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2000 DIGILAW 631 (PAT)

Surendra Kumar Dubey v. State Of Bihar

2000-04-25

AFTAB ALAM, RAVI S.DHAVAN

body2000
Judgment Ravi S.Dhavan and Aftab Alam JJ. 1. This writ petition was filed on 26.10.1986. At that time the sole petitioner had sought quashing of a notification, dated 4.10.1986 (Annexure 1) issued by the Joint Secretary to the Government in the Department of Home (Police). By that notification the petitioner along with a few other persons was reverted to his substantive post of Sergeant Major (Reserve Inspector) from the post of Deputy Superintendent of Police on which he was earlier put under an adhoc arrangement. He also prayed for a number of allied reliefs. 2. During the past more than thirteen years while this case remained ponding before this court, developments took place as a result of which this case now survives on a limited issue regarding denial of promotion to the petitioner to the post of Deputy Superintendent of Police in the year, 1981. 3. According to the petitioner at that time his name was not sent up for consideration, though the names of persons junior to him were sent up for being considered for promotion. 4. Answering the petitioners allegation the respondent authorities in the counter affidavit originally filed on their behalf took the stand that in June, 1981 the Director Generals Board found the petitioner unfit for promotion due to his unsatisfactory service record and pendency of proceedings against him. It appears that one of the materials that rendered the petitioners service record unsatisfactory was an adverse entry relating to the period 16.8.1980 to 31.3.1981. 5. ft was contended on behalf of the petitioner that the adverse remarks for the period 16.8.1980 to 31.3.1981 were never communicated to him and he first came to learn about the adverse remarks on 22.8.1986. In this regard it was further submitted on behalf of the petitioner that the Director Generals Board committed material irregularity in denying promotion to the petitioner (in June 1981) by taking into consideration an adverse entry which was not communicated to the petitioner. 6. From the order sheet of this case it appears that it was heard in detail by a bench comprising Mr. Justice B.P. Singh (As His Lordship then was) and Justice Smt. Indu Prabha Singh and on 24.6.1998 that bench recorded the following order : "We have heard counsel for the parties for some time. 6. From the order sheet of this case it appears that it was heard in detail by a bench comprising Mr. Justice B.P. Singh (As His Lordship then was) and Justice Smt. Indu Prabha Singh and on 24.6.1998 that bench recorded the following order : "We have heard counsel for the parties for some time. It is the case of the petitioner that in the year 1981 when the question of promotion to the post of Dy. S.P. came up for consideration, the name of the petitioner was not sent up for consideration, though the names of persons junior to him were sent up and, therefore, promotion were granted without considering the case of the petitioner. In paragraph 6 (c) of the counter affidavit filed on behalf of the State it is stated that in the month of June 1981 the D. G.s Board found him unfit for promotion due to unsatisfactory records and pending proceedings against him." The order further went on to record as follows : "The other question which arises is whether the petitioner was found unfit for promotion only on the ground of adverse entries made against him which were not communicated to him. It is the case of the State that adverse entry relating to the period 16.8.1980 to 31.3.81 was communicated to the petitioner vide Memo No. 1633 dated 7.9.1981. The receipt of the aforesaid communication is denied by the petitioner. The State will produce the material to show that the said adverse entry was actually communicated to the petitioner and that he had received the same. Other two adverse entries were admittedly communicated to the petitioner on 22.8.86." (emphasis added) And further : "The question which arises for consideration is whether without communicating the adverse entries to the petitioner the same could be relied upon for not granting him promotion to the rank of Dy. S.P. which also adversely affected the seniority of the petitioner. The second question which arises for consideration is whether the petitioner was at all considered for being granted promotion. The petitioner contends that without communicating the adverse remarks, even if his case was considered, he could not have been found unfit for promotion solely on the ground that there were adverse remarks, and for this he relied on the decision reported in A.I.R. 1987 S.C. 948." 7. The petitioner contends that without communicating the adverse remarks, even if his case was considered, he could not have been found unfit for promotion solely on the ground that there were adverse remarks, and for this he relied on the decision reported in A.I.R. 1987 S.C. 948." 7. The next order passed by the same bench which is dated 8.7.1998 is as follows : "As prayed for by G.P.I. put up this matter on 15th of July, 1998 to enable him to produce the necessary records. It is made clear that if no record is produced, the court will draw an adverse inference against the State." (emphasis added) 8. Thereafter, it appears that, that bench being no longer available the learned Judges by order, dated 27.8.1998 directed that the case may not be treated as part heard and may be placed before any other appropriate bench and thus it finally came up for hearing before this bench. 9. Following the orders as quoted above, a counter affidavit has been filed on behalf of the Director General of Police, Bihar. In that counter affidavit no material has been brought on record to show that the adverse entry in question was actually communicated to the petitioner and that he had received the same. All that is said in that regard in para 9 of the counter affidavit is as follows : "That above two old documents could not be traced in the office even after deligent search. However the records available in the office indicate that Superintendent of Police, Vaishali had intimated this office that he had communicated the adverse confidential remarks for the period 16.8.1980 to 31.3.1981 vide his memo no. 1633 dated 7.9.1981." 10. Although it is not an annexure to the affidavit, Mr. J.D. Singh, learned Govt. Pleader No. I produced before us a letter, dated 13.9.1986 sent by the Supdt. of Police, Saran to the Dy. Inspector General (Administration), Bihar, Patna. In that letter it is simply stated that the adverse confidential remarks pertaining to the period 1.4.1980 to 31.3.1981 were sent to Shri S. K. Dubey, (the present petitioner) alongwith his memo no. 1633/confidential, dated 7.9.1981. The aforesaid confidential letter bearing memo no. 1633, dated 7.9.1981 is neither brought on record nor produced before us nor is there any material to show that, that letter containing the adverse entries was duly received by the petitioner. 11. 1633/confidential, dated 7.9.1981. The aforesaid confidential letter bearing memo no. 1633, dated 7.9.1981 is neither brought on record nor produced before us nor is there any material to show that, that letter containing the adverse entries was duly received by the petitioner. 11. It may be noted here that from the order, dated 24.6.1998 recorded in this case it is evident that the court was aware of the respondents stand that the adverse entry in question was communicated to the petitioner by memo no. 1633, dated 7.9.1981 the receipt of which was denied by the petitioner and it was in those circumstances that the respondents were asked to produce materials showing that the adverse entry in question was actually communicated to the petitioner and that he had received the same. 12. In the next order dated 8.7.1998 it was made clear that in case no record was produced, the court will draw adverse inference against the State. 13. As noted above, the respondents have failed to produce any material to show that the adverse remarks in question were actually communicated to the petitioner and that he had received them and the court is, thus, left with no option but to proceed on the basis that the adverse remarks relating to the period 16.8.1980 to 31.3.1981 were in fact not communicated to the petitioner at the material time and those came to his knowledge for the first time on 22.8.1986 (as stated in the amendment petition filed on his behalf). Consequently, it must also be held that the Director Generals Board while considering the case of the petitioner for promotion in June 1981 committed an error in taking into consideration the adverse entry for the period 16.8.1980 to 31.3.1981. It, therefore, follows that a direction be issued to the respondent authorities to reconsider the case of the petitioner for promotion with reference to the position as it stood in the year, 1981, excluding from consideration the adverse entry made in the petitioners service book for the period 16.8.1980 to 31.3.1981. As the petitioner is to retire shortly, the Director Generals Board should consider his case without any delay and if necessary by specially convening it for the purpose. As the petitioner is to retire shortly, the Director Generals Board should consider his case without any delay and if necessary by specially convening it for the purpose. in case on reconsideration the petitioner is found suitable for promotion in the year 1981, he will also be entitled to all consequential benefits including seniority for which necessary orders will be issued without any delay. 14. In the result, this writ petition is allowed to the extent indicated above but with no order as to costs.