CW 2716/92-Kalyan Chand Mathur Vs.The Registrar, RHC, Jodhpur & Ors Judgment dt.13.3.09 1/6 S.B. CIVIL WRIT PETITION NO.2716/1992 Kalyan Chand Mathur Vs. The Registrar, RHC, Jodhpur & Ors. Date of Judgment : 13th March, 2009 PRESENT HON'BLE DR. JUSTICE VINEET KOTHARI Mr. S.N. Trivedi for the petitioner. Mr. V.K. Mathur with Mr. Lokesh Mathur for the respondents. --------- 1. Heard learned counsels. 2. The appellate authority (Hon'ble Mr. J.R. Chopra, J.) rejected the appeal of the petitioner by the order dated 7th May, 1990. The reasons given for not allowing the promotion to the petitioner with retrospective effect to the post of Office Assistant in the judgeship of District Judge, Merta City is as follows in the said order:- “It is true that if a man is entitled for consideration for the basis of his eligibility and he is not considered for promotion then that amounts to penalty of withholding of the promotion. So far as this appeal is concerned, it is not a case of non consideration. The petitioner's case has been considered and the proceedings of the Departmental Promotion Committee have been looked into wherein it has been observed by the learned Member of the Committee that there are 17 adverse entries existing against this person viz; withholding of grade increments, warnings, CW 2716/92-Kalyan Chand Mathur Vs.The Registrar, RHC, Jodhpur & Ors Judgment dt.13.3.09 2/6 severe warnings for negligence and carelessness, censures etc. In that view of the matter, after due consideration of his entire service record they did not find him suitable for promotion. It is true that in the earlier orders that have been issued which are dated 10.2.80, 8.4.83 and 16.12.83 bearing Nos.41, 81 and 341 respectively. The petitioner's case was considered for promotion to the post of office Asstt. But he was superseded on the ground that a departmental enquiry was pending against him and it was mentioned by the learned D.J. Merta in those orders that if he is exonerated in that enquiry then he will get his due promotion and it will not affect seniority. Mr. Kalyanchand has argued that as his future promotions have been protected in these three orders, he is entitled to promotion retrospectively on the post of Asstt, and, thereafter on the post of Munsarim. He has now promoted to the post of Senior Reader which is equivalent to the post of office Asstt. and so his grievance is now limited to this extent that this promotion as office Asstt., should be made retrospectively with effect from the date 10.2.80 when Shri Jamaluddin was promoted as Reader to the D.J. Merta and he may further be promoted notionally as Munsarim with effect from 23.3.83, the date from which Shri Jamaludin was promoted as Musarim, Unfortunately no appeal has been filed against the orders dated 10.2.80, 8.4.83 and 16.12.83 and when no appeal has been filed no relief can be granted as against these orders. Of course, it was CW 2716/92-Kalyan Chand Mathur Vs.The Registrar, RHC, Jodhpur & Ors Judgment dt.13.3.09 3/6 mentioned in these orders that if he is exonerated, of that enquiry pending u/r 16 of the C.C.A. Rules, he will be entitled to his due promotions and his seniority will be protected but thereafter in the year 1984 when he was considered for promotion to the post of Assistant, the Promotion Committee after going through his entire record came to the conclusion that he is not fit for promotion keeping in view the aforesaid 17 adverse entires in his service. The learned D.J. agreed with the report of the D.P.C. under these circumstances, it does not remain a case of non-consideration rather it is a case where he has been considered and has been superseded because he was not found unsuitable for promotion.” 3. Learned counsel for the petitioner submitted that Annex.8 order of the Registrar dated 23.5.1990 has been challenged in the present writ petition and since the order of the appellate authority (Hon'ble Mr. Justice J.R. Chopra) dated 7th May, 1990 was forwarded to the petitioner along with the order Annex.8 dated 23.5.1990, therefore, the challenge to the said order annex.8 dated 23.5.1990 should mean and include the challenge to the said order dated 7th May, 1990 of the appellant authority. 4. In the opinion of this Court, there is no force in this contention as well as in the writ petition. A bare perusal of the order Annex.8 dated 23.5.1990 passed by the Registrar of this Court CW 2716/92-Kalyan Chand Mathur Vs.The Registrar, RHC, Jodhpur & Ors Judgment dt.13.3.09 4/6 discloses that said order dated 7th May, 1990 is neither referred to in the said order nor is made a part of the said order by enclosing the same with that. Thus, the basic order passed by the Appellate Authority on 7.5.1990 has not even been challenged by the petitioner, in the present writ petition. The writ petition has been filed by the petitioner with the following prayers:- “(a) by an appropriate writ in the nature of mandamus, or any other appropriate writ, order or direction the petitioner may be promoted with effect from the date of junior employee Shri Jamaludeen was promoted i.e. with effect from 10.2.80 as senior Reader and with effect from 23.3.83 as Munsarim with all consequential benefits. (b) by an appropriate writ, in the nature of certiorari or any other appropriate writ, or direction the review order dated 2.7.91 (Annexure-12) the appellate order dated 23.5.90 (Annexure-8) and order dated 7.7.84 (Annexure-4) qua the respondent No.1 to 3 may be quashed and set aside. (c) the petitioner may be further promoted on the post of Munsarim. (d) the recommendation of the Departmental promotion committee against the petitioner may be vitiated. (e) any other appropriate writ, order or direction which may be considered to be just and proper in the facts and circumstances of the case may kindly be issued in favour of the petitioner. (f) the writ petition may kindly be allowed with CW 2716/92-Kalyan Chand Mathur Vs.The Registrar, RHC, Jodhpur & Ors Judgment dt.13.3.09 5/6 costs.” 5. Since the appellate authority has passed a detailed order as quoted above on 7.5.1990 giving reasons for denial of the promotion to the petitioner with retrospective effect and the same has not been challenged by the petitioner in the present writ petition, the said challenge cannot be entertained indirectly even if the consequential order dated 23.5.1990 passed by the Registrar, which though does not refer to the order dated 7th May, 1990, at all is challenged. The order of Appellate Authority cannot be said to have merged with the order of the Registrar, Annex.8 dated 23.5.1980, nor it can be said to have merged with the review order dated 2.7.1991 Annex.12 also passed by the Registrar as contended by counsel for the petitioner. 6. The observation of learned District Judge in the orders dated 10.2.1980, 8.4.1984 and 16.12.1983 that if petitioner is exonerated he will get his due promotion, also does not confer any vested right in the petitioner of promotion as such. After exoneration under Rule 16 CCA enquiry, his right to be considered for such promotion stood exhausted upon consideration by the D.P.C. which has been rightly upheld by the Appellate Authority on 7.5.1990 and does not call for any interference by this Court in this present writ CW 2716/92-Kalyan Chand Mathur Vs.The Registrar, RHC, Jodhpur & Ors Judgment dt.13.3.09 6/6 petition. 7. Consequently this Court does not find any ground to interfere with the appellate order dt.7.5.1990 in the present writ petition. The present writ petition being devoid of merit as per reasoning given in the appellate order dt.7.5.1990 is accordingly dismissed. [ DR. VINEET KOTHARI ], J. item No.4 babulal/-