1. Heard Shri Indra Raj Singh, learned counsel for the petitioner and Shri Neeraj Upadhyay for the respondents.
2. With the consent of the learned counsel for the parties, this writ petition is being finally heard and decided at this stage under the Rules of the Court since pleadings are complete.
3. The petitioner Har Govind Das has challenged the orders dated 22.2.2000 (annexure-4), 6.7.2000 (annexure-5), 21.9.2002 as mentioned in the order dated 23.09.2002 (annexure-7), 26.04.2004 as mentioned in the order dated 30.04.2004 (anneuxe-8) and order dated 08.09.2006 as mentioned in the order dated 11.09.2006 (annexure-10) whereby he has been denied promotion on the post of ''Upper Division Assistant' from the date his junior was promoted and all other consequential benefits and his representation/appeal in this regard has been rejected.
3. The facts in brief giving rise to the present dispute are as under:-
4. The petitioner was appointed as ''Routine Grade Clerk' in the registry of the Court on 10.03.1989 and was promoted to the post of ''Lower Division Assistant' on 6.1.1991. His position in the seniority list of LDA as published on 10.09.1996 was at serial number-324 i.e. immediately below one Km. Rajeshwari Manorma and immediately just above Shri Ramesh Chandra Sonkar II. It is said that in preparation of certified copy of the judgment dated 20.08.1997 in Writ Petition No.6080 of 1984, there occurred some delay in respect thereto an inquiry was conducted by Shri R.S. Chaubey, O.S.D. (Classification). A charge-sheet was issued to the petitioner along with two other officials and the inquiry report was submitted on 9.2.1999. On account of pendency of the above inquiry the confirmation of the petitioner on the post of LDA was deferred and as a result thereof he was not considered for promotion to the post of UDA when his juniors were so considered and promoted by office memorandum dated 23.08.1999. The inquiry proceedings culminated in the order dated 8.2.2000 passed by the Registrar General, who decided to drop the inquiry proceedings but caution the petitioner to be vigilant in future. This was communicated to the petitioner by letter dated 22.2.2000 and thereafter he was promoted to the post of UDA by order dated 6.7.2000. The petitioner made a representation dated 13.12.2001 requesting to give effect to his promotion on the post of UDA from the date his juniors were promoted and to re-assign his seniority with Shri Ramesh Chandra Sonkar II, who was junior to the petitioner on the post of LDA, but was promoted on the post of UDA by order dated 24.08.1999. The above representation of the petitioner was rejected by Registrar General by order dated 21.09.2002, whereagainst petitioner made a review representation which was rejected by Registrar General's order dated 26.04.2004 communicated by letter dated 30.04.2004. The petitioner pointed out that when the inquiry proceedings were dropped and he was not punished at all even by a minor punishment, his promotion could not have been deferred making him junior to the persons who were junior to him on the post of LDA by giving a future date of promotion. Thus again he represented the matter on 24.08.2006 but the same was also rejected by Registrar General's order dated 08.09.2006 as communicated to the petitioner by letter dated 11.09.2006. These very orders are assailed in this writ petition.
4. On behalf of the petitioner it is stated that he should be treated on the post of LDA w.e.f. the date his juniors on the post of UDA were promoted with all other consequential benefits including seniority.
5. On behalf of the respondents a counter affidavit has been filed wherein all other facts have been admitted but it is said that the Inquiry Officer found the petitioner guilty of charges levelled against him whereupon Registrar General, the disciplinary authority took a decision and passed following order on 8.2.2000:-
" Perused the enquiry report, I agree with the report of enquiry officer. Enquiry is dropped however a caution is given to the officials to be vigilant in future."
6. It is said that during pendency of inquiry since the petitioner was not confirmed in the cadre of LDA, he was not considered for promotion to the post of UDA for which confirmed LDA only could have been considered. After completion of inquiry, the petitioner was considered for promotion at the earliest opportunity and was promoted. It is also said that since the petitioner was found guilty of charges levelled against him by the Inquiry Officer and he was awarded ''caution entry', therefore, he was rightly denied promotion retrospectively i.e. 23.08.1999. Further that writ petition is highly belated inasmuch as caution entry was awarded to him on 8.2.2000 and his representation against retrospective promotion was rejected on 21.09.2002, hence, there is delay and laches on the part of the petitioner disentitling him to any relief.
7. In the rejoinder affidavit petitioner has basically eiterated what he has already stated in the writ petition.
8. It is no doubt true that a departmental inquiry with charges of delay in preparation of certified copy of the judgment was conducted against the petitioner wherein the Inquiry Officer found him guilty of delaying preparation though not intentionally. Be that as it may, it is also no doubt true that an inquiry report itself is not an order of punishment. It is the discretion of the disciplinary authority who has to pass appropriate order taking into consideration all the facts and circumstances and to award punishment upon the delinquent employee or not. In the case in hand, the Registrar General while agreed with the report of the Inquiry Officer, but then he decided to drop inquiry. Once inquiry is dropped, question of awarding punishment to the delinquent employee did not arise. The Registrar General accordingly did not award any punishment. The caution is not a punishment prescribed under the rules. Learned counsel for the respondents, despite query made by this Court, could not show any provision under which a ''caution' administered to an employee by his superior officer may be treated a punishment. At the best a caution may be a kind of non- punitive ''warning' which comes within the realm of advisory note. This caution has not been found to be in a negative factor for denying promotion to the petitioner inasmuch as it is admitted by the respondents that at the first opportunity the petitioner was found suitable for promotion on the post of UDA and was actually promoted by order dated 06.04.2000.
9. In fact the manner in which the respondents have proceeded in the present case itself is wholly erroneous and shows lack of procedural knowledge on the part of the respondents. The respondents have admitted that they did not consider petitioner for promotion when his juniors were considered in 1999 since petitioner's confirmation was deferred on account of pendency of the inquiry. Non-consideration of petitioner on account of alleged ineligibility was not on account of any fault on his part but it was deferred on account of pendency of inquiry.
10. The correct procedure would have been that the respondents ought to have considered the petitioner for confirmation as well as for promotion in due time keeping his matter in sealed cover but that has been ignored. It is not the case where the petitioner was not found fit for confirmation on due date but confirmation was deferred on account of inquiry proceedings and thus also he was not considered for promotion.
11. It is also interesting to note that despite having existence of so called punishment of caution, it did not prejudice the petitioner in any manner since in the very first consideration he was found fit and was promoted.
12. Dropping of inquiry means the inquiry did not proceed further. Therefore, even a caution communicated to the petitioner did not form part and parcel of the inquiry but it is besides the said proceedings.
13. The petitioner therefore was entitled not only to be considered for promotion w.e.f the date his juniors were promoted but also for all other consequential benefits including restoration of seniority, which has not been done in the case in hand. The impugned orders therefore cannot sustain. The promotion of petitioner only w.e.f 6.7.2000 and not from the date his juniors were promoted, is arbitrary.
9. In the circumstances, the writ petition is allowed. The impugned orders in the manner as directed above are quashed. The respondents are directed to reconsider petitioner's case for promotion as if he would have been considered on the date when his juniors were considered and promoted and in case he is found suitable for promotion, promoted him with all other consequential benefits. The aforesaid exercise shall be completed within two months from the date of production of certified copy of the order.
10. The petitioner shall also be entitled for cost which is quantified to Rs.25,000/-.
Dt/07.02.2011 Pks/