1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.4348/1996 Dr. Shankar Lal Pareek vs. The Chief Secretary & Ors. Date of order : 13/8/2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Deepak Asopa on behalf of Shri J.K. Yadav for the petitioner. Shri Vibhuti Bhushan Sharma, Addl. Govt. Counsel for the respondents. ****** This writ petition has been filed by Dr. Shankar Lal Pareek aggrieved by the order of his suspension in a disciplinary proceedings dated 30.5.1996, the order of his reversion from the post of Sr. Specialist to Jr. Specialist dated 3.7.1996 and the order refusing to retire him voluntarily dated 3.8.1995. Contention of learned counsel for the petitioner is that petitioner was wrongly placed under suspension and that, in any case, when he was promoted pursuant to recommendation of DPC, he could not have been abruptly reverted by the impugned order dated 3.7.1996 only because certain departmental enquiry was pending against him. Learned counsel for the petitioner 2 submits that petitioner due to his family circumstances, applied for voluntary retirement, but respondent-authority arbitrary declined his prayer for voluntary retirement. Even after his reversion, the petitioner was again entitled to be considered for promotion because on the maximum the respondent should have in the first instance placed recommendations of DPC convened for promotion qua the petitioner in the sealed cover and if and when the disciplinary proceeding ended in penalty against the petitioner, they were required to have convened review DPC to consider his case for promotion not only in respect of that year, but also for subsequent years. At the maximum, his promotion could have been delayed on account of penalty so awarded. Learned counsel submitted that petitioner was only 50 years old in 1996 when he filed writ petition and he retired from service on superannuation in the year 2006. The respondent could not have permanently debarred him from promotion. It is therefore prayed that the writ petition be allowed and 3 the impugned orders be quashed and set aside in the terms prayed for. Per contra, Shri Vibhuti Bhushan Sharma, learned Additional Government Counsel appearing for the respondents opposed the writ petition and submitted that petitioner was promoted due to a mistake because the DPC was not appraised of the fact that he was facing a disciplinary proceeding under Rule 16 of the Rajasthan Civil Service (Classification, Control and Appeal) Rules for major penalty. When this mistake was noticed, Medical Health Department informed the Department of Personnel which in consultation with the Rajasthan Public Service Commission directed for convening review DPC. Originally when the first DPC was convened, recommendations of the DPC were required to be kept in sealed cover. When this mistake came to notice, the review DPC was convened as per Rules of 1963 and as a result of review of DPC, the petitioner's earlier promotion was reviewed and he was reverted by order dated 3.7.1996. Eventually, the petitioner was awarded 4 penalty of stoppage of three grade increments vide order dated 31.3.1998. It is submitted that although the petitioner applied for voluntary retirement, but because he was facing disciplinary proceedings and was under suspension, the request for retiring him voluntarily was withheld and his application dated 6.5.1995 was rejected and this was conveyed to him within notice period of three months by order dated 3.8.1995. It is therefore prayed that the writ petition be dismissed. I have given my anxious consideration to the rival arguments and perused the material on record. In so far as the prayer of the petitioner for voluntary retirement is concerned, although it is a fact that petitioner applied for voluntary retirement on 6.5.1995, but it is also equally true that he was served with charge sheet on 11.3.1988 and on that basis the respondents were justified in withholding the permission to voluntary retire him and which is why by order dated 3.8.1995, they conveyed the 5 rejection of his prayer. Moreover, in the meantime, he was also placed under suspension. The rejection of the prayer for voluntary retirement, thus cannot be faulted and prayer on that account deserves to be rejected. Coming now to the procedure adopted by the respondents in the first instance making promotion of the petitioner and then reverting him pursuant to the recommendations of the review DPC and thereafter not considering him for promotion by convening of review DPC, I find that the Circular of the DOP dated 4.1.1977 was not correctly followed by the respondents in its true perspective right from the inception when the first DPC was convened. The respondents were required to invoke the sealed cover procedure in the case of petitioner i.e. the recommendations of DPC qua the petitioner were required to be kept in sealed cover. In other words, if the recommendation of the DPC were to promote the petitioner, which, in fact, in the present case was there, the respondents 6 should have kept those recommendations in the sealed cover. The procedure adopted by the respondents in re-convening the review DPC and then again obtaining recommendations therefrom to revert the petitioner, cannot be accepted as valid in law. But now that may not be necessary to be further examined because the departmental proceedings against the petitioner have finally culminated into imposition of penalty of three grade increments with cumulative effect. Merely because the petitioner was awarded such penalty by order dated 31.3.1988 does not mean that petitioner should be permanently debarred from the right to consideration for promotion. It is another matter that the DPC would be entitled to take its own view as to what would be the effect of such order of penalty on the entitlement of the petitioner to secure promotion depending on the criteria of promotion, whether it was seniority-cum-merit or merit alone etc. But the petitioner was certainly entitled to the right to consideration in accordance with relevant rules after the penalty was awarded 7 to him by order dated 31.3.1998. In the facts of the present case, the writ petition is partly allowed and the respondents are directed to convene the review DPC for considering the case of the petitioner for promotion for the year 1991- 92 and in subsequent years as per necessity despite for considering his case for promotion by taking into account his record of the relevant years including the above referred to penalty order. If he is adjudged suitable for promotion in any of these years, grant him promotion from such particular year with all the consequential benefits. Compliance of the judgement be made within a period of three months from the date of production of copy of this order. (MOHAMMAD RAFIQ), J. RS/