IMPORTANT POINT
The main legal point established is that the sealed cover procedure for promotional scale eligibility should be based on the petitioner's status at the time of the DPC meeting, and pending charges or a criminal case alone do not justify denial of the scale.

JUDGMENT :

Ajay Mohan Goel, J.

By way of this petition, the petitioner has, inter alia, prayed for the following reliefs:

“(i) A Writ in the nature of writ of certiorari, quashing Annexure P17 dated 13th July, 2012 being contrary to law, consequently holding the petitioner entitled for grant of second time bound promotional scale w.e.f. 28th July, 2005.

(ii) That a writ in the nature of writ of mandamus directing the respondent to pay the interest on the increments, which were due and payable to the petitioner w.e.f. the year, 2007 onwards, which were paid in the year, 2010.

(iii) That the petitioner be granted all consequential benefits along with interest @ 12% per annum from the due date, holding the petitioner entitled for giving fresh option for new pay scales.”

2. Brief facts necessary for the adjudication of present petition are that the petitioner was appointed as an Assistant Engineer with the respondent-Board on 28.07.1989. In terms of the Policy in vogue in the respondent-Board, qua which there is no dispute, an incumbent who had served the Department against a post without any promotion, was entitled to time bound promotional scale after completion of nine years of service and second time bound promotional scale after completion of sixteen years of service on the post concerned. As the petitioner stagnated against the post of Assistant Engineer after his appointment, accordingly on 28.07.2005, on completion of sixteen years of service, he became eligible for the grant of second time bound promotional scale.

3. The petitioner felt aggrieved when other persons similarly situated as the petitioner were granted the second time bound promotional scale w.e.f. 24.07.2005, but he was ignored. He made a representation in this regard, which was rejected vide Annexure P17, i.e. order dated 13.07.2012, on the ground that he was not absolved of the charges levelled against him, which amounted to violation of the Conduct Rules and further as the petitioner was held guilty and penalised in the departmental proceedings and a criminal case charge sheet was pending against him for his actions prior to July, 2005, therefore, he was not entitled for the grant of second time bound promotional scale.

4. Learned Senior Counsel for the petitioner has argued that the denial of second time bound promotional scale to the petitioner is completely arbitrary and discriminatory, for the reason that as on the date when the Departmental Promotion Committee (DPC) was met for considering the names of the eligible candidates for conferment of second time bound promotional scale, the petitioner was not suffering from any of the ineligibilities, on account of which, sealed cover procedure could have been adopted.

5. Learned Senior Counsel has drawn the attention of the Court to Annexure P9, which is communication dated 14.02.2000, addressed by the Secretary of the respondent-Board to all the Chief Engineers on the subject “Vigilance Clearance Certificate in respect of Gazetted/ non-Gazetted Officers/officials of the Board for the purpose of Promotion/Confirmation” and submitted that in terms of said communication, the instructions issued by the Department of Personnel, to the Government of Himachal Pradesh, were adopted in verbatim by the respondent-Board and a sealed cover procedure could have been followed only on account of existence of either of the three eventualities, i.e. (i) the Government servant is under suspension; (ii) the Government servant to whom a chargesheet has been issued and disciplinary proceedings are pending against him; and (iii) the Government servant in respect of whom prosecution for criminal charge is pending in a Court, which incidentally were not existing in the case of the petitioner. Accordingly, he has prayed that the present petition be allowed and the respondents be directed to grant the second time bound promotional scale to the petitioner w.e.f. 28.07.2005 after quashing Annexure P17.

6. The petition has been opposed