Kumar Saxena Vs. Brij Raj Kishore Ranga & Ors  Insc 513 (28 September 2005)
N. Srikrishna & C. K. Thakker
O R D
E R (arising out of S.L.P. (C) No. 5389 of 2004) with Civil Appeal No.
5931/2005 @ S.L.P. (C) No. 5156/2004 and Contempt Petition (C) No. 386/2004 in
S.L.P. (C) No. 5389/2004 Civil Appeals arising out of S.L.P.(C) Nos. 5389/04
have perused the records and heard the learned counsel for both sides.
were two vacancies for the post of Superintending Mining Engineer in the year
1996-97, which had to be filled on the basis of merit. A Departmental Promotion
Committee ("DPC" in short) meeting was held and it considered the
officers falling within the zone of consideration. One of the said vacancies
was filled up by appointment of Arvind Kumar Saxena (appellant in the appeal
arising from S.L.P. (C) No. 5389/04). The DPC took the view that there was no
other eligible candidate having an Annual Performance Appraisal Report
("APA Report" in short) rating "very good" for at least
five out of seven-year, prior to the date of promotion, which was the
requirement for appointment on the basis of merit. Hence, the other vancacy of
the post was filled by lateral shifting and appointing one Mohd. Hussain.
were two other aspirants to the posts of Superintending Mining Engineer. One
was Brij Raj Kishore Ranga and the other was Arun Kumar Kothari (appellant in
the civil appeal arising out of S.L.P. (C) No. 5156/04).
two candidates independently challenged the appointment of Mohd. Hussain by
their appeals presented before the Rajasthan Civil Services Appellate Tribunal
("Tribunal" for short). Because of territorial jurisdiction, Ranga's
appeal was filed before the Jaipur Bench of the Tribunal, while Kothari's
appeal was filed before the Jodhpur Bench.
27.3.1999 the Tribunal allowed the appeal filed by Kothari and held that five
out of seven of his APA Reports were "very good" and directed the
State to hold a Review DPC for considering his case for promotion to the post
of Superintending Mining Engineer for the year 1996-97 on the basis of merit.
The Review DPC was directed to be held within a period of three months. On
3.4.1999, Ranga filed a writ petition before the Rajasthan High Court (CWP No.
1176/99) praying that convening of the Review DPC be deferred until final
adjudication of his appeal before the Jaipur Bench of the Tribunal. An interim
stay was granted by the High Court in the said writ petition.
13.4.1999, Kothari filed an application under Order 1 Rule 10 CPC before the Jaipur
Bench of the Tribunal and sought to be impleaded in Appeal No. 283/97 filed by Ranga.
The Tribunal merely directed that Kothari would be permitted to address the
arguments and not to file any reply or documents in support.
28.4.1999 the Tribunal allowed Ranga's appeal and held that five out of seven
of his APA Reports were "very good" and directed the State to hold a
Review DPC for consideration of his case for promotion to the vacant posts of
Superintending Mining Engineer within a period of three months.
17.5.1999, Ranga withdrew his Writ Petition No. 1176/99 and it was dismissed by
the High Court as not pressed.
5.8.1999, Kothari filed a writ petition, CWP No. 2803/99 challenging the order
dated 28.4.1999 made by the Tribunal in Ranga's appeal. The learned Single
Judge allowed the writ petition of Kothari, set aside the order dated 28.4.1999
made by the Tribunal and remanded the case back to the Tribunal with a
direction that Ranga be directed to file amended appeal in the shape of amended
cause title and thereafter Kothari be given an opportunity to file a reply to
the appeal and that the appeal be heard and disposed of after affording an
opportunity of hearing to all the parties. Ranga challenged the order of the
learned Single Judge by his Civil Special Appeal No. 436/03 before the Division
Bench of the High Court. By the impugned judgment, the Division Bench of the
High Court allowed the Special Appeal filed by Ranga and set aside the order
dated 26.5.2003 passed by the learned Single Judge. The time granted by the
Tribunal to hold the Review DPC was made effective from the date of the
judgment of the Division Bench, and it was also directed that the performance
of the candidates shall be assessed keeping in view both the judgments of the
Tribunal. Finally, the High Court directed, "the appellant shall be
entitled to all the benefits including promotion and seniority
throughout." It is the grievance of the appellant, Arun Kumar Kothari,
before us that despite a long application raising several contentions in his
application dated 13.4.1999, made purportedly under Order 1 Rule 10 CPC, the
Tribunal has not considered several of the contentions raised before it. After
having acquainted ourselves of the contentions urged and the documents
presented along with the said application, and also having perused the
Tribunal's judgment in the appeal of Brij Raj Kishore Ranga, we are inclined to
hold that adequate opportunity was not given to Kothari to present his case,
nor were the contentions placed on record by his application carefully
considered and decided by the Tribunal. Despite the subsequent developments, we
are of the view that interests of justice demand that both the contending
parties should be given proper opportunity of presenting their rival cases
before the Tribunal. This is particularly so in view of the fact that when both
Ranga and Kothari had moved their appeals before the Tribunal, their immediate
object was to challenge the appointment of Mohd. Hussain, who had been
appointed by the lateral shifting of the vacancy. That situation no longer
holds good, as we are informed that Mohd. Hussain has since retired.
appears that today the real contest for the vacancy for the year 1996-97 is
only between Ranga and Kothari for being selected to the vacancy on the basis
of merit. Learned counsel on both sides invited us to go into a comparative
evaluation of the APA Reports of the rival candidates and to decide as to which
of the candidates is better suited. We decline to do so as it is not our
function to embark upon such an exercise. We would rather leave this exercise
to the Tribunal for a decision after careful consideration of the material
presented to it.
as the appeal of Arvind Kumar Saxena is concerned, it appears that there was no
challenge, whatsoever, to his promotion as Superintendent of Mining Engineer in
the year 1996-97. His promotion to the said post, therefore, has become immune
from challenge, reducing the contest to the rival candidates, Ranga and Kothari.
these observations, we set aside the impugned judgments of the Division Bench,
the learned Single Judge and that of the Tribunal rendered in Appeal No. 283/97
on 28.4.1999 of Brij Raj Kishore Ranga. The said appeal is remitted to the
Rajasthan Civil Services Appellate Tribunal, Jaipur Bench, to be heard in
accordance with law. We direct that if Arun Kumar Kothari, the rival candidate,
is desirous of filing, and files, a counter affidavit in Appeal No. 283/97,
within such period as permitted by the Tribunal, the Tribunal shall consider
such affidavit after giving opportunity of filing a rejoinder affidavit to Brij
Raj Kishore Ranga. Arun Kumar Kothari shall be afforded an adequate opportunity
of making submissions with regard to the contentions urged in Ranga's Appeal
No. 283/97, and thereafter the appeal shall be decided in accordance with law,
as expeditiously as possible and preferably before 31.1.2006. No separate
orders are necessary in the appeal of Arvind Kumar Saxena. This order disposes
of both the appeals of Arvind Kumar Saxena and Arun Kumar Kothari.
Petition (C) No. 386/04 in S.L.P.(C) No. 5389/04:
making submissions for some time, Mr. C.S. Vaidyanathan, learned senior counsel
stated that this petition is not being pressed. Hence, the contempt petition is
dismissed as not pressed.