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2011 Supreme(MP) 218
2011 jk fu 402 2011 RN 402
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S.K. Gangele and Brij Kishore Dubey, JJ.
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Vijay Prakash Saxena
v.
State of M.P. and others
fjV vihy dzekad 515 lu~ 2009 ¼Xokfy;j½( fu.khZr fnukad 14-3-2011A
Writ Appeal No. 515 of 2009 (Gwalior)
Decided on: 14.3.2011
iz‘kkUr ‘kekZ vihykFkhZ dh vksj ls( foosd [ksM+dj] ljdkjh vf/koDrk] jkT;@izR;FkhZ dz- 1 rFkk 2 dh vksj ls( foosd tSu izR;FkhZ dz- 3 rFkk 4 dh vksj lsA
Advocate Appeared:
Prashant Sharma for appellant,
Vivek Khedkar, Govt. Advocate for State/respondents No.1 and 2,
Vivek Jain for respondents No.3 and 4.
Headnote:¼1½ ftyk lgdkjh dsUnzh; cSad deZpkjh lsok ¼fu;kstu] fuca/ku rFkk mudh dk;ZfLFkfr½ fu;e] 1982 ¼e-iz-½ && fu- 22] 57 ¼nks½ ¼[k½] 60 ¼nks½ rFkk 65 && deZpkjh inksUufr ds fy, ;ksX; ik;k x;k fdUrq inksUur ugha fd;k x;k && ;fn deZpkjh ds fo:) dk;Zokfg;k¡ yafcr && can fyQkQk dh izfdz;k viukbZ tkuk pkfg, tSlk fd LVkQ mi lfefr us vuq‘kaflr fd;k Fkk && ,slh izfdz;k ugha viukbZ xbZ && ,d osru o`f) jksdus dk naM vikLr && deZpkjh leLr Qk;nksa ds lkFk inksUufr dk gdnkj gSaA ¼iSjk 8] 9 rFkk 12½
¼2½ Hkkjr dk lafo/kku && vuq- 226 rFkk 227 && O;kfIr && lkjoku~ vU;k; && vihy dk vuqdYih mipkj && ,sls vuqdYih mipkj ds vk/kkj ij ;kfpdk [kkfjt ugha dh tk ldrhA ¼2003½ 2 ,l-lh-lh- 107 vuqlfjrA ¼iSjk 10 ls 13½
¼3½ mPp U;k;ky; ¼[kaM U;k;ihB dks vihy½ vf/kfu;e] 2005 ¼e-iz-½ && /kkjk 2 ¼1½ && ‘kfDr;ksa dh O;kfIr && vihykFkhZ@;kph dks vU;k; dkfjr && ;kph }kjk izLrqr ;kfpdk vuqdYih mipkj ds vk/kkj ij [kkfjt dh xbZ && vuqdYih mipkj dh miyC/krk mRizs"k.k fjV ds fy, otZu ugha && fjV vihy rFkk fjV ;kfpdk eatwj dh xbZA ¼2003½ 2 ,l-lh-lh- 107 vuqlfjrA ¼iSjk 10 ls 13½
(1) Zila Sahakari Kendriya Bank Karamchari Sewa (Niyojan, Nibandhan and Unki Karyasthiti) Niyam, 1982 (M.P.) -- Rr. 22, 57 (ii) (B), 60 (ii) and 65 -- employee found fit for promotion but not promoted -- if any proceedings pending against employee -- sealed cover procedure should be adopted as recommended by Staff Sub Committee -- such procedure not adopted -- punishment of withholding one increment quashed -- employee is entitled for promotion with all benefits. [Paras 8, 9 and 10
(2) Constitution of India -- Arts. 226 and 227 -- scope of -- substantial injustice -- alternative remedy of appeal -- petition cannot be dismissed on ground of such alternative remedy. (2003) 2 SCC 107 followed. [Paras 10 to 13
(3) Uchcha Nyayalaya (khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 (M.P.) -- S. 2 (1) -- scope of powers -- injustice caused to appellant/petitioner -- petition filed by petitioner dismissed on ground of alternative remedy -- availability of alternative remedy is no bar for writ of certiorari -- writ appeal and writ petition allowed. (2003) 2 SCC 107 followed. [Paras 10 to 13
Heard
1. Appellant has filed this appeal against the order dated 3.11.2009 passed by the learned Single Judge of this Court in Writ Petition No. 2717/08.
2. The appellant-petitioner filed a petition in regard to his promotion w.e.f. 05.09.1998 along with arrears of salary. The appellant-petitioner was appointed to the post of Clerk vide order dated 11.8.1975. He was promoted to the post of Assistant Accountant/Senior Cashier in the pay scale of Rs. 1050-1800 vide order dated 27.3.90. A meeting of the Staff Sub Committee was held on 4.9.1998 in the Chairmanship of President of the Bank, in regard to consideration of cases of employees of the Bank for their promotion. It was decided in the meeting that in the cases of those employees against whom a departmental enquiry is pending or contemplated the procedure of sealed cover be adopted. The Departmental Promotion Committee considered the case of appellant-petitioner for promotion to the post of Manager and he was found fit for promotion, however, against the name of appellant-petitioner a remark was made that a departmental enquiry for decision was pending. No sealed cover procedure was adopted in the case of the petitioner.
3. The appellant-petitioner filed a copy of the note-sheet as Annexure P5. As per the aforesaid note-sheet an enquiry report was forwarded on 1.11.94/1.12.94 and it was pending since 1994 and thereafter it was decided to drop the enquiry. The appellant-petitioner further filed an order dated 27.7.2006, Annexure P-6 passed by the Chief Executive Officer of the Bank. It has been mentioned in the aforesaid order that a show cause notice was issued against the appellant-petitioner on 11.9.1993 with regard to dismissal from service, however, considering the fact of the case a punishment of imposition of stoppage of one increment with cumulative effect was imposed against the appellant petitioner.
4. Against the aforesaid order the appellant-petitioner raised a dispute before the Joint Registrar, Cooperative Societies, Gwalior under section 55(2) of the M.P. Cooperative Societies Act, 1960. The case was registered as Case No. 55 (2) 139/2006. The Joint Registrar vide order dated 12.11.2007 set aside the order of punishment dated 9.9.2006 and thereafter the increment was released to the petitioner vide order dated 3.3.2008, Annexure P-8. The petitioner was also transferred from Gwalior Branch to another Branch of the Bank of Datia. He challenged the aforesaid order of transfer in Writ Petition No. 417/2003. The learned Single Judge of this Court vide order dated 26.6.2006 allowed the writ petition and quashed the order of transfer.
5. On the basis of the aforesaid pleading the appellant prayed before the writ Court that he was entitled to get promotion as per the recommendations and decision of the Staff Sub Committee in its meeting held on 4.9.1998.
6. Respondent-Bank filed an application for dismissing the petition. It has been mentioned by the respondent-Bank in the aforesaid application that the appellant-petitioner has a remedy to file dispute under section 55 (2) of the M.P. Cooperative Societies Act, hence, the petition is not maintainable. It has further been contended by the respondent-Bank that the departmental enquiry was pending against the appellant-petitioner, hence, the appellant-petitioner was not entitled for promotion. It has further been contended that the appellant petitioner has already raised a dispute before the Joint Registrar, hence, the petition is not maintainable.
7. The learned Single Judge of this Court dismissed the writ petition filed by the appellant-petitioner vide impugned order on the ground that the appellant-petitioner has remedy under section 55 (2) of the M.P. Cooperative Societies Act, 1960.
8. From the facts of the case, it is clear that the case of the appellant petitioner was considered by the Staff Sub Committee for promotion in its meeting held on 4.9.1998 and the appellant-petitioner was found fit for promotion. However,
