Jhabbar Singh Charan vs State Of Rajasthan ...
2023 Latest Caselaw 4352 Raj

[2023/RJJD/014345]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

S.B. Civil Writ Petition No. 7119/2022

Jhabbar Singh Charan S/o Shri Akhye Dan Charan, Aged About 49 Years, R/o 106- Ashapurna Nagar, DPS, Jodhpur, Rajasthan.

----Petitioner

Versus

1. State of Rajasthan, through the Secretary, Department of Home, Government of Rajasthan, Jaipur, Rajasthan.

2. The Director General of Police, Jaipur, Rajasthan.

3. The Police Commissioner, Commissionerate, Jodhpur, Rajasthan.

4. The Additional Director General of Police (Personnel), Jaipur, Rajasthan.

----Respondents

For Petitioner(s) : Mr. Rajesh Panwar, Sr. Advocate assisted by Mr. Ayush Gehlot For Respondent(s) : Mr. Anil Bissa, AGC

HON'BLE MS. JUSTICE REKHA BORANA

Order

10/05/2023

1. The present petition has been filed against the order dated

03.08.2017 (Annex.3) vide which the petitioner was served with a

charge-sheet and the subsequent orders vide which the petitioner

was punished with the penalty of stoppage of one annual grade

increment at the first stage which was reduced to punishment of

censure finally. It is submitted that on account of punishment of

censure, the petitioner has been denied consideration for

promotion to the post of Deputy Superintendent of Police against

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the vacancies of the year 2022-23, therefore, it has been prayed

that he may be considered and accorded the said promotion.

2. During the course of arguments, learned counsel for the

petitioner did not press upon the challenge to the orders dated

03.08.2017 (Annex.3), 31.08.2017 (Annex.7), 01.05.2018

(Annex.8) and 13.04.2022 (Annex.9) but submitted that even if

the punishment of censure is maintained, in view of the settled

proposition of law, he cannot be denied the promotion. In support

of his submissions, learned counsel relied upon the following

judgments:

i. Rajendra Singh Rao vs. State of Rajasthan and Ors.;

S.B. Civil Writ Petition No.8482/2008 decided on

19.11.2010.

ii. Hemraj vs. State of Rajasthan & Ors.; S.B. Civil Writ

Petition No.11312/2021 decided on 03.11.2022.

3. Per contra, learned counsel for the respondents, although did

not dispute the legal position that punishment of censure would

not come in the way of promotion but submitted that the same

would be after one year of deferment in view of the circular dated

04.06.2008 issued by the Department of Personnel.

4. Heard learned counsel for the parties and perused the

material available on record.

5. So far as the argument raised by learned counsel for the

respondent is concerned, the same was under consideration in

Rajendra Singh Rao's (supra) case also wherein the Court held

that subsequent circular dated 22.09.2009 of the Home

Department specifically provided that promotion could not be

[2023/RJJD/014345] (3 of 5) [CW-7119/2022]

denied merely on ground of penalty of censure if criteria of

promotion is seniority-cum-merit. The circular dated 22.09.2009

being a subsequent one would prevail and therefore, the ground

as raised by learned counsel for the respondents is not tenable.

6. So far as the consideration for promotion despite the

punishment of censure having been imposed is concerned, the

issue is no more res integra. In Rajendra Singh Rao (supra), it

was held as under:

"In cases of Chandan Dan (supra) and Shri Ram Khilari Meena (supra) also, judgment of Satyamani Tiwari was relied on. DB of this court in Shri Ram Khilari Meena (supra), after noticing several Apex Court judgments, held as under:-

In view of settled position of law as noticed above, even if there existed any minor penalty or some minor adverse remark here and there, promotion could not be denied to the appellant because the criteria for promotion in this case as not entirely merit based but was on 'seniority-cum-merit' where seniority has to be given more weightage as compared to merit. In that criteria, even penalty of censure could not be a ground to deny promotion to the appellant because what is to be seen is minimum necessary merit requisite for efficiency of administration and in that view of the matter, a senior person, even though less meritorious, shall have primacy in the matter of promotion and comparative assessment of merit is not required to be made.

In view of above, writ petition deserves to be allowed.

It is accordingly allowed. Respondents are directed to review DPC for the year 2009 for promotion to post of Deputy Superintendent of Police, which was convened on 20.10.2009, to reconsider case of petitioner and, if adjudged suitable, to promote him on post of Deputy Superintendent of Police against quota meant to be

[2023/RJJD/014345] (4 of 5) [CW-7119/2022]

filled in on criteria of seniority-cum-merit and if necessary for future years as well."

7. In Hemraj (supra) the Court, while relying upon the earlier

judgment passed in the case of State of Rajasthan & Ors. vs.

Manoj Kumar Machra & Ors. affirmed by the Division Bench in

D.B. Special Appeal Writ No.662/2022, held as under:

"The writ petition of the respondent writ petitioner was accepted on the ratio of the Division Bench judgment in the case of State of Rajasthan Vs. Ashok Singhvi [2013 (4) WLN 251] and the respondents were directed to consider the case of the respondent writ petitioner for promotion for the year 2021-22. Learned AAG Mr. Vyas submits that as the respondent had been visited with the penalty of 'censure', he was not entitled to be considered for promotion.

We feel that the said argument of Mr. Vyas is untenable in view of the ratio of the Division Bench judgment in the case of State of Rajasthan Vs. Ashok Singhvi (supra), on which, reliance was placed by learned Single Bench while accepting the writ petition vide the order dated 07.03.2022 which ex facie does not suffer from any infirmity whatsoever.."

8. In the present matter, it is not disputed that the criteria for

promotion is seniority-cum-merit and therefore, the ratio as laid

down vide the above judgments would definitely apply. In the

present petition, earlier, specific directions were issued to the

respondent-Department and in pursuance to the same, result of

DPC has been placed on record and as per the said result, the

petitioner has been recommended for promotion.

9. In view of the settled proposition of law, the present writ

petition is partly allowed. As the petitioner has already been

recommended for promotion in the DPC, the orders qua his

promotion be issued in terms of law within a period of one month

from the date of receipt of the present order.

[2023/RJJD/014345] (5 of 5) [CW-7119/2022]

Stay petition and all the pending applications stand disposed

of.

(REKHA BORANA),J 70-T.Singh/-

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