S. K. MAL LODHA, J. -
(1.)THIS appeal under S. 18 of the Rajasthan High Court Ordinance, 1949 has been filed by the petitioner, whose writ petition under Article 226 of the Constitution was dismissed by order dated June 7,1984 passed by the learned single Judge of this Court.
(2.)THE material facts leading to this appeal may succinctly be stated:
The petitioner was appointed as a Patwari in the Revenue Department, on October 31, 1952. He was promoted as Inspector, Land Records vide order dated June 26, 1963. Subsequently, he was promoted as Naib Tehsildar on adhoc basis on April 20, 1978 but he was later on reverted from this post. Thereafter, vide order (Annexure-1) dated July 9, 1979, he was appointed to* the post of officiating Naib Tehsildar in Rajasthan Tehsildars Service Cadre on purely urgent temporary basis for a period of six months or till regularly selected candidates in accordance with the method prescribed under rr. 24 and 28 of the Rajasthan Tehsildars Service Rules, 1956 (for short 'the Rules' hereinafter) are made available whichever is earlier. It was also provided in the order (Annexure-1) that the officiating appointment shall stand terminated on the expiry of the period mentioned therein unless specifically extended further by the competent authority and with the concurrence of the Rajasthan Public Service Commission, where necessary. The Departmental Promotion Committee (hereinafter referred to as 'the D. P. C.) met on April 6/7. 1981 and on the recommendation of the D. P. C. , the petitioner-appellant came to be promoted as Naib Tehsildar under r. 28-A (ll) of the Rules. Another D. P. C. met on July 21/22, 1982. The petitioner-appellant was selected by the D. P. C. under r. 28-A (11) of the Rules for the post of Naib Tehsildar. This was, however, subject to review and revision. The order was made in pursuance of the D P. C. on September 24, 1982 and that has been placed on record as Annexure-3 Thereafter, by order (Annexure-4) dated May 17, 1984, the petitioner-appellant was ordered to be reverted from the post of Naib Tehsildar on the ground that he has not been selected by the D. P. C. which met on February 23/24, 1984. The petitioner has filed photostat copy of the adverse remarks (Annexure-5) which were made in his Annual Performance Appraisal Report for the year 1982-83. The petitioner submitted representation (Annexure-6) against the adverse remarks on January 31, 1984. According to the petitioner, the said representaion has not been disposed of so far. It has also been stated in para 6 of the writ petition that by order (Annexure-7) dated October 12, 1982, he was put under suspension on the ground that a departmental enquiry was contemplated against him. The suspension order was revoked by the Board of Revenue for Rajasthan vide its order (Annexure-8) dated January 14,1983. Subsequently, the petitioner was informed by Annexure-9 dated February 14, 1983 by the Chairman, Board of Revenue for Rajasthan that an enquiry under r. 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (which will hereinafter be referred to as 'the C. C. A. Rules') is proposed to be held against him on the charges detailed in the statement of changes and explained in the statement of allegations enclosed therewith. According to the petitioner, no substantive progress has been made in the enquiry so far and the order (Annexure-4) dated May 17, 1984 has been passed because of the pendency of the departmental enquiry and the adverse remarks made in the Annual Performance Appraisal Report for the year 1982-83. The writ petition was filed on June 5, 1984 for quashing the order (Annexure-4) dated May 17. 1984 as it is invalid. A prayer was made that the respondents may be forbidden from giving effect to the order (Annexure-4) dated May 17, 1984. A direction was also sought against them to put back the petitioner on the post of Naib Tehsil-dar, as he had never been reverted. Consequential benefits were also sought.
The learned single Judge by his order dated June 7, 1984 dismissed the writ petition on the ground that the petitioner-appellant is facing a departmental enquiry under r. 16 of the CCA. Rules. The learned Judge observed as under: "if the Departmental Promotion Committee in its wisdom did not think it proper to include the name of the petitioner in the list of selected candidates for substantive appointment to the post of Naib Tehsildar, there is no reason for this Court to interfere. In case, the petitioner is exonerated of the charge, he will undoubtedly have a right to approach the competent authority for re-consideration, if he has not been selected on this ground. " Aggrieved, the petitioner-appellant has filed this appeal.
A show cause notice was issued to the respondents. In pursuance of which, appearance has been put in on behalf of the respondents. In reply to the stay petition, on behalf of the respondents, it has been stated that the D. P. C. considered the suitability of the persons for the post of Naib Tehsildar in its meeting which was held on February 23/24, 1984 and the petitioner-appellant was found unsuitable for the post of Naib Tehsildar on account of adverse entries in the Annual Performance Appraisal Reports for the years 1977-78 and 1982-83 and a departmental enquiry under r. 16 of the CCA. Rules which was pending against him. As the petitioner-appellant was found unsuitable, he was reverted to the post of Inspector Land Records by order (Annexure-4) dated May 17, 1984. The reversion was sought to be justified in the reply.
A rejoinder to the reply to the stay petition was filed on behalf of the petitioner-appellant, in which, it was stated that no adverse entries alleged to have been made in the Annual Performance Appraisal Report for the year 1977-78 were ever served upon the petitioner-appellant and as such, he had no occasion to make a representation against it. It was also stated in the rejoinder that despite the adverse entries for the year 1977-78, the petitioner-appellant was promoted as Naib Tehsildar and so also on the recommendation of the D. P. C as well. In these circumstances, it was not open to the D. P. C. to have found the petitioner-appellant unsuitable on the basis of the adverse entries for the year 1977-78. It was also stated in the rejoinder that pendency of the enquiry under r. 16 of the CCA. Rules cannot operate as a bar for the promotion of the petitioner-appellant on any count.
(3.)ON August 22, 1984, it was ordered that the appeal shall be heard finally at the admission stage.
We have heard Mr. M. Mridul, learned counsel for the appellant and Mr. R. C. Maheshwari, learned Additional Government Advocate.
While assailing the order dated May 17. 1984 of the learned single Judge, it was urged by Mr. M. Mridul, learned counsel for the appellant that the order (Annexure-4) dated May 17, 1984, so far as it relates to the petitioner, is illegal and invalid, for. the petitioner-appellant could not be adjudged unsuitable on the basis of (l) adverse entries made in the Annual Performance Appraisal Report for the year 1977-78; (ii) adverse entries made in the Annual Performance Appraisal Report for the year 1982-83; and (ii) pendency of the departmental enquiry under r. 16 of the C. C. A. Rules.