PUSHPA DAVE Vs. RAJASTHAN HIGH COURT

JUDGEMENT

(1.) THIS writ petition has been filed by the petitioner to consider her case for promotion to the post of Upper Division Clerk w. e. f. 23. 7. 85 in the light of the decision given by this Court in case of Mohammed Rafiq Khan on 6. 9. 93 vide S. B. Civil Writ Petition No. 3486 of 1991 (1) and grant promotion to the petitioner to the post of Upper Division Clerk w. e. f. 23. 7. 85. S. B. Civil Writ Petition No. 3486 of 1991 (supra) was disposed of by Hon'ble Shri G. S. Singhvi, J. on 6. 9. 1993. The learned Single Judge after perusing the entire record was of the opinion that the Departmental Promotion Committee has acted arbitrarily in making recommendations for promotion to the post of Upper Division Clerk, and that, it will not be proper to pass any adverse order which would affect other persons who were not impleaded as parties to the writ petition. Learned Single Judge was of the view that the petitioner therein had been denied fair consideration for promotion by the Departmental Promotion Committee on the recommendation on which the order dated 23. 7. 1985 was issued. In the result, the learned Single Judge allowed the writ petition in part preferred by petitioner Mohammed Rafiq Khan and further declared that supersession of the petitioner at the time of issue of promotion order dated 23. 7. 85 was arbitrary and illegal. However the learned single Judge directed the respondent to reconsider the case of the petitioner for promotion as Upper Division Clerk with effect from 23. 7. 85 and while re-considering the case of the petitioner, the punishments and special report shall not be taken into consideration. THIS order dated 6. 9. 93 was challenged by the respondent by filing D. B. Civil Special Appeal No. 766 of 1993. The High Court of Judicature for Rajasthan vs. Mohd. Rafique Khan which was decided by a Division Bench of this Court on 28. 2. 1994. The learned Judges of Division Bench after perusing of the entire record, were of the opinion that special report obtained at a particular time for a particular purpose is an unruly horse and a very poor substitute for the Annual confidential Reports (for short `the ACRs' ). The ACR is the real record on the basis of which assessment of the work and performance of the employee for the purpose of promotion is to be made and, therefore, such a procedure which was not followed in the said case is not correct. In the circumstances, the Division Bench of this Court was of the opinion that withholding of promotion was not proper and, therefore, affirmed the opinion of the learned Single Judge.

(2.) IT is now represented by Mr. Singhvi and Mr. Sangeet Lodha, that the case of Mohammed Rafiq Khan was considered and he was given promotion to the post of U. D. C.

(3.) ON merits, Mr. Lodha, learned counsel for the respondent submitted that from S. No. 2 to 16 in the order No. Estt. /hc/336/85 dated 23. 7. 85 who were junior to the petitioner, were found fit to be promoted to the post of Upper Division Clerk and, therefore, they were rightly promoted as Upper Division Clerks in preference to the petitioner. It is submitted that Shri Bhanwani Lal Mathur whose name appears at S. No. 1 in the aforesaid order, was senior to the petitioner. It is also submitted that no notice dated 25. 7. 85 was received by the respondent. In so far as the case with regard to Mohammed Rafiq Khan was concerned. Mr. Lodha submitted that the said petitioner had challenged both the supersessions but this Court held that supersession of Mohammed Rafiq Khan was justified once i. e. at the time of issue of the order dated 2. 1. 85 but the second supersession on the basis of the same adverse material in the same year when the persons junior to him were promoted by order dated 23. 7. 85 can not in any manner be justified. Thus, Mr. Lodha has tried to distinguish the case of Mohammed Rafiq Khan with the case of the present petitioner and according to him, the case of Mohammed Rafiq Khan is quite different and the petitioner cannot take advantage of the decision rendered in case of Mohammed Rafiq Khan. There is no merit in the argument of Mr. Lodha, that the writ petition is liable to be dismissed.