IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 10001 of 2001 For Approval and Signature:
HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= R B SHAH - Petitioner(s) Versus STATE OF GUJARAT - Respondent(s) ========================================================= Appearance :
[MR PARESH UPADHYAY] for Petitioner(s) : 1, MRS VAIJAYANTI S.PATHAK, AGP for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 11/05/2012 CAV JUDGMENT
1. By way of this petition under Article 226 of the Constitution of India, the petitioner, a retired Government Servant, has prayed for the following reliefs:
“7.
(A) direct the respondent authorities to give promotion to the petitioner on the post of Superintending Engineer w.e.f. 29.9.2001, with all consequential benefits, and
(B) award the cost of the petition, and
(C) grant any other relief or pass any other order which the Honourable Court may consider as just and proper in the facts of the case, and
(D) pending admission and final disposal of this petition, the Honourable Court may be pleased to direct the respondent authorities to promote thepetiotner on the post of Superintending Engineer on ad hoc bass, and/or
(E) grant any other relief in the nature of interim relief or pass any other order in the nature of interim order which the Honourable Court may consider as just and proper in the facts and circumstances of the case.”
2. Facts relevant for the purpose of deciding this petition may be summed-up thus:
The petitioner was appointed by the State Government as Junior Engineer on 26/7/1965. The petitioner was promoted as Dy.Executive Engineer on 31/12/1977 and was further promoted as Executive Engineer on 22/10/1996. Since the person junior to the petitioner was promoted as Executive Engineer on 11/7/1994, the petitioner was given the deemed date of promotion on 11/7/1994 vide order dated 25/6/1999. It is the case of the petitioner that in the Seniority List of the Cadre of Executive Engineer dated 31/3/2001 which was in force on the date of filing of the petition, the name of the petitioner figured at Sr.No.554. The petitioner was expecting his promotion on the post of Superintending Engineer. However, in the promotion order dated 29/9/2001 persons who were junior to the petitioner right upto Sr.No.580 in the seniority list were promoted as Superintending Engineers. However, the name of the petitioner was not included in the promotion order.
It appears that on the very same date i.e. 29/9/2001, the date on which the promotion order was issued, the petitioner was served with a charge-sheet dated 12/9/2001 in connection with some irregularity alleged to have been committed by the petitioner in the years 1978-1980 in his capacity as Deputy Executive Engineer. It is the case of the petitioner that the charge-sheet itself reveals that the Government was knowing about all the alleged irregularities since 1983 and when time came to consider the petitioner for promotion to the post of Superintending Engineer, charge-sheet came to be issued after almost 22 years.
The petitioner submitted his statement of defence to the authorities pursuant to the charge-sheet on 16/10/2001. It is also the case of the petitioner that the authorities of the Government has sought for the explanation of the petitioner in this regard way back in the year 1996, to which the petitioner had replied satisfactorily at the relevant point of time.
It is the case of the petitioner that the authorities of the Government had already cleared the name of the petitioner for the purpose of promotion on the post of Superintending Engineer, however, since the charge-sheet came to be served upon the petitioner, the petitioner was denied promotion to the post of Superintending Engineer. It is also the case of the petitioner that the charge-sheet dated 12/9/2001 was forwarded to the Superintending Engineer, Ahmedabad Irrigation Project Circle where the petitioner was not serving at the relevant point of time and thus a conscious attempt was made to see that the charge-sheet is actually not served upon the petitioner till the actual promotion orders are issued. Thereafter the said charge-sheet was redirected to the petitioner to his posting at the relevant time at Nadiad which the petitioner received on 29/9/2010.
Record reveals that during the pendency of the petition the petitioner retired i.e. w.e.f. 31/5/2002. It appears that the learned Single Judge of this High Court vide order dated 8/11/2001 passed an interim order in favour of the petitioner directing the respondents to promote the petitioner on ad-hoc basis to the post of Superintending Engineer pending the final hearing and disposal of the petition.
Record also reveals that the State Government being aggrieved by such interim order passed by the learned Single Judge, preferred Letters Patent Appeal No.479/2002. The Division Bench vide order dated 30/6/2011 allowed the Appeal and thereby quashed and set aside the order of the learned Single Judge dated 8/11/2001.
3. Contentions of the Petitioner :
The learned Counsel Mr.Paresh Upadhyay appearing for the petitioner, submitted that the action of the respondent authorities in issuing charge-sheet at the last minute for the irregularities alleged to have been committed 22 years back and thereby denying promotion to the post of Superintending Engineer despite the fact that the petitioner was already included in the list, is illegal, arbitrary and unconstitutional. Mr.Upadhyay further submitted that the persons Junior to the petitioner have been promoted vide order dated 29/9/2001 and, therefore, the petitioner also ought to have been promoted on the said post along with the persons junior to the petitioner. Mr.Upadhyay submitted that normally an employee has no right of being promoted, but to be considered for promotion is a fundamental right. However, in the present case the authorities of the Departmental Promotion Committee had already considered the case of the petitioner and had cleared the same. Mr.Upadhyay further submitted that issuance of charge-sheet and Departmental Inquiry could not have been considered as a factor against the petitioner because the Government chose to keep quiet over the alleged act of irregularity for more than 2 decades in spite of being in knowledge of the same. Mr.Upadhyay submitted that the alleged act of irregularities are said to have been committed by the petitioner at the time when the petitioner was working as Deputy Executive Engineer and thereafter the petitioner was already promoted as Executive Engineer.
4. Per contra the learned AGP Ms.Pathak has opposed this petition by filing affidavit-in-reply as under :
“6. The petitioner challenges the action of the respondent authority of superseding the petitioner in the matter of promotion to the post of the Superintending Engineer, on the ground that the departmental inquiry is initiated against the petitioner.
7. I say and submit that in the promotion order No.SLS- 1200-8-E dated 29.09.2011 Shri K.N.Akruwala, Executive Engineer bearing seniority no.580 had been promoted as Superintending Engineer. The seniority no. of the petitioner was 554 in the same seniority list. The Joint Departmental Promotion Committee met on 11.07.2001 at that time there was no departmental inquiry against the petitioner and hence, his name had been included in the select list, but at the stage of issuance of promotion order, the promotion branch asked inquiry branch whether the petitioner was facing any inquiry or not. The inquiry branch reported that thepetitoner had been served a charge sheet on 12.09.2001 bearing Memo No.Khatap-1587-43-E.4, therefore, in accordance with the provision of para-7 of the Government Resolution, General Administration Department No.SLT-1080-895-G.2 dated 23.09.1981. The petitioner could not be promoted.
8. I say and submit that the inquiry matter was relating to the damage occurred to CD No.31 across Bhiloda-pal- Vijaynagar road and Independent Authority recommendation was received by the R&B Department in December, 97 they, in turn, informed Narmada Water Resource and Water Supply Department accordingly the charge sheet dated 29/09/2001 was issued.
9. I say and submit that by order dated 08.11.2001 on Hon’ble Mr.Justice C.K.Buch has directed the respondent to comply with the order of ad-hoc promotion within 2 weeks from the receipt of the order. According to standard practice of Government Resolution, General Administration Department No.SLT-1080-895-G.2 dated 23.09.1981 the officer against whom departmental inquiry is pending cannot be promoted and they can be considered for ad-hoc promotion to higher post only after completion of two years after the date of charge sheet i.e. 12.09.2003. Therefore, this department on the basis of advice of General Administration Department & Government decision filed Letters Patent Appeal No.325 of 2002. The Letters Patent Appeal No.325 of 2002 still pending for final disposal.
10. I say and submit that the petitioner had retired after attaining the age of superannuation dated 31.05.2002.
11. I say and submit that the charges framed against the petitioner vide Government Memo dated 12.09.2001 were proved and after completion of departmental proceedings penalty of pension cut of Rs.500/- per month for the period of two years was imposed vide Government Order No.Khtp-1587-43-E.4 dated 23.09.2004. Copy of the same is annexed herewith and marked as Annexure-R-1 to this affidavit in reply.
12. I say and submit that the Government Resolution No.SLT- 1080-895-G.2 dated 23.09.1981 as per para-7 states that a person whose name is included in the select list but who is facing departmental inquiry is not entitle for promotion. Annexed herewith and marked as Annexure- R-II to this affidavit in reply.”
5. To the affidavit-in-reply, a rejoinder has been filed by the petitioner wherein the stand taken is as under :
“3. I say that, it is the settled position of law, as laid down by the Hon'ble the Supreme in the case of Union of India Vs. K.V.Jankiraman reported in AIR 1991 SC 2010, that sealed cover procedure is to be resorted to only after the charge sheet is issued and pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. It is specifically stated that the law laid down by the Hon'ble the Supreme Court is followed by this Hon'ble Court in many cases and the State Government has accepted and implemented the same as policy decision. In support of this say, petitioner craves leave to refer to and rely upon the decision of this Hon'ble Court dated 11.10.2006 rendered in Special Civil Application No:21708 of 2006 and the consequential order passed by the State Government implementing the said judgment. A copy of the order dated 11.10.2006 passed by the Hon'ble Court and the order dated 16.3.2007 are annexed herewith and collectively married as Annexure-I to this rejoinder. It is respectfully stated that in case of many other Government employees, who were wrongly superseded in the matter of promotion, the State Government passed the orders, which are annexed herewith and collectively marked as Annexure-II to this rejoinder. It is further respectfully stated that thus, it is clear that the State Government has consistently followed the policy decision and has ultimately, issued in the form of Government Resolution dated 4.8.2007. It is respectfully stated that by way this Government Resolution, the State Government has not formed a new policy but it is the reiteration of the policy decision, which has been followed by the State Government in past, which would be evident from the above referred orders passed by the State Government. A copy of the said Government Resolution dated 4.8.2007 is annexed herewith and marked as Annexure-III to this rejoinder.
4. It is respectfully stated that, in view of settled position of law and the policy of the State Government and admitted position that at the time of meeting of Departmental Promotion Committee, no departmental inquiry was pending against the petitioner, the claim of the petitioner is required to be accepted. It is further respectfully stated that the say of the petitioner was accepted by this Hon'ble Court and has admitted the matter and granted interim relief directing the respondent authority to promote the petitioner on ad-hoc basis on the post of Superintending Engineer, vide order dated 8.11.2001. It is respectfully stated that despite the direction given by this Hon'ble Court, the respondent authority did not comply with the same and therefore, the petitioner was constrained to file contempt application. It is respectfully stated that, non compliance of the directions of this Hon'ble Court itself shows the intention on the part of the authorities of the State Government to deprive the petitioner from being promoted, which would be further evident from the fact that pursuant to the said charge sheet dated 12.9.2001, inquiry was held against the petitioner and Inquiry Officer held the charges leveled against as not proved but the respondent authority had disagreed with the same and imposed the punishment on the petitioner.
5. It is respectfully stated that in view of the settled position of law and the policy of the State Government consistently followed in many cases and admitted fact that on the date of meeting of departmental promotion committee no departmental inquiry was spending against the petitioner, the case of the petitioner is required to be accepted for promotion on the post Superintending Engineer.
6. I say that considering the totality of the facts and circumstances of the case, the Hon'ble Court may not be pleased to accept the say of the respondent authority and may be pleased to allow the petition and grant the relief as prayed for the in the petition.”
6. It appears from the affidavit-in-reply by the Under Secretary to the Government of Gujarat, Narmada Water Resources Water Supply & Kalpasar Department that pursuant to the charge-sheet which was issued against the petitioner, the petitioner was proceeded departmentally. The Inquiry Officer came to the conclusion that the charges leveled against the petitioner were not established and accordingly submitted report dated 11/3/2002. However, the Disciplinary Authority disagreed with the finding recorded by the Investigating Officer and came to the conclusion that the charges to be treated are having been proved against the petitioner. The petitioner was issued a notice dated 16/10/2002 along with the copy of inquiry report and the reasons of disagreement recorded by the Disciplinary authority. In response to the said notice, the petitioner submitted his final detailed representation dated 24/10/2002. Ultimately the Disciplinary Authority came to the conclusion that the charges are held to be proved and passed an order imposing penalty of deduction of Rs.500/- from the monthly pension for a period of 2 years.
7. Thus, the only question which falls for my consideration in this petition is as to whether the respondents were justified in issuing a charge-sheet against the petitioner for acts of irregularities committed more than two decades back at the last minute when the petitioner was due for promotion to the post of Superintending Engineer and more particularly when the Departmental Promotion Committee had already cleared his name for promotion. The facts of this petition are plain and clear. However, the stand of the respondents is that if before the date of considering actual promotion an incumbent is subjected to departmental inquiry he cannot be promoted notwithstanding his name being in the select list. For this purpose, reliance was placed on Clause-7 of the G.R. dated 23/9/1981 which provides that when name of an incumbent is included in the select list but he is subsequently placed under suspension, against whom criminal proceedings/departmental proceedings have been initiated, cannot be promoted on the basis of his inclusion in the select list until he is completely exonerated of the charges against him. If the Government Servant is completely exonerated of the charges, he is to be promoted on the basis of the position in the select list to the post which may have been filled on temporary basis pending disposal of the inquiry against him. If the exoneration is not complete the question of his promotion will have to be examined afresh. In the present case charge-sheet dated 12/9/2001 was served upon the petitioner on 29/9/2001. On the date the Departmental Promotion Committee met and cleared the name of the petitioner for promotion to the post of Superintending Engineer, no inquiry was pending against the petitioner.
The facts clearly disclose that the petitioner was considered by the Departmental Promotion Committee at a time when no inquiry was pending against him and his name was, in fact, included in the select list. However, after this exercise was completed but before actual promotions took place, the petitioner was served with a charge- sheet dated 12th September 2001. The respondents in the case have relied on clause 7 of the Resolution dated 23rd September 1981 referred to above to sustain its action in denying promotion to the petitioner. Clause 7 reads as under :
“A Government servant whose name is included in the select list but who is subsequently placed under suspension or against whom criminal proceedings/ departmental proceedings have been initiated should not be promoted on the basis of his inclusion in the Select List until he is completely exonerated of the charges against him. If the Government servant is completely exonerated of the charges, he will be promoted on the basis of his position in the select list, to the post which has been filled on a temporary basis pending disposal of the charge against him. If the exoneration is not complete, the question of his suitability for promotion will have to be adjusted afresh as mentioned in para 5 above.”
However, I am of the view that clause 7 must be read along with clause 5, which reads as under :
“In the case of a Government servant who on conclusion of the departmental inquiry is not fully exonerated, his case should be reconsidered by the departmental promotion committee in the light of the decision taken by the disciplinary authority in the disciplinary proceedings. The Committee shall thus makes suitable recommendations regarding the Government servant's promotion or otherwise. Where promotions are to be made without preparing a select list the same procedure shall be followed mutatis mutandis.”
On plain reading of clause 5, it is very clear that if the Government servant is not fully exonerated in the departmental inquiry, then the case of such a Government servant should be reconsidered by the Departmental Promotion Committee in the light of the decision taken by the disciplinary authority in the disciplinary proceedings. Clause 5 also provides that the Committee shall make suitable recommendations regarding the Government servant's promotion or otherwise.
In the present case, it is undisputed that the petitioner was proceeded departmentally and was held to be guilty of the charges levelled against him to a certain extent despite the fact that the Inquiry Officer in clear terms held that the charges levelled against the petitioner are not established.
Be that as it may, the fact remains that finally the petitioner was imposed with a penalty of deduction of Rs.500=00 from his monthly pension for a period of two years. The parady of the situation is that even after imposition of this penalty way back in the year 2004, the respondents did not deem fit to comply with clause 5 of the Government Resolution referred to above. It was incumbent upon the respondents to once again refer the matter to the Departmental Promotion Committee along with papers of inquiry to seek the opinion of the Committee as to whether the petitioner can be given deemed promotion because the petitioner attained the superannuation in the year 2002.
It is nobody's case that the petitioner is responsible for the delay. On the contrary, some irregularities alleged to have been committed two decades back have been made the basis for initiating departmental inquiry at the last minute. I cannot also overlook the fact that during the period of two decades the petitioner had already earned two promotions. It may be true that where a decision has been taken to initiate disciplinary proceeding against a Government servant, his promotion, even if he is found otherwise suitable, will be incongruous, because a Government servant under such a cloud should not be promoted till he is cleared of all the charges against him, into which an inquiry has to be made according to the decision taken. However, it all depends upon the nature of the charge and also the factor of delay. Nothing has been placed on record to justify as to why it took more than 20 odd years to issue charge-sheet and proceed against the petitioner departmentally. Normally, disciplinary proceeding should be allowed to take its course as per relevant rules, but then delay defeats justice. Delay causes prejudice to the charge officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceeding. In the present case, it appears that the authorities of Government had sought for the explanation of the petitioner so far as the acts of irregularities are concerned way back in the year 1996, to which the petitioner had replied satisfactorily at the relevant point of time but, even at that point of time, the department did not deem fit to proceed against the petitioner and when time came for the petitioner to earn his last promotion before attaining superannuation, all of a sudden charge-sheet dated 12th September 2001 came to be served upon the petitioner on 29th September 2001.
I am unable to gather anything from the record as to what happened after the order of penalty was imposed, as to whether the petitioner preferred any appeal or not. However, the fact is that the disciplinary authority thought fit to impose penalty of deduction of Rs.500=00 per month from the pension for a period of two years. I am of the view that this by itself should not be a ground to deny promotion to the petitioner, which otherwise, he was entitled to and was also found fit for the same by the Departmental Promotion Committee.
I could have directed the respondents to reconsider the entire issue of promotion on the strength of clause 5 of the Government Resolution dated 23rd September 1981 referred to above and I could also have directed the authorities to take decision in this regard, as to whether the petitioner should be promoted with deemed date as he has attained superannuation. However, at the second thought, I am of the view that this exercise will consume a lot of time and perhaps the petitioner may not even see the light of that day if at all the Government takes decision to give him deemed promotion.
Taking into consideration the fact that the disciplinary authority itself has not thought fit to impose a severe penalty like withholding of pension permanently, by itself would suggest that the alleged irregularities were not of that nature for which the petitioner should be denied promotion.
On the facts and in the circumstances of the case, this petition must succeed. The respondent – authorities are hereby directed to consider giving promotion to the petitioner on the post of Superintending Engineer with effect from 29th September 2001 with all consequential benefits.
Since the petitioner has retired and is drawing pension, the pension may now be fixed on the basis of Last Pay Drawn of the pay- scale of Superintending Engineer as prevailing on 29th September 2001.
The respondent-authorities are hereby directed to calculate all retiral benefits which the petitioner would have been otherwise entitled to if promoted to the post of Superintending Engineer with effect from 29th September 2001.
This exercise shall be undertaken by the respondent-authorities within a period of two months from today and pay the amount of difference of salary with 9% interest and shall fix the amount of pension accordingly.
Rule made absolute to the aforesaid extent.
/moin (J.B.Pardiwala, J.)