Research › Search › Judgment

Madhya Pradesh High Court · body

2016 DIGILAW 468 (MP)

Anil Bhana v. State of M. P.

2016-06-17

PRAKASH SHRIVASTAVA

body2016
ORDER 1. This writ petition has been filed by the petitioner challenging the order dated 14.7.2015, whereby the petitioner's representation against the DPC proceedings for promotion to the post of Deputy Collector has been rejected on the ground that the petitioner was imposed the penalty of censure on 1.1.2013. 2. In brief, the case of the petitioner is that he is presently working as Tahsildar and a charge sheet was issued to the petitioner on 10.6.2011, thereafter the punishment of censure was imposed vide order dated 31.12.2012. The said order was dispatched on 1.1.2013, hence the date of the order of censure i.e. 31.12.2012 is the effective date, whereas the DPC was held in the next year as on 1.1.2013, therefore, the order of censure will not come in the way of promotion and on that ground the promotion cannot be denied. While rejecting the petitioner's representation by the impugned order dated 14.7.2015, the respondents have taken the view that the penalty of censure was imposed on 1.1.2013. 3. The respondents have filed their reply taking the stand that the DPC was required to take into account the position existing on 1.1.2013 and since the penalty of censure was imposed vide order dated 1.1.2013, therefore, the petitioner has rightly been denied the promotion. 4. The sole issue involved in the matter is as to when the order of punishment had become effective ? 5. The record reflects that the order imposing penalty of censure was passed and signed on 31.12.2012. The Commissioner has recorded the following in the note sheet dated 31.12.12 :- ^^vkns'k ikfjrA layXu gSA ifjfuank y?kq'kkfLr vkjksfirA loZlacaf/kr lwfpr gksaA** 6. The order of penalty Annexure P-2 also states that it was passed on 31.12.2012. The respondents in their reply have also admitted that the order of punishment of censure was passed on 31.12.2012. The plea of respondent that though the order imposing punishment of censure was passed on 31.12.2012 but it was dispatched on 1.1.2013, hence the effective date will be 1.1.2013, cannot be accepted because for the purpose of coming into operation of this order nothing further was required as imposition of penalty of censure became effective on the date the order was passed. The circular dated 10th June, 2011 on the basis of which the petitioner is being denied promotion requires the DPC to take into account the position as on 1st January. 7. The circular dated 10th June, 2011 on the basis of which the petitioner is being denied promotion requires the DPC to take into account the position as on 1st January. 7. Counsel for the petitioner has placed reliance upon the judgment of the Supreme Court in the matter of Collector of Central Excise, Madras v. M/s. M.M. Rubber and Co., Tamil Nadu, reported in 1992 Supp(1) SCC 471, which is a case relating to calculation of limitation and in reference thereto the Supreme Court has held that an order or decision comes into force from the date it is passed and the concerned authority loses power to change it. It has further been held that the commencement of limitation period depends upon the intention of relevant statutory provision and if the intention is to provide a remedy to the person adversely affected, the statutory provision has to be so constituted that the limitation commences from the date of communication of the order. However, if the relevant provision lays down only period in which the competent authority should exercise its power, the date on which such power was exercised by making an order, is relevant. The said proposition has been laid down on the principle that the Government is bound by the proceedings of officers but the persons affected are not, unless the proceedings are communicated to them. It has further been held that the order or decision of the authority will come into force or becomes operative or becomes an effective order or decision on and from the date when it is signed by him. The date of such order or decision is the date on which the order or decision was passed or made; that is to say when he ceases to have any authority to tear it off and draft a different order and when he ceases to have any locus paetentiae. 8. The Supreme Court in the matter of MCD v. Qimat Rai Gupta, reported in (2007)7 SCC 309 , has held that an order would ordinarily be presumed to have been made when it is signed. Once it is signed and an entry in that regard is made in the requisite register kept and maintained in terms of the provisions of a statute, the same cannot be changed or altered. It, subject to the other provisions contained in the Act, attains finality. 9. Once it is signed and an entry in that regard is made in the requisite register kept and maintained in terms of the provisions of a statute, the same cannot be changed or altered. It, subject to the other provisions contained in the Act, attains finality. 9. The aforesaid judgment also reveal that the date from which the order becomes effective is to be seen in the context to which the order has been passed. The Supreme Court in the matter of Qimat Rai Gupta (supra), has noted the earlier judgment while drawing the distinction between order of termination and suspension. 10. In the present case the order of censure is of such a nature which comes into the operation on the date of passing and signing of the said order and since in the present case undisputedly it was signed and passed on 31.12.2012, therefore, it had come into operation on that date. The Deputy Commissioner also vide communication dated 19.9.2014 had conveyed that the order of censure was passed on 31.12.2012. 11. In the aforesaid circumstances the respondents have committed an error in rejecting the representation by the impugned order dated 14.7.2015 on the ground that the punishment of censure was imposed vide order dated 1.1.2013. Hence, the impugned order dated 14.7.2015 cannot be sustained and is hereby set aside. The respondents are directed to reconsider the petitioner's representation taking into account that the impugned order of imposing the penalty of censure was passed on 31.12.2012. 12. The writ petition is accordingly disposed of. Ms. Archana Kher for petitioner; Yogesh Mittal for respondents/State.