Research › Browse › Judgment

Gauhati High Court · body

1994 DIGILAW 168 (GAU)

R. K. Lal v. State of Arunachal Pradesh and Ors.

1994-09-06

J.N.SARMA

body1994
This application under Article 226 of the Constitution of India has been filed to quash the impugned order promoting the respondent No. 3 (Sri KR Sati) ignoring the claim of the petitioner with a further direction to promote the petitioner. 2. The brief facts are as follows : That the petitioner was appointed as Senior Teacher in Chemistry with effect from 22.7.74 under the respondents Nos 1 and 2. The petitioner was subsequently promoted to work as Head Master from 1.1.85 and as In-charge Assistant Director of Public Instruction (Science and Mathematics) and thereafter he was allowed to work from March, 1989 as Vice Principal of Government Higher Secondary School at Seppa where from the petitioner was taken to work as Assistant Director of Public Instruction (ADPI - Materials). This was done so that the petitioner can have treatment of his ailment of cervical spondelites. It is stated that while working as Assistant Director, Public Instruction, the Director of Public Instruction, Itanagar withdrew a huge amount of Rs. 35.81 lacs from the Government Exchequer in the name of the petitioner and for that the petitioner made representation to the Accountant General who took up the matter with the departmental authorities and ultimately the matter was taken up for investigation by the State Vigilance. It is stated that with an ulterior motive to get rid of the petitioner from Itanagar, the Director of Public Instruction with then Secretary to the Government of Arunachal Pradesh, Education Department entered into a conspiracy to harass the petitioner and transfer the petitioner from the sanctioned cadre post of Assistant Direction Public Instruction, Itanagar to the Post of Assistant Principal, Bolung H.S. School which is an unsanctioned and uncadred post. The petitioner was released from the post of Assistant Director with effect from 5.12.92. The petitioner made representation against the illegal order of transfer and ultimately the order was amended by issuing an addendum on 8.1.93 requiring the petitioner to join as Principal of Bolung Higher Secondary School. The petitioner made further representation to allow him to stay at Itanagar hut that representation yielded no response and the petitioner joined as Principal. Bolung Higher Secondary School with effect from 6.2.93. No charge was handed over by the petitioner and the authority took charge and the Board of Officers were appointed to break open the locks for the purpose of assuming the charge. Bolung Higher Secondary School with effect from 6.2.93. No charge was handed over by the petitioner and the authority took charge and the Board of Officers were appointed to break open the locks for the purpose of assuming the charge. The petitioner was suspended by issuing an order dated 5.3.93 pending disciplinary proceeding. The inquiry was proceeded as against the petitioner. That on 19.7.93 the respondent No. 2 issued an order of promotion promoting the petitioner's junior, the respondent No.3. as Principal, Government Higher Secondary School, Bolung in preference to the petitioner. That order of promotion is at Annexure A to the writ application. The petitioner, earlier made representations dated 30.12.92, 15.6.93 and 18.7.93 praying for his promotion, but the respondent No. 2 promoted the respondent No. 3. It is stated that the respondent No.3 was appointed as a Senior Teacher with effect from 25.7.74 while the petitioner was appointed as such with effect from 22.7,74 and the serial number of the petitioner and respondent No.3 in the Final Seniority List happened to be 67 and 68 respectively. The seniority list of Assistant Director/District Education Officer position are 98 and 99 respectively. The seniority position in the list of Head Master/Vice Principal are 85 and 86 respectively. It is stated that the post to which the respondent No.3 is promoted is a non cadred and non sanctioned post as there is no post of the nomenclature of Assistant Principal. The petitioner claims promotion as Principal/Deputy Director of Public Instruction with effect from the actual date of promotion of the respondent No. 3. 3. An affidavit-in-opposition has been filed on behalf of the respondent Nos. 1 and 2 wherein it is stated that disciplinary proceeding is pending against the petitioner and as such question of promotion of the petitioner does not arise as this promotion shall be subject to the result of the disciplinary proceeding. An affidavit-in-reply has been filed wherein the statements made in the writ application have been reiterated. 4. I have heard Shri TC Khetri, learned Advocate for the petitioner and Sri M. Nath, learned Govt. Advocate, Arunachal Pradesh. 5. This Civil Rule can be disposed of by issuing appropriate direction to the authority as the matter is covered by a series of decisions. 4. I have heard Shri TC Khetri, learned Advocate for the petitioner and Sri M. Nath, learned Govt. Advocate, Arunachal Pradesh. 5. This Civil Rule can be disposed of by issuing appropriate direction to the authority as the matter is covered by a series of decisions. As the disciplinary proceeding is pending as against the petitioner, the question of promotion to him at this stage does not arise but as and when the disciplinary proceeding is concluded and if the petitioner is exonerated in that disciplinary proceeding, the question of promotion of the petitioner shall be taken up and the petitioner shall be promoted to the post. 6. This direction I am giving on the basis of the decision reported in AIR 1991 SC 2010 (Union of India vs. KV Jankiraman) wherein the Supreme Court pointed out that when a charge-memo in disciplinary proceedings or a charge-sheet in a criminal prosecution is issued to the employee it can be said that the departmental proceedings/criminal prosecution is initiated against the employee. In such a case in case of promotion sealed cover procedure is to be resorted to. But in the instant case the sealed cover procedure was not adopted by the authority but that shall not cause harm to the petitioner inasmuch as I have directed above that as and when the disciplinary proceeding comes to an end and if the petitioner is exonerated the authority shall promote the petitioner from the date when his junior was promoted and the petitioner further shall be entitled to all the benefits of promotion from the date when his junior was promoted. This disposes of the writ application.