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2006 DIGILAW 854 (JHR)

Chandradeo Sharma v. State of Jharkhand

2006-07-13

PERMOD KOHLI

body2006
Order Petitioner claims to be selected/appointed as Deputy Collector vide Government Order dated 27th April, 1980 on his selection by Bihar Public Service Commission in the 27th Bihar Administrative Service Examination. Pursuant to his appointment he joined the post on 2nd May, 1980. It is stated that petitioner passed all the examinations of Hindi noting and drafting and other required papers and was confirmed on 21st January, 2000 by the State of Bihar. 2. On reorganization of the State of. Bihar and creation of State of Jharkhand, petitioner was allocated to the State of Jharkhand, where another letter of confirmation was issued on 14th August, 2003. His seniority was also fixed at SI. No. 278 of the seniority list of the cadre. 3. Apart from regular substantive pro-. motion to the higher post against available substantive vacancy, petitioner was to be considered for promotion under the Time Bound Scheme of the Government. He was entitled to be placed in the scale of Rs. 10000-15200 i.e. Junior Selection Grade after completion of 10 years of service and to be further promoted in the scale of Rs. 12000-16500 i.e. Senior Selection Grade or the scale of Assured Career Progression (in short ACP) Scheme on completion of 24 years of service. 4. The grievance of the petitioner is that even after completion of more than 25 years of service, as Deputy Collector, and having qualified all the departmental examinations, he has not been promoted against regular post of Sub-Divisional Officer in the scale of Rs. 10000-15200 and has also not been considered for first and second Time Bond Promotions, which are available after completion of 10 years and 24 years of service, respectively. It is further case of the petitioner that a large number of Deputy Collectors have been promoted in the higher scale of Rs. 1000015200 against the post of Sub-Divisional Officer on 6th May, 2005. Another batch of Deputy Collectors was promoted on 19th July, 2005 and majority of the promotees are junior to him. Petitioner has, accordingly, approached this Court seeking relief against his non-promotion on substantive post as well as under the Time Bound Scheme. 5. Petitioner has further disclosed that in the year 2001 on the basis of allegation of accepting bribe, a Vigilance Case No. 11 of 2001 (Special Case No. 16 of 2001) was registered against him. Petitioner has, accordingly, approached this Court seeking relief against his non-promotion on substantive post as well as under the Time Bound Scheme. 5. Petitioner has further disclosed that in the year 2001 on the basis of allegation of accepting bribe, a Vigilance Case No. 11 of 2001 (Special Case No. 16 of 2001) was registered against him. He was arrested in the said case and latter released on bail. A charge-sheet has been presented in the Court and charge has been framed against him. Against framing of charge, petitioner moved the High Court by filing revision application, being Cr. Revision No. 894 of 2003, and the proceedings before the Trial Court have been stayed by order dated 23rd December, 2003. It is, however, stated that no disciplinary proceedings are pending against him. He has also referred to letter issued by the Chief Secretary to all the Deputy Commissioners on 24th September, 1998 stating therein that an employee cannot be denied promotion, if disciplinary/criminal proceedings are not terminated or concluded within two years. Petitioner, accordingly, seeks a direction for his promotion to the next higher post or at least under the Time Bound Scheme. 6. In I. A. No. 6 of 2006, petitioner has made further supplemental submissions. He has referred to the cases of Surendra Nath Mandilwar, Naresh Kumar, Sri Raj Kumar, Sri Rajesh Kumar, Sri Bimal etc., against whom vigilance cases have been filed and charge-sheets are pending in Court, but they have been granted promotion, ignoring pendency of criminal/disciplinary proceedings against them. On the basis of the above facts, petitioner has also claimed hostile and discriminatory treatment against him in the matter of promotion and thus violation of fundamental right of equality. 7. State of Jharkhand through Under Secretary, Department of Personnel & Administrative Reforms, Government of Jharkhand, Ranchi has filed counter affidavit on behalf of the respondents admitting therein that petitioner has not been granted any promotion till date. Respondents have given details of registration of vigilance case against the petitioner under Sections 7/13(2) read with Section 13( 1) of the Prevention of Corruption Act, 1988. It is further stated that a charge has also been framed against the petitioner, though these proceedings were stayed by this Court on a revision preferred by the petitioner. Respondents have given details of registration of vigilance case against the petitioner under Sections 7/13(2) read with Section 13( 1) of the Prevention of Corruption Act, 1988. It is further stated that a charge has also been framed against the petitioner, though these proceedings were stayed by this Court on a revision preferred by the petitioner. These proceedings were initiated after sanction for prosecution was granted by Law Department vide its letter dated 17th May, 2002, on finding prima facie case against petitioner. It is further stated that petitioner was caught red-handed for taking bribe on 8th August, 2001, which resulted in lodging of criminal case/proceedings against him. He was also suspended under Rule 99 of the Bihar Service Code vide order dated 14th September, 2001 and later on, on his release from the custody, suspension order was revoked vide order dated 1st November, 2002. Respondent-State has specifically admitted in Para-14 that the then State of Bihar, on the basis of Pay Revision Committee's report, introduced Time Bound Promotion Scheme vide Resolution No. 10770 dated 31st December, 1981, which was effective from 1st April, 1981. Under this Scheme, First Time Bound Promotion is to be granted after completion of 10 years of service, if the employee is otherwise eligible for promotion and there is no regular vacancy available. Similarly, Second Time Bound Promotion can be granted on completion of 25 years of service. It is also the case of the State that the Time Bound Promotion Scheme, introduced in the year 1981, was subsequently superseded and replaced by another Scheme, namely, Assured Career Progression Scheme (in short ACP) by Resolution of the Finance Department, bearing no. 660 (F/2) dated 8th February, 1999, which was made operative from 1st January, 1996. Even the State of Jharkhand has framed ACP Scheme by Resolution No. 3/S-6 (Pronatti)-02/2002-5207 Vi dated 14th August, 2002. This Scheme was made effective from 9th August, 1999. Under this Scheme, an employee on completion of 12 years of service is entitled to be placed in first higher pay scale, subject to eligibility and passing of required departmental examination and fitness. Similarly, an employee is entitled to be placed in second higher pay scale on completion of 24 years of service, subject to eligibility and passing of the requisite examinations and fitness. Respondents have admitted that the petitioner's service, as Deputy Collector. Similarly, an employee is entitled to be placed in second higher pay scale on completion of 24 years of service, subject to eligibility and passing of the requisite examinations and fitness. Respondents have admitted that the petitioner's service, as Deputy Collector. was confirmed with effect from 2nd July, 1984 by the then State of Bihar vide notification dated 21st January, 2000. 8. Regarding entitlement of the petitioner for promotion, it is mentioned in Para-17 that the case of the petitioner for promotion to Junior Selection Grade was considered by Departmental Promotion Committee, held on 1st December, 2003 and 20th May, 2005, but no promotion could be given to him due to pendency of criminal case against him. Again Departmental Promotion Committee was held on 4th June, 2005 and considered the case of the petitioner for giving him the benefit of ACP, but again due to pendency of criminal proceedings, no promotion could be given to him. 9. It is not in dispute that the petitioner joined the service in the year 1980 under the State of Bihar. Under Time Bound Promotion Scheme of the year 1981, he was entitled to be considered for promotion on completion of 10 years of service, which he completed in the year 1990. Admittedly, no disciplinary/criminal proceedings had been initiated against the petitioner in the year 1990. It was only in the year 2001, a criminal case was registered against him and criminal proceedings were filed in a competent Court. Since there was no substantive vacancy available, at least petitioner was entitled to be considered for Time Bound Promotion. No reason has been disclosed in the reply for denying First Time Bound Promotion to the petitioner. State of Jharkhand has only stated that petitioner is entitled to seek promotion from the State of Bihar. This plea appears to be absolutely baseless. Petitioner has been allocated to State of Jharkhand and all his service rights have to be protected by State of Jharkhand, being Successor State on allocation, whatever may be the reason. The fact remains that the petitioner's entitlement for First Time Bound Promotion cannot be denied to him, particularly when there was no legal impediment at the relevant time. 10. Petitioner has been allocated to State of Jharkhand and all his service rights have to be protected by State of Jharkhand, being Successor State on allocation, whatever may be the reason. The fact remains that the petitioner's entitlement for First Time Bound Promotion cannot be denied to him, particularly when there was no legal impediment at the relevant time. 10. In so far Second Time Bound Promotion is concerned under the old Scheme, this promotion was to be granted on completion of 25 years of service and under new Scheme on completion of 24 years of service. Petitioner completed 24 years of service in the year 2004 and 25 years of service in the year 2005. Criminal case came to be registered against him in the year 2001 and a formal charge has been framed in the year 2003. 11. An employee under cloud because of pendency of criminal/disciplinary proceedings can be denied promotion, if charge has been framed against him by a competent Court of law or a charge-sheet has been served by the disciplinary authority. 12. Hon'ble Supreme Court in the case of Union of India & Ors. vs. K.V. Jankiraman & Ors., reported in (1991)4 SCC 109 , has held as follows:- "16. 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 chargememo 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. We are in agreement with the Tribunal on this point. The contention advanced by the learned counsel for the appellant-authorities that when there are serious allegations and it takes time to collect necessary evidence to prepare and issue chargememo/charge-sheet, it would not be in the interest of the purity of administration to reward the employee with a promotion, increment etc. does not impress us. The acceptance of this contention would result in injustice to the employees in many cases. 13. does not impress us. The acceptance of this contention would result in injustice to the employees in many cases. 13. In view of the 'dictum of the judgment of Apex Court, there was no legal impediment for grant of First Time Bound Promotion to the petitioner. However, petitioner is not entitled to Second Time Bound Promotion till criminal proceedings pending against him, wherein a charge has been framed are finally concluded resulting in his acquittal. Respondent-State has also considered the petitioner for substantive promotion through Departmental Promotion Committee in the years 2003 and 2005 and he has not been promoted on account of pendency of criminal proceedings, as the petitioner has been charge-sheeted in criminal proceedings in the year 2003. However, his consideration for Time Bound Promotion under ACP Scheme on 4th June, 2005 by the Departmental Screening Committee cannot be said to be legal and valid. Petitioner has been denied even Time Bound Promotion on the same ground on which he was denied substantive promotion i.e. pendency of criminal proceedings. As a matter of fact, Departmental Screening Committee was required to consider the case of the petitioner for First Time Bound Promotion on completion of 10 years of service and for Second Time Bound Promotion on completion of 24 years of service. Nothing has been stated in reply, as to whether he was considered for both the time bound promotions or for only one promotion. Since there was no legal bar in the year 1990, petitioner is at least entitled for First Time Bound Promotion. 14. This petition, accordingly, succeeds partly and respondents are directed to consider the case of the petitioner for First Time Bound Promotion with effect from the year 1990 when he became eligible and due for such promotion on completion of 10 years of service. This consideration has to be accorded in accordance with the then Time Bound Promotion Scheme of 1981 and if nothing adverse is found against him at the relevant time, he may be granted First Time Bound Promotion in accordance with the said scheme. Petitioner shall be entitled for substantive promotion and Second Time Bound Promotion only after termination of criminal proceedings against him. In the event of promotion of the petitioner, he shall be entitled to all consequential benefits. In the event, First Time Bound Promotion is rejected; it shall be by a speaking or reasoned order. 15. Petitioner shall be entitled for substantive promotion and Second Time Bound Promotion only after termination of criminal proceedings against him. In the event of promotion of the petitioner, he shall be entitled to all consequential benefits. In the event, First Time Bound Promotion is rejected; it shall be by a speaking or reasoned order. 15. Let necessary consideration be made for First Time Bound Promotion within a period of three months from today and outcome of consideration be communicated to the petitioner.