Allahabad High Court
State Of U.P.Through Its Prin. Secy. ... vs Nand Kumar Singh on 19 July, 2010
Author: Devi Prasad Singh
Bench: Ferdino I. Rebello, Devi Prasad Singh
CJ's Court
Special Appeal No.478 of 2010
State of U.P. & Another.
V.
Nand Kumar Singh.
***
Hon'ble Ferdino I. Rebello, CJ.
Hon'ble Devi Prasad Singh, J.
This special appeal is directed against the judgment and order dated 11.02.2010 passed by the learned Single Judge in Writ Petition No.6760 of 2009 (S/S), whereby the learned Single Judge allowed the writ petition filed by the respondent herein.
2. The appellants-State is aggrieved by the judgment and order of the learned Single Judge, whereby he has directed the promotion to the respondent herein to the post of Deputy Superintendent of Police pursuant to a regular selection done by the U.P. Public Service Commission. The Departmental Promotion Committee met on 22.08.2009 and the respondent was selected. A charge-sheet was filed on 02.09.2009.
3. First Information Report was lodged against certain persons under Section 420, 465, 468, 471, 120-B, 292 IPC and by the judgment and order dated 25.5.1992, an accused Kavita Sahu was convicted. It was submitted that on account of political pressure, for the same charges, another First Information Report was lodged on 12.9.1993 with the same allegations, in which the police submitted charge-sheet on 2.9.2009. The petitioner assailed the State action being politically motivated.
4. The appellants sought to follow the sealed cover procedure contending that in terms of Paragraph 11 of the Government Notification dated 28.05.1997, in such a case, sealed cover procedure has to be followed. The learned Single Judge, after considering the matter as also Paragraph 11, held that the sealed cover procedure in such a case will not be followed considering the fact that on the date D.P.C. was held, the impugned charge-sheet was not filed and accordingly, directed that the respondent herein be promoted.
True translation of Paragraph 11 of the Notification dated 28.05.1997 reads as under:-
"11. If recommendation has been made for promotion of any personnel by the Selection Committee, but before implementation of order of promotion, something as contained in Paragraph-2 comes out in the knowledge, and had the same been before the Selection Committee at the time of selection, then it would have been necessary to keep the recommendation of the Selection Committee in a sealed cover, the concerned personnel shall not be promoted and on receipt of the final result of such proceedings, the recommendation of the Selection Committee in respect of such personnel will be implemented in such a manner under the provisions of this Notification, as if the recommendation of the Selection Committee was kept in a sealed cover in respect of such personnel."
5. Paragraph-2 of the Notification sets out that the sealed cover procedure will be followed in the following three cases:-
(i) When the employee is under suspension.
(ii) When the departmental proceedings are pending against the employee, to which a charge-sheet has been issued.
(iii) When the charge-sheet has been filed against the employee and the same is pending.
6. On behalf of the appellants-State, what is sought to be contended, is that even after the selection and before the appointment letter is issued, if it comes to the notice of the Appointing Authority that there is a charge-sheet pending against the concerned employee, then also in that event, the sealed cover procedure must be followed. The question is as to whether this is the correct interpretation of Paragraph 11 of the Notification.
7. In our opinion, once three cases are manifest under which the sealed cover procedure has to be followed, Paragraph 11 will have to be considered in that context, otherwise this would result in adding another case. The only way to harmonize the rules, considering paragraphs 2 and 11, is to hold that if on the date of D.P.C. there was a charge-sheet and this was not within the knowledge of the Selection Committee even at the stage of issuing the letter of appointment, the sealed cover procedure can be followed. In our opinion, this would be a proper and harmonious construction of the two rules.
8. We find no merit in this appeal. Accordingly, this appeal is dismissed. No order as to costs.
Dt/-19.7.2010
RKK/- (F.I. Rebello, CJ)
(Devi Prasad Singh, J)
C.M. Application No.69064 of 2010
In re:
Special Appeal No.478 of 2010
Hon'ble Ferdino I. Rebello, CJ.
Hon'ble Devi Prasad Singh, J.
This is an application under Section 5 of the Limitation Act for condoning the delay in filing the appeal.
For the cause shown in the affidavit filed in support of the delay condonation application, the delay in filing the appeal is condoned. Application is allowed.
Office to register the appeal.
Dt/-19.7.2010
RKK/- (F.I. Rebello, CJ)
(Devi Prasad Singh, J)
Special Appeal No.478 of 2010
Hon'ble Ferdino I. Rebello, CJ.
Hon'ble Devi Prasad Singh, J.
Appeal is dismissed.
For orders, see order of date passed on
separate sheets.
Dt/-19.7.2010
RKK/- (F.I. Rebello, CJ)
(Devi Prasad Singh, J)