CWP8482/2008 // 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.8482/2008 Rajendra Singh Rao Vs. State of Rajasthan and Others Date of Order ::: 19.11.2010 Present Hon'ble Mr. Justice Mohammad Rafiq Shri Ajay Kumar Jain, Counsel for petitioner Shri B.S. Rajawat, Deputy Government Counsel for respondents #### By the Court:- This matter has come up on board for orders on third stay application, which has been filed because during pendency of writ petition another Departmental Promotion Committee (for short, 'DPC') is being convened. Second stay application has been dismissed as the same was rendered infructuous because by that time the DPC had already been convened and promotions were made. Short controversy is involved in the matter, therefore, arguments are heard on writ petition itself. Sole grievance on which petitioner has approached this court is that he is being denied promotion from post of Police Inspector to post of Deputy Superintendent of Police (Junior Scale) in RPS Cadre, on the ground that he has been awarded one minor penalty of censure under Rule 17 of Rajasthan Civil Services (Classification, Control & CWP8482/2008 // 2 // Appeal) Rules, 1958. As per case of petitioner penalty of censure does not come in the way of promotion where criteria for promotion is seniority-cum-merit, as per several judgments of this court as well as Apex Court, reference whereof is made below. According to Rule 28(A) of Rajasthan Police Services Rules, 1954, criteria of promotion to Deputy Superintendent of Police (Junior Scale) in RPS cadre, is merit for 50% post and seniority- cum-merit for another 50% post. Counsel for petitioner has cited judgment of this court rendered at Principal Seat, Jodhpur, in Writ Petition No.519/2008 - Chandan Dan Vs. Director General of Police and Others, decided on 05.05.2008, wherein similar issue from same service was involved. Aforesaid SB judgment was upheld by Division Bench of this Court at Principal Seat, Jodhpur, vide its judgment dated 27.01.2009 in Special Appeal (Writ) No.118/2009 filed by State of Rajasthan. Learned counsel also cited SB judgment dated 11.08.2006 of this Court at Principal Seat, Jodhpur, in Writ Petition No.2878/2003 – Satyamani Tiwari v. State of Rajasthan and Others, which also was a case from same service Rules and for promotion to same post on same criteria and therein also promotion was denied on the ground of sole penalty of censure. Reliance is placed on judgment of this court in Shankarlal Balai v. State of Rajasthan and Others – 2009 WLC (Raj. UC 777. Counsel also relied on DB judgment dated 23.09.2010 CWP8482/2008 // 3 // of this court in Shri Ram Khilari Meena Vs. State of Rajasthan and Others – Special Appeal (Writ) No.470/2007. It is contended that respondents have relied on Circular of Department of Personal dated 26.07.2006, wherein it is provided that for penalty of censure promotion shall be delayed by one year, while subsequent circular of Home Department dated 22.09.2009 has been completely ignored. This Circular has been issued by the Governor in compliance of aforesaid various judgments of this court to say that promotion shall not be denied merely on ground of penalty of censure if criteria of promotion is seniority-cum-merit; in other words, if promotion is to be made against post for which criteria is seniority-cum-merit. Learned counsel for respondents opposed writ petition but was not in a position to dispute that controversy raised in present case is covered by large number of decisions cited supra. Leading judgmnet amongst them is of Satyamani Tiwari Vs. The State of Rajasthan & Others (supra), which arose out of same Rules wherein promotion was also to be made from post of Police Inspector to that of Deputy Superintendent of Police on criteria of seniority-cum-merit. This court in aforesaid judgment has held as under:- "In the instant matter I have perused entire record of the case. As a matter of fact the Departmental Promotion Committee in most cursory manner rejected candidature of the CWP8482/2008 // 4 // petitioner merely by saying that the petitioner is not suitable for promotion being suffered with a minor penalty under an order dated 19.4.1993. 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 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." In cases of Chandan Dan (supra) and Shri Ram Khilari Meena (supra) also, judgment of Satyamani Tiwari was relied on. DB of this court in Shri Ram Khilari Meena (supra), after noticing several Apex Court judgments, held as under:- “In view of settled position of law as noticed above, even if there existed any minor penalty or some minor adverse remark here and there, promotion could CWP8482/2008 // 5 // not be denied to the appellant because the criteria for promotion in this case as not entirely merit based but was on 'seniority-cum-merit' where seniority has to be given more weightage as compared to merit. In that criteria, even penalty of censure could not be a ground to deny promotion to the appellant because what is to be seen is minimum necessary merit requisite for efficiency of administration and in that view of the matter, a senior person, even though less meritorious, shall have primacy in the matter of promotion and comparative assessment of merit is not required to be made.” In view of above, writ petition deserves to be allowed. It is accordingly allowed. Respondents are directed to review DPC for the year 2009 for promotion to post of Deputy Superintendent of Police, which was convened on 20.10.2009, to reconsider case of petitioner and, if adjudged suitable, to promote him on post of Deputy Superintendent of Police against quota meant to be filled in on criteria of seniority-cum-merit and if necessary for future years as well. Compliance of judgment be made within a period of three months. (Mohammad Rafiq) J. //Jaiman//