Heard Sri Gaurav Mehrotra, learned counsel for the petitioner and Sri Vinod Kumar Singh, learned Addl. C.S.C. for the State respondents.
By means of this petition the petitioner has prayed following relief :
I. To issue a writ, order or direction in the nature of mandamus commanding Respondents to consider grant of ad hoc promotion to petitioner on the post of Additional Commissioner (Grade-II), Commercial Tax, in light of paragraph 10 of the Government Order dated 28.05.1997, within such reasonable time frame as this Hon'ble Court deems fit and proper."
Learned counsel for the petitioner has precisely contended that the decision was taken against the petitioner who is holding the post of Joint Commissioner, Commercial Tax, for initiating a disciplinary proceedings on 30.10.2017, in furtherance whereof, a charge-sheet dated 12.12.2017, was served upon the petitioner, to which the petitioner promptly submitted his reply on 23.01.2018. Subsequently, thereafter, the Inquiry Officer conducted the inquiry strictly in accordance with law and furnished the inquiry report on 26.03.2018, exonerating the petitioner from the disciplinary inquiry. The Disciplinary Authority, after the aforesaid receipt of the Enquiry Report dated 26.03.2018 directed to issue supplementary charge-sheet upon the petitioner. However, the same was never served on the petitioner. As per Sri Mehrotra more than three years period have passed but no supplementary charge-sheet has been served on the petitioner, however, in the meantime the disciplinary authority i.e. the State Government vide letter dated 3.1.2019 kept in abeyance the disciplinary proceedings initiated against the petitioner, therefore, for all practical purposes the inquiry against the petitioner was not proceeded. Since then more than two years and seven months period have passed neither the disciplinary proceedings have been concluded to its logical end nor the petitioner has been promoted on the next promotional post. Sri Gaurav Mehrotra informed that one D.P.C. convened on 1.10.2020 wherein the case of the petitioner was considered and recommended for next promotion but no promotion order has been passed, however, the promotion order in respect of other persons have been issued. Thereafter on 20.7.2021 another D.P.C. convened wherein the case of the petitioner was again considered but his promotion order has been kept in sealed cover.
Sri Gaurav Mehrotra has assailed the aforesaid inaction by submitting that the sealed cover procedure can be adopted only for three eventualities , first when a criminal case is pending against the employee, secondly, if any departmental proceeding are pending against an employee and thirdly when the employee is under suspension. Neither the petitioner is under suspension nor any criminal proceedings is pending against the petitioner. So far as the pendency of departmental inquiry is concerned the same has been kept in abeyance by the State Government itself on 3.1.2019 and since then no decision has been taken , therefore, on account of pendency of that disciplinary proceedings the petitioner may not be discriminated in any manner whatsoever. However, to meet out this eventuality there is one Government order dated 28.5.1997 wherein para 10 thereof categorically provides that if any departmental inquiry is pending against any employee for last more than one year, such employee should be considered for ad-hoc promotion till the conclusion of departmental inquiry.
However, learned Standing Counsel has submitted that he could not receive instructions in the matter but so far as the provisions of Government Order dated 28.5.1997 is concerned it is clear that the candidature of the incumbent can be considered for ad-hoc promotion if the departmental inquriy is pending for more than one year. In the present case the disciplinary inquiry has been kept in abeyance since 3.1.2019, therefore, prima-facie this is a fit case wherein the candidature of the petitioner for ad-hoc promotion in view of para 10 of Government Order dated 28.5.1997 may be considered.
The Apex Court in re: Prem Nath Bali vs. Registrar, High Court of Delhi and another reported in (2015) 16 Supreme Court Cases 415 has observed in para 26,27 and 28 that it is the duty of employer to ensure that the departmental inquiry initiated against the delinquent employee is concluded within shortest possible time by taking priority measures, if possible within a period of of six months as an outer limit. For the convenience para 28 is being reproduced herein below:
"28. Keeping these factors in mind, we are of the considered opinion that every employer (whether State or private) must make sincere endeavor to conclude the departmental inquiry proceedings once initiated against the delinquent employee within a reasonable time by giving priority to such proceedings and as far as possible it should be concluded within six months as an outer limit. Where it is not possible for the employer to conclude due to certain unavoidable causes arising in the proceedings within the time frame then efforts should be made to conclude within reasonably extended period depending upon the cause and the nature of inquiry but not more than a year."
Considering all the aforesaid factual and legal aspect and dictum of Apex Court in re: Prem Nath Bali (supra), I do not find any good reason to keep the writ petition pending. Even theperusal of material available on record clearly indicates that the disciplinary inquiry against the petitioner has been kept in abeyance / suspended vide order dated 3.1.2019 as indicated in Annexure no. 9 which is the letter dated 22.12.2019 issued by the Additional Commissioner, Grade-I, Commercial Tax, Lucknow Zone, Lucknow addressed to the petitioner.
Accordingly, the writ petition is disposed of finally directing the Additional Chief Secretary, Principal Secretary, Department of State Tax, Government of U.P., Civil Secretariat, Lucknow to consider to grant ad-hoc promotion to the petitioner on the post of Additional Commissioner, Grade-II, Commercial Tax in the light of para 10 of the Government Order dated 28.5.1997 with expedition preferably within six weeks from the date of production of certified copy of the order of this Court.
It is also directed that if any appropriate decision is taken regarding the disciplinary proceedings in the matter of the petitioner which has been kept in abeyance since 3.1.2019, consequential orders may be passed in the case of the petitioner for the simple reason that the departmental proceedings should not be kept in abeyance for unlimited period. Law is trite that if any departmental proceeding is pending against any employee, it should be concluded to its logical end by passing appropriate orders with expedition.
Order Date :- 29.7.2021 Om (Rajesh Singh Chauhan, J.)