V.S. Dave, J.
1. This writ petition is directed against the order of Rajasthan Civil Services Appellate Tribunal, dated December 15, 1982, whereby the appeal filed by the non-petitioner was allowed.
2. The short question involved in this case is as to whether the confirmation of the respondent in his appointment as Executive Engineer could be done when he was facing departmental enquiry. The respondent was promoted to the post of executive engineer on ad hoc basis on October 3, 1969 and was regularly selected on June 10, 1974. His confirmation orders had not been issued and his grievance precisely was that a departmental enquiry under the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (hereinafter referred to a 'the Rules of 1958'), was pending against him and that has been shown to be cause of not confirming him. The said enquiry was in consequence of a charge-sheet given to him in relation to some irregularities in construction of Khora Bundh in District Alwar in 1970-71. The grievance of the respondent was that several other persons such as Sarvashri Sahan Roop Rai, P.C. Mathur, M.B. Mathur and V.P. Saxena who were involved in the case have been confirmed in their appointments with effect from march 1, 1977. His further case was that these people had also been promoted during the pendency of the said enquiry but he has not even been confirmed despite his regular selection and his case has been discriminated.
3. The petitioner who was respondent before the Tribunal stated that the respondent was already holding a higher post and his case was distinguishable. It was stated that the respondent is facing the charge-sheet in a case where prima facie there is a case against him and a major penalty is likely to be imposed upon him and, therefore, he could not be confirmed.
4. The Tribunal after considering the rival contentions and also the D.O.P. Circular dated January 4, 1977 came to the conclusion that the appellant was entitled to confirmation on the post of Executive Engineer (Civil) with effect from March I, 1977 and accordingly accepted his appeal and allowed consequential benefits. It is against this order of the Tribunal that the State Government has come with this writ petition.
5. It has been contended by the learned Counsel for the petitioner that the confirmation is not absolute right under the service rules and Sarvashri Sohan Roop Rai, P.C. Mathur, MB. Mathur and V.P. Saxena were promoted before the issue of the charge-sheet against them on April 7, 1982. it is further submitted that even the respondent J.P. Bhatia was selected by the D.P.C. in the year 1974 prior to issuance of charge-sheet in respect of irregularities in construction of Khora Buodh. It is submitted that besides the departmental enquiry under Rule 16 of the CCA Rules regarding Khora Bundh there are some more contemplated/pending departmental enquiries against respondent No. 1. It is further submitted that the DOP Circular, dated January 4, 1977 provides a complete procedure to be followed is regard to the confirmation of Government servants under suspension order against whom disciplinary proceedings are pending or are to be initiated It is submitted that para 3 of the circular provides that with regard to Government servants who were not placed under suspension but against whom departmental proceedings have been initiated under Rule 16 of the CCA Rules or a decision has been taken to initiate such proceedings, looking to the gravity of the charges and the reply, there furnished, by the Government servant, thereto, there is likelihood of one of the major penalties being imposed upon him, ha should also similarly be not confirmed. It was submitted that a bare perusal of the guidelines shows that the Government servant against whom disciplinary proceedings are pending and there is likelihood of major penalty being imposed; cannot be confirmed. In this View of the matter it was submitted that the findings of the Tribunal are been on not properly construing the circular dated January 4, 1977 and the findings are liable to be quashed.
6. As against the above submissions of the learned Counsel for the petitioner, the learned Counsel for the respondent, Mr. Sirsghvi, submitted that it is wrong to say that several cases are pending or contemplated against the petitioner. It is further submitted that the charge-sheet to the petitioner has been served long back and enquiry was not proceeding properly and expeditiously as a result of which the petitioner was siffering. His submission is that the interpretation of the circular as is sought by the petitioner is wholly misconceived and untenable. It is submitted that had the intention of the Government been in issuing the circular, dated January 4, 1977 was to withhold confirmation only with the initiation of the enquiry under Rule 16 of the CCA Rules, the Legislature would have used language different than the one used. It is also submitted that in respect of the very charge-sheet other employees were concerned, have been confirmed and his case has been discriminated. It is submitted that in this very department certain officers were not protracted relying upon a circular of the Government wherein the enquiry had been initiated 8 or 9 years before and against them disciplinary proceedings were pending. Some of the officers were promoted while one Mr. Amolak Chand was ignored. He thereupon went to the Tribunal and challenged the action of the Government on the ground of being a case of hostile discrimination and also that pendency of a disciplinary proceeding cannot detain the promotion. The Tribunal accepted the appeal of Amolak Chand. The State Government challenged the said order by way of writ petition which was dismissed first by the learned Single Judge and then by the Division Bench. The Single Judge decision has been reported in The State of Rajasthan v. Amolak Chand and Anr. 198 WLN (UC) 320 and the Division Bench confirmed the decision on January 3, 1984.
7. I have given my thoughtful consideration to the rival contentions and have perused the entire record.
8. the out set I may state that the analogy drawn in the case mentioned above is fully applicable in the instant case In that case this Court held that the State was not justified in denying the promotion to Amolak Chand. In that case also the cases for which DPC was going on relating to a period more than a decade and upheld the order of the Tribunal as other persons against whom departmental proceedings were going on have been promoted. In the instant case also a case against the petitioner is pending pertaining to construction of Khora Bundh in District Alwar in the year 1970-71. It was after 12 years of this that the confirmation list was published where too the name of the petitioner was not shown on the ground that an enquiry was pending against him This can only be lamented and can be said to be a very sorry state of affair where for 12 years the matter is not decided and an employee's confirmation is denied in the garb of err enter dated January 4, 1977. I do not agree with the contention of the leaned Counsel for the petitioner that since P.C. Mathur, Sohan Roop Rai, M.B. Mathur and V.P. Saxena were confirmed prior to their giving charge sheet is an answer to denial of confirmation to the petitioner. The circular dated January 4, 1977 cannot come in the way of the petitioner in such circumstances in view of the fact that I am upholding the judgment of the Tribunal relying upon the decis on reported in The State of Rajasthan v. Amolak Chand and Anr. (supra), confirmed by the Division Bench in D.B. Special Appeal No. 13/84 decided on January, 1984, I do not deem it proper to go into other details. Suffice it to say that in the instant case the petitioner has rightly been confirmed else be would have suffered irreparable loss as against his colleagues in the garb of an enquiry for some incident which happened a decade back. In this view of the matter without giving finding on other points, on this short ground of discrimination and for the reasons mentioned in the order of the Tribunal, I find no force in this writ petition.
9. In the result, this writ petition fails and is dismissed with no order as to costs.