HETRAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS writ petition has been filed by the petitioner 'on the averment that he has a right to be promoted on the post of Lower Division Clerk from the post of Class IV, from the date when he became eligible for it. The claim has been asserted relying on Rules 7 and 7(3) of the Rajasthan Subordinate Ministerial Service Rules, 1957, which envisages that 10% posts of Clerks will be filled up by departmental promotion from amongst Class IV employees.

(2.) THE petitioner, who is a member of. Scheduled Caste, was appointed on Class IV post initially for a period of three months and was thereafter made permanent vide order dated 23.5.1983. It appears that the petitioner moved an application for acquiring further educational qualification, which was allowed and the petitioner passed his Secondary Examination in the year 1983. Thereafter on 18.4.1984, the petitioner moved an application for promotion from the post Class IV to the post of Lower Division Clerk and thereafter he made successive applications pursuing his case for promotion. On 2.8.1984, the Executive Engineer of the Panchana Irrigation Scheme, Zone II, Karauli seems to have recommended to the Superintending Engineer, Irrigation Division, Jaipur for promotion of the petitioner on the post of Lower Division Clerk from the Class IV category. The recommendation for promotion was based on the fact that since 10% quota for promotion from Class IV to LDC is required to be done, the petitioner being eligible and the vacancy also being in existence, the petitioner may be promotted. It was reiterated by the Executive Engineer in his letter dated 13.11.1984, wherein it was requested to promote the petitioner as per the promotion quota. The petitioner appears to have purused his case for promotion to the higher authorities thereafter but did not find favour with the higher authorities due to which he moved this Court for redressal of his grievances as some persons junior to the petitioner were promoted ignoring his* rightful claim. One such instance cited by him is of Khem Chand Sharma who is junior to him as Class IV employee, but had been promoted as LDC by order dated 20.12.1987.

(3.) WHEN the above objections were pointed out to the learned Counsel for the petitioner, it was submitted that the seniority of the Class IV employees cannot be determined circle or region wise basis as that would amount to superceding the rightful claim of persons who may be due for promotion. This fact was elaborated by giving an illustration that if an employee is due for promotion in a particular circle and on the verge of promotion if he is transferred to another region or circle, such promotion cannot be denied to him on the ground that there are persons working in the circle from before even though they have been appointed much later. It has been submitted that there is no provision under the Rules, wherein seniority is required to be determined circle wise, nor such procedure has been adopted by the respondents. Elaborating this point further, it has been stated that assuming such an arrangement is made circle wise for the administrative reasons and, if the staff is transferred from one place to another, that does not mean that the person having his seniority will lose such seniority when he is posted at a new place. It has been contended that if it is allowed to stand, the same is bound to result in arbitrary action and any employee who is senior may be transferred, one day prior, from one place to another, so that his seniority is freezed at the new place circle vis -a -vis the persons who have been appointed later on but may be working in the circle, from before. In the case of the petitioner, it has been stated that when he was transferred from Bharatpur Circle to Jaipur Circle, his seniority which was assigned to him during the period of his service at Bharatpur Circle cannot be curtailed on his posting at a new place at Karauli which was in Jaipur Circle. In support of this assertion, attention of this Court has been invited to the Division Bench decision of the Bombay High Court in the case of S.W. Phodke v. Union Government 1980 (1) SLR 547, wherein it has been laid down that if the initial appointment is not made region wise, but made on the basis of national level and an undertaking is obtained from the appointees to the effect that the services are transferable, then the seniority cannot be reckoned region wise, but it shall be on all India basis. The learned Counsel for the petitioner has drawn an analogy relying on this case and has submitted that the preparation of seniority list region wise or circle wise ought to be held as invalid as it was held in the aforesaid case on the ground that it denied equal opportunity of promotion and, therefore, hit Article 16 of the Constitution. Thus, it has been contended that the transfer of the petitioner from Bharatpur Circle to Karauli (Jaipur Circle), which was made by the State Government for administrative reasons, the same cannot and should not be allowed to come in the way of the petitioner by making him suffer by curtailing his seniority and denying him the promotion on the post of LDC.