Anant Ram Sahu vs State of Chhattisgarh and Others

M.M. Shrivastava, J.—By this petition, under Article 226/227 of the Constitution of India, the petitioner seeks to assail legality and validity of order dated 26-5-2006 (Annexure P-1) as also order dated 29-6-2006 (Annexure P-2) passed by the second respondent.

By order dated 26-5-2006, a list of eligible persons found fit for promotion has been issued and the petitioner is aggrieved by the same, as it does not contain the name of the petitioner. Order/communication dated 29-6-2006 reads that as the petitioner was not found fit for promotion, in view of the provisions contained in SOP No. 22, he was declared unfit.

Petitioner was working as Asstt. Sub Inspector of Police and was expecting promotion to the next higher post of Sub Inspector. Order dated 26-5-2006 contained name of persons junior to the petitioner, meaning thereby that the petitioner was not found fit for the promotion. The communication made subsequently on 29-6-2006 states that he was not found fit for promotion.

Submission of learned Counsel for the petitioner is that denial of promotion to the petitioner is illegal and contrary to the provisions contained in Police Headquarter Guidelines, SOP No. 22 of 2002, dated 13-3-2002. It is submitted that provision contained in Clause 3-A thereof on a just and proper interpretation would mean that in a case where major penalty has been imposed during last five years, then only the petitioner could be held unfit for promotion. Though, the petitioner was subjected to Departmental Enquiry, which concluded in imposition of penalty of reduction equivalent to one increment with non-cumulative effect only for a period of one year, treating the same as major penalty, the petitioner was found unfit for promotion, which is illegal and arbitrary.

Learned Counsel for the petitioner argued that punishment which has been imposed on the petitioner vide order dated 27-5-2004 (Annexure P-3) tantamounts to a minor penalty only and could not be treated as a major penalty as it is not covered under any of the Clauses v to x of Rule 10 of C.G. Civil Services (Classification, Control and Appeal) Rules, 1966 (henceforth referred to as ''Rules of 1966''). In order to substantiate this contention, leaned Counsel for the petitioner placed reliance upon the decision of the Supreme Court in the case of Kulwant Singh Gill v. State of Punjab reported in 1991 M.P. L& SLR 1991, 480.

On the other hand, submission of learned Counsel for the respondent is that the punishment imposed upon the petitioner is of reduction to a lower stage of pay in the pay scale and therefore, irrespective of whether it is cumulative or non-cumulative or for a specified period, it is major penalty as specified in Rule 10 (v) of the Rules, 1966.

Learned Counsel for the respondents submitted that this aspect was considered by the Supreme Court in the case of State of Madhya Pradesh and Ors. v. Radhika Prasad Dubey Civil Appeal No. 1232 of 1994, SLP (C) 14501 of 1990, decided on 23-4-1994, a copy of which has been placed on record along with application for taking additional document on record as Annexure R-2.

It is not in dispute that for the purposes of making promotion, promotion policy contained in SOP No. 22 of 2002, dated 13-3-2002 (Annexure R-1) is applicable with reference to the promotion, which is subject-matter of this petition. A perusal of Clause 3-A of SOP No. 22 of 2002 would show that where an employee has suffered major penalty in the last five years or where his integrity is doubtful, he would be held unfit for promotion. Said circular does not specify category of major penalties. Therefore, it is necessary to look into the provisions contained in Police Regulations. Under Police Regulations, Regulation 214 specifies penalties, which could be imposed. Reduction to a lower stage has also been specified as one of the penalties under Regulation 214. However, neither Regulation 214 nor nay other provisions contained in Police Regulation declare as to which penalty would be treated as major. In the absence of there being a specific provision in this regard, rules of general application namely Rules of 1966 are applicable in view of the provisions contained in Regulation 213 of the Police Regulation.

A perusal of Rule 10 of the Rules of 1966 would show that reduction to a lower stage in the time scale of pay has been categorized as one of the major penalties that could be imposed on a Government servant. Clause (v) of Rule 10 of the Rules of 1966 being relevant is reproduced here as under:

reduction to a lower stage in the time scale of pay for a specified period, with further directions as to whether or not the Government servant will earn increments of pay or the stagnation allowance, as the case may be, during the period of such reduction and whether on the expiry of such period, the reduction will or will not have the effect of such period, the reduction will or will not have the effect of postponing the future increments of his pay or stagnation allowance.

The aforesaid provision makes reduction to a lower stage in the time scale of pay may be for a specified period and whether or not the Government servant earns increment of pay during that period, a major penalty. Even in a case, the reduction does not have the effect of postponing the future increments of pay, it remains a major penalty. The expression words in the provision leave no manner of doubt that even if in a case, the effect of reduction is later on wiped out, the penalty would only be classified and categorized as major penalty. In the case of Radhika Prasad Dubey (supra), this aspect came up for consideration before the Supreme Court and it was held as under:

The view of the Tribunal in quashing the reduction of the appellant to a lower stage in time scale of pay for two years, later reduced to one year by the Appellate Officer terming it as a minor penalty equivalent to withholding of increments and as a sequator holding the respondent entitled for consideration of promotion by the department committee as Circle Inspector after 1985, does not commend to us. In term, there of a direction was issued to the departmental committee to review the case or the respondent. The view of the Tribunal there on is obviously wrong. A major penalty continues to be a major penalty even though its effect in minimised to slip down to loss of emoluments for a shorter period. The Tribunal was therefore, wrong in directing the Departmental Promotion Committee to consider the cases of respondent for promotion as on 1985. We are therefore of the view that the said committee is not obliged to consider the case of respondent as directed.

The appeal is, accordingly, allowed and the impugned order of the Tribunal is set aside.

The aforesaid analysis of the provision would show that punishment which has been imposed on the petitioner vide order dated 27-5-2004 is a major penalty. Kulwant Singh Gill''s case (supra), dealt with the aspect relating to withholding of increments with cumulative effect. The same is clearly distinguishable. That being so, Clause 3-A of SOP No. 22 is attracted. The stand of the respondent is that as the petitioner suffered major penalty, he would be unfit for promotion.

As an upshot of discussions as above, I am unable to hold that there was any illegality in declaring the petitioner unfit for promotion.

Consequently, the petition is dismissed. There shall be no costs.