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Madhya Pradesh High Court · body

2004 DIGILAW 937 (MP)

Balkrishna Verma v. State of M. P.

2004-11-24

A.K.SHRIVASTAVA

body2004
Judgment ( 1. ) BY this petition the petitioner is claiming seniority over respondent Nos. 4 to 13 as well as promotion on the post of Accounts Officer w. e. f. the date when private respondents were promoted. ( 2. ) NO exhaustive statements of facts are necessary for disposal of this petition. Suffice it to state that petitioner at the relevant point of time was serving on the post of Circle Superintendent in Water Resources Department. On account of certain misconduct committed by him, he was charge sheeted and after perusal of his reply to show cause, a minor punishment of censure was accorded to him vide order dated 6-7-1990 (Annexure A-3 ). It is no longer in dispute that earlier to passing of the minor punishment of censure, the case of the petitioner was considered by the members of the DPC in the year 1989 and his result was kept in a scaled cover. In the said DPC meeting respondent Nos. 4 to 13 were promoted. ( 3. ) AFTER holding a DE and after awarding minor punishment of censure on 6-7-1990 in the next DPC the case of the petitioner was considered and he was promoted on the post of Superintendent to Chief Engineer vide, order dated 28-8-1990 (Annexure A-4 ). The contention of Shri Trivedi, learned Counsel appearing for the petitioner is that according to circulars of the State Government dated 27-2-1975 (Annexure R-2) and dated 2-5-1990 (Annexure R-3) the minor penalty of censure would not come in the way of the petitioner and, therefore, his case for promotion ought to have been considered retrospectively and promotion ought to have been given to him retrospectively since the date when respondent Nos. 4 to 13, who were admittedly juniors to him, were promoted. ( 4. ) PER contra, Shri Shroti, learned Counsel appearing for the respondents by placing reliance on the decision of the Apex Court in the case of State of M. P. v. I. A. Qureshi, (1998) 9 SCC 261 , has categorically contended that in the light of the abovesaid circulars the petitioner can not claim promotion retrospectively. According to the learned Counsel circular dated 2-5-1990 (Annexure R-3) was before the Apex Court in the case of I. A. Qureshi (supra) and, therefore, this petition sans substance and same be dismissed. ( 5. According to the learned Counsel circular dated 2-5-1990 (Annexure R-3) was before the Apex Court in the case of I. A. Qureshi (supra) and, therefore, this petition sans substance and same be dismissed. ( 5. ) AFTER having heard learned Counsel for the parties, I am of the view that this petition deserves to be dismissed. ( 6. ) SHRI Trivedi, learned Counsel for the petitioner by placing reliance on Annexure R-2 which is a circular of the Government dated 27-2-1975 has submitted that in the said circular itself it has been mentioned that the case of a delinquent employee can be considered for promotion only after the period of punishment by following the procedure which is given in foregoing paragraph of the said circular. ( 7. ) I have considered the arguments. It be seen that since there was some discrepancy in the mind of several employees of the State of M. P. , therefore, an explanatory circular was later on issued by State of M. P. on 2-5-1990 (Annexure R-3) in which it has been specifically mentioned in Paragraphs 3 and 4 that if an employee is awarded minor punishment of Warning, then only that minor punishment will not come in his way for his promotion. Since the petitioner was awarded minor punishment of censure which can not be included under the ambit and sweep of warning, he can not be benefited by the said circular. True interpretation of this circular has already been explained by the Apex Court in the case of I. A. Qureshi (supra), wherein in Paragraphs 8 and 9, the Apex Court has held as under:" ( 8. ) WE are unable to accept the said contention of Shri Khanduja, "censure" can not be equated with a warning since under Rule 10 of the M. P. Civil Services (Classification, Control and Appeal) Rules, 1966, "censure" is one of the minor penalties that can be imposed on a Government servant. It can not, therefore, be said that the penalty of censure which was imposed on the respondent in the departmental proceedings was not a penalty as contemplated in the circular dated 2-5-1990. It can not, therefore, be said that the penalty of censure which was imposed on the respondent in the departmental proceedings was not a penalty as contemplated in the circular dated 2-5-1990. Once it is held that a minor penalty has been imposed on the respondent in the departmental proceedings, the direction given in the said circular would be applicable and the scaled cover containing recommendations of the DPC could not be opened and the recommendations of the DPC could not be given effect because the respondent has not been fully exonerated and a minor penalty has been imposed. The respondent can only be considered for promotion on prospective basis from a date after the conclusion of the departmental proceedings. ( 9. ) THE grievance of the respondent is that even after the conclusion of the departmental proceedings, no steps have been taken to hold a fresh DPC for considering the case of the respondent for promotion. That is a matter for the appellants to consider. If there was any vacancy on the date of conclusion of the departmental proceedings against the respondent, he should be considered for promotion against such vacancy by holding a DPC for that purpose. " If the aforesaid ratio decidendi of the case of I. A. Qureshi (supra) is tested on the anvil of present factual scenario it would reveal that the said decision "squarely covers" the fate of the present case. In view of above, this petition is devoid of any substance and the same is hereby dismissed. However, looking to the facts and surrounding circumstances, the parties are directed to bear their own costs.