1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.6004/97 State of Rajasthan vs. Rajasthan Civil Services Appellate Tribunal & Anr. Date of order : 8/2/2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Ms. Raj Sharma for the petitioner. Shri Sanjeev Prakash Sharma for the respondent. ****** Heard learned counsel for the parties. This writ petition has been filed by the petitioner State of Rajasthan against the judgement dated 20.12.1996 passed by Rajasthan State Civil Services Appellate Tribunal. Ms. Raj Sharma, learned Additional Government Counsel argued that the Tribunal has acted wholly illegally by passing its order merely on the basis of presumption that vacancies were still available with the petitioners for promotion to the super time scale of RAS against the quota of the year 1987-88 and that the Tribunal observed that since the promotion granted to some of the juniors of the respondent was not according to the criteria that seven out of seven very 2 good / outstanding ARARs for the preceding seven years as per the law laid down by Supreme Court in Shambhu Singh Meena & Ors. vs. State of Rajasthan-(1995) Suppl 2 SCC 431, therefore, they should be assumed to have been promoted on the criteria of seniority cum merit in terms of the proviso (2) to sub-rule 7 of Rule 28B of the Rajasthan Administrative Service Rules, 1954 and that the Tribunal directed that since the respondent Ash Karan Agarwal who died during the pendency of the appeal, was senior to the other respondents, he will be granted the benefit promotion on the criterion of seniority cum merit. Learned counsel argued that the Tribunal could at best direct reconsideration / review the promotion of the so called juniors of the respondents but the Tribunal could not assume the availability of vacancies on that basis and further assumed non availability of sufficient candidates and then thereafter also assume that the persons promoted by the petitioners should be treated to have been promoted on the basis of criteria of seniority cum merit and on that basis 3 direct that the respondent be granted the benefit of seniority cum merit. Shri Sanjeev Prakash Sharma, learned counsel for the respondents submitted that the respondent who was appellant before the Tribunal impleaded all his 32 juniors as respondents in the appeal before the Tribunal. It is only with a view to protecting their promotion that the Tribunal decided not to direct review DPC, but rather directed that the respondent be given benefit of supertime scale against the year 1987-88 on the basis of seniority-cum-merit. Learned counsel submitted that the petitioners have filed an additional affidavit in which they have admitted that all the above referred to juniors of the respondent as also the respondent were promoted to the post of IAS on recommendation of the selection board on 18.9.1989. There thus remains the only question of giving pecuniary benefits for a period of about two years. It is directed that the Tribunal was perfectly justified in moulding the relief so as to save inconvenience to a large number of persons 4 and therefore rightly directed grant of such benefit to the respondents. Learned counsel for the petitioner rejoined and submitted that even if a disciplinary proceeding was pending against the respondent, then the sealed cover procedure should have been invoked in his case too, as was done in the case of G.P. Nagar and Madan Lal Gupta. In any case, learned counsel submitted that the disciplinary proceedings were stayed by interim order of this Court in writ petition filed by the respondents. And ultimately, the charge sheet issued under Section 16 was quashed by judgement of division bench in S.B. Civil Writ Petition No.476/1983, Aas Karan Agarwal on 5.1.1981. Upon hearing the learned counsel for the parties and perusing the judgment passed by the Tribunal, I find that although it may be true that following the law laid down by the Supreme Court in Shambhu Singh Meena, supra, the requisite merit was to be determined on the basis of very good and / or outstanding remarks secured by a candidate in seven out of preceding seven years and if the Tribunal 5 found that such criteria was not followed by the petitioner or in the case of juniors of the respondent, there was no reason for the Tribunal to presume that their promotion should be taken to have been made on the criteria of seniority-cum-merit and on that basis to further presume non-availability of sufficient candidates and also availability of vacancies, and then to further direct that benefit be granted to the respondent. The Tribunal however appears to have been moved by consideration of the fact that the respondent expired during the pendency of the writ petition and that it would be only the question of giving monetary benefits to his widow and that the promotion granted to several persons in the super time scale may not be disturbed, therefore, the Tribunal allowed the appeal by granting financial benefits of promotion to the super time scale to the IAS against the year 1987-88. The petitioner in filing the present writ petition have not joined those other persons, who were respondents before the Tribunal in the appeal filed by the respondent. They were also subsequently 6 promoted as I.A.S. The question now remains of consequential benefits consequent upon promotion of the respondent Aas Karan Agarwal to the super time scale against the vacancies of the year 1987-88. In my considered view, the impugned order needs to be suitably modified and the writ petition is accordingly disposed of with the direction to the petitioner State that it shall undertake a review consideration of the super time scale for promotion to the super time from RAS against the vacancies of the year 1987-88 taking into consideration the record of the others who were junior to the respondent as also the respondent and in the event promotion granted to any of the juniors of the respondent is not found to be inconformity with the ratio laid down by the Supreme Court in Shambhu Singh Meena, though their promotions shall not be disturbed and no recovery of monetary benefits paid to them shall be made since they have not been joined as party respondents by the petitioner-State. And if eventually the respondent is found entitled to promotion to super time scale on such review 7 consideration, his widow Shankuntala Agarwal shall be paid consequential benefits together with interest @ 6% per annum. The writ petition is disposed of in the manner indicated above. Compliance of the judgement be made within a period of four months from today. (MOHAMMAD RAFIQ), J. RS/