 talks about the eligibility and procedure for promotion to the encadre post in service. Sub-rule 11A of the Rule 24 provides for determination of experience of the services for promotion to the higher post from the vacancy year and not from the actual date of promotion.

In view of the above, the denial of promotion on the post of Executive Engineer against the vacancy year 2014-15 becomes illegal.

An appropriate direction be given to the non-petitioners to consider the case of the petitioners for promotion to the post of Executive Engineer against the vacancy year 2014-15.

Mr. Anurag Sharma, learned Addl. Advocate General has contested the case. He submitted that a circular was issued by the Department of Personnel on 04.05.2006. As per the circular, the experience has to be counted from the date of promotion and joining there upon and in that case also, it would be from next 1st April after actual promotion. Thus, as per circular, the actual period would also be counted for experience since 1st April after the promotion.

In view of the above, the petitioners were not eligible for the promotion to the post of Engineer for want of experience. Their case would be considered for promotion against vacancy year 2015-16.

I have considered the rival submissions of the parties and perused the record.

It is not in dispute that the petitioners were given promotion to the post of Assistant Engineer (Civil) against the vacancy year 2009-2010 vide order dated 18.05.2010.

The only question for my consideration is as to whether petitioners were eligible for promotion to the post of Executive Engineer against the vacancy year 2014-15. It is after considering the experience of 5 years on the lower post of Assistant Engineer as given in Schedule appended to Rules of 1954. It would be gainful to refer sub-rule 11A of Rule 24 of the Rules of 1954 which is quoted thus:

"(11-A). If in any subsequent year, after promulgation of these rules, vacancies relating to any earlier year are determined under sub-rule (2) of rule relating to determination of vacancies which were required to be filled by promotion, the Departmental Promotion Committee shall consider the cases of all such persons who would have been eligible in the year to which the vacancies relate irrespective of the year in which the meeting of the Departmental Promotion Committee is held and such promotions shall be governed by the criteria and procedure for promotion as was applicable in the particular year to which the vacancies relate, and the service/experience of an incumbent who has been so promoted, for promotion to higher post for any period during which he has not actually performed the duties of the post to which he would have been promoted, shall be counted. The pay of a person who has been so promoted shall be re-fixed at the pay which he would have derived at the time of his promotion but no arrears of pay shall be allowed to him."

As per the rule quoted above, it has been clarified that the promotion to the post would be made as per the criteria and procedure applicable in the particular year to which vacancies relate and the service/experience of incumbent who has been so promoted, for promotion to the higher post for any period during which he has not actually performed the duties of the post, to which he would have been promoted, shall be counted.

In view of the aforesaid rule, the petitioners were entitled to get the period of experience from the year when he was due for promotion on the lower post. In the instant case, it was the post of Assistant Engineer on which the petitioners were given promotion against the vacancy year 2009-10. As per the rule, the petitioners are entitled to count his experience since 01.04.2009. It is keeping in mind Rule 9 of the Rules of 1954 which provides about determination of the vacancies.

The circular dated 04.05.2006 runs counter to the Rules of 1954, yet ignored by the authority concerned. The similar issue came up for consideration before this court in the case of State of Raj through Secretary to the Govt. Finance Dept. v. Bhanwar Lal Malakar & Anr. in D.B. Civil Special Appeal No. 1052/98. There the order of the Tribunal was challenged but had not been interfered by this court.

The similar view was taken by this court subsequently in the case of Laxman Prasad Meena & Ors. v. State of Raj. & Ors. in S.B. Civil Writ Petition No. 7566/08 decided vide order dated 18.09.2009 and in the case of State of Raj. through Secretary, Animal Husbandry Dept., Govt. of Raj. v. Dr. V.K. Chum in S.B. Civil Writ Petition No. 15713/2010 dated 01.02.2012.

In the light of the aforesaid judgments and Rule 24-11A of the Rules of 1954, this writ petition deserves to be allowed.

The learned Additional Advocate General has referred interim order passed by the Division Bench at Principal Seat at Jodhpur, where referring to the judgment of V.K. Chum (Supra), learned Single Bench allowed the petition.

It seems that the judgment of the Division Bench in the case of State of Rajasthan v. Bhanwar Lal Malakar (Supra) was not brought to the notice of the court where the same issue was considered and decided by the Division Bench itself and otherwise in the instant case, Rule 24-IIA of the Rules of 1954 is favourable to the petitioners.

In view of the above, the writ petition is allowed. The non-petitioners are directed to consider the candidature of the petitioners for promotion to the post of Executive Engineer against the vacancy of the year 2014-15 and if found eligible and recommended for promotion, then consequential benefits would be given to them. The exercise aforesaid would be undertaken within two months from the receipt of copy of this order.

Before parting with the judgment, the respondents are directed to apply the circular only if it is not contrary to the rules. The circular can supplement it but can supplant. The non-petitioners would be restrained to disturb the present status of the petitioner till the directions are complied.