SBCWP4785/1997 // 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.4785/1997 Shyam Behari Mathur Vs. State of Rajasthan and Another Date of Order ::: 23.02.2010 Present Hon'ble Mr. Justice Mohammad Rafiq Shri Ghanshyam Singh for Shri Paras Kuhad, Counsel for petitioner Shri S. Zakawat Ali, Deputy Government Counsel for respondents #### By the Court:- Heard learned counsel for parties. This writ petition has been filed by petitioner Shyam Behari Mathur challenging therein order of his penalty dated 03.12.1987 by which three grade increments were withheld without cumulative effect, and order dated 29.12.1990 whereby his appeal filed against the said penalty order was dismissed by Board of Revenue and subsequent order dated 16.11.1995 by which his review petition was dismissed. Shri Ghanshyam Singh, learned counsel for petitioner, has argued that out of three charges in the charge-sheet served upon him under Rule 16 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 SBCWP4785/1997 // 2 // (for short, 'CCA Rules') on 07.01.1982, first two charges were found not proved. The third charge was that he while acting as Tehsildar Colonization, Naurangdesar, District Hanumangarh, for the period from 03.06.1975 to 05.01.1977, illegally mutated certain land of Shri Suraj Kumar and Shri Balchand in favour of Agriculture Cooperative Society Limited, Meharwala. Learned counsel submitted that this charge proceeded on assumption that mutation was attested in violation of Circular issued by the Deputy Commissioner Colonization, Bikaner, dated 04.09.1973, whereas petitioner was never served with copy of that Circular nor any such copy was ever endorsed to him. When the petitioner was not made known of that Circular, he could not be blamed for violating the departmental instructions of not attesting the mutation of the land falling within the Bikaner State unless the Khatedars concerned had submitted the declaration required by Section 15-A (2) of the Rajasthan Tenancy Act, 1955. Learned counsel submitted that the Board of Revenue in an identical matter where mutation of land belonging to Scheduled Caste twas attested in favour of non-Scheduled Caste SBCWP4785/1997 // 3 // person, held that the order passed by Tehsildar was subject to challenge before appellate forum but this being the quasi-judicial functions exercised by him he could not be proceeded against in the disciplinary proceedings under the CCA Rules. Learned counsel submitted that the disciplinary authority has not supplied to petitioner copy of enquiry report which has seriously prejudiced his case. His allegation of attesting mutation on having not been proved was waived. The third charge independently cannot even otherwise be proved. The appellate authority as also reviewing authority have failed to address themselves to any of these arguments which were raised before them. It is therefore prayed that writ petition be allowed and the impugned orders be quashed and set- aside. Shri Sayed Zakawat Ali, learned Additional Government Counsel, appearing for respondents, opposed writ petition and submitted that petitioner in reply to the charge-sheet never stated that he was not aware of Government Circular dated 04.09.1973 issued by Deputy Commissioner Colonization, Bikaner. On the contrary his plea was that this Circular SBCWP4785/1997 // 4 // did not apply to attestation of mutation in favour of Cooperative Society formed of Khatedars and that the Circular created a bar for attesting the mutation of cases where the land was transferred. It could not be said to be a case of transfer. Learned counsel submitted that what has happened after attestation of mutation is that the Khatedars have eventually availed of benefit of such mutation because when the ceiling order passed in their case was challenged by them before the Board of Revenue, it was decided in their favour and the land mutated in favour of the Cooperative society was not considered in their account. The learned counsel further submitted that no prejudice is caused to petitioner by non-supply of enquiry report because in this case firstly the petitioner himself has not set up the plea of not being aware of the Circular dated 04.09.1973 when he filed reply to the charge-sheet in the first instance and secondly the penalty that has been awarded ultimately is of minor nature i.e. stoppage of three grade increments without cumulative effect. The petitioner in any case has retired and, therefore, giving him copy of enquiry report SBCWP4785/1997 // 5 // and remanding the matter back for that purpose would not be of any help to the petitioner since the disciplinary authority might even revise the penalty upwards. The learned counsel further submitted that the order passed by the disciplinary authority as also the appellate authority are perfectly just and reasonable. The writ petition be therefore dismissed. Upon hearing learned counsel for parties and perusing the material on record, I find that petitioner while filing reply to the charge-sheet did not set up the plea that he was unaware of the Government Circular dated 04.09.1973. This argument appears to have been subsequently developed by him. On the contrary the petitioner in reply to charge-sheet sought to justify his action by asserting that the said Circular merely created a bar for attestation of mutation in the case of transfer of land and that formation of cooperative society of Khatedars and entrustment of land to such society cannot be considered as a transfer. The Circular dated 04.09.1973 has been reproduced in the impugned order of penalty dated 03.12.1987 by which the earlier Circular dated 13.04.1971 was superseded and it SBCWP4785/1997 // 6 // was directed that in the case of such of the farmers who were entered as Khatedars under the Bikaner State Tenancy Act, 1945, who have so far not furnished the declaration as per requirement of Section 15-A (2) of the Rajasthan Tenancy Act, 1955, the transfer of land may not be recognized nor any mutation be attested thereabout till further orders. The said Circular is to be read in its entirety and viewed thus, it would be evident that attestation of mutation by petitioner has worked to the advantage of the Khatedars who devised the method of saving their land holding to the extent it was surplus and was actually transferred to the society and the land in their name stood reduced to that extent. Learned Additional Government Counsel appearing for the respondents is justified in submitting that act of the petitioner worked to the advantage of those Khatedars when the ceiling dispute travelled to the Board of Revenue where it was decided in their favour. But for attestation of mutation in question, they would not have been probably benefited. Non-supply of enquiry report to the petitioner cannot be said to have caused any prejudice to him also for the reason that ultimate penalty that has been SBCWP4785/1997 // 7 // awarded to him is of stoppage of three grade increments without cumulative effect. However, keeping in view totality of circumstances and the fact that petitioner has already retired and respondents themselves did not challenge mutation order either by way of appeal or reference, the penalty of stoppage of three grade increments is reduced to that of only stoppage of two grade increments. The petitioner would be entitled to consequential benefits accordingly. The writ petition is thus allowed in part, with no order as to costs. (Mohammad Rafiq) J. //Jaiman//