Rajasthan High Court - Jodhpur
Sriram Barupal And Anr vs State Of Rajasthan And Ors on 20 November, 2021
Bench: Arun Bhansali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 1024/2018
1. Sriram Barupal, Son Of Shri Laxman Ram, By Caste
Barupal, Resident Of House No. 153, Nehru Colony,
Ratanada, Jodhpur.
2. Smt. Leela Barupal, Wife Of Shri Sriram Barupal, By
Caste Barupal, Resident Of House No. 153, Nehru Colony,
Ratanada, Jodhpur.
----Petitioners
Versus
1. The State Of Rajasthan, Through The Principal Secretary,
Home Department, Government Of Rajasthan, Jaipur.
2. The Director General Of Police, Government Of Rajasthan,
Jaipur.
3. The Police Commissioner, Jodhpur.
4. The Deputy Commissioner Of Police, Head Quarter And
Traffic, Jodhpur Commissionerate, Jodhpur.
----Respondents
For Petitioner(s) : Mr. S.S. Choudhary.
For Respondent(s) : Mr. Anil Bissa.
HON'BLE MR. JUSTICE ARUN BHANSALI
Order
20/11/2021
This writ petition has been filed by the petitioners- husband
& wife aggrieved against the action of the respondents, wherein
on account of their fathering of/giving birth to third child after the
cut-off date, they have been visited with penalty of deferment of
promotion for five years as well as deferment of their entitlement
of ACP also for five years.
(2 of 4) [CW-1024/2018]
In the case of petitioner No.1 - Sriram Barupal, by order
dated 14.07.2014 (Annex.-3), his consideration for promotion was
ordered to be stayed for five years from 2011-12 to 2015-16 and
by order dated 15.04.2015 (Annex.-5), again his entitlement to
ACP was ordered to be deferred for five years.
For the petitioner No.2 - Smt. Leela Barupal, by order dated
02.12.2015 (Annex.-6), her consideration was deferred for the
year 2012-13 to 2017-18, however, despite her claim made by
Annex.-7 for grant of 2 nd ACP, the same was also not accorded to
her though there is no specific order denying her 2nd ACP.
Learned counsel for the petitioners made submissions that
action of the respondents in deferring the promotion for five years
and stopping the ACP also for five year is contrary to judgment in
the case of Parbat Singh v. State of Raj. & Ors.: SBCW No.
10159/2015, decided on 29.11.2016 and, therefore, action of the
respondents in this regard deserves to be set aside.
Learned counsel appearing for the respondents made
submissions that as the action is being taken under the two
different circulars pertaining to the grant of promotion and ACP
respectively, the same cannot be faulted.
In the case of Parbat Singh (supra), a coordinate Bench of
this Court considering the above aspect, came to the following
conclusion:-
"Though the said circular does not speak about
the deference of ACP on account of birth of third
child after the cut off date but parity is sought
to be drawn by the respondents in grant of ACP
and promotion as being analogous actions. If a
person is given the benefit of ACP rather than
the benefit of promotion, both would have the
same financial implication. Indisputably the
petitioner has been inflicted with one punitive
(3 of 4) [CW-1024/2018]
action of deferment of ACP for a period of 5
years because of the fact that he fathered a
third child after 1.6.2002. Having been
penalised in this manner once, by no means,
the respondents could have inflicted another
adversity on the petitioner for the same cause
by denying him opportunity to join on the
promotional post. Furthermore, the restriction
which is imposed in the circular dated
20.6.2001 is to the effect that a Government
employee shall be deferred by 5 recruitment
years for promotion from the date to which
promotion becomes due if he/she has more
than two children on or after 1.6.2002. Thus,
the restriction is on the consideration for
promotion."
The Court clearly opined that the respondents having
inflicted one punitive action of deferment of ACP for a period of 5
years because of the fact that the employee fathered a third child
after 13.08.2004 and having been penalised, by no means, the
respondents could have inflicted another adversity on the
petitioner for the same cause.
In that view of the matter, the issue raised by the petitioner
is squarely covered by the judgment in the case of Parbat Singh
(supra).
So far as the submissions made by learned counsel for the
respondents regarding taking action under two different orders is
concerned, the mere fact that two different orders dealing with
promotion as well as ACP are in existence, does not mean the
same has to be applied to the same employee.
The deferment of either promotion or ACP, as the case may
be, is required to be applied to the subject employee, however,
both the circulars cannot be applied to the same employee, for the
same cause.
(4 of 4) [CW-1024/2018]
In view of the above discussion, the petition filed by the
petitioners is allowed.
Insofar as the petitioner No.1 is concerned, the order dated
15.04.2015 (Annex.-5) is quashed and set aside. The petitioner
would be entitled to the consequential benefits in accordance with
law.
So far as the petitioner No.2 is concerned, she would also be
governed by same principle i.e. she would be entitled to ACP as
and when the same becomes payable to her.
The respondents are directed to do the needful within a
period of four weeks from the date a copy of this order is placed
by the petitioners with the respondents.
(ARUN BHANSALI),J
94-PKS/-
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