Rajasthan High Court
State Of Rajasthan vs Mohammad Hussain S/O Yusuf Khan on 17 November, 2021
Bench: Mahendar Kumar Goyal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 5499/2021
1. State Of Rajasthan, Through Secretary, Home
Government Of Rajasthan, Jaipur.
2. Director General Of Police, Police Head Quarter, Lal Kothi,
Jaipur.
3. Commissioner Of Police, Commissionerate, Jaipur.
4. Deputy Commissioner Of Police, Commissionerate, Jaipur.
----Petitioners
Versus
1. Mohammad Hussain S/o Yusuf Khan, Aged About 42
Years, Resident Of Plot No. 100, Raghunathpuri, Kalwar
Road, Ps Jhotwara, Jaipur. Presently Posted As Constable
(Belt No. 1125) At Office Additional Dcp 2Nd North, Police
Commissionerate, Jaipur.
2. Sanwarmal S/o Bhagwanram, Aged About 47 Years,
Present Working As Assistant Sub-Inspector Licencing
Branch Police Commissionerate Jaipur Resident Of Village
Somthadiya, Police Station Ringus, District Sikar (Raj.)
----Respondents
For Petitioner(s) : Mr. Rupin Kala, GC with
Mr. P.S. Naruka
For Respondent(s) : Mr. Pushpendra Singh Tanwar for
Mr. Shobit Tiwari
HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL
Order
17/11/2021
This writ petition has been filed assailing the legality and
validity of the order 18.09.2020 passed by the Rajasthan Civil
Services Appellate Tribunal, Jaipur (for brevity 'the Tribunal')
whereby the appeal preferred by the respondent no.1 claiming
seniority, promotion and consequential benefits, has been allowed.
(2 of 4) [CW-5499/2021]
The facts in brief are that the respondent no.1 was initially
appointed as Constable in Jaipur City but, was assigned seniority
below the respondent no.2 herein, who was transferred to Jaipur
City on his own request from the other District and who,
indisputably, joined at Jaipur City after joining of the respondent
no.1.
The learned Tribunal has, taking into consideration the
provisions of Rule 36 of the Rajasthan Police Subordinate Service
Rules, 1989 (for brevity 'the Rules of 1989') which provides that
the person transferred to another District shall be ranked junior
most in the particular rank in the District to which he is
transferred, allowed the appeal with all consequential benefits
including seniority and promotion.
Learned counsel for the petitioners assailing the findings,
submitted that the learned Tribunal did not have jurisdiction to
quash the Circular dated 10.01.2008 which provided that seniority
of a Constable transferred from other District shall be decided as
per his date of appointment. He further submitted that in view of
the settled proposition of law as laid down by the Hon'ble Apex
Court of India in catena of cases that even if an employee is held
entitled to the relief of seniority and promotion, instead of actual
monetary benefits, he is entitled only for notional benefits on the
principle of "no work no pay". He, therefore, prayed that the order
of the learned Tribunal be quashed and set aside.
Learned Senior Counsel Shri A.K. Sharma for the respondent
no.1 submitted that in view of the judgment of the Hon'ble Apex
Court of India in case of L. Chandra Kumar Vs. Union of India
and Ors.: 1997 (3) SCC 261, the learned Tribunal was well with
(3 of 4) [CW-5499/2021]
in its jurisdiction to quash the Circular dated 10.01.2008. He
submits that even otherwise also, in view of provisions of Rule 36
of the Rules of 1989, the Circular dated 10.01.2008 was of no
avail. With regard to grant of notional benefits, learned Senior
Counsel submits that his client is ready to forgo the actual
monetary benefits and would feel contended with notional benefits
only.
Heard learned counsels for the parties and perused the
record.
It is trite law that administrative instructions/circulars cannot
override the statutory provisions. Learned counsel for the
petitioners also, in all his fairness, did not dispute the aforesaid
legal proposition. In view thereof, the Circular dated 10.01.2008
being in contravention of the provisions contained in Rule 36 of
the Rules of 1989, has rightly not been relied upon by the learned
Tribunal.
Indisputably, the respondent no.1 has joined at Jaipur City
as Constable prior to transfer of the respondent no.2 and hence,
he would rank senior to the respondent no.2. Therefore, in view of
the Rule 36, the respondent no.1 was entitled for seniority over
the respondent no.2. This position of law has been affirmed by a
co-ordinate Bench of this Court in its judgment dated 03.09.2021
passed in SBCWP No.10353/2021: Subhash Chandra Vs.
State of Rajasthan & Ors.
The question of grant of actual consequential benefits does
not survive for consideration in the light of submission made by
the learned Senior Counsel for the respondent no.1. The
(4 of 4) [CW-5499/2021]
respondent no.1 would be entitled for consequential benefits
notionally only.
Accordingly, the order dated 18.09.2020 passed by the
learned Tribunal is modified to the extent that the respondent no.1
would be entitled for seniority and promotion but, would be
entitled for consequential benefits notionally only.
With the aforesaid modification, rest of the order dated
18.09.2020 is maintained. The writ petition is disposed of
accordingly. The compliance of the directions be made within a
period of three months from the date of submission of a copy of
this order.
(MAHENDAR KUMAR GOYAL),J
Manish/104
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