1 S.B.CIVIL WRIT PETITION NO.7717/2008 Shankarlal Balai v. State of Rajasthan & Ors. Date of Order :: 7th October, 2009 HON'BLE MR.JUSTICE GOVIND MATHUR Mr. MR Singhvi, for the petitioner. Mr. IS Pareek, for the respondents. .... The petitioner, a member of Rajasthan Tehsildar Service, was served with a memorandum under Rule 17 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 with an allegation that while working as Additional Tehsildar Bidasar he made attachment in respect of land covered by khasra No.309 measuring one bigha which was in unauthorised occupation of one Mohd. Hussain and made auction of the attached stones weighing 1920 ton with consideration of Rs.700/- only. As such, an indirect advantage was provided that resulted into loss to State treasury. The petitioner by submitting an explanation dated 29.8.2001 denied the allegations and the disciplinary authority accepted the same by giving a specific finding that the delinquent cannot be held guilty for erroneous determination of weight of the attached stones as 1920 tone, however, at the same time it was also held that the petitioner is guilty for making auction in contravention of the procedure 2 prescribed under the Land Revenue Act, a minor penalty of censure, therefore, was imposed upon him. An appeal giving challenge to the order imposing penalty dated 23.10.2002 also came to be rejected by the appellate authority vide order dated 5.7.2003 and a review petition giving challenge to the orders aforesaid was rejected by the Governor under order dated 28.11.2005. On basis of the penalty imposed under the order dated 23.10.2002 the respondents denied consideration for promotion to the petitioner for junior scale of Rajasthan Administrative Service. By this petition for writ the petitioner is challenging the order imposing penalty, thats confirmation by the appellate authority as well as by the reviewing authority and also the denial for promotion on the count of penalty in question. The contentions of counsel for the petitioner are that:- (1) the penalty of censure imposed under the order dated 23.10.2002 is erroneous for the reason that there was no charge against the petitioner for not adhering the procedure prescribed under the Land Revenue Act while making the auction of the attached property; (2) the penalty imposed upon the petitioner is erroneous, therefore, the promotion could have 3 not been denied to him to Rajasthan Administrative Service; and (3) even if it is assumed that the order of penalty is valid, then too on basis of minor punishment promotion could have not been denied as the criteria for the same is seniority-cum-merit. In reply to writ petition, the stand of the respondents is that the petitioner did not adhere the procedure prescribed under the Land Revenue Act while making auction of the attached property and as such there is no error in the penalty imposed. So far as promotion to Rajasthan Administrative Service is concerned, it is stated by the respondents that those promotions were made on adhoc basis and case of the petitioner was not considered on the count that he suffered with a penalty of censure. Heard counsel for the parties and considered the rival contentions. It is not in dispute that allegation against the petitioner under the disciplinary action was that he while working as Additional Tehsildar, Bidasar auctioned attached property i.e. of stone weighing 1920 ton @ Rs.700/- and as such he caused loss to the State treasury. The disciplinary authority in most unambiguous terms reached at the conclusion that the 4 delinquent cannot be held guilty for causing any loss to the State treasury as there was no definite evidence to establish the exact quantum of attached stones. As a matter of fact there was no allegation against the petitioner that he failed to adhere the procedure prescribed under the Land Revenue Act for making auction of attached property. As such, the penalty imposed upon the petitioner is apparently without jurisdiction. True it is that in the charge reference is given that the delinquent employee should have imposed a fine as per Section 89(7) of the Land Revenue Act but for that the petitioner has not been penalised and even that this issue was not adjudicated in the inquiry by the disciplinary authority. The sole reason for penalising the petitioner is that he failed to adhere procedure prescribed for auction of attached property and as said above that was not part of the charge for which inquiry was conducted. In view of that the order passed by the disciplinary authority is apparently bad and the appellate authority as well as reviewing authority failed to appreciate this aspect of the matter. After declaring the order passed by the disciplinary authority bad, I would have ignored the examination of other argument that the promotion could have not been denied to the petitioner on the count of minor penalty, however, I deem it proper to deal that too, as the settled preposition of law is that where 5 the criteria for promotion is seniority-cum-merit then the valuable right that is consideration for promotion cannot be denied merely on basis of some adverse material. This Court in Satyamani Tiwari v. State of Rajasthan & Ors., SBCivil Writ Petition No.2878/2003, decided on 11.8.2006, while considering the issue involved in this petition for writ, held as follows:- “In view of the provisions of Rule 28 of the Rules of 1954 and also in view of the law laid down by this Court in Het Ram Dudi's case (supra) while examining suitability of an incumbent various factors are required to be taken into consideration and imposition of a minor penalty cannot be a sole criteria for denying promotion to a person. The procedure for selection under Rule 28 in quite unambiguous terms states that while preparing a list under the criteria of seniority- cum-merit remarks are required to be given for not recommending a person for promotion being unsuitable. No such remarks are available in the record of entire selection proceedings including the minutes of Departmental Promotion Committee. The Departmental Promotion Committee was required to see the entire service record including the annual confidential reports/annual performance appraisal reports, awards/commendation certificates, 6 entries relating to punishments or pending departmental enquiries etc. and then by analysis of the same an objective remark in relation to suitability was required to be made. The Departmental Promotion Committee should have recorded that how the misconduct for that the petitioner was penalised by a minor penalty effected his efficiency to the extent that he is not suitable to be promoted to Rajasthan Police Service. While doing so the committee must keep in mind that under the criteria of seniority-cum- merit it is the seniority that will prevail as the term “merit” under the criteria concerned means the minimum merit necessary for efficiency of administration. From perusal of the record it appears that no such exercise was done while rejecting candidature of the petitioner for promotion to Rajasthan Police Service.” It is relevant to mention here that a Division Bench of this Court in DBCivil Special Appeal (W) No.118/2009, State of Rajasthan v. Chandan Dan, decided on 27.1.2009, while affirming the Single Bench judgment in SBCivil Writ Petition NO.519/2008, also affirmed the law laid down in Satyamani Tiwari's case (supra). In the instant matter the respondents denied even consideration for promotion merely on the count that the petitioner suffered with a minor penalty. 7 Such non-consideration is apparently bad. The respondents must have considered case of the petitioner for promotion as per the criteria of seniority-cum-merit and should have reached at a definite conclusion regarding the petitioner's seniority and possession of minimum necessary merit desired for the promotional post. The non- consideration of the petitioner's candidature as above is certainly bad. For the discussions made above, this petition for writ deserves acceptance and, therefore, the same is allowed. The order passed by the disciplinary authority dated 23.10.2002 and the orders passed by the appellate authority and also the reviewing authority dated 5.7.2003 and 28.11.2005 respectively are hereby quashed. The respondents are further directed to consider candidature of the petitioner for the purpose of promotion to the Rajasthan Administrative Service from the date when the persons junior to him were promoted as such. In event he is found suitable for such promotion then the same be accorded to him with all consequential benefits. ( GOVIND MATHUR ),J. kkm/ps.