Allahabad High Court
Suresh Pratap Singh vs State Of U.P.Thru Addl.Chief ... on 3 November, 2020
Author: Chandra Dhari Singh
Bench: Chandra Dhari Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 18 Case :- SERVICE SINGLE No. - 10547 of 2020 Petitioner :- Suresh Pratap Singh Respondent :- State Of U.P.Thru Addl.Chief Secy./Prin.Secy. P.W.D.Lko &Ors Counsel for Petitioner :- Gaurav Mehrotra,Abhineet Jaiswal,Utsav Mishra Counsel for Respondent :- C.S.C. Hon'ble Chandra Dhari Singh,J.
The petition seeks issuance of a writ in the nature of mandamus to command the respondents to grant promotion to the petitioner on the post of Engineer-in-Chief as per the recommendations made by the Departmental Promotions Committee in its meeting held on 24.07.2019 within such reasonable time frame as this Hon'ble Court deems fit and proper.
Facts in brief are that the petitioner was initially appointed on the post of Assistant Engineer (Civil) PWD on 09.12.1983 through Union Public Service Commission. The petitioner was promoted to the post of Executive Engineer (Civil) on 29.09.2006 and thereafter as Superintending Engineer on 24.05.2012. The petitioner was further promoted as Chief Engineer (Level -II) on 27.12.2019 and Level -I on 03.10.2019. The petitioner's further promotion was denied to the post of Engineer-in-Chief on the ground of issuance of charge-sheet in disciplinary proceedings, which was issued much subsequent to the D.P.C. Learned counsel for the petitioner has submitted that the name of the petitioner was recommended for grant of promotion on the post of Engineer - in - Chief in the D.P.C. convened on 24.07.2019, which considered the cases for promotion inter-alia, on the post of Engineer in Chief in Public Works Department vacancies whereof were arising in selection year 2019-20. It is submitted that on 30.06.2020 i.e. on the date on which the promotion order of the petitioner in furtherance to the recommendation of the D.P.C. dated 24.07.2019 was to be issued, the petitioner was served with a charge-sheet purportedly dated 29.06.2020 leveling a sole frivolous charge which is stale and baseless. Learned counsel submits that it is settled proposition of law that in absence of any satisfactory explanation for inordinate delay in issuing the charge-sheet or initiation of disciplinary inquiry, it would be unfair and permit a departmental proceeding to commence based solely on stale charges.
In support of his arguments, learned counsel for the petitioner has relied on the judgments of Hon'ble the Supreme Court reported at 1990 (Supp) 1 SCC 738 (State of Madhya Pradesh vs. Bani Singh); 2005 (6) SCC 636 (P. V. Mahadevan vs. MD. T. N. Housing Board; and (2006) 5 SCC 88 (M. V. Bijlani vs. Union of India and others).
Learned counsel for the petitioner has submitted that the entire process of initiating disciplinary proceedings against the petitioner, irrespective of stale allegation relating to the year 2015 has been undertaken, malafidely with undue haste, at the time when the petitioner is to be granted promotion to the post of Engineer in Chief, solely with oblique motive. The case of the petitioner has been considered and the petitioner has been recommended for being promotion to the post of Engineer in Chief by the D.P.C. in its meeting held on 24.07.2019 and on this date, there was no adverse material against the petitioner. It is submitted that any adverse material comes after the D.P.C. cannot have any adverse effect and the promotion due to the petitioner, based on the recommendations of the D.P.C., cannot be withheld.
Learned counsel for the petitioner has submitted that the case of the petitioner is squarely covered by the judgment and order passed by this Hon'ble Court in Special Appeal No.478 of 2010 (State of U.P. and others vs. Nand Kumar Singh) decided on 11.02.2010 and also the order dated 24.05.2018 passed in the case of Gyan Prakash Pandey vs. State of U.P. and others (W.P. Service Bench No.13751 of 2018).
Learned counsel has also submitted that the Division Bench of this Court while adjudicating upon the similar dispute in the case of the Nand Kumar Singh (Supra) hold that as long as on the date on which the D.P.C. convenes to assess the case of the employee, the employee is neither under suspension nor has any departmental proceedings initiated against him, the promotion of the employee cannot be withheld merely on the basis of adverse material which surfaces after the D.P.C. has been held and recommendations made. Learned counsel further submitted that in the light of the aforesaid legal position of law, the promotion of the petitioner cannot be withheld merely on the purported ground of contemplation of further disciplinary inquiry and the adverse material, which came in existence much after the D.P.C. has already made its recommendations way back on 24.07.2019, cannot have any adverse impact on ground of promotion to the petitioner and the petitioner is entitled to promotion to the next higher post.
Per contra, Sri Ran Vijay Singh, learned Additional Chief Standing Counsel vehemently opposed the submissions made by the learned counsel for the petitioner and has submitted that Clause-II of the Office Circular dated 28.05.1997 provides that if any disciplinary proceedings are pending against any employee, then recommendation made by the Departmental Selection Committee, in respect of the promotion, shall be given in a sealed cover. The Circular further provides that if Departmental Selection Committee makes recommendation for promotion of an employee, but before issuance of promotion order if some material comes into light, the employee cannot be promoted. Mr. Singh further submitted that the recommendation of the Departmental Promotion Committee was made on 24.07.2019 on a vacancy which occur on 01.07.2020 but before the date of occurrence of vacancy, the departmental proceedings have been instituted against the petitioner vide order dated 22.06.2020 and the charge-sheet has been issued on 29.06.2020. Therefore, in view of the Clause II of Office Circular dated 28.05.1997, the petitioner cannot be given promotion on the post of Engineer- in-Chief unless the disciplinary proceedings are concluded and the petitioner is exonerated from the charges levelled against him.
Mr. Singh, learned Additional Chief Standing Counsel, after arguing at some length, has fairly conceded that the issue involved in this petition has already been settled by this Hon'ble Court in the case of Nand Kumar (supra) and Gyan Prakash Pandey (supra).
Heard learned counsel for both the parties and perused the record.
The name of the petitioner was recommended by the D.P.C. convened on 24.07.2019 for promotion on the next higher post of Engineer - in - Chief, however, since a disciplinary proceeding has been instituted against the petitioner under Rule 7 of the U.P. Government Servant (Discipline and Appeal) Rules, 1998 and the petitioner was served with a charge-sheet in the aforesaid disciplinary proceedings purportedly dated 29.06.2020, therefore, the petitioner was not given promotion to the post of Engineer-in-Chief as per the recommendation of the D.P.C. convened on 24.07.2019.
It is argued on behalf of the State that as per Clause-II of the Office Circular dated 28.05.1997, the respondents are entitled to withhold the promotion of the petitioner on the post of Engineer - in - Chief as disciplinary proceedings are pending against the petitioner and the petitioner has yet not been exonerated in the disciplinary proceedings. The clause-2 and clause 11 of the G.O. dated 28.05.1997 has been dealt by the Division Bench Judgment of this Court in Special Appeal No.478 of 2010 (State of U.P. and others vs. Nand Kumar Singh) decided on 11.02.2010. The relevant portion is extracted as under:
"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."
The aforesaid judgment was challenged before Hon'ble the Supreme Court in Special Leave to Appeal (Civil) No.5741 of 2013 (State of U.P. and another vs. Nand Kumar Singh), which was dismissed as withdrawn vide judgement and order dated 18.03.2013. Thus, the judgment and order passed in Nand Kumar Singh's case (supra) has attained finality.
In the case of Gyan Prakash Pandey vs. State of U.P. and others this Court vide judgment and order dated 24.05.2018 passed in W.P. No.13751 (SB) of 2018 has held as under :
"29. In view of the aforesaid facts, interpretation of provisions of Clause-11 of the Government Order dated 28.5.1997 as suggested by the State Counsel is an incorrect interpretation, which is not acceptable particularly in view of the verdict given by the co-ordinate Bench in the case of Nand Kumar Singh's case [supra]. Moreover, a bare perusal of Clause-11 of the said government order reveals that conditions which have been provided in Clause-2 are to be taken into consideration, if the same were present but some how could not be brought to the knowledge of the D.P.C., then the recommendation of the selection committee will be treated to be kept in a sealed cover.
30. In the present case, undisputedly, a decision to initiate disciplinary proceedings have been taken on 11.5.2018 and a charge sheet has been issued on the same date whereas the petitioner was recommended by the DPC on 5.12.2017 and such the adverse material said to be found, much later in April, 2018 that too after filing of the writ petition. The respondents have stated that the charges against the petitioner relate to the period from 2013 to 2016. In this connection, it may be pointed out that whether the charges relate to the time which is prior to the date on which the DPC was held or not is not be to be seen but the fact which is to be examined is the date on which the charge sheet was issued, which, undisputed, in the instant case is subsequent to the date on which the DPC was held and recommendation for promotion of the petitioner to the post of Chief Engineer (LEVEL-II) was made.
31. In view of the aforesaid discussions and legal position, the stand of the respondents is wholly unjustified and erroneous, which is legally not sustainable as we are of the considered opinion that if on the date on which the name of a person is considered by the Departmental Promotion Committee for promotion to a higher post, if such a person is neither under suspension nor any charge sheet has been served; and is found suitable then the sealed cover procedure cannot be adopted. Consequently, we issue a writ of mandamus directing the respondents to implement the recommendation of the DPC dated 5.12.2017 forthwith and in any case prior to 30th June,2018.
In view of the aforesaid settled legal position, it is clear that once a recommendation for promotion is made in favour of an employee and no charge-sheet has been issued to such employee up to the date on which such recommendation is made for promotion by the D.P.C., any adverse material as also the charge-sheet, which is issued after the recommendations of the Departmental Promotion Committee, cannot adversely affect the recommendations so made. In the instant case, it is admitted fact that charge-sheet was served on the petitioner after the recommendations of the Departmental Promotion Committee.
Considering the legal position as settled by this Court in the cases of Nand Kumar (supra) and Gyan Prakash Pandey (supra), the writ petition is allowed. A writ of mandamus is issued to respondents to implement the recommendations made by the Departmental Promotion Committee in its meeting held on 24.07.2019 for the promotion of the petitioner for the next higher post within a period of eight weeks from the date a copy of this order is produced.
Order Date :- 3.11.2020 VNP/-