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2022 DIGILAW 858 (ALL)

Neeraj Kumar Pandey v. State of U. P.

2022-05-26

RAJEEV MISRA

body2022
JUDGMENT : Rajeev Misra, J. On the matter being taken the learned Standing Counsel representing respondents submits that he has received instructions in the matter. Copy of same has been placed before Court and the same is taken on record. 2. Heard Mr. Vijay Gautam, the learned Senior Counsel assisted by Mr. Devesh Mishra, the learned counsel for petitioner and the learned Standing Counsel representing State-respondents. 3. Neeraj Kumar Pandey the writ petitioner has approached this Court for a writ of mandamus commanding the respondents to ''open the Seal Cover Envelop and promote the petitioner on the post of Head Constable, on the date from which the juniors to the petitioner have been granted promotion, in pursuance of the Government Order No. 13/21/89 -Ka-1-1997, dated 28.5.1997 & Government Order No. 1/2008-13 (6)/2017/Ka-1-2018, dated 9.1.2018, which has been issued under the directions of Hon'ble Supreme Court in case of Union of India v. K.V. Janki Raman, AIR 1991 SC 2010 , with all consequential benefits''. Petitioner has also prayed for a writ of mandamus commanding respondents ''to consider the claim of the petitioner for promotion on the post of Head Constable, from the date juniors to the petitioner have been granted promotion, in pursuance of the Government Order No. 13/21/89 -Ka-1-1997, dated 28.5.1997 & Government Order No. 1/2018-13 (6)/2018-13 (6)/2017/Ka-1-2018 dated 09/01/2018, which has been issued under the directions of the Supreme Court in Union of India v. K.V. Janki Raman, AIR 1991 SC 2010 , with all consequential benefits.'' 4. Record shows that petitioner was selected for the post of constable in U.P. Police. Upon selection petitioner was appointed as Constable in U.P., Police on 21.10.2006. Services of petitioner are governed by U.P. Police Constables and Head Constables Service Rules, 2015 (Hereinafter referred to as the Rules of 2015). According to petitioner, he became eligible for promotion on the post of Head Constable after completion of seven years of service by virtue of the provisions contained in Rules 5 and 17 of the Rules of 2015. However, the Superintendent of Police (Personnel) (Karmik), U.P. Police Head Quarters, Allahabad issued the final Seniority List of Constables in U.P. Police selected upto 2019 Batch on 24.7.2019. The name of petitioner finds mention at Serial No. 22038 out of 24293. However, the Superintendent of Police (Personnel) (Karmik), U.P. Police Head Quarters, Allahabad issued the final Seniority List of Constables in U.P. Police selected upto 2019 Batch on 24.7.2019. The name of petitioner finds mention at Serial No. 22038 out of 24293. According to petitioner aforesaid final Seniority List was amended by including certain names in the Seniority List but the position of petitioner in aforementioned Seniority List remained the same. 5. Respondent-4, the Deputy Inspector General of Police/Superintendent of Police Establishment/Kormik, D.G.P. Head Quarters, U.P., Lucknow issued a select list of 16929 Constables dated 30.12.2020, who have been promoted on the post of Head Constables. Aforesaid promotion was made for the Selection Year-2017 on the basis of Seniority subject to rejection of unfit. 6. It is the case of petitioner, that juniors to petitioner, whose names have been mentioned in paragraph 20 of the writ petition, were granted promotion on the post of Head Constable whereas the name of petitioner does not find mention in the Select List, copy of which is on record as Annexure-4 to the writ petition. 7. Subsequently, respondent-4, the Deputy Inspector General of Police/Superintendent of Police Establishment/Kormic, D.G.P. Head Quarters, U.P., Lucknow, issued an order dated 1.1.2021 whereby a list of 1495 Police Personnel was published, who were considered for promotion but their cases were placed in Sealed Cover. 8. According to petitioner, an F.I.R. dated 23.4.2006 was lodged and registered as Case Crime No. 91A of 2006 under Sections 147, 148, 323, 504, 427 I.P.C. and 7 Criminal Law Amendment Act, Police Station-Salon District-Rai-Bareilly. In the aforementioned case crime number, charge-sheet was submitted resulting in consequential Criminal Case No. 1084 of 2007 (State v. Shiv Mangal and others). Charge-sheeted accused including petitioner were acquitted of the charges alleged against them vide judgment and order dated 12.6.2009. As such on the date of consideration for promotion of petitioner, aforesaid criminal case was not pending. 9. Subsequently, another F.I.R. dated 27.4.2007 was lodged against petitioner, which was registered as Case Crime No. 471 of 2007 under Sections 420, 467 I.P.C., Police Station-Nawabad, District-Jhansi. In the aforesaid case crime number, charge-sheet dated 31.12.2007 has been submitted. 10. Feeling aggrieved by above, petitioner approached this Court by means of an application under Section 482 Cr.P.C. No. 26229 of 2012, in which an interim order dated 17.8.2012 was passed by this Court. 11. In the aforesaid case crime number, charge-sheet dated 31.12.2007 has been submitted. 10. Feeling aggrieved by above, petitioner approached this Court by means of an application under Section 482 Cr.P.C. No. 26229 of 2012, in which an interim order dated 17.8.2012 was passed by this Court. 11. According to the learned Senior Counsel, on account of above, the services of petitioner were dismissed vide order dated 15.7.2010 passed by respondent-6, Senior Superintendent of Police, Jhansi in exercise of power under Rule 8 (2) (b) of U.P., Police Officers of Subordinate Rank (Punishment and Appeal) Rules, 1991. Petitioner challenged the order of dismissal dated 15.7.2010 before this Court by means of Civil Misc. Writ Petition No. 43868 of 2010 (Neeraj Kumar Pandey v. State of U.P. and others). Aforesaid writ petition was allowed by this Court vide order dated 28.10.2010. Consequently, the petitioner was reinstated in service vide order dated 4.3.2011 passed by respondent-6, Senior Superintendent of Police, Jhansi, According to petitioner, the said order has become final for want of further challenge. 12. On the aforesaid premise, learned Senior Counsel for petitioner submits that once the petitioner has been allowed to continue in service, irrespective of the pendency of criminal case, the denial of promotion to petitioner on account of pendency of criminal case cannot be sustained. 13. It is next contended that the case of petitioner for promotion was considered in the year 2020 but his claim has been placed in Sealed Cover. Relying upon paragraph 19 of the judgment of this Court in Kumari Maya (Mahalla Constable) v. State of U.P. and others, 2011(5) ADJ 818 , he submits that the purpose of Sealed Cover procedure is not for keeping the recommendation of Departmental Promotion Committee in abeyance indefinitely. For ready reference paragraph 19 of aforesaid judgment is reproduced herein-under : ''19. The concept of 'sealed cover'' is normally applicable when conduct of an employee is under investigation, as to whether such person is guilty of misconduct warranting any kind of punishment which may dis-entitle him any promotion on higher post and during such period of suspended animation the authority keeps the matter of promotion in sealed cover so as to take a decision in this regard later on in accordance with the result of inquiry held against such person. But in cases where the incumbent has been considered for promotion in accordance with rules according to zone of consideration and field of eligibility and has been found ultimately selected therein, the question of keeping his result in a sealed cover is nothing but a flimsy pretext inasmuch as result of selection is already known to every body. Mere pendency of the matter of cadre allocation or if for any reason the incumbent is not relieved for joining in Uttranchal State, it ought not to have caused any hindrance in the matter of carrier advancement of such persons since for such pendency the incumbent concerned cannot be said to be at fault.'' 14. It is thus urged that mere pendency of criminal case cannot be taken as a ground to deny promotion to the petitioner particularly when on the same ground the dismissal order passed against petitioner was set-aside by this Court. 15. It is also contended by learned Senior Counsel for petitioner that on account of aforesaid, petitioner has been denied the benefit of promotion for approximately two years. He has then invited attention of Court to the Government Order No. 13/21/89-Ka-1-1997, dated 28.5.1997 & Government Order No. 1/2008-13 (6)/2017/Ka-1-2018, dated 9.1.2018 have been issued by State Government in this regard. The answering respondents have failed to consider the claim of petitioner for promotion from the date Juniors to the petitioner have been promoted. No ground exists to deny promotion to petitioner with retrospective effect. 16. Learned Standing Counsel representing respondents has opposed the present writ petition. He submits that case of petitioner for promotion on the post of Head Constable has been considered but has been placed in Sealed Cover on account of pendency of criminal case. The trial of criminal case has not yet concluded on account of interim order granted by this Court on the Application under Section 482 Cr.P.C. filed by petitioner himself. Petitioner is a member of disciplined force. Offence complained of against petitioner is that of cheating and forgery. As such, no illegality has been committed in not opening the Sealed Cover regarding claim of petitioner. 17. Having heard the learned counsel for petitioner, the learned standing counsel for State-respondents and upon perusal of record, the Court finds that it is an undisputed fact that irrespective of pendency of criminal case, petitioner has been allowed to continue. As such, no illegality has been committed in not opening the Sealed Cover regarding claim of petitioner. 17. Having heard the learned counsel for petitioner, the learned standing counsel for State-respondents and upon perusal of record, the Court finds that it is an undisputed fact that irrespective of pendency of criminal case, petitioner has been allowed to continue. Therefore, mere pendency of a criminal case, prima facie, cannot be taken as a ground to deny promotion of petitioner. The Competent Authority cannot withhold the claim of petitioner indefinitely on the ground of having adopted Sealed Cover Procedure, due to the pendency of criminal case. 18. In view of the discussion made above this writ petition is disposed of finally with a direction to the Competent Authority to consider the claim of petitioner for opening the Sealed Cover within a period of two months from the date of production of a certified copy of this order in the light of observations made herein-above.