Jag Mohan Lall vs State of Bihar and Others

A.K. Ganguly, J.—The facts of this case lie in a narrow compass. The Petitioner was appointed as Gram Sewak of Sakrt Gram Panchayat by an order of the Collector of Shahabad dated 16th January, 1951 and in pursuance thereof he, after completing his training, joined the post on 5th March, 1951. The Petitioner''s case is that on a false allegation of defalcation of fund, he was suspended by order No. 117 under memo No. 7 dated 20th January, 1976 passed by the District Development Officer, Rohtas. The same would appear from Annexure-2 to the writ petition. The Petitioner thereafter by office order No. 15860 dated 15th October, 1976 was promoted to the post of Gram Panchayat Supervisor. But as the Petitioner could not join the promoted post because of his suspension order, he submitted a representation dated 3rd November, 1976 to the Director of Panchayati Raj, Bihar, stating therein that he has not been relieved from suspension to join the promoted post. Thereafter the Petitioner also filed a petition before the District Magistrate, Rohtas which was numbered as Misc. Case No. 16 of 1980 for the release of his suspension order. By order dated 25th August, 1980 the Collector of the district of Rohtas, who was also the District Magistrate, Rohtas passed an order to the effect that the Petitioner, in the ends of justice, should be released from suspension but the criminal case against him may proceed. It was further stated that the order relating to his salary during the period of his suspension and also for the purpose of pension and leave etc. will be passed after the disposal of the criminal case pending against him. In fact an order to that effect was passed on 16th September, 1980 from the office of the District Panchayat Officer, Rohtas Sasaram. The same is Annexure-5 to the writ petition. The said order was passed on the basis of the order passed by the District Magistrate, Rohtas dated 25th August, 1980 (Annexure-4).

Thereafter by an order of the District Magistrate dated 30th December, 1984 the Petitioner was found not guilty in the criminal case and was also exonerated from the charges in the disciplinary proceeding and the same was dropped. The same would appear from Annexure-7 to the writ petition. Thereafter the Petitioner was again promoted to the post of Gram Panchayat Supervisor by the office order of the Director, Panchayati Raj-cum-Joint Secretary, Rural Development Department, Government of Bihar, Patna vide memo No. 6767 dated 21st October, 1986. In the said order dated 21st October, 1986 it was made clear that as the Petitioner stands exonerated from all charges, the period of his suspension has been treated as period spent on duty.

Prior to the said order, on 24th May, 1985 an order was passed, on consideration of a representation of the Petitioner, by the District Magistrate, Rohtas at Sasaram to the Director, Panchayati Raj Directorate, Bihar, Patna with a request for considering the case of the Petitioner sympathetically for promotion to the post of Gram Panchayat Supervisor. The said order dated 24th May, 1985 has been made Annexure-10 to the writ petition. It is presumably on the basis of the said order of the District Magistrate that the order of promotion of the Petitioner was passed on 21st October, 1986. The Petitioner on completion of 58 years of his age superannuated on 31st January, 1989.

Now the question which falls for consideration before this Court is whether or not the Petitioner, who had been promoted to the post of Gram Panchayat Supervisor by order dated 15th October, 1976, should be deprived of the benefit of the said order of promotion just because of the order of suspension having been passed against him pending departmental enquiry in which he stands completely exonerated?

It is a matter of record that the Petitioner was promoted to the post of Gram Panchayat Supervisor and he Joined the said post on 1st November, 1986 but during the period between 15th October, 1976 and 31st October, 1986 he was treated as Panchayat Sewak and he was denied the benefit of the post of Gram Panchayat Supervisor and emoluments of his promotion to the said post.

In the counter affidavit which has been filed in this proceeding by the Block Development Officer, Mohania, it has been contended that the effect of Annexure-1 to the writ petition has lost its force inasmuch as the Petitioner pursuant to his subsequent promotion to the post of Gram Panchayat Supervisor by order dated 21st October, 1986 joined it. It was further stated in the counter affidavit that the Petitioner is not entitled to get any benefit in respect of the previous promotion as he could not join the same in view of the suspension order. It has been further reiterated in the counter affidavit that the Petitioner had been legally suspended and the Petitioner has accepted the same.

A reply to the counter affidavit has also been filed by the Petitioner disputing the case of the Respondents as made out in the counter affidavit. In reply affidavit filed by the Petitioner it has been stated that the Petitioner could not join the promotional post on the basis of the promotion order dated 15th October, 1976 not because of his own fault but because of the fact that the Petitioner was not allowed to do so in view of the order of his suspension. As such the Petitioner cannot be blamed for not joining the promotional post. It is also stated by the Petitioner that in view of the orders passed subsequently by the Respondents, completely exonerating the Petitioner from all charges, it cannot be contended that the Petitioner was legally suspended as alleged by the Respondents.

In this case at the time of hearing no body appeared on behalf of the Respondents.

Learned Counsel for the Petitioner cited several decisions in support of his contention. In one of the decisions in the case of Mrs. J.S. Pandya v. Director General of Police and Inspector General of Police Gujrat reported in 1986 (1) S.L.J. page 743 it has been stated that once promotion has been given during the pendency of the disciplinary proceeding, the same cannot be cancelled nor the implementation thereof can be withheld arid the same must be given effect to immediately. Here it is nobody''s case that the promotion given to the Petitioner on 15th October, 1976 to the post of Gram Panchayat Supervisor has been cancelled subsequently. Therefore, the said promotion order ought to be given effect to immediately. The fact that the Petitioner could not join is of no consequence inasmuch as he was prevented from joining because of the order of his suspension. Therefore, this Court follows the principles decided in the aforesaid decision.

In the case of State of Punjab v. Dewan Chuni Lal reported in AIR 1970 S.C. page 2086, in somewhat similar circumstance, the Court held that if charges of inefficiency and dishonesty existed against Respondent Dewan Chuni Lal, in that case the same cannot be taken into consideration once the Respondent was allowed to cross the efficiency bar. The following observation has been made in paragraph 14 of the said report:

In our view reports earlier than 1942 should not have been considered at all inasmuch as he was allowed to cross the efficiency bar in that year. It is unthinkable that if the authorities took any serious view of the charge of dishonesty and inefficiency contained in the confidential reports of 1941 and 1942 they could have overlooked the same and recommended the case of the officer as one fit for crossing the efficiency bar in 1944. It will be noted that there was no specific complaint in either of the two years and at best there was only room for suspicion regarding his behaviour.

Following the aforesaid ratio in the case of Dewan Chuni Lal (supra) I hold that since in this case promotion has been granted to the Petitioner after the order of suspension, the benefit of the same cannot be denied to him on the ground of the said suspension order and pending disciplinary proceeding. The Court will presume that at the time of granting the said order of promotion, the authorities must have considered the question of pendency of the said suspension order and the contemplation of a disciplinary proceeding and despite the same granted the promotion. Having granted the said promotion order, the authorities cannot subsequently deny the benefit of the same to the Petitioner. The fact that the Petitioner subsequently joined under Anr. order of promotion dated 21st October, 1936 does not and cannot deprive the Petitioner of the benefit of the previous order of promotion which was never cancelled.

In that view of the matter, this Court directs the Respondents to treat the Petitioner to have been promoted to the post of Gram Panchayat Supervisor with effect from 15th October, 1976 and grant him all consequential benefits in the matters of fixation of retirement benefits of the Petitioner and also give the difference of pay to the Petitioner between the period 15th October, 1976 and 31st October, 1986 which he would have received if his promotion order had been given effect to. The aforesaid benefits relating to difference of pay must be made available to the Petitioner within a period of three months from the date of receipt/production of a copy of this order. It is further directed that the Respondents must re-fix the pension and other retirement benefits of the Petitioner within the said period of three months from the date of receipt/production of a copy of this order.

This writ application is thus allowed to the extent indicated above. There will be no order as to cost.