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Judgment
By this appeal, a challenge is made to the order dated 26.02.2018 passed by learned Single Judge, whereby, the writ petition preferred by the
petitioner/non-appellant has been allowed.
The writ petition was filed to seek a direction for promotion on the post of Deputy Manager against the vacancy year 2005-06. The promotion was not
given due to pendency of the criminal case followed by a disciplinary enquiry. As per Clause 12.5.0 and 12.7.0 of the guidelines for the promotion, the
appellants were required to apply “sealed cover†procedure. Instead of applying the aforesaid procedure, the appellant-Rajasthan Financial
Corporation (for short “the RFCâ€) declared non-appellant to be unsuitable for promotion.
It is admitted by learned counsel for the appellant-RFC that no adversity in the record was existing in preceding 7 years from the date of the year of
promotion, and at this stage, it is submitted that they are not pressing the appeal against the direction for holding DPC for consideration of the case of
the petitioner.
In the criminal case, the non-appellant has been acquitted though with the benefit of doubt but for the same charges, disciplinary enquiry was held and
the charges were not found proved therein. At the time of initial consideration of the case of non-appellant, criminal case/disciplinary enquiry was
pending and out of 7 years, he remained under suspension for 5 years thus was not treated to be fit for promotion. Since developments have taken
place in the shape of acquittal in criminal case and exoneration in the departmental enquiry, the RFC is not contesting against the direction for
consideration of the candidature of the petitioner-non-appellant for promotion on the post of Deputy Manager against the vacancy year 2005-06. The
RFC would hold meeting of DPC at the earliest and comply the direction of the learned Single Judge to that effect.
The only issue now pressed is about treatment to the intervening period. It is stated that if the petitioner-non-appellant is given promotion against the
vacancy year 2005-06, it should be with notional benefit instead of actual benefit, as directed by the learned Single Judge. It is for the reason that the
non-appellant has not undertaken the work of higher post of Deputy Manager during the intervening period. A reference of judgment of the Apex
Court in the case of Union of India versus K.V. Jankiraman reported in AIR 1991 Supreme Court 2010 has been given. The prayer is to allow the
appeal by causing interference in the order of learned Single Judge for grant of actual benefits of intervening period.
Learned counsel for the petitioner-non-appellant submits that a detailed judgment has been given by the learned Single Judge after considering all the
aspects. The appellant had contested even claim of the petitioner-non-appellant for grant of promotion against the vacancy year 2005-06 though they
are not contesting the issue now. There was no fault on the part of the petitioner-non-appellant, rather he was willing to undertake the work of the
post of Deputy Manager. It is more so when the appellant acted de hors the guidelines for promotion. They were required to consider the candidature
of the petitioner with placing recommendation in “sealed cover†looking to the pendency of the criminal case and disciplinary enquiry.
Instead of doing that, a decision was taken to deny the benefit of promotion though no adversity in the record was existing. It is also when the
promotion is based on seniority-cum-suitability and not based on merit. It is due to the violation of the guidelines to adopt “sealed cover†procedure
in such cases, otherwise the petitioner would have been given timely promotion and, for that, a direction would not have been required to hold DPC to
consider the case of the petitioner for promotion. The direction aforesaid has been given by the learned Single Judge due to the lapse of the RFC while
the DPC was conducted. In view of the above, the petitioner has rightly been held entitled to actual benefit of the intervening period.
It is also stated that the appellant had even agreed to pay the due amount and on their request, the direction was given by the learned Single Judge to
hold the DPC at the earliest and to give promotion with consequential benefits. There was no occasion to prefer an appeal after agreeing for the
relief. Accordingly, no ground is made out for causing interference in the order passed by the learned Single Judge. The appeal, rather, deserves to be
dismissed with cost.
We have considered rival submissions of the parties and perused the record.
Learned counsel for the appellant has not contested this appeal so far as the direction for holding review DPC is concerned. In view of the above, the
RFC would hold review DPC for the post of Deputy Manager against the vacancy year 2005-06. The RFC acted in violation to Clause 12.5 and 12.7
of the guidelines, thus cannot deny actual benefits to the petitioner for the intervening period. It is more so when the criminal case against petitioner
alleging disbursement of loan without verification of whereabouts and property document of the loanee resulted in acquittal though with benefit of
doubt. It is, however, a fact that disciplinary enquiry on the same charges resulted in his exoneration. The department itself did not find substance in
the charges and, accordingly, the disciplinary action was dropped.
In view of the above, it cannot be taken to be a case of exceptional nature so as to deny actual benefit to the petitioner/nonappellant. If the ratio
propounded by the Apex Court in the case of K.V. Jankiraman (supra) is also applied, petitioner-non-appellant is entitled to the actual benefits. It is
quite surprising that instead of complying the judgment of the learned Single Judge so as to save RFC from the payment of interest at the rate of 9%
for subsequent period to four weeks, the appeal has been filed. It is more so when the judgment of the learned Single Judge refers to the admission
of the appellantrespondent-RFC not only for holding review DPC but to extend consequent benefits. After agreed order by learned Single Judge, it
cannot be questioned.
In view of the above, we do not find any reason to cause interference in the detailed order passed by the learned Single Judge after considering all the
issues and therein benefits have been given by applying the judgment of this Court in the case of Dinesh Pareek vs. Rajasthan Financial Corporation
& Anr. SB CWP No.530/2016 decided vide order dated 16.03.2016. Therein also, actual benefits of the intervening period with interest at the rate of
9% were allowed. The judgment in the case of Dinesh Pareek (supra) has already been complied by the RFC thus they cannot be allowed to make
discrimination between similarly placed persons.
Accordingly, finding no substance in the appeal, we dismiss it. This Court was of the opinion to impose cost of Rs.50,000/- but on assurance of learned
counsel for the appellant for holding review DPC at the earliest, we are not imposing the cost but officers of the RFC are directed to remain careful in
future in taking decision for filing the appeal and it should not be for the sake of it.
Accordingly, while dismissing the appeal, direction is given to the RFC to hold DPC within one month from the date of receipt of copy of this order
with consequential benefit, as directed by the learned Single Judge.