SBCWP No.3000/94. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION NO.3000/1994. K.N. Sharma Vs. State of Rajasthan & Ors. Date of order : October 15, 2008. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Rajendra Soni for the petitioner. Shri B.L. Awasthi, Additional Government Counsel. Shri R.P. Garg for the Intervener. **** BY THE COURT :- Heard learned counsel for the parties. 2) This writ petition has been filed with the prayer that the respondents be directed to confirm the petitioner on the post of Assistant Engineer (Electrical) from the date of his initial appointment without requiring him to pass the departmental examination in terms of the Division Bench judgment of this Court in Basti Ram Mangal Vs. State of Rajasthan and others : 1991(2) WLC (Raj.) 564 with the further prayer that respondents may also be directed to consider his case for promotion on the post of Executive Engineer (Electrical) for the vacancies of the year 1991-92 and if adjudged SBCWP No.3000/94. 2 suitable by the DPC, grant him promotion on that post. 3) Learned counsel for the petitioner at the outset has invited attention of the Court towards the judgment passed by this Court in his earlier writ petition being SBCWP No.3423/1993 decided on 25/6/1993 in which, this Court relying on earlier judgment passed in SBCWP Nos.3561/1991 (V.K. Jain Vs. State of Raj.) and 3563/1991 (J.K. Soni Vs. State) decided on 16/4/1993, allowed the petitioner's writ petition and directed the respondents to consider his case for promotion treating him to be Diploma Holder in DPC which may be held in the year 2003. Learned counsel has however submitted that the respondents instead of complying with the aforesaid judgment, again treated the petitioner as ineligible for promotion on the premise that he has not been confirmed on the post of Assistant Engineer because he has failed to clear the departmental examination prior to 1/1/1982, the cut-off date prescribed vide Rule 18(1) of the Rajasthan Civil Services (Departmental Examination) Rules, 1959 (for short, "Rules of 1959"). Learned counsel for petitioner argued that the aforesaid cut-off date was declared ultravires of the Constitution and held illegal by the Division Bench of this Court in Basti Ram Mangal supra. The Division Bench held that cut-off date SBCWP No.3000/94. 3 aforesaid was arbitrary and unreasonable and has no nexus with the object sought to be achieved. It was held that exemption provided to those who have attained the age of 45 years on or before 1/1/1982 from passing the departmental examination and not to those who have attained such age after 1/1/1982, amounted to discrimination between similarly situated persons. The respondents however did not honour the aforesaid judgment which is why the petitioner has been compelled to again approach this court. 4) Shri B.L. Awasthi, learned Additional Govenrment Counsel and Shri R.P. Garg, learned counsel appearing as intervener opposed the writ petition and argued that petitioner was not eligible for promotion because he merely possessess the Dipoloma in Craftmanship and not in Electrical Engineering and therefore he could not be treated as eligible for promotion. Learned counsel submitted that judgments of this Court in V.K. Jain Vs. State and J.K. Soni Vs. State which were relied on by this Court while allowing the earlier writ petition of the present petitioner were subjected to challenge before the Division Bench. No direction therefore can be issued to the respondents to treat the petitioner as eligible inasmuch as, petitioner failed to clear the departmental examination therefore, he was not confined on the post of feeder cadre. So long he is SBCWP No.3000/94. 4 not confirmed, he cannot be treated as substantially appointed on the post of Assistant Engineer. He thus cannot be considered as eligible for promotion. The writ petition therefore be dismissed. 5) I have given my anxious consideration to the rival submissions and have perused the material on record and also the cited judgments. 6) It may be noticed at the outset that DBSAW No.526/1993 (State Vs. V.K. Jain) and DBSAW No.180/1994 (State Vs. J.K. Soni) filed by the State stood decided by the Division Bench of this court vide judgment dated 12/8/1996 with the Division Bench's holding that since the case of writ petitioners V.K. Jain and J.K. Soni have already been considered by the DPC, the recommendations of the DPC be given effect to. Judgment of the learned Single Bench of this Court in V.K. Jain supra thus stood upheld. The issue as to the eligibility of the petitioner was already concluded by the judgment of this court passed in his earlier writ petition. Even otherwise, the Diploma which the petitioner acquired was a Diploma awarded by the Director General of Resettlement and Employment, Government of India Ministry of Labour, New Delhi in January 1956. Though petitioner possess qualification of Diploma in Craftsmanship but this Diploma was granted to the petitioner by the Industrial Training Central Delhi SBCWP No.3000/94. 5 Polytechnic Delhi after passing the examination in the trade of Electrician. Respondents however have this time have declined to consider case of the petitioner for promotion on the ground of his having not passed the departmental examiation and for that reason, he is not being treated confirmed. In the face of specific Division Bench judgment of this Court in Basti Ram Mangal supra on the same controversy relating to the interpretation of Rule 18(1) relied on by the respondents, action of the respondents in not treating the petitioner as confirmed therefore is wholly arbitrary and unreasonable. When already on the same subject- matter, Division Bench of this Court has held the cut-off cate 1/1/1982 for those who attained the age of 45 years before such date to be arbitrary and unreasonable, insistance of the respondents still not to grant the similar exemption to the petitioner who has already crossed the age of 45 years and treating him confirmed, cannot be approved. 7) In the result, this writ petition is allowed. The petitioner is declared to be confirmed as Assistant Engineer from the date he completed 45 years and respondents are directed to consider his case for promotion against the vacancies of the year 1991-92 and if the petitioner is found suitable, grant him promotion on that basis with consequential SBCWP No.3000/94. 6 benefits. Compliance of the order shall be made within a period of three months from the date, its copy is submitted to the respondents. (MOHAMMAD RAFIQ), J. anil