Rajasthan High Court - Jodhpur

Vinod Chouhan vs The State Of Rajasthan on 29 November, 2021

Bench: Arun Bhansali

HIGH COURT OF JUDICATURE FOR RAJASTHAN

AT JODHPUR

S.B. Civil Writ Petition No. 11401/2021

Vinod Chouhan S/o Shri Mohan Lal, aged about 38 Years, R/o 108, Subhash Nagar, Pal Road, District Jodhpur, Rajasthan.

----Petitioner Versus

1. The State of Rajasthan through the Secretary, Department of Secondary Education, Government of Rajasthan, Jaipur.

2. The Director, Secondary Education, Government of Rajasthan, Bikaner.

3. The Joint Director (Personnel), Secondary Education, Government Of Rajasthan, Bikaner.

4. The District Education Officer, Secondary Education, District Jodhpur.

----Respondents

For Petitioner(s) : Mr. Lakshyadeep Singh Udawat for Mr. Kuldeep Mathur.

For Respondent(s) : Mr. Vishal Jangid, Dy. Govt. Counsel.

HON'BLE MR. JUSTICE ARUN BHANSALI

Order

29/11/2021

This writ petition has been filed by the petitioner requiring

the respondents to convene the meeting of the DPC for promotion

from the post of P.T.I. Grade-II to Trainer/Coach in Sport Volley

Ball against the vacancy for years 2019-20 and 2020-21 and to

consider the candidature and eligibility of the petitioner for

promotion and accord promotion to the petitioner with all

consequential benefits.

(2 of 6) [CW-11401/2021]

It is, inter-alia, indicated in the writ petition that the

petitioner was appointed on the post of P.T.I. Grade-II by order

dated 27.06.2013. The petitioner joined on the said post at Khod,

District Pali. Thereafter, by order dated 10.12.2016, on petitioner's

request, he was transferred from Khod, Rani, District Pali to

Jodhpur, where he joined. On account of petitioner's seeking Inter

Division transfer, his seniority was affected and he was placed at

the bottom seniority. The respondents for the post of Coach

convened regular DPC and sought names of eligible persons, in

which petitioner's name was sent indicating his seniority from the

year 2012-13.

Though the petitioner was eligible for promotion on the post

of Coach for Sport- Volley Ball, the DPC recommended promotions

for various other fields viz. Athletic, Football, Basket Ball, but for

Volley Ball recommendation was not made.

The petitioner sought information under the Right to

Information Act, 2005; requisite information was supplied to the

petitioner indicating that no DPC was held for selections years

2019-20 and 2020-21 and that the promotions are held under the

Rules of 1970 (Sic! 1971).

It is submitted by counsel for the petitioner that action of the

DPC in not considering the petitioner's candidature for promotion

as Coach for Sport- Volley Ball is not justified. Submissions have

been made that though the reason has been indicated in response

to writ petition, wherein the respondents have indicated that on

account of Inter Division transfer of the petitioner in the year

2013-14 while working on the post of P.T.I. Grade-II, his seniority

position in the old Division has been deleted and the seniority list

of the year 2017-18 for the petitioner has yet not been issued; in

(3 of 6) [CW-11401/2021]

absence of the same, the petitioner cannot be promoted to the

post of Coach from the post of P.T.I. Grade-II.

It is submitted that said indication is absolutely incorrect,

inasmuch as under the explanation to Rule 29 (10) of the

Rajasthan Educational Subordinate Service Rules, 1971 though

the petitioner was placed at bottom seniority, his experience w.e.f.

2013-14 was not wiped out and as such he was eligible for being

considered for promotion. Submissions have been made that

though his seniority was affected on account of Inter Division

transfer, however, as no one else in Sports- Volley Ball senior to

the petitioner was available, he should have been considered for

promotion by the DPC and non-consideration is, therefore, not

proper.

Reliance has been placed on the judgment in Mohd. Yakub

Khan vs. The State of Rajasthan & Ors. : SBCWP No.15051/2016

decided on 06.08.2019.

Learned counsel for the respondents made submissions that

once the petitioner sought Inter Division transfer, he was not

entitled to be considered for promotion and therefore, the petition

deserves dismissal.

I have considered the submissions made by the counsel for

the parties and have perused the material available on record.

The facts are not in dispute wherein the petitioner was

appointed on 27.06.2013 and was transferred from District Pali to

District Jodhpur. Merely on account of the said transfer it cannot

be said that the petitioner lost his experience, which was the

requirement for being considered for the post of Coach Sport

Volley Ball.

(4 of 6) [CW-11401/2021]

In the case of Mohd. Yakub Khan (supra), this Court in

similar circumstance pertaining to same Department came to the

following conclusion: -

"A perusal of the above determination made by the respondents indicates that the reason indicated is that as the petitioner joined the Churu Division in the year 2010, for the year 2013-14 he cannot be granted the benefit of promotion. The said determination made by the respondents is apparently based on the understanding that as the petitioner joined Churu Division in the year 2010 at his own request at bottom seniority, he did not have the requisite experience of 5 years in the feeder cadre. The said determination made is ex-facie faulty and contrary to the law.

Explanation to Rule 29(10) of the Rules of 1971, reads as under:-

"Explanation.- A person working on the post of (Senior Teachers/Teacher) or equivalent posts when transferred from one district/range to another district/range on his own request shall be place just below the junior most person in seniority list of the new district/range from the date of taking over the charge in the new district/range and will cease to have any right of his seniority in the district/range from which he has been transferred."

A perusal of the above provision would indicate that on transfer from one district to another district on own request, the person is required to be placed below the junior most person in seniority. The said stipulation cannot be read to mean that the period for which, the teacher has served in the district from which he has sought transfer, would be wiped out for all purposes.

The only implication is that on transfer to another district at one's own request, he is to be placed at the bottom seniority, nothing more.

(5 of 6) [CW-11401/2021]

The law in this regard is well settled. The Hon'ble Supreme Court in the case of V.N. Bhatt (supra) laid down as under:-

"The well-settled principle of law is that even in the case where the transfer has been allowed on request, the employee concerned merely loses his seniority, but the same by itself would not lead to a conclusion that he should be deprived of the other benefits including his experience and eligibility for promotion."

The same principle has been laid down in all the judgments cited by the petitioner.

The judgments cited by learned counsel for the respondents also lay down the identical principle that period of services rendered by employee at earlier place cannot be excluded for consideration for determining his eligibility for promotion as eligibility and seniority are two distinct and different factors.

The respondents themselves have accorded the benefit of first selection grade at the end of 9 years' service to the petitioner by order dated 21.11.2016 indicating his date of appointment as 08.10.2007, which also clearly establishes the fact that petitioner's services rendered at Jodhpur are to be reckoned for all purposes except as provided in explanation to Rule 29(10) of the Rules of 1971.

In view of the above provisions of law as well as law laid down by Hon'ble Supreme Court specifically holding that the provision does not wipe out the services rendered by the employee at the place from where he was transferred at his own request for the purpose of eligibility for promotion, the determination made by the respondents in this regard cannot be sustained."

In view of the law laid down by this Court, the action of the

respondents cannot be countenanced. The petitioner being very

much eligible for being considered for promotion as Coach for

(6 of 6) [CW-11401/2021]

Sport- Volley Ball, the DPC should have considered the case of the

petitioner.

Consequently, the writ petition filed by the petitioner is

allowed. The action of the DPC in not considering the petitioner's

candidature is set aside. The respondents are directed to convene

Review DPC for promotion of the petitioner on the post of

Coach/Trainer for Sport Volley Ball against the vacancy year 2019-

20 and 2020-21 and in case the petitioner is found