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2011 DIGILAW 718 (MP)

A. K. Agrawal v. State of Chhattisgarh

2011-07-05

SATISH K.AGNIHOTRI

body2011
ORDER Satish K. Agnihotri, J. Writ Petition Under Article 226 of The Constitution Of India 1. By this petition, the Petitioner seeks a direction to the Respondents to consider his case for reglarisation/ regular promotion on the post of Assistant Engineer (Civil) w.e.f. 31.07.2008, and further seeks to quash the order dated 14.05.2008 (Annexure P-2), whereby, minor penalty of "censure" has been imposed. The Petitioner, also seeks a direction to fix the seniority of the Petitioner, in accordance with the policy/guidelines of promotion, as per his seniority in the promotion list to the post of Assistant Engineer (Civil) on ad hoc basis in the order dated 12.07.2004 (Annexure P-3). 2. The facts, relevant, in brief for adjudication of the dispute raised in this petition are in narrow compass. The Petitioner was initially appointed in the Public Works Department on 09.02.1988 and joined the post in the office of Sub Divisional Officer, Balod, District Durg. Thereafter, the Petitioner alongwith others were considered for promotion and by order dated 12.07.2004 (Annexure P-3), the Petitioner was promoted on ad hoc basis to the post of Assistant Engineer. He was placed in the list at serial No. 30. Thereafter, a show cause notice was issued for use of sub standard material and coal-tar in the lesser quantity, which damaged the road in the National Highway No. 6 between 326 to 339 and from 375 to 380 km. The Petitioner submitted his reply on 19.07.2007 (Annexure P-5) and one representation was made to the Chief Engineer, Public Works Department, Raipur, on 01.08.2007 (Annexure P-6) also. After consideration of his reply, the Petitioner, alongwith two other Sub Engineers namely K.K. Singh and J.L. Tandon, was placed under suspension on 03.08.2007 (Annexure P-7). Thereafter, the charge sheet was issued on 15.10.2007 (Annexure P-8) alongwith imputation of charges, list of witnesses and list of documents. One more notice was issued on 05.10.2007 (Annexure P-9), which was replied to by the Petitioner on 18.10.2007 (Annexure P-10). The enquiry officer found charges proved, thus, the competent authority imposed a minor punishment of "censure" by order dated 14.05.2008. The Departmental Promotion Committee (for short "the DPC") considered the case of other similarly situated ad hoc Assistant Engineers and by order dated 31.07.2008, regularized their promotion and the case of the Petitioner was not considered. Thus, this petition. 3. The enquiry officer found charges proved, thus, the competent authority imposed a minor punishment of "censure" by order dated 14.05.2008. The Departmental Promotion Committee (for short "the DPC") considered the case of other similarly situated ad hoc Assistant Engineers and by order dated 31.07.2008, regularized their promotion and the case of the Petitioner was not considered. Thus, this petition. 3. Shri Shrivastava, learned Counsel appearing for the Petitioner submits that the State has taken stand in the legislative assembly that the material used in the construction of the said road was not sub standard and the damages had taken place on account of heavy rains. On the contrary, in the enquiry, it has been held that the Petitioner alongwith other two persons were responsible for causing damage by using sub standard materials and less quantity of coal-tar. Thus, the imposition of minor penalty of "censure" may be quashed. Shri Shrivastava, further submits that under circular dated 2.5.1990 (Annexure P-12), it has been stated that the "censure" would not come in the way of promotion. Thus, withholding the regularization of the promotion of the Petitioner on ad hoc basis, when other similarly situated ad hoc Assistant Engineers were confirmed on the post, is bad and vitiated. 4. On the other hand, Shri Bhaduri, learned Panel Lawyer appearing for the State/Respondents submits that the minor penalty was imposed on 14.05.2008 (Annexure P-2); thereafter, a DPC was held on 31.07.2008 and on account of the imposition of penalty of "censure", the Petitioner could not be considered for regularization on ad hoc promotion. The statement made in the legislative assembly is not conclusive, as that was the prima facie view of the Minister. On enquiry, it has been clearly found that the damage was caused on the road, on account of use of sub standard materials and less quantity of coal-tar than the required standard. Thus, the petition deserves to be dismissed. 5. I have heard learned Counsel appearing for the parties, perused the pleadings and the documents appended thereto. 6. The Petitioner has not challenge the enquiry on the permissible grounds that proper opportunity of hearing was not afforded or enquiry officer has relied on certain materials, which were not shown to the Petitioner or the enquiry was perverse. Thus, the imposition of minor penalty of "censure" cannot be held as bad in law. 6. The Petitioner has not challenge the enquiry on the permissible grounds that proper opportunity of hearing was not afforded or enquiry officer has relied on certain materials, which were not shown to the Petitioner or the enquiry was perverse. Thus, the imposition of minor penalty of "censure" cannot be held as bad in law. The proper enquiry was held, Petitioner was afforded full opportunity to present his case and Petitioner was supplied with a list of documents, list of witnesses alongwith the charge sheet and further no enquiry report has been filed pointing out any deficiency or defect in the enquiry. Thus, statement in the legislative assembly, cannot be a ground to come to a conclusion that the enquiry was vitiated. 7. With regard to non-consideration of the Petitioner alongwith other similarly situated ad hoc Assistant Engineers on 31.07.2008, there is no dispute that the Petitioner's case was different than others' case, as they were having no adverse penalty against them. The "censure" may not be a penalty for withholding and non-consideration of the promotion. However, it is a minor penalty, which would be relevant while considering the case of the other candidates for regularization of their ad hoc promotions. Thus, it cannot be held that there was an error in not considering the case of the Petitioner for regularization on ad hoc basis Assistant Engineer, on the day, others were considered and regularized on the promotion post. 8. The Supreme Court in the matter of State of M.P. and Anr. v. I.A. Qureshi considering the effect of minor penalty of "censure" as prescribed under Rule 10 of M.P. Civil Service (CCA) Rules and circular dated 2.5.1990, which are in consideration in this petition also, held as under: 8. We are unable to accept the said contention of Shri Khanduja. "Censure" cannot be equated with a warning since under Rule 10 of the M.P. Civil Services (Classification, Control & Appeal) Rules, 1966, "censure" is one of the minor penalties that can be imposed on a government servant. It cannot, therefore, be said that the penalty of censure which was imposed on the Respondent in the departmental proceedings was not a penalty as contemplated in the circular dated 2.5.1990. It cannot, therefore, be said that the penalty of censure which was imposed on the Respondent in the departmental proceedings was not a penalty as contemplated in the circular dated 2.5.1990. Once it is held that a minor penalty has been imposed on the Respondent in the departmental proceedings, the direction given in the said circular would be applicable and the sealed cover containing recommendations of the DPC could not be opened and the recommendations of the DPC could not be given effect because the Respondent has not been fully exonerated and a minor penalty has been imposed. The Respondent can only be considered for promotion on prospective basis from a date after the conclusion of the departmental proceedings. 9. In view of foregoing, the Petitioner was not entitled for consideration on the post of Assistant Engineer (Civil) w.e.f. 31.07.2008. It is, however, made clear that the Petitioner become entitled for consideration in the next DPC, which might have held in the year 2009. Accordingly, the State is directed to consider the case in the subsequent DPC for regularizing the Petitioner's ad hoc promotion, on its own merit. 10. For the reasons mentioned hereinabove, the writ petition is dismissed with the above stated direction. No order as to costs.