Punjab-Haryana High Court
O.P.Juneja vs State Of Hy.Etc on 17 September, 2024
Neutral Citation No:=2024:PHHC:122812
-1-
CWP-15283
15283 of 1999 (O&M)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CWP-15283
15283 of 1999 (O&M)
Reserved on
on: 30.08.2024
Pronounced on: 17.09.2024
O.P. Juneja
......Petitioner
Versus
State of Haryana
......Respondent
CORAM: HON'BLE MR. JUSTICE NAMIT KUMAR Argued by: - Mr. O.P. Juneja, petitioner-in--person, through V.C. Mr. Saurabh Mohunta, DAG, Haryana.
NAMIT KUMAR, J
1. Petitioner has filed the instant writ petition under Article 226 of the Constitution of India, claiming the following reliefs: -
(i) for setting aside the order dated 07.03.1999 (Annexure P-4)
4) passed by the Financial Commissioner to the Government of Haryana, PWD, Public Health Department, vide which the petitioner was issued warning and a copy of the said order was ordered to be pl placed on his ACR file; and
(ii) for grant of ante-dated dated promotion to the post of Chief Engineer w.e.f. 16.10.1998.
2. During the pendency of present writ petition, respondent respondent-
State of Haryana had issued order dated 14.02.2000 (Annexure P P-7/A), whereby he was promoted as Chief Engineer in the scale of Rs.18400 Rs.18400- 22400 w.e.f. 17.10.1998 to 12.05.1999, the period during which the juniors of the petitioner, namely, Sh. A.S. Ahlawat and Sh. R.S. Sharma were promoted as Chief Engineers Engineers; Sh. A.S. Ahlawat retired ass such from service on 28.02.1999 and Sh. R.S. Sharma was reverted as Superintending Engineer on 13.05.1999. P Petitioner sought 1 of 12 ::: Downloaded on - 21-09-2024 06:50:27 ::: Neutral Citation No:=2024:PHHC:122812 -2- CWP-15283 15283 of 1999 (O&M) amendment of the instant writ petition, which was allowed vide order dated 09.03.2000 and amended writ petition was taken on rec record. In the amended writ petition, petitioner by way of impugning the orders dated 07.03.1999 7.03.1999 and 14.02.2000 has sought the following reliefs: -
"(i) To set aside the order of warning given to him; and
(ii) To grant him ante-dated dated promotion as Chief Engineer from 17.10.1998 till his superannuation on 31.03.2000."
3. Facts, as necessitated, for the disposal of the present petition are that petitioner was working as Superintending Engineer in Haryana PWD, Public Health Branch, Branch, since the year 1990. His seniority number was at serial no. 39 and was junior to Shri C.P. Taneja, who was at serial no. 38. Both were eligible for promotion to the next higher post of Chief Engineer in October, 1998 but they were ignored and their two juniors, namely, S/Sh. A. S. Ahlawat and R. S. Sharma, Superintending Engineers were promoted because of the pending charge sheets against them. Aggrieved by, the petitioner along with Sh. C.P. Taneja, approached this Court by filing CWP Nos. 17403-1998 998 and 17404-1998 17404 1998 for redressal of their grievance grievance, respectively. Meanwhile, i.e. during the pendency of writ petition respectively. petition(s), as mentioned above, the respondent took a decision to withdraw the charge sheet, by awarding the lowest penalty of recorded warning to thee petitioner, vide order dated 07.03.1999, 07.03.1999, which is impugned herein. Neither any enquiry as contemplated under rule rule-7 of the Haryana Civil Services(Punishment and Appeal) Rules, 1987 was conducted nor any show cause notice was issued to him. It has further been averred that 2 of 12 ::: Downloaded on - 21-09-2024 06:50:28 ::: Neutral Citation No:=2024:PHHC:122812 -3- CWP-15283 15283 of 1999 (O&M) warning imposed upon the petitioner comes at the lowest level of the minor penalities and, therefore, was not an impediment to the promotion of the concerned employee at the relevant point of time time.
4. It has further been averredd that in the absence of any statutory rule on the subject of promotion, the State Government has taken a policy decision vide circular dated 18.11.1971 (Annexure P P-3) with regard to the procedure to be followed in cases where the turn of an official whose conduct is the subject matter of an enquiry comes for promotion to higher post and the relevant paras thereof are reproduced as under :-
"XX XX XX XX
xxxxx
xxxx If he is ultimately exonerated of all the charges without the imposition of any penalty or is only administered a warning (whether with a copy on the personal file or not) then he should, if otherwise fit for promotion in every respect, be promoted wi with retrospective effect i.e. from the date on which he was due for promotion and an official junior to him was promoted. In case no vacancy was available for the period in question a temporary post should be created in consultation with the Finance Depart Department and the junior most promoted official should be reverted, if necessary.
In the case of a government employee against whom action is proposed to be taken under Rule Rule-8 of the Punjab Civil Services (Punishment and Appeal) Rules, 1952 or any rule comparable parable thereto, the matter should be considered in the light of nature of allegation and the quantum of penalty that is proposed to be awarded. The criterion should be whether or not if the allegations were to be proved and the proposed penalty were to bbe imposed, 3 of 12 ::: Downloaded on - 21-09-2024 06:50:28 ::: Neutral Citation No:=2024:PHHC:122812 -4- CWP-15283 15283 of 1999 (O&M) then the promotion of the employee would still be justified on the basis of his entire record. In other words, promotion should not be with held only because disciplinary action under Rule Rule-8 of the Punjab Civil Services (Punishment and Appeal) Rules, 1952 or any comparable Rule is contemplated or is pending against a Government employees and instead in such cases, the decision should be taken keeping in view the nature of allegation the quantum of the penalty proposed and the overall record. Furthermore, urthermore, if promotion is withheld on that basis, but subsequently on the completion of the departmental proceedings the Government employee is exonerated without the imposition of a penalty or is only administered a warning (whether with a copy on the personal ersonal file or not) then he should if he is otherwise fit for promotion in every respect be promoted with retrospective effect that is from the date on which he was due for promotion and an official junior to him was promoted. Where no vacancy is availab available, a temporary post may be created for that purpose, in consultation with the Finance Department and the junior most promoted official should be reverted, if necessary.
XX XX XX XX"
5. Since respondent had issued recorded warning only in terms of impugned order 07.03.1999 0 3.1999 (Annexure P P-4), the petitioner sought leave of this Court to withdraw the writ petition no. 17403 17403- 1999 and the same was granted vide order dated 19.03.1999. However, the writ petition filed by C.P. Taneja, was allowed by this Co Court on 30.03.1999 and the charge sheet served on him as well as promotion order (Annexure P-2) P to the petition were set aside and the Government was directed to consider him for promotion to the post of Chief 4 of 12 ::: Downloaded on - 21-09-2024 06:50:28 ::: Neutral Citation No:=2024:PHHC:122812 -5- CWP-15283 15283 of 1999 (O&M) Engineer from the same date. Even SLP No. 9380 9380-99 filed against the said order was dismissed on 6.8.1999. The petitioner sent numerous representations for redressal of his grievance but to no avail. Hence, this petition.
6. Pursuant to notice of motion, the State of Haryana filed written statement statement dated 24.03.2000 and contest contested the petition on merits. It has been stated that the promotion to the post of Chief Engineer is a selection post and the promotion to the post shall be made by selection on the basis of merit and suitability and the membe member of service shall not have any claim to such promotion as a matter of right or mere seniority. It has been further stated that after issuance of charge-sheet sheet to the petitioner, his case was considered and although he was found to be negligent in the performance performance of official duties and supervisory responsibilities yet after taking lenient view in the matter, the punishment of 'warning with a copy in his ACR file' was awarded. The seniority list of Superintending Engineers at the time of promotion has been shown as under :-
:
Sr. No. Name of Officer(s) Serial Number in the seniority list 1. C. P. Taneja 38 2. O. P. Juneja 39 3. R. S. Sharma 40 41 to 43 have already retired from service 4. A. S. Ahlawat 44
7. The case of the petitioner along with Sh. C. P. Taneja was considered at the time of promotion to the post of Chief Engineer, but 5 of 12 ::: Downloaded on - 21-09-2024 06:50:28 ::: Neutral Citation No:=2024:PHHC:122812 -6- CWP-15283 15283 of 1999 (O&M) due to pendency of charge-sheets against them, they were not promoted and their juniors Sh. A. S. Ahlawat and Sh. R. S. Sharma, were given promotion as Chief Engineer. Sh. A. S. Ahlawat, has already been retired from service on 28.2.1999 28.2.1999 whereas Sh. R. S. Sharma was also reverted everted vide orders dated 13.5.1999 and he has also retired from service on attaining the age of superannuation on 31.12.1999 as Superintending Engineer. In compliance with the directions given in CWP No. 17404-1998, 17404 1998, Sh. C.P. Taneja was promoted as Chie Chief Engineer vide orders dated 17.12.1999 with effect from 01.11.1999 as one post of Chief Engineer fell vacant due to retirement of Sh. B. R. Batra. No person junior to the petitioner has been promoted as Chief Engineer with effect from 13.05.1999.
8. Petitioner tioner filed replication to the written statement filed by the respondent and controverted the contents of the same. It has been stated that impugned order dated 14.02.2000 implies hhis deemed reversion to the post of Superintending Engineer with effect from 13.5.1999.
9. Thereafter State of Haryana filed additional reply dated 30.05.2000,, wherein it has been stated that no right of promotion exists to the petitioner without seniority and merit and no junior to him has been given promotion except Sh. R. S. Sharma during the period in which the petitioner was also duly promoted by creating a supernumerary/temporary post. The petitioner did not challenge the punishment of warning awarded to him. He was given promoti promotion to the post of Chief Engineer with effect from 17.10.1998 to 12.5.1999 i.e. 6 of 12 ::: Downloaded on - 21-09-2024 06:50:28 ::: Neutral Citation No:=2024:PHHC:122812 -7- CWP-15283 15283 of 1999 (O&M) during the period his junior remained promoted as Chief Engineer. No post of Chief Engineer was lying vacant in the department against which petitioner could be promoted as Chi Chief Engineer and further reiterated the contents of written statement. A status report dated 18.03.2019 has also been filed by the State of Haryana wherein the contentions raised in the written statement have been reiterated and prayed for dismissal of the t writ petition on merits.
10. Petitioner, in person, submitted that vide impugned order dated 14.02.2000, he has been given deemed promotion to the next higher post of Chief Engineer, albeit, for the period 17.10.1998 to 12.05.1999 instead of dated 31.03.2000 31.03.2000 i.e. the date of superannuation of the petitioner. He has further submitted that no disciplinary inquiry had been initiated against the petitioner after filing of reply to the charge sheet issued to him under Rule 7 of the Punishment and Appeal Rules, ules, 1952 and punishment of warning was awarded to him without adhering to the principles of natural justice. He has further submitted that vide impugned order dated 14.02.2000, the promotion of the petitioner has impliedly been terminated which is not on only without any justification rather the same is procedurally also untenable and the same is illegal and discriminatory qua his juniors in the matter of Pensionary benefits. Lastly, he has submitted that the promotion granted to him as Chief Engineer be ex extended till the date of his superannuation i.e. 31.03.2000, 31.03.2000 along with all consequential benefits accrued therefrom.
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11. Per contra,, Learned State Counsel fervently and vehemently opposed the prayer made in the petition and contested the same on merits. He has submitted that the date of superannuation of the petitioner was 31.03.2000 and till the date of his retirement, both the posts of Chief Engineers had been occupied by Sh. J. C. Yadav (Seniority No. 33) and Sh. C. P. Taneja (Seniority No. 38) and upto the date of superannuation of the petitioner, no post of Chief Engineer was vacant, no question of granting promotion to the petitioner as Chief Engineer till his superannuation arises.
12. I have heard learned counsel for the parties and given by thoughtful ghtful consideration to the matter in hand and perused the record.
13. The petition pertains to the year 1999 and is pending adjudication post admission on 06.12.2001.
14. In order to understand the he controversy in question, it would be appropriate to chalk out the service details of the petitioner along with concerned officials in a tabular form, as derived from the record, which is given as under :-
:
Seni Name S/Sh. Date of Date of promotion Date ate of Date of Date of Additional Date of ority promotion as as C.E. joining on repatriation promotion Charge Retirement No. S.E. Deputation in as EIC on the post Department 33 J.C. Yadav 31/07/1982 22/12/1997 24/09/1998 05/05/1999 03/10/2000 13/05/1999 30/11/2000 to as EIC 22/05/2000 34 B.R. Batra 05/11/1985 01/05/1998 - - - - 31/10/1999 as CE 38 C. P. Taneja 10/01/1990 01/11/1999 - - - - 30/04/2000 as CE 39 O. P. Juneja 10/01/1990 17/10/1998 to 08/12/1994 16/06/1997 - - 31/03/2000 12/05/1999 as SE 40 R. S. Sharma 10/01/1990 17/10/1998 to 16/06/1997 - - - 31/12/1999 12/05/1999 as SE Seniority Nos. 41 to 43 have already retired from Government Service 44 A. S. Ahlawat 10/01/1990 17/10/1998 - - - - 28/02/1999 as C.E.
15. It is not in dispute that at the relevant point of time in Public Health Engineering Department, there were two posts of Chief 8 of 12 ::: Downloaded on - 21-09-2024 06:50:28 ::: Neutral Citation No:=2024:PHHC:122812 -9- CWP-15283 15283 of 1999 (O&M) Engineer. The petitioner ner was placed at seniority no.39. Sh. J. C. Yadav and Sh. B. R. Batra were having the seniority position of 33 and
34. Shri J. C. Yadav(seniority No. 33) was promoted as Chief Engineer on 22.12.1997. His date of superannuation is 30.11.2000. Sh. B. R. Batra(seniority no. 34) was promoted as Chief Engineer on 01.05.1998 and his date of superannuation is 31.10.1999. The next person who was entitled for promotion as Chief Engineer was Sh. C. P. Taneja only after the superannuation of Sh. B. R. Batra on 31.10.1999. On 24.9.1998, 4.9.1998, Sh. J. C. Yadav, Chief Engineer was sent on deputation with Haryana State Pollution Control Board meaning thereby one post of Chief Engineer was vacant and accordingly entitling the next person, i.e. Sh. C.P. Taneja, to be considered for promoti promotion to the post of Chief Engineer who was placed at seniority sen no.38.
38. Since a charge -sheet was issued ssued against Sh. C.P. Taneja, he was not promoted as Chief Engineer. Thereafter, the name of the petitioner (seniority no. 39) was considered who had also facing facing disciplinary proceeding proceedings and had been served with charge sheet at the relevant point of time. In such circumstances, the State had considered the person next in line i.e. Sh. R. S. Sharma (seniority no. 40) to fill the post of Chief Engineer. He was on deputation in Environment Department on 16.6.1997 (as discernible from the tabular chart) and was working there, accordingly, the next person placed in the seniority list i.e. Sh. A. S. Ahlawat (seniority no. 44) was considered and promoted as Chief En Engineer as he was found eligible and suitable and fit to be promoted. Thereafter, he was promoted as Chief Engineer on 17.10.1998 by giving proforma 9 of 12 ::: Downloaded on - 21-09-2024 06:50:28 ::: Neutral Citation No:=2024:PHHC:122812 -10- CWP-15283 15283 of 1999 (O&M) promotion to Sh. R. S. Sharma as well who was serving in Environment Department on deputation. On 17.10.
17.10.1998, Two posts of Chief Engineer in the present department were occupied by Sh. B. R. Batra (seniority no. 34) and Sh. A. S. Ahlawat (seniority no. 44). Aggrieved by, both Sh. O. P. Juneja and Sh. C. P. Taneja had preferred C.W.P. No. 17403 of 1998 and C.W.P. No. 17404 of 1998 before this Court respectively thereby laying challenge to the initiation of the departmental inquiry against them and for granting them all service benefits including the consideration for promotion from the date Sh. R. S. Sharma and Sh. A. S. Ahlawat were so promoted. The departmental inquiry was finalized vide order dated 07.0 0 03.1999 wherein by taking a lenient view, a warning had been given to the petitioner with a copy on his ACR file(Annexure P-4).
P 4). Thereafter, the petitione petitioner had withdrawn C.W.P. No. 17403 of 1998 vide order dated 19.0 19.03.1999. Whereas writ petition filed by Sh. C. P. Taneja came to be allowed vide judgment and decree dated 30.03.1999 with the directions to the respondents to re-consider consider his case for promotion as Chief Engineer without taking into consideration the enquiry initiated against him. The State of Haryana assailed the said judgment and order by filing SLP SLP(C) No. 9780 of 1999 which was dismissed on 06.08.1999. The petitioner submitted a representation representation dated 30.08.1999 and requested for granting him the ante-dated ante dated promotion as Chief Engineer with effect from the date from which his juniors Sh. A. S. Ahlawat and Sh. R. S. Sharma had been promoted as Chief Engineer by specifically mentioning that the charge sheet served served upon him stood decided on 007.03.1990 by 10 of 12 ::: Downloaded on - 21-09-2024 06:50:28 ::: Neutral Citation No:=2024:PHHC:122812 -11- CWP-15283 15283 of 1999 (O&M) recording warning. On 05.05.1999, Sh. J. C. Yadav who was working on deputation in Haryana Pollution Control Board, Haryana, stood repatriated in his parent department and accordingly, Sh. R. S. Sharma(seniority no. 40) was reverted as Superintending Engineer on 12.05.1999.. On 12.5.1999, both the posts of Chief Engineer were occupied by Sh. J. C. Yadav and Sh. B. R. Batra. Sh. B. R. Batra was superannuated on 31/10/1999 and accordingly one post of Chief Engineer had fallen vacant and since Sh. C. P. Taneja (seniority no. 38) was available for being promoted after the decision rendered in the writ petition filed by him, he was promoted as Chief Engineer on 01.11.1999. On 01.11.1999, two posts of Chief Engineers had been occupied by Sh. J. C. Yadav (seniority no. 33) and Sh. C. P. Taneja (seniority no. 38). So far as the contention raised by the petitioner in respect of Sh. J. C. Yadav, who would not have legally held two posts, one in the parent department and another on deputation with Haryana State Pollution Control Board as Administrator, no pleading pleadings to this effect in the entire petition have been given by him and the same has been addressed in year 2019 after lapse of period of 20 years, merely by placing on record certain documents. Sh. C. P. Taneja and the petitioner were not given promotion from the date, their juniors Sh. R. S. Sharma and Sh. A. S. Ahlawat, were promoted, Sh. C. P. Taneja, filed COCP No. 1345 of 1999 and similarly the pe petitioner also filed representation(Annexure P-6) P 6) for same cause of action and accordingly the matter was considered by the State and both of them have been given the promotion as Chief Engineer from 17.10.1998 to 12.05.1999 11 of 12 ::: Downloaded on - 21-09-2024 06:50:28 ::: Neutral Citation No:=2024:PHHC:122812 -12- CWP-15283 15283 of 1999 (O&M) i.e. the period for which junior to both of them i.e. Sh. R. S. Sharma occupied the post of Chief Engineer. The date of superannuation of the petitioner is 31.03.2000 and till the date of his retirement, both the posts of Chief Engineers had been occupied by Sh. J. C. Yadav (seniority no. 33) and Sh. C. P. Taneja (seniority no. 38) who had retired from service on 30.11.2000 and 30.04.2000 respectively. As no post of Chief Engineer was vacant till the date of superannuation of the petitioner, therefore, promotion was not granted to the petitioner as Chief Engineer till his superannuation. Owing to the facts and circumstances of the case, the petitioner was granted promotion as Chief Engineer i.e. 17.10.1998 to 12.05.1999, therefore, the prayer made by the petitioner qua setting aside off punishment of warning has been rendered infructuous as the petitioner has already been granted promotion for the period, his juniors remained promoted as Chief Engineer.
16. For the foregoing discussions, the claim of the petitioner for extending his promotion as Chief Engineer from 12.05.1999 till the date of his superannuation i.e. 31.03.2000 cannot be countenanced with. The present petition is bereft of merits and is is, accordingly, dismissed with no order as to costs.
17. Pending application(s),, if any, also stand disposed of.
(NAMIT KUMAR)
17.09.2024 JUDGE
R.S.
Whether speaking/reasoned : Yes/No
Whether Reportable : Yes/No
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