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2014 DIGILAW 991 (PAT)

Ram Keshwar Ram v. State of Bihar

2014-09-12

RAMESH KUMAR DATTA, RAVI RANJAN

body2014
ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE RAMESH KUMAR DATTA) Heard Mr. Binod Kumar Kanth, learned Sr. Counsel for the appellant and learned Additional Advocate General No.2 for the State. 2. The petitioner-appellant has approached this Court against the order dated 20.5.2005 passed by the writ court by which the writ petition filed by the petitioner has been dismissed. 3. Shorn of unnecessary details the admitted facts of the case are that the petitioner-appellant was appointed as Junior Engineer in the year 1964 in the then Public Works Department, now Road Construction Department in reserve category and was promoted as Assistant Engineer in the year 1972. On 24.2.1982 the petitioner-appellant was promoted to the post of Executive Engineer. It is the case of the petitioner-appellant that in the final gradation list, which was amended much after consideration of various representations by Notification dated 9.12.1987, the name of the petitioner-appellant appeared at Serial No.802 and that of several of his juniors belonging to the reserved category appeared at Serial Nos. 806, 812, 814, 816, 819, 836, 922 and 923. However, the said Executive Engineers junior to the petitioner were promoted by Notification dated 8.11.1988 to the post of Superintending Engineer, whereas the same benefit was not conferred upon the petitioner-appellant. The petitioner continued to represent the matter before the State authorities, but even thereafter in the year 1989 five other Executive Engineers of the reserved category, who were junior to the writ petitioner, were promoted to the post of Superintending Engineer. The representations of the petitioner failed to bear any fruitful result although a Departmental Promotion Committee meeting on 15.12.1994 found the petitioner fit for promotion. Ultimately, the petitioner was compelled to approach this Court by filing CWJC No. 11621 of 1997, which was allowed by judgment and order dated 6.8.1999. The learned Single Judge while allowing the writ petition gave clear findings to the following effect :- “The respondents in the counter affidavit are not disputing the position of the petitioner shown in the gradation list of 1987 as contained in Annexure-2. In view of the amendment of Rule 8 of the Bihar Engineering Service Rules, as stated in the counter affidavit, even a diploma-holder is also entitled to get promotion on the post of Superintending Engineer. In view of the amendment of Rule 8 of the Bihar Engineering Service Rules, as stated in the counter affidavit, even a diploma-holder is also entitled to get promotion on the post of Superintending Engineer. In that view of the matter, it must be held that the petitioner even as a diploma-holder was eligible for promotion to the post of Superintending Engineer. From Annexure-2, the gradation list of 1987, it is manifestly clear that the petitioner has been placed at serial no. 802 whereas persons below the petitioner at serial nos. 806, 812, 814, 815, 819, 836, 992 and 993 have been promoted to the post of Superintending Engineer out of the panel of 1987 as contained in Annexure-2. There is also nothing in the counter affidavit to indicate that the case of the petitioner was considered amongst the other candidates who have already been promoted and the petitioner was not found eligible for the post rather in view of the statements made in the counter affidavit, it makes the position clear that the petitioner at the relevant time when others were promoted, was eligible for the post aforesaid and his case, therefore, must have been considered. From the facts enumerated above, it is also clear that the petitioner is a Member of the Scheduled Caste and in no way his case could have been ignored while granting promotion to the juniors to the petitioner who are also members of the Scheduled Castes and Scheduled Tribes. Considering the facts and circumstances of the case and in view of the discussions aforesaid, the Secretary, P.W.D. (Road Construction Department), Government of Bihar, Patna (respondent no.2) is directed to consider the case and promote the petitioner to the post of Superintending Engineer with effect from the date his juniors were promoted. Respondent no.2 is further directed to pay consequential benefits to the petitioner with due date of promotion. With the aforesaid directions and observations this application is allowed but no order as to costs.” 4. The aforesaid order was not challenged by the respondents and has acquired finality. Respondent no.2 is further directed to pay consequential benefits to the petitioner with due date of promotion. With the aforesaid directions and observations this application is allowed but no order as to costs.” 4. The aforesaid order was not challenged by the respondents and has acquired finality. Thereafter a DPC was constituted on 16.5.2000 to consider the case of the petitioner and after noting the direction of this Court in CWJC No. 11621 of 1997 by order dated 6.8.1999 that the case of the petitioner is to be considered for promotion retrospectively with effect from 8.11.1988, it went on to consider the fact that in the Vigilance Clearance Report it is mentioned that during the period of the posting of the petitioner in Rural Engineering Organisation Division, Jehanabad in 1992 for the irregularities committed by him, under Notification No. 228 dated 13.1.1998 an order of recovery of Rs.1,08,970/- had been issued against him. It further took note of the fact that in another matter by Resolution No. 2665 dated 9.4.1999 it has been decided to initiate departmental proceedings against him which comes within the category of prima facie proved charges. It also took note of the fact that in addition to what is stated with regard to the Road Construction Division, Gaya the CBI has registered RC case No. 3(A)/97 (D) and obtained sanction for prosecution against the petitioner from the Administrative Department. For the said reasons the writ petitioner was found unfit for promotion and it was decided to keep his case for promotion pending. Aggrieved by the same the petitioner approached this Court by filing writ petition which has been dismissed by the order impugned before us. 5. Learned counsel for the petitioner-appellant submits that the case of the petitioner stood concluded by the judgment and order of this Court dated 6.8.1999 in CWJC No. 11621 of 1997 which was not challenged by the respondents and thus the respondents were obliged to comply with the said direction in its terms to consider the case and promote the petitioner to the post of Superintending Engineer with effect from the date the juniors were promoted, i.e., from 8.11.1988. 6. 6. It is urged by learned counsel that if the relevant date for consideration of the promotion was 8.11.1988 it was not open to the respondents to have taken into account any event, misconduct or criminal charges which related to the period subsequent to the said date. 7. It is submitted that nothing has been brought on the record by the respondents to show that there was any charge memo issued against the petitioner prior to 8.11.1988 or any charge-sheet has been filed against him in any criminal court of law up to the said date. It is submitted that the direction for recovery in the year 1998 which related to the year 1992 was wholly irrelevant and equally irrelevant was the initiation of departmental proceedings on 9.4.1999 against the petitioner. In support of the aforesaid stand learned counsel for the appellant relies upon a decision of the Apex Court in the case of Union of India and others vs. K.V. Jankiraman and others : (1991) 4 SCC 109 , in paragraphs 16 and 17 of which it has been held as follows : “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 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 to enable the authorities to adopt the sealed cover 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 the contention would result in injustice to the employees in many cases. does not impress us. The acceptance of the 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, ordinarily it should not take much time to collect the relevant evidence and finalise 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 consistent with each other. Those conclusions are as follows : (ATC p. 196, para 39) “(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) * * * (3) * * * (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 conclusions. 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.” 8. 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.” 8. Learned counsel submits that the said decision has not been considered by the writ court in its proper perspective, namely, that the case of promotion of the petitioner was to be considered with effect from 8.11.1988 and not from a subsequent date as the said issue had stood decided and was res judicata against the respondents and could not have been reopened in any subsequent proceedings before any court of law. 9. Learned counsel also relies upon a decision of the Supreme Court in the case of Union of India and others vs. Sangram Keshari Nayak : (2007) 6 SCC 704 in which similar proposition has been laid down relying upon K.V. Jankiraman case (supra). 10. Learned Additional Advocate General No.2, on the other hand, has sought to support the case of the respondents and the judgment of the writ court relying upon the statements made in the counter affidavit filed in the writ petition in which stand has been taken that in view of the fact that there was some dispute with regard to the gradation list dated 9.12.1987 a decision was taken by the department that because of cases pending in this Court regarding inter se seniority, till the judgment in the writ petitions the gradation list dated 9.12.1987 shall not be given effect to and accordingly recommendation for promotion to the post of Superintending Engineer was sent to the DPC on the basis of the gradation list of Assistant Engineers published in the year 1978 in which name of the petitioner was much below that of the eight Executive Engineers who had been promoted. 11. It is further contended that although the DPC held on 15.12.1994 had recommended the petitioner as fit for promotion but the file of the petitioner was returned on the query that when departmental proceeding was pending against the petitioner and no final decision had been taken in that proceeding then why the name of the petitioner-appellant had been included in the list of officers to be promoted. When the subsequent DPC held on 15.12.1995 recommended the case of the petitioner it was found that the posts for reserved category were full and therefore no promotion can be given. 12. It is further submitted that the DPC held on 16.5.2000 after the order of this Court in the earlier writ petition held that the case of the petitioner was found not fit for promotion on the ground of order of recovery and the decision to initiate departmental proceedings against him as he was also found involved in Bitumen Scam. 13. It is thus urged by learned counsel for the State that in the face of such serious charges against the petitioner the DPC has rightly not recommended the case of the petitioner-appellant for promotion and the learned Single Judge has held on the said finding that the case of the petitioner was rightly rejected. It is submitted that a person who has been involved in so many proceedings, civil and criminal, ought not to have been granted promotion and the same has rightly been decided by the DPC. 14. Having heard learned counsels for the parties, we are of the view that the stand of the respondents cannot be accepted as this is not first round of litigation by the writ petitioner-appellant. The earlier writ petition had been clearly decided in his favour with certain findings which are not open to be reviewed merely because the petitioner has been forced into a second round of litigation. The said order dated 6.8.1999 of the earlier writ court is binding on the parties both with regard to its findings as also the directions issued therein. The clear direction of the Court to consider the case and promote the petitioner to the post of Superintending Engineer from the date when the juniors to him were promoted and to pay consequential benefits to the petitioner. This Court having held that the petitioner was eligible for promotion it was not open to the respondents to look into the matter while granting promotion to the writ petitioner as to whether he was qualified for the said promotion or not. This Court having held that the petitioner was eligible for promotion it was not open to the respondents to look into the matter while granting promotion to the writ petitioner as to whether he was qualified for the said promotion or not. Once the qualification for promotion was not in issue it was not open to look into any other aspect of the matter and the only consideration to have been made was as to whether any departmental or criminal proceedings were pending against the petitioner on the date on which eight Executive Engineers who were junior to the petitioner had been promoted. Admittedly on 8.11.1988 there was no criminal or civil proceeding pending against the petitioner-appellant. 15. In K.V. Jankiraman’s case (supra) it has been clearly held by the Apex Court that criminal proceedings are considered to have been initiated only on the date when the charge-sheet is submitted and with regard to departmental proceedings when the charge-memo is issued. It is not in dispute that on 8.11.1988 there was neither any charge-sheet nor charge-memo issued against the petitioner. As a matter of fact, from the materials on the record it does not appear that there was even any charge for irregularity prior to the said date against the petitioner-appellant. The earliest case of one irregularity in the year 1992 for which recovery has been ordered by the department in the year 1998 is much after 8.11.1988. 16. Thus, in our view when the DPC met to consider the case of the petitioner on 16.5.2000 it ought to have taken into account only the factual situation as prevailing on and not the consequential events after the said date, i.e., 8.11.1988, contrary to the law laid down in K.V. Jankiraman’s case (supra). 17. In the aforesaid view of the matter, the appeal is allowed. The impugned judgment and order dated 20.5.2005 is set aside. The writ petitioner-appellant is stated to have retired on 30.9.2002. It is directed that he shall be granted promotion to the post of Superintending Engineer with effect from 8.11.1988 and would also be entitled to all consequential benefits thereafter subject to any order passed subsequently in any departmental proceedings or otherwise by the department.