A. L. Haripara vs State of Gujarat

S.G. Shah, J. (Oral)—Heard learned advocates for the respective parties. Perused the record.

The petitioner has been appointed as a constable on 19.8.1996. Thereafter, he came to be promoted as Police Sub Inspector on 5.12.1998 by order dated 24.11.1998. He served the department for more than 35 years and according to him, his services were with utmost honesty and sincerity and that he is due for promotion for post of Police Inspector Class II since long but he had been denied said promotion only on the ground that in past he was awarded with punishment of reduction of pay to the lowest pay in the scale by order dated 31.3.2010. It is undisputed fact that such punishment was without future or cumulative effect and period of punishment was over as back as in November, 2010. However, many juniors to the petitioner have been promoted by the order dated 21.1.2012.

Therefore, initially, petitioner has preferred one Special Civil Application No.4629 of 2012 wherein by judgment and order dated 12.4.2012 passed the following order:

"The competent authority shall consider the present petition as the representation on request made by the petitioner. Having regard to the order of penalty and the period which has already passed since the penalty order by the appellate authority was passed, the competent authority shall take necessary decision, while keeping in focus the recommendations of DPC, as regards the petitioner''s request for promotion. The competent authority shall also convey the decision as regards the petitioner''s claim for promotion to the higher post, after considering the DPC''s recommendations and after considering the submission that the petitioner has already undergone the penalty and the penalty period is over since 2010-2011 and that in the interregnum many juniors have been promoted. Such decision shall be taken by the competent authority as expeditiously as possible and preferably within 10 weeks from the service of certified copy of present order. The petitioner is permitted to serve the certified copy of present order to the competent authority and copy of present petition as a written request. If the decision is against the petitioner, it would be open by the petitioner to take out appropriate proceedings in accordance with law."

Thereby, the respondents are supposed to consider the representation of the petitioner wherein though there is no specific direction, there is observation that the period of punishment of the petitioner is now over. Therefore, respondents were directed to take appropriate decision in accordance with law and it shall be conveyed to the petitioner and it would be open for the petitioner to take appropriate proceeding in accordance with law if such decision is against him.

Pursuant to such direction, the respondents have, by impugned orders / letters dated 3.5.2012 conveyed the petitioner that since the petitioner has been punished by order dated 31.3.2010 and since he is not having requisite proved merit and efficiency, his name has not been added in the list of promotion and, thereby, he is not promoted. Whereas, by letter / order dated 16.5.2012, petitioner was again conveyed the same fact that now considering the punishment of placing the petitioner to the lowest pay in the scale for six months as major punishment his representation for promotion cannot be accepted though punishment has already been over.

Therefore, petitioner has challenged both such orders by filing this petition and prayed as under:

"(A) To admit this petition and to allow the same by issuing notice for final disposal on returnable date;

(B) To quash and set aside the impugned decision / actions of the respondents in denying promotion to the petitioner on the post of police inspector for the reasons stated in the impugned communication dated 3.5.2012 and 16.5.2012 at Annexure-G Colly.

(C) To quash and set aside the illegal action of the respondents in delaying the promotion to the petitioner on the post of Police Inspector, Class II only on the ground of punishment order dated 31.3.2010 awarding punishment of reduction to the lowest basic pay for a period of 6 months without future effect, which period of 6 months is already over in November, 2010;

(D) To direct the respondents to forthwith consider the petitioner for promotion to the post of Police Inspector, Class II and to give him the promotion as Police Inspector, Class II with all the consequential benefits of deemed date and others as if he was granted such promotion along with his juniors by the order dated 21.2.2012 passed by the Respondent as per Annexure-D;

(E) To quash and set aside the impugned order of promotion dated 21.2.2012 as per Annexure ''D'' in so far as and to the extent to which the petitioner is superseded due to promotions granted to his juniors by the said order;

(F) Pending hearing and final disposal of this petition, be pleased to stay further operation of the impugned communication dated 3.5.2012 and 16.5.2012 as per Annexure-G colly and to direct the respondents to forthwith issue the order of promotion to the petitioner as Police Inspector, Class-II, subject to further orders that may be passed in the present petition;

(G) to grant any other appropriate just relief/s."

The petitioner has produced the letter dated 31.3.2010 wherein it is disclosed that petitioner was involved in some misconduct with reference to investigation and outcome of investigation and, therefore, he was awarded the punishment as aforesaid i.e. putting him to the lowest pay in the scale for six months without future effect. Since implementation of such punishment was to be started from the salary of April, 2010 for six months, it was executed and completed by October, 2010. The fact remains that punishment is completed and, therefore, as per settled legal position, there cannot be doubled jeopardy of any such punishment. However, in the present case, as pleaded by the petitioner when he was within the zone of consideration for the promotion to the post of post of Police Inspector in the year 2012 and though he was included in the list of possible candidates to be promoted, he was not promoted for the reasons which are disclosed here-in-above i.e. because of previous punishment and lack of proved merit and efficiency.

Therefore, petitioner has filed representation and he came to know about the reason for non-promotion only pursuant to the direction by this Court in Special Civil Application No.4629 of 2012.

It is quite clear from the relevant rules being the Police Inspector (Unarmed) Class-II, Recruitment Rules, 2008 that there is no negative condition or ban upon any of the candidate who is otherwise entitled to be promoted to exclude him or to deny him promotion because of previous punishment, though Department can consider the overall facts and circumstances at the time of promotion. It is also clear that promotion is based upon proved merit and efficiency from amongst the persons who are eligible to be promoted as provided in Rule 3(A) of the Rules. Therefore, if at all, somebody is excluded from such list or not promoted on any of such ground and thereupon if such non-promoted candidate challenges the process of promotion and, more particularly, when Department concludes that he was not promoted because of lack of proved merit and efficiency, to concludes that whether there is any arbitrariness in action of the Department, it would be necessary for the Court to scrutinize the record from which merit and efficiency has been evaluated. It may be from the Confidential Reports or any other record but certainly it would not include the previous punishment because of some misconduct if such punishment is not much relevant and more particularly, when it is over.

While opposing such petition, the respondent no.2 has filed affidavit in reply contending that pursuant to the decision in Union of India v. A.K. Narula reported in 2007(11) SCC 10, the decision by DPC cannot be questioned upon. However, on the contrary, some judgment make it clear that if there is bias, mala-fides or arbitrariness in the selection by the DPC and if DPC has not proceeded in a fair, impartial and reasonable manner, by applying the same yardsticks and norms to all candidates, then, decision of DPC can be precluded. It is also confirmed that while considering the case of promotion, many aspects related to service viz; professional qualifications, initiative, strength of character and readiness to assume individual responsibility, ability, energy, initiative, integrity etc. are to be taken into consideration and overall performance is to be looked into. It is only thereafter when a person found to be of proved merits and efficiency shall be given promotion. However, except vouching legal and general principle, nowhere in the reply it is disclosed in any manner whatsoever that petitioner is otherwise lacking in proved merits or efficiency though the decision taken to refuse promotion to the petitioner is solely based upon such lack of proved merit and efficiency coupled with previous punishment, probably because above principles have been enumerated in police manual and, therefore, it was reproduced in the affidavit.

It is held by Hon''ble Supreme Court of India in such judgment that department is required to make an overall assessment of performance of each candidate separately, but by adopting the same standards, yardsticks and norms and given guidelines to certain extent amount to play in the joints to the DPC that it need not be guided by the overall granting recorded in the CRs, but may make its own assessment on the basis of the entires in the CRs. Therefore, in absence of positive evidence regarding application of same standards, yardsticks and norms, the action of the respondents can certainly be considered as arbitrary.

It is undisputed fact that punishment to the petitioner was only because of some lacuna in investigation and prosecution in one case under the Bombay Prevention of Gambling Act, 1987. Therefore, petitioner is relying upon the decision in the case of B.M. Rajvanshi v. State of Gujarat, reported in 1997(1) GLH 354 submitting that the criteria beyond the rules cannot be applied for denying promotion and Department has to consider the case for promotion on proved merit and efficiency and not to apply on fitness cum seniority. However, at present there is no question of fitness cum seniority and, therefore, though this judgment is confirming the consideration of candidate for promotion, facts and circumstances of this case is not much material.

With further affidavit in reply, now, respondent has come forward, pursuant to direction of the Court by order dated 13.10.2016, with order of DPC wherein as many as 88 persons were considered for promotion, out of which, promotion is denied to the petitioner though it was confirmed to several juniors to the present petitioner.

It is also relevant to record here that pending this petition by order dated 3.11.2014, in fact, now, petitioner has been promoted to the Post of PSI. If we peruse such order of promotion dated 3.11.2014, it becomes clear that now department has become silent so far as proved merit and efficiency is concerned so also previous punishment awarded to him on which ground he was denied the promotion in the year 2012 and for such act petitioner has preferred this petition challenging such denial of promotion in the year 2012 and seeking direction to consider him as deemed promoted from such date of promotion to Juniors i.e. 21.2.2012. Paragraphs 8 - 11 of the petition is material to be recollected, which reads as under:

"8. The petitioner says and submits that the impugned action of the respondents in denying promotion to the petitioner on the post of Police Inspector, Class-II only on the ground of the order of penalty dated 31.3.2010 having been passed against him and in giving promotions to many juniors of the petitioners is exfacie arbitrary, discriminatory, bad in law, null and void, contrary to law, unreasonable, unjust, without authority of law, without jurisdiction, violative of principles of natural justice, equity, fair play, good conscience, legitimate expectations and even otherwise violative of articles 14, 16, 19 and 21 of the Constitution of India.

The petitioner says and submits that he has a clean track record of highly meritorious service save and except the alleged incident of misconduct as aforesaid in which also, though the petitioner is completely innocent, he has been held guilty. As a matter fact, the petitioner has not committed any such misconduct but his defense has not been held guilty. As a matter fact, the petitioner has not committed any such misconduct but his defense has not been believed and accepted by the department.

Moreover, the finding of misconduct recorded against the petitioner is of ''negligence in duty'' only. As per the settled legal position no punishment can be imposed for the misconduct of negligence nor there is any such provision in the Bombay Police (Punishment & Appeal) Rules, 1956.

Be that as it may, punishment of reduction to the lowest basic pay for a period of 6 months without future effect is already over in November, 2010 and, therefore, there is no justification to deny promotion to the petitioner thereafter. It clearly appears from the impugned communications dated 3.5.2012 and 16.5.2012 at Annexure-G colly. that the DPC and the respondents have not noticed that the said punishment of reduction to the lowest basic pay in the pay scale was only for a period of 6 months and without future effect, and, therefore, it cannot be taken into account at the time of considering the petitioner for promotion after the said period of 6 months is over. The said period of 6 months has already ended in November 2010 and, therefore, from December 2010 onwards the petitioner is definitely entitled to be considered for promotion without taking into account the aforesaid order of penalty dated 31.3.2010. Thus, the impugned action of the DPC and the respondents is suffering from the vice of non-application of mind and from the vice of taking into account the irrelevant considerations and hence liable to be quashed.

It is further respectfully submitted that denying / withholding of promotion itself is a penalty and therefore, if the impugned action of the respondents is not set aside then the petitioner would be made to suffer double punishments for a single misconduct, namely, (1) reduction to the lowest pay in the pay scale for a period of 6 months, and (2) denying / withholding of promotion. Such double jeopardy for the single act of misconduct and single order of punishment is clearly contrary to law, irrational, arbitrary, discriminatory violative of principles of natural justice, equity, fair play and good conscience and even otherwise bad in law and null and void.

The petitioner says and submits that if the petitioner is denied promotion on the ground of the departmental punishment of reduction in pay for 6 months without future effect, even after the petitioner has undergone the said punishment, then it would amount to imposing double punishments for the single misconduct, which is not permissible in law. There is no statutory provision that an employee can be denied promotion even after the period of punishment is already over. Therefore also the impugned action is liable to be quashed as ultra virus and bad in law.

Thereafter, petitioner has pleaded that he has reached the age of superannuation on 30.11.2014 and, therefore, his grievance is not redressed immediately and he would suffer irreparable injury apart from humiliation and embarrassment already suffered by him because his juniors are promoted by order dated 21.2.2012.

Therefore, it is quite clear that denial of benefit of promotion to the petitioner at the relevant time has resulted into his humiliation and his legal rights has been violated and if DPC has not properly considered the prove merit and efficiency of all the eight candidates before it, then such action would certainly result into arbitrariness. Hence, there is reason to interfere with such order and to see that whether petitioner is entitled to reliefs prayed for or not.

Whereas, the learned AGP Mr. Krutik Parikh is mainly relying upon following judgment/s:

[A] Union of India v. K.V. Jankiraman, 1991(4) SCC 109

[B] Public Service Commission v. Arvind Singh Chauhan, 2009(9) SCC 135

[C] Sarva U.P. Gramin Bank v. Manoj Kumar Chak, 2013(6) SCC 287

[D] Unreported order dated 25.1.2016 by coordinate Bench of learned Single Judge of this High Court in Special Civil Application No.2409 of 2000 between Manharlal Jivanlal Shah v. State of Gujarat

However, the sum and substance of all the above referred cases is limited and only to the effect that when departmental proceedings are pending, during the period of consideration of promotion of a particular employee, then, result of DPC should be kept in a sealed cover and promotion would be subject to such result. Whereas, in the case of Sarva U.P. Gramin Bank (Supra), the issue was altogether different, wherein, it is stated that irrespective of pending departmental inquiry, there cannot be exclusion of employee from zone of consideration if otherwise he is eligible for promotion as per his service conditions and in that case, other judgments regarding sealed cover is to be followed. Similarly, in the case of Manharlal Jivanlal Shah (Supra) relying upon such other judgments, it was held that sealed cover containing the recommendations of DPC, pending inquiry, can be opened only in case of exoneration of the employee in departmental inquiry and not otherwise.

However, the factual scenario is quite different in the present case, inasmuch as, at the time of consideration for promotion of all the candidates including present petitioner, no departmental inquiry or any other inquiry whatsoever was pending against the petitioner though in one such departmental inquiry, petitioner was punished before two years and it is undisputed fact that such punishment has come to an end on October, 2010. It is also undisputed fact that such punishment was with specific endorsement that it is without future or cumulative effect, therefore, as soon as such punishment has come to an end because of specific order that punishment is without any future effect, the effect of that punishment has come to an end in October, 2010 and, thereafter, it cannot be considered as negative impact in service conditions or service span of the petitioner except similar or other misconduct, if any committed by the petitioner even after previous punishment and not otherwise.

However, during the submission, the learned AGP has fairly submitted following points;

(1) Pursuant to decisions referred by him which are referred here-in-above, petitioner is not entitled to promotion.

(B) When petitioner has already been retired, now, there is a fresh cause of action for seeking only deemed promotion and monetary benefit for the period from 2012-2014, therefore, this petition has become infructuous and petitioner may approach the Court with relevant pleadings, information and prayer;

(C) If at all petitioner has been considered to be eligible for deemed promotion w.e.f. 21.2.2012, then, it is submitted that since the petitioner has already been promoted by order dated 3.11.2014, the Court may kindly be pleased not to decide the law point and keep it open by considering the facts and circumstances of the present case, as emerging on record and Court may pass appropriate orders.

Cumulative effect of all the three points here-in-above makes it clear that now petitioner has already been promoted by order dated 3.11.2014 and, therefore, the reasons for denying the promotion in the year 2012 does not survive because if those reasons are surviving for all time to come then petitioner would not have been promoted by order dated 3.11.2014. Therefore, irrespective of legal submissions by either side, petitioner is now certainly entitled to all other benefits as if he is promoted on and from 21.2.2012. In view of such position, it would be appropriate to keep the law point open as requested by the State. However, I do not agree with the proposition by the State that in such case, petitioner should file a fresh petition. The reason is quite obvious that petitioner has already prayed all proper reliefs and, therefore, those reliefs are quoted here-in-above which specifically confirms that petitioner has already prayed for deemed promotion and consequential benefits from deemed date and, therefore it would not be appropriate to ask the petitioner to file another petition for such consequential benefits when it is quite clear and obvious that his promotion is certainly needs to be deemed from 21.2.2012 i.e. day on which his Juniors were promoted by humiliating and neglecting the petitioner and putting him in a state of embarrassment by promoting his juniors, though there is no negative evidence against him regarding his proved merit and efficiency.

The petitioner is also relying upon the decision of Hon''ble Supreme Court of India in the case of Lt. Governor, Delhi v. HC Narinder Singh reported in 2004(13) SCC 342 wherein it is made clear that to deny promotion based on the same cause of action would amount to double jeopardy and, therefore, confirming at the decision of the Tribunal was right in law in annulling such action, dismissing the appeal by the Department. The factual details of such case was almost similar when the constable against whom disciplinary action was initiated against him in the year 1990 for dereliction of duty in the imposition of penalty of reduction of pay by one stage without cumulative effect and though the appeal against such order was dismissed, Hon''ble Supreme Court has confirmed that thereafter in the year 1992 when Department has not considered him for promotion then such action of the Department is not proper and valid.

In view of above facts and circumstances, petition is allowed. Thereby, now petitioner is to be considered as deemed promoted w.e.f. 21.2.2012 and he shall be placed in seniority list according to his seniority in the parent cadre and he shall be paid arrears of salary and other consequential benefits from deemed date as if he was granted such promotion along-with his juniors by order dated 21.2.2012. To that extent, the impugned order not including the petitioner in the order of promotion dated 21.2.2012 is modified. It is made clear that question of law is kept open as requested by the learned Assistant Government Pleader.

Rule is made absolute to the aforesaid extent. Direct Service is permitted.