Punjab-Haryana High Court
Devi Ram Punia vs State Of Haryana & Others on 24 February, 2014
Author: Augustine George Masih
Bench: Augustine George Masih
Civil Writ Petition No.12161 of 2011 {1}
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision: February 24, 2014
Devi Ram Punia
...Petitioner
Versus
State of Haryana & others
...Respondents
CORAM: HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH
Present: Mr.Ajay Shekhawat, Advocate,
for the petitioner.
Mr.Sunil Nehra, Sr.DAG, Haryana,
for respondent Nos.1 to 3.
Mr.R.N.Lohan, Advocate,
for respondent Nos.4 to 6.
*****
AUGUSTINE GEORGE MASIH, J.
Challenge in this writ petition is to the order dated 08.06.2011 (Annexure P-12), vide which the representation submitted by the petitioner for promotion to the post of Divisional Employment Officer w.e.f. 16.12.2005 and further to the post of Deputy Director w.e.f. 22.02.2011, the dates when persons junior to the petitioner were promoted to these posts, was rejected without any reasons whatsoever.
Challenge has also been posed to the order dated 22.02.2011 (Annexure P-10) and order dated 05.04.2011 (Annexure P-11), whereby respondent Nos.4 to 6 were promoted despite they being junior to the petitioner. Prayer has also been made to promote the petitioner with effect from the dates his juniors have been promoted to the post of Divisional Employment Officer and the Deputy Director.
Kumar Ramesh 2014.03.04 16:26 I attest to the accuracy and integrity of this document High Court Chandigarh
Civil Writ Petition No.12161 of 2011 {2} Petitioner was appointed as an Assistant Employment Officer on 31.08.1981 in the Department of Employment, Haryana. He was promoted as District Employment Officer on 20.08.1992.
FIR No.14 dated 12.10.1999, under Sections 420/468/471 IPC and Sections 7 and 13 (i) (c) (d) of the Prevention of Corruption Act was registered against the petitioner at Police Station, State Vigilance Bureau, Hisar. Along with the criminal trial, parallel departmental proceedings were initiated against the petitioner and a charge sheet dated 20.02.2002 under Rule 7 of the Haryana Punishment and Appeal Rules (for short "Rules") was served on the petitioner. In the criminal trial, the Special Judge, Hisar acquitted the petitioner of the charges by holding that the prosecution has failed to prove its case beyond shadow of reasonable doubt against the petitioner vide judgment dated 21.02.2009 (Annexure P-1). The Director, Employment Exchange, Haryana thereafter proceeded to inform the petitioner vide a communication dated 10.07.2009 (Annexure P-2) that the Government has decided on 07.07.2009 to drop the disciplinary proceedings initiated against the petitioner.
Prior to dropping of these proceedings, petitioner was served with a charge sheet on 20.11.2001 under Rule 7 of the Rules. The said proceedings culminated in an order of punishment of stoppage of one increment without cumulative effect vide order dated 28.09.2005. Another charge sheet dated 28.02.2006 was served on the petitioner, which resulted in imposing a punishment of stoppage of two increments without cumulative effect vide order dated 26.06.2008.
During this period, when the criminal trial was pending against Kumar Ramesh 2014.03.04 16:26 I attest to the accuracy and integrity of this document High Court Chandigarh Civil Writ Petition No.12161 of 2011 {3} the petitioner and the charge sheet dated 20.2.2002 was also pending, cases for promotion to the post of Assistant Director/Divisional Employment Officer from District Employment Officers were to be considered. The Departmental Promotion Committee (for short "DPC") meeting was held on 16.11.2005, where the claim of the petitioner along with eight others was considered, but because of the pendency of the charge-sheet against the petitioner, he was ignored for promotion and six officers were promoted to the post of Divisional Forest Officer vide order dated 16.12.2005. Thereafter, many other persons junior to the petitioner were promoted to the post of Divisional Employment Officer vide orders dated 03.07.2006, 26.08.2008 and 21.01.2010. Petitioner, after the acquittal in the criminal case and on dropping of the charge sheet dated 20.02.2002, submitted a representation dated 16.12.2010 for considering his case for promotion to the post of Divisional Employment Officer w.e.f. 16.12.2005 and to the post of Deputy Director with effect from the date his juniors have been promoted. Reminders were submitted by the petitioner, but without any response. Petitioner was, however, promoted to the post of the Divisional Employment Officer w.e.f. 14.12.2010. The claim of the petitioner, however, w.e.f. 16.12.2005 was rejected vide order dated 08.06.2011 (Annexure P-12), which has been assailed by the petitioner in the present writ petition.
It is the contention of the counsel for the petitioner that on acquittal of the petitioner in the criminal case, which was registered against him on 21.02.2009 and thereafter dropping of the departmental proceedings against the petitioner by the Government vide memo dated 07.07.2009, the Kumar Ramesh 2014.03.04 16:26 I attest to the accuracy and integrity of this document High Court Chandigarh Civil Writ Petition No.12161 of 2011 {4} claim of the petitioner for promotion to the post of Divisional Employment Officer w.e.f. 16.12.2005 was required to be considered by the respondents with further consequential benefits as the impediment, which was in the way of the petitioner for promoting him from the date his juniors have been promoted vide order dated 16.12.2005 (Annexure P-3), is clearly made out. While referring to the said order of promotion, counsel contends that in the order of promotion of his juniors, it was clearly mentioned that these promotions are without prejudice to the rights of the petitioner. Since the petitioner had become eligible and there being no impediment in considering his claim for promotion, he was entitled to the claim as made out in his representation. His further contention is that subsequently also, when his juniors vide orders dated 03.07.2006, 26.08.2008 and 21.01.2010 were promoted to the post of Divisional Employment Officer, the petitioner was entitled to the said benefit as well. The rejection of the representation of the petitioner is, therefore, not sustainable as respondents have not considered the correct position with regard to the claim of the petitioner and have proceeded to reject his claim without any basis or justification.
Counsel for the petitioner has placed reliance upon the judgment of the Hon'ble Supreme Court in Delhi Jal Board Versus Mahinder Singh, (2000) 7 Supreme Court Cases 210 in support of his contention that once in the departmental enquiry, the result of which is dropping or exoneration the effect thereof, would be retrospective operation of exoneration and it would relate back to the date of framing of charge, as a result thereof, the claim of the petitioner has to be treated from the date his juniors have been promoted.
Kumar Ramesh 2014.03.04 16:26 I attest to the accuracy and integrity of this document High Court Chandigarh
Civil Writ Petition No.12161 of 2011 {5} On the other hand, counsel for the respondents submits that the DPC held its meeting on 16.11.2005. On the said date, in pursuance to the charge sheet dated 20.11.2001 served on the petitioner after the departmental proceedings, punishment of stoppage of one increment without permanent effect was imposed on 28.09.2005. The date, on which the DPC met, the petitioner was under the currency of the punishment and in the light of the judgment of the Hon'ble Supreme Court in the case of State of T.N. Versus Thiru K.S.Murugesan and others, (1995) 3 Supreme Court Cases 273, petitioner could not have been promoted. The effect of the said order of punishment would end on 27.09.2006, but by that time, another charge sheet dated 28.02.2006 was served on the petitioner. Because of the pendency of the charge sheet under Rule 7 of the Rules, the petitioner could not be considered for promotion to the post of Divisional Employment Officer, which he is claiming on promotion of his juniors on 03.07.2006. These departmental proceedings now initiated in the year 2006 resulted in imposition of punishment of stoppage of two increments without cumulative effect vide order dated 26.06.2008. The period of this punishment would end on 25.06.2010. It is during the currency of this punishment, other persons who were junior to the petitioner, were promoted on 26.06.2008 and 21.01.2010. Petitioner, thus, becomes eligible for promotion after the date when his case was duly considered for promotion and he was promoted as Divisional Employment Officer on 14.12.2010. On this basis, it has been contended that the petitioner is not entitled to any further benefit than what has been granted to him.
Counsel for the respondents has placed reliance upon the Kumar Ramesh 2014.03.04 16:26 I attest to the accuracy and integrity of this document High Court Chandigarh Civil Writ Petition No.12161 of 2011 {6} judgment of the Hon'ble Supreme Court in the case of Union of India and others Versus B.Radhakrishna, (1997) 11 Supreme Court Cases 698 to contend that even if a promotion is granted during the currency of some penalty, the promotion would become effective from the date on which the punishment ceases to operate. Reliance has also been placed upon the judgment of the Hon'ble Supreme Court in the case of Nirmal Chandra Sinha Versus Union of India & others, 2008(2) S.C.T. 675 to contend that the promotion takes effect from the date of being granted and not from the date of occurrence of the vacancy or creation of the post. The date of occurrence of the vacancy is not relevant for this purpose. Counsel for the respondents, while placing reliance upon the Government instructions dated 31.05.2006, which has been issued relying upon the judgment of the Hon'ble Supreme Court in Thiru K.S.Murugesan's case (supra), has further stated that during the currency of the punishment, the claim for promotion cannot be considered or granted, otherwise it would amount to retrospective promotion, which is impermissible and it would be a premium on misconduct. On this basis also, the claim of the petitioner is sought to be negated.
Counsel for the petitioner, replying to the contentions raised by the counsel for the respondents, has contended that the instructions of the Chief Secretary dated 31.05.2006 are only prospective in nature and, therefore, would not be applicable to the case of the petitioner so far as his claim for promotion w.e.f. 16.12.2005 is concerned as on the said date these instructions were not in existence. His further contention is that although the order of punishment of stoppage of increment dated 28.09.2005 had Kumar Ramesh 2014.03.04 16:26 I attest to the accuracy and integrity of this document High Court Chandigarh Civil Writ Petition No.12161 of 2011 {7} come into existence prior to the meeting of the DPC, but the said punishment has taken effect from 01.08.2006 and, therefore when the DPC meeting was held, there was no actual stoppage of increment and there was no punishment in effect. He, therefore, contends that the date on which the DPC meeting was held, the same cannot be said to be during the currency of punishment. His further contention is that the charge sheet dated 28.06.2006 will not make any difference as the same has come into effect after the date of consideration of the petitioner for promotion in the DPC, i.e., 16.12.2005 has already passed by, which in effect means the date when the consideration took place. Charge sheet dated 28.02.2006 was not in existence and, therefore, cannot be taken into consideration. In support of his contention, counsel for the petitioner has placed reliance upon the judgment of this Court in Balbir Singh Versus State of Punjab, 1992(3) S.C.T. 661 as also the judgment of the Hon'ble Supreme Court in Union of India Versus Dinanath Shantaram Karekar, 1998(7) SCC 569.
I have considered the submissions made by the counsel for the parties and with their assistance have gone through the records of the case.
On considering the respective submissions made by the counsel for the parties, I am afraid the contentions as raised by the counsel for the petitioner cannot be accepted.
The date, which is relevant as far as the claim of the petitioner for promotion to the post of Divisional Employment Officer w.e.f. 16.12.2005, i.e., the date when juniors to the petitioner were promoted is 16.11.2005, the date when the DPC meeting was held. On this relevant date, it is required to be seen as to whether the petitioner could be promoted or Kumar Ramesh 2014.03.04 16:26 I attest to the accuracy and integrity of this document High Court Chandigarh Civil Writ Petition No.12161 of 2011 {8} not?
Counsel for the petitioner has projected in the writ petition the claim of the petitioner as if there was only one charge sheet issued to the petitioner dated 20.02.2002, which was parallel departmental proceeding initiated against the petitioner along with the criminal case, i.e., FIR No.14 dated 12.10.1999. It is admitted that this charge sheet was pending against the petitioner on the date when the DPC meeting was held. This in itself was a hurdle in promoting the petitioner. That apart, another charge sheet was issued to the petitioner on 20.11.2001, which resulted in imposition of punishment of stoppage of one increment without permanent effect vide order dated 28.09.2005. This punishment in itself was a stumbling block for promoting the petitioner as the punishment takes effect from the date it is imposed, although it may have its effect from the date the annual increment is granted to the petitioner. The effect of this punishment continued till 27.09.2006. The petitioner, thus, could not have been promoted till 27.09.2006. The justification for such a conclusion being reached is the judgment passed by the Hon'ble Supreme Court in the case of Thiru K.S.Murugesan (supra),where it has been held as follows:-
"When promotion is under consideration, the previous record forms the basis and when the promotion is on merit and ability, the currency of punishment based on previous record stands as an impediment. Unless the period of punishment gets expired by efflux of time, the claim for consideration during the said period cannot be taken up. Otherwise, it would amount to retrospective promotion which is impermissible under the Kumar Ramesh 2014.03.04 16:26 I attest to the accuracy and integrity of this document High Court Chandigarh Civil Writ Petition No.12161 of 2011 {9} Rules and it would be a premium on misconduct. Under these circumstances, the doctrine of double jeopardy has no application and non-consideration is neither violative of Article 21 nor Article 14 read with Article 16 of the Constitution."
The judgment of the Hon'ble Supreme Court in itself is a law, which becomes applicable from the day it is declared as such. Although the instructions dated 31.05.2006 issued by the Government of Haryana are subsequent to the date when the DPC was held, but in the light of the judgment of the Supreme Court, referred to above, the action of the respondents justifying non-promotion of the petitioner w.e.f. 16.12.2005 is in accordance with law.
The claim of the petitioner that other juniors were promoted on 03.07.2006 and, therefore, he should be promoted to the post of Divisional Employment Officer from the said date also would not survive in the light of the currency of the punishment imposed on him vide order dated 28.09.2005, the effect of which would expire on 27.09.2006.
Further claim of the petitioner for promotion w.e.f. 26.08.2008 when some other persons junior to the petitioner were promoted also cannot be accepted in the light of the charge sheet dated 28.02.2006 having been served on him under Rule 7 of the Rules, which also resulted in imposition of punishment of stoppage of two increments without cumulative effect vide order dated 26.06.2008. The effect of the said punishment would come to an end on 25.06.2010 and, therefore, on 26.08.2008 he could not have been promoted because of currency of some punishment. Similar would be the Kumar Ramesh 2014.03.04 16:26 I attest to the accuracy and integrity of this document High Court Chandigarh Civil Writ Petition No.12161 of 2011 { 10 } fate of the claim of the petitioner for promotion to the post of Divisional Employment Officer w.e.f. 21.01.2010 as by that time also, the order of punishment dated 26.06.2008 continued till 25.06.2010. Thereafter, the petitioner was considered for promotion and was promoted as Divisional Employment Officer w.e.f. 14.12.2010.
The judgment, on which the petitioner has placed reliance for his claim would, in the light of the above facts and the legal position, not be of any help to the petitioner. The judgment in Delhi Jal Board's case (supra) says that if in a departmental enquiry, an employee is exonerated, he would be entitled to consideration for promotion from the date of consideration for promotion and the order of promotion as a consequence thereof be issued. There can be no dispute with this proposition of law, but unfortunately for the petitioner, despite his acquittal in the criminal case vide judgment dated 21.02.2009 and as a consequence thereof dropping of the charge sheet dated 20.02.2002 vide memo dated 07.07.2009, the petitioner could not be promoted w.e.f. 16.12.2005 for the reasons stated above.
The contention of the counsel for the petitioner that although the order of punishment of stoppage of one increment without cumulative effect is dated 28.09.2005, however, the same has come into effect w.e.f. 01.08.2006, when actually one annual increment has been stopped and, therefore, the punishment actually comes into force on 01.08.2006 and, thus, on 16.12.2005, it cannot be said that the consideration by the DPC when held on 16.11.2005, there was currency of punishment. This contention of the counsel for the petitioner cannot be accepted in the light of the judgment passed by this Court in Civil Writ Petition No.10446 of 2011 Kumar Ramesh 2014.03.04 16:26 I attest to the accuracy and integrity of this document High Court Chandigarh Civil Writ Petition No.12161 of 2011 { 11 } (Subhash Gakhar Versus State of Haryana), decided on 16.10.2012 when similar assertion of the counsel for the petitioner was considered and decided as follows:-
"The claim, as made by the petitioner in the present writ petition, cannot be accepted. Petitioner earned his annual increment on 01.07.2009 and the next annual increment due to the petitioner was on 01.07.2010. During this period, punishment of stoppage of one increment without cumulative effect was imposed upon the petitioner in the departmental proceedings initiated against him vide order dated 23.12.2009. The increment, which has already been granted to the petitioner, could not be withdrawn and, therefore, the withholding of increment would start when the next increment would be due to the petitioner i.e. 01.07.2010. The punishment would thus, become effective from 01.07.2010 till the next increment would become due to the petitioner i.e. 01.07.2011. The claim of the petitioner that the punishment would come to an end on his earning the increment on 01.07.2010, cannot be accepted as the increment cannot be withheld from a retrospective date. The stand of the respondents thus, in the written statement, is fully justified and in accordance with law.
As regards the claim of the petitioner for promotion to the post of Deputy Superintendent, in the light of the fact that persons junior to him stood promoted on 31.07.2009 and, therefore, he should be granted the promotion from the said Kumar Ramesh 2014.03.04 16:26 I attest to the accuracy and integrity of this document High Court Chandigarh Civil Writ Petition No.12161 of 2011 { 12 } date, also cannot be accepted in the light of the fact that the disciplinary proceedings against the petitioner under Rule 7 of the 1987 Rules were pending against the petitioner on the said date and he could not have been promoted from the date his juniors have been promoted as he was not exonerated in the departmental proceedings. These proceedings culminated into imposition of punishment of withholding of one increment without cumulative effect, which disentitled him to promotion w.e.f. 31.07.2009. The claim of his promotion to the post of Deputy Superintendent could not be considered during the period he was in service as till the date of his retirement i.e. 31.05.2011, the punishment of withholding of one increment without cumulative effect was in currency and the same would come to an end on 30.06.2011. Denial of the claim, as made by the petitioner through his representation dated 25.10.2010 (Annexure P-4) based upon the instructions dated 31.05.2006, is in accordance with law."
In Balbir Singh's case (supra) as well as in Dinanath Shantaram Karekar's case (supra), the law expounded by this court is that if on the date of consideration or on the date of promotion, charge sheet and statement of allegations have not been served on the employee, the same cannot be an impediment for promotion of such an employee. In the present case, at every stage of consideration for promotion, either there was an order of punishment imposed, which punishment was in currency as some or the other charge sheet was pending because of which the petitioner could not be Kumar Ramesh 2014.03.04 16:26 I attest to the accuracy and integrity of this document High Court Chandigarh Civil Writ Petition No.12161 of 2011 { 13 } promoted as highlighted above.
It would not be out of way to mention here that in B.Radhakrishna's case (supra), it has been held by the Supreme Court that where the departmental proceedings culminate in withholding of increments even if promotion is granted during the currency of the said penalty and subsequently the promotion is made effective from the date on which the punishment ceases to be operative, such promotion so granted during the currency of the penalty being improper can be rectified to be effective from the date when the punishment ceases to be operative and the same would be justified. In the case of Nirmal Chandra Sinha (supra), it has been held by the Supreme Court that a promotion takes effect from the date of being granted and not from the date of occurrence of vacancy or creation of the post and, therefore, the date of occurrence of vacancy is not relevant for this purpose. This conclusion has been drawn relying upon the earlier judgments of the Supreme Court, i.e., Union of India and others v. K.K.Vadera and others, 1989 Supp(2) SCC 625, State of Uttaranchal and another v. Dinesh Kumar Sharma, 2007(1) SCC 683, K.V.Subba Rao v.Government of Andhra Pradesh, 1988(2) SCC 201, Sanjay K. Sinha & others v. State of Bihar and others, 2004(10) SCC 734.
In view of the above, finding no merit in the present writ petition, the same stands dismissed.
February 24, 2014 ( AUGUSTINE GEORGE MASIH )
ramesh JUDGE
Kumar Ramesh
2014.03.04 16:26
I attest to the accuracy and
integrity of this document
High Court Chandigarh