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Jharkhand High Court · body

2015 DIGILAW 1516 (JHR)

Shiva Chandra Prasad v. State of Jharkhand

2015-12-07

RONGON MUKHOPADHYAY

body2015
ORDER : In this writ application, the petitioners have prayed for a direction upon the respondents to consider and grant promotion to the petitioners to the rank of Executive Engineer w.e.f. 25.07.2002 i.e. from the date similarly situated persons or juniors to the petitioners got such benefits and to sanction the benefits of the first and second Assured Career Progression from 09.08.1999 and 26.03.2005 respectively. 2. The facts in brief are that the petitioners were appointed on the post of Assistant Engineers (Civil) in the Public Works Department of the then Government of Bihar by virtue of Notification No. 2143 (S) dated 24.03.1981. In the seniority list which was prepared for the post of Assistant Engineer, the names of the petitioners figured at Serial No. 1636 and 1659 respectively. A vigilance case was instituted against the petitioners vide Vigilance P.S. Case No. 29 of 1999. On account of the pendency of the vigilance case in the Departmental Promotion Committee Meeting the recommendations of the petitioners were kept in a sealed cover. In the vigilance case charge-sheet was submitted against several accused persons but the same did not include the petitioners and ultimately vide order dated 20.01.2009 the learned Special Judge, Vigilance, Ranchi in Special Case No. 6(A) of 1999 accepted the Final Form submitted and accordingly the petitioners were discharged from the criminal case. It is the case of the petitioners that on account of their recommendations for promotion being kept in a sealed cover persons who were juniors to the petitioners had been given promotion on the basis of recommendations of the DPC and on being exonerated after investigation representation was submitted by the petitioner No. 1 before respondent No. 4 to consider his case for promotion w.e.f. 25.07.2002 when similarly situated persons/Juniors were granted promotion. 3. In the representation, a request was also made for grant of benefit of the first and second Assured Career Progression since the statutory period of twelve years and twenty four years had already been completed. Since the claim of the petitioners for being promoted to the rank of Executive Engineer w.e.f. 25.07.2002 as well as the prayer with respect to the grant of first and second Assured Career Progression was not adhered to by the respondents the petitioners have preferred the present application. 4. Heard Mr. A. K. Sahani, learned counsel appearing for the petitioners and Mr. 4. Heard Mr. A. K. Sahani, learned counsel appearing for the petitioners and Mr. Deepak Dubey, learned J.C. to Sr. S. C. - I. 5. Mr. A. K. Sahani, learned counsel appearing for the petitioners has submitted that the petitioners have been discriminated against, inasmuch as, the case of several persons who were either juniors to the petitioners or similarly situated to that of the petitioners have been granted promotion on the basis of recommendations of the DPC. It has further been submitted that the respondents-authorities have mis-interpreted the judgment in the case of Union of India vs. K.V. Jankiraman, inasmuch as, the sealed cover procedure has to be resorted to only when the charge-memo/charge-sheet is issued and merely because preliminary investigation into the offence is being held the same would not be sufficient to deprive the petitioners of their claim for promotion. Learned counsel submits that pursuant to the decision rendered by the Hon'ble Supreme Court in the case of Union of India vs. K. V. Jankiraman a resolution was adopted in which it has been clarified that pendency of the criminal proceeding shall mean from the date when the charge-sheet has been submitted in the criminal court. It has, therefore, been submitted that when Final Form has been submitted by the Investigating Officer which was accepted by the learned court below the question of pendency of criminal case and thereby taking recourse to sealed cover procedure did not at all arise. Learned counsel further submits that even though Final Form was accepted by the learned Special Judge, Vigilance, Ranchi vide order dated 20.01.2009 but even than the petitioners have not been granted promotion on one pretext or the other thus making them juniors to similarly situated or persons who were juniors to the petitioners in the gradation list. 6. Per contra, Mr. Deepak Dubey, learned J.C. to Sr. S. C. - I, has submitted that the petitioners have not been fully exonerated in the criminal case as sanction for prosecution has already been granted by the Department of Law and Justice, Jharkhand, Ranchi vide Letter No. 23 dated 02.06.2010. It has also been submitted that a departmental proceeding has also been initiated against the petitioners vide resolution dated 12.01.2011. Submission has also been advanced to the effect that pursuant to the request of the investigating agency an order for further investigation has also been passed on 18.12.2009. It has also been submitted that a departmental proceeding has also been initiated against the petitioners vide resolution dated 12.01.2011. Submission has also been advanced to the effect that pursuant to the request of the investigating agency an order for further investigation has also been passed on 18.12.2009. It has further been submitted that since the criminal case as well as the departmental proceedings are pending against the petitioners none of the claims made by the petitioners can be considered at this stage and only after conclusion of the criminal case as well as the departmental proceeding decision can be taken on the question of promotion of the petitioners. 7. On consideration of the submissions advanced by the learned counsel for the parties, the main crux of the matter seems to revolve around the fact as to whether a criminal proceeding was pending against the petitioners leading to the authorities adopting the sealed cover procedure. 8. It is the contention of the petitioners that since juniors to the petitioners as well as similarly situated persons had been granted promotion w.e.f. 25.07.2002 the petitioners also deserve consideration of promotion to the rank of Executive Engineer w.e.f. the said date. It is not in dispute that in 1999 a vigilance case was instituted against the petitioners and other accused persons. In the vigilance case charge-sheet was submitted on 24.01.2008 which was accepted by the learned Special Judge, Vigilance, Ranchi vide order dated 20.01.2009. 9. From perusal of the order dated 20.01.2009, it appears that Final Form was accepted solely on the ground that the sanction for prosecution was not granted by the competent authority and in fact earlier the prayer for sanction was rejected by the concerned department. Even after the acceptance of the Final Form, no decision was taken with respect to the promotion of the petitioners and ultimately, it appears that vide letter dated 02.06.2010 sanction for prosecution was granted by the Department of Law and Justice against the petitioners. Pursuant to the grant of sanction an application was made by the Investigating Officer for further investigation which was allowed by the learned Special Judge, Vigilance, Ranchi vide order dated 18.12.2009. It is not known what happened subsequent to the order for further investigation. 10. Pursuant to the grant of sanction an application was made by the Investigating Officer for further investigation which was allowed by the learned Special Judge, Vigilance, Ranchi vide order dated 18.12.2009. It is not known what happened subsequent to the order for further investigation. 10. It is an admitted fact as would appear from the averments made by the respondents in their counter affidavit that the departmental proceeding was initiated against the petitioners vide resolution dated 12.01.2011. When the case of the petitioners were ripe for consideration for promotion to the rank of Executive Engineer the respondents-authorities had considered the promotion and had kept the recommendations in a sealed cover. The resolution of the department based on the judgment passed in the case of Union of India vs. K. V. Jankiraman has clarified the pendency of a criminal proceeding to mean as submission of charge-sheet. Till 2009 charge-sheet was not submitted as the earlier Final Form submitted in favour of the petitioners was accepted as no sanction was granted by the department. Subsequent grant of sanction led to the learned Special Judge, Vigilance, Ranchi to order for further investigation. 11. What would thus suffice is that on the date when the juniors and similarly situated persons were promoted to the rank of Executive Engineer no charge-sheet was submitted against the petitioners or any departmental proceeding was pending against the petitioners. In such circumstance, therefore, the petitioners had a right to be considered for promotion to the rank of Executive Engineer. Both the petitioners as would appears from the statement made in the application for interim order for status quo were working in the post of Executive Engineer, In-charge from where the petitioner No. 2 has also superannuated and or from 28.02.2014. 12. Considering the scenario which has been depicted above, the petitioners deserve a right to be considered for promotion to the rank of Executive Engineer from the date when the juniors to the petitioners as well as similarly situated persons were promoted. So far as the contention with respect to the grant of first and second Assured Career Progression is concerned, the same also deserves consideration by the authorities. So far as the contention with respect to the grant of first and second Assured Career Progression is concerned, the same also deserves consideration by the authorities. Accordingly, the matter is remitted back to the respondent No. 2 who shall pass the reasoned and speaking order with respect to the claim of the petitioners for promotion as well as for grant of Assured Career Progression within a period of twelve weeks from the date of receipt/production of a copy of this order. 13. This writ application stands disposed of in the aforesaid terms.