1 S.B.CIVIL WRIT PETITION NO.5749/2008 Gautam Joshi v. RSRTC, Jaipur & Ors. Date of Order :: 7th October, 2009 HON'BLE MR.JUSTICE GOVIND MATHUR Mr. Harish Purohit, for the petitioner. Mr. PK Lohra, for the respondents. .... By this petition for writ a direction is sought by the petitioner to promote him as Assistant Traffic Inspector w.e.f. 21.2.2005, the date on which persons junior to him were promoted as such. In brief, facts of the case are that the petitioner a conductor with the Rajasthan State Road Transport Corporation is having an avenue for promotion to the post of Assistant Traffic Inspector and he also possessed requisite eligibility for such promotion. The Executive Director (Administration) of the respondent Corporation by office order dated 21.2.2005 promoted 85 persons as Assistant Traffic Inspectors against the vacancies of the year 2004-05. The petitioner then submitted a representation claiming his promotion also being eligible and also on the count that certain persons junior to him were promoted vide the order dated 21.2.2005. The General Manager (Traffic)-cum-Public Information Officer of 2 the respondent Corporation by communication dated 9.6.2008 informed the petitioner that his candidature was considered for the purpose of promotion as Assistant Traffic Inspector by the Departmental Promotion Committee as per Regulation 117 of the Rajasthan State Road Transport Corporation Employees Service Regulations, 1965 (hereinafter referred to as “the Regulations of 1965”) and the same was not found suitable for promotion in view of the fine suffered by him in the year 2003. While assailing validity of the decision aforesaid the contention of counsel for the petitioner is that as per Regulation 117 of the Regulations of 1965 the criteria for promotion is seniority-cum-merit and in such criteria the promotion could have not been denied on the count of imposition of fine as an administrative measure. It is asserted by counsel for the petitioner that under the criteria of seniority- cum-merit it is the seniority that prevails and the merit is only the minimum necessary efficiency for administration. As such, there was nothing adverse to deny promotion to the petitioner as Assistant Traffic Inspector. Reliance is placed by counsel for the petitioner upon a judgment of this Court in Satyamani Tiwari v. State of Rajasthan & Ors., SBCivil Writ Petition No.2878/2003, decided on 11.8.2006. In the case aforesaid this Court held as follows:- 3 “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, 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 4 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.” Per contra, as per the respondents the petitioner had a right to be considered for promotion and that was done in present case. The petitioner suffered a financial penalty of Rs.630/- and he was granted 63 days leave without pay vide an order dated 28.2.2003 and as such he was not suitable to be promoted. Heard counsel for the parties and considered the rival contentions. Regulation 117 of the Regulations of 1965 provides procedure for recruitment by promotion and that is- “procedure for recruitment by promotion” 117. (a)A selection strictly on seniority cum merit shall be made from among the persons eligible for such promotion under the provisions of these regulations. (b)The posts on which appointments shall be made by promotion shall be notified by the Corporation from time to time. 5 (c)In selecting the candidates for promotion, record shall be had to their; (i)academic qualifications including experience, (ii)tact, energy and intelligence, (iii)integrity, and (iv)previous record of service. (d)As soon as it is decided that a certain number of posts in a class of service will be filled up by promotion, the Deputy General Manager or such other authority as may be nominated by the Corporation, shall prepare a list of senior most persons eligible for promotion, not exceeding 10 times the number of vacancies. (e)The service recruitment board shall recommend the means to the appointing authority for appointment on promotion posts after considering cases of those who have passed the requisite practical test, written test or qualifying written examination, to judge the suitability of the candidates included in the list and interviewing such of them as the Board may deem necessary. (f)The General Manager shall in consultation with the Head of Department prescribe the standard of practical test and syllabus of written test of qualifying 6 written test or qualifying written examination for the purpose of clause (e) of the regulation.” Regulation 37 of the Regulations of 1965 empowers the respondent Corporation to effect certain deductions from wages of a worker including the deduction for absence from duties and in the instant matter such deduction was made from wages of the petitioner by the respondent Corporation. Pertinent to note here that the deductions under Regulation 37 are not as disciplinary measure but are out come of the administrative exigencies and for making such deductions, as per the respondents, no inquiry is required to be made and in the present case too before effecting recovery from the petitioner relating to the sum of Rs.630/- no inquiry of whatsoever nature was conducted. True it is, as per Regulation 117 of the Regulations of 1965 though the criteria for promotion is seniority-cum-merit, the departmental promotion committee while selecting the candidates for promotion is required to take into consideration (1)academic qualifications including experience; (2)tact, energy and intelligence, (3)integrity; and (4)previous record of service. The respondents have stated that candidature of the petitioner was tested at the touch stone of the 7 criteria prescribed under Regulation 117 of the Regulations of 1965, however, nothing is said that as to how he was not found suitable for promotion on such considerations. It is well settled that where the criteria for promotion is seniority-cum-merit, it is the seniority that prevails and the merit required is only the minimum merit necessary for efficiency of administration. It was open for the respondents to take into consideration all the factors referred in clause(c) of Regulation 117 while examining candidature of the petitioner for promotion, however, at the same time they should have reached at a definite conclusion that there was something in service record of the petitioner that was effecting his minimum merit necessary for efficiency of administration resulting into denial for promotion. This Court in the case of Satyamani Tiwari (supra) while dealing with a similar question held that the departmental promotion committee must see the entire service record and then by analysing the same objectively should record that how any misconduct effected efficiency of the incumbent to the extent that he is not suitable to be promoted. In the present case, as a matter of fact there is no penalty against the petitioner and only adverse thing is the deduction made from his wages. Whether such deduction would have effected petitioner's minimum merit necessary for efficiency of 8 the administration to the extent of denial of promotion was certainly required to be settled by the departmental promotion committee and that has not been made in present case. In view of it the denial for promotion to the petitioner as Assistant Traffic Inspector against the vacancies of the year 2004-05 is apparently bad. The petition for writ, therefore, deserves to be accepted. Accordingly, the writ petition is allowed. The respondents are directed to consider candidature of the petitioner afresh for the purpose of promotion to the post of Assistant Traffic Inspector against the vacancies of the year 2004-05 from the date persons junior to him were promoted as such. No order to costs. ( GOVIND MATHUR ),J. kkm/ps.