1 S.B.CIVIL WRIT PETITION NO.3705/2004 Mangat Lal Sidana v. State of Rajasthan & Anr. DATE OF ORDER :: 29 th May, 2007 HON'BLE MR.JUSTICE GOVIND MATHUR Mr. S.L.Jain, for the petitioner. Mr. S.S.Ladrecha, Additional Government Advocate. .... As a consequent to regular selection the petitioner was appointed as Junior Engineer with Department of Irrigation in the year 1971. A promotion in adhoc capacity as Assistant Engineer was accorded to him in the year 1973. While holding the post aforesaid he was subjected to an inquiry that resulted into an order dated 28.7.1995 imposing a penalty of compulsory retirement. The petitioner by way of filing a civil suit before the Court of Additional Civil Judge No.2, Jaipur City assailed validity of the order aforesaid and also the entire inquiry proceedings. By the judgment and decree dated 14.10.1997 the suit preferred by the petitioner was partially decreed with a direction to disciplinary authority to consider representation submitted by the petitioner and to pass an order consequent to the inquiry afresh. The disciplinary authority accordingly after considering the representation submitted by the petitioner by an order dated 16.5.2000 imposed a 2 penalty of stoppage of three annual grade increments with cumulative effect, however, this order too stood modified by substitution of penalty of censure under an order dated 11.6.2001 passed by the Governor of Rajasthan exercising powers under Rule 34 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (hereinafter referred to as “the Rules of 1958”). An another order dated 3.9.2001 was passed at the behest of Governor to treat the period “dias-non” (except for the purpose of determining pension) during which the petitioner remained out of employment as a consequent to his compulsory retirement in pursuant to the order dated 28.7.1995. The Governor also declared the petitioner disentitled for getting any amount beyond the subsistence allowance for the period he remained under suspension. Though the petitioner was holding the post of Assistant Engineer in adhoc capacity but regular promotion was not given to him as he was facing disciplinary proceedings and after completion of that a meeting of Departmental Promotion Committee (DPC) was convened to review the recommendations made earlier. The DPC did not choose to recommend the petitioner for promotion against the vacancies of the year 1978-79 by taking into consideration penalty of “censure” imposed by order dated 11.6.2001 but he was 3 found fit to be promoted as Assistant Engineer against the vacancies of the year 1979, accordingly an order dated 28.8.2001 was passed promoting the petitioner as Assistant Engineer against the vacancies of the year 1979-80. The grievance of the petitioner sought to be redressed by this petition for writ in the factual background narrated above are; (1)the period in which the petitioner faced compulsory retirement has wrongly been treated as “dias-non”; (2)the petitioner is wrongly denied wages beyond the subsistence allowance for the period he remained under suspension; and (3) the promotion as Assistant Engineer against the vacancies of the year 1978 was erroneously denied to the petitioner by taking into consideration penalty of censure imposed by order dated 11.6.2001. While substantiating the first claim, contention of counsel for the petitioner is that the petitioner remained out of employment because of an order of compulsory retirement that stood quashed as a consequent to issuance of the order imposing penalty of stoppage of three annual grade increments with cumulative effect and further under the order dated 11.6.2001 imposing penalty of censure upon the petitioner, as such the period concerned could not be dealt with as “dias-non”. According to counsel for the petitioner the period that has been treated as “dias- non” shall amount to break in service without any valid reason. While meeting with the contention it is 4 urged by counsel for the respondents that the period aforesaid was treated as “dias-non” only with view to adjust and regularise the period in which petitioner did not work. It is also urged that for the purpose of grant of pension the period aforesaid shall be taken into consideration by the respondents. I am not at all impressed with the response given by the respondents as the petitioner did not remain absent from duties at his own or for any act on his part. The petitioner remained out of employment due to an order of compulsory retirement passed by the respondents that was ultimately quashed. The petitioner could not be held responsible for not working in the period being facing an illegal compulsory retirement. The respondents, therefore, erroneously treated the period concerned as “dias-non”. The next contention of counsel for the petitioner is that the petitioner was placed under suspension as he was subjected to proceedings under Rule 16 of the Rules of 1958 but ultimately that resulted into imposition of a minor penalty i.e. of censure, as such entire wages for the period of suspension should have been given. It is true that under Rule 54 of the Rajasthan Service Rules, 1951 it is for the competent authority to decide the issue with regard to grant of wages for the period a government servant faced 5 suspension but such power is always required to be exercised objectively, judiciously and with all fairness. The petitioner faced a penalty of censure i.e. a minimum penalty under the Rules of 1958. The imposition of such a minor penalty clearly shows that the misconduct for which the petitioner was found guilty was not very serious or grave. In such circumstances though suspension at its inception would have been warranted but after adjudication of the charge the competent authority should have allowed full wages for the period concern. I am of considered opinion that the respondents under the order dated 3.9.2001 erroneously treated the period for which the petitioner remained under compulsory retirement as “dias-non” and also wrongly denied full wages to him for the period of suspension. The important question, that further require adjudication in this petition for writ, is as to whether the respondents rightly denied promotion to the petitioner against the vacancies of the year 1978- 79 by taking into consideration the penalty of censure? According to the Rajasthan Service of Engineers and Research Officers (Irrigation Branch) Rules, 1954 the criteria for promotion to the post of Assistant Engineer is seniority-cum-merit and merit in ratio of 1:1. The candidature of the petitioner was 6 considered under the criteria of seniority-cum-merit. This Court in the case of Satyamani Tiwari v. State of Rajasthan & Ors., SBCivil Writ Petition No.2878/2003, decided on 11.8.2006, while dealing with the question as to what should be the procedure and manner required to be adopted while considering candidature of a person for promotion under the criteria of seniority- cum-merit who has faced minor penalty is required to be adopted, held as under:- “The Departmental Promotion Committee was required to see the entire service record including the annual confidential reports/annual performance appraisal reports, awards/commendation certificates, 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.” What appears from the record that the respondents simply on the count that the petitioner 7 faced a penalty of censure rejected his candidature for the purpose of promotion as Assistant Engineer against the vacancies of the year 1978. Such rejection “ipse-dixit” is highly unjust. The respondents should have considered candidature of the petitioner objectively in accordance with the principles referred above. Accordingly, this petition for writ is allowed. The order dated 3.9.2001 to the extent it treats the period during which the petitioner was out of employment as a consequent to an order of compulsory retirement as “dias-non” and also denies payment of full wages for the period he remained under suspension is declared illegal and, therefore, the same is quashed. The petitioner is declared entitled for full wages for the period he remained under suspension. The respondents are further directed to consider candidature of the petitioner afresh for the purpose of promotion to the post of Assistant Engineer against the vacancies of the year 1978-79. In the event the petitioner is found suitable for promotion against the vacancies of the year 1978-79, the promotion be accorded to him as such with all other consequential benefits. No order to costs. ( GOVIND MATHUR ),J. Kkm/ps.