CW/1591/2005 of DR.MITHILESH KUMAR SHARMA Vs STATE and ORS. on 16 December 2005

O R D E R

Dr.Mithilesh Kumar Sharma v. State of Raj. & Ors.

S.B.CIVIL WRIT PETITION NO.1591/2005underArticle226oftheConstitution of India.

Date of Order : 16[th] December, 2005

P R E S E N T

HON'BLE MR.JUSTICE GOVIND MATHUR

Mr. Siddharth Joshi for Mr. J.P.Joshi, for thepetitioner.Mrs.Vidhyawati Bohra, Dy.Govt.Advocate.

BY THE COURT:

By the instant petition a writ in the natureof mandamus is sought by the petitioner to implementthe recommendation made by the Departmental PromotionCommittee constituted for the purpose of appointmentby way of promotion to the post of Director, SanskritEducation. The petitioner has also sought a directionfor his appointment as Director, Sanskrit Education ifhe is found suitable for the post by DepartmentalPromotion Committee.

According to the petitioner on account ofretirement of one Shri Sohanlal Sharma the post of Director, Sanskrit Education fell vacant on31.12.2003. The respondents instead of making regularappointment in accordance with the Rajasthan SanskritEducation Rules, 1977 (hereinafter referred to as “theRules of 1977”) chose to post one Shri G.P.Shukla whois neither a member of Sanskrit Education Service noris eligible to be appointed as Director, SanskritEducation under the Rules of 1977. In place ofaforesaid Shri G.P.Shukla one Shri R.K.Jain was handedover charge of the post of Director, SanskritEducation under an order dated 31.7.2004. Prior to ita meeting of Departmental Promotion Committee wasconvened on 1.7.2004 to consider candidature ofeligible candidates for the purpose of appointment asDirector, Sanskrit Education by way of promotion butthe respondents did not give effect to it. Beingaggrieved by the same instant petition is preferred bythe petitioner.

A reply to the writ petition is filed onbehalf of the respondents admitting the fact that onaccount of retirement of Shri Sohanlal Sharma on31.12.2003 the post of Director, Sanskrit Educationfell vacant and in administrative interest forconducting the administrative work of Department ofSanskrit Education the charge of the post of Director,Sanskrit Education was handed over to Shri G.P.Shuklaand looking to heavy work-load with Shri G.P.Shuklathe charge of the post of Director, Sanskrit Education was given to Shri R.K.Jain, Special Secretary,Department of Education (Secondary). The respondentsin their reply also stated that the process ofpromotion to the post of Director, Sanskrit Educationis going on and till availability of regularlyselected candidate by a Departmental PromotionCommittee the charge of the post of Director, SanskritEducation is being given to Special Secretary/Dy.Secretary of the Education in administrative interest.

This Court by an order dated 27.10.2005directed the respondents to produce record ofDepartmental Promotion Committee which met to considercandidates for the purpose of promotion to the post ofDirector, Sanskrit Education, in compliance to whichthe record is shown to the Court by learned Dy.Government Advocate today. Learned Dy. GovernmentAdvocate also shown to the Court a letter dated15.12.2005 from Dy. Secretary to the Government ofRajasthan, Department of Education (Group-C) in favourof Divisional Sanskrit Education Officer, JodhpurDivision, Jodhpur wherein a instruction is given tothe Divisional Sanskrit Education Officer, JodhpurDivision, Jodhpur to convey the Court that proposalwith regard to amendment in Rajasthan SanskritEducation Rules, 1977 is under consideration formaking appointment to the post of Director SanskritEducation from amongst the officers of the IndianAdministrativeService/RajasthanAdministrative

Conclusion

Service. A photocopy of the letter above and therelevant portion of the recommendations made by theDepartmental Promotion Committee in its meeting dated3.8.2004 is taken on record.

Heard counsel for the parties.

Admit.

With the consent of counsel for the partiesand looking to the fact that the pleadings of the caseis complete and original record has already beenexamined by the Court, the writ petition is heard forits final disposal.

In exercise of powers conferred by proviso toArticle 309 of the Constitution of India the Governorof Rajasthan framed the Rajasthan Sanskrit EducationRules, 1977 regulating the recruitment to posts in andthe conditions of service of persons appointed to theRajasthan Sanskrit Education Service. Part-III of theRules of 1977 prescribes methods of recruitment.Clause (b) of sub-rule(1) of Rule 6 of the Rules of1977 provides that recruitment to the posts in serviceby way of promotion shall be made in accordance withpart-Vth of the Rules. According to Rule 9 of theRules of 1977 appointing authority is required todetermine each year the number of vacanciesanticipated during the following 12 months and number of persons likely to be recruited by each method.Part-Vth of the Rules of 1977 prescribes forrecruitment by promotion. Sub-rule(6) of Rule 23 inpart-Vth of the Rules of 1977 provides that selectionfor promotion to all other higher posts or highercategories of posts in the Service shall be made onthe basis of merit alone. Rule 25 of the Rules of 1977pertains to urgent temporary appointment in serviceand according to it a vacancy in the Service whichcannot be filled in immediately either by directrecruitment or by promotion under the rules may befilled in by Appointing Authority or by Authoritycompetent to make appointments as the case may be byappointing in an officiating capacity thereto anofficer eligible for appointment to the post bypromotion or by appointing temporarily thereto aperson eligible for direct recruitment to the Servicewhere such direct recruitment has been provided underthe provisions of the Rules of 1977. The post ofDirector is a selection scale post and is required tobe filled in 100% by way of promotion. Being highestpost the criteria for promotion to the post ofDirector is merit alone as prescribed under sub-rule(6) of Rule 23 of the Rules of 1977. The entry No.1 inGroup-A to Schedule appended with the Rules of 1977prescribes source of recruitment, minimum academicqualification and experience for appointment, post orposts from which promotion may be made, minimumqualification and experience for promotion and certain remarks relating to appointment to the post ofDirector by way of promotion, same reads as under:- S.No. Name of Source Minimum academic Post or Minimum Maximum Remarks post recruit- qualification posts qualif- age-limit ment and experience from ications for direct with for direct which and recruitment percen- recruitment promo- experience tage tion is for promotion to be made

1. Director 100% by (a)Ist Class Post Seven 45 years If no sui- promotion Acharya with mentioned years table can- promotion Acharya with mentioned years table can- English as one in GroupII experience didate is of the subjects on the post available in Shastri or in mentioned in either by B.A. Co.No.5. Promotion on the or advice of the Depar- Ist Class post tmental graduate in Sanskrit Promotion with English as one Committee of the subject in B.A. or by

or in Shastri, and direct

recruitment

(b) Five years teaching through the

experience of Acharya Commission,

or post graduate classes appointment

in an Institution not may be made

below the post Acharya/ by deputation

Post graduate College. of an I.A.S.

Officer, or

or of a R.E.S.

Officer holding

a post not lower

Five years teaching than that inclu-

experience as Professor ded in Group 'C'

of Sanskrit in a University of the Schedule established by law. annexed to the Rajasthan EducationalService Rules,1970 or of an Educationaliston contract.Appointment bydirect recruit- ment or promotion, shall not be cont- inued until the next meeting of Departmental Promotion Committee, except with the concurr- ence of the Commission.

From scheme of the Rules of 1977 it isapparent that the appointment to the post of Director,Sanskrit Education is required to be made by way ofpromotion by adhering the criteria of merit and thepost in normal course should be filled in from amongstthe members of Rajasthan Sanskrit Education Service only. The post of Director, Sanskrit Education can befilled in from amongst the members of IndianAdministrative Service or Rajasthan Education Servicein event of non-availability of suitable candidate.

The merits of present case are required to beexamined in light of the Rules of 1977. It is admittedposition that the post of Director felt vacant onretirement of Shri Sohanlal Sharma on 31.12.2003. Onthe date of retirement the petitioner was eligibleunder the Rules of 1977 to be promoted as Director,Sanskrit Education but the respondents instead ofmaking appointment on urgent temporary basis inaccordance with Rule 25 of the Rules of 1977 chose tohand over charge of the post to administrativeofficers. It is also admitted position that theDepartmental Promotion Committee met on 3.8.2004 toconsider the candidature of eligible candidates forthe purpose of promotion to the post of Director,Sanskrit Education. The statement of AnnualConfidential Reports of the petitioner was producedbefore the Departmental Promotion Committee. Accordingto the statement referred above the reporting officerassessed services of the petitioner “very good” in theyears 1996-97, 1997-98, 1998-99, 1999-2000, 2000-2001and 2001-2002. The reviewing authority accepted theassessment made by the reporting officer. For the year2002-2003 the reporting officer assessed services ofthe petitioner as “good” and the same was also

accepted by the reviewing authority. The DepartmentalPromotion Committee which met on 3.8.2004 consideredentire service record of the petitioner including theAnnual Performance Appraisal Report, DE/PE reportsetc. and found the petitioner a person fit to berecommended for promotion under the criteria of meritas Director, Sanskrit Education against the vacanciesof 2003-04. The relevant portion of therecommendations made by the Departmental PromotionCommittee in its meeting dated 3.8.2004 is abstractedbelow:- “न द शक, स सक त नशक क पद क य गयत क आध र पर भर ज��� ह । इस पद ह त प च य , आच य क पद पर न यन त रपस पद न त/क य रत वयक% ज 07 वर क अ भव रखत ह , “स” य गयत क आध र पर चय ककय ज��� ह । कद��क01.04.2003 क+ प तत स-च. / श. न थल श क र श “, 07वर” क प च य , आच य क ल ज क पद क अ भव रख क क रणन द शक, क पद पर पद न नत ह त प तत रखत ह । इ क स व नभल ख व कर क क य -लय क पनतव द , ड6.ई./प..ई. क+ररप र आकद सन नत क स क पसत त क+ गई । कवच र कव श क पश च त श. न नथल श क र श — क वर 2003-2004 क+ न द शकक+ ररक% क कवरद य गयत क आध र पर चय कर अनभश करतकर क न ण य नलय गय ।

In the present case the appointing authorityin accordance with Rule 9 of the Rules of 1977

determined vacancies pertaining to the post ofDirector, Sanskrit Education for the year 2003-04 andinitiated proceedings in accordance with part-Vth ofthe Rules of 1977. The Departmental PromotionCommittee in accordance with Rule 23 of the Rules of1977 made a recommendation to the appointing authoritythen there is no just and valid reason with therespondents for not acting upon the recommendationsmade by the committee. The respondents failed tosatisfy the Court by showing any reason for not givingeffect to the recommendations made by the DepartmentalPromotion Committee.

The petitioner being found fit to be promotedas Director, Sanskrit Education by the DepartmentalPromotion Committee, it is obligatory for theappointing authority to consider the recommendationsmade by the Departmental Promotion Committee and tomake appointment of the petitioner as Director,Sanskrit Education against the vacancies of 2003-04 ifhe is otherwise not ineligible to hold the postconcerned.

The only reason which appears to exists fornot giving effect to the recommendations made byDepartmental Promotion Committee is the reason givenin the letter dated 15.12.2005 according to which aproposal for amendment under the Rules of 1977 isunder consideration to fill up the post of Director, Sanskrit Education from amongst the members of IndianAdministrativeService/RajasthanAdministrativeService. A proposal for amendment under the Rulescannot be a reason for not implementing the existingRules. A valuable right accrued in favour of thepetitioner to be considered for appointment by way ofpromotion on 31.12.2003, the day on which ShriSohanlal Sharma retired from services and the post ofDirector, Sanskrit Education fall vacant. Thecandidature of the petitioner was required to beconsidered for promotion as Director, SanskritEducation on the day post felt vacant. The appointingauthority, for no just and valid reason not proceedingfor making appointment by way of promotion by actingupon the recommendations made by the DepartmentalPromotion Committee which met on 3.8.2004.

It is pertinent to note that the appointingauthority never wanted to keep the post of Director,Sanskrit Education unfilled as the charge of the samewas handed over to Shri G.P.Shukla on 1.1.2004 andthereafter to Shri R.K.Jain on 31.7.2004. This factclearly shows that the respondents unnecessarilydelayed in considering and acting upon therecommendations made by the Departmental PromotionCommittee which recommended the petitioner to beappointed as Director, Sanskrit Education by way ofpromotion under the criteria of merit.

The respondents in reply to the writ petitionstated that the charge of the post of Director,Sanskrit Education was given to Shri G.P.Shukla w.e.f.1.1.2004 and to Shri R.K.Jain w.e.f. 1.7.2004 ininterest of administration. However, nothing is saidas to why the post of Director, Sanskrit Education, onretirement of Shri Sohanlal Sharma was not filled-inin accordance with Rule 25 of the Rules of 1977, whichprescribes for urgent temporary appointments fromamongst the members of Rajasthan Education Service.The petitioner was eligible to be promoted under theRules of 1977 on 31.12.2003, as such an appropriatecourse in accordance with the Rules of 1977 before therespondents was to make urgent temporary appointmentby way of promotion, in accordance with Rule 25 of theRules of 1977 but the respondents dehore the Ruleshanded over charge of the post to administrativeofficers. The charge of the post could have been givento a member of Indian Administrative Service or to amember of Rajasthan Education Service only in theevent of non-availability of eligible person fromRajasthan Sanskrit Education Service. The petitionerwas the person suitable and eligible, available forpromotion on 31.12.2003. This Court highly deprecatethe tendency of the respondents to ignore thestatutory provisions and to adopt a method which isnot in consonance with the Rules.

In view of whatever discussed above this writpetition deserves acceptance. The same, therefore, isallowed. The respondent State is directed to considerthe recommendations made by the Departmental PromotionCommittee which met on 3.8.2004 and recommended thepetitioner for appointment by way of promotion to thepost of Director, Sanskrit Education against thevacancies of the year 2003-04. In the event petitioneris not otherwise found ineligible, the promotion beaccorded to him in accordance with the recommendationsmade by the Departmental Promotion Committee within aperiod of four weeks from the date the petitionerserves a certified copy of this order upon theSecretary, Department of Personnel, Government ofRajasthan, Jaipur.

No order as to costs.

( GOVIND MATHUR ),J.

kkm/ps.