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BRIJ LAL NIRANJAN versus STATE OF U.P. & OTHERS

High Court of Judicature at Allahabad

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Brij Lal Niranjan v. State Of U.P. & Others - WRIT - A No. 61359 of 2006 [2006] RD-AH 20459 (4 December 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 38

Civil Misc. Writ Petition No.61359 of 2006

Brij Lal Niranjan

Versus

State of U.P. and others

Connected with

Civil Misc. Writ Petition No.63417 of 2006

Brij Lal Niranjan

Versus

State of U.P. and others

Hon'ble V. K. Shukla, J.

Petitioner was appointed as Lekhpal in the Consolidation Department of the State on 26.12.1979. On 23.05.2005, an F.I.R. was lodged at P.S. Kotwali, District Banda by the Assistant Consolidation Officer, which was registered as case crime No.72 of 2005 under Sections 420 and 120B I.P.C. read with Section 7/13 of the Prevention of Corruption Act, against petitioner and one Jhagru Ram Yadav,  Assistant Consolidation Officer. On 03.06.2005, the District Magistrate, Banda, exercising the authority of District Deputy Director of Consolidation, Banda, placed the petitioner under suspension in contemplation of departmental proceeding, with regard to charges levelled therein. Petitioner challenged the aforementioned F.I.R. by filing Criminal Misc. Writ Petition No. 5983 of 2005 (Birj Lal Niranjan vs. State of U.P. and others). The said writ petition was dismissed, and the petitioner was arrested and sent to jail on 23.06.2005. On 29.10.2005 departmental charge sheet  was issued, to which Petitioner submitted his reply under covering letter dated 17.11.2005, which was placed before the Enquiry Officer on 17.11.2005 itself. The Enquiry Officer undertook enquiry and submitted its report dated on 19.12.2005, exonerating the Petitioner of all the charges.  On 23.01.2006 Circle Officer closed the investigation and submitted final report. The Superintendent of Police, Banda, transmitted  a letter to the Assistant Consolidation Officer, Banda, intimating submission of final report in the criminal case.  The Superintendent of Police, Vigilance, Kanpur, also informed the Settlement Officer, Consolidation  that in the vigilance enquiry no charge has been found established against petitioner. Despite completion of enquiry, exonerating the petitioner of all charges and the final report having been submitted in court, petitioner continued under suspension, as such he filed writ petition No.27136 of 2006, wherein this Court on 18.05.2006 passed following order:

"The suspension being a continuing  cause of action, it is open to the Petitioner to challenge the proceedings as and when it is found that the order of suspension deserves to be revoked in the instant case, I am prima facie of the opinion that in view of the facts as brought out herein above, the Petitioner cannot be continued any further under suspension. Accordingly, the suspension of Petitioner  shall remain stayed until further orders with liberty  to the respondents to  proceed to pass final orders pursuant to the inquiry report already submitted as expeditiously as possible. Learned Standing Counsel may file a counter affidavit if he so desires within three weeks. List thereafter."

       Thereafter on 10.07.2006, petitioner has been reinstated in service, but a recital was mentioned that disciplinary proceeding would continue. Thereafter on 25.07.2006 another order has been passed by District Magistrate, Banda, holding that charges have not been found proved during the course of departmental proceeding and also directed payment of arrears of salary after excluding the subsistence allowance already paid.

From the post of Lekhpal, there are promotional avenues to the post of Consolidator.  Criteria and basis for such promotion is seniority subject to rejection of unfit, and such promotion is made by the Consolidation Commissioner. On the basis of seniority, proceedings for promotion were undertaken at the said level in June/July, 2005 and the petitioner's name was also considered and recommended for promotion as Consolidator. The order of promotion which was issued on 20.07.2005 could not be implemented on account of departmental proceeding. When order  dated 25.07.2006 has been passed exonerating the  petitioner from departmental proceedings, then petitioner has approached this court by means of writ petition No.61359 of 2006 for issuing a writ in the nature of mandamus commanding the respondents to permit the petitioner to function as Consolidator.

During the pendency of the aforesaid writ petition, petitioner has been transferred on administrative exigency from Banda to Mirzapur, against which petitioner has filed writ petition No.63417 of 2006. Both the writ petitions have been taken up together. Requisite instructions have been received by the learned Standing Counsel, and it has been contended that an open inquiry has been got initiated against petitioner and the said inquiry has been transferred from Kanpur to Allahabad, and till petitioner is not exonerated of the aforementioned open enquiry as per terms and conditions mentioned in the letter dated 11.06.2005, no promotion can be accorded to the petitioner.  

Both the parties have agreed that the matter be heard and decided finally at this stage itself, as such both the writ petitions have been heard together and are being disposed of by a common judgment.

Sri Ashok Khare, Senior Advocate, assisted by Sri Amit Srivastava, Advocate, contended with vehemence that petitioner's claim for promotion has been accepted and the said promotion can be  withheld in the contingencies; (i) when petitioner was placed under suspension; (ii) in case any disciplinary proceeding or administrative action was pending against petitioner, for which charge sheet has been issued; and (iii) in case on the basis of criminal charge any criminal prosecution is pending in criminal court by way of charge sheet, and as none of the three contingencies are in existence in the present case, as such promotion cannot be withheld merely on the ground that open enquiry is pending, as such in all eventuality, promotion is liable to be accorded to the petitioner on the post of Consolidator .

Learned Standing Counsel, on the other hand, has contended that as per letter dated 11.06.2005 open inquiry was pending against the petitioner, and till the petitioner is not cleared in the said enquiry, petitioner cannot be accorded promotion.

After respective arguments have been advanced, the Government Order dated 28.05.1997, which covers the field of promotion when the procedure of sealed cover is to be followed and, which has been issued on the  basis of directions contained in the judgment of Hon'ble Apex Court  in the case of Union of India  v. K.V. Jankiraman, AIR 1991 SC 2010, is being looked into. Relevant paragraphs 6, 7, and 8 of the aforementioned judgment and the said Government Order dated 28.05.1997 are quoted below:

"6. On the first question, viz., as to when for the purposes of the sealed cover procedure the disciplinary/criminal proceedings can be said to have commenced, the Full Bench of the Tribunal has held that it is only when a charge-memo in a disciplinary proceedings or a charge-sheet in a criminal prosecution is issued to the employee that it can be said that the departmental proceedings/criminal prosecution is initiated against the employee. The sealed cover procedure is to be resorted to only after the charge-memo/charge-sheet is issued. The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. We are in agreement with the Tribunal on this point. The contention advanced by the learned counsel for the appellant-authorities that when there are serious allegations and it takes time to collect necessary evidence to prepare and issue charge-memo/ charge-sheet, it would not be in the interest of the purity of administration to reward the employee with a promotion, increment etc., does not impress us. The acceptance of this contention would result in injustice to the employees in many cases. As has been the experience so far, the preliminary investigations take an inordinately long time and particularly when they are initiated at the instance of the interested persons, they are kept pending deliberately. Many times they never result in the issue of any charge-memo/charge-sheet. If the allegations are serious and the authorities are keen in investigating them, ordinarily it would not take much time to collect the relevant evidence and finalise the charges. What is further, if the charges are that serious, the authorities have the power to suspend the employee under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure. The authorities thus are not without a remedy. It was then contended on behalf of the authorities that conclusions Nos. 1 and 4 of the Full Bench of the Tribunal are inconsistent with each other. Those conclusions are as follows:

"(1) consideration for promotion, selection grade, crossing the efficiency bar or higher scale of pay cannot be withheld merely on the ground of pendency of a disciplinary or criminal proceedings against an official;

(2)...................................................

(3).......................................

(4) the sealed cover procedure can be resorted only after a charge memo is served on the concerned official or the charge sheet filed before the criminal court and not before;"

There is no doubt that there is a seeming contradiction between the two conclusions. But read harmoniously, and that is what the Full Bench-has intended, the two conclusions can be reconciled with each other. The conclusion No. 1 should be read to mean that the promotion etc. cannot be withheld merely because some disciplinary/ criminal proceedings are pending against the employee. To deny the said benefit they must be at the relevant time pending at the stage when charge-memo/charge-sheet has already been issued to the employee. Thus read, there is no inconsistency in the two conclusions.

We, therefore, repel the challenge of the appellant-authorities to the said finding of the Full Bench of the Tribunal.

7. The Full Bench of the Tribunal, while considering the earlier Memorandum dated 30th January, 1982 has, among other things, held that the portion of paragraph 2 of the memorandum which says "but no arrears are allowed in respect of the period prior to the date of the actual promotion" is violative of Articles 14 and 16 of the Constitution because withholding of salary of the promotional post for the period during which the promotion has been withheld while giving other benefits is discriminatory when compared with other employees who are not at the verge of promotion when the disciplinary proceedings were initiated against them.

  The Tribunal has, therefore, directed that on exoneration, full salary should be paid to such employee which he would have received on promotion if he had not been subjected to disciplinary proceedings.

   We are afraid that the Tribunal's reference to paragraph 2 of the Memorandum is incorrect. Paragraph 2 only recites the state of affairs as existed on January 30, 1982 and the portion of the Memorandum which deals with the relevant point is the last sentence of the first sub-paragraph after, clause (iii) of paragraph 3 of the Memorandum which is reproduced above, That sentence reads as follows:

        "But no arrears of pay shall be payable to him for the period of notional promotion preceding the date of actual promotion".

        This sentence is preceded by the observation that when the employee is completely exonerated on the conclusion of the disciplinary court proceedings, that is, when no statutory penalty, including that of censure, is imposed he is to be given a notional promotion from the date he would have been promoted as determined by the Departmental Promotion Committee. This direction in the Memorandum has also to be read along with the other direction which follows in the next sub-paragraph and which states that if it is found as a result of the proceedings that some blame attaches to the officer then the penalty of censure at least should be imposed. This direction is in supersession of the earlier instructions which provided that in a case there departmental disciplinary proceedings have been held, "warning" should not be issued as a result of such proceedings.

There is no doubt that when an employee is completely exonerated and is not visited the penalty even of censure indicating thereby that he was not blameworthy in the least, he should not be deprived of any benefits including the salary of the promotional post. It was urged on behalf of the appellant-authorities in all these cases that a person is not entitled to the salary of the post unless he assumes charge of the same. They relied on F. R. 17(1) of the Fundamental Rules and Supplementary Rules which read as follows:

"F.R. 17 (1). Subjects to any exceptions specifically made in these rules and to the provision of sub-rule (2), an officer shall begin to draw the pay and allowances attached to his tenure of a post with effect from the date when he assumes the duties of that post, and shall cease to draw them as soon as he ceases to discharge those duties:

Provided that an officer who is absent from duty without any authority shall not be entitled to any pay and allowances during the period of such absence."

It was further contended on their behalf that the normal rule is "no work no pay". Hence a person cannot be allowed to draw the benefits of a post the duties of which he has not discharged. To allow him to do so is against the elementary rule that a person is to be paid only for the work he has done and not for the work he has not done. As against this, it was pointed out on behalf of the concerned employees, that on many occasions even frivolous proceedings are instituted at the instance of interested persons, sometimes with a specific object of denying the promotion due, and the employee concerned is made to suffer both mental agony and privatations which are multiplied when he is also placed under suspension. When, therefore, at the end of such sufferings, he comes out with a clean bill, he has to be restored to all the benefits from which he was kept away unjustly.

We are not much impressed by the contentions advanced on behalf of the authorities. The normal rule of "no work no pay" is not applicable to cases such as the present one where the employee although he is willing to work is kept away from work by the authorities for no fault of his. This is not a case where the employee remains away from work for his own reasons, although the work is offered to him. It is for this reason that F.R. 17(1) will also be inapplicable to such cases.

We are, therefore, broadly in agreement with the finding of the Tribunal that when an employee is completely exonerated meaning thereby that he is not found blameworthy in the least and is not visited with the penalty even of censure, he has to be given the benefit of the salary of the higher post along with the other benefits from the date on which he would have normally been promoted but for the disciplinary/ criminal proceedings. However, there may be cases where the proceedings, whether disciplinary or criminal, are, for example, delayed at the instance of the employee or the clearance in the disciplinary proceedings or acquittal in the criminal proceedings is with benefit of doubt or on account of non-availability of evidence due to the acts attributable to the employee etc. In such circumstances, the concerned authorities must be vested with the power to decide whether the employee at all deserves any salary for the intervening period and if he does the extent to which he deserves it. Life being complex, it is not possible to anticipate and enumerate exhaustively all the circumstances under which such consideration may become necessary. To ignore, however, such circumstances when they exist and lay down an inflexible rule that in every case when an employee is exonerated from disciplinary/ criminal proceedings he should be entitled to all salary for the intervening period is to undermine discipline in the, administration and jeopardise public interests. We are, therefore, unable to agree with the Tribunal that to deny the salary to an employee would in all circumstances be illegal. While, therefore, we do not approve of the said last sentence in the first sub-paragraph after clause (iii) of paragraph 3 of the said Memorandum, viz., "but no arrears of pay shall be payable to him for the period of notional promotion preceding the date of actual promotion", we direct that in place of the said sentence the following sentence be read in the Memorandum:

"However, whether the officer concerned will be entitled to any arrears of pay for the period of notional promotion preceding the date of actual promotion, and if so to what extent will be decided by the concerned authority by taking into consideration all the facts and circumstances of the disciplinary proceeding/criminal prosecution. Where the authority denies arrears of salary or part of it, it will record its reasons for doing so."

To this extent we set aside the conclusion of the Tribunal on the said point.

8. The Tribunal has also struck down the following portion in the second sub-paragraph after clause (iii) of paragraph 3 which reads as follows: "If any penalty is imposed on the officer as a result of the disciplinary proceedings or if he is found guilty in the court proceedings against him, the findings in the sealed cover/covers shall not be acted upon" and has directed that if the proceedings result in a penalty, the person concerned should be considered for promotion in a Review DPC as on the original date in the light of the results of the sealed cover as also the imposition of penalty, and his claim for promotion cannot be deferred for the subsequent DPCs as provided in the instructions. It may be pointed out that the said subparagraph directs that "the officer's case for promotion may be considered in the usual manner by the next DPC which meets in the normal course after the conclusion of the disciplinary/court proceedings". The Tribunal has given the direction in question on the ground that such deferment of the claim for promotion to the subsequent DPCs amounts to a double penalty. According to the Tribunal, "it not only violates Articles 14 and 16 of the Constitution compared with other employees who are not at the verge of promotion when the disciplinary proceedings are initiated against them but also offends the rule against double jeopardy contained in Article 20(2) of the Constitution". The Tribunal has, therefore, held that when an employee is visited with a penalty as a result of the disciplinary proceedings there should be a Review DPC as on the date when the sealed cover procedure was followed and the review DPC should consider the findings in the sealed cover as also the penalty imposed. It is not clear to us as to why the Tribunal wants the review DPC to consider the penalty imposed while considering the findings in the sealed cover if, according to the Tribunal, not giving effect to the findings in the sealed cover when a penalty is imposed amounts to double jeopardy. However, as we read the findings of the Tribunal, it appears that the Tribunal in no case wants the promotion of the officer to be deferred once the officer is visited with a penalty in the disciplinary proceedings and the Tribunal desires that the officer should be given promotion as per the findings in the sealed cover.

According to us, the Tribunal has erred in holding that when an officer is found guilty in the discharge of his duties, an imposition of penalty is all that is necessary to improve his conduct and to enforce discipline and ensure purity in the administration. In the first instance, the penalty short of dismissal will vary from reduction in rank to censure. We are sure that the Tribunal has not intended that the promotion should be given to the officer from the original date even when the penalty imparted is of reduction in rank. On principle, for the same reasons, the officer cannot be rewarded by promotion as a matter of course even if the penalty is other than that of the reduction in rank. An employee has no right to promotion. He has only a right to be considered for promotion. The promotion to a post and more so, to a selection post, depends upon several circumstances. To qualify for promotion, the least that is expected of an employee is to have an unblemished record. That is the minimum expected to ensure a clean and efficient administration and to protect the public interests. An employee found guilty of a misconduct cannot be placed on par with the other employees and his case has to be treated differently. There is, therefore, no discrimination when in the matter of promotion, he is treated differently. The least that is expected of any administration is that it does not reward an employee with promotion retrospectively from a date when for his conduct before that date he is penalised in praesenti. When an employee is held guilty and penalised and is, therefore, not promoted at least till the date on which he is penalised, he cannot be said to have been subjected to a further penalty on that account. A denial of promotion in such circumstances is not a penalty but a necessary consequence of his conduct In fact, while considering an employee for promotion his whole record has to be taken into consideration and if a promotion committee takes the penalties imposed upon the employee into. consideration and denies him the promotion, such denial is not illegal and unjustified. If, further, the promoting authority can take into consideration the penalty or penalties awarded to an employee in the past while considering his promotion and deny him promotion on that ground, it will be irrational to hold that it cannot take the penalty into consideration when it is imposed at a later date because of the pendency of the proceedings, although it is for conduct prior to the date the authority considers the promotion. For these reasons, we are of the view that the Tribunal is not right in striking down the said portion of the second sub-paragraph after clause (iii) of "paragraph 3 of the said Memorandum. We, therefore, set aside the said findings of the Tribunal.

In the circumstances, the conclusions arrived at by the Full Bench of the Tribunal stand modified as above. It is needless to add that the modifications which we have made above will equally apply to the Memorandum of January 12, 1988."

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¼d½ iw.kZr% funksZ"k ik;s tkus dh n'kk esa& vkjksfir dkfeZd] ftlds fo"k; esa p;u lfefr dh laLrqfr eqgjcUn fyQkQs esa j[kh x;h gS] dks ;fn iw.kZ :i ls nks"keqDr ik;k tkrk gS rks fu;qfDr izkf/kdkjh ¼;k ;FkkfLFkfr p;u djkus okys foHkkx ds lfpo ;k izeq[k lfpo ftudh vfHkj{kk esa p;u djkus okys foHkkx ds lfpo ;k izeq[k lfpo ftudh vfHkj{kk esa p;u lfefr dk dk;Zo`Rr j[kk tkrk gS½ }kjk fyQkQs dks [kksyk tk;sxk vkSj rnksijkUr blesa j[kh laLrqfr ds vuqlkj mls izksUufr gsrq laLrqr fd;k x;k gks rks mls lanfHkZr p;u ds vk/kkj ij izksUur fd;s x;s mlds dfu"B dh izksUufr d frfFk ls uks'kuy izksUur ekuk tk;sxk vkSj rn~uqlkj vkns'k fuxZr fd;s tk;sasA

¼[k½ ;fn U;k;ky; }kjk vfHk;kstuk ds ekeys esa fdlh vkjksfr dkfed dks xq.kkoxq.k ds vk/kkj ij nks"keqDr fd;k x;k gks vkSj l{ke izkf/kdkjh }kjk ml fu.kZ; ds fo:) u rks vihy dh tkrh gS vkSj u foHkkxh; dk;Zokgh izLrkfor gS rks mij mi[k.M ¼d½ ds vuqlkj mlh izdkj dk;Zokgh dh tk;sxh tks U;k;ky; }kjk xq.kkoxq.k ds vk/kkj ij nks"k eqDr djkj fn;s tkus dh n'kk esa dh tkrh A

¼x½ va'kr% ;k iw.kZr% nks"kh ik;s tkus dh n'kk esa& ;fn vkjksfir dkfeZd ds fo:) ekeyksa dh lekfIr ij ;g ik;k tkrk gS fd mlds fo:) yxk;s x;s vkjksi vkaf'kd ;k iw.kZ:i ls fl) gq;s gS rks mlh Lrj dh p;u lfefr dh cSBd vkgwr dh tk;sxh ftl Lrj dks p;u lfefr }kjk lanHkZxr p;u lEiUu fd;k x;k FkkA ;g p;u lfefr mlds fo:) pg jgs ekeyska esa izkIr vfUre ifj.kkeksa lfgr leLr vfHkys[kksa ds izdk'k esa eqgjcUn fyQkQs esa j[kh laLrqfr i iqufoZpkj djsxhA ;fn fdlh dkfeZd ds lEcUU/k esa ,d ls vf/kd fyQkQs miyc/k gksa rks miyC/k lfefr }kjk iqufozpkj fd;k tk;sxk tc rd fd ;FkkfLFkfr mls p;u lfefr }kjk fdlh p;u ds lanHkZ esa izksUufr ds fy;s laLeqr u fd;k tk;s vFkok leLr miyC/k fyQkQs [kksy dj mu ij iqufoZpkj u dj fy;k tk;sA ;fn iqufoZpkj ds ifj.kkeLo:i mls fdlh iwoZ p;u ds lanHkZ esa izskUufr ds fy, laLrqr fd;k tkrk gS rks mls ml p;u ds vk/kkj ij mlds dfu"zB dh izksUufr dh frfFk ls izksUur le>kk tk;sxk ftl frfFk dh p;u lfefr dh laLrqfr i iqufoZpkjksijkUr mldh izksUufr dk fu.kZ; fy;k x;k gS o bl fo"k; ea Li"V vkns'k tkjh fd;s tk;saxsA

¼8½ uks'kuy izksUufr ds ekeyksa esa osru dk fu/kkZj.k& ;fn fdlh dkfeZd dh mijksDrkuqlkj fopkjksijkUr uks'kuy izksUufr nh tkrh gS rks mldk osru foRrh; fu;e laxzg [k.M &2] Hkkx 2&4 ds ewy fu;e&27 ds vUrxZr foRr foHkkx dh lgefr ls mlh Lrj ij fu/kkZfjr fd;k tk;sxk tks mls lEcfU/kr p;u lfefr dh laLrqfr ds vk/kkj ij le; ls vFkkZr~ vklUu dfu"B ds izksUufr gksus dh frfFk ls izksUur gksus ij feyrkA

¼9½ uks'kuy izksUufr o okLrfod izksUufr dh frfFk;ksa ds e/; dh vof/k ds fy;s] mDr uks'kuy izksUufr ds ifj.kkeLo:i vuqeU; ,fj;j dk Hkqxrku fd;s tkus ;k u fd;s tkus rFkkmDr Hkqxrku dh lhek fu/kkZfjr djus ds lECU/k esa fu;qfDr izkf/kdjh }kjk vius foosd ls lHkh rF;ksa ,oa ifjfLFkfr;ksa ij leqfpr :i ls fopkj djd fu.kZ; fy;k tk;;sxkA ftu ekeyksa esa osru ds ,sls ,fj;j ds lEiw.kZ vFkok mlds fdlh Hkkx dk Hkqxrku u fd;s tkus dk fu.kZ; gks rks ,slk fu.kZ; fy;s tkus ds dkj.ksa dks bl fo"k; esa ikfjr vks'kksa esa fyfic) fd;k tk;sxkA

fVII.kh%& mu n'kkvksa dk iwoZ vuqeku yxk;k tkuk rFkk mUgsa foLr`r :i ls fu:fir djuk lEHko uga gS] ftuds vUrxZr osru vFkok mlds fdlh va'k ds ,fj;j ds Hkqxrku ls bUdkj fd;k tkuk vko';d gksA ,sls Hkh ekeys gks ldrs gSa tgkWa dk;Zokgh esa pkg og dk;Zokgh vuq'kklfud vFkok vkijkf/kd Lo:i dh gh gks] lEcfU/kr dkfeZd ds dkj.k nsjh gqbZ gks vFkok vuq'kklfud dk;Zokgh ds fuLrkj.k esa ;k vkijkf/kd dk;Zokgh esa nks"keqfDRk lansg ds ykHk ds dkj.k gks ;k lk{; miyC/k u gksus ds dkj.k gks] ftUgsa deZpkjh ds d`R; ekuk x;k gks A ;s dqN ,slh ifjfLFkfr;ka gSa ftuds dkj.k ,slh vLohd`fr dks U;k;ksfpr Bgjk;k tk ldrk gSA

¼10½ yEcs le; rd pyus okyh tkapksa ds ekeys esa rnFkZ izksUufr dh izfdz;k%& p;u lfefr }kjk izFke ckj vkjksfir dkfeZd dh izksUufr ij fopkj djus ,oa eqgjcUn fyQkQs dh izfdz;k viuk;s tkus ds ckn ,d o"kZ dh vof/k chr tkus ij Hkh ¼bl vof/k esa ,slh vof/k vkxf.kr ugha dh tk;sxh ftlesa vipkjh dkfeZd }kjk vlg;ksx ds dkj.k tkap izfdz;k esa foyEc gqvk½ ;fn vkjksfir dkfeZd ds fo"k; esa iz'kklukf/kdj.k dh tkap @ foHkkxh; dk;Zokgh @ vfHk;kstu dk vfUre ifj.kke izkIr u gqvk gks] rks ,sls dkfeZdksa ds fo"k; esa] tks fuyfEcr ugha gS] p;u lfefr }kjk fuEufyf[kr izfrcU/kksa ds lkFk rnFkZ vk/kkj ij izksUUfr ds lECU/k esa fopkj fd;k tk;sxk%&

¼d½ vkjksfir dkfeZd ds fo:) yxk;s x;s vkjksi D;k brus xEHkhj gSa fd muds vk/kkj ij mls Hkfo"; esa Hkh izksUufr ls oafpr j[kk tkuk mi;qDr @ tufgr esa gksxk]

¼[k½ D;k iz'kklukf/kdj.k dh tkap @ foHkkxh; dk;Zokgh vfHk;kstu ds vfUre ifj.kke izkIr gksus esa dkQh le; yxsxk]

¼x½ iz'kklukf/kdj.k dh tkap @ foHkkxh; dk;Zokgh vfHk;kstu esa gks jgs foyEc ds fy;s izR;{k ;k ijks{k :i ls vkjksfir dkfeZd rks snks"kh ugha gS]

¼?k½ vkjksfir dkfeZd dks rnFkZ izksUufr fn;s tkus ij og vius in dk nq:i;ksx vFkok tkap dks dqizHkkfor rks ugha djsxk]

¼M-½ ;fn l{ke izkf/kdkjh mijksDr [k.M ¼d½] ¼[k½] ¼x½] ¼?k½ ds vk/kkj ij fopkjksijkUr vkjksfir dkfeZdks dks rnFkZ vk/kkj ij izksUur djuk mi;qDr le>rs gSa rks ml n'kk esa foHkkxh; p;u lfefr ds lkeus ekeys dks j[kk tk;sxk rks vkjksfir dkfeZd ds lEi.kZ vfHkys[kksa ds vk/kkj ij mlds dk;Z dk eqy;kadu djsxh rFkk rnFkZ :i ls izksUufr nsus vFkok u nsus ds fo"k; esa viuh laLrqfr nsxhA

¼p½ ;fn tkap iz'kklukf/kdj.k vkfn fdlh vU; ,tsUlh }kjk djkbZ tk jgh gks rks ml n'kk es ml ,tsUlh dk ike'kZ Hkh bl fcUnq ¼rnFkZ vk/kkj ij izksUufr nsus½ ij izkIr fd;k tk;sxkA

¼N½ mi;qZDr izfdz;k ds mijkUr vkjksfir dkfeZd dks rnFkZ :i ls izksUufr fd;s tkus ds vkns'kksa esa ;g Li"V fd;k tk;sxk fd izksUufr vfxze vkns'kksa rd ds fy;s dh tkrh gS vkSj 'kklu dks mDr rnFkZ izksUufr dks dHkh Hkh lekIr dj nsus dk vf/kdkj gS rFkk rn~uqlkj ,sls dkfeZd dks ml in ij izR;kofrZr fd;k tk ldrk gS ftl in ls mls izksUUr fd;k x;k FkkA

¼t½ rnFkZ vk/kkj ij izksUur vkjksfir dkfeZd ds fo:) py jgh iz'kklukf/kdj.k dh tkap@ foHkkxh; dk;Zokgh@ vfHk;kstu vkfn ds vfUre ifj.kke izkIr gks tkus ij mlds fo"k; esa mlh izdkj vfxze dk;Zokgh dh tk;sxh] tSlh dh tkrh gS ;fn mls rnFkZ izksUufr u nh x;h gksrhA

¼>½ ;fn U;k;ky; }kjk fdlh rnFkZ :i ls izksUur dkfeZd dks rduhdh vk/kkj ij ¼xq.koxq.k ds vk/kkj ij ugha½ nks"keqDr fd;k tkrk gS vkSj U;k;ky; ds fukZ; ds fo:) vihy ;k mlh vkjksi ds fy;s foHkkxh; dk;Zokgh dk izLrko gS rks ml n'kk esa l{ke izkf/kdkjh bl fcUnq ij fopkj djsaxs fd vkjksfir dkfeZd dks rnFkZ izksUufr ij cuk;s j[kk  tk; vFkok ughaA

¼11½ p;u ds fnukad ds i'pkr~ ijUrq izksUufr ds vkns'kksa ds fdz;kUo;u ds iwoZ izkjEHk dk;Zokfg;ksa ds vk/kkj ij izksUufr jksdk tkuk& ;fn fdlh dkfeZd dh izksUufr ds fy, p;u lfefr }kjk laLrqfr dh tk pqdh gks] ijUrq izksUufr ds vkns'kksa ds fdz;k Uo;u ds iwoZ [k.M ¼2½ esa mfYyf[kr dksbZ ,slh ckr lkeus vk tk;s] tks ;fn p;u ds le; p;u lfefr ds le{k gksrh rks p;u lfefr dh laLrqfr dks eqgjcUn fyQkQs esa j[kk tkuk vko';d gksxk] lEcfU/kr dkfeZd dks izksUur ugha fd;k tk;sxk vkSj ,slh dk;Zokgh ds vfUre ifj.kke izkIr gksus ij mlds lEcU/k esa p;u lfefr dh laLrqfr dks bl dk;kZy;&Kki esa fn;s x;s micU/kks ds v/khu mlh izdkj ls fdz;kfUor fd;k tk;sxk] ekuksa mlds fo"k; esa p;u lfefr dh laLrqfr dks eqgjcUn fyQkQs esa j[kk x;k gksA

¼12½ LFkk;hdj.k ds ekeyksa esa uhfr& ;fn izksUufr ds ctk; Lfkk;hdj.k dk ekeyk fopkjk/khu gks rks [k.M ¼2½ esa mfYyf[kr n'kkvksa esa] ftuesa p;u lfefr dh lqLrqfr;ksa dks eqgjcUn fyQkQs esa j[kk tkrk gsk] LFkk;hdj.k dh dk;Zokgh dks Lfkfxr j[kk tk;sxk rFkk dk;Zokgh ds vfUre ifj.kke izkIr gksus ij LFkk;hdj.k ds fo"k; esa leqfpr fu.kZ; fy;k tk;sxkA

2- v/kksgLrk{kjh dks ;g dgus dk funsZ'k gqvk gS fd Hkfo"; esa iz'uxr izlax es mijksDR dk;Zokgh ds vuqlkj gh dk;Zokgh lqfuf'pr dh tk;A

                                              txthr flag]

                                                 lfpoA**

A bare perusal of the dictum of the Hon'ble Apex Court and the  Government Order referred to above issued on the same line, clearly shows that promotion cannot be permitted to be withheld in mechanical manner. There are certain pre-requisite terms and conditions which are to be there in the event of decision  being taken to withhold the promotion, they are :  (i) when petitioner was placed under suspension; (ii) in case any disciplinary proceeding or administrative action was pending against petitioner,for which charge sheet has been issued; and (iii) in case on the basis of criminal charge any criminal prosecution is pending in criminal court by way of charge sheet.

Now the facts of the present case are being adverted to. Here, in the present case undisputed factual position is that Departmental Promotion Committee had considered the claim of petitioner for promotion to the post of Consolidator and petitioner was found entitled to be promoted. Sealed cover procedure, as none of the pre-requisite conditions qua the same was fulfilled, was not adhered to, and result of promotion was declared,  however, a rider was attached that the said promotion would not be implemented in case any enquiry was going on. The fact of the matter remains that in departmental proceeding petitioner has been exonerated of all the charges, in criminal case final report has been submitted, however, it is equally true that the said final report till date has not been accepted by the competent criminal court. Requirement is that charge sheet should have been filed and the case should remain pending. Here, in the present case till date neither charge sheet has been filed in the court concerned nor the court has taken cognizance of the same by rejecting the final report. Merely because open enquiry has been ordered and the matter has been transferred to Allahabad, the same cannot be made foundation and basis to withhold the order of promotion and in all eventuality said promotion is to be implemented and given effect to. Consideration of candidature for promotion, has been held to be fundamental right and once after said consideration, which is based on  seniority subject to rejection of unfit, claim of petitioner has been accepted, then it would be unfair and arbitrary to withhold promotion, specially when even sealed cover procedure was not adopted, which empowers the authority to withhold promotion, in certain contingencies.

Consequently, as none of the pre-requisite terms and conditions exist   for withholding the promotion of petitioner to the post of  Consolidator, Director, Consolidation, U.P. Lucknow is directed to ensure promotion of petitioner to the post of Consolidator and also ensure his joining at any place in the State of U.P.  Promotion order would be issued to the petitioner from Banda, and thereafter his placement may be assigned.

In terms of the observations and directions as made above, writ petition No.61359 of 2006 stands allowed and writ petition No.63417 of 2006 stands disposed of.

04.12.2006

SRY


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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