K. Bhatnagar, J.
1. Non-petitioner Amolak Chand, Assistant Engineer (Civil) in the Irrigation Department, Government of Rajasthan, felt aggrieved by the order dated 11-6-82 superseding him by nine persons, junior to him, who had been promoted to the post of Superintending Engineer under Rule 27(1) of the Rajasthan Service of Engineers (Irrigation Branch) Rules, 1954 (here in after referred to as the 'Rules of 1954). He, therefore, preferred an appeal before the Rajasthan Civil Services Appellate Tribunal, Rajasthin, Jaipur (here in after referred to as 'the Tribunal'). The Tribunal accepted the appealand directed the respondent to accord urgent/temporary promotion to the appellant at its earliest on the post of Superintending Engineer (Civil) Under Rule 27(1) of the Rules of 1954 with effect from the same date when any body junior to him joined on the said post in pursuance of the impugned order dated 11-6-82. The appellant was also held entitled to get all the benefits consequential to such promotion retrospectively.
2. Being dissatisfied by the aforesaid order of the Tribunal, the State of Rajasthan has filed this writ petition Under Articles 226 and 227 of the constitution of India for issuance of writ in the nature of certiorari quashing and setting aside the aforesaid order of the Tribunal dated 4-8-1982. Respondent Amolak Chand entered caveat in the writ petition.
3. Mr. L.S. Udawat, Asstt. Government Advocate for the State of Rajasthan and Mr. M. Mridul for the non-petitioner Amolak Chand were heard at the admission stage.
4. The brief facts of the case are as under: Non-petitioner Amolak Chand was appointed as Assistant Engineer (Civil) in the Irrigation Department, Government of Rajasthan, after his selection through the Raja than Public Service Commission in the year 1954. In the year 1964 he was promoted as officiating Executive Engineer and was subsequently selected for that post by the Departmental Promotion Commitiee for short 'DPC' in the year 1974. In the year 1975 regular selection for the promotion for the post of Superintending Engineer, was made against three posts. The meeting of the DPC was held in the year 1977 but result was with held. The DPC again mnet in the year 1978 and by the order dated November 3, 1979, 22 persons were promoted to the post. The appellant, along with four other senior Executive Engineers, filed an appeal against that order before the Tribunal, challenging the validity of the recommendations made by the DPC and the aforesaid order dated 3-11-78 The appeal was accepted and the order under challenge was quashed. The writ petition filed against the order of the Tribunal was dismissed by the High Court on 27 2-81. The Government without implementing the decision of the review DPC of 1978 for declaring the result of the DPC said to have met in the year 1979, passed the order dated 11-6-82 supersiding the non-petitioner by nine persons junior to him The contention of the non-petitioner in the appeal before the Tribunal, as reproduced in the writ petition, was that, non-petitioner Amolak Chand was selected for the post of Executive Engineer by DPC in the year 1974 which was challenged by one H.K. Hingorani in a writ petition before this Court. IN compliance to the judgment dated 23-11 79 pronounced by this Court. the DPC against met in the year 1981 and non-petitioner was selected for the post of Executive Engineer vide Government Order dated 1-5-81.
5. That a Departmental Enquiry against the non-petitioner and few others in connection with giving benefits to the Contractor and causing official loss to the State Exchequer was pending against the non petitioner and few others and charge sheet was served upon him Under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (here in after referred to as 'the CCA Rules'), on 21-4-80. That, in view of the guide lines of the Circuler dated 15 9-79, the petitioner could not be given promotion on urgent/temporary basis for the post of Superintending Engineer because the enquiry was likely to result in imposition of major penalty given Under Rule 14 of the CCA, Rules. Regarding the allegation of the non-petitioner for considering the case of promotion of other codelinquents, the contention of the petitioner is that some of them including M.S. Inda, a co-delinquant, were given promotion prior to the charge sheet being served upon them and therefore, the case of the non-petitioner is distinguishable.
6. Mr. L.S. Udawat, Assistant Government Advocate strenuously contended that the learned Members of the Tribunal have seriously erred in interpreting the guide-lines in the Circular dated 15-9-79. According to Mr. Udawat, the intention of the Circular is to bar the promotion of a Government Servant against whom departmental proceedings have been instituted and there is likelihood of any of the major penalties provided in Rule 14 of the CCA Rules being imposed.
7. Mr. Mridul, learned Counsel for the non-petitioner Amolak Chand vehemently controverted these contentions and submitted that the points raised in the appeal filed by the non-petitioner before the Tribunal were not properly answered by the petitioner at that stage. That even now the petitioner is not presenting the correct picture regarding the promotion of the other persons. He placed reliance on certain documents filed by him in this Court and submitted that from Annexuie R/l/1, the written statement filed by the State of Rajasthan in a Civil Suit filed by M/s Santosh Kumar Hansraj and ors in the Court of Civil Judge, Sriganganagar, it would be clear that the allegations against the non-petitioner were baseless. Referring to the order dated 1-5 81, promoting M.S. Inda, a co-delinquent, as Officiating Executive Engineer, Mr. Mridul submitted that this order was subsequent to the charge-sheet against the non-petitioner and others including M.S. Inda and therefore, contention of the petitioner that the promotion of M.S. Inda was prior to the serving of the chargesheet stands falsified.
8. It has also been contended that M.S. Inda has been confirmed as AEN vide Annexure R 1/4 dated 29-7-82 by the Government ignoring the pendency of that very enquiry and as such it is a case of hostile discrimination.
9. At the very out set it may be observed that while deciding this writ petition this Court is not expected to embark upon the merits of the matter for which chargesheet has been served upon the non-petitioner and others. All that is required to be decided is whether the Tribunal has committed any error in interpreting the Circular dated 15-9-79 in the light of the aforesaid contentions of the non-petitioner and that, whether any case of hostile discrimination is made out from the facts given by the non-petitioner and refuted by the petitioner.
10. The intent on of the Circular is to make temporary or officiating appointments on senior posts on the basis of seniority-cum-merits from amongst those whose confidential reports for the last seven years are satisfactory. A restriction is imposed for considering the case of officers under suspension and those against whom departmental proceedings have been initiated Under Rule 16 of the CCA Rules and on whom looking to the serious nature of charges one of the major penalties as laid down Under Rule 14 of the CCA Rules is likely to be imposed.
11. It is pertinent to note that the matter involving the enquiry against the non-petitioner referred to the year 1970-71. Charge sheet was framed on 21-4-80. The reply was filed by the non-petitioner on 24-8-82. The Enquiry Officer has been appointed on 13-5-82. The learned Members of the Tribunal were of the opinion that the enquiry report has not reached the hands of the Disciplinary Authority. They, therefore, formed an opinion that the perusal of the record of the case showed that the view that the enquiry was likely to result in the imposition of a major penalty upon the appellant has been taken in the absence of any enquiry report and as such it cannot be said to be a finding with any legal justification. This point should be taken into consideration along with given facts and circumstances of the promotion of other persons to a higher post during the pendency of enquiry against them. A number of cases have been cited by the non-petitioner to substantiate the contention that there was hostile discrimination between the non-petitioner and others so as to attract the provisions of Articles 14 and 16 of the Constitution of India.
12. The facts about the promotion of codelinquent M.S Inda have already been stated above. The stand taken by the petitioner, that, his promotion order was passed prior to the service of the charge sheet upon him and the same was for the vacancy of the year 1971, holds no good for the reason that even in the year 1982 subsequent to the service of the charge sheet he was confirmed on the post of Assistant Engineer. As such his case being on the same footings, the petitioner is not justified to say that there was any hurdle in considering the case of the non-petitioner in view of the guidelines laid down in the Circular. It is pertinent to note that the petitioner has come with a specific case that his service record for the last 18 years is clean. The petitioner could not point out any stigma against the non-petitioner but for the aforesaid charge sheet relating to some matter of the year 1970-71. The non-petitioner has also cited the case of SRD Mehta Executive Engineer who had been promoted to the post of Superintending vide Engineer Annexure R 1/3 dated 15-3 83, even though an enquiry Under Rule 16 of the CCA Rules is still pending against him. In the rejoinde , the petitioner has tried to meet out this contention by stating that opinion of the Commissioner for the Departmental Enquiry was sought regarding the gravity of the charge levelled against SRD Mehta and on the basis of that information it was considered proper not to deprive him from the promotion in the light of the Government Circular dated 15-9-79.
13. Non-petitioner Amolak Chand has every legitimate grievance for his case not being considered on the same line and no opinion regarding the gravity of the charge being sought from the authorities concerned. The petitioner has not met out the allegations about the cases of other persons placed in similar situation being considered. The peculiar circumstance of the case has also been rightly taken into consideration by the learned Members of the Tribunal. As stated earlier for a matter relating to the year 1970-71 the concerned authorities could not make up their mind for a period of about 9-10 years as to whether disciplinary proceedings are to be initiated or not. It was as late as on 21-4-80 that the charge sheet was served upon the non-petitioner and eight others. Despite the reply being filed after a few months, the department did not proceed further with the matter and it was only on 13-5-82 that the enquiry officer has been appointed. As stated in the reply to the writ petition there are twenty one witnesses to be examined from the side of the department. Nine delinquents are likely to take time to produce their defence. Looking to the speed in which the matter is progressing, it is likely to tike a few years to complete the enquiry whereas non petitioner Amolak Chand being 53 years of age has only two years to reach the superanuation age.
14. In such circumstances, the petitioner taking the shelter of the enquiry of such a nature cannot be said to be justified in not considering the case of the petitioner for the promotion and allowing his supersession by a number of persons junior to him on this ground alone.
15. In this view of the matter, the impugned order passed by the Tribunal cannot be said to be erroneous so as to call for any interference by this Court in exercise of its extra ordinary jurisdiction.
16. The writ petition having no merits is, therefore, dismissed summarily.