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IN THE HIGH COURT OF ALLAHABAD
Rajesh Singh Chauhan, J.
Mrityunjai Kumar – Petitioner
Versus
State of U.P.Thru.Prin.Secy. Namami Gange Evam Gramin & Ors. – Respondents
Service Single No. - 4132 of 2021
Decided On : 06-09-2021
Constitution of India,1950 - Article 16 - Service Rules ,1999 - Rule 7 - Quashing of Order - Making promotion of petitioner on post of Superintending Engineer - Issue a writ order or direction in nature of Certiorari to quash impugned orders passed by the opposite party contained as annexure no to this writ petition - Issue a writ order or direction in nature of Mandamus commanding respondents to open seal cover and promote petitioner on the post of Superintendent Engineer in view of recommendation of Departmental Promotion Committee convened on from date other incumbents were considered and promoted in pursuance to recommendation of Departmental Promotion Committee held with all consequential benefits - Issue a writ order or direction in nature of Mandamus commanding respondents not to make any promotion on post of Chief Engineer until he petitioner is promoted on post of Superintendent Engineer in view of recommendation of Departmental Promotion Committee convened - Whether sealed cover is required to be opened or not
Finding of the Court : Court has not decided merits of claim of petitioner - All points are open for consideration at competent level in accordance with rules/law - Court of considered opinion that DPC can consider only such material which was available before it on or before date of DPC - No adverse material of any kind whatsoever can be considered which came into notice before competent authority or before DPC after meeting of DPC - In present case foundation and basis of impugned order dated is that one departmental enquiry was pending against petitioner under Rule 7 of Rules, 1999 therefore in view of para-11 of Government Order issue of petitioner should be kept under sealed cover until such departmental enquiry concludes - Appellant was denied promotion in selection which took place in 1995 when, according to him, his junior was promoted - According to appellant adverse entries in his annual confidential reports of 1985-86 and 1986-87 could not have been taken into consideration in view of fact that appellant was subsequently allowed to cross the efficiency bar since vide an order - In Court view this contention of appellant is correct and adverse entries in 1985-86 and 1986-87 cannot come in way of appellant for further promotion once he was allowed to cross efficiency bar on - That after expungtion of adverse material employee would be entitled for benefits date when it was due to him - Admittedly, in present case issue of petitioner was kept under sealed cover for reason he was awarded adverse entry vide order and after setting aside order which was adverse material before DPC held petitioner was legally entitled for promotion as per recommendation of DPC
Result : Writ petition allowed
JUDGMENT :
1. Heard Sri Mahendra Pratap Singh, learned counsel for the petitioner and Sri Vinod Kumar Shukla, learned Standing Counsel for the State-respondents.
2. Rejoinder affidavit sent by the Registry is taken on record.
3. By means of this petition, the petitioner has prayed following reliefs:-
ii. issue a writ, order or direction in the nature of Mandamus commanding the respondents to open seal cover and promote the petitioner on the post of Superintendent Engineer in view of recommendation of Departmental Promotion Committee convened on 19-07-2018 from the date other incumbents were considered and promoted in pursuance to recommendation of Departmental Promotion Committee held on 19-07-2018, with all consequential benefits.
iii. issue a writ, order or direction in the nature of Mandamus commanding respondents not to make any promotion on the post of Chief Engineer until the petitioner is promoted on the post of Superintendent Engineer in view of recommendation of Departmental Promotion Committee convened on 19-07-2018."
4. The precise contention of learned counsel for the petitioner is that for making promotion of the petitioner on the post of Superintending Engineer his issue was kept under sealed cover by the Departmental Promotion Committee (hereinafter referred to as "DPC") dated 19.7.2018. However, no decision was taken by the date of review DPC i.e. 11.7.2019. The reason to keep the promotion of the petitioner under sealed cover was that the petitioner was awarded adverse entry vide order dated 12.12.2018, however, the said punishment was not prescribed under the Service Rules. Therefore, the petitioner challenged the order dated 12.12.2018 before this Court by filing Writ Petition 34856 (S/S) of 2019; Mrityunjai Kumar Vs. State of U.P. and others, placing reliance upon the dictum of the Hon'ble Apex Court in re; Vijay Singh Vs. State of U.P. and others, (2012) 5 SCC 242, wherein the Apex Court has held that the employee may not be awarded any punishment which is not prescribed under the Rules. On the basis of aforesaid dictum of the Hon'ble Apex Court, this Court vide judgment and order dated 7.1.2020 set aside the order dated 12.12.2018 directing the opposite parties to make promotion of the petitioner on the post of Superintending Engineer in the Minor Irrigation Department ignoring such punishment order dated 12.12.2018.
5. On 9.1.2020, the Government has passed an order expunging such special adverse entry from the service record of the petitioner awarding him "Utkrishth" entry for the period in question. However, the petitioner was not given promotion pursuant to the order dated 7.1.2020. Vide order dated 5.6.2020, claim of the petitioner for promotion on the post of Superintending Engineer has been turned down on the basis of pending departmental enquiry initiated on 24.1.2020.
6. Learned counsel for the petitioner has submitted that since the aforesaid departmental enquiry may not be treated as bar promoting the petitioner on the post of Superintending Engineer inasmuch as per trite law, only such material can be considered which was existing at the time of DPC and admittedly, when the DPC in question has met on 19.7.2018, no such material was available with the Department. Therefore, the petitioner filed another writ petition bearing Service Single No.8490 of 2020; Mrityunjai Kumar Vs. State of U.P., and the said writ petition was decided finally vide judgment and order dated 10.6.2020 directing the opposite parties to take fresh decision in the issue of the petitioner. Operative portion of the judgment and order dated 10.6.2020 is being reproduced herein below:-
Point of Law : Employee may not be awarded any punishment which is not prescribed under the Rules
The 'sealed cover procedure' and relevant Supreme Court judgments establish that an employee acquitted in a criminal case is entitled to promotion and benefits from the date of promotion as if no pro....
The mere pendency of a criminal case does not justify withholding promotion without formal charges, violating principles of natural justice and discrimination.
Service Law - Non- implementation of order of promotion - Appointments of officers are subject to DAR/Vigilance/ Criminal case clearance by Railways - Officers should be advised that above officiatin....
Selection Committees must not use sealed cover procedures for promotion unless formal charges are framed against an employee, preserving rights to promotion.
Pending departmental inquiries necessitate sealed cover procedures for promotion during DPC considerations, prohibiting implementation of recommendations until exoneration occurs.
The sealed cover procedure for considering promotions applies when departmental proceedings are initiated by issuance of charge-memo/charge-sheet.
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