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Allahabad High Court · body

2010 DIGILAW 557 (ALL)

NAND KUMAR SINGH v. STATE OF U. P.

2010-02-11

D.K.ARORA

body2010
JUDGMENT Hon’ble D.K. Arora, J.—Heard learned counsel for the parties and perused the record. 2. By means of present writ petition, the petitioner has prayed for a writ in the nature of certiorari for quashing of letter dated 02.9.2009, contained in Annexure No. 1, issued by the Inspector General of Police (Establishment) Lucknow in pursuance of the same petitioner’s promotion on the post of Deputy Superintendent of Police (in ordinary grade) has been withheld. The petitioner also prays for a writ of mandamus commanding the opposite parties to promote the petitioner on the post of Deputy Superintendent of Police (in ordinary grade) of U.P. Police Service by giving effect to the recommendations of Departmental Promotion Committee/ Public Service Commission, U.P., Allahabad w.e.f. the date next junior to the petitioner has been promoted with all consequential benefits. 3. Submission of learned counsel for the petitioner is that the petitioner was appointed as Sub Inspector of Civil Police by direct recruitment on 28.2.1978 and subsequently was confirmed on the said post. The petitioner was promoted to the post of Inspector of Civil Police sometimes in the year 1992 and was later on confirmed on the post of Inspector. 4. Further submission of learned counsel for the petitioner is that the source of recruitment to the post of Deputy Superintendent of Police (in ordinary grade) of U.P. Police Service is by direct recruitment on the basis of result of competitive examination conducted by the U.P. Public Service Commission, Allahabad (here-in-after referred to as the Commission) and as well as by promotion of permanent Inspectors of Civil Police who have put in not less than two years’ service as Inspector of Civil Police. The criteria for promotion is merit. The petitioner’s name in the eligibility list of 2008-09 for promotion to the post of Deputy Superintendent of Police (in ordinary grade) of U.P. Police (Annexure No. 2) finds place at serial No. 76 and in seniority list his name is shown at serial No. 118. On 22.8.2009 Departmental Promotion Committee considered and approved the name of petitioner and other candidates for promotion to the post of Deputy Superintendent of Police (in ordinary grade) of U.P. Police Service. As a consequence thereof the Commission sent its recommendations to the State Government of U.P. for promotion of the petitioner. On 22.8.2009 Departmental Promotion Committee considered and approved the name of petitioner and other candidates for promotion to the post of Deputy Superintendent of Police (in ordinary grade) of U.P. Police Service. As a consequence thereof the Commission sent its recommendations to the State Government of U.P. for promotion of the petitioner. After receipt of recommendations the Inspector General of Police (Establishment) wrote the impugned letter dated 2.9.2009 (Annexure No. 1) to the Special Secretary, Home, Lucknow requesting the State Government of U.P. not to declare the result of the petitioner for promotion on the ground that a case has been registered against the petitioner at Police Station Panki, district Kanpur Nagar as case crime No. 195 of 1993 under Sections 342/218/120-B, I.P.C. and Section 13 (1) D of Prevention of Corruption Act. The permission for prosecution has been received and charge-sheet No.12 dated 28.8.2009 has been sent and on the basis thereof the State Government of U.P. withheld the promotion of the petitioner. 5. Learned counsel for the petitioner submitted that several persons placed in the similar circumstances and juniors to the petitioner whose names are mentioned in para 9 of the writ petition, figured from serial No. 120 to 422 in the seniority list selected alongwith the petitioner and have been promoted to the post of Deputy Superintendent of Police (in ordinary grade) of U.P. Police Service by State Government through notification dated 11.9.2009 whereas petitioner’s promotion has been withheld. 6. The further submission of the counsel for the petitioner is that the letter of Inspector General of Police (Establishment) mentions that a charge-sheet has been sent on 18.8.2009 in the Court is absolutely false as the chart was forwarded by the Circle Officer on 2.9.2009 and filed in the Court on 4.9.2009 as is evident from certified copy of the charge-sheet, as contained in Annexure-4 to the writ petition. 7. Learned counsel for the petitioner argued that the opposite parties have no right, authority or competence to withhold the promotion of the petitioner as on 22.8.2009 when the D.P.C. met and made recommendations for promotion of the petitioner, the petitioner was neither under suspension nor any departmental proceedings were pending against him and nor any charge-sheet was issued against him in any departmental proceedings, nor proceedings in the Administrative Tribunal were pending against the petitioner. The charge-sheet has been filed in the criminal Court on 4.9.2009 i.e. much after the recommendations made by the D.P.C. Learned counsel further argued that the petitioner has also been awarded gallantry award in the year 1996 on the basis of extra-ordinary courage and bravery by putting his life in danger by President of India. 8. Learned counsel for the petitioner further submitted that it is settled law that it is only where a charge-sheet in a disciplinary proceedings is issued to an employee or charge-sheet in the criminal proceeding is filed in the Court or an employee is continuing under suspension on the date of Departmental Promotion Committee, sealed cover procedure is resorted and in the present case the recommendation of the Departmental Promotion Committee has not been kept in sealed cover for the simple reason that neither the petitioner was continuing under suspension nor a charge-sheet in the disciplinary proceeding was issued, nor any charge chart was filed in the criminal Court on the date when the Departmental Promotion Committee met and made recommendation for promotion of the petitioner and other candidates to the post of Deputy Superintendent of Police (in ordinary grade). The State Government issued a Government Order on 28.5.1997 which provides that sealed envelope procedure will be adopted only when if the disciplinary proceedings are pending against an employee or charge-sheet has been filed in the criminal Court. The Government Order further provides that if recommendation has been made by the Departmental Promotion Committee but prior to issuance of the promotion order, if any fact come to the light and if the same would have been before the Selection Committee, the recommendation of the Selection Committee required to be kept in sealed envelope, in such a situation the concerned employee will not be given promotion till the receipt of the final decision and the recommendation of the Selection Committee will be treated to be kept in sealed cover envelope. 9. 9. The counsel for the petitioner further submitted that when the petitioner was posted as Reader of Senior Superintendent of Police, Kanpur Nagar, he alongwith other police personnels under the order of Senior Superintendent of Police, Kanpur Nagar raided the premises falling under the Police Station Panki, Kanpur Nagar and were found S/Sri Tapan Meotro, Kavita Sahu, Kiran Singh and Brijesh Kumar engaged in preparation of obscene films by cheating the young girls to make them actresses on 4.12.1991. After arrest on the spot, a FIR was lodged against the said persons under Sections 420, 465, 468, 471 and 292, I.P.C. on 4.12.1991 itself and the learned Magistrate vide judgment and order dated 25.05.1992 convicted one of the accused namely Kavita Sahu. 10. Since the obscene films were being made under the Police Station Panki, Kanpur Nagar, the Officer Incharge Sri J. P. Singh of Police Station was reverted, who preferred an application to the Inspector General of Police for holding of enquiry in respect of the occurrence and in consequence thereof Additional Superintendent of Police held an enquiry and reported that since charge-sheet has been filed therefore no comments can be made. However under pressure of one M.L.A. FIR was filed under Section 342, 218 and 120-B, I.P.C. against the petitioner and other police personnels, who had arrested the accused persons relating to preparation of obscene films by cheating the young girls. After investigation, the police found all the allegations baseless, consequently final report was submitted. However, under political pressure the State Government directed to hold C.B.CID enquiry into the occurrence, in which one of the accused has already been convicted. Though under law, second FIR in respect of the same allegations is not legally permissible but during investigation second 13 (1) (d) Prevention of Corruption Act was also added after five years with a view to bring the offence within limitation and the FIR was lodged on 12.9.1993. 11. Learned counsel for the petitioner placed reliance on the decision in Union of India and others v. K.V. Jankiraman and others, 1991 (4) SCC 109 . Paras-16 and 17 are being reproduced here under : “16. On the first question, viz. 11. Learned counsel for the petitioner placed reliance on the decision in Union of India and others v. K.V. Jankiraman and others, 1991 (4) SCC 109 . Paras-16 and 17 are being reproduced here under : “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 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 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 finalize 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. 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 on official; (2) ………………………….. (3) ………………………….. (4) the sealed cover procedure can be resorted to only after a charge memo is served on the concerned official or the charge-sheet filed before the criminal Court and not before;” 17. 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 employee. Thus read, there is no inconsistency in the two conclusions.” 12. Counsel for the petitioner also placed reliance on the judgment in, Union of India and others v. Sangram Keshari Nayak, JT 2007 (6) SC 272. Paras-5, 6, 7 and 8 of the judgment are being reproduced below : “5. Promotion is not a fundamental right. Right to be considered for promotion, however, is a fundamental right. Such a right brings within its purview an effective, purposeful and meaningful consideration. Suitability or otherwise of the candidate concerned, however, must be left at the hands of the DPC, but the same has to be determined in terms of the rules applicable therefor. Indisputably, the DPC recommended the case of the respondent for promotion. On the day on which, it is accepted at the bar, the DPC held its meeting, no vigilance enquiry was pending. No decision was also taken by the employer that a departmental proceeding should be initiated against him. 6. Terms and conditions of an employee working under the Central Government are governed by the rules framed under the proviso appended to Article 309 of the Constitution of India or under a statute. No decision was also taken by the employer that a departmental proceeding should be initiated against him. 6. Terms and conditions of an employee working under the Central Government are governed by the rules framed under the proviso appended to Article 309 of the Constitution of India or under a statute. The right to be promoted to a next higher post can, thus, be curtailed only by reason of valid rules. Such a rule again, however, cannot be construed in a manner so as to curtail the right of promotion more than what was contemplated by law. 7. Whereas paragraph-6 of the said circular letter provides for a sealed cover procedure to be adopted by the Departmental Promotion Committee, the same has to be taken recourse to only in the event circumstances mentioned in paragraph-2 thereof arise after the recommendation of the Departmental Promotion Committee. The recommendations of the Departmental Promotion Committee, therefore, can be refused to be given effect to only inter-alia when one or the other conditions mentioned in paragraph-2 of the said circular stand satisfied which in the instant case would mean that as against the respondent a charge-sheet had been issued or, in other words, a disciplinary proceeding was pending. Admittedly, a charge-sheet was issued as against him only on 24.9.1999. 8. Thus, there was no bar in promoting the respondent during the period 14.1.1999 to 27.8.1999. No material was placed before the Departmental Promotion Committee to take recourse to the sealed cover procedure. In fact, none existed at the material time. Paragraph-2 of the said circular specifically refers to submission of charge-sheet as the cut-off date when a departmental proceeding can be said to have been initiated. Even otherwise such a meaning had been given thereto by this Court in K.V. Jankiraman (supra).” 13. In the counter affidavit, it is submitted that at the time of holding of the Departmental Promotion Committee by the Commission for promotion, no adverse material was available against the petitioner before the Departmental Promotion Committee. The letter No. 98/2008 dated 31.08.2009 from the Superintendent of Police, Balrampur, it came to the knowledge of the respondents that Criminal Case No. Aa.-Sa-195/93 under Sections 342/218/120-B, I.P.C. read with Section 13 (1) of the Prevention of Corruption Act was registered against the petitioner in Police Station Panki, Kanpur Nagar. The letter No. 98/2008 dated 31.08.2009 from the Superintendent of Police, Balrampur, it came to the knowledge of the respondents that Criminal Case No. Aa.-Sa-195/93 under Sections 342/218/120-B, I.P.C. read with Section 13 (1) of the Prevention of Corruption Act was registered against the petitioner in Police Station Panki, Kanpur Nagar. On verification of the facts, the office of the C.B.CID Crime Branch, Kanpur informed the respondents vide their letter No. CB-265/94 dated 2.9.2009 that the charge-sheet No. 12 dated 18.8.2009 has been submitted by them against the petitioner in the Court of District & Sessions Judge, Kanpur. The State Government took cognizance of this fact and as the result of the recommendations of the Departmental Promotion Committee had not yet been declared. The State Government took a decision for not declaring the result of the petitioner as per para-11 of the provisions of the Government Order No. 13/31/89-Ka-1-1997 dated 28.5.1997. In para-7 of the counter affidavit, it has been mentioned that the charge-sheet was prepared on 18.8.2009 and the same was submitted in the Court of District & Sessions Judge on 20.8.2009 but the same was not registered by the concerned Court, as the officer of the concerned Court informed the Pairokar that due to the inspection of Administrative Judge, Allahabad, it is not possible to register the charge-sheet today i.e. on that date. The receipt of the same was given on 2.9.2009 as SST No. 6/09. However, in the case file, the same was registered on 4.9.2009. 14. Learned Standing Counsel submitted that action has been taken in pursuance to the Government Order dated 28.5.1997 and it is well within the power of respondents to withhold the promotion of the petitioner as a criminal case has been registered against him, in which the charge-sheet has been submitted before the competent Court before the date of Departmental Promotion Committee. The writ petition lacks merit and deserves to be dismissed. 15. In rejoinder affidavit, learned counsel for the petitioner submitted that the charge-sheet has been filed in the Court on 20.8.2009 is absolutely wrong and false as the charge-sheet has been received on 2.9.2009 by the clerk concerned inasmuch as in the judicial order the learned Sessions Judge has observed that the charge-sheet has been received on 4.9.2009. 15. In rejoinder affidavit, learned counsel for the petitioner submitted that the charge-sheet has been filed in the Court on 20.8.2009 is absolutely wrong and false as the charge-sheet has been received on 2.9.2009 by the clerk concerned inasmuch as in the judicial order the learned Sessions Judge has observed that the charge-sheet has been received on 4.9.2009. It is further submitted by the learned counsel that the charge-sheet has been forwarded on 2.9.2009 by the Section Officer/Circle Officer of CB.CID and the same was filed on 4.9.2009 as will be evident from perusal of the order-sheet dated 4.9.2009. It is also submitted that the order for registering the case and taking cognizance is not to be passed by the clerk concerned, but by the Presiding Officer of the Court. The charge-sheet which has been filed alongwith the counter affidavit and writ petition clearly evidences that the charge-sheet was forwarded on 2.9.2009 and the same was received in the Court on 4.9.2009, upon which cognizance has been taken on 4.9.2009. It is also submitted that for any reason if the charge-sheet is not filed in the Court, then supplementary parcha is issued by the Investigating Officer indicating the reasons for non-submission of the charge-sheet in the Court, but no supplementary parcha has been issued nor the same has been filed alongwith counter affidavit. The allegation that the officer of the concerned Court informed the Pairokar that it is not possible to register the charge-sheet and grant receipt on 20.8.2009 is false on the face of it inasmuch as no mention has been made in the daily register contained in Annexure-CA-5 and CA-6 to the counter affidavit. Had it been fact, the entry to this effect would have been made. According to the opposite parties, the District Government Counsel (Criminal) has made an endorsement on the charge-sheet on 2.9.2009 and in view of this averment that the charge-sheet was filed in the Court on 20.8.2009 falls to the grounds. Otherwise, if the charge-sheet was filed in the Court on 20.8.2009 then the District Government Counsel (Criminal) would have been made an endorsement on that date i.e. 20.8.2009. Learned counsel for the petitioner further submits that in view of the Government Order dated 28.5.1997, the promotion of the petitioner cannot be withheld as the charge-sheet was filed in the Court much after meeting of the Departmental Promotion Committee. 16. Learned counsel for the petitioner further submits that in view of the Government Order dated 28.5.1997, the promotion of the petitioner cannot be withheld as the charge-sheet was filed in the Court much after meeting of the Departmental Promotion Committee. 16. I have considered the rival submissions of learned counsel for the respective parties and gone through the record. 17. The basic submission of the counsel for the petitioner is that the candidature of the petitioner was considered by the Departmental Promotion Committee for the post of Deputy Superintendent of Police (in ordinary group) of U.P. police on 22.8.2009 and approved the name of the petitioner alongwith other candidates for promotion. The Uttar Pradesh Public Service Commission, Allahabad sent its recommendation to the State Government for promotion of the petitioner. The further submission of the counsel for the petitioner is that on the date of meeting of Departmental Promotion Committee dated 22.8.2009, there was nothing adverse against the petitioner which warranted keeping the recommendation of the Departmental Promotion Committee in the sealed cover envelope and, therefore, the Departmental Promotion Committee rightly after considering the candidature of the petitioner sent its recommendation to the State Government for issuance of the promotion order after acceptance of the same. The record shows that a charge-sheet in a criminal case relating to subject matter of the year 1991 has been filed on 2.9.2009 in the Court and the Court took cognizance and registered the same on 4.9.2009. 18. The answering respondent in his counter affidavit admitted the fact that at the time of meeting of the Departmental Promotion Committee no adverse material was available against the petitioner before the Departmental Promotion Committee and it is through letter dated 31.8.2009 of the Superintendent of Police, it came to the knowledge of the respondent that in criminal Case No. Aa.-Sa-195/93 under Section 342/218/120-B, I.P.C. read Section 13 (1) of the Prevention of Corruption Act was registered against the petitioner in Police Station Panki, Kanpur Nagar. On verification of the facts, the office of the CB.CID, Crime Branch, Kanpur informed through the letter No.CB-265/94 dated 2.9.2009 that the charge-sheet No. 12 dated 18.8.2009 has been submitted against the petitioner in the Court of District & Sessions Judge, Kanpur Nagar. The State Government took cognizance of this fact and as the result of the recommendation of the Departmental Promotion Committee had not been declared. The State Government took cognizance of this fact and as the result of the recommendation of the Departmental Promotion Committee had not been declared. The State Government took decision for not declaring the result of the petitioner in pursuance to the Government Order dated 28.5.1997. It is also submitted by the learned Standing Counsel that charge-sheet was prepared on 18.8.2009 and the same was submitted to the Court on 20.8.2009 but the same was not registered by the concerned Court as the officer of the concerned Court informed the Pairokar that due to inspection of the Administrative Judge, it is not possible to register the charge-sheet on the said date. The receipt of the same was given on 2.9.2009 as SST No. 6/09 but in the case file the same was registered on 4.9.2009. 19. The learned counsel for the petitioner while replying the submission of the learned Standing Counsel submitted that from perusal of the copy of the charge-sheet it is evident that the charge-sheet was forwarded on 2.9.2009 by the Section/Circle Officer of CB.CID and the same was filed on 4.9.2009. It is also vehemently submitted by the learned counsel for the petitioner that the order of registering the case and taking cognizance is not passed by the clerk concerned but it is the Presiding Officer of the Court who passed the order. It is further submitted that if for any reason the charge-sheet is not filed in the Court, the supplementary parcha is to be issued by the Investigating Officer indicating the reason for not submitting the charge-sheet in the Court but no supplementary parcha has been issued nor the same has been filed alongwith the counter affidavit. The allegation that the officer concerned Court informed the Pairokar that it is not possible to register the charge-sheet and grant receipt on 20.08.2009 is false on the face of it inasmuch as no mention has been made in the daily register as mentioned in Annexure-CA-5 and CA-6 to the counter affidavit. Had it been fact, the entry to this effect would have been made. 20. It is admitted position that on the date of Departmental Promotion Committee there was no adverse material available against the petitioner before the Departmental Promotion Committee. Accordingly, the recommendations of the Departmental Promotion Committee were forwarded to the State Government. Had it been fact, the entry to this effect would have been made. 20. It is admitted position that on the date of Departmental Promotion Committee there was no adverse material available against the petitioner before the Departmental Promotion Committee. Accordingly, the recommendations of the Departmental Promotion Committee were forwarded to the State Government. The certified copy of the charge-sheet contained in Annexure-4 to the writ petition reveals that there are three signatures alongwith dates. One is of the Inspector CB.CID bearing the date of 18.8.2009, the other signature appears to be of DGC dated 2.9.2009 and third is the order of the Court taking cognizance and registering the charge-sheet on 4.9.2009. Therefore, it cannot be inferred that the charge-sheet was filed before the Court prior to 2.9.2009; meaning thereby the charge-sheet was filed in the Court after 10 days of the meeting of the Departmental Promotion Committee. The provisions of Government Order No.13/31/89-Ka-1-1997 dated 28.5.1997 also does not apply in the present case. The Government Order dated 28.05.1997 has been issued on the basis of decision of Hon’ble Supreme Court in Union of India v. K.V. Jankiraman, AIR 1991 (4) SC 2010. The para-2 (ga) of the Government Order provides that if the prosecution is pending against the employee on the basis of criminal charges, meaning thereby the charge-sheet for prosecution has been submitted in the Court. In the said case, in such a situation, close envelope proceedings will be adopted for keeping the recommendation of the Departmental Promotion Committee. The para-11 further provides that if any recommendation of the Selection Committee has been made, but before the issuance of the promotion order, anything comes in the light, if the same would have been before the Selection Committee, and the same requires to keep the recommendation of the Selection Committee in sealed envelope, the promotion to the concerned employee will not be given till the final decision and the recommendation would be deemed to be kept in the sealed envelope. 21. The Hon’ble Supreme Court in the matter of Union of India and others v. Dr. 21. The Hon’ble Supreme Court in the matter of Union of India and others v. Dr. Sudha Salhan (Smt.), 1998 (3) SCC 394 while agreeing to the decision of Union of India v. K.V. Jankiraman, 1991 (4) SCC 109 held that if on the date on which the name of the person is considered by the Departmental Promotion Committee for promotion to the higher post, such person is neither under suspension nor has any departmental proceedings been initiated against him, his name, if he is found meritorious and suitable, has to be brought on the select list and the sealed cover procedure cannot be adopted. The recommendation of the Departmental Promotion Committee can be placed in a sealed cover only if on the date of consideration of name for promotion, the departmental proceedings had been initiated or were pending or on its conclusion, final order had not been passed by the appropriate authority. 22. In view of the above, the writ petition is allowed and a writ in the nature of certiorari is issued thereby quashing the decision taken by the State Government of not declaring the result of the petitioner in pursuance to the letter dated 2.9.2009 of Inspector General of Police (Administration), Headquarter Director General of Police, U.P., Lucknow and further a writ in the nature of mandamus is issued to the opposite parties to declare the result of the Departmental Promotion Committee of the petitioner relating to the promotion on the post of Deputy Superintendent of Police (in ordinary group), U.P. Police held on 22.8.2009 and in case the name of the petitioner has been recommended by the Departmental Promotion Committee, he be given promotion on the said post from the date the recommendation of Departmental Promotion Committee has been implemented with respect to the other candidates who were considered alongwith the petitioner. 23. No order as to costs. ————