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Judgment
Civil Writ Petition No. 6558/2017
In wake of onslaught of COVID-19, lawyers have been advised to refrain from coming to the Courts.
Petitioner has preferred the present writ petition under Article 226 of the Constitution of India, claiming the following relief:-
" a) by an appropriate writ, order or directions, the impugned memorandum dated 27.03.2017 alongwith the Charge-sheet & statement of allegations Annex.15 issued by the respondents No. 2 upon the petitioner may kindly be quashed and set aside and consequently the respondents may kindly be directed to drop the Departmental Enquiry/ Disciplinary Proceedings contemplated against the petitioner, with all consequential benefits. "
Learned counsel for the petitioner submits that the grievance of the petitioner arose when a letter was served on 12.05.2017 upon the petitioner with a memorandum of charge-sheet dated 27.03.2017 alongwith the statement of allegations issued by the respondent no.2 stating an enquiry to be contemplated against him under the provisions of Rule 16 of the Rules of 1958.
Learned counsel for the petitioner has drawn attention of this Court towards the judgment passed by this Hon'ble Court in Mathura Lal Bheel Vs. State of Rajasthan & Ors; S.B. Civil Writ Petition No.9872/2015, decided on 02.12.2015. The said judgment reads as under :-
"The instant writ petition has been filed by the petitioner who was appointed on the post of Compounder / Nurse Junior Grade vide order dated 15.06.2015 on probation for a period of two years but no regular pay scale prescribed for the post was granted to him and fixed remuneration of Rs.13,200/- per month is ordered to be paid for two years in the Ayurvedic Department for seeking directions to pay regular pay-scale prescribed for the post.
The learned counsel for the petitioner submits that controversy has already been decided by the Division Bench of this court in DBCWP No.2963/2007 (Gopal Kumawat vs State of Rajasthan & Ors.) decided on 29.07.2015 whereby the notification issued by the Government in this regard has been quashed, therefore, the petitioner is entitled for regular pay-scale as well as all other admissible allowances prescribed for the post in question.
Before filing this writ petition, a representation has already been filed by the petitioner which is placed on record as Annexure-11 dated 27.08.2015.
In view of above, the instant writ petition is disposed of with direction to the respondents to consider the prayer of the petitioner for grant of regular pay scale in the light of the judgment given by the Division Bench of this Court at JaipurBench in DBCWP No. 2963/2007 (Gopal Kumawat vs State of Rajasthan & Ors.) decided on 29.07.2015 within two months from the date of receiving certified copy of this order. "
The charge-sheet levelled only one allegation against the present petitioner that the petitioner while acting in capacity of officer-in-charge had sent certified copy of the judgment of Mathura Lal Bheel (supra), after a delay of 46 days and as such was liable for negligence committed in performing his duties.
Learned counsel for the petitioner further submits that the sending of the certified copy of the judgment dated 02.12.2015 was not having any impact upon merits of the case. It is also contended that the matter was decided on its own merits, as the controversy was already covered by the judgment of Gopal Kumawat Vs. State of Rajasthan & ors. in D.B. Civil Writ Petition No.2963/2007 decided on 29.07.2015, and thus, there was no reason to punish the present petitioner for this negligence.
Learned counsel for the petitioner further submits that the opinion given by the concerned counsel was received by the present petitioner on 08.01.2016 and the same was forwarded by him on 14.01.2016.
Learned counsel for the respondent opposes the submissions made by learned counsel for the petitioner.
After hearing learned counsel for the parties and perusing the record of the case, this Court finds that the judgment of Mathura Lal Bheel (supra) has no consequence upon the State, as it is only covered by the judgment already given in the matter of Gopal Kumawat (supra) which has already been challenged before the Hon'ble Apex Court and the final outcome of the judgment is awaited. Furthermore, the appeal in the case of Mathura Lal Bheel was dismissed by Hon'ble Division Bench of this Court in D.B. Civil special Appeal No.729/2016 on 09.11.2016, the order reads as follows :-
"This appeal is barred by limitation from 155 days. An application is preferred to have condonation of the same. Ignoring the same, we have looked into merits of the case.
It is not in dispute that a Division Bench of this Court at Jaipur in the case of Gopal Kumawat Vs. State of Rajasthan & Ors. (D.B. Civil Writ Petition No.2963/2007), decided on 29.7.2015 held that a person regularly appointed is required to be fixed in a regular pay-scale. Learned Additional Advocate General does not dispute this fact and also that the issue sought to be agitated in the instant appeal is squarely covered by the judgment of this Court given in the case of Gopal Kumawat (supra).
In view of this, we do not find any just reason to interfere with the order impugned. The appeal is dismissed accordingly. "
This Hon'ble Court had passed the following interim order on 11.07.2017 :-
"Admit. Issue notice. Issue notice of stay petition. Notices are made returnable in four weeks.
In the meanwhile and until further orders, the disciplinary proceedings initiated against the petitioner under Rule 16 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules,1958, vide memorandum dated 27.3.17, shall remain stayed. "
Thus, it is clear on the face of it that there is no negligence on the part of the petitioner, as the controversy of Gopal Kumawat (supra) was already being adjudicated by the Hon'ble Apex Court in a separate appeal and at best, it was covered matter where the law was taking its own course. Furthermore, as the appeal in the case of Mathura Lal Bheel also stands dismissed. Moreover, this Court also takes note of the fact that the opinion of the Advocate received on 08.01.2016 has been promptly sent on 14.01.2020.
In light of the aforesaid observations, the present petition is allowed and the impugned memorandum dated 27.03.2017 alongwith the charge-sheet and statement of allegations Annex.15 issued by the respondent no.2 is quashed and set aside and the respondents are directed to drop the departmental enquiry / disciplinary proceedings.
In S.B. Civil Writ Petition No. 2924/2020
In wake of onslaught of COVID-19, lawyers have been advised to refrain from coming to the Courts.
Petitioner has preferred the present writ petition under Article 226 of the Constitution of India, claiming the following relief:-
"By an appropriate writ, order or directions, the order the respondents may kindly be directed to issue correct seniority list of all the Ayurved Chikitsak appointed in respondent department as per Part-V of the Rules of 1973 afresh while taking in to consideration the order dated 19.08.2015 Annex.9, order dated 18.11.2019 Annex.14 & true initial date of petitioner's appointment and thereafter convene the DPC/ review DPC for promotion to the post of 'Assistant Director, Ayurved/ District Ayurved Officer' and higher posts in accordance with the provisions of rules of 1973.
By an appropriate writ, order or direction the order the respondents may kindly be further directed to provide promotion to the petitioner on the post of 'Assistant Director, Ayurved/ District Ayurved Officer/' or thereafter on higher posts, while filling up the backlog of 'District Ayurved Officer' from the eligible SC category candidates as per criteria for promotion in the rules with all consequential benfits.
By an appropriate writ, order or directions, the order dated 29/30.05.2018 Annex.12 may kindly be quashed or modified as per the seniority by inclusion the name of petitioner treating him in service at least w.e.f. 13.03.1996 in accordance with Rules of 1973."
In light of the judgment passed by this Court in Civil Writ Petition No.6558/2017, the present petition is also disposed of with a direction to the respondents to take all necessary action in pursuance of the aforesaid judgment passed by this Court and grant all consequential benefits including the promotion to the petitioner after opening the sealed envelop, if he is eligible. The necessary consequential benefits arising out of the aforesaid writ petition shall be granted to the petitioner within a period of two months from today, strictly in accordance with law. It is made clear that if any grievance remains, the petitioner shall be at liberty to approach this Court again. The issue of seniority shall also be duly considered.