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2025 DIGILAW 148 (MP)

State Of M. P. v. Kamlesh Narain Sharma

2025-02-27

ANAND PATHAK, HIRDESH

body2025
ORDER : 1. The present appeal under Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 is preferred by the appellants/State (hereinafter referred as “appellant”) being crestfallen by the order dated 12.07.2023 passed by learned Single Judge in Writ Petition No.5271 of 2012, whereby the writ petition filed by the respondent/ Kamlesh Narain Sharma (petitioner therein) has been allowed. 2. Precisely stated facts of the case are that respondent (petitioner in the writ petition) was working as In-charge Chief Municipal Officer at Ganj Basoda, District Vidisha (M.P.) and was senior Revenue Inspector of Grade “A” (Ka). For promotion of Chief Municipal Officer, Grade ''B'', the department prepared a Fit List on the basis of gradation list showing position as on 01.04.2007 and name of respondent was placed at S.No.58 in the gradation list. The appellants/State fixed the date of DPC as 17.07.2009 and subsequently, the said date was extended and fixed as 09.11.2009, 16.12.2009 and thereafter, 08.03.2010. Lastly, the date was fixed for 29.03.2010. The requisite information of the employees, who are under the zone of consideration were placed before the DPC and in the said list, name of the respondent was placed at S.No.15. From perusal of the said list, it is reflected that three charge-sheets were issued against the respondent; one on 30.09.2010 and other two on 21.10.2009. 3. In the DPC held on 29.03.2010, the criteria for promotion was seniority-cum-merit and the ACRs for 05 years w.e.f. 2003-04 to 2007-08 were placed for consideration for promotion. After consideration of the case of respondent, the recommendations/comments of DPC were placed in a sealed envelope. The aforesaid action of the appellants/ State was in pursuance to Circular dated 11.09.2007. From the year 2003-04 to 2007-08, no departmental enquiry was pending or contemplated against the respondent except for one enquiry of Lokayukt Organization, which was registered in the year 1999 and the said enquiry was closed on 29.05.2009. On perusal of the list, it appears that all three charge-sheets have been issued against the respondent in the year 2009, and no charge-sheet has been issued against the respondent during the period which was under consideration for his promotion i.e. 2003-04 to 2007-08. However, the petitioner has not been given promotion looking to the departmental enquiry pending against him. 4. However, the petitioner has not been given promotion looking to the departmental enquiry pending against him. 4. Thereafter, petitioner approached this Court by way of filing W.P. No.5271/2012, which was allowed vide order dated 12.7.2023 with the following directions: “17. Thus, this Court finds that the order impugned dated 10.5.2012 is per se illegal and accordingly, it is hereby set aside. The respondents are directed to open the sealed envelope of the recommendations/comments of the DPC held on 29.03.2010 forthwith. 18. If the recommendations/comments of the DPC are in favour of the petitioner then consequential relief of notional promotion, re-fixation of pay/pension and other benefits be extended to the petitioner. 19. With the aforesaid observation and direction, the present petition is allowed and disposed off.” 5. Being aggrieved by the order passed by learned writ Court, appellants/State filed the present writ appeal before this Court. 6. Learned counsel for the appellants/State submits that the order passed by learned Writ Court is contrary to the law and the Writ Court has not taken into consideration the Circular issued by the State Government from time to time with regard to process of sealed cover while considering the case of an employee in DPC. It is an admitted fact that DPC was conducted on 29.03.2010, in which the case of respondent was duly considered and because of three departmental enquiries pending against him, sealed cover proceeding was rightly been adopted in pursuance to the Circular dated 30.06.1994 (Annexure AW-3). All three charge-sheets were ultimately culminated and concluded as punishment to the respondent. In the DPC conducted, it was held that out of three charge-sheet, in pursuance of the first charge-sheet which was issued in the year 2011, two increments with non-cumulative effect have been stopped and thereafter, since loss caused to the public exchequer was to the tune of Rs.2,67,531/- therefore, 50% of the said loss was directed to be recovered from the respondent. 7. Similarly, in pursuance to second charge-sheet in relation to case No.269/2009, in which it was found that loss caused to the public exchequer was to the tune of Rs.13,56,340/- and therefore, 50% of the said loss was directed to be recovered from the respondent. 8. 7. Similarly, in pursuance to second charge-sheet in relation to case No.269/2009, in which it was found that loss caused to the public exchequer was to the tune of Rs.13,56,340/- and therefore, 50% of the said loss was directed to be recovered from the respondent. 8. Another case, which was registered by the Lokayukt under Section 420 and 120-B of IPC r/w Section 13(1), 201 and 13(2) and 13(c) of Prevention of Corruption Act, in which permission was sought for prosecuting the respondent, that permission was also granted by Nagar Palika Parishad, Bhind, therefore, in such circumstances, respondent was not found fit and entitled for giving promotion. 9. Learned counsel for respondent vehemently opposed the submission of learned counsel for the appellants/State by supporting the impugned order passed by learned Writ Court. 10. Heard the counsel for the parties and perused the documents appended thereto. 11. In the present case, as per discussion as surfaced, it appears that once an employee is facing departmental inquiry and during the pendency of departmental inquiry, any DPC is convened for his promotion, then his recommendation would be kept in a sealed cover and promotion order would not be passed till he is exonerated from the charges. If he is not exonerated from the charges, then the recommendation of DPC would not be implemented. In sub-clause (7) of Clause 5 of the Circular dated 30.06.1994 (Annexure/AW-3) issued by the General Administration Department Government of M.P., this position has been clarified, Circular is reproduced for ready reference:- 12. Thereafter, vide Circular dated 11.09.2007 (Annexure/AW-4), reiteration of this spirit has been made. The said circular is reproduced as under:- 13. Learned counsel for the Amicii Curie placed one order dated 20.07.2018 passed in W.A.No.736/2018 (State of M.P. And Ors. Vs. Shyam Singh Tomar). Relevant discussion whereof reads as under:- “As the empanelment for promotion does not create a vested right of promotion, the principle of law laid down in K.V. Jankiraman (supra) and Anil Kumar Sarkar (supra) are of no assistance. Whereas in the former case the principle laid down was that in case of the initiation of disciplinary proceedings on a criminal proceedings, the recommendation for promotion to be kept in sealed cover. Whereas in the latter case, the charge sheet was issued four months (i.e. on 13/08/2003) after the promotion (i.e. on 21/04/2003). Whereas in the former case the principle laid down was that in case of the initiation of disciplinary proceedings on a criminal proceedings, the recommendation for promotion to be kept in sealed cover. Whereas in the latter case, the charge sheet was issued four months (i.e. on 13/08/2003) after the promotion (i.e. on 21/04/2003). In the case at hand, when the charge sheet was issued on 25/08/2015 there was only the recommendation. The promotion order which was issued on 01/10/2015 as would create any right in the respondent for promotion.” 14. In the present case, DPC was held on 29.03.2010 whereas three charge-sheets were issued to respondent; one on 30.09.2009 and other two on 21.04.2009. Besides that, one matter was registered by the Lokayukta also in the year 1999. Therefore, at the time of DPC, respondent was facing departmental inquiry and therefore, contention of respondent that ACRs were to be considered for the period 2003-04 to 2007-08 only and not for the period 2008-09 when he was subjected to departmental inquiry, does not hold ground because of the language of Circular dated 30.06.1994 (Annexure AW-3) and 11.09.2007 (Annexure AW-4) as well as order dated 20.07.2018 passed in W.A.No.736/2018 (supra). At the time of DPC, it is to be seen whether any the departmental inquiry is pending against the employee or not. 15. Although, circular dated 30.06.1994 also contemplates certain those exigencies when any disciplinary proceeding/criminal case is pending against an employee and delay in those proceedings have been caused, in that condition, sealed cover procedure can be reviewed every six months so that progress of disciplinary proceeding/criminal case can be taken into account and ways and means be adopted for early completion of those proceedings. Para-4 of the circular dated 30.06.1994 is reproduced as under:- 16. In fact in sub-clause (1) of Clause 5 of the said circular, a very wider and all encompassing view has been taken by the General Administration Department which reads as under:- 17. It even contemplates that in certain exigencies, employee can be considered for promotion if he fulfills certain conditions as prescribed in the circular. Although, in the considered opinion of this Court, this discretion can be enforced only in exceptional circumstances because Sub-Clause-7 of Clause-5 of said circular in fact waters down the spirit of the very circular. Beside that subsequent circular dated 11.09.2007 issues supplementary directions. Although, in the considered opinion of this Court, this discretion can be enforced only in exceptional circumstances because Sub-Clause-7 of Clause-5 of said circular in fact waters down the spirit of the very circular. Beside that subsequent circular dated 11.09.2007 issues supplementary directions. Said circular dated 11.09.2007 was passed after the judgments of Apex Court in the case of Delhi Development Authority Vs. H.C.Khurana, AIR 1993 SC 1488 , Union of India and Ors. Vs. Dr. Sudha Salhan (Smt.), (1998) 3 SCC 394 Bank of India and Anr. Vs. Degala Suryanarayana (1999) 5 SCC 762 . Therefore, it virtually dilutes the earlier Sub-Clause 4 and Clause-5 of said of the circular dated 30th June, 1994. 18. Therefore, in the considered opinion of this Court, learned Writ Court glossed over the fact situation and legal position, thus, caused illegality in passing the impugned order allowing petition filed by the respondent as petitioner. 19. In view of the above, the writ appeal preferred by the appellants/State is allowed. The order passed by learned Writ Court dated 12.07.2023 in Writ Petition No.5271/2012 is hereby set-aside and the order dated 10.05.2012 (Annexure P-1 annexed in the Writ Petition) stands revived. 20. Before parting, this Court extends appreciation for the valuable assistance given by learned Amicii Curiae -Shri Anil Sharma and Shri Alok Sharma, Advocates. 21. In view of the above, the Writ Appeal stands allowed and disposed of.