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2017 DIGILAW 1371 (JHR)

Shashi Bhushan Singh v. State of Jharkhand

2017-08-04

PRAMATH PATNAIK

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JUDGMENT : Pramath Patnaik, J. In the accompanied writ application, the petitioner has inter alia prayed for quashing minutes of meeting of Establishment Committee of Revenue Department held on 22.8.2016 for appointment-cum-promotion and posting of successful candidates in limited departmental examination for the post of Circle Inspector-cum-Kanoongo, whereby an objection was raised for appointment of the petitioner by way of promotion on the said post and further for direction upon the respondents to appoint the petitioner on the post of Circle Inspector-cum-Kanoongo. 2. Sans details, the facts as delineated in the writ application, is that the petitioner was appointed as Revenue Clerk (Rajaswa Karamchari) in the year 1990 in the office of Deputy Commissioner, Gumla and by passage of time, he was transferred from Gumla to Ranchi in the year 2003. While continuing as such, when the petitioner was posted at Ratu Circle, on the allegation of wrongful mutations/excess mutation of the land, a criminal case being R.C. Case No. 18(S)/2013-R was instituted, in which, initially it is alleged that the petitioner was not made accused. It has been averred that the department also in order to scrutinize the allegations of wrongful mutation, conducted an internal inquiry, in which, the Land Revenue Deputy Collector vide its report dated 4.6.2012 held that there is nothing against the petitioner and no action on the part of the petitioner can be said to be wrongful or criminal in nature and basing on such enquiry report, the petitioner was exonerated from charges. It has been averred that contrary to its findings, when sanction for prosecution was sought for, the department vide order dated 22.12.2014 granted sanction for prosecution. Being aggrieved, the petitioner knocked the door of this Court by way of filing Cr.M.P. No. 699 of 2015 for quashing entire criminal proceeding initiated against him and the Hon'ble High Court vide order dated 16.4.2015 granted stay stating that no coercive step to be taken against the petitioner. It has further been submitted that the department after granting sanction for prosecution again initiated a full-fledged inquiry against the petitioner for the same and similar allegations, as made in R.C. Case No. 18(S)/2013-R, which resulted in exoneration of the petitioner vide memo dated 24.11.2015. 3. It has further been submitted that the department after granting sanction for prosecution again initiated a full-fledged inquiry against the petitioner for the same and similar allegations, as made in R.C. Case No. 18(S)/2013-R, which resulted in exoneration of the petitioner vide memo dated 24.11.2015. 3. It has further been averred in the writ application that one writ petition, being W.P.(S) No. 5405 of 2013 filed by the Jharkhand Rajashwa Karmachari Sangh to fill up the vacancies of Circle Inspector meant to be filled up through limited examination, which was disposed of vide order dated 24.4.2014 and in compliance thereof, the Jharkhand Staff Selection Commission published an advertisement inviting Application from all eligible candidates. The petitioner being fully eligible applied for the same and after due consideration of the eligibility criteria, he was allowed to sit in the limited departmental examination, where he was declared successful securing highest marks in the departmental examination and his name was recommended for appointment on the post of Circle Inspector-cum-Kanoongo vide letter dated 23.6.2016. Pursuant thereto, the Establishment Committee was constituted for appointment and posting of the successful candidates, but, to the utter surprise and consternation, the petitioner was denied to get such benefit vide minutes dated 22.8.2016 of the departmental meeting on the ground that one criminal case is pending against him. Aggrieved thereof, the petitioner represented before the Secretary, Land Reforms, Registration and Revenue Department, Government of Jharkhand enumerating all the discrepancies, but, the same did not evoke any response. 4. Learned counsel appearing for the petitioner submitted with vehemence that on the allegation of wrongful mutation/excess mutation of the land initially the department initiated proceeding against the petitioner and the respondent-Land Revenue Deputy Collector vide its report dated 4.6.2012 exonerated the petitioner from charges. Thereafter, in the criminal case when sanction order for prosecution was passed against the petitioner vide order 22.12.2014, again a thorough departmental proceeding was initiated against the petitioner, in which, after considering the enquiry report submitted by the enquiry officer and reply of the petitioner, the petitioner was fully exonerated by the disciplinary authority itself vide order dated 24.11.2015. Thereafter, in the criminal case when sanction order for prosecution was passed against the petitioner vide order 22.12.2014, again a thorough departmental proceeding was initiated against the petitioner, in which, after considering the enquiry report submitted by the enquiry officer and reply of the petitioner, the petitioner was fully exonerated by the disciplinary authority itself vide order dated 24.11.2015. Learned counsel for the petitioner further submitted that on the selfsame charge criminal case is though pending against the petitioner but this Hon'ble High Court taking into consideration the pleadings of learned counsel for the petitioner as well learned counsel for the respondents-C.B.I. and materials available on record, has been pleased to grant stay in the matter vide order 16.4.2015 in Cr.M.P. No. 699 of 2015. It has further been submitted that it is established principle of law that exoneration in departmental proceeding would substantially make out a case for quashing the criminal case as standard of proof in departmental proceeding is much higher than that of criminal case as in the departmental proceeding preponderance of probabilities is to be seen whereas in the criminal case, the want of proof is that of beyond reasonable doubt. Hence, once the petitioner is exonerated in the departmental proceeding, he cannot be made to suffer because of grant of sanction for prosecution but he is being penalized at the same time for the charges, in which, he has been exonerated. 5. Taking the ground of hostile discrimination, learned counsel for the petitioner emphatically submitted that one Sri Brajesh Mishra, against whom also criminal case was pending and sanction was granted vide order dated 30.10.2012 promotion has been given on the post of Circle Inspector-cum-Kanoongo vide order dated 17.2.2014 and further one Sri Manoj Kumar Dixit, who was made accused in the same case, in which, the petitioner was made accused i.e. R.C. Case No. 18(S) of 2013-R has been given promotion on the post of Assistant Settlement Officer vide notification dated 8.7.2013 and Sri K.K. Rajhans, the then Circle Officer and who was one of the accused in R.C. Case No. 18(S) of 2013-R has also been promoted to the post of Sub-Divisional Officer, but, the petitioner has been subjected to hostile discrimination for the reasons best known to the respondents. 6. 6. Learned counsel for the petitioner further submitted that the petitioner's service is governed by "Jharkhand Rajashwa Karmachari Service Cadre (Appointment, Promotion and Service Condition) Rules, 2011" and from perusal of Clause 7.7, which deals with process of promotion, it is clear that petitioner fulfills all the eligibility criteria and further the petitioner is also fulfilling the criteria as enumerated in the advertisement published by Jharkhand Staff Selection Commission and only after proper securitizing of the application and on being found successful in the examination, petitioner was recommended for promotion by the JSSC. Learned counsel for the petitioner further submitted that in the case of petitioner rules of general promotion will not apply as it is an appointment through limited examination, however, rules framed by the department can be considered. 7. Controverting the averments made in the writ application, learned counsel appearing for the respondents-State submitted that one CBI/SPE/ACB/Ranchi Case No. 18(S)/2013-R was instituted against Smt. Anita Dayal Nandi of M/s Sanjeevani Housing Company, Ranchi wherein the petitioner was also made accused, who at the relevant point of time was posted as Halka Karmachari in Ratu Block. The Deputy Commissioner-cum-District Magistrate, Ranchi after thorough scrutiny of evidences and documents and on being satisfied that prima facie a case is maintainable against the petitioner, sanctioned prosecution against the petitioner vide letter dated 22.12.2014. Referring to Clause 2 of Resolution No. 6227 dated 20.11.2008 of Personnel, Administrative Reforms and Rajbhasha Department, learned counsel for the Respondents-State submitted since a criminal case is pending against the petitioner, hence, the Departmental Establishment Committee rightly did not recommend the promotion of the petitioner in its meeting dated 22.8.2016. 8. Having heard learned counsel for the parties at length and on perusal of the documents available on record, I am of the considered view that the petitioner has been, able to make out a case for interference for the following facts and reasons : (i) From the pleadings available on record, it appears that initially, on the allegations of wrongful mutation, an internal inquiry was conducted by the department, in which, the Land Revenue Deputy Collector vide its report dated 4.6.2012 in unequivocal terms has come to the conclusion that there is nothing against the petitioner and accordingly the petitioner was exonerated from charges. But, for the selfsame charge, one criminal case was also instituted against the petitioner, in which sanction for prosecution was sought for from the department, which was granted by the respondents-department vide order dated 22.12.2014. Being aggrieved by the sanction order, the petitioner approached this Court by way of filing Cr.M.P. Case No. 699 of 2015, in which, stay was granted stating that no coercive step to be taken against the petitioner. It further appears that after grant of sanction for prosecution, the department again initiated a full-fledged enquiry, which resulted in exoneration of the petitioner vide memo dated 24.11.2015. (ii) Meanwhile, the petitioner on being found eligible to appear in the "Limited Departmental Examination" appeared and secured first rank. But, the department deferred his promotion on the ground there is prosecution sanction against the petitioner. Hence, it is paradoxical that the department on the one hand exonerated the petitioner twice in departmental proceeding but on the other hand is denying to extend the benefit of promotion. (iii) Much reliance has been placed by learned counsel for the petitioner on Clause 7.7 of "Jharkhand Rajashwa Karmachari Service Cadre (Appointment, Promotion and Service Condition) Rules, 2011", which deals with the matter of promotion, from perusal of which, it appears that the petitioner fulfills all the eligibility criteria of promotion. Though, in this regard, the respondents have placed reliance on Clause 2(i) of Resolution No.6227 dated 20.11.2008 of Personnel, Administrative Reforms and Rajbhasha Department, which stipulates that in case of pendency of any criminal case against any Government servant, promotion can be held up. But, it appears that Clause (5) of the said Resolution also speaks that if probability of disposal of criminal case is not imminent, ad hoc promotion can be granted. Moreover, if the departmental rule for promotion is there, it cannot be given a complete go-by. (iv) Furthermore, it is the department itself, who has given promotion to the next higher posts to one Sri Manoj Kumar Dixit, the then Circle Inspector and Sri K.K. Rajhans, the then Circle Officer of Ratu Block, who were also made accused in the same case, in which, the petitioner was made accused, but, the petitioner has been subjected to hostile discrimination. Hence, on that count also, the part of impugned order is not sustainable, whereby the petitioner has been denied promotion, on the ground of hostile discrimination. 9. Hence, on that count also, the part of impugned order is not sustainable, whereby the petitioner has been denied promotion, on the ground of hostile discrimination. 9. As a logical sequitur to the aforesaid facts and reasons the part of impugned minutes of meeting of Establishment Committee of Revenue Department held on 22.8.2016, whereby petitioner has been denied promotion is hereby quashed and set aside. Resultantly, the respondents are directed to take a fresh decision for promotion of the petitioner on the post of Circle Inspector-cum-Kanoongo, to which, he is entitled to as expeditiously as possible, preferably within a period of four weeks from the date of receipt/production of copy of this order in accordance with law. 10. With the aforesaid observations and directions, the writ petition stands allowed.