Court No. - 38
Case :- WRIT - A No. - 10402 of 2019 Petitioner :- Paramhans Singh Yadav Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Nisheeth Yadav,C.B. Yadvar (Sr. Advocate) Counsel for Respondent :- C.S.C.
Hon'ble Ashwani Kumar Mishra,J.
Petitioner is presently working as District Basic Education Officer in the State of U.P.. He has approached this Court with the grievance that persons junior to him have been promoted to the post of District Inspector of Schools but his claim has been ignored. Attention of the Court has been invited to a promotion order dated 28.6.2019, as per which persons placed at Sl. Nos. 514, 516 and 518 in the seniority list have been promoted to the post of District Inspector of Schools. Petitioner's name figured at Sl. No. 513. His grievance is that neither any disciplinary inquiry has been initiated nor is pending yet his claim for promotion has been over looked.
Reliance has been placed upon the judgment of the Apex Court in the case of Union of India Vs. V.K. Jankiraman, reported in AIR 1991 Supreme Court, 2016 in order to submit that such act of respondents cannot be sustained. Reliance has also been placed upon the Government Order dated 28.5.1997.
Taking note of the aforesaid submissions, following orders were passer in the matter on 15.7.2019:-
"Petitioner was posted as District Basic Education Officer, Varanasi from 16.5.2012 to 5.8.2013. It appears that certain orders were passed to effect recovery in respect of certain goods supplied to basic schools and while petitioner remained posted as such at Varanasi, such amount could not be recovered. On this ground a decision was taken on 16.3.2016 to proceed departmentally against the petitioner. It is stated that though a period of more than three years have expired since then but till date no charge sheet has been served upon the petitioner. Submission is that only on account of pendency of disciplinary proceedings petitioner's claim has been overlooked in the matter of promotion, while his juniors have been promoted on 28.6.2019. Submission is that action of respondents in ignoring consideration to petitioner's claim merely on such ground, therefore, is wholly arbitrary. Petitioner is otherwise due to retire in September, 2019.
Learned Standing Counsel may obtain instructions in the matter, by the next date fixed.
Put up as fresh on 29.7.2019."
Despite grant of opportunity, learned Standing Counsel has not been able to obtain instructions in the matter. It is submitted that the authorities of the State shall consider petitioner's claim in accordance with law.
Although an order dated 6.3.2016 has been passed for initiating disciplinary action by serving charge-sheet upon the petitioner but despite expiry of more than three years time, no charge- sheet apparently has been served upon the petitioner.
Law is settled that the disciplinary proceedings are initiated only with the service of charge sheet upon the employee concerned. This position has been clarified by the Apex Court in the case of Union of India and others Vs. Anil Kumar Sarkar, reported in (2013) 4 SCC, 161 wherein following observations were made in para-21:-
"We also reiterate that the disciplinary proceedings commenced only when a charge-sheet is issued. Departmental proceeding is normally said to be initiated only when a charge-sheet is issued".
In case no charge-sheet has been served upon the petitioner for a period of more than three years, the authorities would not be justified in over looking petitioner's claim for promotion only on account of a decision previously taken on 6.3.2016 to proceed departmentally against the petitioner. Once persons junior to petitioner have been considered for promotion, claim of petitioner cannot be ignored only on account of the order dated 6.3.2016, when no charge-sheet is served so far upon him.
Considering the facts and circumstances, noticed above, this petition stands disposed of with a direction upon respondent no.1 to accord consideration to petitioner's claim for promotion, in case person junior to petitioner have already been considered for the purposes, keeping in view the observations made above by passing a reasoned order within a period of three months from the date of presentation of certified copy of this order.
Order Date :- 30.7.2019 n.u.