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Prem Chandra Verma v. State Of U.P.And Others - WRIT - A No. 50358 of 2004  RD-AH 17231 (5 October 2006)
Civil Misc. Writ Petition No.50358 of 2004
Prem Chandra Verma ....Petitioner
State of U.P & others ...Respondents
Hon'ble Ashok Bhushan,J
Heard counsel for the petitioner and the learned standing counsel. Counter and rejoinder affidavits have been exchanged and with the consent of the parties, the writ petition is being finally decided.
By this writ petition, the petitioner has prayed for quashing the order dated 18.5.2000 to the extent of respondents No. 5, 6 & 7 and the order dated 17.12.2000 to the extent of respondents no.5, 13.10.2003 and order 21/22.6.2004 and order dated 27.2.2002. A mandamus has also been sought directing the respondent to treat the promotion of the petitioner since 18.5.2000 for the post of Platoon Commander with seniority and arrears of salary.
Brief facts of the case necessary for deciding the writ petition are; the petitioner was initially appointed on the post of Hawaldar, Home Guard on 16.8.1984. petitioner was promoted for the post of Block Organiser by order dated 17.12.1992. On 1.3.2000 petitioner was implicated in a criminal case under section 354 I.P.C being Case Crime No. 33 of 2000. Petitioner was also placed under suspension on 13.4.2000. On 18.5.2000 a promotion order was issued promoting several persons on the post of Platoon Commander in which respondents No. 5, 6 & 7 who were junior to the petitioner were also promoted. The petitioner was subsequently reinstated on 16.1.2001. The petitioner made an application for promotion with effect from 18.5.2000. The petitioner's promotion was not considered, he filed writ petition No. 3120 of 2002 which was finally disposed of on 22.1.2002 with the direction to decide the representation of the petitioner. The representation of the petitioner was rejected on 27.2.002. A communication was also sent on 14.3.2002. The petitioner was ultimately acquitted from the Criminal Charge vide judgement dated 29.8.2002. After acquittal petitioner was promoted on 9.9.2002. Petitioner joined on promoted post on 10.9.2002 on the post of Platoon Commander. Subsequently a seniority list was published. The petitioner thereafter made representation on 22/29/8/2003 to claim his promotion with effect from 18.5.2000 with all benefits. The representation of the petitioner was rejected on 13.10.2003. Representation was also forwarded to respondent No. 3 which was rejected on 21/22/6/2004. The petitioner thereafter has come up in this writ petition.
The learned counsel for the petitioner challenging the action of the respondent in not promoting the petitioner from 18.5.2000 has contended that petitioner having been acquitted in the criminal case was fully entitled for promotion from the dates his juniors were promoted. He has placed reliance on two judgement of the Apex Court 1990(Supp) Supreme Court Cases 4 U.P State Electricity Board and another versus Kharak Singh and another and 1993 Supreme Court Cases (L&S) 387 Union of India and others versus K.V.Jankiraman and others.
The learned counsel for the petitioner also submitted that petitioner being under suspension on 18.5.2000the respondent ought to have kept his promotion in sealed cover which procedure was not followed. The learned standing counsel justifying the action of the respondent contended that at the relevant time petitioner was facing a criminal charge, hence he was not rightly promoted. The learned standing counsel submits that after acquittal petitioner has been promoted and is working on the promoted post.
I have heard the counsel for the parties and considered the submissions. The only issue which has arisen in the writ petition is as to whether petitioner is entitled to receive the benefit of promotion and seniority with effect from 18.5.2000 when his juniors were promoted or he is entitled for his promotion only from 9.9.2002 when actually he was promoted after acquittal. There is no dispute that on 18.5.2000 petitioner was not promoted
on account of he being under suspension on the basis of criminal case under section 354 I.P.C. It is further not denied that on 18.5.2000 three juniors to the petitioner were promoted whose name is in the promotion list on 18.5.2000. In the counter affidavit filed by the State in Paragraph-12 it has been specifically stated that petitioner being under suspension and a criminal case being case crime No.33 of 2000 under section 254 I.P.C being registered against the petitioner, he was not found fit for promotion. The non promotion of the petitioner was thus only on account of the criminal case and consequential suspension. Suspension of the petitioner was ordered on the basis of registration of criminal case. The petitioner has been subsequently granted a clear acquittal by judgment of Judicial Magistrate, Garautha, District Jhansi dated 29.8.2002, copy of which has been filed as annexure-15 to the writ petition. After acquittal the petitioner indeed has been promoted on 9.9.2002. The petitioner being under suspension, the respondents ought to have considered the petitioner for promotion and kept in the sealed cover which procedure was not followed. Petitioner has also been promoted on 9.9.2002 which clearly proves that there was nothing against the petitioner except the above criminal case under 354 IPC. The petitioner having received clear acquittal was entitled to be considered for promotion with effect from the date when his juniors were promoted. The preposition as laid down by the Apex Court in U.P State Electricity Board and another and Union of India and others (supra) fully supports the petitioner's case.
In view of the foregoing discussion, petitioner is clearly entitled for getting the benefit of his promotion from 18.5.2000 i.e from the date when his juniors were promoted. Consequentially the writ petition is allowed. A direction is issued to the respondent to extend the benefits of notional promotion and seniority to the petitioner with effect from 18.5.2000, meaning thereby that petitioner's salary be fixed notionally with effect from 18.5.2000. However, petitioner having not discharged the duties on promoted post and in facts and circumstances of the present case, petitioner is not entitled for arrears of salary of the promoted post from 18.5.2000; but except the arrears of salary he is entitled for all other benefits including seniority. Orders accordingly.
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