Research › Search › Judgment

Uttarakhand High Court · body

2016 DIGILAW 365 (UTT)

Sidarth Kotnala v. Chief Education Officer

2016-07-20

K.M.JOSEPH, V.K.BIST

body2016
JUDGMENT : K.M. Joseph, J. Appellant is the writ petitioner. He filed the writ petition seeking the following reliefs: “I. issue a writ, rule, order or direction in the nature of certiorari calling for the records and quashing the impugned letter dated 5.4.2013 (contained in Annexure No. 7 of this writ petition) issued by respondent no. 1 i.e. Chief Education Officer, Pauri Garhwal. II. issue a writ, rule, order or direction in the nature of mandamus commanding and directing the respondent no. 1 i.e. Chief Education Officer, Pauri Garhwal to consider promotion of the petitioner on the post of Lecturer Economics as per law.” 2. Very briefly put, the case of the appellant is as follows: The appellant and the fourth respondent were appointed as Assistant Teachers. The controversy centers around the filling-up of the vacancy of Lecturer in Economics. The vacancy of Lecturer in Economics arose on the promotion of the incumbent as Down Grade Principal. The actual date of his taking over charge is 20.07.2012. According to the appellant, as on 20.07.2012, he admittedly had five years of service and he also possessed Post Graduation Degree in Economics and, consequently, he was qualified. As far as the fourth respondent is concerned, though he is a Post Graduate in Economics and is, admittedly, senior to the appellant, there was a criminal case against him under Section 306 of the Indian Penal Code. The case of the appellant appears to be that, on 19.01.2009, the fourth respondent was suspended on the basis of the said case; he was arrested; he remained in jail; there was an inquiry; and, finally, he was reinstated pursuant to order dated 31.07.2009. Annexure No. 6 dated 29.01.2013 is relied on by the appellant as a recommendation to promote him as Lecturer in Economics. The response of the Department is contained in letter dated 05.04.2013 (Annexure No. 7). In the said communication, the District Education Officer wrote that, since the appellant did not complete five years as on 18.10.2011 and had only 4 years and 10 months, fresh proposal may be mooted and the name of respondent No. 4 be sent. It is challenging the said order and seeking the relief to promote him that the appellant filed the writ petition before the learned Single Judge. 3. The learned Single Judge, by the impugned judgment, dismissed the writ petition. It is challenging the said order and seeking the relief to promote him that the appellant filed the writ petition before the learned Single Judge. 3. The learned Single Judge, by the impugned judgment, dismissed the writ petition. In this regard, he took note of the following facts: Respondent No. 4 is senior to the appellant and, in the criminal trial, respondent No. 4 has been acquitted. The learned Single Judge lamented the fact that sealed cover procedure was not adopted and, therefore, the name of respondent No. 4 should have been recommended. Noting the fact that the name of respondent No. 4 has been sent by the authorized controller, the Chief Education Officer was directed to take a decision within two weeks, making it clear, however, that the vacancy shall be deemed to have come into effect on 20.07.2012 and the claim of respondent No. 4 shall be considered after that date. 4. We have heard Mr. Ravi Babulkar, learned counsel appearing for the appellant; Mr. Navnish Negi, learned counsel appearing for respondent No. 4; Mr. T.S. Phartiyal, learned counsel appearing for the Committee of Management; and Mr. N.S. Pundir, learned Brief Holder appearing for the State. 5. Before we proceed to deal with the arguments addressed by the parties, we must take note of one development. Pursuant to the judgment passed by the learned Single Judge, respondent No. 4 was, actually, promoted as Lecturer in Economics and, what is more, he had subsequently retired from service, after extension during the academic year, on 31.03.2016. 6. Mr. Ravi Babulkar, learned counsel appearing for the appellant would submit that this is a case, where, by Annexure No. 6 dated 29.01.2013, a recommendation was made to promote the appellant as Lecturer in Economics. He would submit that, under the Regulations, if the recommendation is not rejected within a period of one month, it would be deemed to have been accepted. As far as the finding of the learned Single Judge on not following the sealed cover procedure is concerned, the learned counsel would draw our attention to the judgments of the Supreme Court in the cases of Union of India vs. K.V. Jankiraman, reported in (1991) 4 SCC 109 and Bhajan Singh vs. State of Uttarakhand & others, reported in (2013) 14 SCC 32 . It is his case that not following the sealed cover procedure was not challenged; it should have been followed, which means that the appellant should have been promoted; and what may have followed the order of acquittal is a different matter. Thirdly, he would also submit that, in the order passed by the authority, which is impugned in the writ petition, the only reason given is that the appellant did not complete five years of service as on 18.10.2011 and, in fact, the learned Single Judge has also proceeded on the basis that the vacancy will arise on 20.07.2012. It is, therefore, submitted that, when the only ground, on which the recommendation for appellant’s promotion was not accepted, has now been found as not correct, relief should not be denied to the appellant. 7. Per contra, Mr. Navnish Negi, learned counsel appearing for respondent No. 4, would, in regard to the first contention that there is a deemed approval, submit that the recommendation relied on by the appellant in Annexure No. 6 does not conform to the requirements under the Regulations. Next, he would submit that there is no averment and no material to establish when Annexure No. 6 was received by the Department. It is only on receipt of proper recommendation and if no action is taken within one month thereafter that there will be a deemed approval. As far as the applicability of the principle of sealed cover procedure is concerned, it is submitted that respondent No. 4 is entitled to relief. It is pointed out that the criminal court has acquitted respondent No. 4 on 10.06.2014 (the judgment is also produced), as there was no material against respondent No. 4, and he must be treated as exonerated. It is, therefore, submitted that the judgment passed by the learned Single Judge does not call for any interference. 8. The learned counsel appearing for the Committee of Management also supported the judgment passed by the learned Single Judge. Mr. N.S. Pundir, the learned Brief Holder appearing for the State, would, in fact, submit that, actually, according to them, the vacancy arose on 18.10.2011 and, at that time, appellant did not have the requisite service. 9. The learned Single Judge has proceeded on the basis that the vacancy must be treated as having arisen on 20.07.2012. There is no appeal by any of the respondents challenging the said finding. 9. The learned Single Judge has proceeded on the basis that the vacancy must be treated as having arisen on 20.07.2012. There is no appeal by any of the respondents challenging the said finding. There is no argument as such addressed before us to dislodge that finding. Moreover, we find that the previous incumbent actually worked on the post till 20.07.2012 when he, actually, assumed office as Down Grade Principal. Therefore, we must proceed on the basis that the vacancy arose on 20.07.2012. 10. The first question we must consider thereafter is, whether the appeal should be allowed on the ground that, since no decision was taken to reject the “recommendation” contained in Annexure No. 6, the recommendation to promote the appellant must be accepted. We see there are two obstacles in the acceptance of the said contention. Firstly, there is no material either by way of pleadings or otherwise in support thereof for us to arrive at a conclusion as to when Annexure No. 6 was received by the respondents. Unless the date of receipt is fixed, the time would not began to run against the Department for a deemed approval to arise. Secondly, we find merit also in the contention that Annexure No. 6 does not appear to be in terms of Rule 6(5) of the Regulations, which provides for various details. It does not appear to be in the said format. So, we cannot permit the appellant to draw support from the Regulation, which provides for deemed approval. 11. Appellant is, admittedly, far junior to respondent No. 4. Though a contention was raised by Mr. Navnish Negi, learned counsel appearing for respondent No. 4, that the appellant did not have Post Graduation and it was not entered in his service book, we are not impressed by the said argument as, in the rejoinder affidavit, appellant has produced the certificate and, in the service book also, the fact of the appellant being a Post Graduate is mentioned. More importantly, even in Annexure No. 6, the Management has shown the appellant as having Post Graduation. But, that is not the issue. When, both, the appellant and respondent No. 4 are treated as qualified, going by the date 20.07.2012, two further questions will arise. More importantly, even in Annexure No. 6, the Management has shown the appellant as having Post Graduation. But, that is not the issue. When, both, the appellant and respondent No. 4 are treated as qualified, going by the date 20.07.2012, two further questions will arise. Firstly, whether the appellant is justified in pointing out that the only reason given is that the appellant was not qualified as he did not have five years’ service as on 18.10.2011 and, therefore, the order must go? Secondly, even going by the sealed cover procedure, whether the appellant should have been promoted and further proceedings should have been taken on receipt of the order of acquittal? 12. The principle of law would appear to be that, since both the parties are proceeding in this case on the basis that a sealed cover procedure should be followed, when either there is a disciplinary proceeding which is instituted by serving a charge-sheet or there is a criminal proceeding pending which is initiated by the framing of a charge, then resort must be made to sealed cover procedure when the question arises whether the benefit of promotion is to be granted to the delinquent employee. The promotion committee must make its recommendations regarding the suitability; put it in a sealed cover; and, in the meantime, may make provisional or ad hoc promotion. If, in the criminal proceeding with which we are concerned, there is an acquittal and the employee is exonerated of the charge, the authority must apply its mind and make appropriate orders. If it is found that the employee was exonerated completely, the promotion will not ordinarily be denied to the delinquent. The person, who may have been promoted (in this case, if the appellant had been promoted), would be liable to be reverted to make way for the concerned party. 13. The appellant approached this Court by filing the writ petition and feeling aggrieved by the order of the Education Authority. It is true that the main reason given is that the appellant is not qualified going by the date 18.10.2011. This reason may not hold good. It is true that Mr. Navnish Negi, learned counsel appearing for respondent No. 4, points out that the Post Graduation Degree was entered in the service book of the appellant after the date of occurrence of the vacancy, namely, on 24.08.2012. This reason may not hold good. It is true that Mr. Navnish Negi, learned counsel appearing for respondent No. 4, points out that the Post Graduation Degree was entered in the service book of the appellant after the date of occurrence of the vacancy, namely, on 24.08.2012. As on the date the recommendation was made by Annexure No. 6, appellant was treated as having Post Graduation Degree by the Committee of Management. The Post Graduation Degree in Economics was obtained way back in the year 2010. It was entered in the service book of the appellant only later. Therefore, we cannot allow Mr. Navnish Negi to draw support from the fact that it was entered in the service book later. At the time when the vacancy arose, appellant did have Post Graduation Degree. 14. We would think that, in the facts of this case, since, both, the appellant and the fourth respondent do not have any objection to the following of the sealed cover procedure, the implications of the same must be realised and spelt out. There was a criminal case against respondent No. 4. Going by what is stated in Annexure No. 6, the only reason why respondent No. 4 was not considered eligible was the pendency of the criminal case. The argument of the appellant based on deemed approval has been rejected by us. Therefore, the Department was free to accept or not to accept. We also proceed on the basis that the reasoning that the appellant was not having five years’ service may not be correct. But, equally, when sealed cover procedure is to be followed, then, at best, appellant could have got provisional promotion. But since, as found by the learned Single Judge, there has been an acquittal and keeping in view the subsequent conduct of the Committee of Management also, which has taken a decision to promote respondent No. 4, which means that it has found that the acquittal was one which exonerated respondent No. 4 of the charge (abetting of suicide of a neighbour under Section 306), even if the appellant was to be directed to be promoted, it could have been only on a provisional basis and he would have to make way for respondent No. 4 after his acquittal. No doubt, the learned counsel for the appellant has a case that a Government Appeal is pending. 15. No doubt, the learned counsel for the appellant has a case that a Government Appeal is pending. 15. Therefore, in such circumstances, the appeal fails and is dismissed without any order as to costs.