Nathu Singh Kushwaha vs State of M.P. and Others

Sujoy Paul, J.—The petitioner was working on the post of head constable. He was made accused in a criminal case. During pendency of criminal case, departmental promotional committee was convened to consider the eligible employees for the post of Assistant Sub Inspector (ASI). Since petitioner was facing a criminal case, his fate was kept in sealed cover. However his juniors were promoted as ASI on 13.02.1984. The said criminal case ended on 17.10.2000 and the petitioner was acquitted. Thereafter he made representation for opening the sealed cover. The department passed order dated 31.01. 2001 (Annexure A-3) and order dated 28.2. 2001 (Annexure AA). By these orders, the petitioner was given benefit of Next Below Rule (NBR) and was promoted as Assistant- Sub-Inspector w.e.f. 13.02.1984 on proforma basis. The petitioner''s seniority was placed at No. 14-A above Devlal Singh Respondent No. 4 who is at item No. 15 a private respondent herein. The grievance of the petitioner as canvassed is mentioned hereunder:-

The action of respondents is illegal wherein he has not been given benefit of arrears on promotional post.

During the pendency of criminal case, in the year 1993 the petitioner was further superseded on the post of Sub-Inspector. The respondent No. 4 is further promoted from the post of ASI to SI. After giving seniority and promotion to the petitioner above respondent No. 4, the department should have considered his case by holding a review DPC on the post of SI.

Lastly, it is prayed that in the meantime, the petitioner became entitle for Karamounnati benefits which has not been granted to him and same is bad in law. The government circular dated 19.4.1999 is relied on for this aspect.

Smt Pachauri Dy. GA supported the action and submits that petition has no merits.

Learned counsel for the rival parties are heard and record is perused.

The first claim of the petitioner is that on granting him retrospective promotion, he should have been granted benefit of arrears on the promotional post. In my opinion, this point is decided by the Apex Court in the case of Union of India Vs. K.V. Jankiraman, etc. etc., . In the said case the Apex Court opined that when an employee is willing to work on the promotional post, but he is deprived to do so for the reasons solely attributable to the department, back wages cannot be denied. The said judgment is again considered by the Apex Court in the case of State of Kerala and Others Vs. E.K. Bhaskaran Pillai, The Apex Court opined that there is no thumb rule or straight jacket formula to apply the principle of " no work no pay". It depends on various circumstances. The question is whether action of the respondents in denying promotion to the petitioner was justifiable and whether department can be blamed for the delay in issuing the promotion order.

In the considered opinion of this Court, the respondent department cannot be blamed for the delay in opening the sealed cover. The petitioner was facing criminal case from where he was acquitted only on 17.10. 2000. Thereafter respondents promptly opened sealed cover and granted him the benefit of ante-date promotion. If the petitioner was subjected to criminal case, by no stretch of imagination, his employer can be blamed for the same. Thus, I am unable to hold that there is any error in the action of the respondents in not granting arrears of salary for promotional post and granting benefit of proforma promotion only. Thus the relief claimed is rejected.

I find force in the second contention of the petitioner. Once the petitioner is promoted with retrospective effect and placed over and above the respondent No. 4 on the post of ASI, it was obligatory on the part of respondents to convene a review DPC of main DPC as held in the year 1993 when the respondent No. 4 was further promoted on the post of ASI. To this extent the petition deserves to be allowed. So far last prayer for grant of karamounnati is concerned, it was canvassed for the first time by way of rejoinder. There is no prayer in the writ petition. By way rejoinder relief cannot be added in the petition nor texture and tenor can be permitted to be changed. This contention is therefore rejected. On the basis of aforesaid analysis, I deem it appropriate to direct the respondents to convene review DPC to consider the case of the petitioner for promotion from date respondent No. 4 was promoted as Sub-Inspector. Review DPC be convened within four months. If the petitioner is found fit for promotion, the competent authority will pass appropriate order of promotion and in that order will deal with the question of entitlement of the petitioner about arrears of salary for promotional post. The outcome shall be communicated to the petitioner.

Accordingly, petition is disposed of. No cost.