CW 910/95 [1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH S.B. Civil Writ Petition No.910/95 Dharamvir Versus State & Anr. DATE OF ORDER : 11/02/2009 HON'BLE MR. JUSTICE AJAY RASTOGI Mr. Prahlad Singh, for petitioner Mr. Pradeep Kalwania, Addl. Govt. Counsel, for respondents *** This is unfortunate that petitioner has to approach this court by filing of second round of petition despite the fact that in the earlier petition preferred which is reported in Dharam Vir Vs. State of Rajasthan [1992 (2) WLC-297]. This court after examining the controversy finally held that he will be eligible against the vacancies of 1978 for the post of Assistant Engineer and was further directed that he should be considered for promotion against the year 1978 with retrospective effect with all consequential benefits. Petitioner who was initially diploma holder and joined service as Engineering Subordinate w.e.f. 18th August, 1965 was confirmed w.e.f. 9th September, 1975, passed AMIE examination on 31st July, 1977 and he was designated as Junior Engineer w.e.f. 31st July, 1977 and was promoted as Assistant Engineer initially on urgent temporary basis vide order CW 910/95 [2] dt.10th February, 1981 and was promoted on the recommendations of DPC vide order dt.24th June, 1982. It is relevant to mention that petitioner along with other Junior Engineers were screened but under R.6(c) of the Rules, 1973 and accordingly, seniority was also asssigned in terms of R.31(2) of the Rules which is also evident from order Ann.1 dt.20th June, 1975. In the said order, the petitioner's name finds place at Serial No.231, at the same time one Shri Gulab Singh Meratiya was at No.334, he was promoted as Assistant Engineer against the vacancies of 1978 and this fact has been specifically stated by the petitioner in Para 14 of the writ petition which has not been disputed by the respondents in their reply. When he was not being considered against the vacancies of 1978, the petitioner approached this court by filing of instant petition with the grievance that as he was eligible against the vacancies of the year 1978 arbitrarily deprived from his legitimate right of consideration for promotion as Assistant Engineer. This court in the judgment [supra] finally observed as under: “The writ petition is, therefore, allowed. The respondents are directed to consider the promotion case of the petitioner against the vacancies which were available in the year 1978 and CW 910/95 [3] thereafter, by treating the petitioner to be eligible for promotion as Assistant Engineer. If the petitioner is found suitable for such promotion with retrospective effect, he should be given such retrospective promotion with all consequential benefits. This exercise must be undertaken and completed within six months of the submission of certified copy of this order. Costs made easy.” In the light of judgment of this court, the respondents were under an obligation to consider candidature of the petitioner against the vacancies determined for the year 1978 and when they failed to hold review DPC, he initially preferred contempt petition. However, the same was dismissed, as such he was constrained to approach to file the instant petition. Counsel for petitioner submits that once a person who was junior to him in the cadre of Junior Engineer was promoted as Assistant Engineer against the quota of 1978, it was not at all justified on the part of respondents to still hold the the petitioner either ineligible against the quota of 1978 or was not within the zone of consideration against vacancies determined for the year 1979. Moreso, when the person junior to him has been promoted against the quota of 1978 as Assistant Engineer the petitioner also CW 910/95 [4] conferred with right of fair consideration for his promotion against the quota of 1978 as Assistant Engineer and this has been apparent error which the respondents have committed in not giving him promotion while being considered for promotion as Assistant Engineer against the vacancies of 1978 or 1979, as the case may be. Respondents have filed reply and their objection was that since the petitioner does not fall within the zone of consideration against vacancies of 1979, he could not have been considered and thus, has rightly been promoted against the vacancies of 1981-82. I have considered the submission of counsel for parties and perused the material on record. This court finally concluded its controversy in the judgment [supra] that the petitioner became eligible and entitled to be considered for promotion against the vacancies of the year 1978. So far as their objection with regard to zone of consideration is concerned, suffice it to say that if person junior to him was promoted against the vacancies of the year 1978 as Assistant CW 910/95 [5] Engineer and it has been specifically named by the petitioner of one Mr. Gulab Singh Meratiya in Para 14 of the writ petition which has not been controverted. In such circumstances, the respondents were under an obligation to consider candidature of the petitioner against the vacancies of 1978 and thereafter, against the vacancies of 1979, as the case may be. Since as already observed his eligibility against the vacancies of 1978 has already been concluded by this court in the judgment [supra]. It has also been informed to this court that during pendency, the petitioner has retired from service while holding the post of Executive Engineer. Consequently, writ petition stands allowed. Respondents are directed to hold the review DPC of the year 1978 & 1979 for promotion to the post of Assistant Engineer [Civil] and to consider candidature of the petitioner and if found suitable, promoted with consequential benefits that may include revision of pay and other retiral benefits flowing thereof. Necessary orders be passed within three months. No costs. [AJAY RASTOGI], J. FRBOHRA910CW95 11-2.doc