Himachal Pradesh High Court
Din Dayal vs K.V on 21 March, 2022
Bench: Sabina, Satyen Vaidya
REPORTABLE/NON-REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 21st DAY OF MARCH, 2022
BEFORE
.
HON'BLE MRS. JUSTICE SABINA
&
HON'BLE MR. JUSTICE SATYEN VAIDYA
CIVIL WRIT PETITION ORIGINAL APPLICATION No. 2460 OF 2020
Between: -
BHUPINDER KUMAR SON OF LATE SHRI
DIN DAYAL, RESIDENT OF VILLAGE MAUSARI,
POST OFFICE, HARIPUR, TEHSIL MANALI,
DISTRICT KULLU, HP, PRESENTLY WORKING
AS FOREST GUARD, FOREST RANGE PATLIKUHAL,
DISTRICT KULLU, H.P.
......PETITIONER
(BY SH. MAAN SINGH, ADVOCATE)
AND
1. STATE OF HIMACHAL PRADESH,
THROUGH PRINCIPAL SECRETARY (FORESTS)
TO THE GOVERNMENT OF HIMACHAL
PRADESH, SHIMLA-2
2. PRINCIPAL CHIEF CONSERVATOR OF FORESTS,
HIMACHAL PRADESH, SHIMLA-2.
3. CONSERVATOR OF FORESTS, KULLU, DISTRICT
KULLU, HIMACHAL PRADESH.
...RESPONDENTS
(BY SH. ASHWANI SHARMA,
ADDITIONAL ADVOCATE GENERAL,
FOR THE RESPONDENTS/STATE).
This petition coming on for admission after notice this day,
Hon'ble Mr. Justice Satyen Vaidya, passed the following:
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ORDER
The petitioner was appointed as Forest Guard in 1991.
The meeting of Departmental Promotion Committee (for short 'DPC') .
was convened in November, 2015 for considering the case of Forest Guards for promotion to the post of Deputy Rangers including that of the petitioner. An FIR No. 07/2012 dated 10.04.2012 under Sections 447, 427, 34 IPC and Section 30 of H.P. Prevention of Specific Corrupt Practices Act, 1983 was under investigation at the time of holding of above said DPC. Petitioner and another Forest Guard named Amir Chand were arrayed as accused in the said FIR.
The case of petitioner was kept in sealed cover, whereas Amir Chand was promoted. The promotions to the post of Deputy Rangers, in pursuance of DPC held in November, 2015 were effected w.e.f.
29.02.2016.
2. Aggrieved against the sealed cover proceedings conducted against petitioner, he preferred representation to respondent No.2. The representation of the petitioner was rejected on 24.04.2017 in the following terms:
"2. Vide this office Endst. of even No. dated 22.12.2016 you were requested to decide the promotion cases of government servants whom the disciplinary/criminal proceedings are pending and whose cases relating to service matters are pending in the Court of Law after adopting proper procedure as contained in CCS (CCA) Rules CHAPTER 3 Suspension-::: Downloaded on - 23/03/2022 20:10:44 :::CIS -3-
General Order under para17(2) & (7). Inspite of that you have simply forwarded the representation of Sh. Bhupinder Singh, Forest Guard to this office for according permission to open the sealed cover without adopting the procedure contained in .
CCS(CCA) Rules. Since the official has been facing disciplinary proceedings and case is pending in the court of Sessions Judge, Kullu and prosecution sanction stands granted in his case, hence his sealed cover cannot be opened."
3. Petitioner assailed the communication dated 24.04.2017 rejecting his representation by filing Original Application No. 2897 of 2017, inter-alia, praying for the following reliefs:
"(a) That annexure A-2, dated 24.04.2017 may kindly be quashed and set aside.
(b) That the respondent may kindly be directed to open the result of applicant qua Department Promotion Committee held in November, 2015.
(c) That the respondents may kindly be directed to promote the applicant as Deputy Ranger, from the date of Departmental Promotion Committee/due date, with all consequential benefits."
4. It is relevant to notice here that the charges against the petitioner and aforesaid Amir Chand were framed by the Court of learned Sessions Judge on 22.08.2016. The Original Application No. 2897 of 2017 was transferred to this Court and registered as CWPOA No. 2460 of 2020 on closure of the State Administrative Tribunal.
5. Official respondents contested the claim of the petitioner ::: Downloaded on - 23/03/2022 20:10:44 :::CIS -4- on the grounds that the petitioner was an accused in case registered vide FIR No. 07/2012 dated 10.04.2012 and hence sealed cover proceedings against him were in accordance with the CCS (CCA) .
Rules, 1965. It was, however, clarified that the petitioner faced only the criminal proceedings, as aforesaid, and no departmental proceedings were initiated against him. The factum that Amir hand, Forest Guard had been promoted as Deputy Ranger despite of being accused in the same case, was also not denied.
6. Learned State Administrative Tribunal on 05.04.2018 passed the following interim order in OA No.2897/2017:
"Though more than sufficient time has already been granted to the respondents for filing replies, yet as prayed for, another opportunity is granted by way of extreme indulgence in the interest of justice as last chance. Now, be filed within four weeks. M.A. Nos. 2897 of 2017 and 493 of 2018 stand disposed of accordingly.
However, since when the Departmental Promotion Committee (DPC) had met in November, 2015, neither any departmental inquiry was pending against the applicant nor charge had been framed against him in the criminal trial pending against him, in view of the law laid down by the Hon'ble Supreme Court in Union of India etc.etc. Vs. K.V. Jankiraman etc. etc., 1991 AIR 2010, there shall be a direction in the interim to the respondents/competent authority(s) to implement the recommendation of the DPC as expeditiously as possible, but in any case not later than the next date of hearing."::: Downloaded on - 23/03/2022 20:10:44 :::CIS -5-
7. In pursuance to the aforesaid interim orders, respondent No.2 vide communication dated 18.08.2017 issued memo and ordered the opening of sealed cover in respect of petitioner after .
adopting proper procedure as contained in CCS (CCA). Respondents accordingly complied with the interim orders passed by the State Administrative Tribunal and the petitioner was ordered to be promoted as Deputy Ranger w.e.f. 29.02.2016, subject, however, to the decision in O.A. No. 4152 of 2017 titled Sanjeev Kumar Vs. State of H.P. in which some stay order in respect of promotions to the post of Deputy Rangers, was stated to be operating. It is relevant to reproduce the contents of communication dated 07.06.2018 from respondent No.3 as under:
"2. As recommended by you, approval is hereby accorded to promote Shri Bhupinder Kumar, Forest Guard to the rank of Dy. Ranger w.e.f. 29.02.2016 from the date his juniors were promoted. However, his promotion orders may be issued after the decision in OA No. 4152/2017 - Sanjeev Kumar Vs. State of H.P. vide which promotion of Forest Guards to the rank of Dy. Ranger has been stayed.
3. All the conditions as laid down in this office memo. of even No. dt. 29.02.2016 (copy enclosed) shall apply mutatis mutandis in the promotion case of the aforesaid official."
8. On 03.07.2018, learned State Administrative Tribunal passed following order in OA No. 2897 of 2017 and cleared the case ::: Downloaded on - 23/03/2022 20:10:44 :::CIS -6- of petitioner for promotion to the post of Deputy Ranger:
"This matter be delinked from OA No. 4152 of 2017 and listed on 16.07.2018 however, in the facts and circumstances, particularly that admittedly applicant .
Bhupinder Kumar in O.A. No 2897 of 2017 Is though facing trail under 447,427 read with Section 34 IPC and Section 30(i) of the H.P. Prevention of Specific Corrupt Practices Act, 1983 alongwith other co-accused, namely Amir Chand etc., yet the fact remains that when DPC for promotion to the post of Deputy Ranger was held in November, 2015, charge was yet to be framed against him and other co-accused in the said case and was framed only thereafter and the facts that he said Amir Chand has already been promoted as deputy Ranger despite pendency of the aforesaid criminal case, in which he is one of the accused, but the applicant, who is also similarly situate, is still awaiting promotion, which though stands already approved, but is not implemented due to interim order dated 18.08.2017 against such promotion(s) operating in the concerned O.A. No. 4152 of 2017 despite the facts that the issue involved in both these matters are entirely different, it is clarified that interim order dated 18.08.2017 in OA No. 4152 of 2017 would not come in the way of the applicant Bhupinder Kumar in O.A. No 2897 of 2017 for being considered for promotion to the post of Deputy Ranger and respondents/competent authority(s) may proceed in that matter accordingly."
9. The petitioner was accordingly promoted as Deputy Ranger w.e.f. 29.02.2016. However, his promotion was ordered ::: Downloaded on - 23/03/2022 20:10:44 :::CIS -7- notionally without affording him actual monetary benefits.
10. In view of the developments, as noticed above, having taken place during pendency of the proceedings of this case, prayers .
(a) to (c), made by petitioner have been rendered infructuous save and except grant of relief of promotion to the petitioner from due date with consequential benefits.
11. In our considered view, the petitioner cannot be denied the monetary benefits available to the post of Deputy Ranger for the reason that the petitioner cannot be said to be at fault in grant of delayed promotion in his favour. His entitlement to be promoted from due date was on the basis of settled legal principle that the benefit of promotion cannot be denied to an employee unless he was either charged in departmental disciplinary proceedings or in a criminal case on the date of consideration for promotion.
Admittedly, in November, 2015 when the DPC was convened to consider the eligible Forest Guards for being promoted to the posts of Deputy Rangers, the petitioner had not been charged for any offence by the Court. The date on which charges were framed against petitioner was 22.08.2016. In addition to above, petitioner was not facing any other proceedings even by way of departmental action. Thus, the petitioner had right to be considered for promotion in DPC convened for the purpose in November, 2015 on the strength ::: Downloaded on - 23/03/2022 20:10:44 :::CIS -8- of law settled in AIR 1991 SC 2010, Union of India vs. K.V. Jankiraman and others, wherein it was held as follows:
"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 should not take much time to collect the relevant evidence and finalise the charges. What is further, if the charges are that serious, the ::: Downloaded on - 23/03/2022 20:10:44 :::CIS -9- 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.
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We, therefore, repel the challenge of the appellant- authorities to the said finding of the Full Bench of the Tribunal."
.
12. Following the aforesaid judgment in K.V. Jankiraman, a co-ordinate Bench of this Court in CWP No. 11863 of 2011, titled Rajinder Singh vs. State of H.P. and another, decided on 05.08.2014 has held as under:
"6. It is trite law that it is only when a charge-memo in a disciplinary proceedings or a charge-sheet in the criminal prosecution is issued to the employee 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. If the allegations are serious and the authorities are keen in investigating them then ordinarily it would not take much time to collect the relevant evidence and finalise the charges. What is further if the charges 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. But in no event can the promotion 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 been issued to the employee."::: Downloaded on - 23/03/2022 20:10:44 :::CIS
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13. In the aforesaid circumstances, the petitioner was divested from a right that vested in him without any fault on his part. The petitioner had been agitating his cause without delay. All .
other similarly situated persons including Amir Chand, a co-
accused with the petitioner in FIR No. 07 of 2012 were promoted vide order dated 29.02.2016 with grant of financial benefits from the date of joining on regular basis. Since, on opening of sealed cover proceedings, the petitioner was held entitled for promotion, the grant of such benefit notionally is harsh and arbitrary especially when the petitioner was not assessory in any manner in grant of delayed promotion to him. The petitioner is thus held entitled to all consequential benefits w.e.f. the date he has been ordered to be promoted. Respondents are directed to accord all due benefits to petitioner within three months from the date of this judgment.
14. Accordingly, the instant petition is disposed of in the aforesaid terms, so also the pending miscellaneous application(s), if any.
(Sabina)
Judge
21st March, 2022. (Satyen Vaidya)
(GR) Judge
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