Rajasthan High Court - JodhpurVijay Nagori vs District And Sessions Judge on 24 January, 2023Author:Pushpendra Singh BhatiBench:Pushpendra Singh BhatiHIGH COURT OF JUDICATURE FOR RAJASTHAN AT\n                           JODHPUR\n            S.B. Civil Writ Petition No. 3994/2019\n\nRajesh Vyas S/o Shri Murli Dhar Vyas, Aged About 55 Years,\nBheem Ji Ka Mohalla, Neem Ki Gali, Jodhpur, Rajasthan.\n                                                                 ----Petitioner\n                                 Versus\n1.     Districts And Sessions Court, Jodhpur, Through The\n       District And Sessions Judge, Jodhpur.\n2.     Sunil Mehta, Senior Reader, Special Judge Cbi Cases,\n       Jodhpur.\n                                                              ----Respondents\n                           Connected With\n             S.B. Civil Writ Petition No. 5239/2018\nKheem Raj Khatri S/o Shri Jawanmal Khatri, Bye Caste Khatri, R/\no Near Iskon Plaza, Sirohi Rajasthan.\n                                                                 ----Petitioner\n                                 Versus\n1.     District Cum Session Judge, Sirohi, Rajasthan.\n2.     High Court Of Rajasthan, Jodhpur, Through Its Registrar\n       General\n3.     Jeeva Ram Meghwal S/o Not Known, C/o Senior Munshrim\n       Court, Sirohi Rajasthan.\n4.     Kailash Rawal S/o Not Known, C/o O.s. District Judge\n       Court, Sirohi Rajasthan.\n                                                              ----Respondents\n             S.B. Civil Writ Petition No. 14930/2018\nKailash Chandra S/o Rewad Lal, Aged About 52 Years, By Caste\nBalali, Resident Of Saini Mohalla, Luniyapura, Abu- Road, Sirohi.\n                                                                 ----Petitioner\n                                 Versus\n1.     District And Session Judge, Sirohi, Rajasthan.\n2.     High Court Of Rajasthan, Jodhpur, Through Its Registrar\n       General.\n3.     Jeeva Ram Meghwal S/o Veesa Ram Meghwal,, By Caste\n       Meghwal, In Care Of Senior Munshrim Court, Sirohi\n       (Rajasthan).\n                                                              ----Respondents\n             S.B. Civil Writ Petition No. 15348/2018\n1.     Sanjay Modi S/o Late Shri Sukhdeo Modi, Aged About 47\n       Years, At Present Posted As Sheristedar Gr. I In The Court\n       Of Special Judge, Women Atrocities, Sri Ganganagar.\n2.     Bhupendra Kaushik S/o Shri Brij Lal Kaushik,, Aged About\n       58 Years, At Present Posted As Senior Reader In The\n       Court Of Additional District And Sessions Judge No. 2, Sri\n\n                  (Downloaded on 24/01/2023 at 11:35:53 PM)\n                                         (2 of 18)                [CW-3994/2019]\n\n\n      Ganganagar.\n                                                                ----Petitioners\n                                 Versus\n1.    State Of Rajasthan, Through The Principal Secretary,\n      Department Of Law And Legal Affairs, Government Of\n      Rajasthan, Secretariat, Jaipur.\n2.    The District And Sessions Judge, Sri Ganganagar.\n3.    Registrar General, Rajasthan High Court, Jodhpur.\n                                                              ----Respondents\n             S.B. Civil Writ Petition No. 3966/2019\nVijay Nagori S/o Late Shri Omprakash, Aged About 38 Years, R/o\nGali No. 11, Kalal Colony, Nagori Gate, Jodhpur.\n                                                                 ----Petitioner\n                                 Versus\n1.    District And Sessions Judge, Jodhpur Metro City, Jodhpur.\n2.    Shri Dhanraj S/o Shri Premchand Solanki,, Sr. Munsrim,\n      District And Sessions Court, Jodhpur Metro City, Jodhpur.\n                                                              ----Respondents\n             S.B. Civil Writ Petition No. 4450/2019\nRakesh Sharma S/o Shri Manmohan Lal Sharma, Aged About 58\nYears, By Caste Brahmin, R/o Mata Ki Ka Pol, Opposite\nNavchokiya Hospital Jodhpur.\n                                                                 ----Petitioner\n                                 Versus\nDistrict And Sessions Judge, Jodhpur Metro, Jodhpur Metro City,\nJodhpur.\n                                                              ----Respondent\n             S.B. Civil Writ Petition No. 4599/2019\nBhanwar Singh Chouhan S/o Shri Amar Singh, Aged About 49\nYears, R/o Sunthla, Chopasani Road, Jodhpur, Rajasthan.\n                                                                 ----Petitioner\n                                 Versus\nDistrict And Sessions Court, Jodhpur, Through The District And\nSessions Judge, Jodhpur.\n                                                              ----Respondent\n             S.B. Civil Writ Petition No. 5038/2019\nSunil Mehta S/o Shri Jaswant Raj Mehta, Aged About 56 Years,\nBy Caste Mehta, Resident Of 12/4, Chopasni Housing Board,\nJodhpur.\n                                                                 ----Petitioner\n                                 Versus\nThe District And Sessions Judge, Jodhpur, Metropolitan, Jodhpur.\n                                                              ----Respondent\n             S.B. Civil Writ Petition No. 6493/2019\n\n\n                  (Downloaded on 24/01/2023 at 11:35:53 PM)\n                                         (3 of 18)                [CW-3994/2019]\n\n\nRajesh Kumar Tak S/o Shri Ratan Lal Tak, Aged About 59 Years,\n54-B, Keshav Nagar, Gali No. 3, Near Seva Bharti Dham, Pal\nRoad, Jodhpur, Rajasthan.\n                                                                 ----Petitioner\n                                 Versus\n1.     Districts And Sessions Judge, Jodhpur, District.\n2.     Sunil Mohnot, Aged About 57 Years, Through C/o Districts\n       And Session Judge, Jodhpur District.\n3.     Mohan Lekhwani, Aged About 59 Years, Through C/o\n       Districts And Session Judge, Jodhpur District.\n                                                              ----Respondents\n             S.B. Civil Writ Petition No. 6725/2019\n1.     Kailash Puri S/o Sh. Buddha Puri, Aged About 56 Years,\n       Resident Of Gandhi Colony, Merta City, District Nagaur.\n2.     Gulab Chand Sharma S/o Sh. Ram Niwas Sharma, Aged\n       About 52 Years, Resident Of Uuchera, Tehsil Mundwa,\n       District Nagaur.\n3.     Mool Chand Bhargaw S/o Sh. Madan Lal Bhargaw,, Aged\n       About 48 Years, Resident Of Opposite Raghunath Mandir,\n       Merta, District Nagaur.\n4.     Narendra Kumar Rakhecha S/o Sh. Ram Niwas,, Aged\n       About 45 Years, Resident Of Vyas Colony, Nagaur.\n                                                                ----Petitioners\n                                 Versus\n1.     State Of Rajasthan, Through The Principal Secretary,\n       Department Of Law And Legal Affairs, Government Of\n       Rajasthan, Secretariat, Jaipur.\n2.     The District And Sessions Judge, Merta, District Nagaur\n       (Raj.).\n3.     Registrar General, Rajasthan High Court, Jodhpur.\n                                                              ----Respondents\n             S.B. Civil Writ Petition No. 7493/2019\nGhanshyam Lal Ameta S/o Shri Manohar Lal Ameta, Aged About\n72 Years, R/o 5/263, Bhindar Ki Haveli, Outside Chandpole,\nUdaipur, Rajasthan.\n                                                                 ----Petitioner\n                                 Versus\nDistrict And Sessions Judge Udaipur, District Udaipur, Rajasthan.\n                                                              ----Respondent\n             S.B. Civil Writ Petition No. 15331/2019\nShivnath Singh S/o Bhan Singh, Aged About 58 Years, 174,\nEidgah Road, Abu-Road, District Sirohi (Raj).\n                                                                 ----Petitioner\n                                 Versus\n1.     State Of Rajasthan, Through The Principal Secretary,\n\n\n                  (Downloaded on 24/01/2023 at 11:35:53 PM)\n                                       (4 of 18)                  [CW-3994/2019]\n\n\n     Department Of Law And Legal Affairs, Government Of\n     Rajasthan, Secretariat, Jaipur.\n2.   The District And Sessions Judge, Sirohi, District Sirohi\n     (Raj.)\n3.   Registrar General, Rajasthan High Court, Jodhpur.\n4.   Visa Ram Kumawat S/o Dana Ji, At Present Posted At\n     District Court, Sirohi.\n                                                              ----Respondents\n           S.B. Civil Writ Petition No. 18837/2019\n1.   Umakant Upadhyay S/o Late Sh. Laxmi Lal Ji Upadhyay,\n     Aged About 57 Years, Resident Of Near Government\n     Upper Primary School, Upadhyay Mohalla, Pur Tehsil And\n     District Bhilwara.\n2.   Rajendra Prasad Joshi S/o Sh. Bhagwati Prasad Joshi,\n     Aged About 59 Years, Resident Of Gaushala Road,\n     Gulabpura, District Bhilwara.\n3.   Mohammad Nasim Chipa S/o Late Sh. Nasir Mohammad Ji\n     Chipa, Aged About 59 Years, Resident Of Kheradi Mohalla,\n     Baneda, District Bhilwara.\n4.   Prakash Asnani S/o Sh. Kishan Chand @ Bhura Lal\n     Asnani, Aged About 48 Years, Resident Of Plot No. 8 Pech\n     Area, Bhilwara.\n5.   Udai Lal Vaishnav S/o Late Sh. Sitaram Das Ji Vaishnav,\n     Aged About 57 Years, Resident Of Plot No. 2, Gayatri\n     Nagar, Bhilwara.\n6.   Kailash Chandra Sharma S/o Sh. Late Sh. Samrath Lal Ji\n     Sharma, Aged About 55 Years, Resident Of 124,\n     Shivkripa, Gali No. 1, Adarsh Nagar, Kota Road, Bhilwara.\n7.   Sunil Kumar Sharma S/o Sh. Rajendra Prasad Sharma,\n     Aged About 52 Years, Resident Of 59 B, Subhash Nagar,\n     Bhilwara.\n8.   Amit Kumar Tailor S/o Sh. Bhanwar Lal Ji Tailor, Aged\n     About 49 Years, Resident Of 63- Vistar Paschim, Subhash\n     Nagar, Bhilwara.\n9.   Rajendra Prasad Kothari S/o Late Sh. Heera Lal Kothari,\n     Aged About 56 Years, Resident Of 2-D-8, Chandra\n     Shekhar Ajad Nagar, Bhilwara.\n                                                                ----Petitioners\n                               Versus\n1.   State Of Rajasthan, Through The Principal Secretary,\n     Rajasthan Of Law And Legal Affairs, Government Of\n     Rajasthan, Secretariat, Jaipur.\n2.   The District And        Sessions        Judge,         Bhilwara,   District\n     Bhilwara (Raj.).\n3.   Registrar General, Rajasthan High Court, Jodhpur.\n4.   Nirmal Kumar Duggar S/o Shri Shanti Lal Duggar, At\n     Present Posted As Executive Assistant Cum P.s. At The\n     Court Of District And Session Judge, Bhilwara.\n\n                (Downloaded on 24/01/2023 at 11:35:53 PM)\n                                               (5 of 18)                [CW-3994/2019]\n\n\n5.         Balkishan Trivedi S/o Shri Banshi Lal Trivedi, At Present\n           Posted As Stenographer Grade- I In The Court Of Adj\n           (Woman Atrocities Cases), Bhilwara.\n                                                                    ----Respondents\n\n\n\nFor Petitioner(s)            :     Mr. Ankur Mathur\n                                   Mr. Dheerendra Singh Sodha\n                                   Mr. M.S. Godara\n                                   Mr. Harish Kumar Purohit\n                                   Mr. Baljinder Singh Sandhu\n                                   Mr. Rakesh Arora with\n                                   Mr. Naresh Singh\n                                   Mr. Sushil Bishnoi\nFor Respondent(s)            :     Mr. Sandeep Shah, AAG\n                                   Mr. Chandra Shekhar Kotwani\n                                   Mr. Ashok Soni\n                                   Mr. Rajesh Shah\n\n\n\n      HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATIJudgment\n\nReserved on 18/01/2023\nPronounced on 24/01/20231.            The     above-numbered            S.B.      Civil     Writ   Petitions\n\nNo.18837/2019, 15348/2018, 15331/2019 & 6725/2019\n\nhave been preferred claiming, in sum and substance, the following\n\nreliefs:(i) by an appropriate writ, order or direction, respondents\n      may kindly be restrained from including the Stenographers\n      Gr.I and E.A. cum P.A. in the zone of eligibility for the\n      promotion to the post of Senior Munsarim in the DPC going\n      to be convened in the year 2019-20 and subsequent years.(ii) by an appropriate writ, order or direction, it may be\n      declared that the stenographers Gr.I and E.A. cum P.A. are\n      not eligible for promotion to the post of Senior Munsarim\n      under         Rajasthan      Subordinate            Courts     Ministerial\n      Establishment Rules, 1986, and any such promotion made\n      by the respondents no.2 may kindly be declared illegal and\n      be quashed and set aside.(iii) Quashment and setting aside of the promotion order to\n      the extent of certain persons, owing to their ineligibility or(Downloaded on 24/01/2023 at 11:35:53 PM)(6 of 18)                  [CW-3994/2019]\n\n      otherwise for promotion to the post of Senior Munsarim, as\n      per the Rules in vogue.(iv) That the respondents may kindly be further directed to\n      consider the petitioners in the zone of consideration for\n      promotion to the post of Senior Munsarim, and to promote\n      them if they are otherwise eligible.(v) by an appropriate writ, order or direction, respondents\n      may kindly be directed to include the Stenographer Gr.II\n      and Stenographer Gr.III in the zone of consideration for\n      promotion to the post of Senior Munsarim, only upon\n      fulfilling the condition laid down under Rule 27 of the Rules\n      of 1986.(vi) that further it is prayed that record of DPC for the\n      concerned period may be called for and be judicially\n      reviewed.(vii) that further it is prayed that if any proceedings/action\n      is taken by the respondent in violation of the Rules during\n      the   pendency      of      the       writ     petition,   all      such\n      proceedings/action as well as the illegal promotions may\n      also be declared illegal and be quashed and set aside.1.1         The   genesis      of     the      controversy       raised     in   the\n\naforementioned petitions is traceable to sub-rule (v) of Rule 14\n\nRajasthan Subordinate Courts Ministerial Establishment Rules,\n\n1986 (hereinafter referred to as "Rules of 1986"); the said Rule\n\n14(v) (post amendment) provides for promotion to the post of\n\nSenior Munsarim.1.2         As reproduced in the petitions, the said Rule 14(v) of\n\nthe Rules of 1986, pre-amendment and post amendment, reads as\n\nunder:Pre-amendment:"14. Promotion-(v) Selection for promotion to the post of Munsarim\n      shall be made on the basis of merit alone. No person\n      shall be appointed substantively as Munsarim unless(Downloaded on 24/01/2023 at 11:35:53 PM)(7 of 18)                [CW-3994/2019]\n\n\n       he has been in service for at least ten years and\n       during that period has held the post of Upper Division\n       Clerk or a higher post including that of "Personal\n       Assistant and Stenographers" for at least five years\n       and has passed the Departmental Examinations of\n       Munsarim according to the syllabus and instructions\n       given in Schedule IV."Post amendment:"14. Promotion-(v) Selection for promotion to the post of Senior\n       Munsarim shall be made on the basis of merit alone.No person shall be appointed substantively as Senior\n       Munsarim unless he has been in service for at least\n       ten years and during that period has held the post of\n       Clerk    Gr.I   or   a    higher       post       including   that   of\n       Stenographer Grade II and Stenographer Gr. III at\n       least five years and has passed the Departmental\n       Examinations of Senior Munsarim according to the\n       syllabus and instructions given in Schedule IV."2.             While in the other petitions, above-numbered, (i)\n\nthe petitioners are aggrieved by their reversion from the post of\n\nSenior Munsarim to that of the post held by them prior to their\n\npromotion as Senior Munsarim; (ii) some of the petitioners are\n\naggrieved by their non-consideration for promotion to the post of\n\nSenior Munsarim from that of Reader Grade-I and other posts, (iii)\n\nsome     petitioners    seek      their     promotion         from   the    post   of\n\nStenographer Grade-I to the post of Personal Assistant cum\n\nExecutive Assistant; and (iv) some of the petitions assail the\n\npromotion of some other employees (private respondents herein)\n\non the post of Senior Munsarim, while questioning the validity of\n\nthe same being unlawful and contrary to the Rules in vogue. The\n\npetitioners in those petitions above-numbered also averred that(Downloaded on 24/01/2023 at 11:35:53 PM)(8 of 18)                   [CW-3994/2019]\n\n\n\nthe said grievance of theirs was not redressed, even when they\n\nwere entitled for the same in all respects, and also that, the same\n\nwas denied even when the sufficient posts were lying vacant.3.         The    foundational           and        skeletal         facts,    which\n\nconstitute the essence of the present dissension, are identical so\n\nmuch so that the sequence of events, if drawn in brevity would\n\nsuffice to comprehend the issues to be addressed, and thus, in the\n\npresent   adjudication,    the      factual      matrix         of   the   individual\n\npetition(s) is not being portrayed in the present judgment, more\n\nparticularly, when the detailed arguments advanced on behalf of\n\nall the parties in the instant petitions, do enable this Court in\n\narriving at a logical conclusion, that the sheet anchor of the claim\n\nof the petitioners herein is the post of Senior Munsarim, either by\n\npromotion, or continuity on the said post (subsequent to their\n\npromotion). That apart, other ancillary prayers have also been\n\nmade in the present petitions.4.         As the averments made in the petitions would reveal,\n\nthere are two cadres involved in the present petitions, namely,\n\nStenographer Cadre and General Cadre (comprising Clerks,\n\nReaders, Office Assistants and the other like posts), as reflected in\n\nRule 5 of the Rules of 1986, which speaks of the strength of staff.\n\nBoth the said cadres have different identified posts and channel of\n\npromotion, but for the above-quoted amended Rule 14(v) of the\n\nRules of 1986 w.e.f. 19.07.2017.5.         Learned counsel for the petitioners, as regards inclusion\n\nof the Stenographers Grade-I in the zone of consideration, for\n\npromotion to the post of Senior Munsarim, submitted that prior to\n\namendment in the Rules of 1986, the Stenographer Grade-I(Downloaded on 24/01/2023 at 11:35:53 PM)(9 of 18)                 [CW-3994/2019]\n\n\n\n(Sr.P.A.) carried a higher pay scale, than that of the post of\n\nMunsarim and further the post of Stenographer Grade-I was a\n\ngazetted post, whereas the post of Munsarim was a non-gazetted\n\npost, and thus, there was no channel of promotion to the post of\n\nMunsarim, which, at the relevant time, was carrying lower pay\n\nscale.6.          Learned counsel for the petitioners further submitted\n\nthat the post(s) of Munsarim was however, upgraded to the post\n\nof Senior Munsarim in light of the Recommendations of the Shetty\n\nCommissions, w.e.f.01.04.2003, and accordingly, vide notification\n\ndated 19.07.2017 issued by the Department of Personnel,\n\nGovernment of Rajasthan, all the posts of Munsarim were\n\nadjusted/merged/renamed as Senior Munsarim, while making the\n\nnecessary    amendment       in    the     Rules      of    1986;   the   related\n\nnotification in regard to such merger was also issued by the\n\nDepartment of Finance, Government of Rajasthan on 02.09.2016;\n\nafter such merger, as reflected in the said notification dated\n\n02.09.2016, the post of Senior Munsarim which was earlier\n\ncarrying the pay scale of Rs.6500-10500, was upgraded to the pay\n\nscale of Rs.8000-13500 i.e. higher than the post of Stenographer\n\nGrade-I.\n\n6.1         Learned counsel also submitted that Rule 14(v) of the\n\nRules of 1986 (post amendment) clearly distinguishes Clerk\n\nGrade-I or any higher post and Stenographers Grade-II & III; the\n\nsaid Rule does not include Stenographer Grade-I, and hence,\n\nwhen the legislature itself, in its wisdom did not include\n\nStenographer Grade-I for promotion to the post of Senior\n\nMunsarim, then the impugned action of their inclusion herein(Downloaded on 24/01/2023 at 11:35:53 PM)(10 of 18)                  [CW-3994/2019]\n\n\n\nclearly amounts to misreading and misinterpretation, of the said\n\nRule, on the part of the respondents, more particularly, when\n\nthere is no such channel available therefor, even in the Rules in\n\nvogue.6.2        Learned counsel also submits that the Rules of 1986\n\nhave been framed underArticle 309of the Constitution of India,\n\nwith the consultation of the Hon'ble High Court of Judicature for\n\nRajasthan; the Rules are clear and have been followed since 1986;\n\nand since, after amendment, they do not provide for promotion\n\nfrom the post of Stenographer Grade-I to that of the post of\n\nSenior Munsarim, the impugned action of the respondents is\n\nunsustainable in the eye of law.7.         Learned counsel for the petitioners also submitted that\n\nRule 27 of the Rules of 1986 clearly provides for inter se seniority\n\nbetween the Stenographers and the General Cadre, and in that\n\ncase, the members who have put in more years of service are\n\nsenior,   and    therefore,     in    view      of    a    clear    provision,      the\n\nStenographer Grade-II and Grade-III can only be considered if\n\nthey fulfill the conditions as laid down in Rule 27 and not\n\notherwise; that if the members of the general cadre are senior to\n\nthem (Stenographer Cadre) and having more length of total\n\nservice   as    envisaged     in     the    Rules,       even     the   inclusion    of\n\nStenographer Grade-II & Grade-III in the zone of consideration for\n\npromotion to the post of Senior Munsarim is uncalled for. Thus, as\n\nper learned counsel, such impugned action on the part of the\n\nrespondents, even to include the ineligible Stenographers Grade-II\n\n& III is contrary to the provision of Rule 27 of the Rules of 1986.(Downloaded on 24/01/2023 at 11:35:53 PM)(11 of 18)            [CW-3994/2019]8.         As regards the assailment of promotion of some of the\n\nprivate respondents herein (employees), learned counsel for the\n\npetitioners submitted that the said private respondents herein\n\nwere promoted to the post, in complete ignorance of Rules of\n\n1986, apart from the other relevant factors, like, their date of\n\nregularization, date of confirmation, total length of service, merit,\n\nseniority etc. Thus, as per learned counsel, such impugned\n\npromotion order(s) run contrary to law, and deserves to be\n\nquashed and set aside.9.         So far as the issue of reversion of some of the\n\npetitioners herein from the post of Senior Munsarim to the post\n\nearlier held by them, prior to such promotion, learned counsel for\n\nthe petitioners submitted that in regard to such reversion, one of\n\nthe grounds, as taken by the respondents, is that the same was\n\nbeing done in pursuance of the interim order(s) passed by the\n\nHon'ble Court(s). Learned counsel also submitted that in doing so,\n\nthe respondents have determined the seniority of the employees\n\nincorrectly and also assigned such seniority with effect from an\n\nincorrect date; such inaction on the part of the respondents,\n\nentailed huge financial loss, apart from loss of service prospects,\n\nto the concerned petitioners herein. Learned counsel further\n\nsubmitted that the same was being done, without affording\n\nadequate opportunity of hearing to the petitioners concerned, and\n\nthus, such impugned action on the part of the respondents, being\n\nalso violative of the principles of natural justice, is not sustainable\n\nin the eye of law.9.1        Learned counsel also submitted that such impugned\n\nreversion was made without even giving due consideration to the(Downloaded on 24/01/2023 at 11:35:53 PM)(12 of 18)            [CW-3994/2019]\n\n\n\nrelevant aspects of service jurisprudence, like whether any\n\nadverse remark was there in the service record of the concerned\n\nemployee, whether or not sufficient posts of Senior Munsarim for\n\npromotion were available etc.; the respondents did not even\n\nconducted an exercise to ensure that the interim orders of the\n\nHon'ble Courts are complied with, without making the impugned\n\nreversions in question.10.       As regards, the other ancillary issues, learned counsel\n\nfor the petitioners advanced the submissions, which are identical\n\nto the ones, already mentioned above, and hence, to avoid\n\nunwarranted repetition, the same are not being narrated in the\n\npresent judgment.11.       Learned counsel for the petitioners, to reinforce their\n\nsubmissions, placed reliance upon the following judgments:(a) State of Jharkhand Vs. Govind Singh, (2005) 10 SCC\n\n437;(b) J.P. Bansal Vs. State of Rajasthan & Anr., (2003) 5 SCC\n\n134;(c) M.S. Usmani & Ors. Vs. Union of India (UOI) & Ors.,\n\n(1995) 2 SCC 377;(d) Sarika Digambar Lokare Vs. Chief Executive Officer,\n\n2015 (4) BomCR 615.12.       On the other hand, Mr. Sandeep Shah, learned Senior\n\nCounsel and Additional Advocate General assisted by Mr. Nishant\n\nBapna, appearing on behalf of the official respondents, submitted\n\nthat no controversy can be raised with regard to the provision of\n\nsub-rule (v) of Rule 14 of the Rules of 1986, looking into the fact(Downloaded on 24/01/2023 at 11:35:53 PM)(13 of 18)                  [CW-3994/2019]\n\n\n\nthat    the    amendment            incorporated          vide        notification     dated\n\n19.07.2017 is not at all challenged by the present petitioners, and\n\ntherefore, they are not entitled to any relief from this Court, at\n\nthis belated stage.12.1          He   further        submitted        that      the      unamended        Rules\n\nspecified that the persons holding the post of UDC or higher post,\n\nincluding that of P.A. and Stenographers having the requisite\n\nlength of service, can be considered for promotion to the post of\n\nMunsarim; even prior to the amendment, the Stenographers\n\nGrade-I were entitled for and were being considered for promotion\n\nto the post of Munsarim (the post which was later on merged into\n\nthe post of Senior Munsarim).12.2          He also submitted that the amended Rules clarified that\n\nthe persons holding the post of Clerk Grade-I or a higher post,\n\nincluding that of Stenographer Grade-II and III and having\n\nrequisite period of service, shall be considered for promotion to\n\nthe post of Senior Munsarim; thus, the said amended Rules\n\nnowhere specify that Stenographer Grade-I cannot be considered\n\nfor promotion to the post of Senior Munsarim; rather it clarifies\n\nthat the persons to be promoted must not held the lower post,\n\nthan that of the Clerk Grade-I or Stenographer Grade-III, for\n\nbeing    included        within    the     zone      of    consideration         for   such\n\npromotion.12.2.1        In regard to such interpretation, for the purpose of\n\ninclusion     of   the    Stenographer           Grade-I        within     the   zone     of\n\nconsideration for promotion to the post of Senior Munsarim,\n\nlearned Senior Counsel & Additional Advocate General referred to\n\nthe expression 'includes', while submitting that the said expression(Downloaded on 24/01/2023 at 11:35:53 PM)(14 of 18)                 [CW-3994/2019]\n\n\n\nindicates   that   the   legislature       never      contemplated          that   the\n\ncategories of persons set out in the definition are exhaustive, but\n\non the other hand indicates that those categories are merely\n\nillustrative. He further submitted that as per the Stroud's Judicial\n\nDictionary Vol. 3 Page 1333, the said expression is an expression\n\nof extension and not of restrictive definition and is not equivalent\n\nto 'shall mean'.12.2.2      In this regard, he placed reliance on the judgment\n\nrendered inThe Board of Trustees of the Port of Bombay Vs.\n\nLaldee P. Ltd. & Ors., (2005) 5 Bom CR 535.12.3        As regards the other issues like impugned reversions in\n\nquestion    and    the   promotion          in    question       of   the     private\n\nrespondents, he submitted that such action on the part of the\n\nrespondents were being taken strictly in accordance with law, and\n\nwhile keeping into consideration the factors like eligibility, length\n\nof service and the relevant factors alike. Thus, as per learned\n\nSenior Counsel & Additional Advocate General, such actions taken\n\nby the respondents, neither can be said to be contrary to the\n\nRules in vogue, nor contrary to law.13.         Owing to the striking likeness between the factual\n\nsubmissions    made      by   learned       Senior       Counsel      &   Additional\n\nAdvocate General for the official respondents and the learned\n\ncounsel for the private respondents, the submissions made on\n\nbehalf of the private respondents do not require reiteration, but\n\nfor the submission of the private respondents, that the petitioners\n\nassailing the promotion of the private respondents on the post in\n\nquestion, are guilty, amongst others, of the material suppression(Downloaded on 24/01/2023 at 11:35:53 PM)(15 of 18)                  [CW-3994/2019]\n\n\n\nand concealment of relevant facts, and thus, they have not\n\napproached this Court with clean hands.13.1       Learned counsel for the private respondents placed\n\nreliance on the following judgments:(a) Ashok Kumar Sonkar Vs. Union of India, (2007) 4 SCC\n\n54;(b) Khem Singh Deora Vs. State of Rajasthan & Ors.,\n\n(2003) 1 RLR 845; and(c) Shiv Charan Sharma & Ors. Vs. State of Rajasthan &\n\nOrs., (1994) 1 WLN 594.14.        Heard learned counsel for the parties as well as\n\nperused the record of the case, alongwith the judgments cited at\n\nthe Bar.15.        This   Court,     at     the      outset,       observes      that   the\n\nrecommendations made by the Shetty Commission, were for the\n\nwelfare of the officers/officials of the staff of the Subordinate\n\nCourts, and were implemented retrospectively with effect from\n\n01.04.2003,   and    the      related       notification        was    issued    on\n\n19.07.2017, and the same was preceded by the notification dated\n\n02.09.2016 pertaining to the revised pay scale(s) for the posts,\n\namongst others, the post in question i.e. Senior Munsarim, in light\n\nof the recommendations of the Commission.15.1       Indisputably, the recommendations, being implemented\n\nwith retrospective effect i.e. 01.04.2003, enabled the staff of the\n\nSubordinate Courts to derive fruits therefrom in the form of,\n\namongst others, financial benefits etc.(Downloaded on 24/01/2023 at 11:35:53 PM)(16 of 18)               [CW-3994/2019]\n\n\n\n15.2         The amendment in the Rules, as per learned Senior\n\nCounsel and Additional Advocate General, remained unassailed till\n\ndate, and such factual submission has not been disputed on behalf\n\nof any of the petitioners herein.16.          Apart from the above, this Court is convinced with the\n\nthrust of arguments advanced by the learned Senior Counsel &\n\nAdditional    Advocate    General       that     the     expression     &   phrase\n\n"including that of Stenographer Grade-II and Stenographer\n\nGrade-III" as contained in the aforementioned amended Rule\n\n14(v) of the Rules of 1986, though exhaustive in nature, but at\n\nthe same time, the posts of Stenographer Grade-II & III are\n\nmerely   illustrative,   and     the    same       cannot        mean   clear   and\n\nunambiguous exclusion of the Stenographer Grade-I, from the\n\nzone of consideration and eligibility, for promotion to the post of\n\nSenior Munsarim; more particularly, when the unamended Rule\n\n14(v) clearly states, "including that of "Personal Assistant and\n\nStenographers".16.1         Although    the    amended          Rule     14(v)    specifies    only\n\nStenographer Grade-II & III, but since the same cannot be\n\nconstrued to clearly exclude Stenographer Grade-I, from the zone\n\nof consideration for promotion to the post of Senior Munsarim; as,\n\nif it is done, the same would result into an unwarranted flood of\n\nlitigation, more than, that is already pending before this Hon'ble\n\nCourt, on the issues in question. Moreover, while making such\n\nobservation, this Court is conscious of the legislative intent and\n\nthe prescription of service jurisprudence, which clearly lay down\n\nthat the person (Stenographer Grade-I - in the present case), who\n\nis higher in rank than Stenographer Grade-II & III, shall not be(Downloaded on 24/01/2023 at 11:35:53 PM)(17 of 18)                 [CW-3994/2019]\n\n\n\ndisentitled for promotion on a higher post of Senior Munsarim in\n\nquestion;    more    so,   while      applying       the     Rule   of    Purposive\n\nInterpretation, in regard to the amended Rule in question.\n\n16.2        Thus,    without       making        any      observation         on     the\n\ninterpretation and construction of the amended Rule 14(v) of the\n\nRules of 1986, as derived by the present petitioners, this Court\n\nobserves that the purposive interpretation, as made by the official\n\nrespondents, while undertaking the impugned exercise, cannot, in\n\nany way, be said to be against the prescriptions of law (service\n\njurisprudence, in particular).17.         As   regards     the     impugned           reversions,      this      Court\n\nobserves that as a consequence of the above conclusion arrived at\n\nby this Court, the above-numbered writ petitions, which assail the\n\nreversion of the petitioners, on count of Stenographer Grade-I\n\nhaving become eligible/included in the exercise in question, also\n\ndeserves dismissal, because once the Stenographer Grade-I either\n\nbecomes eligible or falls within the zone of consideration for\n\npromotion, to the post of Senior Munsarim, looking to their merit\n\nas per the Rules, then the consequential and automatic reversion/\n\nexclusion of the other persons concerned, would be justified.18.         Furthermore, as regards the non-consideration for\n\npromotion, promotion of the private respondents and other\n\nancillary   issues   and   assailments,          this    Court,     on    a     careful\n\nconsideration of the averments made in the petitions as well as in\n\nthe replies so filed, finds that such actions were taken by the\n\nofficials respondents, while keeping into due consideration the\n\nposition of Rules in vogue, as also the tenets of law governing the\n\nfield pertaining the issues in question; this Court also finds that(Downloaded on 24/01/2023 at 11:35:53 PM)(18 of 18)            [CW-3994/2019]\n\n\n\n                                   such actions were taken by the official respondents, after due\n\n                                   consideration of the material as available in the service record of\n\n                                   the concerned person(s), for the said purposes. Thus, in regard to\n\n                                   such assailments also, the submissions made by learned counsel\n\n                                   for the petitioners do not weigh with this Court.19.        The judgments cited by learned counsel                      for the\n\n                                   petitioners thus, do not render any assistance to the case of the\n\n                                   petitioners herein.20.        In light of the aforesaid observations, the present\n\n                                   petitions do not merit acceptance.21.        Consequently, the present petitions are dismissed. All\n\n                                   pending applications stand disposed of.(DR.PUSHPENDRA SINGH BHATI), J.SKant/-(Downloaded on 24/01/2023 at 11:35:53 PM)Powered by TCPDF (www.tcpdf.org)