1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.3851/1996 Smt. Nirmala Vishwa vs. State & Ors. Date of order : 9/3/2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Sunil Samdaria for the petitioner. Shri S.D. Khaspuria, Addl. Govt. Counsel for the respondent. ****** This writ petition has been filed by the petitioner Smt. Nirmala Vishwa against the order dated 6.1.1996 by which her prayer for promotion on the post of Office Assistant with effect from 28.4.1982 was rejected. The petitioner has also prayed for quashment of the order dated 2.8.1996 (Annexure-26) by which some of her juniors were promoted and she was ignored. It is contended that these orders are contrary to the different separate orders passed by the respondents on 5.10.1988 by which her representation was accepted and she was placed above Kanhaiya Lal in the seniority list and the order dated 15.7.1996 by which she was granted selection scale i.e. on 19.10.1995. Learned counsel for the petitioner has argued that Shri Kanhaiya Lal was given 2 higher placement in the seniority list by order dated 14.6.1984 on the premise that he secured 481 marks in the JDC examination as against 434 marks secured by the petitioner. The respondents in doing so wrongly applied proviso (vi) to Rule 27 of the Rajasthan (Subordinate Offices Ministerial Staff Service) Rules, 1957. When the petitioner represented the competent authority namely Inspector of Registration and Stamps for Rajasthan, Jaipur who after serving a notice on Shri Kanhiaya Lal Sharma examined the rule portion as also the fact that petitioner was appointed as LDC on 19.10.1967 and was confirmed on that post on 19.10.1967, whereas Shri Kanhaiya Lal Sharma was so appointed on 1.12.1967 and confirmed on the same date, which events took place much before their appearance in the JDC examination in the year 1970. The competent authority also noted that in number of seniority lists issued earlier, the petitioner has all along been show senior to Shri Kanhaiya Lal Sharma and therefore the order dated 14.6.1984 was withdrawn and position of the petitioner was restored over 3 that of Shri Kanhaiya Lal Sharma. When that was done, there was no reason not to grant the benefit of promotion to the petitioner with effect from the date Shri Kanhaiya Lal Sharma was promoted on the post of Office Assistant by order dated 28.4.1982. Learned counsel for the petitioner submitted that merely because the respondents later sought to revert Shri Kanhaiya Lal Sharma and initially approached Rajasthan Civil Services Appellate Tribunal and thereafter this Court where certain interim order was passed in his favour, would not validate his promotion because in any case as the appeal filed by Shri Kanhaiya Lal Sharma was dismissed by the Tribunal on the basis of above referred to legal and factual position and his writ petition was dismissed having become infructuous on account of his death. The petitioner could not be denied the benefit of promotion. Learned counsel submitted that subsequently when the respondents issued fresh promotion order on 2.8.1996, they promoted three persons from S.No.6 to 8 who were junior to her and case of the petitioner was ignored. 4 Shri S.D. Khaspuria, learned Additional Government Counsel opposed the writ petition and submitted that even though it was a fact that Shri Kanhiaya Lal Sharma was wrongly assigned higher seniority than the petitioner by virtue of Section 84 and that the order was withdrawn, when show cause notice was issued to him for reversion, he approached the Tribunal where his appeal was rejected but then it cannot be a reason to straight away promote the petitioner from the date Shri Kanhaiya Lal Sharma was erroneously promoted. It is contended that promotion from the cadre of U.D.C. to that of Office Assistant has to be made in accordance with the seniority and prayer of the petitioner calling upon this Court to issue a writ of mandamus perpetuating that illegality is wholly unjustified because promoting the petitioner from that date, would jeopardise the interest of eight persons who were senior to her. This position is clear from the seniority list (Annexure-9). Learned counsel for the respondents further submitted that in so far as promotion order dated 2.8.1996 is 5 concerned, persons from 1 to 5 were senior to the petitioner and persons from 6 to 8 were promoted under the reserved post for S.C. and S.T., therefore, seniority in their case would be immaterial. Learned counsel for the petitioner rejoined and submitted that all those persons and even the petitioner has retired from service. Having heard the learned counsel for the parties and perused the material on record, I find that in so far as promotion granted to Shri Kanhaiya Lal Sharma is concerned, the respondents have on their own rectified this mistake by withdrawing his higher placement in the seniority vide order dated 16.6.1984 and also withdrew his promotion but when show cause notice was issued to him to do so, he approached the Tribunal and in the Tribunal his appeal was dismissed and thereafter he approached this Court in S.B. Civil Writ Petition No.3308/1988 and division bench of this Court by order dated 20.9.1988 directed that till further orders he shall not be reverted. Subsequently, the writ petition was dismissed as having become 6 infructuous by order dated 10.3.1995 on account of the fact that Shri Kanhaiya Lal Sharma, the petitioner therein expired. Now the respondents cannot be required to give benefit of promotion to the petitioner from the date on which Shri Kanhiaya Lal Sharma was erroneously promoted. This Court cannot ignore the specific plea set up by the respondents that there are as many as eight more persons senior to the petitioner. If those benefits are granted to her, they would as well be entitled to the same. Contention that none of them have approached this Court and it is the petitioner only who has approached the Court, cannot be a reason to ignore the factual position so specifically set up and demonstrated by the petitioner which is fortified from the seniority list dated 30.6.1979, which the petitioner has himself placed on record. So far as the promotion granted by order dated 2.8.1996 subsequently to some of the persons is concerned, all except three persons are senior to her and those three whom the petitioner described as her juniors, belong to SC and ST and their promotion was made in 7 the reserved category. Petitioner cannot compare his case with those persons named at S.No. 6 to 8. In that order however, the persons at S.No. 1 to 5 in the said order belongs to general category. Again it would be evident from perusal of seniority list dated 30.6.1979 that they are much senior to the petitioner. I therefore do not find any merit in this writ petition, which is accordingly dismissed. (MOHAMMAD RAFIQ), J. RS/