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Rajasthan High Court · body

2009 DIGILAW 236 (RAJ)

R. P. Gupta v. Jaipur Vidyut Vitran Nigam Ltd.

2009-01-27

K.S.RATHORE

body2009
JUDGMENT 1. - The petitioner was initially appointed on the post of Junior Engineer in the erstwhile RSEB and was later on promoted to the post of Assistant Engineer and Executive Engineer in the year 1992. The erstwhile RSEB was divided into 5 Government companies in the year 2000 and the services of the petitioner were transferred to Jaipur Vidyut Vitran Nigam Ltd. (for short 'the JWNL') and at present he is working in the same company. On the recommendations of the Departmental Promotion Committee for the year 2007-2008, the petitioner was promoted to the post of Superintending Engineer (E&M) on urgent/temporary basis against the vacant post reserved for SC/ST candidate subject to review and revision vide order dated 31.05.2007 (Annexure-2). 2. The controversy arose when vide Annexure-8 dated 05.06.2008, the respondent company withdrew the recommendations of adhoc promotion and reverted the petitioner to the post of Executive Engineer as per the recommendations of the Departmental Promotion Committee held on 04.06.2008 for selection of officers for the post of Superintending Engineer (E&M) for the year 2008-09 as the petitioner was not found suitable to continue as Superintending Engineer in view of the pending D.E. for the vacancy of the year 2008-09. 3. Aggrieved and dissatisfied with the order impugned dated 05.06.2008 and the order dated 04.06.2008, Annexure-8 and 9 respectively, the petitioner has preferred the instant writ petition on the ground that on the basis of the joint charge-sheet issued to as many as 13 persons, without considering the gravity of charges the petitioner has been found unfit for promotion for the year 2008-09 and as per the circulars of the State Government which are followed and adopted by the respondent company, the case of the petitioner could have been kept in sealed cover and no remarks could be made about fitness of petitioner for promotion for the year 2008-09. 4. It is further contended on behalf of the petitioner that the charge-sheet was issued after 1st April, 2008 and the petitioner was promoted to the post of Superintending Engineer against the SC/ST quota for the year 2007-08, the petitioner for the year 2007-08 can only be reverted if candidate out of SC/ST category is made available, as evident from appointment order Annexure-2 dated 31.05.2007. Vide annexure-9, the person junior than the petitioner has been given ad hoc appointment against the reserved category on urgent temporary basis and in an officiating capacity for a period of one year or till suitable candidates are made available by the next DPC, whichever is earlier. 5. Thus, the petitioner could have been permitted and allowed to continue on urgent temporary basis against the reserved category on the post of Superintending Engineer. Although vide Annexure-10 dated 05.06.2008, the petitioner has been allowed to work as Superintending Engineer (Plan), Jaipur Discom, Jaipur with immediate effect, but he has submitted that he is going to retire in the month of February, 2009 and as no candidate from the reserved category is made available for appointment on the post of Superintending Engineer, the petitioner is entitled to continue on urgent temporary basis on the post of Superintending Engineer. 6. Learned counsel for the petitioner also referred clause (5) of the Circular submitted by the learned counsel for the respondents along with the reply as Annexure-R-1/1 dated 08.06.2006, according to which if DE is pending against any person under consideration, he/she cannot be promoted on ad hoc basis. 7. In support of his submissions that vacancy which has been determined on 1st April of the year and the charge-sheet was issued for subsequent year, the respondent has wrongly interpreted clause (7) of the Circular. As per clause (7), "Determination of vacancies as on 1st April of the year for which DPC is convened alongwith consequential vacancies due to retirement, promotion and creation of posts during the financial year" and as evident by clause (11) of the Circular, the promotion order is to clearly mention that persons promoted on ad hoc basis in the vacancies reserved for SC/ST would be reverted back to their original post as soon as SC/ST candidates are available. 8. Learned counsel for the petitioner placed reliance on the judgment rendered by the Hon'ble Supreme Court in the case of Union of India, etc. etc. v. K.V. Jankiraman, etc. 8. Learned counsel for the petitioner placed reliance on the judgment rendered by the Hon'ble Supreme Court in the case of Union of India, etc. etc. v. K.V. Jankiraman, etc. etc., reported in AIR 1991 SC 2010 , More particularly para-6 of the judgment which is reproduced hereunder : "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 charge-memo 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 charge-memo/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. As has been the experience so far, the preliminary investigations take an inordinate long time and particularly when they are initiated at the instance of the interested persons, they are kept pending deliberately. Many times they never result in the issue of any charge-memo/charge-sheet. If the allegations are serious and the authorities are keen in investigating them, ordinarily it would not take much time to collect the relevant evidence and finalise the charges. What is further, if the charges are that serious, the authorities have the power to suspend the employee under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure. The authorities thus are not without a remedy. It was then contended on behalf of the authorities that conclusions Nos. 1 and 4 of the Full Bench of the Tribunal are inconsistent with each other. The authorities thus are not without a remedy. It was then contended on behalf of the authorities that conclusions Nos. 1 and 4 of the Full Bench of the Tribunal are inconsistent with each other. Those conclusions are as follows : "(1) consideration for promotion, selection grade, crossing the efficiency bar of higher scale of pay cannot be withheld merely on the ground of pendency of a disciplinary or criminal proceedings against an official; (2) .............. (3) ............. (4) the sealed cover procedure can be resorted only after a charge memo is served on the concerned official or the charge sheet filed before the criminal court and not before." There is no doubt that there is a seeming contradiction between the two conclusions. But read harmoniously, and that is what the Full Bench has intended, the two conclusions can be reconciled with each other. The conclusion No. 1 should be read to mean that the promotion etc. cannot be withheld merely because some disciplinary/criminal proceedings are pending against the employee. To deny the said benefit, they must be at the relevant time pending at the stage when charge-memo/charge-sheet has already been issued to the employees. Thus read, there is no inconsistency in the two conclusions. We, therefore, repel the challenge of the appellant-authorities to the said finding of the Full Bench of the Tribunal." 9. Per contra, learned counsel appearing for the respondent company has submitted that as per the order dated 31.05.2007 (Annexure-2), the petitioner was given promotion to the post of Superintending Engineer (E&M) on urgent/temporary basis against the vacant post reserved for SC/ST candidate subject to review and revision, and as per Annexure-8 dated 05.06.2008, for the year 2007-08 DPC was convened on 04.06.2008 and regular selections were made for the suitable candidates and the petitioner was not found suitable on account of departmental enquiry pending against him. 10. Learned counsel for the respondent also referred the charge-sheet. As per charge No. 2, there are allegations about financial loss of Rs. 0.79 crore to the company and the same is pending consideration, therefore, the Departmental Promotion Committee having considered the suitability of the petitioner, kept the recommendations in sealed cover and as per the judgment of the Hon'ble Supreme Court in the case of Union of India, etc. etc. v. K.V. Jankiraman, etc. etc. 0.79 crore to the company and the same is pending consideration, therefore, the Departmental Promotion Committee having considered the suitability of the petitioner, kept the recommendations in sealed cover and as per the judgment of the Hon'ble Supreme Court in the case of Union of India, etc. etc. v. K.V. Jankiraman, etc. etc. (supra), keeping recommendations in sealed envelope during pendency of the departmental enquiry is permitted, as held by the Hon'ble Supreme Court in sub-clause (iii) at page 2014, wherein it has been held that "After the findings are kept in a sealed cover by the Departmental Promotion Committee subsequent D.P.Cs., if any, held after the first D.P.C. during the period the disciplinary/Court proceedings may be pending, will also consider the officer's case and record their findings which will again be kept in sealed cover in the above manner." 11. It is also contended by the learned counsel appearing for the respondent company that to avoid humiliation to the petitioner, the petitioner is allowed to work as Superintending Engineer (Plan) vide order dated 05.06.2008 (Annexure-10) and in case the petitioner is exonerated in the departmental enquiry, he will get all consequential benefits which are given to other similarly situated persons. 12. I have heard rival submissions of the respective parties and - carefully gone through the orders impugned dated 05.06.2008 and 04.06.2008 Annexure-8 and 9 respectively. 13. I have also minutely gone through the circular dated 08.06.2008 (Annexure-R-1/1) annexed along with the reply filed on behalf of the respondents as well as the judgment referred by the learned counsel for the petitioner. 14. It is true that the petitioner vide Annexure-2 dated 31.05.2007 was given promotion to the post of Superintending Engineer (E&M) purely on urgent/temporary basis against the vacant post reserved for SC/ST candidate subject to review and revision and the memorandum of charges as annexed along with the writ petition as Annexure-12, it is not disputed that departmental enquiry is pending against the petitioner and as per clause (5) of the Circular Annexure-R-1/1 dated 08.06.2006, during pendency of the departmental enquiry, the petitioner cannot be promoted on ad hoc basis. 15. Considering the fact that the petitioner can only be reverted if the SC/ST candidate is made available for appointment, in such eventuality the petitioner can be reverted back to the post of Executive Engineer. 16. 15. Considering the fact that the petitioner can only be reverted if the SC/ST candidate is made available for appointment, in such eventuality the petitioner can be reverted back to the post of Executive Engineer. 16. As per the ratio decided by the Hon'ble Supreme Court in the case of Union of India, etc. etc. v. K.V. Jankiraman, etc. etc. (supra), in the normal course, on the conclusion of the disciplinary/Court proceedings, the sealed cover or covers may be opened, and in case the officer is completely exonerated i.e. no statutory penalty, including that of censure, is imposed, the earliest possible date of his promotion but for the pendency of the disciplinary/Court proceedings against him may be determined with reference to the position(s) assigned to him in the findings in the sealed cover/covers and with reference to the date of promotion of his next junior on the basis of such position. The officer concerned may then be promoted,if necessary by reverting the junior-most officiating persons, and he may be given a notional promotion from the date he would have been promoted, as determined in the manner indicated above. But no arrears of pay shall be payable to him for the period of notional promotion preceding the date of actual promotion. 17. As not disputed here in the instant case the departmental enquiry is pending against the petitioner and the case of the petitioner for promotion to the post of Superintending Engineer has been considered and the recommendation of the Departmental Promotion Committee has been kept in sealed cover absolutely In accordance with the circular issued by the State Government and the same has been adopted by the respondent company and as per the ratio decided by the Hon'ble Supreme Court, the petitioner can get all the benefits after completion of the departmental enquiry pending against him and as the respondent has allowed the petitioner to continue on the post of Superintending Engineer (Plan) vide order dated 05.06.2008, this Court is of the considered view that no case of any interference in the orders impugned is made out. This Court do not find any illegality in the orders impugned as the petitioner has been allowed to work on the post of Superintending Engineer. 18. Consequently, the writ petition fails being devoid of merit and the same is hereby dismissed. 19. This Court do not find any illegality in the orders impugned as the petitioner has been allowed to work on the post of Superintending Engineer. 18. Consequently, the writ petition fails being devoid of merit and the same is hereby dismissed. 19. The ex-parte interim order dated 01.08.2008 granted by this Court also stands rejected (sic.). The application under Article 226(3) of the Constitution of India stands allowed. *******