JUDGMENT
Mrs. Gyan Sudha Misra, J.
1. This writ petition has been filed by the petitioner for issuance of a writ order or direction to the respondents to declare the petitioner promoted on the post of Junior Accountant since 1975 or since 4th July, 1975, the date from which the persons junior to the petitioner were promoted to the said post. The petitioner has claimed further promotion to the post of Accountant since 1979 and as Accounts Officer since 1988 to keep him at par with his juniors who have been so promoted. He has accordingly claimed all consequential benefits for the aforesaid posts.
2. The material facts of the case are that the petitioner had been appointed as Accounts Clerk with effect from 22.11.1958, after passing the examination of Accounts Clerk. Thereafter, it appears that the Accounts Service in the State of Rajasthan came to be reconstituted in the year 1975, wherein it was decided to absorb all the Accounts Clerks to the post of Junior Accountant along with those persons who have not been designated as Accounts Clerk, but were Upper Division Clerks and were discharging the duties in Accounts. A provision was, therefore made in the Rajasthan Subordinate Accounts Service Rules, 1963 wherein Sub-Rule (2) of Rule 6 laid down for special recruitment to the post of Junior Accountant from amongst Accounts clerks according to the criteria and in the manner laid down in chapter IV of Rules of 1963 namely Rule 27,which reads as under:
27. procedure and criteria for special recruitment of Accountants: (i) A person who, after having passed the Accounts clerks Examination, was holding the post of Upper Division Clerk or Accounts Clerk on 31st March, 1972, including one who having become eligible for promotion in the regular line had been promoted to a post higher than Upper Division Clerk in a substative/officiating/temporary/ad hoc capacity or had been transferred to other department or gone on deputation on equivalent or higher post on the said date shall be eligible for appointment to the post of Junior Accountant.
Explanation:
(i) For the purpose of the above rule, the term ‘higherspost’ means the post carrying a pay scale, the maximum of which was higher than the maximum of the pay scale of the post of Upper Division clerk as on the 31th March, 1972.
(ii) The appointing authority shall prepare a list of all person eligible for appointment under this rule as Junior Accountants.
(iii) The appointing authority shall appoint these persons as Junior Accountants.
3. In pursuance of the above reconstitution of the Accounts Service, the petitioner who had been working as Accounts Clerk, also applied through his Department for appointment as Junior Accountant vide his application dated 19th December, 1977 which was forwarded by the Block Development officer, Panchayat Samiti, Viratnager Jaipur.
4. It has been stated on behalf of the petitioner that he had become automatically entitled to the post of Junior Accountant by virtue of reconstitution of the Accounts service and the petitioner ought to have been posted as Junior Accountant from the date the persons junior to him were posted as such. The petitioner however has himself stated the reason due to which he could not be posted as junior Accountant for he disclosed that he was placed under suspension firstly on 24th October, 1967, which was revoked vide order dated 17th June 1972,but the enquiry was pending which was finalised on 15th October 1988, by which a penalty of forfeiture of one increment for two years without cumulative effect was ordered. However the period of suspension was treated to be as on duty for all purposes. The petitioner was again suspended on 1lth May, 1976, but the same was again withdrawn on 3rd July, 1982. By this order also the petitioner was treated to be as on duty regarding the period of suspension as he was exonerated of the charges.
5. The case of the petitioner, therefore, is that since his suspension period was treated to be on duly he was entitled and eligible to be posted as Junior Accountant from 4th July 1975, the date when the Circular was issued for posting of the Accounts Clerk to the post of Junior Accountant. Thus, according to the petitioner himself he could not be promoted to higher post due to the pendency of the enquiry against him; but since he was subsequently exonerated of the charges and only a minor penalty had been imposed and the period of suspension was treated to be as on duty for all purposes he claimed that he should have been promoted from 1975 on the date his juniors had been promoted. The petitioner, therefore, Claimed that he should have been promoted in view of chapter IV of the Rajasthan Subordinate Accounts Service Rule, 1963, vide Rule 27 of the Rules which postulates that the eligibility of an Upper Division clerk for appointment to the post of Junior Accountant is at par to Accounts Clerk, who had passed the Accounts clerk Examination and were holding the post of UDC/Accounts Clerk on 31st March, 1972. The petitioner therefore has stated that he having fulfilled the essential qualifications for recruitment to the post of Junior Accountant vide Rule 27 of the aforesaid Rules and he having held the post of Accounts Clerk on 31th March, 1972, as his suspension period was treated as on duty could not be appointed only on account of pendency of enquiries against him which should now be rectified by giving him promotion with retrospective effect.
6. The petitioner is support of his claim for promotion with retrospective effect has mainly relied on a Division Bench Judgment of this Court in Dhan Kumar Rara v. State of Rajasthan and Ors. D.B. Civil Writ Petition No. 19/1988, decided on 21st September, 1989. This writ petition had been filed by one Dhan Kumar Rara who was appointed in 1959 subsequent to the petitioner who had been appointed in the year 1958. Dhan Kumar Rara had filed the writ petition bearing No. 19/1989, referred to above, wherein he claimed promotion prior to 22nd March, 1983, on the ground that he having been held entitled for promotion prior to 22nd March, 1983, the same should be given with retrospective effect from 1975, when the Accounts Services were reconstituted. In the said writ petition the learned Judges scrutinized Rule 27 of the Rajasthan Subordinate Accounts Service Rules, 1963 and held that since Dhan Kumar Rara was entitled for promotion prior to 1983, hence he should be given was entitled for promotion to the post; of Junior Accountant with effect from 4th July, 1975, the date from which the persons junior to the petitioner were appointed. The view taken in the said judgment was upheld by the Supreme Court as Special Leave petition bearing SLP (Civil) No. 4840/1990 was dismissed in limine, thereby upholding the view of this Court in Dhan Kumar Rara’s case (supra).
7. In support of his plea, the petitioner has relied on the aforesaid judgment in the case of Dhan Kumar Rara and has stated that when the petitioner was appointed as Accounts Clerk, his name appeared at Sr. No. 3 in the order of his appointment, whereas the name of Dhan Kumar Rara was at Sr. No. 8 as he had been appointed in the year 1959 since the petitioner had been appointed one year prior, in 1958. The petitioner has stated that he made representation to the concerned authorities for his promotion and for ignoring the suspension period for promotion in view of the fact that the said period was treated as on duty for all purposes in the orders dated 17.6.1972 and 3.7.1992. It is pertinent to mention that in Dhan Kumar Rara’s case (supra), this Court had incidenty considered whether the period of suspension of the petitioner should have been considered for promotion or not and had then observed that since the disciplinary proceedings were dropped against the petitioner therefore he should be given the benefit of promotion with effect from 4th July 1975 with all consequential benefits.
8. As stated herein before learned Counsel for the petitioner has relied upon this judgment for claiming similar benefits. It has been submitted that the promotion has been denied to the petitioner as Junior Accountant on the basis of pendency of enquiry and his suspension which was later on withdrawn. It has been urged that since the suspension order had been withdrawn and the period of suspension had been treated as on duty for all purposes the petitioner is entitled to be posted as Junior Accountant since 1975 and as Accountant since 1979 and also as Asstt. Accounts Officer since 1986, since the persons Junior to the petitioner have been promoted to the post of Asstt. Accounts Officer. The petitioner has stated that even after 32 years of service for the post of Asstt. Accounts Officer he is still functioning on the same post of Accounts Clerk although the suspension period ought to have been treated as on duty and should have been promoted as Junior Accountant from 1975 and thereafter as Accountant and Assistant Accounts Officer.
9. On a perusal of the Judgment of this Court in Dhan Kumar Rara’s case, (supra), it appears that in the aforesaid judgment it was essentially considered as to from what date the said petitioner was entitled to be promoted and while so considering it observed that since the petitioner has been found fit for promotion by the Tribunal in 1983 and the disciplinary proceedings were dropped against the said petitioner, the period of suspension should not be taken into consideration for denying the petitioner the benefits of promotion of from the date the Accounts Clerks were promoted i.e. 1975, Comparing the facts of the said case to the facts of the instant case, I do not entirely agree that the case of the petitioner is exactly identical to the facts in the case of Dhan Kumar Rara (supra). It is clear that in the case of Dhan Kumar Ram (supra), the proceedings had been dropped and he was found fit for promotion from the date of reconstitution of the Accounts Service i.e. 1975. Although, in view of Rule 27 of 1963 Rules, it is not in dispute that the Accounts Clerk/UDC is entitled to be promoted to the post of junior Accountant if he has cleared the examination for the said purpose and was UDC on 31th March, 1972, presumption can certainly be made that the Rules also envisaged that the incumbent should be eligible in all other respects regarding his conduct and service record therefore. Even though I find substance in the contention of the learned Counsel for the petitioner that the petitioner should not have been denied the promotion on account of the order of suspension since the same was withdrawn holding therein that the period of suspension will be counted as on duty, The fact remains that the petitioner was not eligible on 31/3/1972 as his first suspension order was withdrawn only on 17th June 1982 after the enquiry against the petitioner for serious financial irregularities was still pending which was concluded on 15th October, 1988 which also awarded a minor penalty to the petitioner of stoppage of one grade increment without cumulative effect. In between, he had been again suspended on 11th May 1976 and was reinstated by order dated 3rd July 1982. Thus, the petitioner at the most became eligible for promotion only after the order of suspension which directed that the period of suspension may be treated as on duty came into existence on 3rd July, 1982, after which the petitioner was allowed to join his duty on 3rd July, 1982, allowing his period of suspension to be treated as on duty. It is only by virtue of this order that the petitioner can be treated as on duty on 31st March, 1972, the cut off date of eligibility vide Government decision of reconstitution In 1975, as laid down in Rule 27 of 1963 Rules. In my view, the petitioner cannot be held eligible in all other respects either in 1975 or 1972 as admittedly the enquiry for the charges against him was pending. The petitioner in my considered opinion became eligible for promotion when his order of suspension was finally withdrawn treating the suspension period as on duty, which is 3rd July, 1982,but certainly not far retrospective promotion, as he was not fit in all other respects which can definitely be presumed to be the implied meaning of Rule 27 of the Rules of 1963. Thus, I think, it is fit and proper to direct for his promotion from 3/7/1982, when it was ultimately made clear that the period of suspension should be treated as on duty. The reliance of the petitioner on the case of Dhan Kumar Rara for giving him retrospective promotion from 1975 is not sustainable in my view as Dhan Kumar Rara was found fit for promotion even prior to his reinstatement on account of dropping of the departmental proceedings whereas in the case of the petitioner it cannot be held that he was fit for promotion before withdrawal of his suspension order on 3/7/1982 as not only enquiry was pending against him but had also been subjected to penalty. However since the period of suspension was directed to be treated as on duty by order dated 3rd July, 1982 and on 15th October. 1988, I hold him entitled for promotion to the post of Junior Accountant from 3rd July, 1982. If such a direction had not been in favour of the petitioner the claim of the petitioner’s promotion even from 1982 would have totally failed as admittedly he was not on duty on the cut off date. The petitioner under the circumstances shall be treated as having been promoted to the post of Junior Accountant from 3rd July, 1982 and not prior to it as it cannot be said that he was fit for promotion even prior to this date and the facts of Dhan Kumar Rana’s case are not exactly identical to the case of the petitioner in spite of such assertions having been made on behalf of the petitioner.
10. In so far as the further claim for promotion to the post of Accounts Clerk and thereafter as Accountant and Asstt. Accounts Officer is concemed no material has been placed before this Court as to what were the terms and conditions for such further promotion and hence no order is passed in that regard. It may further be stated that a perusal of the writ petition indicates that the petitioner was due to retire perhaps in 1992 (as no specific date had been given), hence, it is clarified that if the petitioner has retired by now he will be entitled to the arrears of salary and other consequential benefits of the post of Junior Accountant form 3rd July, 1982 till the date of his superannuation.
11. The writ petition is thus allowed only to the extent that the petitioner shall be given the benefit of promotion as Junior Accountant with effect from 3rd July, 1982 when the order of his suspension was ultimately revoked treating him to be on duty. The claim for retrospective promotion from 1975, however, fails. The petitioner shall be entitled to all consequential benefits only from 3rd July 1982.
12. There shall be no order as to costs.
