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Rajasthan High Court · body

2011 DIGILAW 83 (RAJ)

Gajanand Sharma v. State

2011-01-11

MOHAMMAD RAFIQ

body2011
JUDGMENT Hon'ble RAFIQ, J.—This writ petition has been filed by the petitioner with the prayer that the respondents be directed to consider his case for promotion on the post of Additional Chief Engineer with effect from 7.10.2010, the date on which his junior was promoted with all consequential benefits and that action of the respondents in adopting sealed cover procedure in his case be declared illegal and further that two notices issued to him under Rule 17 of Rajasthan Civil Service (CCA) Rules, 1958 both dated 21.9.2010 and charge sheet dated 22.9.2010 may be quashed and set aside. 2. Shri Ashok Gaur, learned counsel for the petitioner has submitted that petitioner has been victimized only because he was debarred for promotion to the post of Additional Chief Engineer and that he was promoted on the post of Superintending Engineer in 2003 purely on merit basis, which is why certain elements in the department were biased against him and therefore they have ensured issuing of charge sheet to him merely few days before the meeting of Departmental Promotion Committee (for short-DPC) was convened. 3. It is contended that DPC was actually convened on 27.9.2001. Two notices under Rule 17 of the CCA Rules, 1958 have been issued to the petitioner both dated 21.9.2010 and a charge sheet under Rule 16 was issued to him dated 22.9.2010, which were served on him much after the meeting of DPC was convened. 4. According to the learned counsel for the petitioner, those two notices and charge sheet were purposely issued with a view to depriving the petitioner of his timely promotion. Except these, there is no other adverse material against the petitioner, which could delay or deny him the promotion, given the fact that he got his last promotion purely on merit basis. Learned counsel referred to the DOP Circular dated 4.6.2008 regarding promotion, especially clause 12.13(i) to argue that only such material with regard to pending disciplinary proceedings / criminal case /penalty / suspension shall be taken into consideration which was in existence as on the date on which vacancy, against which promotion is sought to be considered became available. Learned counsel referred to the DOP Circular dated 4.6.2008 regarding promotion, especially clause 12.13(i) to argue that only such material with regard to pending disciplinary proceedings / criminal case /penalty / suspension shall be taken into consideration which was in existence as on the date on which vacancy, against which promotion is sought to be considered became available. In the present case, it was seventh vacancy against which the promotion of petitioner became due on 7.9.2010, therefore, the petitioner should have been considered for promotion ignoring the above referred to two notices under Rule 17 and one charge sheet under Rule 16 of the Rules, all of which were issued/served after that date. Learned counsel further submitted that charge sheet has been issued to the petitioner under Rule 16 on the very flimsy and frivolous allegations with regard to flooring work undertaken by the Public Works Department in 2005 which at a later point of time developed cracks and in doing so, the respondents have issued such charge sheet to the petitioner only for supervisory negligence whereas the same charge sheet has been issued to three Executive Engineers of different times and three Assistant Engineers, thus in fact this is a joint charge sheet against seven persons, which would fulfill the desire of petitioner's detractors in delaying his promotion, not only affecting the petitioner alone but also all others as this joint enquiry might take very long to conclude. 5. Shri Ashok Gaur, learned counsel for the petitioner referring from the rejoinder submitted that seventh vacancy of Additional Chief Engineer was one, which was a deputation post and was created in Rajasthan State Road Development and Construction Corporation (for short-RSRDC) on 7.9.2010. It is therefore prayed that this writ petition be allowed in the terms prayed for. 6. Per contra, Shri Hari Barath, learned Deputy Government Counsel appearing for the respondents opposed the writ petition. It was argued that the seventh vacancy would go to Scheduled Caste. The case of the petitioner would become ripe for promotion against 9th post of the cadre, which became available on 23.9.2010. 6. Per contra, Shri Hari Barath, learned Deputy Government Counsel appearing for the respondents opposed the writ petition. It was argued that the seventh vacancy would go to Scheduled Caste. The case of the petitioner would become ripe for promotion against 9th post of the cadre, which became available on 23.9.2010. Refuting contention of the petitioner that this deputation post in RSRDC became available on 7.9.2010, Shri Hari Barath, learned counsel appearing for the respondent-department argued that this vacancy in fact became available on 23.9.2010 for which purpose, learned counsel submitted that the petitioner has not placed on record the complete document/order sheets of RSRDC on record with his rejoinder. Learned counsel referred to Annexure-R/2 which he has filed with his reply to rejoinder to argue that although Managing Director of RSRDC proposed for creation of one post of Additional Chief Engineer for being filled in by deputation as per the requirement of the Project on 7.9.2010, but the Chairman of the Corporation endorsed its decision on 21.9.2010 and marked the file to the Secretary of the Public Works Department who acknowledged the same on 23.9.2010. This is how this post of deputation became available on 23.9.2010. 7. Shri Hari Barath, learned Deputy Government Counsel referring to the Department of Personnel Circular dated 4.6.2008 has argued that in fact clause 12.13(ii) would be applicable to the case of the petitioner that all the materials with regard to pending disciplinary proceedings / criminal case / penalty /suspension etc. available against the employee concerned as on the date when the DPC is convened, would have to be seen. Learned counsel cited the judgement of Supreme Court in Union of India & Ors. vs. K.V. Jankiraman & Ors.-1991 (4) SCC page 109 to buttress his submissions. 8. Ms. Raj Sharma, learned Additional Government Counsel appearing for Department of Personnel was not in a position to state with certainty as to within what time, disciplinary proceedings initiated against the petitioner would be concluded, but she does not dispute the fact that this charge sheet under Rule 16 was issued to the petitioner on 22.9.2010, merely few days before the meeting of DPC was convened. 9. In the facts of the case there is no dispute between the parties that it was a deputation vacancy which became available with RSRTC, which is being claimed by the petitioner. 9. In the facts of the case there is no dispute between the parties that it was a deputation vacancy which became available with RSRTC, which is being claimed by the petitioner. According to the petitioner it was seventh vacancy, whereas the respondents have demonstrated in their reply to the rejoinder that this was in fact ninth vacancy of the year and fourteen post of the cadre. Claim and counter claim that have been made by both the parties is with regard to the very same vacancy for which the petitioner was due to be considered for promotion. It is apparent that in regard to the incident of 2005, charge sheet has been issued to the petitioner on 22.9.2010 which according to the petitioner was served on him much later. From perusal of the statement of allegations also, charge prima facie does not appear to be that grave. But even then, for the technicalities of law, petitioner shall have to suffer because it is a matter of fact that charge sheet has been issued not only to him but also to six others. What is surprising is that if at all this was an event of 2005, why the issuance of charge sheet was delayed so as to coincide with convening of the DPC. Although there is no specific allegation of mala fide against any one by name, this Court need not go into all that, but nevertheless malice in law can be inferred from the facts of the case that not only one charge sheet under Rule 16 was issued, but two other memos under Rule 17 were also issued to the petitioner merely 4-5 days before DPC was convened at a time when the case of the petitioner was ripe for consideration for promotion by DPC. Moreover, his detractors in getting this joint charge sheet issued to several officers have ensured that the petitioner remains entangled therein for a long period so that his promotion is delayed by years together. However, now that those two notices under Rule 17 and charge sheet under Rule 16 of the CCA Rules have been actually issued to the petitioner, they must be taken to their logical conclusion. The question would be as to how long the petitioner should await for conclusion of those proceedings. 10. However, now that those two notices under Rule 17 and charge sheet under Rule 16 of the CCA Rules have been actually issued to the petitioner, they must be taken to their logical conclusion. The question would be as to how long the petitioner should await for conclusion of those proceedings. 10. In my considered view in so far as the two notices issued under Rule 17 on 21.9.2010 are concerned, the petitioner can immediately file reply thereto and the respondents shall pass final order on those memos within a reasonable time, which should not be longer than three months. For charge sheet under Rule 16 of course, it may take little longer because the respondents have issued such charge sheet to so many persons which include the petitioner on the charge of supervisory negligence and three Executive Engineers and three Assistant Engineers on other charges. Those proceedings deserve to be expedited, given the fact that not just petitioner would suffer, but pending such proceedings, all of them would suffer in similar manner like the petitioner. 11. Those proceedings deserve to be expedited, given the fact that not just petitioner would suffer, but pending such proceedings, all of them would suffer in similar manner like the petitioner. 11. In the result, this writ petition is allowed in part with the following direction: i) that the petitioner shall file his reply to the notice under Rule 17 within a period of one month from today and the disciplinary authority shall pass final order thereupon within three months from the date of receipt of reply of the petitioner; ii) that the respondents shall also require the petitioner and other delinquents to file their reply to the charge sheet under Rule 16, in case the petitioner and other delinquent demand any document, the disciplinary authority shall provide the same to them within a period of two months from the date of such application; iii) that the respondents shall not delay the inspection / supply of documents and if they decide not to supply such documents or allowed their inspection, convey reasoned reply to such application immediately to the concerned delinquent; iv) that petitioner and other delinquent shall file their reply to the charge sheet within one month from the date of receiving the document/making inspection, whichever is later; v) that the department shall within three months from the date of filing of reply by the petitioner and other delinquents, conclude their evidence, oral and documentary; vi) that the petitioner and other delinquent shall produce their evidence both oral and documentary, within three months therefrom; vii) that the enquiry report shall be furnished to each of the delinquent within one month thereafter; viii) that thereafter if the enquiry officer holds the petitioner or any other delinquent guilty of any charge, they would be at liberty to file representation thereagainst within one month thereafter; ix) that final order shall be passed by the disciplinary authority within one month thereafter; x) that in this manner, the enquiry proceedings shall be concluded and final order would be passed within one year, which period would start to run from the date copy of this judgement is produced before the disciplinary authority.