Partly allowed

S.S. Mina S/O Shri Indra Singh Mina v. State of Rajasthan

Rajasthan HC6 Sept 2019SAW/484/2019

Case brief

AI extract

What is this about?

D.B. Special Appeal filed against the dismissal of a writ petition seeking promotion in compliance with reservation rules. The High Court found the appellant outside the zone of consideration but held that the withdrawal was bona fide due to reliance on a representation note. Cost was waived, and the appeal was partly allowed.

What did the court decide?

The appeal was allowed in part, the stay application was disposed of, and the cost imposed was waived.

S.S. Mina S/O Shri Indra Singh Mina Vs State of… — Service and Employment | Rajasthan HC (2019)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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D.B. Special Appeal (Writ) No.484/2019

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With

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D.B. Civil Misc. Stay Application No.4737/2019 In S.B. Civil Writ Petition No.11809/2014

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S.S. Mina S/o Shri Indra Singh Mina, Aged About 55 Years, Superintending Engineer, Ajmer Vidhyut Vitran Nigam Limited, Ajmer, At Present R/o Ajmer And Permanent Address - Village Panchawala, Post Minawala, Vaishali Nagar, Jaipur.

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----Appellant

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Versus

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State Of Rajasthan, Through Principal Secretary, Energy Department, Government Secretariat, Jaipur.

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Ajmer Vidhyut Vitran Nigam Limited, Through Its Managing Director, Vidhyut Bhawan, Panchsheel, Makadwali Road, Ajmer.

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----Respondents

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For Appellant(s) : Mr. R.N. Mathur, Senior Counsel, with Mr. Shovit Jhajharia and Mr. Prateek Mathur For Respondent(s) : Mr. Virendra Lodha, Senior Counsel, with Mr. Jai Lodha Mr. Abhishek Sharma

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HON'BLE MR. JUSTICE MOHAMMAD RAFIQ HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA

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Judgment

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06/09/2019

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This appeal is directed against the judgment of learned Single Judge dated 04.01.2019, by which the writ petition filed by the appellant has been dismissed.

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The appellant in the writ petition had prayed for issuance of a writ of mandamus to the respondents to ensure compliance of the Government notification dated 11.09.2011 by which 12% quota of ST category was required to be filled from amongst ST

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(2 of 7)

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[SAW-484/2019]

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category candidates only and letter dated 23.10.2012, which provided for rule of replacement and accordingly the respondents be directed to consider the candidature of the appellant for promotion to the post of Deputy Chief Engineer and for further promotion accordingly. Further prayer was made that the respondents should be directed to adhere to the note dated 07.09.2014 put up by the Managing Director of the respondents on his representation. The orders no.338, 354, 361 and 367 dated 15.10.2012 were also challenged with the prayer that the respondents be directed to implement the Government notification dated 11.09.2011, which they accepted and adopted by way of passing the order dated 26.09.2012 and accordingly convene the review Departmental Promotion Committee (for short, ‘the DPC’) with effect from 1997 onwards.

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It may be noted at the outset that during the course of arguments before the learned Single Judge, the learned counsel then appearing for the appellant/writ-petitioner abandoned his claim for promotion on the post of Superintending Engineer against the reserved vacancy in 2003-04 and confined the case to his right to be promoted as Superintending Engineer against the vacancies of the year 2006-07 with specific emphasis on adherence to the note dated 07.09.2014 of the Managing Director of the respondent.

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Mr. R.N. Mathur, learned Senior Counsel appearing for the appellant, has submitted that the notification dated 11.09.2011 provided that the reservation for Scheduled Castes and Scheduled Tribes employees, with consequential seniority, shall continue till the roster points are exhausted and adequacy of promotion is achieved. Once the roster points are complete, the theory of

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(3 of 7)

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[SAW-484/2019]

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replacement shall thereafter be exercised in promotion whenever vacancies earmarked for Scheduled Castes/Scheduled Tribes employees occur.

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Mr. R.N. Mathur, learned Senior Counsel, submitted that the respondents adopted the aforesaid Notification dated 11.09.2011 in regard to their employees by specific order dated 26.09.2012. He submitted that the appelalnt was earlier promoted against the vacancies of 2003-04 on the post of Executive Engineer which fact was admitted by the respondents in para 4 of their reply but consequent upon implementation of the aforesaid adoption of the Government notification dated 11.09.2011 the review DPC was convened. The order dated 15.10.2012 (Annexure-5 to the writ petition) indicates that pursuant to the recommendations of the review DPC held on 01.10.2012, the appellant was promoted on the post of Executive Engineer on seniority-cum-merit agaisnt the vacancies of 2001. The respondents however committed an illegality in not promoting him on the post of Superintending Engineer against the vacancies of the year 2003-04, whereas they have on the same day convened the DPC for that purpose and issued the promotion order dated 15.10.2012. It is contended that the order dated 15.10.2012 shows there was one vacancy of Superintending Engineer meant for ST category but that vacancy was filled in by promoting one general candidate Mr. G.S. Dalal, a retired Executive Engineer on urgent temporary basis, however, with a rider that on availability of eligible and suitable ST candidate he will have to vacate the post.

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Mr. R.N. Mathur, learned Senior Counsel, argued that the respondents have issued the final seniority list of Superintending Engineer dated 22.08.2013 showing the name of the appellant at

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(4 of 7)

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[SAW-484/2019]

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serial no.1 having promoted against the vacancy of the year 200910, that would mean that on that day no one was available in ST category above him and in between the respondnets issued a tentative seniority list of the Executive Engineers prior to convening the review DPC for the post of Superintending Engineer and issuing the order of promotion dated 15.10.2012. It was argued that there was no urgency for going ahead with the exercise of promotion by convening review DPC even before issuance of the tentative/final seniority list. It is argued that the learned Single Judge was wholly unjustified in dismissing the writ petition of the appellant also because he withdrew the writ petition without liberty to file a fresh. It is contended that even though the appellant filed S.B. Civil Writ Petition No.2645/2014 for this purpose. Initially, this Court by order dated 03.04.2014 while issuing notice of the writ petition to the respondents directed if promotions are made the same shall be subject to final outcome of the writ petition, however, the respondents shall consider his case in such promotions in accordance with Rules. In between, when the Managing Director of the respondent was approached, he put up a note on the representation of the appellant on 07.09.2014, which reads thus:-

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“It is seen that owing to note being covered in Zone of Consideration in ST Category post to be filled up, Sh. Bogawat P.K. was promoted against the quota of S.T. (Dy.C.E.) seat (12%). Sh. S.L. Dhanka being Dy.C.E. so promoted, the quota of SC category (16%) is already filled up. As per Gazette notification dt. 11/9/11 of G.O.R. the ‘Law of Replacement” is to be honoured for promotion to fill up 12% quota of ST which is from 2008-09. The G.O.R. code P2(105)Raj./Gr.1/2012 dt. 23.10.2012 (enclosed) be gone through.”

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(5 of 7)

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Mr. R.N. Mathur, learned Senior Counsel, submitted that the note to the effect that as per the Gazette notification dated 11.09.2011 of the Government of Rajasthan, the law of replacement is to be honoured for promotion to fill up 12% quota of ST, which is from 2008-09, therefore, the appellant was persuaded to withdraw the earlier writ petition. This could not therefore be considered as an estoppel against the appellant debarring him from filing fresh writ petition.

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Mr. Virendra Lodha, learned Senior Counsel, appearing for the respondents, submitted that the appellant cannot be considered for promotion to the post of Superintending Engineer against the vacancies of the year 2006-07 because he did not fall in the zone of consideration, as rightly held by the learned Single Judge. It is argued that the zone of consideration was as per the extant Rules was only five times but in the case of ST category even if the extended zone of consideration of seven times is applied, there being only six posts available of the year 2006-07, the respondents could consider 42 candidates in the seniority and the appellant at that time was at serial no.60. This fact was categorically pleaded by the respondent in their reply to the writ petition especially in para 23 thereof, which was not controverted by the appellant in corresponding para of the rejoinder thereto. No challenge whatsoever was ever made for placement of the appellant at serial no.60. In any case, the appellant subsequently when he became eligible was promoted on the post of Superintending Engineer against the vacancies of the year 200910.

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Having heard learned counsel for the parties and perused the impugned judgment, we find that even though the learned Single

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(6 of 7)

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Judge has noted the argument of estoppel advanced by the respondents relying on the judgment of the Supreme Court in Sarguja Transport Service Vs. State Transport Appllate Tribunal, M.P. Gwalior & Others, (1987) 1 SCC 5, and held that the writ petition is not maintainable but even then the learned Single Judge examined the case of the appellant on merits and did not find any merit therein. The respondents in para 23 of the reply to the writ petition categorically pleaded that there were only 6 vacancies of Superintending Engineer available of the year 200607 out of which one post was reserved for ST category, for which in extended zone of seven times candidate of ST/SC category was 42 and the name of the appellant was shown at serial no.60. Since was not falling in the zone of consideration, he could not be considered for promotion.

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It is argued that now it is not open for the appellant to contend that the respondents did not disclose his placement in the seniority list or did not even issue the tentative seniority list for the purpose of considering the case of promotion by the review DPC against six posts. There is no bar in law for holding the review DPC for the post of Superintending Engineer on the same day. The appellant has utterly failed to show that he fallen in the zone of consideration of extended seven times. In view of the above, the appeal has no merit.

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So far the note aforesaid is concerned, even though the Managing Director would be justified in requiring their establishment to adhere to the rule of replacement but this has to be done consistent with relevant Rules on the subject which also would include adherence to the requirement of eligibility conditions. Adherence to law of replacement is to be honoured,

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(7 of 7)

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but that does not mean that requirement of other relevant Rules would be given a complete go bye. However, considering that the appellant was compelled to withdraw the writ petition owing to the aforesaid note, may be under bona-fide though erroneous impression, that he would necessarily be promoted, filing of another writ petition by the appellant cannot be said to be totally lacking in bona-fides. Therefore, we are persuaded to waive the cost of Rs.50,000/- imposed by the learned Single Judge. Ordered accordingly.

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The appeal is accordingly allowed in part. This also disposes of the stay application.

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(NARENDRA SINGH DHADDHA),J

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(MOHAMMAD RAFIQ),J

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//Jaiman//24

S.S. Mina S/O Shri Indra Singh Mina v. State of Rajasthan

Case brief

What is this about?

What did the court decide?

S.S. Mina S/O Shri Indra Singh Mina v. State of Rajasthan

Case brief

What is this about?

What did the court decide?

What the court decided

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