SBCWP5609/1997 // 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.5609/1997 Brij Pal Singh Vs. The Rajasthan State Warehousing Corporation and Others Date of Order ::: 10.03.2010 Present Hon'ble Mr. Justice Mohammad Rafiq Shri Shiv Charan Gupta, Counsel for petitioner Shri Kamlakar Sharma with Shri Tapasvi Vashistha, Counsel for respondents #### By the Court:- Heard learned counsel for parties. This writ petition has been filed by petitioner Brij Pal Singh with prayer that respondents be directed to consider his candidature for promotion to the post of Assistant Director and that he may not be adjudged unsuitable for promotion on the basis of order dated 14.12.1995. Petitioner has also prayed for quashing the validity of penalty order dated 14.12.1995 by which recovery of a sum of Rs.3,732.68p. has been ordered to be made from him and the order dated 09.10.1998 by which his appeal filed against that penalty order was rejected taking it as time barred. Shri Shiv Charan Gupta, learned counsel SBCWP5609/1997 // 2 // for petitioner, submitted that petitioner and one Ram Lal Bissu both were proceeded against in disciplinary proceedings under Regulation 6 of the Rajasthan State Warehousing Corporation (Staff) Regulations, 1974. While charge-sheet was served on petitioner on 03.05.1994 under Regulation 6 (Supra) on allegation that while he was working as Manager (Warehouse) at Suratgarh in April, 1992, shortage of 2.5% of stock amounting to Rs.3,732.68p. was found therein, whereas, as per instructions of the Food Corporation of India, shortage of 0.75% is permissible in storage of such stock for a period of one year. Similar charge-sheet was also issued to said Shri Ram Lal Bissu with respect to Suratgarh itself for the same period. Both of them were required to show cause as to why a sum of Rs.14,030.70p. be not recovered from them, because this much amount was deducted by Food Corporation of India from the warehousing charges payable to respondents. Learned counsel for petitioner further submitted that Ram Pal Bissu filed appeal against the order of penalty. The final order was passed in the case of petitioner as well as Ram Lal Bissu on 14.12.1995 by which 50% of the amount of loss was proposed to be written-off SBCWP5609/1997 // 3 // and the matter for that purpose was referred to the write-off committee whereas remaining 50% was ordered to be recovered from both the delinquents in equal proportion. Shri Shiv Charan Gupta, learned counsel for petitioner further submitted that said Shri Ram Pal Bissu filed appeal against the order of penalty. His appeal was allowed by order dated 20.09.1997. Ram Lal Bissu was considered for promotion and was promoted by a subsequent order. Petitioner however was superseded by as many as six of his juniors vide order dated 05.09.1997, herein private respondents No.2 to 6, who were promoted to the post of Assistant Director. When the petitioner filed appeal on 23.07.1997, his appeal was rejected being time barred. It is argued that the post of Assistant Director being non-selection post, it would be covered under Clause-B (ii) of Part II of Regulation 7 of the Regulations. Criteria for promotion to such post is defined to be seniority subject to rejection of unfit. The learned counsel submitted that recovery of the amount of Rs.3,732.68p. is only a minor penalty and the respondents themselves proceeded against him under Regulation 6 of the Regulations, which contains the procedure of SBCWP5609/1997 // 4 // imposing minor penalties, and for that reason alone the petitioner could not be adjudged unsuitable for promotion. Besides, there was no justification for appellate authority to reject the appeal of petitioner because in any case it was filed within three days of decision of the appeal filed by Ram Lal Bissu and when the appeal of Ram Lal Bissu was allowed, rejection of appeal filed by petitioner treating it to be time barred was a very harsh and unreasonable having civil consequence for the petitioner. Shri K.K. Sharma, learned counsel for respondents, opposed the writ petition and submitted that the Departmental Promotion Committee (DPC) had considered the entire record of petitioner and it was on its recommendations that promotions were granted to private respondents. If the DPC did not adjudge the petitioner fit for promotion, no exception can be taken thereto. Learned counsel submitted that so long the order of penalty stands, the DPC was entitled to take the same into consideration. Ram Lal Bissu filed appeal on 08.01.1996 i.e. within one month of passing of penalty order dated 14.12.1995, whereas the petitioner filed appeal not only after the promotion order was passed in favour of private SBCWP5609/1997 // 5 // respondents but also after the acceptance of appeal of Shri Ram Lal Bissu. Learned counsel for respondents disputed the fact that petitioner filed appeal on 23.07.1997 but in fact the appeal was filed by petitioner on 23.09.1997. The appeal was rightly rejected as time barred. Learned counsel for respondents submitted that the matter being an old one, not only the petitioner has retired but most of the private respondents have also by now retired from the service and it would not be therefore just and reasonable to require the respondents to review the recommendations of the DPC qua him. In my considered view the present writ petition deserves to succeed on both grounds raised by petitioner; firstly because the appeal filed by him even on 23.09.1997 could not be said to be so much time barred as the appellate authority would completely refuse its consideration on merits particularly when it had allowed the appeal of co-delinquent only three days before. It is not disputed that both of them though were issued separate memos under Regulation 6 of the Regulations but containing exactly the same charges and based on the same facts and evidence, they were although awarded SBCWP5609/1997 // 6 // the same penalty. When the order of penalty to the extent it was imposed on co-delinquent Ram Lal Bissu has not been allowed to stand, that in my view was a sufficient reason for the appellate authority to have bypassed the technicalities of the rule of limitation and consider the appeal on its merits. So far as the order of penalty is concerned, now when the appellate authority has not found such order to be sustainable as against co-delinquent and when the order of penalty is based on same facts and evidence, such penalty cannot be allowed to stand against petitioner. The order of penalty as well as order of rejecting the appeal both therefore deserve to be set-aside. Besides, the criteria of seniority subject to rejection of unfit postulates denial of promotion to an employee only upon his being declared unfit by mere reason of the fact that minor penalty of recovery of Rs.3,732.68p., which fallen shortage is higher in the ratio than permissible, was imposed on the petitioner, he could not be by any reasonable standards declared unfit for promotion. In B.V. Sivaiah and Others Vs. K. Addanki Babu & Others – (1998) 6 SCC 720, SBCWP5609/1997 // 7 // again same question fell for consideration before the Supreme Court as to what would be the impact of seniority cum merit criteria vis-a-vis merit cum seniority criteria. Their Lordships in Para 17 and 18 of the judgment, held as under:- “17. On behalf of the promoted officers, it was urged that for the purpose of promotion on the basis of seniority-cum-merit, seniority means the length of service and that among officers who were appointed on the same date and have the same length of service, seniority can have no bearing and promotion has to be made on a comparative assessment of merit of such officers. We are unable to agree. While applying the principle of seniority-cum-merit for the purpose of promotion, what is required to be considered is the inter se seniority of the employees who are eligible for consideration. Such seniority is normally determined on the basis of length of service, but as between employees appointed on the same date and having the same length of service, it is generally determined on the basis of placement in the select list for appointment. Such determination of seniority confers certain rights and the principle of seniority-cum-merit gives effect to such rights flowing from seniority. It cannot, therefore, be said that in the matter of promotion on the basis of seniority- cum-merit, seniority has no role where the employees eligible for promotion were appointed on the same date and have the same length of service. 18. We thus arrive at the conclusion that the criterion of “seniority-cum- merit” in the matter of promotion SBCWP5609/1997 // 8 // postulates that even the minimum necessary merit requisite for efficiency of administration, the senior, even though less meritorious, shall have priority and a comparative assessment or merit is not required to be made. For assessing the minimum necessary merit, the competent authority can lay down the minimum standard that is required and also prescribe the mode of assessment of merit of the employee who is eligible for consideration for promotion. Such assessment can be made by assigning marks on the basis of appraisal of performance on the basis of service record and interview and prescribing the minimum marks which would entitle a person to be promoted on the basis of seniority-cum-merit.” A coordinate Bench of this Court in G.S. Rajawat Vs. Rajasthan Financial Corporation & Others – 1993 (1) WLC (Raj). 117, while considering the similar controversy where promotion was denied to petitioner on account of the penalty of stoppage of one annual grade increment without cumulative effect and the criteria for promotion therein was seniority subject to suitability, held that when criteria was based on merit of those falling within zone of consideration, those who fulfill the yardstick for merit shall have to be promoted. However, when the criteria is seniority-cum-merit, more weightage has to be given to a person who is senior and he cannot SBCWP5609/1997 // 9 // be denied promotion merely because his junior is more meritorious. When the criteria is seniority cum suitability then senior person can be ignored only if it is found that he is unfit. In the normal course, acceptance of writ petition would have resulted in a direction to respondents to review recommendation of the DPC made qua all the private respondents but since the learned counsel for respondents informs the court that all of them have retired and petitioner has also attained the age of superannuation and the reason for which the petitioner was non-suited for promotion or declared unfit for promotion was because of order of penalty which also, in my considered view, cannot be sustained. Instead of issuing such directions to the respondents, the writ petition is allowed. The impugned order of penalty and rejection of appeal are quashed and set-aside. The respondents are directed to accord benefit of promotion to the petitioner to the post of Assistant Director with effect from the date his immediate junior was promoted, with all consequential benefits. The petitioner shall also be entitled to interest at the rate of 6% per annum on all SBCWP5609/1997 // 10 // consequential benefits. Compliance of this judgment be made within a period of three months from the date its copy is produced before the respondents. (Mohammad Rafiq) J. //Jaiman//