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2013 DIGILAW 984 (PAT)

Prantosh Kumar Das v. State of Bihar

2013-08-12

NAVANITI PRASAD SINGH

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ORDER 1. Pleadings being complete, with consent of the parties, the writ petition has been heard for final disposal at this stage itself. 2. The petitioner was appointed as Deputy Superintendent of Police. According to him, promotion to Senior Deputy Superintendent of Police was due to him w.e.f. 1.11.2000. No Departmental Promotion Committee was constituted and petitioner was not considered for promotion. This position went on for several years. In the meantime, petitioner had supervised a criminal case which went into much controversy. Ultimately in 2007, departmental proceedings were initiated as against the petitioner by issuance of charge sheet on 15.6.2007. In 2008, a Departmental Promotion Committee was constituted to consider promotion to various Deputy Superintendent of Police which included juniors of petitioner. Apparently on the plea that departmental proceeding was pending against the petitioner, he was not considered for promotion whereas, in 2008, promotions were granted to his juniors w.e.f. 1.11.2000. In the departmental proceedings petitioner was held guilty by order dated 2.3.2009. He was given censure and withholding one increment with non-cumulative effect. Both are minor punishments, the effect of which last only one year. Upon expiry of the said period of one year, petitioner was then considered for promotion and granted promotion to the post of Senior Deputy Superintendent of Police but with effect from 3.3.2010. Petitioner’s grievance starts here. He submits that as his juniors have been promoted w.e.f. 1.11.2000, it can safely be urged and it cannot be disputed that he became entitled to be considered for promotion from the same day. In other words, he was entitled to promotion to the post of Senior Deputy Superintendent of Police in the year 2000 itself, but the department slept over the matter and delayed the matter for consideration by almost eight years. There was nothing wrong with the petitioner in the year 2000 or soon thereafter. Yet petitioner was not considered for promotion because Departmental Promotion Committee could not be constituted. Now petitioner is being told that promotion w.e.f. 1.11.2000 cannot be granted to him because in the year 2009, he has been found guilty in departmental proceedings. The question is whether on the date when petitioner became entitled to be considered for promotion w.e.f. 1.11.2000, was he suffering from any disability? The obvious answer is no. Now petitioner is being told that promotion w.e.f. 1.11.2000 cannot be granted to him because in the year 2009, he has been found guilty in departmental proceedings. The question is whether on the date when petitioner became entitled to be considered for promotion w.e.f. 1.11.2000, was he suffering from any disability? The obvious answer is no. Thus, he ought to have been considered for promotion w.e.f. 1.11.2000 and granted promotion as he did not suffer from any disability then. State submits that now that petitioner suffered from disability, he cannot be granted promotion for a period earlier than the disability period. I am unable to appreciate or accede to the said submission. All I can say is in terms of the judgment of Chief Justice Chagla in the case of All India Groundnut Syndicate Limited Versus Commissioner of Income Tax, Bombay City, AIR 1954 Bombay 232 : “But the most surprising contention is put forward by the Department that because their own officer failed to discharge his statutory duty, the assessee is deprived of his right which the law has given to him under sub-section (2) of S.24. In other words, the Department wants to benefit from and wants to take advantage of its own default. It is an elementary principle of law that no person - we take it that the Income-tax Department is included in that definition - can put forward his own default in defence to a right asserted by the other party. A person cannot say that the party claiming the right is deprived of that right because “I have committed a default and the right is lost because of that default.” 3. Equally relevant would be the case of the Apex Court again In the case of Mangalore Chemicals and Fertilisers Limited versus Deputy Commissioner of Commercial Taxes and Ors. since reported in 1992 Supp (1) Supreme Court Cases 21. 22. ………What we have here is a pure technicality. Clause 3 of the notification leaves no discretion to the Deputy Commissioner to refuse the permission if the conditions are satisfied. The words are that he “will grant”. There is no dispute that appellant had satisfied these conditions. Yet the permission was withheld not for any valid and substantial reason but owing to certain extraneous things concerning some inter-departmental issues. Appellant had nothing to do with those issues. Appellant is now told, “We are sorry. The words are that he “will grant”. There is no dispute that appellant had satisfied these conditions. Yet the permission was withheld not for any valid and substantial reason but owing to certain extraneous things concerning some inter-departmental issues. Appellant had nothing to do with those issues. Appellant is now told, “We are sorry. We should have given you the permission. But now that the period is over, nothing can be done.” The answer to this is in the words of Lord Denning: “Now I know that a public authority cannot be estopped from doing its public duty, but I do think it can be estopped from relying on a technicality and this is a technicality”. 4. The ratio of both these cases is that the State cannot take advantage of delay committed by it. That delay cannot extinguish the right of a person. Seen otherwise, had the Departmental Promotion Committee been constituted in the year 2003, it not being disputed that petitioner was liable to be promoted w.e.f. 1.11.2000 and there being no disability attached to the petitioner then in the year 2003, Departmental Promotion Committee had to grant him promotion w.e.f. the year 2000. Subsequent punishment in the year 2009 could not have taken away that promotion. It could have only effected further promotion if they were due in the year 2009 or 2010 but merely because Departmental Promotion Committee was not constituted in view of the judgments aforesaid, petitioner could not have been denied promotions from the due date i.e. the date when his juniors were granted promotion. 5. There is yet another aspect of the matter. This order of punishment as passed in the year 2009 was subsequently set aside by this Court and the matter has been remanded for fresh consideration. This order was passed by this Court on 14.10.2011. Thus, the punishment ceases to be there and what remains is only pendency of a departmental proceeding. Once we accept this situation, it follows that if any promotion is due then petitioner cannot be left out to be considered for promotion for his case has to be dealt with “under sealed cover procedure”. Court is informed that again in the departmental proceeding, the same punishment has been reiterated against which appeal is pending. 6. Once we accept this situation, it follows that if any promotion is due then petitioner cannot be left out to be considered for promotion for his case has to be dealt with “under sealed cover procedure”. Court is informed that again in the departmental proceeding, the same punishment has been reiterated against which appeal is pending. 6. Thus, what this Court finds is that so far as promotion of petitioner is concerned, from the post of Deputy Superintendent of Police to Senior Deputy Superintendent of Police ought to have been made from which date his juniors were given promotion i.e. 1.11.2000. 7. Then the next issue that arises is about further promotions. On record is promotion granted to his juniors once again w.e.f. 31.12.2010 vide Annexure-14. Petitioner states that on that day he was again not suffering from any disability as the punishment as awarded to him in the year 2009 had already lapsed its one year period, thus, petitioner was now again entitled to the further promotion from the same period when his juniors were granted promotion. This promotion being due had to be granted to the petitioner from the date his juniors were promoted and not from any other date. Petitioner has been granted the said promotion w.e.f. 3.3.2011 whereas, juniors have been granted promotion w.e.f. 31.12.2010. 8. Having considered the matter, even this part of submission of the learned counsel for the petitioner is correct again for the same reason. On the day when juniors are being granted promotion and the date with effect from they are granted promotion, petitioner did not suffer from any disability. The punishment had already outlived its utility. If that be so, the petitioner cannot be denied promotion while granting promotion to the juniors thus, even in this case the petitioner would be entitled to promotion to the post of A.S.P. with effect from the date when his juniors were granted promotion effectively be 31.12.2010. 9. In the facts and circumstances, I accordingly, order that petitioner would be deemed to be promoted to the post of Senior Deputy Superintendent of Police with effect from the date his juniors were granted promotion w.e.f. 1.11.2000 and to the post of A.S.P. w.e.f. 31.12.2010 again when his juniors were granted the said promotion as on both these occasions petitioner did not suffer from any other disability. It goes without saying that petitioner would thus, be entitled to consequential benefits as well as consequence of these promotions, it would not be open to the State to deny the consequential benefits as petitioner was ready to perform his duties but had been unduly denied his promotion. 10. With these directions and observations, the writ petition is disposed of.