Hanuman Singh Tanwar vs The State of Rajasthan

Nirmaljit Kaur, J.

The prayer in the present case for grant of benefit of third selection of the ACP as per rules.

The petitioner was appointed as L.D.C. and was confirmed on 2.2.1987. On completion of 18 years of service, he was granted the second selection grade vide order dated 29.5.2003 w.e.f. 18.10.2002. After rendering more than 23 years of service, the petitioner was granted his first actual promotion on the post of U.D.C. vide order dated 16.8.2007. The petitioner vide his application dated 21.8.2007 expressed his desire to forego the promotion. His request was accepted. However, while accepting the request of the petitioner, his second selection grade, which was already granted to him in the year 2002, was withdrawn. The petitioner filed S.B. Civil Writ Petition No. 8410/2007 challenging the action of the respondents in withdrawing the selection grade. The said writ petition was allowed vide order dated 5.1.2009 and the respondents were directed to restore the second selection grade. The appeal filed by the respondents against the said order was dismissed on 25.1.2010. Meanwhile, the respondent-Department promoted the petitioner on the post of U.D.C in the year 2010 and he joined as U.D.C. w.e.f. 12.11.2010. Thereafter, the petitioner became eligible for grant of third selection grade with ACP on competition of 27 years of service. On 30.11.2011, he submitted a representation to grant him third selection grade. The same was rejected in view of sub-clause (2) of Clause 18 of Circular No. F14(88)F.D.(Rules)/2008-I dated 31.12.2009 of the Finance Department, Jaipur. The said Clause reads as under:-

"18. If a regular promotion has been offered but was refused by the Government employee before becoming entitled to a financial upgradation, no financial upgradation shall be allowed and as such an employee has not been stagnated due to lack of opportunities. If, however, financial upgradation has been allowed due to stagnation and the employees subsequently refuses the promotion, it shall not be a ground to withdraw the financial upgradation. He shall, however, not be eligible to be considered for further financial upgradation till he agrees to be considered for promotion again and the second, the next financial upgradation shall also be deferred to the extent of period of debarment due to the refusal."

Reply has been filed by the respondents stating that as per Sub-clause (2) of Clause 18 of the circular of Finance Department dated 31.12.2009, the petitioner is entitled for third selection grade after two years of completion of 27 years of service instead of 18.11.2011, it will be given w.e.f. 18.10.2013 i.e. after two years of his accepting the promotion order. No other objection was raised.

Learned counsel for the parties were heard at length.

From the above facts, it is evident that the third selection grade is being denied to the petitioner on the basis of the Circular No. F14(88)F.D.(Rules)/2008-I dated 31.12.2009. The said circular came into operation in the year 2009. The petitioner had requested to forego his promotion in the year 2007. At that point of time, the circular No. F14(88)F.D.(Rules)/2008-I dated 31.12.2009 did not exist. Had the petitioner known that there was any such condition, he may have accepted his promotion. Subsequently, the promotion was offered to the petitioner in the year 2010, he immediately accepted the promotion and was accordingly promoted on the post of U.D.C. in the year 2010 itself.

The said circular has been issued in the year 2009. The petitioner did not refuse any promotion after the said date. The said circular cannot be applied with retrospective effect. Before the issuance of circular on 31.12.2009, the petitioner was not aware of the consequences of foregoing his promotion. In short, the circular dated 31.12.2009 cannot be applied with retrospective effect. Hence, his next financial upgradation cannot be deferred in the facts of the present case.

In view of the above, the writ petition is allowed. The respondents are ordered to grant the third Selection Grade to the petitioner from the date when it was due to him i.e. with effect from the date of completion of 27 years of service.