IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. ORDER R.P.SHRIVASTAVA VS. STATE OF RAJASTHAN & ORS. S.B. CIVIL WRIT PETITION NO.9881/2005 Under Article 14,16 & 227of the Constitution of India. Date of order : October 13,2006 PRESENT HON'BLE MR.JUSTICE R.C.GANDHI Mr. R.N. Mathur ] Mr. Akhil Simlot], for petitioner. Mr. G.S. Gill, Additional Advocate General Mr. Bharat Vyas) Additional Advocate General - for the State. Mr. Sanjay Pareek, for respondent No.4. Mr.Ashok Gaur, for respondent No.5. Mr.Maneesh Bhandari, for respondent No.6. (Oral). Petitioner, by means of this petition, seeks issuance of writ of Certiorari to quash the impugned order dated 25.11.2005 whereby some Rajasthan Police Service Officers (for short “RPS”) have been promoted to Super Time Scale against the vacancies of the years 2002-2003, 2003-2004 and 2004-2005 and further for writ of Mandamus to promote the petitioner to the Super Time Scale of RPS against the vacancy of the year 2002- 2003. He further seeks direction to the respondent/State to ignore the down grading remarks recorded in the Annual Performance Appraisal Report (for short hereinafter referred to as “APAR”) of the petitioner, at the level of Accepting Authority and to place the petitioner in the Seniority List below Shri Sumesh Chand Kalla and above Shri Girdhari Lal Sharma. Shorn of details, the grievances projected by the petitioner in the writ petition are that the petitioner was appointed in the Junior Scale of RPS vide order dated 26.10.1979. He was promoted to the Senior Scale of RPS on 24.05.1989. He could not be promoted to Selection Scale along with his counter-parts as his conduct was being inquired into under Rule 17 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (hereinafter referred to as the “CCA Rules of 1958”) for minor penalty. He was considered by the Departmental Promotion Committee (for short hereinafter called as “DPC”) and his result was kept in sealed cover. He was exonerated of the charges and subsequently came to be promoted to the Selection Scale vide order dated 07.09.1998 retrospectively, with effect from 20.09.1997. The petitioner was at S.No.11 of the Seniority List as per order dated 24.05.1989. In the promotion order dated 07.09.1998, the name of the petitioner has been directed to be shown below to Mr. Sumesh Chand Kalla, restoring his seniority position. He has been superseded in promotion to the Super Time Scale illegally and arbitrarily. It is further averred that Rule 28-A of the Rajasthan Police Service Rules,1954 (hereinafter referred to as the “RPS Rules of 1954”) provide criteria to be applied to determine the suitability of the officers for their promotion to the Super Time Scale. He has also relied upon the explanation appended to aforesaid Rule 28-A which provides that for purposes of selection for promotion on the basis of merit, no person shall be selected if he does not have “Outstanding” or ”Very Good” APAR at least of five years out of the seven years preceding to the year in which Departmental Promotion Committee is held. It is also stated that petitioner's APAR have been down graded without providing opportunity of advising, counseling and making representation as held in the case title U.P. Jal Nigam and others Vs. Prabhat Chandra Jain and ors. reported in AIR 1996 S.C.1661 and also ignoring the circular dated 3.4.1998 issued for the purpose by the respondent/State. For this reason, it is stated that the APARs which have been down graded without any notice,counseling and advise to the petitioner should have been ignored by the DPC and the supersession of the petitioner to the Super Time Scale against the vacancies of the year 2002-2003 is illegal,unreasonable and unjust. He has been denied the opportunity to make representation before the concerned authority for correction of the down graded remarks. The petitioner has also stated that his work and conduct has been appreciated by the senior officers consistently for a number of years and many commendations/certificates, while serving in Senior Scale, have been issued to him by his Superior Officers. These certificates have been appended with the writ petition as Annexure-4 to Annexure-20. The petition was admitted on 24.01.2006. The respondents were served. Only respondent No.1 and 2 filed reply. Respondent No.5 did opt to file reply initially. The petition was set-down for hearing. On 14.09.2006 upon hearing submissions of the learned counsel for the petitioner, learned counsel for the respondent/State was directed to produce the original record of the APARs of the petitioner for perusal of the Court. On 5.10.2006 again the arguments were resumed and the petition was directed to be listed on 6.10.2006. At this stage, perhaps on noticing the arguments of the learned counsel for the petitioner and the observations of the Court, the respondent No.5 Anand Vardhan Shukla, who, vide impugned order, has been promoted to the Super Time Scale superseding the petitioner, appeared through his counsel Mr. Ashok Gaur. Similarly, Mr. Girdhari Lal Sharma also appeared through his counsel Mr. Maneesh Bhandari. He filed an application for his impleadment as party respondent, which was not opposed by the learned counsel for the petitioner. He was impleaded as party respondent No.6. Both the respondents Nos 5 and 6 sought time to file reply,which was granted and they filed the reply. The respondents Nos.1 and 2 have filed reply jointly whereas respondents Nos.5 and 6 filed their reply separately. The respondents Nos.1 and 2 in their reply have denied the claim of the petitioner for promotion to Super Time Scale against the vacancy of the year 2002- 2003 stating that the impugned promotions have been made by the respondent/State against the vacancies of the year 2002-2003, 2003-2004 and 2004-2005 on merit and do not suffer from any illegality or irregularity. It is denied by the respondents that down gradings were assigned to the petitioner in his APARs from time to time without recording any reason. The judgment delivered by the Apex Court in case title of U.P. Jal Nigam and ors. Vs. Prabhat Chandra Jain and ors. (Supra) has no application to the facts of the present case. So far as consideration of the petitioner against the vacancy of the year 2002-2003 is concerned, the petitioner according to the Seniority List did not fall within the zone of consideration, therefore, could not be considered. So far as the seniority of the petitioner shown in the Seniority List as stood on 1.4.1999 it is due to the judgment delivered by the Supreme Court in Ajit Singh Januja's case. The respondent No.5 in his reply has submitted that the writ petition is not maintainable, as the petitioner has not impleaded all the promotees as party respondents in the writ petition. The petitioner has wrongly approached this Court invoking extraordinary writ jurisdiction under Article 226 of the Constitution of India, as there is no violation of legal or fundamental rights of the petitioner. The petitioner should have first approached the Rajasthan Civil Services Appellate Tribunal,Jaipur,an appropriate appellate forum, created under the provisions of Rajasthan Civil Services Appellate Act which provides an alternative statutory remedy for adjudication of such grievances. The answering respondent has clean record. The petitioner was subjected to inquiry under Rule 17 of the CCA Rules of 1958 and rightly not granted the Selection Scale. The APARs of the petitioner were fully evaluated by the DPC vis-a-vis that of others and there is no violation of the circular of State Government issued for making assessment of the officer for recording of APARs. The respondent No.6 in his reply has stated that the persons likely to be affected i.e. promotees have not been arrayed as party respondents. Even the answering respondent has been impleaded as party respondent at his instance. It is a case of non-joinder of necessary parties and the petition deserves dismissal. The petitioner has alternative efficacious statutory remedy available under the provisions of Rajasthan Civil Services Appellate Act and should have exhausted it before approaching this Court. The claim of the petitioner for promotion to the Super Time Scale against the vacancies of the year 2002-2003 is not sustainable as the candidate eligible to seek consideration must possess five years APARs, outstanding or very good out of seven years preceding to the year in which the Departmental Promotion Committee is held. It is also stated that the reliance placed on the judgment of the Supreme Court delivered in case title U.P. Jal Nigam and ors. Vs. Prabhat Chandra Jain and ors. (Supra), has no application to the case of the petitioner. Otherwise also, the issue pertaining to the recording of reasons for down grading the rating by the Accepting Authority, can be verified from the record of the petitioner maintained by the respondents. The petitioner has failed to take notice of the subsequent judgments of the Supreme Court on the issue and the claim projected by the petitioner on the basis of the judgment (supra) does not survive. The answering respondent has been awarded not only many commendation certificates but police medals also whereas the petitioner has only received the commendation certificates. The respondent has appended these certificates with his reply as Annexures-R/6/1 and R/6/2. Heard the learned counsel for the parties and perused the record. Upon hearing the learned counsel for the parties and perusal of the record, the following points emerge for consideration of the Court and required to be dilated and addressed; (i) Whether the writ petition is not maintainable as the petitioner has not exhausted alternative efficacious statutory remedy available before the Rajasthan Civil Services Appellate Tribunal. (ii) Whether the seniority of the petitioner in the Selection Scale has been interpolated and wrongly fixed showing him below Mr.Sumesh Chand Kalla. (iii) Whether the writ petition is not maintainable being suffering from non-joinder of the parties as all the promotees have not been arrayed as party respondents, (iv) Whether the petitioner was not eligible to be considered in terms of his APARs or has been arbitrarily denied the right of consideration and that his APARs have not been recorded in terms of procedure prescribed by the State. Learned counsel for the respondent has submitted that the petitioner is an officer of Rajasthan Police Service. The Government has created Rajasthan Civil Services Appellate Tribunal, Jaipur,in terms of the provision of Rajasthan Civil (Service Matters Appellate Tribunals) Act, 1976 and the down grading of the APARs and denial of consideration for promotion should have been challenged before the said Tribunal by the petitioner. In support of his plea, he has placed reliance on Full Bench judgment of this Court delivered in case title Tayyab Ali Vs. State of Rajasthan reported in RLR 1988(2) 1 wherein the petitioner filed writ petition before the High Court challenging adverse entry recorded in his APARS. The respondents at the very out-set took objection to the jurisdiction of the High Court to entertain the petition pleading that the efficacious alternative statutory remedy for redressal of grievances lies before the Tribunal, by way of an appeal invoking Section 2 (f) (ii) of the Act of 1976. The Division Bench of this Court referred the petition to the Larger Bench formulating the issue which reads as under:- “Whether an adverse entry in the Annual Performance Appraisal Report of the Government Servant will fall under Clause (v) of Section 2(f) of the Rajasthan Civil Services (Service Matters Appellate Tribunals)Act,1976 and the Service Appellate Tribunal will have the jurisdiction to entertain an appeal in the matter.” Learned counsel for the respondents have also relied upon the Division Bench judgment of this Court delivered in case title Laxman Singh Verma Vs. The State of Rajasthan and others reported in WLC 2000 (2) (Raj)11 wherein the writ petition filed by the petitioner was dismissed by the learned Single Judge on the ground of availability of an alternative statutory remedy against the order passed by the Joint Registrar, Co-operative Societies. The Division Bench, in appeal, while dealing with the existence of statutory alternative remedy, in para 16 of the judgment, observed as under:- “Thus, we are of the view that no broad proposition can be laid down that in all cases, where a writ petition has been admitted under article 226 of the Constitution of India, the Court will have no discretion at the time of the final hearing to relegate the petition to statutory alternate remedy available. The writ petition is admitted ex-parte . It is always open to the respondents to resist the writ petition on all available grounds including the ground of maintainability of the writ petition on the ground of efficacious alternate remedy available under the statute. It is for the Court to consider exercising the sound judicial discretion as to whether at a particular stage, petitioner should be heard, notwithstanding the existence of alternate remedy or not. No inflexible rule can be laid down in this regard. It is a mere matter of expediency. Normally where complaint is made against any act done or purported to be done under any statutory provision, the fact that there exists in the statute itself a possible remedy is an important fact to be taken for consideration and the Court will be extremely reluctant to interfere by way of high prerogative writ. Thus, it is essentially a question of fact to be decided in each case. Suffice to say that the tendency to bye pass alternate remedy must be discouraged and no body should be permitted to take advantage of his own wrong. In the instant case, the respondents at the earliest by filing the reply raised a preliminary objection with respect to the maintainability of the writ petition on the ground of alternate remedy. Petitioner got the writ petition admitted saying that similar writ petitions have been admitted. It is also to be noticed that though the learned Single Judge could have straight way rejected the petition upholding the preliminary objection that the writ petition was not maintainable in view of the statutory alternate remedy available, has protected the writ petitioner by giving a direction that if the appeal is filed within six weeks, the same shall be decided on merits expeditiously within a period of six weeks without taking the technical objection of limitation. In our view, in the facts of the case, learned Single Judge was justified in relegating the petitioner to statutory alternate remedy. While doing so, learned Judge has considered expedient to protect the petitioner, by giving appropriate direction. There is no obligation on the Court to give such protection, as such, it cannot be taken as precedent. It depends upon the facts of the each case. Thus, the order of the learned Judge calls for no interference by us.” In rebuttal, learned counsel for the petitioner relying upon the judgments of the Supreme Court in cases title Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and others, (1998) 8 SCC 1, Smt. Shashi Gaur Vs. NCT of Delhi and others, (2001)10 SCC 445 (3), S.J.S. Business Enterprises(P). Ltd. Vs. State of Bihar and others, (2004)7 SCC 166 and L.K. Verma Vs. HMT Ltd. and Another, (2006)2 SCC 269 submitted that in these judgments the issue in controversy was whether the party shall approach first to the Tribunal exhausting alternative efficacious statutory remedy. Dealing with it, the Court in the Whirlpool Corporation's case(supra) observed as under:- “14. The power to issue prerogative writ under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for “any other purpose”. 15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly jurisdiction of the vires of an Act is challenged. There is a plethora of case-law on this point but to cut-down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field.” In case title Shashi Gaur Vs. NCT Delhi and others (Supra) (2001) 10 SCC 445 the appellant was having remedy by way of an appeal before the Tribunal and despite that he approached the High Court.Objection was taken to the maintainability of the writ petition as the alternative efficacious statutory remedy was available. Dealing with it, the Apex Court observed in para 7 and 8 of the judgment as under:- “7.This judgment and the interpretation put to the provisions of sub-sections (2) and (3) of Section 8 undoubtedly is of sufficient force. But, the question for our consideration would be that, would it be appropriate for us to give a narrow construction to sub-section (3) of Section 8 thereby taking the teachers whose services were terminated not by way of dismissal, removal or reduction in rank but otherwise, out of the purview of the Tribunal constituted under Section 11 of the Act. The statute has provided for a Tribunal to confer a remedy on the teachers who are often taken out of service by the caprices and whims of the management of the private institutions. The governmental authorities having been given certain control over the action of such private management, if an appeal to the Tribunal is not provided to such an employee, then he has to knock the doors of the court under Article 226 of the Constitution which is a discretionary one. The remedy provided by way of an appeal to the Tribunal is undoubtedly a more efficacious remedy to an employee whose services stand terminated after serving the institution for a number of years, as in the present case where the services are terminated after 14 years. 8.In this view of the matter, we are persuaded to take the view that under sub-section (3) of Section 8 of the Act, an appeal is provided against an order not only of dismissal, removal or reduction in rank, which obviously is a major penalty in a disciplinary proceeding, but also against a termination, otherwise except, where the service itself comes to an end by efflux of time for which the employee was initially appointed. Therefore, we do not find any infirmity with the order of the High Court not entertaining the writ application in exercise of its discretion though we do not agree with the conclusion that availability of an alternative remedy ousts the jurisdiction of the court under Article 226 of the Constitution.” In case title S.J.S. Business Enterprises(P). Ltd. Vs. State of Bihar and others, (2004)7 SCC 166, the appellant therein by way of suit challenged the action of BICICO and obtained interim relief restraining the BICICO from selling the hotel. The next day, the writ petition was filed by him for the same relief as has been prayed in the suit. The interim order was also passed by the learned Single Bench. After hearing learned counsel for the parties, the learned Single Judge, dismissed the petition on the ground that the appellant had suppressed the fact that he had filed suit prior to initiation of the writ proceedings, his conduct verged on fraud and that the appellant had dis-entitled himself to any relief in the extraordinary prerogative writ jurisdiction. The Division Bench also dismissed the appeal holding that the Court would not interfere with the order of the learned Single Judge because of the material suppression of facts by the appellant. While dealing with the point as to whether in view of the fact that the suit was filed earlier and the writ petition was also filed before the High Court,the Division Bench was justified in maintaining the order of the learned Single Judge. The Apex Court observed in para 14 of the judgment as under:- “14.Assuming that the explanation given by the appellant that the suit had been filed by one of the Directors of the Company without the knowledge of the Director who almost simultaneously approached the High Court under Article 226 is unbelievable (sic), the question still remains whether the filing of the suit can be said to be a fact material to the disposal of the writ petition on merits. We think not. The existence of an adequate or suitable alternative remedy available to a litigant is merely a factor which a court entertaining an application under Article 226 will consider for exercising the discretion to issue a writ under Article 226. But the existence of such remedy does not impinge upon the jurisdiction of the High Court to deal with the matter itself if it is in a position to do so on the basis of the affidavits filed. If, however, a party has already availed for the alternative remedy while invoking the jurisdiction under Article 226, it would not be appropriate for the court to entertain the writ petition. The rule is based on public policy but the motivating factor is the existence of a parallel jurisdiction in another court. But this Court has also held in Chandra Bhan Gosain Vs. State of Orissa that even when an alternative remedy has been availed of by a party but not pursued that the party could prosecute proceedings under Article 226 for the same relief. This Court has also held that when a party has already moved the High Court under Article 226 and failed to obtain relief and then moved an application under Article 32 before this Court for the same relief, normally the Court will not entertain the application under Article 32. But where in the parallel jurisdiction, the order is not a speaking one or the matter has been disposed of on some other ground this Court has,in a suitable cases, entertained the application under Article 32. Instead of dismissing the writ petition on the ground that the alternative remedy had been availed of, the court may call upon the party to elect whether it will proceed with the alternative remedy or with the application under Article 226. Therefore, the fact that a suit had already been filed by the appellant was not such a fact the suppression of which could have affected the final disposal of the writ petition on merits. 15. In this case, admittedly, the appellant has withdrawn the suit two weeks after the suit had been filed. In other words, the appellant elected to pursue its remedies only under Article 226. The pleadings were also complete before the High Court. No doubt, the interim order which was passed by the High Court was obtained when the suit was pending. But by the time the writ petition was heard the suit had already been withdrawn a year earlier. Although the appellant could not, on the High Court's reasoning, take advantage of the interim order, it was not correct in rejecting the writ petition.” In case title L.K.Verma vs. HMT Ltd. and Another reported in (2006) 2 SCC 269, the appellant-Safety Officer, an employee of the respondents therein, was placed under suspension and subsequently dismissed from service. The Appeal was preferred by the appellant therein before the Labour Commissioner, which came to be allowed. The respondents approached the High Court despite existence of alternative remedy available to them. Objection was taken by the other side that in view of the existence of an alternative remedy, the respondents