CW 1141/95 //1// In the High Court of Judicature for Rajasthan Jaipur Bench ** Civil Writ Petition No.1141/1995 Ganesh Lal Sharma Versus State & Anr. Date of Order ::: 11/02/09 Hon'ble Mr. Justice Ajay Rastogi Mr. Amit Jindal, for petitioner Mr. Chetan Bairwa, Addl. Govt. Counsel, for respondents. Instant petition has been filed with the grievance that despite being senior and having satisfactory service, yet petitioner has been superseded while considering his juniors for promotion against vacancy year 1994-95 for the post of Assistant Director vide order dt.11/08/94 (Ann.2). Petitioner joined service in department of statistics in the year 1964 being a member of Rajasthan Economics & Statistics Service Rules, 1958; and upon recommendations of departmental promotion committee (“DPC”), was promoted as Statistical Officer against vacancy year 1990-91 vide order dt.30/09/92 (Ann.1); and next promotion in the hierarchy was of Assistant Director (Statistics) and almost all those being promoted alongwith petitioner to the post of Statistical Officer against vacancy year 1990-91 were promoted as Assistant Director on the basis of seniority cum merit against available vacancies of year CW 1141/95 //2// 1994-95 on the recommendations made by DPC vide order dt.11/08/94 (Ann.2) and when name of petitioner was left out, against which he made representations (Ann.3, 4 & 5) and inquired from the respondents' Office as to why he has not been considered and his juniors were promoted vide order dt.11/08/94 (Ann.2), at this stage, he came across a letter dt.31/05/94 (Ann.6) holding that since there was an adversity in his APAR of the year 1993-94 – as a consequence whereof, was not found suitable. Immediately thereafter, petitioner approached the DOP seeking clarification of alleged remarks in APAR-1993-94 in response whereof, he was informed vide letter dt.01/11/1994 (Ann.9) that remarks made in APAR-1993-94 in fact were only advisory in nature for his guidance and was not to be treated as adverse remarks – taking note whereof, petitioner has approached this Court by way of instant petition. Only grievance pointed out and which has been stressed by petitioner's Counsel is that once there was no adversity in the service record of petitioner and promotions to the post of Assistant Director were made on the basis of seniority-cum- merit and when department of personnel has made clarification vide letter dt.01/11/1994 (Ann.() as regards alleged remarks in APAR 1993-94 being CW 1141/95 //3// advisory in nature, there was no justification for respondents to deprive him of his legitimate right of fair consideration for promotion against vacancy of year 1994-95 more-so when all of his juniors were promoted as Assistant Director on the recommendations of DPC. It is really sorry state of affairs that despite clarification made by DOP vide letter dt. 01/11/1994 (Ann.9), still respondents insistingly averred in their reply that because of adversity in his service record, petitioner was not found to be suitable and the letters – reference whereof has been made by petitioner are of Department of Personnel making clarification of so called adverse remarks of APAR-1993-94, which has not been taken note of. It is always expected from the authority and its functionaries of the State Government before filing the reply, to look into the grievance raised by petitioner, if at all requires re-consideration at administrative level; like in instant case despite petitioner has a genuine case after clarification was made by DOP still when he failed to get justice at administrative level, he was constrained to approach this Court and because of inaction of respondents, he has been deprived of legitimate right of fair consideration for CW 1141/95 //4// sufficient long time and such approach of the authority cannot be appreciated by this Court. Such arbitrary denial from fair consideration by respondents for promotion is in violation of Art.14 of the Constitution and so also principles of natural justice. Normally, if an employee is deprived of his fair consideration, this Court directs to consider his suitability afresh but in peculiar circumstances of instant case (supra), it has been informed to this Court that petitioner has already attained age of superannuation pendente instant petition and promotions were made on the basis of seniority-cum-merit, and it is settled principles that for promotions based on seniority cum merit, incumbent being senior is entitled for promotion; subject to average record of service and nothing adverse other than alleged APAR-1993-94 has been pointed out hence this Court considers it proper to direct the respondents to promote the petitioner as Assistant Director from the date his juniors were promoted vide order impugned against vacancies of year 1994-95 with consequential benefits flowing thereof. Consequently, writ petition succeeds and is hereby allowed. Respondents are directed to promote the petitioner as Assistant Director CW 1141/95 //5// against vacancy year-1994-95 from the date his juniors were promoted vide order dt. 11/08/94 and he would also be entitled for consequential benefits flowing from promotion including retiral dues in arrears admissible under law. Compliance be made within three months. No order as to costs. (Ajay Rastogi), J. K.Khatri/p.5/1141CW95-11Fb.doc