Research › Search › Judgment

Uttarakhand High Court · body

2011 DIGILAW 40 (UTT)

State of Uttarakhand v. Rakesh Mittal

2011-01-06

BARIN GHOSH, V.K.BIST

body2011
JUDGMENT BARIN GHOSH, C. J. (Oral) 1. The writ petition is utterly frivolous. The same is dismissed with exemplary cost of Rs. 50,000/-. The State Government is directed to pay the cost of Rs. 50,000/- to the High Court State Legal Services Authority before 1st March, 2011. It shall be open to the State Government to recover the cost from the person or persons, who advised the State Government to prefer this writ petition. 2. The Departmental Promotion Committee, consisting of Dr. R.S. Tolia, Chief Secretary to the State of Uttarakhand; Sri M. Ramachandran, Addl. Chief Secretary to the State of Uttarakhand; and Sri S.K. Das, Principal Secretary, Home, State of Uttarakhand, considered the case of two candidates, who came within the zone of consideration for being promoted to the post of Director General of Police. After having had considered the service record and annual confidential entries of respondent No. 1, they noticed that an inquiry is pending against respondent No. 1 in respect of Police Sub-Inspectors’ recruitment. The Departmental Promotion Committee, thereafter, recorded in their Minutes, as stand translated into English, as follows: “Therefore, the selection committee did not consider the case of Sri Mittal.” 3. Accordingly, the case of promotion of respondent No. 1 was not considered by the said Departmental Promotion Committee only because an inquiry was then pending against respondent No. 1. 4. In the said Minutes, it was recorded by the Departmental Promotion Committee that they looked into the service record and annual confidential entries of Smt. Kanchan Bhatacharya and recommended her to be promoted to the post of Director General of Police. Accordingly, Smt. Kanchan Bhatacharya was promoted. Admittedly, Smt. Kanchan Bhatacharya is junior to respondent No. 1. Respondent No. 1, accordingly, approached the Central Administrative Tribunal contending that there was no just reason to refuse to give promotion to respondent No. 1, who is admittedly senior to Smt. Kanchan Bhatacharya. 5. Petitioner before us contended before the Tribunal that the Departmental Promotion Committee, noting that an inquiry is pending against respondent No. 1, held that he was not suitable. This contention was contrary to the Minutes of the Departmental Promotion Committee. The Tribunal held that the contention of the Departmental Promotion Committee that respondent No. 1 is not suitable, for an inquiry is pending against him, is not only unjust, but such contention has no legs to stand in law. This contention was contrary to the Minutes of the Departmental Promotion Committee. The Tribunal held that the contention of the Departmental Promotion Committee that respondent No. 1 is not suitable, for an inquiry is pending against him, is not only unjust, but such contention has no legs to stand in law. The other contention before the Tribunal was that in terms of the guidelines issued by the Ministry of Home Affairs, Government of India, dated 15th January, 1999, if a vigilance or departmental inquiry has been started against an officer on the panel after a preliminary inquiry establishing charges prima facie, the said officer shall not be promoted pending the result of inquiry. The fact remains, prima facie establishment of charge arises when a charge-sheet is filed. The Hon’ble Supreme Court of India has also said so in its celebrated judgment rendered in the case of Union of India Vs. K.V. Jankiraman reported in AIR 1991 SC 2010, which judgment of the Hon’ble Supreme Court was also duly taken note of by the Tribunal. It was also contended before the Tribunal that the suitability of respondent No. 1 was adjudged and, on the backdrop of pendency of the inquiry, respondent No. 1 was found not suitable. We have stated that the said stand taken before the Tribunal is contrary to the Minutes of the Departmental Promotion Committee. It was contended that, in any event, since the inquiry, which was pending at the time when the Departmental Promotion Committee considered the case of respondent No. 1, resulted in filing of a charge-sheet, respondent No. 1 cannot be considered for promotion. That aspect of the matter, too, has been dealt with by the Tribunal. The Tribunal has held, following the judgment of the Hon’ble Supreme Court rendered in the case of Delhi Jal Board Vs. Mahinder Singh reported in 2000 (7) SCC 210, that right of consideration for promotion of a Government servant, who fulfills the eligibility criteria and comes within the zone of consideration, is a fundamental right under Article 16 of the Constitution of India. Mahinder Singh reported in 2000 (7) SCC 210, that right of consideration for promotion of a Government servant, who fulfills the eligibility criteria and comes within the zone of consideration, is a fundamental right under Article 16 of the Constitution of India. If that be so, after having had denied such fundamental right, it is not permissible for the person, who has denied such right, to come and contend that since, subsequent to such consideration, the inquiry has resulted in filing of a charge-sheet, respondent No. 1 is not entitled to consideration of his case for promotion as on the date his case was to be considered, but was not considered only for an inquiry was pending. 6. In the present writ petition, nothing has been highlighted to challenge any part of the judgment and order of the Tribunal, impugned in the present writ petition. It is surprising that on 15th December, 2008, the present writ petition was not even complete. On that date, Mr. L.P. Naithani, learned Advocate General, appeared on behalf of the petitioner and submitted that some facts could not be stated in the writ petition by oversight and inadvertence. He, accordingly, made an oral prayer for filing a supplementary affidavit to state those facts. Such oral prayer was allowed, but still then, an interim order was passed, without recording any reason, staying the operation of the judgment of the Tribunal. Subsequently, by order dated 7th January, 2009, that interim order was directed to continue until further orders, but without recording any reason in support thereof. 7. We, accordingly, conclude that the manner in which the Departmental Promotion Committee conducted its affairs on the date they were required to decide the fate of the claim of respondent No. 1 for being promoted, the Tribunal had no other option but to do what it did by the judgment and order impugned in this writ petition and there is no just reason for preferring the present writ petition and, accordingly, we have been constrained to impose such cost on the State. 8. The writ petition is, accordingly, dismissed.