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2007 DIGILAW 1871 (PAT)

Kedar Paswan v. State Of Bihar

2007-12-07

V.N.SINHA

body2007
Judgment V.N.Sinha, J. 1. Heard learned Counsel for the parties. 2. Petitioner has filed this application for a direction to the State respondents to consider his case for promotion on the post of Chief Engineer against the vacancy, which arose in the year 1994 in the light of the Government Resolution No. 213 dated 7.6.2002, Annexure-9 to this application issued pursuant to insertion of Article 16(4a) in the Constitution, which empowers the state to provide for making special provision for reservation in the matters of promotion in favour of Scheduled Caste and Scheduled Tribes Officers as they are not adequately represented in the services of the State as Officers junior to him in the revised gradation list of Superintending Engineer, bearing Notification No. 8358 (s) dated 11.11.2005, Annexure-11, vide Serial Nos. 46, 47 and 48 have already been so promoted ignoring his better claim and seniority position at serial No. 42. 3. The State respondents have opposed the prayer by filing counter affidavit and has submitted that although the petitioner is chargesheeted accused in Bitumen scam case(s), namely, R.C. 42(A)/97-Pat, R.C. 32(A)/97, R.C.2 (A)/97 (R), R.C. 8/97 (R ) and R.C. 9(S)/97 (R) in which charge sheet Nos. 14 dated 28.7.2000, 11 dated 14.12.2004, 8 dated 30.9.2002, 10 dated 7.9.2000 and 7 dated 12.6.2006 have been submitted by the Investigating Agency concluding that the petitioner while holding the post of Director, Purchaser, Road Construction Department, issued supply orders on behalf of Engineer-in-chief on 23.7.1994 for 500 MT and on 17.8.1994 for 1000 MT of bulk Bitumen purchase for each of the Road Divisions of Bihar without verifying actual supply position of bulk. Bitumen against the previous supply orders issued by the Road Construction Department as also the fact that the was aware about the proportionate requirement of the Bitumen but did not place the correct requirement and issued supply orders for huge quantity of Bitumen, which was not at all required and thereby caused huge loss to the exchequer, yet his case was placed for consideration for promotion on the post of Chief Engineer on 18.4.2006 and 19.4.2006, Annexure-C/1 by the Departmental Promotion Committee in the light of circular of the State-Government, bearing Memo. No. 7457 dated 11.9.2002, Annexure-10, which inter alia provides for the procedure and the guidelines for consideration of promotion of such officers, who are placed under suspension or facing criminal charges and the departmental promotion committee taking into account the allegation prima facie found true by the Investigating Agency, as is evident from the charge sheet(s) filed in the aforesaid criminal cases, decided under minutes dated 18/19.4.2006, Annexure-C/1 to keep the result of the consideration of the case of the petitioner for promotion in a sealed cover to be opened after he is exonerated in the aforesaid criminal prosecution. 4. During the hearing of this application, petitioner has challenged the decision of the promotion committee to keep the result of consideration of his case for promotion in a sealed cover asserting that in terms of the resolution of the State Government dated 11.9.2002, Annexure-10, he ought to have been promoted on the post of Chief Engineer as in the light of the guidelines contained in the resolution dated 11.9.2002, Annexure-10, there is no likelihood of the criminal prosecution to come to an end in near future since criminal case was lodged in the year 1997 and the charge sheet was submitted in the year 2000, 2002, 2004 and 2006 and it is not known by which time the trial shall come to an end, particularly in view of the fact that he is to superannuate in February, 2008 and if it is not possible to consider and grant regular promotion, atleast he should have been granted ad hoc promotion. In support of such plea, learned Counsel for the petitioner has relied on the judgment of the Hon ble Supreme Court in the case of Bank of India and Anr. V/s. Degala Suryanarayana reported in , paragraph 14 and the orders of the Hon ble Single Judge of this Court dated 4.4.2007, passed in the case of Swarnendu Sinha V/s. The State of Bihar and Ors. bearing CWJC No. 13268 of 2005. 5. In order to appreciate the law laid down by the Hon ble Supreme Court in the case of Bank of India (Supra), Paragraph 14, it is necessary to refer to a few facts, which were taken into account for rendering the decision. bearing CWJC No. 13268 of 2005. 5. In order to appreciate the law laid down by the Hon ble Supreme Court in the case of Bank of India (Supra), Paragraph 14, it is necessary to refer to a few facts, which were taken into account for rendering the decision. Degala Suryanarayana was declared fit for promotion with effect from 1.1.1986, but was not promoted on account of pendency of the criminal case which ended in his acquittal on 17.8.1988. Even thereafter he was not given the benefit of his promotion then he moved the High Court for seeking relief of the order of promotion being issued and given effect to. By an interim order, the High Court directed to promote him on ad hoc basis with effect from 1.1.1986, which order was challenged in writ appeal. The Appellate Court confirmed the interim order directing the Bank to promote Degala Suryanarayana on ad hoc basis with effect from 1.1.1986, but observed that the employer was at liberty to enquire into the matter departmentally. In the light of the observation of the High Court, charge sheet was issued on 3.12.1991 in which the Enquiry Officer exonerated Degala Suryanarayana of the charges but the Disciplinary Authority differed with the findings of the Enquiry Officer and held him guilty of the charge. Hon ble Supreme Court, appreciating the fact that promotion was given with effect from 1.1.1986 and the charge sheet was issued on 3.12.1991, held that the subsequent finding of guilt as regards the charges as contained in charge sheet dated 3.12.1991 shall not affect the promotion granted with effect from 1.1.1986. 6. Hon ble Supreme Court, appreciating the fact that promotion was given with effect from 1.1.1986 and the charge sheet was issued on 3.12.1991, held that the subsequent finding of guilt as regards the charges as contained in charge sheet dated 3.12.1991 shall not affect the promotion granted with effect from 1.1.1986. 6. Perusal of the orders of the Hon ble Single Judge of this Court dated 4.4.2007, passed in C.W.J.C. No. 13268 of 2005, relied upon by the learned Counsel for the petitioner also indicates that juniors to the petitioner of the said case were granted scale admissible to the Assistant Engineer with effect from 1.4.1995 when neither any departmental proceeding nor any criminal case was pending against the petitioner and appreciating such fact, another Single Judge of this Court under orders dated 29.9.2004, passed in C.W.J.C. No. 12864 of 2003 had directed the State respondents to consider his case for grant of the scale of Assistant Engineer, which was refused on the ground that he had become accused in criminal case subsequently in which charge sheet was submitted in the year 2000 and, accordingly, his case for grant of scale of Assistant Engineer was directed to be placed under sealed cover by the Departmental Promotion Committee in its meeting held on 18.6.2005, which decision of the Departmental Promotion Committee, learned Single Judge under order dated 4.4.2007 declared to be in contempt of the earlier orders dated 29.9.2004, passed in C.W.J.C. No. 12864 of 2003 taking into note the fact that petitioner stood already superannuated in the year 1999 itself. From the orders of this Court dated 4.4.2007, passed in C.W.J.C. No. 13268 of 2005, it does not appear that the same was passed taking into account the contents of the procedure as also the guidelines issued by the State Government contained in Resolution, bearing Memo. No. 7457 dated 11.9.2002, Annexure-10, which inter alia provides the procedure and the guidelines required to be observed while considering the case of an officer for promotion, who has been placed under suspension, departmentally/criminally proceeded, as such, according to the State Counsel, orders of the Hon ble Single Judge dated 4.4.2007 which has not considered the resolution dated 11.9.2002, Annexure-10 has no application to the facts of the present case. 7. 7. The case of the petitioner herein for promotion on the post of Chief Engineer was required to be considered in the light of the procedure and guidelines contained in Resolution dated 11.9.2002, Annexure-10 as was directed by another learned Single Judge of this Court, under orders dated 24.8.2005, passed in C.W.J.C. No. 16527 of 2004, Annexure-C to the counter affidavit filed on behalf of Respondent Nos. 2 to 4. The authorities, according to the State Counsel, having considered the allegation that petitioner had issued purchase order as far back as on 23.7.1994 and 17.8.1994 for purchase of huge quantity of Bitumen which was not necessary, which fact was also found correct after investigation and was also mentioned in the charge sheet submitted in different criminal cases in which petitioner has been made accused in Bitumen scam case(s), decided under minutes dated 18/19.4.2006, Annexure C/1 to keep the result of the consideration of his case for promotion on the post of Chief Engineer in the sealed cover until he is exonerated of the charges in the aforesaid criminal cases. State Counsel emphatically submitted that case of Degala Suryanarayana (Supra) has no application to the facts of the present case as Degala Suryanarayana was exonerated in the criminal case earlier and even thereafter when benefit of promotion was not granted to him then under orders of the High Court he was granted ad hoc promotion and thereafter charge sheet was issued in which after recording difference of opinion, Disciplinary Authority punished him and the Hon ble Supreme Court taking into account the fact that charge sheet in the disciplinary proceeding was issued after recommendation of the promotion, observed that punishment pursuant to charge sheet shall have no effect on the recommendation for promotion already made earlier. Learned Counsel for the State in this connection has relied on the judgment of the Hon ble Supreme Court in the case of Union of India etc. etc. V/s. K.V. Jankiraman etc. etc. reported in . 8. Learned Counsel for the State in this connection has relied on the judgment of the Hon ble Supreme Court in the case of Union of India etc. etc. V/s. K.V. Jankiraman etc. etc. reported in . 8. Having heard counsel for the parties, I am of the view that in compliance of the orders of this Court, case of the petitioner for promotion on the post of Chief Engineer was required to be considered in the light of the Resolution of the state Government dated 11.9.2002, Annexure-10, which inter alia provides for placing the case of the officers facing criminal charges in which charge sheet has already been submitted under sealed cover and from the charge sheet submitted in the case of the petitioner, it appears that he was an active participant in the Bitumen scam case as he issued bulk purchase orders for Bitumen dated 23.7.1994 and 17.8.1994 to the tune of 500 MT and 1000 MT for different Road Construction Divisions without assessing their requirement causing huge loss to the exchequer as has been prima facie found by the Investigating Agency, as such, recommendation of the Departmental Promotion Committee dated 18/19.4.2006, Annexure-C/1 to place his case for promotion in the sealed cover even for the vacancy, which arose in the year 1994 does not appear to be arbitrary as also contrary to the circular of the State Government dated 11.9.2002, Annexure-10, which is, accordingly, affirmed and this writ application is dismissed.