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2011 DIGILAW 59 (JHR)

Mrityunjay Kishore Mittu v. State of Jharkhand

2011-01-31

J.C.S.RAWAT

body2011
Order The petitioner has filed this writ petition challenging the decision of the Departmental Promotion Committee dated 8.11.2004 whereby the petitioner was not found fit for promotion in view of the fact that there were certain allegations against the petitioner. The petitioner has further prayed that mandamus be issued against the respondents to grant him promotions to the posts of Senior Superintendent of Police and the Additional Superintendent of Police from the date other similarly situated persons have been granted promotion by the said Committee on 8.11.2004. 2. The petitioner was appointed as the Deputy Superintendent of Police on the basis of the combined competitive examination held by the Bihar Public Service Commission on 3.5.1983. He continued to discharge his duties as such in different places of the State. After re-organisation of the State of Bihar, the petitioner was allocated to the State of Jharkhand and his promotion was considered on 8.11.2004. In the impugned order, it has been indicated that he is a charged officer and he was not found fit for promotion. 3. The writ petition was contested by the respondents and they supported the impugned order and alleged in the counter affidavit that the Selection Committee was held under the chairmanship of the Chairman, Jharkhand State Public Service Commission for petitioner's promotion from the post of Deputy Superintendent of Police to the higher post and, the petitioner being a charged officer was not found fit by the Departmental Promotion Committee for promotion. It was further alleged that on 5.10.1996 he had been given a warning which was entered in his character roll and as such the petitioner cannot claim that he had spotless character. The respondents have further stated in the counter affidavit that the petitioner's case would be considered and as soon as the process for promotion would be completed, the promotion would be given to the petitioner. 4. Learned counsel for the petitioner contended that mere pendency of any allegation or charge cannot be a ground to declare a person unfit for promotion. Learned counsel for the respondents refuted the contention. 4. Learned counsel for the petitioner contended that mere pendency of any allegation or charge cannot be a ground to declare a person unfit for promotion. Learned counsel for the respondents refuted the contention. It is well settled principle of law that if any proceeding is initiated against a person and he has not been found guilty in any departmental proceeding, the Departmental Promotion Committee would not reject his case out-rightly on the ground that the departmental proceedings are pending against him or that the person has been charged in any departmental enquiry. It is also a settled principle of law that in such cases, the Departmental Promotion Committee has to consider his claim and it was open to it to keep the proceeding in a sealed envelope or keep the matter pending. The sealed cover would be opened if the departmental proceeding is terminated and he would be given the benefit of the decision taken by the Departmental Promotion Committee. In the instant case, the Departmental Promotion Committee has not taken recourse of the same procedure. 5. In the instant case, from Annexure-2 to the writ petition, it is apparent that the departmental proceeding which was initiated has attained the finality and the respondent State had taken a decision in the year 1992, which was communicated in the year 1996, that the petitioner has been warned for the charges which had been levelled against him in the year 1987. Learned counsel for the respondents could not demonstrate that the proceedings against the petitioner is still pending in connection with the charges levelled against him in the year 1987. Thus, it can be concluded that the enquiry has concluded with the infliction of a minor punishment to the petitioner by way of warning which was recorded long ago in the Character Roll of the petitioner. Thus, the endorsement made in Annexure-3 to the writ petition (copy of the minutes of the DPC dated 8.11.2004) while denying promotion to the petitioner is not correct. Learned counsel for the State could not demonstrate from the records that any adverse entries have been awarded thereafter. The case of the petitioner is squarely covered by the decision of this Court delivered in Shivaji Singh vs. State of Jharkhand [WP(S) No. 1096 of 2001 dated 21.7.2005]. Learned counsel for the State could not demonstrate from the records that any adverse entries have been awarded thereafter. The case of the petitioner is squarely covered by the decision of this Court delivered in Shivaji Singh vs. State of Jharkhand [WP(S) No. 1096 of 2001 dated 21.7.2005]. In these circumstances, the order of the respondent as contained in Annexure-3 to the writ petition is sustainable as against the petitioner. The petitioner is entitled to get the promotion from the date when his juniors have been promoted to higher scale. The petitioner is entitled to be considered for promotion by the State of Jharkhand and the matter be placed before the Departmental Promotion Committee for consideration in the next meeting. 6. In view of the above facts and circumstances of the case, I direct the respondents to consider the petitioner's case for his promotions to the higher posts and the pay scales as claimed in the writ petition from 8.11.2004, the date other similarly situated persons had been granted promotion. The respondents shall take a final decision expeditiously in the case of the petitioner, preferably within a period three months from the date of production/receipt of a copy of this order. With the above observations and direction, this writ petition is allowed. No order as to costs.