1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : O R D E R : S.B. Civil Writ Petition No.1739/2007. (Jai Prakash Sharma Vs. RSRTC & Others) DATE OF ORDER : August 13, 2008 P R E S E N T Hon'ble Mr. Justice Gopal Krishan Vyas _______________________________ Mr. P.R. Singh for the petitioner. Mr. V.K. Mathur for the respondent(s). In this case, the petitioner has prayed for the following reliefs : “(1)It is, therefore, humbly prayed that the present writ petition may kindly be allowed and by an appropriate writ, order or direction the respondents may kindly be directed to accord promotion to the petitioner on the post of Divisional Manager against the vacancies of the year 2003-2004. (2) That the order-dated 21.12.2006 (Annexure – 16) may kindly be modified and the respondents may kindly be directed to accord promotion to the post of Divisional Manager to the petitioner from the date the same was allowed to the persons junior to him as shown in order-dated 30.09.2003 (Annexure-5). (3) That the respondents may be directed to 2 accord all consequential benefits of the post of Divisional Manager to the petitioner w.e.f. 30.09.2003 the date from which his immediate junior was promoted to the post of Divisional Manager. (4) That the respondents may kindly be directed to include the name of petitioner in order dated 14.06.2006 (Annexure – 14) and accord seniority to the petitioner on the post of Divisional Manager w.e.f. 30.09.2003 above the name of his immediate junior.” According to the facts of the case, the petitioner was appointed as Assistant Depot Manager in the Rajasthan State Road Transport Corporation (for short, hereinafter called “the Corporation”). Thereafter, the petitioner was promoted to the post of Depot Manager and a seniority list of the Depot Managers was issued on 14.09.1977 in which name of the petitioner was included at S.No.5. On 28.10.1997, promotions were made to the posts of Assistant Divisional Manager and 17 persons were granted promotion in which except Shri Rishi Raj all the 16 incumbents were junior to the petitioner and the petitioner's case was ignored on the ground that two disciplinary proceedings were pending against him but, in fact, he was exonerated in both the said proceedings. When the petitioner's case was ignored for promotion then a writ petition was preferred by the petitioner before this Court being S.B. Civil Writ Petition No.386/2000. The said writ 3 petition was decided vide judgment/order dated 19.09.2003 by a co-ordinate Bench of this Court in which it was specifically observed that the claim of the petitioner for promotion is required to be considered and while holding the petitioner entitled for promotion it was directed that the respondents may consider the case of the petitioner for promotion from the date persons junior to him were provided promotion; but, the petitioner shall be entitled to notional promotion and will not be entitled to arrears due to such promotion. The case of the petitioner was considered and he was accorded promotion on the post of Assistant Divisional Manager. The contention of the petitioner is that for further promotion to the post of Divisional Manager in respect of vacancy of 2003-2004 a meeting of the Departmental Promotion Committee was convened and without considering the candidature of the petitioner, junior incumbent was promoted to the post of Divisional Manager namely, Shri Hanuta Ram who was junior than the petitioner was accorded promotion on the post of Divisional Manager on 30.09.2003. Against the said action of the respondents for ignoring claim of the petitioner a representation was moved but the grievance of the petitioner was not redressed. Therefore, the petitioner had to file another writ petition bearing S.B. Civil Writ Petition No.166/2006. However, before the same could be listed for admission, the 4 respondents convened DPC on 21.12.2006 and the petitioner was promoted to the post of Divisional Manager against the vacancy of 2005-2006 instead of the vacancy of the year 2003- 2004. In this writ petition, the petitioner is claiming promotion to the post of Divisional Manager against the vacancy of the year 2003-2004 because against the vacancy of the said year his junior person Hanuta Ram was promoted without considering the candidature of the petitioner and for the same it is submitted that no adverse record existed for which the petitioner could be denied promotion to the post of Divisional Manager from the date when his junior Shri Hanuta Ram was promoted. Therefore, the petitioner has prayed that the respondents may be directed to accord promotion to the petitioner from the date the junior person i.e., Shri Hanuta Ram was promoted with all consequential benefits. Per contra, by way of filing reply to the writ petition, it is stated by the respondents that during the course of holding DPC for the various posts which are Depot Manager, Assistant Divisional Manager and Divisional Manager, the petitioner was either facing disciplinary proceedings or was punished or lacking in ACRs. Thus his junior was promoted to the post of Divisional Manager. Later on, when the petitioner was found eligible and came within the zone of consideration then he was promoted 5 against the vacancy of the year 2005-2006. Therefore, the petitioner cannot claim promotion against the vacancy of the year 2003-2004 instead of vacancy of the year 2005-2006 because he was not having good record when the case of the junior persons was considered. I have considered the rival submissions and perused the entire record of the case. In this case, although the petitioner was promoted on the post of Divisional Manager against the vacancy of the year 2005- 2006 but the claim of the petitioner is that he was entitled to be considered for promotion for the vacancy of the year 2003-2004 because in that year his junior person Hanuta Ram was promoted. In this connection, it is evident from the reply that the respondents considered the case of the junior person knowing it well that he is junior to the petitioner and the case of the petitioner was denied because he had adverse entry for the year 1990-1991 on record and in the year 1997-98 as person junior to him i.e., Hanuta Ram was promoted, therefore, the petitioner became junior to Hanuta Ram. As per the respondents' reply, Hanuta Ram was promoted to the post of Assistant Divisional Manager and Divisional Manager because at the time of considering his case the petitioner was not eligible for promotion, therefore, the petitioner cannot claim any right at par with his junior. In my opinion, the assertion of the respondents 6 is totally illegal because in the judgment rendered by the learned Single Judge of this Court in the earlier writ petition on 19.09.2003, it was categorically observed that the adverse remarks in the annual confidential report for the year 1990-91 cannot debar any person from promotion against the vacancy of seniority-cum-merit and in the earlier judgment of this Court, directions were issued for considering the candidature of the petitioner while ignoring the ACR of the year 1990-91 and, in pursuance of the said judgment passed in S.B. Civil Writ Petition No.386/2000 dated 19.09.2003, the petitioner was accorded promotion to the post of Assistant Divisional Manager, therefore, for further promotion the respondents were under obligation to ignore the ACR of the year 1990-91 and the petitioner was to be given benefit of promotion against the vacancy of the year 2003- 2004. But, instead of considering the case of the petitioner against the vacancy of the year 2003-2004, the respondents granted promotion to the petitioner to the post of Divisional Manager against the vacancy of the year 2005-2006 by way of convening the meeting of the DPC. In my opinion, when admittedly the junior person was promoted to the post of Divisional Manager against the vacancy of the year 2003-2004 then the petitioner is also entitled for promotion from the date his junior person was promoted. It is also required to be observed that in the reply assertion has been 7 made with regard to adverse ACR for the year 1990-91 and no other adversity has been brought to the notice of this Court. Therefore, the petitioner is entitled for the relief sought for. In this view of the matter, this writ petition is allowed. The respondents are directed to consider the case of the petitioner for promotion to the post of Divisional Manager against the vacancy of the year 2003-2004 by way of holding a review DPC and consider the case of the petitioner for promotion to the post of Divisional Manager against the vacancy of the year 2003- 2004 while ignoring the ACR of the year 1990-91, and after consideration, if the petitioner is found otherwise eligible for promotion against the vacancy of the year 2003-2004, then, the petitioner shall be accorded promotion to the post of Divisional Manager against the vacancy of the year 2003-2004 with effect from the date of promotion of his junior Shri Hanuta Ram and the petitioner will be entitled to all those benefits as granted to the junior person on such promotion. There shall however be no order as to costs. (Gopal Krishan Vyas) J. Ojha, a.