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2020 DIGILAW 746 (MP)

K. C. Vishwakarma v. State of M. P.

2020-07-29

B.K.SHRIVASTAVA, SANJAY YADAV

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ORDER 1. This intra-Court appeal under section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005, is directed against the common order dated 23.4.2018 passed in Writ Petition No.20176/2015 and Writ Petition No.18313/2016. 2. Whereas, Writ Petition No.20176/2015 was directed against the order dated 10.9.2015 and for a direction to the Authorities to relieve the petitioner for submitting his joining on his promotional post of Principal, Government Boys’ Higher Secondary School, Silwani District Raisen. The Writ Petition No.18313/2016 was against the order dated 22.10.2016; whereby, the promotion of the petitioner as Principal, Higher Secondary School was cancelled. 3. Relevant facts leading to controversy briefly are that on 5.11.2014 and 30.1.2015, meeting of Departmental Promotion Committee (DPC) was convened in the School Education Department at State Level to consider promotions from the cadre of Principal, High School to the cadre of Principal, Higher Secondary School. That, by order dated 28.8.2015, the promotion order was issued vide No.F-1-41/2014/20-1 in pursuance to the recommendations by the DPC. The petitioner was shown promoted as Principal, Government Higher Secondary School, Silwani District Raisen. The promotion order in its Condition No.2 stipulated that the incumbent facing criminal case/departmental enquiry/undergoing punishment were not to be relieved. The precise condition is reproduced for ready reference: ^^2- mijksDr inksUur Ákpk;Z] mŒekŒfoŒ dks HkkjeqDr djus ds iwoZ ;g lqfuf’pr dj fy;k tkos fd tks Ákpk;Z in ij inksUur gks jgs gSa] muds fo:) fdlh izdkj dh vkijkf/kd Ádj.k@foHkkxh; tkap@vuq’kklukRed dk;Zokgh ;k ,slh 'kkfLr tks mudh inksUufr ij ÁHkko Mkyrh gks lafLFkr u gks ;k orZeku esa naM ds ÁHkko esa u gksA** 4. As the petitioner was found undergoing the penalty of recovery of Rs.27,969/- and withholding of two increments with cumulative effect imposed vide order dated 26.4.2014, he was not relieved as per stipulations in the order of promotion. Aggrieved, petitioner filed the Writ Petition No.20176/2015 wherein, by interim order dated 24.2.2016, the petitioner was directed to be relieved. The petitioner was not relieved, instead, an order came to be passed on 22.10.2016, cancelling the promotion of the petitioner on the anvil that on the date when the DPC was convened, the petitioner was undergoing punishment and was thus not eligible for promotion. The petitioner was not relieved, instead, an order came to be passed on 22.10.2016, cancelling the promotion of the petitioner on the anvil that on the date when the DPC was convened, the petitioner was undergoing punishment and was thus not eligible for promotion. It was also noticed by the Authority concerned that in furtherance to the punishment order, the petitioner had deposited the amount of Rs.27,959/- vide Demand Draft No.873316 on 19.1.2015 in the State Bank of India, Branch Udaipura. This order i.e. order dated 22.10.2016 was subjected to challenge in Writ Petition No.18313/2016. 5. It is pertinent to note at this juncture that the order of punishment dated 26.4.2014 which was affirmed in appeal decided on 27.9.2014 was challenged in Writ Petition No.19597/2014. The said Writ Petition was decided on 2.4.2018; whereby, the punishment order and the appellate order were set aside and the matter was remitted to the Disciplinary Authority to pass fresh reasoned order against the petitioner. It is informed that no order has been passed by the Disciplinary Authority. 6. Learned Single Judge with these facts in the background declined indulgence. For the issue as to whether an employee is entitled to reap the benefit of promotion when admittedly on the date of his consideration, the employee was already undergoing a punishment, learned Single Judge relying on the principle of law laid down in Bhajan Singh v. State of Uttarakhand (2013) 14 SCC 32 , held that the promotion of the petitioner who was undergoing punishment was erroneous. 7. Though a contention is raised on behalf of the appellantpetitioner that since the petitioner had challenged the punishment order, the recommendation ought to have been kept in sealed cover. The submission when considered in the backdrop of the fact that the petitioner having accepted the punishment order by depositing the amount of penalty suffers inherent fallacy. In Union of India and others v. K. Krishnan AIR 1992 SC 1898 , dwelling upon an argument in similar fact situation that non-promotion during currency of penalty would tantamount to double jeopardy i.e. being punished twice for the same offence by way of penalty in the disciplinary jurisdiction and withholding of promotion and, therefore, arbitrary and violative of Articles 14 and 16 of the Constitution, the Supreme Court held : “4. … There is only one punishment visiting the respondent as a result of the conclusion reached in the disciplinary proceeding leading to the withholding of increment, and the denial of promotion during the currency of the penalty is merely a consequential result thereof. The view that a Government servant for the reason that he is suffering a penalty or a disciplinary proceeding cannot at the same time be promoted to a higher cadre is a logical one and no exception can be taken to Rule 157. It is not correct to assume that Rule 157 by including the aforementioned provision is subjecting the Government servant concerned to double jeopardy. We do not find any merit in the argument that there is no justification or rationale behind the policy; nor do we see any I reason to condemn it as unjustified, arbitrary and violative of Articles 14 and 16 of the Constitution of India.” 8. Further, in State of Tamil Nadu v. Thiru K.S. Murugesan (1995) 3 SCC 273 , it is held : “7. It would thus be clear that when promotion is under consideration, the previous record forms basis and when the promotion is on merit and ability, the currency of punishment based on previous record stands an impediment. Unless the period of punishment gets expired by efflux of time, the claim for consideration during the said period cannot be taken up. Otherwise, it would amount to retrospective promotion which is impermissible under the Rules and it would be a premium on misconduct. Under these circumstances, we are of the opinion that the doctrine of double jeopardy has no application and non-consideration is neither violative of Article 21 nor Article 14 read with Article 16 of the Constitution.” 9. When the impugned order is tested on the anvil of above analysis, we do not perceive any error as would warrant any indulgence. Learned counsel for the appellant, however, raises an issue which crops up from the order dated 2.4.2018 passed in Writ Petition No.19597/2014; whereby, the punishment order dated 26.4.2014 was set aside with the direction to the Disciplinary Authority to pass fresh reasoned order. Learned counsel for the appellant, however, raises an issue which crops up from the order dated 2.4.2018 passed in Writ Petition No.19597/2014; whereby, the punishment order dated 26.4.2014 was set aside with the direction to the Disciplinary Authority to pass fresh reasoned order. It is contended that in view whereof, the punishment having been set aside, there was no punishment when the DPC held on 5.11.2014 and 30.1.2015 and it was only the charge sheet which can be said to be in existence, therefore, the case of the petitioner is to be treated as under cloud and the recommendations of DPC ought to be presumed to be in sealed cover and be subjected to order to be passed by Disciplinary Authority on remand. The submission though attractive does not cut any ice. Evidently, in pursuance to the punishment order dated 26.4.2014, the petitioner accepted the punishment and deposited the amount of Rs.27,959/- vide Demand Draft No. 873316 on 19.1.2015. Thus, on the date when the DPC convened i.e. on 5.11.2014 and 30.1.2015, the petitioner was not eligible for consideration for promotion. Thus, even with the setting aside of punishment order and the remittance of the case to the Competent Authority for a fresh order, there is no accrual of right which, in our considered opinion, will arise only if the petitioner is exonerated ofthe charges. And, it is only in such eventuality, the consequences would ensue which cannot be pre-empted in the present appeal. 10. Since we have declined the interference with the order dated 23.4.2018 passed in Writ Petition No.20176/2015 and Writ Petition No.18313/2016, the appeal fails and is dismissed. No costs.