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Himachal Pradesh High Court · body

2009 DIGILAW 458 (HP)

NAUSHAD RAO v. STATE OF H. P.

2009-05-14

RAJIV SHARMA

body2009
JUDGMENT Rajiv Sharma, Judge: -The petitioner was appointed as Sub-Branch Incharge in Nahan Foundry Limited, Nahan in the year 1976. The post of Sub-Branch Incharge is in the feeder category for promotion to the post of Branch Incharge. The post of Branch Incharge as per Recruitment and Promotion Rules is required to be filled-up 100% by promotion from amongst Sub-Branch Incharges on the basis of seniority-cum-suitability. Vide order dated 5th February, 1987, 12 Sub-Branch Incharges were promoted as Branch Incharges with effect from 1.1.1987. Respondent No.11 was also promoted as Branch Incharge with effect from 1.12.1987. The Nahan Foundry was taken over by the Government vide Notification dated 10.9.1993. The services of the petitioner were also taken over by the Government. He made several representations for considering him for promotion from due date. He filed Original Application No.535/1994 before the H.P. State Administrative Tribunal. The same was directed to be treated as representation to the Secretary, H.P., PWD. The same was rejected on 21.11.1994 by the Secretary, H.P., PWD. 2. Mr. Dilip Sharma has strenuously argued that his client was fully eligible and qualified to be considered for promotion to the post of Branch Incharge with effect from 1.1.1987. He then contended that no charge-sheet has ever been served upon him by the employer. He further contended that the persons junior to him have been promoted from 1.1.1987 and the petitioner has been left out. The learned Senior Additional Advocate General, Mr. R.K. Sharma and Ms. Ruma Kaushik have supported Annexure A-6, dated 21.11.1994. 3. I have heard the learned counsel for the parties and perused the record carefully. 4. It is not in dispute that the petitioner was eligible to be considered for promotion to the post of Branch Incharge. The post of Branch Incharge was required to be filled-up by way of seniority-cum-suitability. He was ranked senior vis-à-vis the private respondents except respondent No.3 as per seniority list circulated vide Annexure A-4. He was required to be considered for promotion on the basis of seniority. The only ground mentioned in the replies and Annexure A-6, dated 21.11.1994 for not considering the case of the petitioner for promotion is that certain recoveries were to be effected from him and his conduct was not found satisfactory. There is also reference of one memo dated 9.4.1988 whereby he was called upon to clear his accounts. 5. The only ground mentioned in the replies and Annexure A-6, dated 21.11.1994 for not considering the case of the petitioner for promotion is that certain recoveries were to be effected from him and his conduct was not found satisfactory. There is also reference of one memo dated 9.4.1988 whereby he was called upon to clear his accounts. 5. It is settled law by now that every person has a right to be considered for promotion in accordance with Article 14 of the Constitution of India. The petitioner was eligible, as noticed above and should have been considered for promotion alongwith his juniors in the year 1987. Respondents No.1 and 2 have promoted 13 persons to the post of Branch Incharge. The petitioner has never been served with any charge-sheet. In other words, no departmental proceedings have ever been initiated against him. 6. Their Lordships of the Hon’ble Supreme Court in Union of India and others versus K.V. Jankiraman and others, (1991) 4 SCC 109 have held that in case any departmental proceedings have been initiated against an employee and he has been served with a charge-sheet or a challan has been put in the criminal Court, in that eventuality, the person though required to be considered for promotion, the recommendations of the Departmental Promotion Committee are required to be kept in a sealed cover. Their Lordships have held as under (paras 16 and 17, pp.118-119): - “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 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 inordinately 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 should 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. Those conclusions are as follows: (ATC p.196, para 39) "(1) consideration for promotion, selection grade, crossing the efficiency bar or 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;" 7. 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. 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 employee. Thus read, there is no inconsistency in the two conclusions.” 8. However, in the present case, the petitioner has only been called upon to clear his dues on 9.4.1988. In case any recoveries were to be effected from him as per contents of the reply and letter dated 21.11.1994, the departmental proceedings were required to be initiated against him either under Rule 14 of the Central Civil Service (Classification, Control and Appeal) Rules, 1965 or under Rule 16 thereof. It was required to be proved in accordance with law that the petitioner was bound to pay the amounts as demanded from him even as per letter dated 9.4.1988. Since this procedure has not been followed by respondents No.1 and 2, his case was required to be considered for promotion to the post of Branch Incharge. He was ranked senior to all the private respondents except respondent No.3. A bald assertion in the reply and letter dated 21.11.1994 that the petitioner was not found suitable merits rejection. 9. Accordingly, the petition is allowed. Annexure A-6, dated 21.11.1994 is quashed and set aside. The respondents are directed to consider the case of the petitioner for promotion to the post of Branch Incharge with effect from 1.1.1987 with all consequential benefits within a period of six weeks from today. There shall, however, be no order as to costs.