- (1.) The petitioner is a member of the Rajasthan Medical & Health Services created under the Rajasthan Medical & Health Services Rules, 1963 (hereinafter referred to as "the Rules of 1963"). He is holding the post of Medical Officer, having an avenue for promotion to the post of Junior Specialist under the Rules of 1963. The criteria for promotion to the post of Junior Specialist, as per the Rules of 1963, is seniority-cum-merit.
(2.) The grievance of the petitioner is that the respondents in view of the Government of Rajasthan circular dated 26.7.2006 are not considering his candidature for promotion to the post of Junior Specialist. The circular aforesaid prescribes necessary instructions required to be adhered while making promotions to different posts in different services in the State of Rajasthan. As per this circular if the Government servant has suffered withholding of increments with cumulative effect, he shall not be entitled to be considered for promotion as many times as for the years increment has been withheld. The petitioner suffered a penalty of withholding of five annual grade increments, therefore, in view of the Government of Rajasthan circular dated 26.7.2006 his case shall not be considered for promotion five times.
(3.) While challenging the condition aforesaid under the circular dated 26.7.2006, the arguments advanced by counsel for the petitioner are that:- (1)the criteria, eligibility and procedure for promotion to various posts including the post of Junior Specialist in Rajasthan Medical & Health Services is prescribed under the Rules of 1963 and as per provisions of the Rules the Departmental Promotion Committee is required to consider entire record of an eligible person while making promotions, as such no instructions checking discretion of the competent authority beyond the procedure already given under the Rules of 1963 could have been prescribed by the State Government through administrative instructions. The circular dated 26.7.2006, thus, is nothing but abdication of powers vested with the Departmental Promotion Committee and the appointing authority; (2)as per the procedure prescribed the punishment suffered by the petitioner could have been taken into consideration for five years from the date of its imposition, but could have not been thrown out of the zone of consideration for five times; and (3)withholding of promotion itself is a penalty prescribed under the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (hereinafter referred to as "the Rules of 1958"), therefore, non consideration for promotion on the count of penalty suffered shall amount "double jeopardy".;