Lalit Kumar Agrawal v. State of Rajasthan — 1994 DIGILAW 944 (RAJ)

JUDGMENT 1. - The petitioner has filed the instant writ petition seeking a relief to issue a direction to open the sealed envelope and to give effect to the recommendation of Departmental Promotion Committee by promoting the petitioner as Executive Engineer against the quota of the year 1987-88 with all consequential benefits. If the said relief is not possible to grant to the petitioner then in alternative the respondents may be directed to pay him salary and other emoluments of the post of Executive Engineer for the period he was made to officiate on the post of Executive Engineer. 2. The aforesaid relief is being sought by the petitioner on the ground inter-alia that only reason for denying the promotion to the petitioner to the post of Executive Engineer despite he being selected by DPC was that a departmental enquiry was pending against him. According to the petitioner that enquiry has come to an end, therefore, this reason does not survive any more, therefore, promotion cannot be denied to the petitioner by resorting to sealed envelope procedure. 3. It is further alleged that the denial of promotion on account of pendency of disciplinary enquiry or imposition of minor punishment amounts to punishing the petitioner twice for his delinquency. According to the petitioner the act of denial of promotion to the petitioner amount double jeopardy once by withholding annual grade increments and second time by withholding his promotion on the post of Executive Engineer. 4. It is also alleged that against Jeneshwar Das Agrawal although an enquiry under Rule 16 of the CCA Rules was pending but yet he was promoted to a higher post. While in the present case against the petitioner initially disciplinary enquiry was pending under Rule 16 of the CCA Rules but later on it was converted into Rule 17 of the said Rules. Therefore, according to the petitioner if department can grant promotion to Jeneshwar Das Agrawal during the pendency of disciplinary enquiry against him under Rule 16 of the CCA Rules whereas in the said enquiry imposition of major penalty was contemplated while in the present proceeding under Rule 17 of the CCA Rules only a minor penalty can be imposed which has actually been imposed by withholding annual graded increment. Lastly, it is stated that since the enquiry has been concluded, the petitioner is entitled to have the sealed envelope opened and the recommendation of DPC is liable to be given effect promoting him for the post of Assistant Engineer to the post of Executive Engineer. 5. In alternative it is also alleged that the petitioner having been made to discharge the duties on the higher post of Executive Engineer vide Anx.1 dated 2.8.1987, vide Anx.2 dated 29.4.1988, vide Anx.3 dated 21.12.1989 and vide Anx.4 dated 29.12.1989 hence he is entitled to be paid the salary and emoluments of the post of Executive Engineer for the period he functioned and discharged the duties of Executive Engineer. 6. After service of notice the respondent Nos.1 and 2 have filed a joint return stating that in view of pending departmental enquiry against the petitioner the result of selection of the petitioner for the year 1987-88 was kept under sealed envelope by DPC so the petitioner was not allowed to work as an Executive Engineer and after the decision of disciplinary enquiry the petitioner was penalised by stoppage of one grade increment without cummulative effect. After imposition of aforesaid minor punishment the DPC has reviewed its earlier order on 9.8.1991 and during the review the DPC found that the petitioner was not suitable for the post of Executive Engineer against promotion quota of the year 1987-88. It is further stated in reply filed on behalf of the respondent Nos.1 and 2 that on the recommendation of DPC the petitioner was promoted for the post of Executive Engineer on seniority-cum-merit basis in the year 1988-89. According to the reply filed to the writ petition the petitioner was promoted on 17.9.1991 on the post of Executive Engineer. 7. The respondents have denied the allegations made in para E/3(a) of the ground taken by the petitioner stating therein that inadvertent mistake with regard to Shri Jeneshwar Das Agrawal who was wrongly selected/promoted has now been rectified by review done by DPC on 16.4.1991 and the said DPC recommended to keep the result under sealed cover of promotion of Shri Jeneshwar Das Agrawal to the post of Assistant Engineer in promotion quota of 1988-89. Thus the promotion which has been accorded inadvertently later on rectified and the Government is following the same principle wherein a disciplinary enquiry is pending against an incumbent to keep the result in sealed envelope as has been done in the case of the petitioner. 8. After service of reply upon the petitioner, the petitioner has filed a rejoinder disputing the averments made in the reply filed by the respondents. A close scrutiny of the rejoinder reveals that the points taken in the writ petition are reiterated subject to further allegation indicating of some more names against whom disciplinary enquiries were pending but yet they were promoted by the department. 9. I have heard learned counsel for the petitioner Shri M.Mridul as well as learned counsel for the respondents Shri Prakash Tatia at length and critically gone through the material available on record. 10. The main thrust of the arguments of the learned counsel for the petitioner are firstly that the result of the petitioner's selection by DPC for the promotion on the post of Executive Engineer which was kept in sealed envelope during the pendency of disciplinary enquiry against the petitioner ought to have been declared after conclusion of disciplinary enquiry. According to the learned counsel for the petitioner only a minor punishment was given to him which was not sufficient to withhold the declaration of result of petitioner's promotion on the post of Executive Engineer. Secondly, the denial of the promotion to the petitioner on the post of Executive Engineer on the ground of minor punishment of withholding annual grade increment amounts to double jeopardy to the petitioner inasmuch as once in the disciplinary enquiry his annual grade increment was withheld and second time on the same ground petitioner's promotion on the post of Executive Engineer was also denied. Thirdly, the learned counsel for the petitioner submitted that the denial of promotion to the petitioner is violative of Articles 14 and 16 of the Constitution of India which amount hostile discrimination between two similarly circumstanced incumbents who were considered for promotion on the post of Executive Engineer on the basis of material available upto 1987-88 and in case of the petitioner the DPC was not justified to withhold his promotion on the basis of minor punishment of withholding annual grade increment in disciplinary enquiry on 22.2.1991 vide Anx.11 to the writ petition. It is also urged before me by the learned counsel for the petitioner that minor punishment awarded to the petitioner on 22.2.1991 vide Anx.11 to the writ petition can be taken into account by DPC in his future promotion but DPC has no justification to withhold his promotion on the post of Executive Engineer on the basis if subsequent events of minor punishment awarded to him in disciplinary enquiry on 22.2.1991. Lastly it is urged that the petitioner is entitled to the salary and other emoluments of Executive Engineer for the period he was officiating as Executive Engineer vide Anx.4 to the writ petition. 11. In support of his aforesaid contention the learned counsel for the petitioner placed reliance on a decision rendered by apex court in the case of Union of India v. KV Jankiraman, reported in 1991(3) SCT 317 (SC) : AIR 1991 SC 2010 , WLN (UC) 1981, 159 rendered by the learned Single Judge of this Court in the case of Dalip Singh v. State of Raj. & Ors., 1975(1) SLR 5, a decision rendered by Hon'ble Supreme Court in the case of Parvez Qadir v. Union of India, AIR 1993 SC, 1165 in the case of State of MP v. Syed Naseem Zahir & Ors . and a decision rendered by Hon'ble Supreme Court in the case of Smt. P. Grover v. State of Haryana & Ors. reported in AIR 1983 SC 1060 . 12. Learned counsel for the respondents refuted the aforesaid arguments advanced on behalf of the petitioner and urged before me that after imposition of minor punishment the DPC met and opened the sealed cover and reviewed the promotion of the petitioner from the post of Assistant Engineer to the post of Executive Engineer 1987-88 but in view of the minor punishment imposed on the petitioner did not find him fit to give promotion to the petitioner on the post of Executive Engineer. According to the learned counsel for the respondents withholding of promotion of the petitioner as a result of imposition of minor penalty on him does not attract the rule of double jeopardy as according to him promotion being neither a vested right of the petitioner nor denial of promotion being punishment. According to the learned counsel for the respondents withholding of promotion of the petitioner as a result of imposition of minor penalty on him does not attract the rule of double jeopardy as according to him promotion being neither a vested right of the petitioner nor denial of promotion being punishment. According to the learned counsel for the respondents denial of promotion as a result of minor penalty not tantamount to withholding of promotion as a major penalty under Rule 14 or under Rule 17 therefore, the principle of double jeopardy is not attracted in the present case. 13. In support of the aforesaid contention the learned counsel for the respondents placed reliance in the case of Suraj Mal Soni v. State of Raj. rendered by Full Bench of this Court reported in WLC 1992 (2) 1. 14. I have given my thoughtful consideration to the rival contentions raised at the bar and I would like to deal with the points argued by the learned counsel for the petitioner in seriatim. 15. It is undisputed that the services as well as the promotion of the petitioner is governed by the Rajasthan Service of Engineer and Research Officers (Irrigation Branch) Rules, 1954 and as regards disciplinary action, the Rajasthan Civil Service (Classification, Control and Appeal) Rules, 1958 are applicable. It is further undisputed before me that when DPC met to consider the promotion of the petitioner on the post of Executive Engineer alongwith others, a disciplinary enquiry was pending against the petitioner. Since a disciplinary enquiry was pending against the petitioner, therefore, the result of promotion of the petitioner on the post of Executive Engineer was kept in sealed envelope by the DPC. 16. The argument of the learned counsel for the petitioner is that the result of promotion of the petitioner from the post of Assistant Engineer to the post of Executive Engineer which was kept in sealed envelope during the pendency of disciplinary enquiry against him ought to have been opened by the DPC giving him promotion on the post of Executive Engineer since only a minor punishment under Rule 17 of the CCA Rules was imposed on him. The aforesaid contention of the learned counsel for the petitioner is not acceptable to me in view of the decision rendered by Hon'ble Supreme Court in the case of Union of India v. KV Jankiraman (supra). The aforesaid contention of the learned counsel for the petitioner is not acceptable to me in view of the decision rendered by Hon'ble Supreme Court in the case of Union of India v. KV Jankiraman (supra). The ratio of the aforesaid decision rendered by their Lordships of the Hon'ble Supreme Court find place at para No.6 of the said judgment where it is clearly ruled by their lordships that the sealed cover procedure is to be resorted to only after charge memo/charge sheet is issued. The relevant paragraph 6 of their Lordships judgment is quoted below:- ''On the first question, viz., as to when for the purposes of the sealed cover procedure the disciplinary/criminal proceedings can be said to have commenced, the Full Bench of the Tribunal has held that it is only when a charge-memo in a disciplinary proceedings or a charge-sheet in a criminal prosecution is issued to the employee that it can be said that the departmental proceedings/criminal prosecution is initiated against the employee. The sealed cover procedure is to be resorted to only after the charge-memo/charge-sheet is issued. The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure." 17. In the present case, as stated earlier it is not disputed by the learned counsel for the petitioner that on the date when the DPC met to consider the promotion of the petitioner from the post of Assistant Engineer to the post of Executive Engineer for the year 1987-88, a charge-sheet was already served to him and disciplinary enquiry was pending against him, therefore, in my humble opinion the DPC was perfectly justified to keep the result of the petitioner in sealed envelope. In my considered opinion there is object behind keeping the result of promotion of the petitioner in sealed cover containing recommendation of DPC in respect of delinquent be not open till the departmental proceedings against him are concluded. In case he is completely exonerated the ''sealed cover" shall be opened and if the recommendation is in his favour, he shall be notionally promoted with effect from the date when a person junior to him was promoted to the post of Executive Engineer. In case he is completely exonerated the ''sealed cover" shall be opened and if the recommendation is in his favour, he shall be notionally promoted with effect from the date when a person junior to him was promoted to the post of Executive Engineer. Only in that event he shall be entitled to all consequential benefits including back wages but if any punishment is imposed including minor punishment then in such event the action would be taken in accordance with the guidelines as laid down by their Lordships in Union of India v. Jankiraman's case (supra). 18. It has come in the reply filed by the respondent in para A/7 that after delinquent was punished in disciplinary proceedings by stoppage of one grade increment without cumulative effect the DPC reviewed its earlier decision for promotion of the petitioner for the year 1987-88 and on 9.8.1991 found that the petitioner was not suitable for the post of Executive Engineer against the year 1987-88. I am fully satisfied that the DPC has not committed any error in taking into account the minor penalty imposed on the petitioner and refusal of DPC not to promote the petitioner on the post of Executive Engineer for the year 1987-88 is eminently just and proper. As a matter of fact the petitioner has no valid right to be promoted by DPC. Only after conclusion of disciplinary enquiry his sealed envelope was to be opened by the DPC and the petitioner was entitled to be considered for promotion on the post of Executive Engineer for the year 1987-88 in the light of minor penalty imposed on him, DPC has considered his name in the light of minor penalty and did not find him suitable for promotion on the post of Executive Engineer which is perfectly legal and valid. I am fortified in taking the aforesaid view by a recent decision rendered by the apex court in the case of State of MP v. Syed Naseem Zahir & Ors. (supra). 19. I am fortified in taking the aforesaid view by a recent decision rendered by the apex court in the case of State of MP v. Syed Naseem Zahir & Ors. (supra). 19. As regards the second argument advanced on behalf of the petitioner to the effect that denial of promotion to the petitioner on the post of Executive Engineer on the ground of minor punishment of withholding annual grade increment amount double jeopardy to the petitioner is also not acceptable to me in view of the decision rendered by the Full Bench of this Court in Suraj Mal Soni's case (supra). As a matter of fact the question argued before me was advanced before the Full Bench of this Court in the aforesaid case and after taking into account all the relevant facts into consideration this Court held in the light of the Rules 14 and 17 of the Rajasthan Civil Service (Classification, Control & Appeal) Rules, 1958. In the said judgment it is held that in matters of promotion, service record of prospective promotee has to be considered including all penalties major or minor imposed on Government servant in order to have an over all assessment of his fitness but withholding of promotion as a result thereof does not attract rule of double jeopardy for promotion inasmuch as promotion being neither vested right nor denial of promotion being punishment. According to the Full Bench decision of this Court, denial of promotion as a result of minor penalty not tantamount to withholding of promotion as major of penalty under rule 14. Thus no question of double jeopardy can be raised by learned counsel for the petitioner in the present case. In my considered opinion the aforesaid point is squarely covered by the Full Bench decision of this Court rendered in Suraj Mal Soni's case (supra). 20. Thus no question of double jeopardy can be raised by learned counsel for the petitioner in the present case. In my considered opinion the aforesaid point is squarely covered by the Full Bench decision of this Court rendered in Suraj Mal Soni's case (supra). 20. The third argument advanced on behalf of the petitioner by learned counsel Shri M. Mridul is to be examined as to whether the denial of promotion to the petitioner is violative to Articles 14 and 16 of the Constitution of India inasmuch as it amount hostile discrimination since similarly circumstanced incumbents who were considered for promotion from the post of Assistant Engineer to the post of Executive Engineer for the year 1987-88 material uptil date was looked into by DPC in case of others but in case of the petitioner the subsequent imposition of minor punishment imposed after conclusion of disciplinary enquiry on 22.2.1991 vide Anx.11 was also taken into account. The aforesaid argument is fallacious as the petitioner cannot said to be similarly circumstanced with his other competitions whose names were considered for promotion from the post of Assistant Engineer to the post of Executive Engineer for the year 1987-88 as against other incumbents who were considered by DPC for promotion no disciplinary proceedings were pending against them. While against the petitioner a disciplinary proceeding was pending on the date when the DPC met to consider the promotion of the petitioner along with other candidates for the year 1987-88. In such a situation in my humble opinion the other incumbents who were considered by the DPC for promotion on the post of Executive Engineer for the year 1987-88 constitute a different class as against them no disciplinary enquiries were pending on the date of consideration. While against the petitioner a disciplinary enquiry was pending. The question of hostile discrimination arises if any hostile discrimination is meted out between two similarly circumstanced incumbents. In the case of the petitioner the basic and fundamental element of similarly circumstanced is missing, therefore, he cannot be permitted to say that he has been meted out with hostile discrimination which amounts violation of Articles 14 and 16 of the Constitution of India. Identical plea of discrimination was taken in case of Union of India v. KV Jankiraman (supra) before the apex court but the same was negatived in para 8 of the said decision. 21. Identical plea of discrimination was taken in case of Union of India v. KV Jankiraman (supra) before the apex court but the same was negatived in para 8 of the said decision. 21. In this regard the second limb of the argument of the learned counsel for the petitioner is that the imposition of minor punishment given after conclusion of disciplinary enquiry on 22.2.1991 vide Anx.11 to the writ petition could not be taken into account by the DPC but it may be a ground to be taken into account for his future promotion. The aforesaid argument of the learned counsel for the petitioner runs counter to the ratio decidendi laid down by their Lordships of the Hon'ble Supreme Court in the case of State of MP v. Syed Naseem Zahir & Ors. (supra) which is quoted below:- ''Keeping in view the facts of this case we are of the view that the ''sealed cover" containing recommendations of the DPC in respect of respondent Syed be not opened till the departmental proceedings against him are concluded. As mentioned above the enquiry report has already been received by Syed and it is a matter of days before the disciplinary proceedings would come to an end. In case he is completely exonerated, the ''sealed cover" shall be opened and if the recommendation is in his favour, he shall be notionally promoted with effect from the date when a person junior to him was promoted to the post of Chief Engineer. In that event, he shall be entitled to all consequential benefits including back wages. In case, respondent Syed Naseem Zahir is punished in the proceedings, then action would be taken in accordance with the guidelines as laid down by this Court in Jankiraman's case ( AIR 1991 SC 2010 )." 22. According to the ratio of the aforesaid decision the relief which the petitioner is seeking by advancing the said argument can be made available if the petitioner would have been completely exonerated, then of course DPC has no option except to open the ''sealed cover" and if the recommendation would have been found in his favour by the DPC, the petitioner would have been notionally promoted with effect from the date when a person junior to him was promoted to the post of Executive Engineer. Only in that event the petitioner would have been entitled to claim all consequential benefits including back wages. But in the present case after conclusion of disciplinary enquiry a minor penalty has been imposed upon the petitioner, therefore, he cannot be permitted to claim a benefit which he would have been entitled after being completely exonerated after conclusion of disciplinary enquiry. 23. In my humble opinion the aforesaid decision rendered by the apex court is to be taken to be the law of the land within the meaning of Article 141 of the Constitution of India according to which law declared by the Hon'ble Supreme Court shall be binding on all Courts within the territory of India. Not only this, under Article 144 of the Constitution of India all authorities civil and judicial including the DPC in the present case are under legal obligation to act in the aid of the Hon'ble Supreme Court pronouncement in the case of State of MP v. Syed Naseem Zahir (supra) and in case of Union of India v. KV Jankiraman (supra) and an argument contrary to it is not acceptable to me and hereby repelled. 24. The last submission put forth before me by the learned counsel for the petitioner is that the petitioner is entitled to the salary of Executive Engineer for the period he was officiating as Executive Engineer vide Anx.1 to Anx.4. In support of his aforesaid contention the learned counsel for the petitioner placed reliance on a decision rendered in the case of Smt. P. Grover (supra). 25. In my humble opinion the aforesaid argument advanced by the learned counsel for the petitioner has substance. A careful scrutiny of Anx.1 to Anx.4 reveal that the petitioner from time to time was directed by an administrative fiat to officiate on the post of Executive Engineer and he practically worked and discharged the functions of Executive Engineer and a reply filed to the aforesaid averment made in the writ petition on behalf of the respondents to the effect that the petitioner was not allowed to work as Executive Engineer after the decision of disciplinary enquiry cannot said to be a reply to the averments made in the writ petition. The respondents have not denied the correctness of Anx.1 to Anx.4, therefore, all these annexures have to be admitted to be true and once aforesaid annexures are taken to be true, it is to be accepted that the petitioner worked and discharged the duties of Executive Engineer for the aforesaid period. The only question is as to whether the petitioner is entitled for the salary of the post of Executive Engineer for the period he has been made to officiate and discharge the duties of Executive Engineer or not. 26. In my considered opinion, Articles 21 read with Articles 39(c), 41 and 43 of the Constitution of India aimed at establishing a socialist democratic welfare state as envisaged by the preamble which would endeavour to standard of living an economical security to the working people under the State including others who are not in State service. My attention has not been invited to any service Rule applicable to the petitioner which provides that the promotion on an acting basis could not entitled the officer promoted to the pay of the post. In the absence on any Rule justifying such refusal to pay to the petitioner for the period on which he was made to discharge the duties of Executive Engineer the respondents are under legal obligation to pay the salary of Executive Engineer to the petitioner for the period he was made to discharge the function of Executive Engineer by administrative fiats vide Anx.4 to the writ petition. 27. The learned counsel for the petitioner in support of his contention has also invited my attention to the decision rendered by the learned Single Judge in the case of Dalip Singhj (supra) and in the case of Parvez Qadir (supra) but the facts of those cases are distinguishable and has no application in the present set of circumstances of the present case, therefore, no thread bare discussion is called. 28. 28. In the result of the aforementioned discussion, the instant writ petition seeking the relief to open the ''sealed envelope" and given effect to the recommendation of DPC by appointing the petitioner as Executive Engineer against the quota of the year 1987-88 and further to give all consequential benefits to the petitioner is hereby dismissed but the alternative relief sought by the petitioner for a direction to the respondents to pay the salary of Executive Engineer to the petitioner for the period he was made to officiate as Executive Engineer by administrative fiat vide Anx.1 to Anx. 4 to the writ petition is allowed and the respondents are hereby directed to pay the salary to the petitioner for the period the petitioner officiated on the post of Executive Engineer vide Anx.1 to Anx.4 to the writ petition. In order to avoid legal complications it is made clear that the period of officiation on the post of Executive Engineer by the petitioner will not be counted in computing his seniority and except the payment of salary for the period he was made to officiate as Executive Engineer he will not be entitled to any other consequential benefits.Both the parties are directed to bear their own costs. *******