JUDGMENT
M.R. Calla, J.
This special appeal is directed against the order dated 6.9.93 passed by the learned Single Judge allowing the writ petition of Mohd. Rafique Khan, an employee of the Rajasthan High Court. The operative part of the order passed by the learned Single Judge reads as under:
In the result, the writ petition is partly allowed. Claim of the petitioner for grant of promotion w.e.f. 2.1.85 is rejected. However, it is declared a that supersession of the petitioner at the time of issue of promotion order dated 23.7.85 was arbitrary and illegal. The respondent is directed to reconsider the case of the petitioner for promotion as U.D.C. w.e.f. 23.7.85. While reconsidering the case of the petitioner the punishments and special report shall not be taken into consideration. Necessary order of such reconsideration should be issued at an early date and latest within two months. Costs made easy.
2. Learned Single Judge has gone through the annual confidential reports of all the candidates who fell within the zone of consideration, including the petitioner and has thereafter noted that when the D.P.C. met in the year 1985, the ACRs of certain candidates not only for one year but for several years, were not having any remarks of the Reporting Officer what to say of the Reviewing Officer, and has also noticed that not only the petitioner but there were other employees who too had been punished and yet, they were promoted while the petitioner was not. The learned Single Judge has given names of S/Shri Achla Ram and Vinod Kumar, to illustrate that the employees who had been punished, had also been promoted.
3. Mr. Agarwal, learned Counsel for the appellant, has submitted that the learned Single Judge has wrongly observed in his order that special reports had been obtained only in the case of the respondent Mohd. Rafique Khan and that special reports had not been obtained in other cases. We have gone through the reply which had been filed on behalf of the appellant in the writ petition and Shri R.K. Agarwal, has failed to show that any plea was taken that the special reports of other employees has also been called. Therefore, it is clear that special reports of other employees had not been projected before the learned Single Judge and therefore, the learned Single Judge on the basis of the pleadings had rightly observed that the respondent employee was singled out in the matter of calling special reports. However, Shri R.K. Agarwal has placed before us he record and has shown that special reports had also been called in cases of other employees. That may be so, but that does not vitiate the conclusions which have been arrived at by the learned Single Judge because it is admitted before us that there is no provision in the Rules for the purpose of calling a special report and the consider the same in the matter of promotion. Moreover, it also appears that the said reports had been called because in certain cases, ACRs were not at all available. One does not know how the employees in whose cases ACRs not only for one year but more than one year were not available, could be adjudged suitable for promotion. So far as the question of punishment is concerned, Shrk R.K. Agarwal also admits that the employees having one minor punishment, have been promoted but he submits that their special reports were available. Special report obtained at a particular lime for a particular purpose is an unruly horse and a very poor substitute for the ACRs. ACR is the real record on the basis of which assessment of the work and performance of the employee for the purpose of promotion is to be made and therefore, such a procedure which is admittedly not provided under the rules could not be chosen to be followed. It is also not disputed before us that the petitioner was superseded earlier in the month of January, 1985 on the basis of minor punishments of censure, and there after he was again considered for promotion and on the basis of the very same punishments coupled with the special report he has been subjected to enmases supersession by as many as 15 employees.
4. In such circumstances, we find that when in the scheme of the Rules with-holding of promotion itself has been prescribed as a penalty, no person can be superseded on the basis of a minor punishments again and again because that will amount to double jeopardy.
5. Shri Agarwal, learned Counsel for the appellant, has submitted that no case of malafides had been set up by the respondent employee in the writ petition. Learned Single Judge has only made reference to the record and on that basis, he has found that the petitioner has been subjected to unfair consideration and therefore, it hardly constitutes a case for any interference because on the admitted facts, the factum of unfair consideration of the respondent employee vis-a-vis other employees has been proved and the learned Single Judge has not set aside the promotion orders of other employees because they were not parties to the writ petition. There is no force in the special appeal and the same is hereby dismissed.