Rajasthan High Court - Jodhpur
Pradeep Bhansali vs State And Ors on 17 May, 2022
Bench: Rekha Borana
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 445/2016
Pradeep Bhansali son of Late Shri Paras Raj Bhansali, aged about
48 years, resident of 60-A, Narsingh Vihar, Lal Sagar, Jodhpur.
----Petitioner
Versus
1. State of Rajasthan Through-Principal Secretary, Finance
Department, Government of Rajasthan, Jaipur.
2. Excise Commissioner Excise Bhawan, 2-Gurmaniawala,
Panchwati, Udaipur.
3. Additional Excise Commissioner Excise Bhawan, 2-
Gumaniawala, Panchwati, Udaipur.
4. Additional Excise Commissioner, Jodhpur Zone, Jodhpur.
5. District Excise Officer (Prosecution) Jodhpur.
----Respondents
For Petitioner(s) : Mr. Sushil Solanki
For Respondent(s) : Mr. Girish Kumar Sankhla
Mr. Hemant Choudhary
HON'BLE MS. JUSTICE REKHA BORANA
Order
17/05/2022
In the present petition the order dated 02.12.2015 is under
challenge whereby the order dated 21.06.2012 granting the
benefits of ACP to the petitioner and the order dated 27.09.2013
granting the benefit of promotion to the petitioner have both been
cancelled with immediate effect. The said orders have been
cancelled in view of the fact that the petitioner farthered a 4 th child
on 19.02.2010, that is after the cut-off date. Therefore in terms of
the provision of the circular/notification dated 20.06.2001, he
could not have been considered for promotion for five recruitment
years from the date on which his promotion became due.
(2 of 3) [CW-445/2016]
Counsel for the petitioner relied upon the judgment passed
in Parbat Singh Vs. State of Raj. & Ors. (S.B.C.W.P.
No.10159/2015, decided on 29.11.2016) and Shriram Barupal &
Anr. Vs. The State of Raj. & Ors. (S.B.C.W.P. No.1024/2018,
decided on 29.11.2021). In Parbat Singh's case (supra), the co-
ordinate Bench of this Court held as under:
"The relevant clause no.3 of the
circular/notification dated 20.6.2001 is
reproduced herein below for the sake of ready
reference :
"3. Amendment :- After the existing sub-
rule (1) of rule as mentioned in Column
No.4 against each of the Service rules as
mentioned in Column No.2 of the Schedule
appended hereto, the following new sub-
rule shall be added, namely :-
"(1A) No person shall be considered
for promotion for 5 recruitment
years from the date on which his
promotion becomes due, if he/she
has more than two children on or
after Ist June, 2002."
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 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."
(3 of 3) [CW-445/2016]
In the present case, the petitioner had been granted the
benefit of ACP vide order dated 21.06.2012 and the benefit of
promotion vide order dated 27.09.2013 but both the said orders
have been withdrawn by the impugned order.
In terms of the ratio as laid down in Parbat Singh's case
(supra), the petitioner could not have been penalized twice for
the same cause. As the order granting the benefit of ACP was
prior in date, the same having been withdrawn, the order
withdrawing the benefit of promotion would not stand.
Therefore, the impugned order dated 02.12.2015 is quashed
to the extent it cancels the order dated 27.09.2013 whereby the
petitioner was granted the benefit of promotion. So far as the
withdrawal/cancellation of the order dated 21.06.2012 is
concerned, the same would stand and the petitioner would not be
entitled to grant of ACP till 11.03.2016.
With the above observations, the present writ petition is
disposed of.
All the pending applications also stand disposed of
accordingly.
(REKHA BORANA),J
28-AnilKC/-
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