2005 Supreme(HP) 437

High Court Of Himachal Pradesh
K.C.SOOD
R.K.MITTAL - Appellant
Versus
STATE OF H.P. - Respondent
Civil Writ Petition No. 897 of 2003
Decided On : 12/13/2005

Headnote:(i) Principles and Procedure to be followed in making selection for promotion to the Himachal Pradesh Higher Judicial Service, Constitution of India, Articles 226/227 - Writ - Promotion Ignoring from - Reasons for - The petitioner ignored for promotion to Higher judicial Service - Held, that it is necessary that reasons are given for an action which has civil consequences where there is a right of judicial review to enable a court in a judicial revision to judge the validity of such an action Any action, with civil consequences, in the absence of reasons would be stultified - No reason are recorded why the petitioner was not found fit and suitable for promotion - Petition allowed. (Paras 55, 60 & 67)

       (ii) Central Civil Service (Classification and Appeal) Rules, 1965 - Stop age of increment - One year without commulative effect - Effect in subsequent ACRs - The petitioners one increment without competitive effect for the 1998 remarks recoded in the ACR for 2003 effect of - Held, that penalty always relates back to the period when the alleged misconduct was committed or in any case when such misconduct was detected Withholding of one increment as penalty would relate back to the year 1998-99 and even on the face of penalty, the petitioner could not be said to be unsuitable or unfit for promotion in the year, 2003 as the penalty was for a limited period of one year - Would not come in the way of his promotion in accordance with the Rules - Petition allowed. (Para 51 & 67)

       (iii) Central Civil Service (Conduct) Rules, 1964, Rule 3(i)(ii) Misconduct - Violation of leave Rules - Undertaking of journey by an alleged longer route - Held, that the petitioner took the time in completing the journey as could have been taken by him had the journey was under taken by him via the shortest route - Thus this charge against the petitioner cannot. be said to be misconduct so as to warrant either disciplinary proceedings or penalty - Petition allowed. (Paras 36, 37, 38 & 67)

       (iv) Head of the Office and Drawing and Disbursing office - Powers - Travelling allowance and daily allowance - Journey by longer route - Held, that the petitioner did not claim any T.A. or D.A. for the journey under deem by him by slightly longer route - No question of either having misused his power as head of the office and drawing and disbursing officer - There is no violation of the leave rule or any other Rules - Petition allowed. (paras 23, 24, 65 & 67)

       (v) Civil Service (Conduct) Rules, 1964, Rule 3(1)(i) and (ii) - Integrity and devotion to duty -Maintenance of - Petitioner charged for having not maintained absolute integrity and devotion to duty by undertaking outward and inward journey by taking slightly longer route. Held, that the performance of journey by the petitioner both outward and inward journey in meaning of Rule 3(1)(i) and (ii) cannot be either lacking in integrity or devotion to duty by the petitioner - Petition allowed. (Para 41, 42 & 67)

       (vi) Annual Confidential Reports - Writing of remarks in the ACR - Pending complaints - Promotion - Considering as unfit or unsuitable - Held, that merely because complaints are pendency against an officer who is under consideration for promotion will not make him unfit and unsuitable for promotion - Remarks conveyed against column No.7, 10, 18 to the petitioner are quashed - Petition allowed. (Para 46 & 67)

       (vii)Annual Confidential Reports - Relates to the period of misconduct - Promotion - Held, that petitioner could not have been found unfit or unsuitable when he tell within the zone of consideration in the year 2003 particularly so when the minor penalty of withholding of one increment for that year though imposed in the year 2002 pertaining to the year 1998-99 is liable to be excluded in view of the fact that penalty always relates back to the period when alleged misconduct was committed or in any case when such misconduct was detected - The petitioner could not be said to be unsuitable or unfit for promotion in the year 2003 - Petition allowed. (Para 51 & 67)

       (viii) Constitution of India, Articles 226/227 & 32 - Judicial review - Recording of reasons - Necessity of - Held, that every action of an authority which, has civil consequences must be informed by reasons - The logic is that every action with civil consequences is subject to review under Articles 226 & 32 of the Constitution of India - It is therefore necessary that reasons are given for an action which has civil consequences where there is a right of judicial review to enable a court in a judicial review, to judge the validity of such action - No reasons are recorded for ignoring of the petitioner of promotion Constitutional requirements not fulfilled - Appeal allowed. (Para 51 & 67)

       

       (ix) Words & Phrases - Misconduct - Means: (i) Misconduct is defined as "a transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behaviour, willful in character, improper or wrong behaviour, its synonyms are misdemeanor, misdeal, misbehaviour, delinquency, improperly mismanagement, offence, but not negligence or carelessness - Blacks Law Dictionary (Sixth Edition 1). (Para 38)

       (ii) Every omission or commission does not amount to misconduct - Misconduct as defined in Strouds Judicial Dictionary, would mean misconduct arising from ill-motive, acts of negligence, errors of judgment or innocent mistake do not constitute such misconduct. (Case of Deputy Inspector General (CISF) v. Shib Kumar Ray relied upon). (Para 57)