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2022 DIGILAW 574 (GAU)

Beihai Hlychho S/o Shri Dotu v. State of Mizoram

2022-06-01

NELSON SAILO

body2022
JUDGMENT : NELSON SAILO, J. 1. Heard Mr. Victor L. Ralte, learned counsel for the petitioner and Ms. Linda L. Fambawl, learned Government Advocate appearing for all the respondents. None appears for the private respondents despite notice. 2. This is the second time the petitioner is before this Court. The earlier writ petition filed by him i.e. WP (C) No. 72/2017 challenging the major penalty imposed upon him and the rejection of his appeal and review petition was disposed of vide Judgment and Order dated 01.12.2017 by setting aside the said penalty and rejection orders. However, the respondents were given liberty to initiate fresh proceedings as permissible under law. 3. After the writ petition was disposed of in the above manner, a fresh proceeding was drawn up again against the petitioner but the disciplinary authority decided not to proceed any further with the denovo enquiry and discharged the petitioner from the Departmental enquiry. The major punishment imposed upon the petitioner i.e. withholding of 2 (two) years annual increment with cumulative effect was also cancelled and payment of the increment due to the petitioner was directed as well. Accordingly, vide Order dated 12.06.2018, the petitioner was granted his increment. The petitioner, thereafter, upon being recommended by the screening committee and by the Police Establishment Board for promotion to the post of Inspector of Police, he was promoted vide Order dated 04.09.2018 with immediate effect. 4. The grievance of the petitioner is that the private respondents, who were his next juniors in the rank of Sub-Inspector of Police were promoted to the post of Inspector of Police, without considering him and they have now become his seniors. According to the petitioner, since the penalty imposed upon him was set aside by this Court and that the disciplinary authority has discharged him from the Departmental enquiry and restored the increments which was withheld from him, he is entitlement to be considered for promotion from the date his next junior was considered and promoted to the post of Inspector of Police by constituting a review DPC. The representation made by him in this regard before the respondent authority concerned through proper channel on 30.09.2019 having not been considered, he is before this Court. 5. Mr. The representation made by him in this regard before the respondent authority concerned through proper channel on 30.09.2019 having not been considered, he is before this Court. 5. Mr. Victor L. Ralte, learned counsel for the petitioner submits that the first writ petition filed by the petitioner i.e. WP (C) No. 72/2017 was disposed of vide Judgment and Order dated 01.12.2017 by this Court by setting aside the Enquiry Report dated 09.03.2013, the order of penalty dated 31.07.2014, the rejection of the petitioner’s appeal dated 28.10.2014 and also the rejection of the review petition of the petitioner vide Order dated 18.11.2015. Since this Court had given liberty to the respondent authorities to take up the enquiry once again as per law, an enquiry was again conducted against the petitioner. However, the disciplinary authority, on being satisfied that there was no reasonable ground to proceed with any further with the Departmental enquiry, discharged the petitioner vide Order dated 16.03.2018. By the same order, the major punishment imposed upon the petitioner was also cancelled and the annual increments withheld from him were fully restored to him. He, therefore, submits that since the next junior of the petitioner was promoted on 21.07.2017, the petitioner should also be considered for promotion to the post of Inspector of Police with effect from the date by constituting a review DPC. He, therefore, submits that a suitable direction in that regard be issued to the respondents. In support of his submission, the learned counsel has relied upon the following authorities: (1) C.O. Arumugam vs. State of Tamil Nadu, 1991 Supp. (2) SCC 199 (2) Union of India vs. K.V. Jankiraman, (1991) 4 SCC 109 6. The learned counsel also submits that the authority relied upon by the State respondents in their counter affidavit i.e. Union of India vs. K. Krishnan, AIR 1992 SC 1898 is distinguishable, inasmuch as, the penalty imposed upon the person concerned was not interfered with, whereas it is not the case in the present writ petition. As such, the said decision is not applicable to the present case. 7. Mrs. Linda L. Fambawl, learned Government Advocate appearing for the State respondents by relying upon the affidavit-in-opposition filed by the respondent on 19.01.2022 submits that the petitioner has claimed retrospective promotion w.e.f. 21.07.2017 whereas, the punishment imposed upon him barred his promotion on 21.07.2017. As such, the said decision is not applicable to the present case. 7. Mrs. Linda L. Fambawl, learned Government Advocate appearing for the State respondents by relying upon the affidavit-in-opposition filed by the respondent on 19.01.2022 submits that the petitioner has claimed retrospective promotion w.e.f. 21.07.2017 whereas, the punishment imposed upon him barred his promotion on 21.07.2017. Therefore, the petitioner cannot claim retrospective promotion and he will have to face the next DPC for promotion and if he is recommended, his promotion will have to be with prospective effect only. She further submits that as regards the claim of the petitioner for seniority over the private respondents, the same cannot be granted without there being any recommendation by the DPC for retrospective promotion. 8. I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record. 9. From the case projected by the petitioner, the issue to be decided is as to whether a review DPC is to be constituted for considering the promotion of the petitioner, retrospectively from the date when his next junior was promoted. The facts which are not in dispute is that the petitioner was imposed with a major penalty vide Order dated 31.07.2014 where his two years annual increment was withheld with cumulative effect. The appeal filed by the petitioner against the same was rejected vide Order dated 28.10.2014 and the revision preferred by the petitioner before the Director of General of Police was also rejected vide Order dated 18.11.2013. Aggrieved, the petitioner initiated WP (C) No. 72/2017 challenging the penalty imposed upon him and also rejection of the appeal of his petition by the respondent authority concerned. The writ petition was disposed of vide Judgment and Order dated 01.12.2017 by setting aside the penalty imposed upon the petitioner and so also were the rejection of the appeal and revision filed by the petitioner. However, liberty was granted to the respondent authority to initiate fresh enquiry as per law. In terms of the said direction, the respondent authority concerned initiated fresh enquiry against the petitioner but vide Order dated 16.03.2018, the disciplinary authority decided not to proceed any further with the Departmental enquiry and discharged the petitioner from the enquiry proceedings. However, liberty was granted to the respondent authority to initiate fresh enquiry as per law. In terms of the said direction, the respondent authority concerned initiated fresh enquiry against the petitioner but vide Order dated 16.03.2018, the disciplinary authority decided not to proceed any further with the Departmental enquiry and discharged the petitioner from the enquiry proceedings. By same order, the penalty imposed upon him was also cancelled and he was granted the annual increment with effect from the date he was denied such increments. The respondent Nos. 6, 7, 8 and 9 admittedly were junior to the petitioner in the rank of Sub- Inspector of Police but they stole a march over the petitioner when they were promoted to the post of Inspector of Police on 21.07.2017, 01.02.2018, 13.03.2018 and 23.08.2018 respectively. From the materials available on record, it is seen that no sealed cover procedure was adopted when the respondent No. 6 was being considered for promotion. However, when the respondent Nos. 7, 8 and 9 were considered for promotion, sealed cover procedure seems to have been adopted by the Police Establishment Board, as can be seen from the meeting minutes of the Board dated 19.01.2018. However, there is no material on record to show that the sealed cover was opened and considered when the petitioner was recommended for promotion by the screening committee constituted for the purpose and the Police Establishment Board which held its meeting on 03.09.2018. As already stated herein above, the penalty imposed upon the petitioner has already been set aside and the annual increments withheld from him already restored and as such, it is as if there was no the disciplinary proceedings drawn against the petitioner. 10. The Apex Court in the case of C.O. Arumugam (supra) in the given facts of that case held that every civil servant has a right to have his case considered for promotion according to his turn and it is a guarantee flowing from Article 14 and 16(1) of the Constitution. The consideration of promotion could be postponed only on reasonable grounds. To avoid arbitrariness, it would be better to follow certain uniform principles. The promotion of persons against whom charge has been framed in the disciplinary proceedings or charge-sheet has been filed in criminal case may be deferred till the proceedings are concluded. The consideration of promotion could be postponed only on reasonable grounds. To avoid arbitrariness, it would be better to follow certain uniform principles. The promotion of persons against whom charge has been framed in the disciplinary proceedings or charge-sheet has been filed in criminal case may be deferred till the proceedings are concluded. They must, however, be considered for promotion if they are exonerated or acquitted from the charges. If found suitable, they shall then be given the promotion with retrospective effect from the date on which their juniors were promoted. 11. Coming to the present case, it may be seen that the petitioner has been discharged from the disciplinary proceedings and the penalty imposed upon him was cancelled and the annual increment that was withheld from him has been restored. Not only this, this Court, vide Judgment and Order dated 01.12.2017 had interfered with the penalty imposed upon the petitioner. Therefore, upon due consideration, I find merit in the writ petition. Accordingly, the respondents are directed to constitute a review DPC to consider the promotion of the petitioner to the post of Inspector of Police with retrospective effect from the date on which his next junior was promoted i.e. 21.07.2017. If the review DPC finds the petitioner fit for promotion, he shall be accordingly given such promotion retrospectively. However, the petitioner shall not be entitled to arrear salaries in the event of his retrospective promotion but he shall be entitled to his seniority from the date of his promotion and the seniority list already prepared shall be rectified accordingly. 12. With the above observations and directions, the writ petition stands disposed of. No cost.