Y.R.MEENA, J. - (1.) BY this writ petition, the petitioner has prayed that circular dated 7.7.95 (Ann. 3) be declared illegal and respondent be directed to call/allow the petitioner to appear in the aptitude test to be held on 30.7.95 for the post of Computer Operator.
(2.) THE petitioner was appointed as Clerk -cum -Godown Keeper in the respondent -Bank after due selection on 15.2.1978. Thereafter, he was confirmed on the said post on 15.8.1978. At present he is working as clerk in the Jaipur Branch of the respondent Bank. A circular dated July 7, 1995 was issued by the Bank for selection of computer operators from among the clerks after holding the aptitude test. One of the condition for eligibility of that test was that the employees who are punished for gross misconduct they will not be eligible for test for two years from the date of punishment, therefore the petitioner was not allowed by the respondent to appeal in the aptitude test held on 30.7.95. But on the direction of this Court, the petitioner was allowed to appear in that test, but his result was subject to the decision of this writ petition. Mr. Kasliwal submits that it is true that petitioner was punished twice in two different disciplinary enquiries on 15.9.93 but by imposing of condition in Clause (b) of para 5 of Circular Ann. 3 and in both the enquiries the petitioner was punished with warning and stoppage of one grade increment without cummulative effect and the currency of penalty has come to an end as soon as the increment was stopped, therefore, on that very ground of punishment, the petitioner should not be denied his right to promotion or to appear in the test for promotion. Mr. Kasliwal also submits that after punishment in the disciplinary enquiries, preventing the petitioner in aptitude test for next promotion will amount to double jeopardy, therefore, the condition imposed in Clause (b) of the aforesaid circular be declared illegal. Ultra -vires of the Constitution and the petitioner be considered for the promotion on the basis of this aptitude test.
(3.) MR . Kala, learned Counsel for the respondent submits that at the time of promotion, if his past conduct including the service record and punishment awarded to him can be considered, that is not amount to double jeopardy. Mr. Kala also submits that circular Ann. 3 has been issued on the basis of settlement arrived at between the employer and union of employees. That settlement is reduced in writing and annexed as Ann. R/l. The next settlement was dated July 7, 1995 (Ann. R/2, there also similar condition has been agreed upon by the employer as well as the union of employees, therefore, once in the settlement it is agreed upon by the employer and the union of employees that no employee who was punished, shall be considered for two years after the date of punishment for next higher post.;