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Gujarat High Court · body

2016 DIGILAW 179 (GUJ)

Manharlal Jivanlal Shah v. State of Gujarat

2016-01-25

AKIL KURESHI

body2016
ORDER : Akil Kureshi, J. The petitioner has challenged his non-promotion to the post of Senior Town Planner and has prayed for a direction to the respondent No. 1 to promote him to the said post alongwith respondent No. 2 who was his junior in the feeder cader of Deputy Town Planner. 2. Briefly stated facts are that: The petitioner was holding the post of Deputy Town Planner as also respondent No. 2 on the date when the Departmental Promotion Committee [‘DPC’ for short] for making recommendations for promotion to the post of Senior Town Planner held its meeting on 23.09.1999 Since the petitioner was facing three departmental inquiries, his case was considered but recommendations were kept in sealed cover. Respondent No. 2, who was junior to the petitioner, was granted promotion. The petitioner, therefore, filed this petition. 3. On 08.11.2012, learned Single Judge directed the department to open the sealed cover containing the recommendations of the DPC in case of the petitioner. It was found that the DPC had found him fit for promotion. 4. To explain the real position, a further affidavit-in-reply came to be filed by respondent No. 1 on 08.01.2013, in which, following averments have been made: “a. On 03.04.1996, the first inquiry for the alleged miscalculation in the valuation of amount was initiated, which ultimately applied on 12.03.2001 In the said inquiry, the petitioner was found guilty and therefore, punishment of stoppage of one increment for a period of 3 months was inflicted upon the present petitioner. b. The second inquiry came to be initiated against the present petitioner on 18.09.1997 for the alleged misappropriation of money. It was alleged against the present petitioner, that he has incurred expenditure in another scheme, whereas the amount was required to be used in some other scheme. The said inquiry came to be applied on 18.10.1999 and the petitioner was found guilty in the said inquiry. Since, the petitioner was found guilty of the punishment of stoppage of one increment without future effect from the period of 6 months has been inflicted upon the present petitioner. c. The third inquiry came to be initiated against the present petitioner on 21.08.1998 for the alleged misbehave with the higher officer. In this inquiry also, the petitioner was found guilty and therefore, vide order dated 20.06.2001, the punishment of sensor has been inflicted upon the present petitioner. c. The third inquiry came to be initiated against the present petitioner on 21.08.1998 for the alleged misbehave with the higher officer. In this inquiry also, the petitioner was found guilty and therefore, vide order dated 20.06.2001, the punishment of sensor has been inflicted upon the present petitioner. d. The fourth inquiry came to be initiated against the present petitioner on 30.06.2001 for the alleged offence of creating false and fabricated evidence and thereby without any prior permission form the competent authority the petitioner has made some purchased. The said inquiry came to be applied on 23.05.205, wherein also, he was guilty but since in the meanwhile, the petitioner has retired from his services and therefore, the punishment of permanent taken of Rs. 500/- from the amount of pension came to be inflicted upon the present petitioner. A copy of the relevant detailed chart showing the number of inquiry along with the date of completion of the said inquiry is annexed herewith and marked as Annexure R-I to this affidavit in reply.” 5. These facts are not in dispute. It would, thus, clearly emerge that, on the date of the DPC, the petitioner was facing three separate departmental inquiries. In the first inquiry, which commenced on 03.04.1996, he was awarded punishment of stoppage of one increment for a period of three months under order dated 12.03.2001 The second inquiry, which was initiated on 18.09.1997, culminated into punishment of stoppage of one increment for six months under order dated 08.10.1999 The third inquiry, which commenced on 21.08.1998, was completed on 20.06.2001 where the punishment of censure was imposed. One more inquiry was initiated on 30.06.2001 and had thus commenced after the date of the DPC, continued after his retirement and resulted into cut in pension by Rs. 500/- under order dated 23.05.2001 6. Quite apart from fourth inquiry, which was initiated after the date of the DPC, the petitioner was facing as many as three departmental proceedings when the DPC held its meeting to make recommendations for promotion to the post of Senior Town Planner. The authorities were, therefore, justified in keeping recommendations of the DPC in sealed cover. It is well settled that such recommendations would be acted upon only in a case where the government servant is fully exonerated of the charges leveled against him. The authorities were, therefore, justified in keeping recommendations of the DPC in sealed cover. It is well settled that such recommendations would be acted upon only in a case where the government servant is fully exonerated of the charges leveled against him. In the present case, in all three cases, he was found guilty and various penalties were imposed. It is also well settled that when the departmental proceedings result into imposition of punishment, the government servant cannot seek promotion pursuant to the recommendations of the DPC which were kept in a sealed cover on account of such inquiry. The government servant cannot complain of double jeopardy of being visited with the punishment during the course of the inquiry and of being denied the promotion during such period. Reference in this regard can be made to the decision of Supreme Court in case of State of T.N v. Thiru KS. Murugesan reported in (1995) 3 SCC 273 . 7. In case of State of M.P v. I.A Qureshi reported in (1998) 9 SCC 261 , it was held that sealed cover containing the recommendations of DPC, pending inquiry, can be opened only in case of exoneration and not otherwise. In the said case, even when the departmental inquiry is culminated into imposition of minor penalty of censure, it was held that the sealed cover could not be opened. 8. In the result, petition is dismissed.