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2003 DIGILAW 422 (ALL)

DINESH KUMAR SHUKLA v. STATE OF U. P.

2003-02-26

M.KATJU, PRAKASH KRISHNA

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M. KATJU, J. ( 1 ) THIS writ petition has been filed for a mandamus directing the respondents to conclude the proceedings against the petitioner and if the petitioner is entitled for promotion, he may be promoted. ( 2 ) HEARD learned counsel for the parties. ( 3 ) IN this case on 16. 5. 2002, learned standing counsel was granted one months time to file counter-affidavit but no counter-affidavit has been filed so far. Hence, we are treating the allegations in the petition to be correct. ( 4 ) THE petitioner was selected by the U. P. Public Service Commission and appointed in the year 1965. In the year 1974, he was promoted as Senior Auditor and in the year 1983 as District Audit officer and in the year 1987 as Assistant Director and in the year 1996 as Dy. Director. Being the senior most in the department on the retirement of the then Director in the year 1998, the petitioner was made Incharge Director. The petitioner has alleged that his service has been throughout good. However, it is alleged that one D. B. Singh, who was Financial Controller in police Headquarter, Allahabad was posted as Director by transfer on 5. 2. 2000. ( 5 ) IT is alleged in paragraph 8 of the petition that on the post of Director, 3 persons can be appointed viz. Joint Director of the Department, Joint and Deputy Chief Audit Officer, co-operative and Panchayat Department and thirdly, from amongst the officers of account service having senior scale. It is alleged in paragraph 9 of the petition that though the petitioner was available for promotion and came within the first category, the respondents have chosen to appoint Sri D. B. Singh who was in the third category. In paragraph 12 of the petition, it is alleged that in February, 2000, the petitioner was issued a charge-sheet which related to the year 1999 and he was accused of violating Section 3 (6) of the U. P. Public Service (Scheduled Caste, scheduled Tribes and other Backward Classes) Act, 1994 (hereinafter referred to) the Act as. The charge against him was that 2 scheduled caste and 4 other backward class candidates who were to be treated as general candidates under Section 3 (6) of the Act were treated as reserved candidates, which resulted in appointment of 6 more general candidates. The charge against him was that 2 scheduled caste and 4 other backward class candidates who were to be treated as general candidates under Section 3 (6) of the Act were treated as reserved candidates, which resulted in appointment of 6 more general candidates. True copy of the charge-sheet is Annexure-1 to the petition. Out of the 6 appointees, the present Director served only 5 clerks with termination orders on the ground of violation of Section 3 (6) of the Act. The 6 persons filed writ petitions in this Court and the termination orders have been stayed and the petition is pending. ( 6 ) THE petitioner filed a reply to the charge-sheet, copy of which is Annexure-2 to the writ petition. Thereafter an enquiry was held and a true copy of the enquiry report dated 26. 2. 2001 is annexure-3 to the petition. However, no final decision has been taken as yet oh the said enquiry report. ( 7 ) IN March, 2001 the Departmental Promotion Committee met under the Chairmanship of the chief Secretary for regular selection of Director. Sealed cover procedure was adopted in the case of the petitioner. It is alleged in paragraphs 20 and 21 of the petition that the enquiry could have been completed in a short period but that was not done and instead the petitioner was served with a show cause notice dated 30. 8. 2001, copy of which is Annexure-4 to the petition. True copy of the petitioners reply is Annexure-5 to the petition. Since the petitioner was retiring on 31. 1. 2002 and the respondents were not taking any decision in the matter, the petitioner filed Writ Petition no. 35817 of 2001 which was disposed of by this Court by order dated 7. 11. 2001 copy of which is Annexure-6 to the petition directing the disciplinary authority to pass final orders regarding the enquiry within a month from the date of production of a copy of the order. Despite the order of this Court, the respondents took no action and hence, the petitioner filed a contempt petition, which is pending. ( 8 ) IN the meantime, the age of retirement of U. P. Government employees was increased from 58 years to 60 years and now the petitioner will be retiring in January, 2004. Despite the order of this Court, the respondents took no action and hence, the petitioner filed a contempt petition, which is pending. ( 8 ) IN the meantime, the age of retirement of U. P. Government employees was increased from 58 years to 60 years and now the petitioner will be retiring in January, 2004. ( 9 ) A perusal of the enquiry reports shows that although the petitioner was held to be guilty of violation of Section 3 (6) of the Act, the enquiry officer was of the opinion that the petitioners action does not appear to be male fide. The enquiry officer observed in his report that had there been deliberate violation of Section 3 (6) of the Act, the posts under the reserved category would not have been carried forward. In the Committee the members were not only the petitioner but also members belonging to the Scheduled Caste and Other Backward Classes category. Hence, the enquiry officer recommended that the petitioner should be given the benefit of Section 5 (1)and Section 11 and should be given a warning. However, it appears that the disciplinary authority has by order dated 20. 8. 2001, copy of which is Annexure-4 to the petition, disagreed with the finding of the enquiry officer that the petitioner did not deliberately commit any offence. This order dated 30. 8. 2001 was a show cause notice and it was expected that after receiving the petitioners reply dated 10. 9. 2001, copy of which is Annexure-5 to the petition, the respondents would have passed a final order regarding the enquiry, particularly after the High court judgment dated 7. 11. 2001 vide Annexure-6 to the petition. However, as yet no final orders have been passed by the respondents and the petitioner unnecessarily suffering. ( 10 ) WE would have directed the disciplinary authority to pass final order on the enquiry but it appears that no useful purpose would be served because we have already passed such an order on 7. 11. 2001 vide Annexure-6 to the petition by which we directed the disciplinary authority to pass final order within a month. However, no order has yet been passed by the respondents. Another direction to the same effect by us would, therefore, be an exercise in futility. 11. 2001 vide Annexure-6 to the petition by which we directed the disciplinary authority to pass final order within a month. However, no order has yet been passed by the respondents. Another direction to the same effect by us would, therefore, be an exercise in futility. ( 11 ) IN Brij Nandan Kansal v. State of U. P. , 1988 (2) AWC 890 (SC) : 1988 (Supp) SCC 761, the supreme Court held that while proposing to take an adverse decision, the Government must record the reasons and communicate it to the affected person if it proposes to reject the findings of the enquiry officer. In Yoginath Bagde v. State of Maharashtra, 1999 SCC 739 , the Supreme court held that if the disciplinary authority does not agree with the findings of the enquiry officer then before forming its final opinion, it has to convey to the charged employee its tentative reasons for disagreeing with the findings. ( 12 ) IN the present case, we are of the opinion that the respondents have acted wholly arbitrarily. Despite the Judgment of this Court dated 7. 11. 2001, they have not finalised the enquiry against the petitioner. It is well-settled by the decision of the Supreme Court in Maneka Gandhi v. Union of India, AIR 1978 SC 597 , that arbitrariness violates Article 14 of the Constitution. The delay in finalising the enquiry is clear arbitrariness on the part of the respondents. ( 13 ) IN the circumstances, we quash the entire proceedings against the petitioner pursuant to the charge-sheet, copy of which is Annexure-1 to the petition and direct the respondents to consider the petitioner for regular promotion as Director in the department concerned in accordance with law, within a month from the date of production of a certified copy of this order before the authority concerned. The petition is allowed.