Dismissed

R F C v. Rajendra Singh Gehlot

Rajasthan HC16 Jul 2018SAW/626/2018

Case brief

AI extract

What is this about?

Appeal dismissed. Court held that a petitioner acquitted of criminal charges and exonerated in departmental enquiry is entitled to actual promotion benefits and intervening period benefits with interest, not merely notional benefit, particularly when the employer violated established promotion guidelines.

What did the court decide?

Appeal dismissed; Rajasthan Financial Corporation directed to hold DPC within one month and grant promotion with consequential benefits including intervening period benefits and 9% interest.

R F C Vs Rajendra Singh Gehlot — Pension and Retirement Benefits | Rajasthan HC (2018)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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D.B. Special Appeal Writ No. 626/2018

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Rajasthan Financial Corporation through Its Managing Director, Udhyog Bhawan, Tilak Marg, Jaipur Rajasthan.

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----Appellant-Respondent

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Versus

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Rajendra Singh Gehlot S/o Shri J.S. Gehlot, By Caste Rajput , R/o 14-A, Nehru Nagar Vistar, Near Kamla Nehru Nagar, Ajmer Road, Jaipur Rajasthan.

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----Respondent-Petitioner

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For Appellant(s) : Ms. Manjeet Kaur For Respondent(s) : Mr. Jitendra Sharma

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HON'BLE MR. JUSTICE MUNISHWAR NATH BHANDARI HON'BLE MR. JUSTICE DINESH CHANDRA SOMANI

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Order

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16/07/2018

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By this appeal, a challenge is made to the order dated 26.02.2018 passed by learned Single Judge, whereby, the writ petition preferred by the petitioner/non-appellant has been allowed.

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The writ petition was filed to seek a direction for promotion on the post of Deputy Manager against the vacancy year 2005-06. The promotion was not given due to pendency of the criminal case followed by a disciplinary enquiry. As per Clause 12.5.0 and 12.7.0 of the guidelines for the promotion, the appellants were required to apply “sealed cover” procedure. Instead of applying the aforesaid procedure, the appellant-Rajasthan Financial Corporation (for short “the RFC”) declared non-appellant to be unsuitable for promotion.

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It is admitted by learned counsel for the appellant-RFC that no adversity in the record was existing in preceding 7 years from the date

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(2 of 5)

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[SAW-626/2018]

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of the year of promotion, and at this stage, it is submitted that they are not pressing the appeal against the direction for holding DPC for consideration of the case of the petitioner.

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In the criminal case, the non-appellant has been acquitted though with the benefit of doubt but for the same charges, disciplinary enquiry was held and the charges were not found proved therein. At the time of initial consideration of the case of non-appellant, criminal case/disciplinary enquiry was pending and out of 7 years, he remained under suspension for 5 years thus was not treated to be fit for promotion. Since developments have taken place in the shape of acquittal in criminal case and exoneration in the departmental enquiry, the RFC is not contesting against the direction for consideration of the candidature of the petitioner-non-appellant for promotion on the post of Deputy Manager against the vacancy year 2005-06. The RFC would hold meeting of DPC at the earliest and comply the direction of the learned Single Judge to that effect.

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The only issue now pressed is about treatment to the intervening period. It is stated that if the petitioner-non-appellant is given promotion against the vacancy year 2005-06, it should be with notional benefit instead of actual benefit, as directed by the learned Single Judge. It is for the reason that the non-appellant has not undertaken the work of higher post of Deputy Manager during the intervening period. A reference of judgment of the Apex Court in the case of Union of India versus K.V. Jankiraman reported in AIR 1991 Supreme Court 2010 has been given. The prayer is to allow the appeal by causing interference in the order of learned Single Judge for grant of actual benefits of intervening period.

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Learned counsel for the petitioner-non-appellant submits that a detailed judgment has been given by the learned Single Judge after

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(3 of 5)

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[SAW-626/2018]

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considering all the aspects. The appellant had contested even claim of the petitioner-non-appellant for grant of promotion against the vacancy year 2005-06 though they are not contesting the issue now. There was no fault on the part of the petitioner-non-appellant, rather he was willing to undertake the work of the post of Deputy Manager. It is more so when the appellant acted de hors the guidelines for promotion. They were required to consider the candidature of the petitioner with placing recommendation in “sealed cover” looking to the pendency of the criminal case and disciplinary enquiry.

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Instead of doing that, a decision was taken to deny the benefit of promotion though no adversity in the record was existing. It is also when the promotion is based on seniority-cum-suitability and not based on merit. It is due to the violation of the guidelines to adopt “sealed cover” procedure in such cases, otherwise the petitioner would have been given timely promotion and, for that, a direction would not have been required to hold DPC to consider the case of the petitioner for promotion. The direction aforesaid has been given by the learned Single Judge due to the lapse of the RFC while the DPC was conducted. In view of the above, the petitioner has rightly been held entitled to actual benefit of the intervening period.

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It is also stated that the appellant had even agreed to pay the due amount and on their request, the direction was given by the learned Single Judge to hold the DPC at the earliest and to give promotion with consequential benefits. There was no occasion to prefer an appeal after agreeing for the relief. Accordingly, no ground is made out for causing interference in the order passed by the learned Single Judge. The appeal, rather, deserves to be dismissed with cost.

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We have considered rival submissions of the parties and perused the record.

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(4 of 5)

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[SAW-626/2018]

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Learned counsel for the appellant has not contested this appeal so far as the direction for holding review DPC is concerned. In view of the above, the RFC would hold review DPC for the post of Deputy Manager against the vacancy year 2005-06. The RFC acted in violation to Clause 12.5 and 12.7 of the guidelines, thus cannot deny actual benefits to the petitioner for the intervening period. It is more so when the criminal case against petitioner alleging disbursement of loan without verification of whereabouts and property document of the loanee resulted in acquittal though with benefit of doubt. It is, however, a fact that disciplinary enquiry on the same charges resulted in his exoneration. The department itself did not find substance in the charges and, accordingly, the disciplinary action was dropped.

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In view of the above, it cannot be taken to be a case of exceptional nature so as to deny actual benefit to the petitioner/nonappellant. If the ratio propounded by the Apex Court in the case of K.V. Jankiraman (supra) is also applied, petitioner-non-appellant is entitled to the actual benefits. It is quite surprising that instead of complying the judgment of the learned Single Judge so as to save RFC from the payment of interest at the rate of 9% for subsequent period to four weeks, the appeal has been filed. It is more so when the judgment of the learned Single Judge refers to the admission of the appellantrespondent-RFC not only for holding review DPC but to extend consequent benefits. After agreed order by learned Single Judge, it cannot be questioned.

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In view of the above, we do not find any reason to cause interference in the detailed order passed by the learned Single Judge after considering all the issues and therein benefits have been given by applying the judgment of this Court in the case of Dinesh Pareek vs. Rajasthan Financial Corporation & Anr. SB CWP No.530/2016

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(5 of 5)

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[SAW-626/2018]

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decided vide order dated 16.03.2016. Therein also, actual benefits of the intervening period with interest at the rate of 9% were allowed. The judgment in the case of Dinesh Pareek (supra) has already been complied by the RFC thus they cannot be allowed to make discrimination between similarly placed persons.

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Accordingly, finding no substance in the appeal, we dismiss it. This Court was of the opinion to impose cost of Rs.50,000/- but on assurance of learned counsel for the appellant for holding review DPC at the earliest, we are not imposing the cost but officers of the RFC are directed to remain careful in future in taking decision for filing the appeal and it should not be for the sake of it.

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Accordingly, while dismissing the appeal, direction is given to the RFC to hold DPC within one month from the date of receipt of copy of this order with consequential benefit, as directed by the learned Single Judge.

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(DINESH CHANDRA SOMANI),J

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Manish/12

R F C v. Rajendra Singh Gehlot

Case brief

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R F C v. Rajendra Singh Gehlot

Case brief

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