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2012 DIGILAW 410 (JHR)

Binod Shankar Mishra v. State of Jharkhand

2012-03-21

P.P.BHATT

body2012
Order Heard the learned counsel for the petitioner as well as the learned counsel for the State. 2. Perused the papers. 3. With consent of the learned counsel for the parties, this case is taken up for final disposal. 4. Mr. Sunil Singh learned counsel appearing for the Respondent-State waives service of Rule on behalf of the State. 5. The petitioner by way of filing the present writ petition under Article 226 of the Constitution of India has prayed for issuance of appropriate writ/direction commanding upon the respondents to consider the case of the petitioner for promotion in Junior Selection Grade w.e.f. 1997 as the juniors to the petitioner have been granted promotion vide notification dated 27.2.1999 w.e.f. 20.8.1997. Subsequently during pendency of this writ petition the petitioner filed I.A. No. 2712 of 2010 seeking amendment in the main petition with a prayer to consider the case of the petitioner for promotion to the post of Senior Selection Grade as the Juniors to him have been given the said promotion on the post of Senior Selection Grade during pendency of this writ petition. The said I.A. for amendment was allowed by order dated 22.7.2010 and accordingly the petitioner was permitted to carry out amendment in the petition. 6. It is the case of the petitioner that he was appointed on the post of Deputy Collector in pursuance to the advertisement issued by the Public Service Commission in the year 1981. Subsequently on 8th December, 1996, FIR for the alleged offence punishable under Sections 409/470/161/469/468 of the Indian Penal Code as well as Sections 7/13 of the Prevention of Corruption Act came to be filed -against the petitioner and on account of this criminal complaint the promotion of the petitioner was withheld by the department concerned. It is the case of the petitioner that first Departmental Promotion Committee met for the purpose of considering the case of eligible officers for promotion of Junior Selection Grade on 6.9.1998. In pursuance to the decision/ recommendation made by the Departmental Promotion Committee notification came to be issued on 27.2.1999 and effect of the promotion was given from 20th August, 1997 whereby the officers, who were juniors to the petitioner, were promoted whereas the case of the petitioner was considered but effect of promotion was not given and it was decided to kept one post vacant. Subsequently, on 26.9.2000 Departmental Promotion Committee again considered the cases for promotion but so far as petitioner's case is concerned, it was decided to keep one post vacant. Subsequently thereto on 16.7.2001 Departmental Promotion Committee did not consider the case of the petitioner for promotion. The main reason for not considering favourably or giving effect promotion to the petitioner was lodging of one criminal complaint against him on 8th December, 1996. It is the case of the petitioner that on 1.12.2004 once again Departmental Promotion Committee met but that time also the case of the petitioner was not considered properly by the respondent and without understanding the legal position sealed cover procedure was adopted qua the petitioner. On 19.5.2005 again Departmental Promotion Committee granted promotion to the officers, who were junior to the petitioner, to the post of Senior Selection Grade which is equivalent to the post of Additional Collector. This development took place during pendency of this petition and therefore the petitioner filed I.A No. 2712 of 2010 seeking amendment in the prayer portion of the main petition which was allowed by this Court vide order dated 22.7.2010. The petitioner has challenged the action of the respondent authorities with regard to grant of promotion to the officers, who were juniors to him and thereby superseding/by-passing the petitioner though he was eligible and entitled for the promotion even when the first Departmental Promotion Committee met on 6.9.1998 as well as at the time of granting of Senior Selection Grade on 19.5.2005. The petitioner's case is based on the fact that merely filing of a complaint does not preclude him for considerati9n of promotion to the higher post. In this regard the learned counsel for the petitioner has pointed out from the averments made in the petition and more particularly from paragraph 11 of the petition to show that even after lapse of more than 7 years' from the date of lodging of the FIR no charge-sheet has been filed till date. Neither any departmental proceeding has been contemplate nor initiated by serving any charge memo to the petitioner and therefore, according to the petitioner, neither the departmental proceeding nor any criminal proceeding can be said to be pending against the petitioner in the eye of law because it is a settled principle in the case of Union of India and Others vs. K.V. Jankiraman and Ors. that the departmental proceeding or a criminal proceeding is said to be initiated from the date of charge-sheet which has been served against the petitioner. By referring the said paragraph the learned counsel for the petitioner has simultaneously referred to paragraph of counter affidavit filed by the respondent-State and more particularly paragraph 5 to show that the respondent-State has not replied averments made in paragraph-11 of the petition in their counter affidavit. Likewise the learned counsel for the petitioner has referred to paragraph-13 of the petition to show that averments made therein has not bl3en dealt with and replied by the Respondent-State in its counter affidavit anywhere. The learned counsel for the petitioner pointed out that the charge-sheet came to be filed on 29.6.2005. In this context the learned counsel for the petitioner also referred to and relied upon circular/Sankalpa No. 6227 dated 20.11 .2008 issued by the State of Jharkhand, Department of Personnel, Administrative Reform and Rajbhasl'a. From perusal of Clause (i)(a)(b)(c) of the said circular it appears that the State of Jharkhand had adopted the guidelines issued by the Government of India on 14.9.1992 and subsequently passed a resolution whereby certain eventuality has been prescribed for consideration of cases while granting promotion to the officers/employees working under the various department in the State of Jharkhand and in above referred clause it is provided that in case, any criminal complaint (FIR) is instituted against the officers/employees, but charge-sheet has not been filed, then in that case, their cases can be considered for promotion, meaning thereby merely filing of a criminal complaint will not be sufficient to prevent/obstruct the case for grant of promotion. The learned counsel for the petitioner emphasized that in the instant case the charge-sheet came to be filed only on 29.6.2005 meaning thereby on previous occasion, referred by the learned counsel for the petitioner, when the Departmental Promotion Committee met to consider the case of the petitioner for grant of promotion there was no charge-sheet and therefore, the petitioner was eligible and entitled for consideration at the relevant point of time. The learned counsel for the petitioner also referred to and relied upon the judgment in the case d Union of India and Ors. VS. K.V. Jankiraman and Ors. reported in (1991)4 S.C.C. 109 [ : 1992(1) PLJR (SC)27]. The learned counsel for the petitioner also referred to and relied upon the judgment in the case d Union of India and Ors. VS. K.V. Jankiraman and Ors. reported in (1991)4 S.C.C. 109 [ : 1992(1) PLJR (SC)27]. The learned counsel appearing for the petitioner by referring the paragraphs No. 16 and 17 of the said judgment pointed out that as per ratio laid down in the said judgment the case of the petitioner was required to be considered by the Departmental Promotion Committee. The learned counsel appearing for the petitioner also referred to and relied upon another judgment in the case of Ajit Singh and Others(II) VS. State of Punjab and Others reported in (1999)7 S.C.C. 209 . It is submitted that "right to consider for promotion is a fundamental right of an employee" as observed by the Hon'ble Apex Court. It is further submitted that similar view was also taken by the Hon'ble Apex Court in its subsequent judgment reported in (2010)4 S.C.C. 290 where the Hon'ble Apex Court observed that right of an eligible employee to be considered for promotion is virtually the part of his fundamental rights under Article 16 of the Constitution of India. 7. As against that, the learned counsel appearing for the State by referring the counter affidavit filed by the respondent on 13.9.2005 submitted that the promotion to the members of State Administrative Service was under control of the Bihar Government before the final cadre division in May, 2003. It is submitted that after cadre division the Departmental Promotion Committee in its meetings dated 1.12.2004 and 20.5.2005 considered the name of the petitioner for promotion and the Committee has adopted the sealed cover process qua the petitioner as the prosecution has been sanctioned in a criminal case (Basisisth Nagar P.S. Case No. 40 of 1996) against the petitioner. The learned counsel for the State also referred to the order of the sanction issued by the State of Jharkhand which is annexed to the counter affidavit. Over and above, the learned counsel for the State also referred to another counter affidavit filed by the respondents on 18.8.2010. The learned counsel for the State also referred to the order of the sanction issued by the State of Jharkhand which is annexed to the counter affidavit. Over and above, the learned counsel for the State also referred to another counter affidavit filed by the respondents on 18.8.2010. By referring paragraph-7 of the said counter affidavit the learned counsel for the State submitted that when the petitioner-Vinod Shankar Mishra J.A.S. (315/2003) was posted a Block Development Officer, Chatra some irregularities was reported in connection with Joripratappur Road Construction scheme and D.D.C., Chatra inquired into the matter and lodged FIR on 8.12.1996 in Basisisth Nagar P.S. Case No. 40 of 1996. It is submitted that in this matter Deputy Commissioner, Chatra made request for sanction of prosecution vide letter no. 1231 dated 5.12.2003 against the petitioner and others. Consequently, the Law (Justice) Department vide order no. 67/J dated 20.12.2004 sanctioned prosecution against the petitioner. It is also pointed out that as per report of the D.D.C., Chatra there was defalcation of Rs. 5,60,000/- approximately. Looking to the gravity of the offence, the Departmental Promotion Committee in its meeting held on 1.12.2004 and 20.5.2005 adopted the sealed cover procedure. 8. Considering the aforesaid rival submissions and on perusal of the materials available on record the short question, which arises for consideration, is as to whether promotion of an employee/officer can be denied and post can be kept vacant in absence of charge-sheet in a criminal case. The petitioner's case is based on fact that one FIR came to be filed on 8th December, 1996 for the alleged offence punishable under Sections 409/470/ 161/469/468 of the Indian Penal Code as well as Sections 7/13 of the Prevention of Corruption Act and subsequent thereto Departmental Promotion Committee granted promotion to the officers, who were juniors to the petitioner, at two different stages firstly, on 6.9.1998 junior selection grade was granted to the officers who were juniors to the petitioner w.e.f. 20th August, 1997 and notification in this regard came to be issued on 27.2.1999, secondly, senior selection grade was granted to the juniors, which is equivalent to Additional Collector, on 19.5.2005. According to the petitioner, FIR was lodged on 8th December, 1996 and the investigation prolonged and charge-sheet came to be filed on 29.6.2005 i.e. subsequent to above-referred two meetings of the Departmental Promotion Committee meaning thereby there was no charge-sheet in existence when Departmental Promotion Committee met to consider the cases of the officers who were eligible for getting junior selection grade and senior selection grade in the year 1998 and in May, 2005. The learned counsel for the petitioner pointed out that the charge-sheet came to be filed on 29.6.2005. In this context the learned counsel for the petitioner also referred to and relied upon circular/Sankalpa No. 6227 dated 20.11.2008 issued by the State of Jharkhand, Department of Per-. sonnel, Administrative Reform and Rajbhasha. From perusal of Clause (i)(a)(b)(c) of the said circular it appears that the State of Jharkhand had adopted the guidelines issued by the Government of India on 14.9.1992 and subsequently passed a resolution whereby certain eventuality has been prescribed for consideration of cases while granting promotion to the officers/employees working under the various department in the State of Jharkhand and in above-referred clause it has been provided that in case where criminal complaint is instituted or pending against the officers/employees but no charge-sheet has been filed, then in that case, their cases can be considered for' promotion meaning thereby merely filing of a criminal case will not be sufficient to prevent/obstruct a case for the purpose of promotion. The condition precedent for non-consideration of a case for promotion is the requirement of submission of charge-sheet. The relevant factor as per the said circular is date of filing a charge-sheet. The employee/officer cannot be excluded/ debarred for grant of promotion merely on the ground of filing of a criminal complaint. The Departmental Promotion Committee is required to be considered the case of an officer/employee until charge-sheet is filed in a criminal case i.e. requirement prescribed' in the said circular. Another submission made by the learned counsel for the petitioner is based on legal position which has been enumerated in the judgment rendered by the Hon'ble Apex Court in the case of Union of India and Ors. vs. K.V. Jankilaman and Ors. reported in (1991)4 S.C.C. 109 [: 1992(1) PLJR (SC)27]. I have perused the aforesaid decision cited by the learned counsel for the petitioner. vs. K.V. Jankilaman and Ors. reported in (1991)4 S.C.C. 109 [: 1992(1) PLJR (SC)27]. I have perused the aforesaid decision cited by the learned counsel for the petitioner. Paragraphs 16 and 17 of the said judgment are relevant for the purpose of deciding the present case which is reproduced thereinbelow:- "16. On the first question, viz., as to when for the purposes of the sealed cover procedure the disciplinary/criminal proceedings can be said to have commenced, the Full bench of the Tribunal has held that it is only when a charge-memo in a disciplinary proceedings or a charge-sheet in a criminal prosecution is issued to the employee that it can be said that the departmental proceedings/criminal prosecution is initiated against the employee. The sealed cover procedure is to be resorted to only after the charge memo/ charge-sheet is issued. The pendency of preliminary investigation prior to that stage will not be sufficient 10 enable the authorities to adopt the sealed procedure. We are in agreement with the Tribunal on this point. The contention advanced by the learned counsel for the appellant-authorities that when there are serious allegations and it takes time to collect necessary evidence to prepare and issue charge-memo/charge-sheet, it would not be in the interest of the purity of administration to reward the employee with a promotion, increment etc. does not impress us. The acceptance of this contention would result in injustice to the employees in many cases. As has been the experience so far, the preliminary investigations take an inordinately long time and particularly when they are initiated at the instance of the interested persons, they are kept pending deliberately. Many times they never result in the issue of any charge-memo/charge-sheet. If the allegations are serious and the authorities are keen in investigating them, or dinarily it should not take much time to collect the relevant evidence and finalize the charges. What is further, if the charges "are that serious, the authorities have the power to suspend the employee under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure. The authorities thus are not without a remedy. It was then contended on behalf of the authorities that conclusions Nos. 1 and 4 of the Full Bench of the Tribunal are inconsistent with each other. Those conclusion are as follows: (A TCP 196 para39). The authorities thus are not without a remedy. It was then contended on behalf of the authorities that conclusions Nos. 1 and 4 of the Full Bench of the Tribunal are inconsistent with each other. Those conclusion are as follows: (A TCP 196 para39). "(1) consideration for promotion, selection grade, crossing the efficiency bar or higher scale of pay cannot be withheld merely on the ground of pendency of a disciplinary or criminal proceedings against an official; (2) x x x x x (3) x x x x x (4) the sealed cover procedure can be resorted to only after a charge memo is served on the concerned official or the charge-sheet filed before the criminal court and not before;" 17 There is no doubt that there is a seeming contradiction between the two conclusion. But read harmoniously, and that .is what the Full Bench has intended, the two conclusions' can be reconciled with each other. The conclusion no. 1 should be read to mean that the promotion etc. cannot be withheld merely because some disciplinary/criminal proceedings are pending against the employee. To deny the said benefit, they must be at the relevant time pending at the stage when charge memo/charge-sheet has already been issued to the employee. Thus read, there is no inconsistency in the two conclusions. 9. Another judgment cited by the learned counsel for the petitioner in the case of Ajit Singh and Others(II) vs. State of Punjab and Others reported in (1999)7 S.C.C. 209 as well as the judgment reported in (2010)4 S.C.C. 290 are also relevant and helpful to the case of the petitioner. As observed by the Hon'ble Apex Court in the aforesaid two d 1cisions that right of an eligible employe) to be considered for' promotion is virtually the part of his fundamental rights under Article 16 of the Constitution of India. 10. Now while analyzing facts of the present case it appears that it is admitted position that the Departmental Promotion Committee at two occasion i.e. on 6.9.1998 and 19.5.2005 granted promotion to the officers who were juniors to the petitioner. When the Departmental Promotion Committee met on 6.9.1998 upon consideration it was decided to keep one post vacant and whereas second time i.e. on 19.5.2005 sealed cover procedure was adopted qua the petitioner. When the Departmental Promotion Committee met on 6.9.1998 upon consideration it was decided to keep one post vacant and whereas second time i.e. on 19.5.2005 sealed cover procedure was adopted qua the petitioner. The main reason for doing so was pendency of a criminal case against this petitioner which was instituted way back on 8th December, 1996. It also appears that the chargesheet was filed on 29.6.2005 and there. fore, in the light of ratio laid down in the above-referred judgment, the case of the petitioner was required to be considered by the Departmental Promotion Committee way back on 6.9.1998 and subsequently on 19.5.2005 as there was no chargesheet prior to 29.6.2005 since the circular/Sankalpa No. 6227 dated 20.11.2008 was not in existence at the relevant point of time there was no question of considering the same by the respondent authority But in view of the above referred judgment (1991)4 SCC 109 the case of the petitioner was required to be considered at the relevant point of time. But it appears that unfortunately the respondents failed to consider this very material aspect and thereby the petitioner has been deprived of getting the benefit of promotion which has been extended to the officers, who were juniors to him. In the light of the ratio laid down in the aforesaid judgment the petitioner is entitled for the promotion of Junior Selection Grade and Senior Selection Grade. The stand taken by the respondent, which has been referred in its counter affidavit filed in the years 2005 and 2010, cannot be accepted in the light of the above discussion and more particularly in the light of ratio laid down by the Hon'ble Apex Court in its judgment referred herein above. The stand taken by the respondent that the sanction for prosecution was granted on 28th December, 2004 and therefore, the Departmental Promotion Committee after creation of the' State of Jharkhand did consider the case of the petitioner for promotion, but thought it fit to adopt sealed cover procedure, cannot be accepted in view of the above referred judgment of the Hon'ble Apex Court. 11. 11. Having regard to the facts and circumstances of the present case discussed above this petition is allowed and respondents are directed to reconsider the case of the petitioner for promotion in Junior Selection Grade w.e.f. 20.8.1997 as juniors to the petitioner have been Grade which is equivalent to Additional Collector w.e.f. 19.5.2005 within a period of six weeks from the date of the receipt/production of a copy of this order. Accordingly Sealed Cover Procedure adopted by the respondent dated 1.12.2004 be also intimated to the petitioner upon consideration of the case of the petitioner.