Akhouri Dhananjay Kumar Sinha vs State of Jharkhand

Pramath Patnaik, J.:

In the captioned writ application, the petitioner has inter alia prayed for quashing memo dated 07.06.2013 (Annexure-11), whereby the claim of the

petitioner for grant of Ad-hoc promotion to the post of Superintendent of Excise and thereafter Assistant Commissioner of Excise, has been rejected

and further prayer has been made for direction upon the respondents not to give effect to the order dated 07.06.2013 and also for quashing letter dated

03.11.2015 (Annexure-12), whereby the claim of the petitioner for promotion has been rejected.

The brief facts, as delineated in the writ application, is that petitioner was appointed on 13.03.1989 as an Excise Inspector and thereafter in the year

1999, the petitioner was made In-charge Excise Superintendent and since then he is continuing on that post. It has further been averred that in the

provisional seniority list dated 11.12.2007 the name of the petitioner was placed at serial no. 5, but the person junior to him has been promoted vide

notification dated 02.12.2008. It has further been averred that in the meeting of ‘Departmental Promotion Committee’ held on 27.07.2010, the

case of the petitioner was considered and the committee decided to adopt sealed cover procedure as Vigilance Case No. 34 of 2003 was pending

against the petitioner. It has further been averred that again the meeting of ‘Departmental Promotion Committee’ was held on 30.07.2012, after

lapse of two years but sealed cover was not opened and during that period several persons junior to the petitioner have been promoted vide notification

dated 29.06.2011 to the post of Excise Superintendent. It has further been averred that vide notification dated 06.12.2012 further promotion to the post

of Assistant Commissioner of Excise was given to the persons junior to the petitioner and the petitioner was left out. Aggrieved thereof, the petitioner

knocked the door of this Court by filing W.P. (S) No. 5257 of 2012, which was disposed of vide order dated 5.11.2012 with the consent of parties, as

the case of the petitioner was squarely covered by the judgments delivered in W.P. (S) No. 4971 of 2007 and W.P. (S) No. 4689 of 2007. But, even

after that no formal order of promotion was passed in favour of petitioner, hence the petitioner left with efficacious, alternative remedy approached

this Court for the redressal of his grievances.Â

Heard Mr. Saurav Arun, learned counsel for the petitioner and Mr. Atanu Banerjee, learned G.A being assisted by Mr. Kaustav Panda, Associate

Counsel to learned G.A for the respondents.

Learned counsel for the petitioner submitted with vehemence that though in the meeting of ‘DPC’ dated 27.07.2010, the authoritiesÂ

adopted the sealed cover procedure after taking into consideration the resolution dated 20.11.2008 but did not follow the provision of opening of sealed

cover after lapse of two years, as per resolution dated 20.11.2008. It has further been submitted that on the one hand the respondent considering the

legal aspect of the matter adopted sealed cover procedure but on the other violated the proviso as contained in resolution dated 20.11.2008, which

provides opening of sealed cover after lapse of two years. It has further been submitted that after passing of order dated 5.11.2012 in W.P. (S) No.

5257 of 2012, the respondentsauthorities passed order dated 7.06.2013 without considering resolution dated 20.11.2008 and further in the impugned

order there is no whisper to the effect that the charges are so grave that he should not be given promotion and no reason has been assigned whether

in future the criminal case pending against the petitioner shall be concluded or not. In support of his submission, learned counsel for the petitioner

referred to the decision rendered in the case of State of Jharkhand & Ors Vs. Vinod Mani Diwakar & Ors as reported in 2010(2) JLJR 89 and also

order dated 09.08.2017 passed in W.P. (S) No. 3472 of 2011.

As against this, learned counsel for the respondents submitted that Vigilance Case No. 34 of 2003 dated 24.11.2003 was lodged against the

petitioner, in which, charge-sheet has also been submitted on 20.01.2004 and said case is still pending. In the case at hand, since criminal proceeding is

pending against the petitioner, in such eventuality the respondents-authorities have rightfully adopted sealed cover procedure. It has further been

submitted that no employee has right to promotion rather has right to be considered for promotion, which depends upon several circumstances. The

respondents-authorities have rightfully considered the case of the petitioner and adopted sealed cover procedure as enunciated by Hon’ble Apex

Court in the case of Union of India Vs. K.V. Jankiraman & Ors as reported in (1991) 4 SCC 109. Hence, there is no illegality in the impugned order

passed by the respondents-authorities and it needs no interference by this Court.

Having heard learned counsel for the parties at length and on perusal of the documents available on record, I am of the considered view that the

petitioner has been able to make out a case for interference for the following facts and reasons:

(i).From the pleadings available on record, it appears that in the meeting dated 27.07.2010 of ‘Departmental Promotion Committee’ held for

promotion to the post of Excise Superintendent from Excise Inspector, the case of the petitioner was considered along with others, but due to

pendency of Vigilance Case No. 34 of 2003 dated 24.11.2003, the respondents-authorities decided to adopt sealed cover procedure against the

petitioner. From perusal of record, it further appears that after completion of two years of meeting offirst DPC, another DPC was held in the year

2012 but the sealed cover was not opened and later on also meeting of DPC was held but the respondents in a very casual manner, even after passing

of order dated 5.11.2012 in W.P. (S) No. 5257 of 2012 the respondents did not act in consonance with the order or with the spirit of said resolution

rather they took it in a very casual manner and passed the impugned order without considering resolution dated 20.11.2008.

(ii).For better appreciation, the relevant clause 5 of resolution dated 20.11.2008 is reproduced herein below:

 “5. dk;Zokgh fu""iknu es a foyEc dh fLFkfr eas rnFkZ izksUufr dh laHkkouk%&mi;ZqDr dafMdk&4 eas mfYyf[kr Nekgh leh{kk fd;s tkus ds

ckotwn] dqN ,sl s ekeys Hkh gks ldrs gSa] ftueas igyh foHkkxh; izksUufr lfefr] ftlus ljdkjh lsod ds lac/ak eas vius fu""d""kkaZs dks eqgjcan fyQkQs eas

j[kk Fkk] dh cSBd dh frfFk ls nks lky ckn Hkh ljdkjh lsod ds fo:) vuqâ€kklfud â€klfud ekeys@vkijkf/kd vfHk;kst u lca a/kh ekeykas eas vafre :i ugha

fn;k tk ldk gSA ,slsh ifjfLFkfr esa fu;qfDr vf/kdkjh ,slss ljdkjh lsod ds ekeys dh leh{kk djsAa vxj og ljdkjh lsod fuyEcuk/khu u gks] rk s fuEukfadr

igyqvksa dks /;ku es a j[krs gq, mls rnFkZ izksUufr fn;s tkus dh laHkkouk ij fopkj fd;k tk;%&

  ¼d½ D;k ljdkjh lsod dh izksUUkfr yksd fgr ds fo:) gkxs h\

  ¼[k½ D;k vkjksi brus xHakhj gS fd mls izksUufr ls oafpr j[ks jguk t:jh gS\

  ¼x½ D;k fudV Hkfo""; es a bl ekeys ds iwjk gksus dh laHkkouk gS\

  ¼?k½ D;k fdlh foHkkxh; vFkok fdlh vkijkf/kd dk;Zokgh dks vafre :i fn;s tkus eas gksuss okys foyEc eas lh/ks rkSj ij vFkok ijks{k :i eas

lacaf/kr lsod dk dksbZ gkFk gS\

 ¼Må½ D;k ,slh dksbZ laHkkouk gS fd lacaf/kr lsod rnFkZ izksUufr ds ckn izkIr gqbZ viuh ljdkjh gSfl;r dk nq:i;kxs dj ldrk gS vkSj ftlds

ifj.kkeLo:i foHkkxh; ekeys@vkijkf/kd dk;oZkgh ls lacaf/kr dkjZokbZ ij dksbZ izfrdwy izHkko iM+ ldrk gS\

  fu;qfDr izkf/kdkj ;fn mfpr le>s rk s dkj.kkas dk s fyf[kr :i ls n’kkZr s gq, ykds k;qDr ds dk;kZy;] fuxjkuh foHkkx vFkok dsUnzh; vUos""k.k

C;wjk]s ftuds izfrosnu ds vk/kkj ij vuq’kklfud dkjZokbZ@vkijkf/kd vfHk;kstu izkjEHk gqvk Fkk] ls ijke’kZ fy;k tk ldrk gSA fdUrq fu;qfDr

izkf/kdkj bl ladYi eas mfYyf[kr funs’kks a ds foijhr ijke’kZ dks ekuus ds fy, ck/; ugha gksxsâ€​

(iii).From the pleadings available on record, it further appears that the criminal proceeding, which was initiated against the petitioner in the year 2003 is

still pending and as per the statement made at bar it appears that there is no likelihood of conclusion of case in near future, which attracts the

provisions for grant of ad hoc or provisional promotion, as envisaged in the aforesaid resolution. At the relevant point of time, the respondents

adopted sealed cover procedure but from perusal of impugned order, it appears that the respondents have failed to justify in not granting at least ad

hoc promotion to the petitioner after lapse of considerable period. Â

As a logical sequitur to the aforesaid facts and reasons the impugned order as contained in memo dated 07.06.2013, as also letter dated 03.11.2015

are hereby quashed and set aside. Resultantly, the respondents are directed to take a fresh decision for grant of ad hoc/regular promotion of the

petitioner, as per resolution dated 20.11.2008 as expeditiously as possible, preferably within a period of eight weeks from the date of receipt/production

of copy of this order in accordance with law.

With the aforesaid observations and directions, the writ petition stands disposed of. Â