Research › Search › Judgment

Allahabad High Court · body

2011 DIGILAW 1662 (ALL)

SHIV PAL SINGH v. STATE OF U. P.

2011-07-12

RAN VIJAI SINGH, VINEET SARAN

body2011
JUDGMENT By the Court.—The petitioner is Junior Engineer (Civil) in the Irrigation Department of the State Government,who was eligible for promotion to the post of Assistant Engineer. His case was considered for such promotion. However, since there was a departmental inquiry pending against the petitioner, the Departmental Promotional Committee (hereinafter referred to D.P.C.) vide its decision dated 11.2.2009 declared the results of other candidates, but the decision in the case of the petitioner was kept in a sealed cover. 2. The case of the petitioner is that though in the inquiry the petitioner has been exonerated of all the charges vide inquiry report dated 6.4.2009, regarding which office memorandum was issued and communicated to the petitioner on 16.4.2009, but still respondents did not open the decision kept in sealed cover with regard to the promotion of the petitioner despite repeated representations made by the petitioner. The petitioner has thus filed this writ petition with the prayer to open the sealed cover at an early date, and if the department has recommended the case of the petitioner for promotion, then petitioner be given notional promotion from the date his next juniors have been given promotion. Prayer has also been made for a direction to the respondents to pay arrears of salary alongwith interest and cost. 3. We have heard Sri Satish Chandra Mishra learned counsel appearing for the petitioner as well as Sri Pankaj Saxena, learned Standing Counsel appearing for the State respondent and Sri P.S. Baghel, learned Senior Counsel, assisted by Sri Gautam Baghel appearing for the U.P. Public Service Commission, Allahabad and have perused the record. Pleadings have been exchanged and with the consent of the learned counsel for the parties, this petition is disposed of finally at this stage. 4. It is not in dispute that the petitioner was exonerated of the charges vide inquiry report dated 6.4.2009, which report has been accepted by the State Government and communicated to the petitioner on 16.4.2009. The submission of learned counsel for the petitioner has force that immediately after the exoneration in the inquiry proceeding, the sealed cover ought to have been opened and promotion granted to the petitioner, if it has been so recommended by the D.P.C. 5. The submission of learned counsel for the petitioner has force that immediately after the exoneration in the inquiry proceeding, the sealed cover ought to have been opened and promotion granted to the petitioner, if it has been so recommended by the D.P.C. 5. In the counter-affidavit filed by the Commission, it is stated that the Commission had sent letter on 29.7.2009 stating that they have considered the case of the petitioner and deferred the matter on the ground that there is a fresh inquiry initiated against the petitioner and the decision shall be taken after finalization of such inquiry. In the counter-affidavit filed on behalf of the Irrigation Department, it has been stated that after the completion of the inquiry and final order passed on 16.4.2009, in which the petitioner was exonerated of the charges, the disciplinary proceeding had come to an end and thereafter, Government had written letter to the Public Service Commission on 22.7.2009 to open the sealed envelop of the selection year 2008-2009 pertaining to petitioner’s promotion on the post of Assistant Engineer. In the said counter-affidavit, there is no mention of any fresh inquiry having been initiated against the petitioner. 6. In the counter-affidavit of the State Government, it has been stated in paragraph 4 that a fresh charge-sheet has been issued to the petitioner with regard to some other matter on 24.5.2010. It is however, not disputed that as on the date of passing of the order by the Commission on 29.7.2009, there was no inquiry pending against the petitioner. 7. It is not understood as to on what basis the Commission did not open the sealed cover by merely stating that some fresh inquiry is going on, whereas on the record as well as counter-affidavits filed, no evidence of any such inquiry is there of which the Commission has mentioned in its communication dated 29.7.2009. 8. The Hon’ble Apex Court in the case of Union of India v. K.V. Jankiraman, 1991 (4) SCC 109 , has held that the sealed cover procedure is to be resorted to only after the charge-memo/ charge-sheet is issued. 8. The Hon’ble Apex Court in the case of Union of India v. K.V. Jankiraman, 1991 (4) SCC 109 , has held that the sealed cover procedure is to be resorted to only after the charge-memo/ charge-sheet is issued. In the present case, once the petitioner had been exonerated of all the charges in the departmental inquiry, which had been accepted by the State Government, after the acceptance of the report, it was incumbent upon the Commission to open the sealed cover with regard to the promotion of the petitioner, which has wrongly not been done under the garb of a fresh inquiry having been started, which is totally incorrect. The charge memo/charge-sheet in the subsequent inquiry was issued after about a year. As such, there was no basis for the Commission to deny the petitioner the benefit of opening the decision regarding his promotion kept in sealed cover on the ground of pending inquiry. 9. In the aforesaid facts, in our view, the writ petition deserves to be allowed and it is accordingly allowed. The respondent No. 3 is directed to open the sealed cover with regard to the promotion of the petitioner and implement the recommendation of the Departmental Promotional Committee within a period of two weeks from the date of receipt of certified copy of this order. The petitioner shall also be entitled all consequential benefits, including payment of arrears of salary, if any, to which he may be found entitled if the recommendation made by the D.P.C. is in favour of his promotion. —————