Rajasthan High Court

State Of Rajasthan vs Dr. Kalu Ram Sharma S/O (Late) Sh. ... on 20 October, 2021

Bench: Mahendar Kumar Goyal

         HIGH COURT OF JUDICATURE FOR RAJASTHAN
                     BENCH AT JAIPUR

                  S.B. Civil Writ Petition No. 3529/2020

1.        State Of Rajasthan, Through Principal Secretary, Medical
          & Health Department, Government Of Rajasthan, Govt.
          Secretariat, Jaipur (Raj.)
2.        Director, Medical & Health Services, Tilak Marg, Jaipur.
3.        The    Principal,       R.N.T.    Medical     College     And   attached
          Hospital, Udaipur (Raj.)
                                                   ----Petitioners/Respondents

Versus Dr. Kalu Ram Sharma, aged About 60 Years, S/o (Late) Sh. Ratan Lai Ji Sharma, R/o 2, Gokul Nagar, Bohra Ganesh Road, Udaipur (Raj.)

----Non-Petitioner/Appellant

For Petitioner(s) : Mr. Vivek Tyagi, Dy. G.C. For Respondent(s) : Mr. A.K. Sharma, Sr. Adv. through VC with Mr. Vishvakant Sharma

HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL

Order

20/10/2021

This writ petition under Article 227 of the Constitution of

India is directed against the order dated 20.05.2019 passed by

the Rajasthan Civil Services Appellate Tribunal, Jaipur (for brevity,

"learned Tribunal") in Appeal No. 2172/2014 whereby, the arrears

of salary, retiral benefits have been granted to the respondent on

parity with persons junior to him on the basis of

promotion/Assured Career Progression (for brevity, "ACP)/

Dynamic Assured Career Progression (for brevity, "DACP") granted

to them.

(2 of 6) [CW-3529/2020]

The facts in brief are that the respondent was appointed as

Medical Officer on 02.08.1983 on ad hoc basis and his services

were confirmed vide order dated 10.03.1984 after regular

selection by the RPSC. He was posted vide order dated

26.09.1991 as Medical Officer at Human Fertility & Research

Centre, (Physiology), R.N.T. Medical College and attached

Hospital, Udaipur. He stood retired on 31.07.2014 on attaining the

age of superannuation from the post of Medical Officer without

extending him any benefit of promotion/ACP/DACP. The

respondent filed an appeal with the learned Tribunal stating

therein that vide order dated 29.02.1996, he was promoted as

Junior Specialist (Medicine); but, the order was never

communicated either to him or, to the Principal of R.N.T. Medical

College, Udaipur where he was working at the relevant time, in

absence whereof, he could not join on the promoted post. He

submitted that thereafter also, persons junior to him were

promoted vide order dated 16.12.2012; but, his case was not

considered on the premise that he has forgone the promotion

granted to him vide order dated 29.02.1996. It was submitted

that persons junior to him were also extended benefit of ACP as

also of DACP; but, he was retired from the same post without

granting any of such benefits even after rendering services for

about 31 years. The learned Tribunal has, vide order impugned

herein dated 20.05.2019, after considering the pleadings of the

parties and their respective contentions, allowed the appeal and

directed the petitioners to extend the respondent all consequential

benefits including the arrears of salary treating him to be

promoted from the date persons junior to him were promoted.

(3 of 6) [CW-3529/2020]

The sole contention raised by the learned counsel for the

petitioners, assailing the order impugned, has been that a number

of persons were promoted vide order dated 29.02.1996 and the

respondent, being in Government job, was reasonably expected to

have knowledge of his promotion order. He, therefore, prayed that

since the respondent did not join on the promotional post in

pursuance of the order dated 29.02.1996, he was disentitled for

further promotion or for grant of ACP/DACP and hence, the

learned Tribunal erred in allowing the appeal. He, therefore,

prayed for quashing the order impugned dated 20.05.2019.

Learned Senior Counsel appearing for the respondent,

supporting the findings recorded by the learned Tribunal,

submitted that no ipso facto knowledge of the order dated

29.02.1996 could be imputed upon the respondent merely

because he happened to be a Government servant, which,

indisputably, was never communicated to him. Learned Senior

Counsel submitted that taking into consideration the facts and

circumstances of the case especially the fact that the petitioner

retired from the same post without any benefit of promotion, ACP

or DACP as granted to the persons junior to him, even after

rendering 31 years of unblemished services, the learned Tribunal

has passed a well-reasoned order which does not require any

interference by this Court under its extraordinary and supervisory

jurisdiction. He, therefore, prayed for dismissal of the writ

petition.

Heard learned counsels for the respective parties and

perused the record.

The undisputed facts which emerge from the record are that

the respondent was appointed vide order dated 02.08.1983 as

(4 of 6) [CW-3529/2020]

Medical Officer on ad hoc basis and his services were confirmed on

10.03.1984 after regular selection by the RPSC. He retired with

effect from 31.07.2014 from the post of Medical Officer i.e. the

post at which he was initially appointed 31 years ago, on attaining

the age of superannuation. The order dated 29.02.1996 whereby,

the respondent was extended promotion on the post of Junior

Specialist (Medicine) was never communicated either to him or to

the Principal of R.N.T. Medical College where he was posted at the

relevant time. His candidature for further promotion was neither

considered on account of non-joining in pursuance of order dated

29.02.1996 nor, he was extended benefit of ACP/DACP for the

same reason, the benefits which were extended to the persons

junior to him.

The contention of the learned counsel for the petitioners that

being in Government service, it was reasonably expected from the

respondent to be aware of the promotion order is wholly

misconceived. As already observed, the order was never

communicated to the petitioners. An official order unless

communicated to the concerned, does not become operative or

binding upon him/her. In this regard, following judgments can be

referred:

The Hon'ble Apex Court of India has, in case of Greater

Mohali Area Development Authority and Ors. Vs. Manju Jain

and Ors. (2010) 9 SCC 157, held as under:

"23. Constitution Benches of this Court in Bachhittar Singh Vs. State of Punjab & Anr. AIR 1963 SC 395; and State of Punjab Vs. Amar Singh Harika AIR 1966 SC 1313, have held that an order does not become effective unless it is published and communicated to the person concerned. Before the

(5 of 6) [CW-3529/2020]

communication, the order can not be regarded as anything more than provisional in character.

A similar view has been reiterated in Union of India & Ors. Vs. Dinanath Shantaram Karekar & Ors. AIR 1998 SC 2722; and State of West Bengal Vs. M.R. Mondal & Anr. (2002) 8 SCC 443. In Laxminarayan R. Bhattad & Ors. Vs. State of Maharashtra & Anr. (2003) 5 SCC 413, this Court held that the order of the authority must be communicated for conferring an enforceable right and in case the order has been passed and not communicated, it does not create any legal right in favour of the party.

Thus, in view of the above, it can be held that if an order is passed but not communicated to the party concerned, it does not create any legal right which can be enforced through the court of Law, as it does not become effective till it is communicated."

The Hon'ble Apex Court of India has, in case of Bipromasz

Bipron Trading SA Vs. Bharat Electronics Limited (BEL),

(2012) 6 SCC 384, held as under:

" 25. Apart from the aforesaid statutory provision, it is also settled that an official order takes effect only when it is served on the person affected. In the case of Bachhittar Singh Vs. State of Punjab & Anr. (supra), this Court has clearly enunciated the Principle of Law in the following words:-

"Thus it is of the essence that the order has to be communicated to the person who would be affected by that order before the State and that person can be bound by that order. For, until the order is communicated to the person affected by it, it would be open to the Council of Ministers to consider the matter over and over again and, therefore, till its communication the order cannot be regarded as anything more than provisional in character."

(6 of 6) [CW-3529/2020]

Further, no reason has been assigned by the petitioners

either before the learned Tribunal or before this Court as to why

the order dated 29.02.1996 was never communicated to the

respondent or to the Principal of R.N.T. Medical College where he

was posted at the relevant time. It has also come on record that a

proposal was also sent by the department to the Government to

conduct review DPC for his promotion which never took place for

no reason forthcoming from the petitioners. The learned counsel

for the petitioners has failed to satisfy this court as to why the

respondent should be denied the benefit of promotion(s)/ACP and

DACP granted to persons junior to him for no fault of him. Learned

counsel for the petitioners has also failed to point out any illegality

or perversity in the order impugned dated 20.05.2019 passed by

the learned Tribunal which is based on logical reasoning and

material on record. This Court does not find any merit in the writ

petition which is dismissed accordingly.

However, in view of the fact that the respondent has not

been paid his dues for last more than two years even after passing

of the order dated 20.05.2019 by the learned Tribunal despite

there being no interim order by this Court against the order, this

court deems it just and proper to direct the petitioners to comply

with the directions contained in the order dated 20.05.2019 within

a period of three months from the date of receipt of a copy of this

order.