LOHRA, J. - (1.) THE appellants have preferred this intra-Court appeal against the impugned order dated 4th of January 2013, whereby the learned Single Judge has accepted the writ petition and issued requisite directions to the appellants for considering the candidature of the respondent-petitioner for promotion to the post of Junior Specialist (Orthopedics) sans the Circular dated 26th of July 2006.
(2.) THE facts apposite for the purpose of this appeal are that the respondent-petitioner laid a writ petition before the learned Single Judge for besetting the Circular dated 26th July 2006, whereby the appellants have issued instructions for debarring the State employees and officers from consideration of their candidature for the purpose of promotion for different durations keeping in view the magnitude and gravity of the punishment suffered by them. The respondent-petitioner has inter-alia pleaded in the writ petition that at the threshold of his service career he was appointed as Medical Officer on 24th of August 1984 and continued to serve the appellants in the same capacity until September 1994 when by order dated 20th of October 1994 he was appointed as Lecturer on adhoc basis as per recommendations of the Central Selection Committee. The adhoc appointment as Lecturer continued for more than a year and thereafter again the respondent-petitioner was ordered to be posted as Medical Officer on 21st of January 1996. In the year 1994, when the respondent-petitioner was discharging his duties as Medical Officer, a memorandum and charge-sheet dated 30th of July 1994 under Rule 16 of the Civil Services (Classification, Control & Appeal) Rules 1958 (for brevity, hereinafter referred to as 'Rules of 1958') was served on him. Precisely, in the chargesheet misconduct attributed to the respondent-petitioner was for unauthorized absence from duty. On completion of the disciplinary enquiry, the respondent was visited with a penalty of withholding of five annual grade increments with cumulative effect vide order dated 16th July 1999. On 15th December 2007, State-wide seniority list of Medical Officers as on 01.4.2007 was published inviting objections, wherein the name of the respondent was figured at Serial No.42. Subsequently, the said seniority list was finalized on 23rd August 2008 and name of the respondent was shown just above the name of Shri Padam Chand Jain. The names of two incumbents, viz., Shri Pawan Kumar Gehlot and Shri Harshvardhan Bhati could not appear in the said final seniority list as both of them were accorded promotion in the higher cadre i.e. Junior Specialist (Orthopedics). Feeling dissatisfied with his supersession, respondent moved a representation before the higher authorities but the said representation was not paid any heed. Ultimately, on persuasions at the behest of respondent, the Hon'ble Chief Minister intervened in the matter and directed the third appellant Director Medical & Health Services, Jaipur, but nothing transpired thereafter. As the grievances of the respondent subsisted, he made yet another representation on 9th April 2010 and in response to the same, a communication dated 13th August 2010 was addressed to him whereby he was conveyed that he has not been promoted on account of his blemished service record in the form of imposition of penalty of withholding of five annual grade increments with cumulative effect and for the purpose of vacancies of year 2006-07 the same was treated as first year for giving effect to the penalty in the matter of promotion. Thereafter, the respondent-petitioner received a letter from Addl. Director, Medical & Health Services, Jodhpur, whereby it was conveyed in clear and unequivocal terms that the case of the petitioner for promotion to the next higher post shall be considered against the vacancies of the year 2012-13 in view of penalty imposed on him by the order dated 15th of October 2003. The department initiated the process for promotion against the vacancies of 2007-08 and 2008-09 and DPC was conveyed on 09.03.2009. However, the case of the respondent-petitioner was not considered for the reason that he has suffered penalty of withholding of five annual grade increments with cumulative effect. As emerges from the pleadings of the respondent- petitioner in the writ petition, he came to know about a Circular issued by the Department of Personnel dated 26th July 2006 wherein it is envisaged that the incumbents who have suffered punishment of stoppage of annual grade increments with cumulative effect are debarred from promotion for equivalent number of years as that of the number of increments. Adverting to the province of service rule governing the service conditions of the respondent, namely, Rajasthan Medical & Health Service Rules 1963 (for brevity, hereinafter referred to as 'Rules of 1963'), the petitioner has pleaded specifically in the petition that under the Rules of 1963, candidature of Medical Officer is liable to be considered for promotion to the post of Junior Specialist (Orthopedics) and the criteria for promotion is seniority cum merit. Taking shelter of the Rules of 1963, the respondent- petitioner has averred in the writ petition that the Circular dated 26th July 2006 runs beyond the scope of Rules of 1963. Laying stress on the criteria for promotion, which is seniority cum merit, the respondent has asserted in the petition that simply because an incumbent employee has suffered the penalty of stoppage of five annual grade increments with cumulative effect, he cannot be superseded for equivalent number of years, for which increments have been withheld. Categorizing the Circular as arbitrary and unreasonable, the respondent-petitioner has asserted that the same runs contrary to the Scheme of the Rules of 1963 wherein it is provided that the service record of a government servant eligible for promotion is to be seen only for preceding seven years with reference to vacancy for which promotion is to be considered. While referring to the penalty imposed, the respondent-petitioner has averred in the petition that the said order was made on 16th July 1999 and therefore there is absolutely no justification for not considering the candidature of the respondent-petitioner after 16th July 2006 and the candidature of the respondent-petitioner deserves consideration for the vacancies of subsequent years. In the pleadings, the respondent has also referred to Assured Career Progression Scheme providing three financial upgradations on completion of 10, 20 and 30 years of regular service with reference to State Service officers. Placing on record communication dated 22nd of February 2010, the respondent- petitioner has stated in the writ petition that the Superintendent of MDM Hospital, Jodhpur has forwarded the case of the respondent for grant of financial upgradation by reckoning the services from the year 1984 when he had entered in the State service. According to the respondent-petitioner, the said communication has also not yielded the desired result and the fourth respondent vide order dated 2nd of August 2010 has declined financial upgradation to the respondent by taking shelter of punishment of stoppage of five annual grade increments with cumulative effect. The appellants submitted their reply to the writ petition and defended their action with full emphasis. In the return, the appellants have pleaded that Dr. P.K. Goyal and Harsvardhan Bhati were promoted against the vacancies of the year 2007-08 on the post of Junior Specialist (Orthopedics) and as such their names were not included in the final seniority list of medical officers. The respondents have specifically pleaded in the reply that the candidature of the respondent-petitioner would be considered for promotion to the post of Senior Specialist (Orthopedics) for the vacancies of the year 2011-12 in general quota. Emphasizing the rigor of punishment order, whereby the respondent-petitioner has visited with the penalty of withholding of five annual grade increments with cumulative effect, the respondents have specifically averred in the reply that the DPC has found the respondent-petitioner ineligible for promotion uptil
(3.) TAKING shelter of the Circular dated 26th July 2006, as 2010-11. per the version of the appellants, the punishment order dated 16th July 1999 was affirmed by the order dated 15th October 2003 and as such the effect of penalty against the respondent- petitioner shall continue upto 15.10.2010 and as a consequence thereof the respondent-petitioner is not entitled for promotion up to the year 2010-11 as per rules. Stoutly defending their actions in communicating the respondent-petitioner order dated 2nd of August 2010, whereby he was denied financial upgradation under the Assured Career Progression Scheme, the appellants have narrated in the reply that the said order is not infirm considering the fact that the respondent-petitioner has suffered penalty of withholding of five annual grade increments. Joining the issue with the respondent-petitioner on validity of circular dated 26th July 2006, the appellants in their counter have averred with full vehemence that the said Circular is not contrary to the Rules of 1963. Once again reiterating their earlier stand, the appellants have averred in the reply that against the punishment order, the reviewing authority has passed order on 15.10.2003 and as such period of seven years shall reckon from 15.10.2003 for the purpose of eligibility of the respondent-petitioner for consideration of his candidature for promotion to the higher post and the case of the respondent-petitioner shall be considered for the vacancies of the year 2011-12. As regards the Assured Career Progression Scheme, in terms of the reply, the respondent-petitioner shall be eligible for the same on 01.09.2011.;