Rajasthan High Court

Dr Ahmed Ali vs State Of Raj And Ors on 26 September, 2023

Bench: Anoop Kumar Dhand

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        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                 S.B. Civil Writ Petition No. 21006/2017

Dr. Ahmed Ali S/o Shri Samsurdalim, age about 60 years old
Resident of mohalla momeneem, near new masjid ke pass,
Todarai Singh, District - Tonk, Rajasthan.
                                                                      ----Petitioner
                                     Versus
1.       State Of Rajasthan Through Director, Department Of
         Animal Husbandry, Government Secretariat, Government
         Of Rajasthan, Jaipur.
2.       The Deputy Secretary, Department Of Animal Husbandry,
         Secretariat, Jaipur, Rajasthan.
3.       The Joint Director, Department Of Animal Husbandry,
         Bundi, Rajasthan.
4.       Director, Directorate Of Pension And Pensioners Welfare,
         Jyoti Nagar, Jaipur, Rajasthan.
                                                                   ----Respondents

For Petitioner(s) : Mr. Sandeep Singh Shekhawat Mr. Akshay Dutt Sharma For Respondent(s) : Ms. Priyanka Pareek Mr. Deepak Meena on behalf of Mr. Rohit Choudhary, Dy. GC

HON'BLE MR. JUSTICE ANOOP KUMAR DHAND Order

RESERVED ON :: 15.09.2023 PRONOUNCED ON :: 26.09.2023 REPORTABLE

1. Instant petition has been filed by the petitioner with the

following prayer:-

"(1) By an writ, appropriate writ, order or direction or in nature thereof thereby the respondents be directed to release all the dues of the petitioner after revising his pay scale for the post of Joint Director and also commute his gratuity, pension and other retiral benefits along with prevalent rate

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of interest 18% per annum from the date of his retirement i.e. 30/06/2017 along with all consequential benefits.

(2) Any other writ, order or direction which may be deemed proper in the facts and circumstances of the case, may also be issued in favour of petitioner."

Submission by the petitioner:

2. Learned counsel for the petitioner submits that the petitioner

was working on the post of Deputy Director and the vacancies for

the promotional post i.e. Joint Director became vacant in the

month of April, 2017 and even the Departmental Promotion

Committee (for short 'DPC') was conducted by the respondents

against the vacancy for the year 2017-18 and, accordingly, the

petitioner was promoted to the post of Joint Director vide order

dated 15.04.2017. Counsel submits that while promoting the

petitioner on the promotional post, it was observed that the date

of promotion of the petitioner would be 01.07.2017. Counsel

submits that before getting promotion on the promotional post,

the petitioner stood retired from the post of Deputy Director on

30.06.2017. Counsel submits that due to arbitrary act of the

respondents, the petitioner has failed to get the benefit of

promotional post. Counsel submits that the respondents have not

granted the benefits of promotional post to the petitioner prior to

his retirement, hence, discrimination has been caused with the

petitioner to deprive him from getting the benefit of promotional

post. In support of his contentions, counsel has placed reliance

upon the following judgments:

(I) M.P. Singh Bargoti Vs. State of Madhya Pradesh and Another reported in (2014) 15 SCC 553; and

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(II) Major General H.M. Singh, VSM Vs. Union of India and Another reported in (2014) 3 SCC 670.

3. Counsel submits that under these circumstances,

interference of this Court is warranted and appropriate direction

be issued to the respondents to grant notional benefits of the

promotional post to the petitioner with all consequential benefits.

Submission by the respondents:

4. Per contra, counsel for the State respondents opposed the

arguments raised by the counsel for the petitioner and submitted

that against the vacancies of year 2017-18, the 'DPC' was

conducted and, accordingly, the petitioner was promoted on the

post of Joint Director w.e.f. 01.07.2017. Counsel submits that the

order dated 25.04.2017 was clear and specific and it was

specifically mentioned that the selected candidates would get the

benefit of promotion w.e.f. 01.07.2017 when the vacancies

became due. Hence, the respondents have not caused any

illegality in passing the order dated 25.04.2017. Counsel submits

that under these circumstances, the petitioner is not entitled to

get any relief in this regard.

Analysis and Reasoning:

5. Heard and considered the submissions made at the bar and

perused the material available on the record.

6. By way of filing this petition, the petitioner is seeking

direction against the respondents to revise his pay scale for the

post of Joint Director and grant him gratuity, pension and all

retiral dues with interest @ 18% per annum from the date of his

retirement i.e. 30.06.2017.

7. Admittedly, the petitioner stood retired on 30.06.2017 from

the post of Deputy Director after attaining the age of

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superannuation. This fact is not in dispute that the DPC was

conducted by the respondents against the vacant posts of Joint

Director (General) for the vacant posts of the year 2017-18 and

accordingly, a decision was taken to promote 22 candidates on the

post of Joint Director w.e.f. the date of vacancy. Accordingly, an

order was passed to promote the petitioner from the post of

Deputy Director to Joint Director w.e.f. 01.07.2017 when the post

of Joint Director became vacant. The order was passed in this

regard on 25.04.2017. But prior to getting the benefit of

promotion, the petitioner stood retired on 30.06.2017 from the

post of Deputy Director.

8. The grievance of the petitioner is that if timely promotion

could have been granted to him, he could have got the benefits of

his promotional post before his retirement. The case of the

petitioner is that as per Rule 9 of the Rajasthan Animal Husbandry

Service Rules, 1963 (for short, 'the Rules of 1963'), the

respondents were supposed to determine the vacancy on 1 st April

and consider the case of the petitioner for promotion as per Rule

23 A of the Rules of 1963. Counsel submits that even as per DPC

guide lines, the respondents were supposed to determine the

vacancies on 1st April. Counsel submits that due to non

determination of the vacancies on 1st April, the petitioner could not

get the benefits of promotional post and he has been deprived

from getting the benefits of promotional post after the date of his

retirement. For convenience the provisions contained under Rule 9

and 23 A of the Rules of 1963 are reproduced as under:

"9. Determination of Vacancies.- (1) (a) Subject to the provision of these Rules, the Appointing Authority shall determine on lst April every year, the actual

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number of vacancies occurring during the financial year.

(b) Where a post is to be filled in by a single method as prescribed in the rule or Schedule, the vacancies so determined shall be filled in by that method.

(c) Where a post is to be filled in by more than one method as prescribed in the rules or Schedule, the apportionment of vacancies, determined under clause

(a) above, to each such method shall be done maintaining the prescribed proportion for the overall number of posts already filled in. If any fraction of vacancies is left over, after apportionment of the vacancies in the manner prescribed above, the same shall be apportioned to the quota of various methods prescribed in a continuous cyclic order giving precedence to the promotion quota.

(2) The Appointing Authority shall also determine the vacancies of earlier years, year wise, which were required to be filled in by promotion, if such vacancies were not determined and filled earlier in the year in which they were required to be filled in.

23.A. Criteria, Eligibility and Procedure for Promotion:- (1) As soon as the Appointing Authority determines the number of vacancies under rule regarding determination of vacancies of these rules and decides that a certain number of posts are required to be filled in by promotion, it shall subject to the provisions of sub-rule (6), prepare a correct and complete list of the senior most persons who are eligible and qualified under these rules for promotion on the basis of seniority cum merit or on the basis of merit to the class of posts concerned."

9. Perusal of both the Rules clearly indicate that the appointing

authority shall determine "actual number of vacancies occurring

during a financial year" on 1st April. Perusal of record indicates

that various vacancies on the promotional post of Joint Director

became vacant on different dates i.e. 01.04.2017, 01.05.2017,

01.06.2017, 01.07.2017 and 01.08.2017 and accordingly,

following the mandate contained under the Rules of 1963, the

case of each and every individual was considered by conducting

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DPC and accordingly, promotion order was passed from the date

on which the promotional post became vacant. Herein this case,

the promotional post of Joint Director become vacant for the

petitioner on 01.07.2017 and accordingly, he was promoted on the

said post w.e.f. 01.07.2017 vide order dated 25.04.2017.

10. It is settled proposition of law that promotion is always

effective from the date of creation of the promotional post i.e.

after the post falls vacant. Herein the instant case also the

promotion post of the Joint Director become vacant on 01.07.2017

and accordingly the petitioner was promoted on the said post.

11. This Court finds no force in the argument of the petitioner

that the promotional post was not determined on 1 st April, and

because of that the petitioner failed to get promotion. This Court

finds that the promotional post of Joint Director had fallen vacant

on various dates i.e. 01.04.2017, 01.05.2017, 01.06.2017,

01.07.2017 and 01.08.2017 and accordingly, the DPC meeting

was conveyed in April, 2017 and accordingly, the promotion order

was passed on 25.04.2017 for all the candidates who were falling

in the zone of consideration on the basis of their seniority and

merit. Since the promotional post of Joint Director become vacant

for the petitioner on 01.07.2017, hence, he was granted

promotion w.e.f. 01.07.2017.

12. No officer has a vested right to a promotional post, which is

restricted to that of consideration according to law. The law in this

regard is settled by the Hon'ble Apex Court in the case of Ajay

Kumar Shukla and ors. Vs. Arvind Rai and ors. reported in

2021 SCC Online SC 1195 in para 37 and 38 as under:

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"37. This Court, time and again, has laid emphasis on right to be considered for promotion to be a fundamental right, as was held by K. Ramaswamy, J., in the case of Director, Lift Irrigation Corporation Ltd. and Others vs. Pravat Kiran Mohanty and Others: (1991) 2 SCC 295 in paragraph 4 of the report which is reproduced below:

"4... There is no fundamental right to promotion, but an employee has only right to be considered for promotion, when it arises, in accordance with relevant rules. From this perspective in our view the conclusion of the High Court that the gradation list prepared by the corporation is in violation of the right of respondent/writ petitioner to equality enshrined under Article 14 read with Article 16 of the Constitution, and the respondent/writ petitioner was unjustly denied of the same is obviously unjustified."

38. A Constitution Bench in case of Ajit Singh vs. State of Punjab: (1997) 7 SCC 209, laying emphasis on Article 14 and Article 16(1) of the Constitution of India held that if a person who satisfies the eligibility and the criteria for promotion but still is not considered for promotion, then there will be clear violation of his/her's fundamental right. Jagannadha Rao,J. speaking for himself and Anand, CJI., Venkataswami, Pattanaik, Kurdukar, JJ., observed the same as follows in paragraphs 21 and 22 and 27:

"21: Articles 14 and 16(1): is right to be considered for promotion a fundamental right

22: Article 14 and Article 16(1) are closely connected. They deal with individual rights of the person. Article 14 demands that the "State shall not deny to any person equality before the law or the equal protection of the laws". Article 16(1) issues a positive command that "there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State".

It has been held repeatedly by this Court that clause (1) of Article 16 is a facet of Article 14 and that it takes its roots from Article 14. The said clause particularises the generality in Article 14 and identifies, in a constitutional sense "equality of opportunity in matters of employment and appointment to any office under the State. The word "employment" being wider, there is no dispute that it takes within its fold, the aspect of

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promotions to posts above the stage of initial level of recruitment. Article 16(1) provides to every employee otherwise eligible for promotion or who comes within the zone of consideration, a fundamental right to be "considered" for promotion. Equal opportunity here means the right to be "considered" for promotion. If a person satisfies the eligibility and zone criteria but is not considered for promotion, then there will be a clear infraction of his fundamental right to be "considered" for promotion, which is his personal right."

Promotion based on equal opportunity and seniority attached to such promotion are facets of fundamental right under Article 16(1)

xxxx xxxx xxxx xxxx xxxx

27. In our opinion, the above view expressed in Ashok Kumar Gupta and followed in Jagdish Lal and other cases, if it is intended to lay down that the right guarantee to employees for being "considered" for promotion according to relevant rules of recruitment by promotion (i.e. whether on the basis of seniority or merit) is only a statutory right and not a fundamental right, we cannot accept the proposition. We have already stated earlier that the right to equal opportunity in the matter of promotion in the sense of a right to be "considered" for promotion is indeed a fundamental right guaranteed under Article 16(1) and this has never been doubted in any other case before Ashok Kumar Gupta right from 1950."

13. Similarly, the Hon'ble Apex Court in the case of Ganga

Vishan Gujrati and ors. Vs. State of Rajasthan reported in

2019 (16) SCC 28 has held in para 45 as under:

"31. A consistent line of precedent of this Court follows the principle that retrospective seniority cannot be granted to an employee from a date when the employee was not borne on a cadre. Seniority amongst members of the same grade has to be counted from the date of initial entry into the grade. This principle emerges from the decision of the Constitution Bench of this Court in Direct Recruit Class II Engineering Officers' Association v State of Maharashtra: (1990)2 SCC 715. The principle was reiterated by this Court in State of Bihar v Akhouri Sachindra Nath:

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(1991) Supp (1) SCC 344 and State of Uttaranchal v Dinesh Kumar Sharma: (2007) 1 SCC 683. In Pawan Pratap Singh v Reeven Singh: (2011) 3 SCC 267, this Court revisited the precedents on the subject and observed:

"45. ... (i) The effective date of selection has to be understood in the context of the service rules under which the appointment is made. It may mean the date on which the process of selection starts with the issuance of advertisement or the factum of preparation of the select list, as the case may be.

(ii) Inter se seniority in a particular service has to be determined as per the service rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution.

(iii) Ordinarily, notional seniority may not be granted from the backdate and if it is done, it must be based on objective considerations and on a valid classification and must be traceable to the statutory rules.

(iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules. It is so because seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime."

14. Perusal of record indicates that the post of Joint Director

became vacant on 01.07.2017 for the petitioner and accordingly,

he was granted promotion on the said promotional post on the

basis of his seniority and merit. No promotion can be granted to

the petitioner in the Month of April, 2017 when the petitioner has

not borne in the cadre and if at all, it is done, it would adversely

affect the employees who were senior to the petitioner. The

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judgments referred by the petitioner are not applicable in the facts

and circumstances of this case.

Conclusion:

15. As such, in view of the stated position of law and there being