1994 Supreme(Raj) 983
RAJASTHAN HIGH COURT
R.R.Yadav, J.
Lalit Kumar Agrawal - Appellant
Versus
State of Rajasthan & Anr. - Respondent
S.B. Civil Writ Petition No.2195/1991.
Decided On : 28-11-1994
Advocates:
For the Petitioner:Mr. M. Mridul, Senior Advocate with Mr. R.N. Upadhyay, Advocate.
For the Respondents:Prakash Tatia, Advocate.
Denial of promotion as a result of minor penalty does not attract the rule of double jeopardy as promotion is neither a vested right nor denial of promotion is a punishment.
Headnote:
PROMOTION - SEALED ENVELOPE PROCEDURE - DISCIPLINARY ENQUIRY - MINOR PUNISHMENT - DOUBLE JEOPARDY - ARTICLES 14 AND 16 OF THE CONSTITUTION OF INDIA - SALARY AND EMOLUMENTS OF HIGHER POST DURING OFFICIATION - RAJASTHAN SERVICE OF ENGINEER AND RESEARCH OFFICERS (IRRIGATION BRANCH) RULES, 1954 - RAJASTHAN CIVIL SERVICE (CLASSIFICATION, CONTROL AND APPEAL) RULES, 1958.
Fact of the Case:
Petitioner, an Assistant Engineer, was denied promotion to the post of Executive Engineer due to a pending disciplinary enquiry against him. After the enquiry, a minor punishment of withholding one grade increment was imposed, and the DPC reviewed its earlier decision and found him unsuitable for promotion. The petitioner challenged the denial of promotion and sought salary and emoluments of the Executive Engineer post for the period he officiated in that capacity.
Finding of the Court:
1. The sealed envelope procedure is to be resorted to only after a charge memo/charge sheet is issued. 2. Denial of promotion as a result of minor penalty does not attract the rule of double jeopardy as promotion is neither a vested right nor denial of promotion is a punishment. 3. The petitioner cannot claim hostile discrimination since he was not similarly circumstanced with other incumbents who were considered for promotion without any pending disciplinary proceedings. 4. The petitioner is entitled to the salary of Executive Engineer for the period he officiated in that capacity, as evidenced by administrative fiats.
Issues: 1. Whether the DPC was justified in keeping the result of the petitioner's promotion in a sealed envelope during the pendency of disciplinary enquiry. 2. Whether the denial of promotion on the ground of minor punishment amounts to double jeopardy. 3. Whether the denial of promotion violates Articles 14 and 16 of the Constitution of India. 4. Whether the petitioner is entitled to salary and emoluments of the Executive Engineer post for the period he officiated in that capacity.
Ratio Decidendi: 1. The sealed envelope procedure is permissible when a charge memo/charge sheet is issued, and the DPC was justified in keeping the result of the petitioner's promotion in a sealed envelope during the pendency of disciplinary enquiry. 2. Denial of promotion as a result of minor penalty does not amount to double jeopardy as promotion is neither a vested right nor denial of promotion is a punishment. 3. The petitioner cannot claim hostile discrimination since he was not similarly circumstanced with other incumbents who were considered for promotion without any pending disciplinary proceedings. 4. The petitioner is entitled to the salary of Executive Engineer for the period he officiated in that capacity, as evidenced by administrative fiats.
Final Decision: The petition seeking promotion to the post of Executive Engineer is dismissed, but the petitioner is entitled to the salary of Executive Engineer for the period he officiated in that capacity.
JUDGMENT
1. - The petitioner has filed the instant writ petition seeking a relief to issue a direction to open the sealed envelope and to give effect to the recommendation of Departmental Promotion Committee by promoting the petitioner as Executive Engineer against the quota of the year 1987-88 with all consequential benefits. If the said relief is not possible to grant to the petitioner then in alternative the respondents may be directed to pay him salary and other emoluments of the post of Executive Engineer for the period he was made to officiate on the post of Executive Engineer.
2. The aforesaid relief is being sought by the petitioner on the ground inter-alia that only reason for denying the promotion to the petitioner to the post of Executive Engineer despite he being selected by DPC was that a departmental enquiry was pending against him. According to the petitioner that enquiry has come to an end, therefore, this reason does not survive any more, therefore, promotion cannot be denied to the petitioner by resorting to sealed envelope procedure.
3. It is further alleged that the denial of promotion on account of pendency of disciplinary enquiry or imposition of minor punishment amounts to punishing the petitioner twice for his delinquency. According to the petitioner the act of denial of promotion to the petitioner amount double jeopardy once by withholding annual grade increments and second time by withholding his promotion on the post of Executive Engineer.
4. It is also alleged that against Jeneshwar Das Agrawal although an enquiry under Rule 16 of the CCA Rules was pending but yet he was promoted to a higher post. While in the present case against the petitioner initially disciplinary enquiry was pending under Rule 16 of the CCA Rules but later on it was converted into Rule 17 of the said Rules. Therefore, according to the petitioner if department can grant promotion to Jeneshwar Das Agrawal during the pendency of disciplinary enquiry against him under Rule 16 of the CCA Rules whereas in the said enquiry imposition of major penalty was contemplated while in the present proceeding under Rule 17 of the CCA Rules only a minor penalty can be imposed which has actually been imposed by withholding annual graded increment. Lastly, it is stated that since the enquiry has been concluded, the petitioner is entitled to have the sealed envelope opened and the recommendation of DPC is liable to be given effect promoting him for the post of Assistant Engineer to the post of Executive Engineer.
5. In alternative it is also alleged that the petitioner having been made to discharge the duties on the higher post of Executive Engineer vide Anx.1 dated 2.8.1987, vide Anx.2 dated 29.4.1988, vide Anx.3 dated 21.12.1989 and vide Anx.4 dated 29.12.1989 hence he is entitled to be paid the salary and emoluments of the post of Executive Engineer for the period he functioned and discharged the duties of Executive Engineer.
6. After service of notice the respondent Nos.1 and 2 have filed a joint return stating that in view of pending departmental enquiry against the petitioner the result of selection of the petitioner for the year 1987-88 was kept under sealed envelope by DPC so the petitioner was not allowed to work as an Executive Engineer and after the decision of disciplinary enquiry the petitioner was penalised by stoppage of one grade increment without cummulative effect. After imposition of aforesaid minor punishment the DPC has reviewed its earlier order on 9.8.1991 and during the review the DPC found that the petitioner was not suitable for the post of Executive Engineer against promotion quota of the year 1987-88. It is further stated in reply filed on behalf of the respondent Nos.1 and 2 that on the recommendation of DPC the petitioner was promoted for the post of Executive Engineer on seniority-cum-merit basis in the year 1988-89. According to the reply filed to the writ petition the petitioner was promoted on 17.9.1991 on the post of
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