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PATNA HIGH COURT
Sanjeev Prakash Sharma, J
Abhay Singh – Appellant
Versus
The State – Respondent
CWJC/4597/2022
PROMOTION - SUSPENSION - RIGHT TO CONSIDERATION
Fact of the Case:
The petitioner, a teacher, was not considered for promotion to the post of Headmaster due to the pendency of suspension/departmental proceedings against him. After being reinstated and exonerated in the departmental inquiry, the petitioner filed a writ petition challenging the decision of the District Primary Teachers Promotion Committee.
Finding of the Court:
The court held that the petitioner's right to consideration for promotion could not be taken away merely because he was under suspension. The court further held that the petitioner's case should have been reviewed by the Departmental Promotion Committee and considered afresh from the date his junior was promoted.
Issues: Whether the petitioner's right to consideration for promotion could be taken away merely because he was under suspension.
Ratio Decidendi: The court relied on the Supreme Court judgment in Union of India and others Vs. K.V. Jankiraman and Others, which held that a right of consideration for promotion exists with an employee, even if he is under suspension or a departmental inquiry is pending. The court held that the petitioner's case should have been considered in a sealed cover and kept pending until the departmental inquiry was completed.
Final Decision: The court allowed the writ petition and directed the respondents to convene a review D.P.C. to consider the petitioner's case for promotion from the date his juniors were promoted.
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.4597 of 2022
======================================================
Abhay Singh Son of Late Ram Nath Singh, resident of At- Bhadra Kali Nagar,
Janakpur, Anchal- Manpur, P.O. - Buniyadganj, P.S. Manpur (Muffasil),
District - Gaya.
... ... Petitioner/s
Versus
1.
The State of Bihar through the Principal Secretary, Education Department,
Bihar, Patna.
2.
The Director, Primary Education, Govt. of Bihar, Patna.
3.
The Regional Deputy Director of Education, Magadh Division, Gaya.
4.
The District Magistrate, Gaya.
5.
The District Education Officer, Gaya.
6.
The District Programme Officer (Establishment), Gaya.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s
:
Mr. Alok Kumar, Adv.
Mr. Pranav Kumar, Adv.
For the Respondent/s
:
Ms. Namrata Singh, AC to GA 12
======================================================
CORAM: HONOURABLE MR. JUSTICE SANJEEV PRAKASH
SHARMA
ORAL ORDER
4
11-01-2023
1. The petitioner has preferred this writ petition for
quashing and setting aside the decision of the District Primary
Teachers Promotion Committee dated 28.12.2016 whereby,
decided not to consider the case of the petitioner for promotion
on the post of Headmaster on account of pendency of
suspension/departmental proceedings against him.
2. Learned counsel for the petitioner submits that the
petitioner’s case ought to have been considered and his right of
consideration cannot be taken away merely because he is under
suspension.
Patna High Court CWJC No.4597 of 2022(4) dt.11-01-2023
2/7
3. Learned counsel for the petitioner has further
pointed out that the petitioner was reinstated and exonerated in
the departmental inquiry vide order dated 26.05.2018.
4. Keeping in view thereto, learned counsel for the
petitioner submits that his case was required to be reviewed by
the Departmental Promotion Committee and considered afresh
from the date his junior has been promoted.
5. Per contra, learned counsel appearing for the State
submits that the action of not considering the case of petitioner
while he was under suspension is in accordance with law and
after the petitioner was exonerated of the charges his case would
again be considered. However, on account of there being an
embargo laid down by the General Administrative Department
of not making promotions vide their memorandum dated
11.04.2019. The Department Promotion Committee cannot be
convened. It is stated that as soon as the said embargo is lifted ,
the petitioner’s case shall be considered for promotion.
6. I have considered the submission.
7. In Union of India and others Vs. K.V. Jankiraman
and Others, as reported in (1991) 4 Supreme Court Cases
109, the Apex Court has considered the aspects where a person
who is in clause that is whether he is under suspension or when
Patna High Court CWJC No.4597 of 2022(4) dt.11-01-2023
3/7
there is a departmental enquiry proceedings is pending, how his
case is to be considered. Several different examples have been
considered by the Apex Court and it has been held that a right of
consideration for promotion exits with an employee, if he is
under suspension or a departmental inquiry pending his case has
to be considered but shall be kept in sealed cover which would
be opened subject to the decision of the departmental inquiry.
8. It would be apposite to quote the relevant para of the
Appex Court Judgment as under:
“16. On the first question, viz., as to
when for the purposes of the sealed cover
procedure
the
disciplinary/criminal
proceedings can be said to have commenced,
the Full Bench of the Tribunal has held that
it is only when a charge-memo in a
disciplinary proceedings or a charge-sheet
in a criminal prosecution is issued to the
employee that it can be said that the
departmental
proceedings/criminal
prosecution is initiated agai
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