Prem Nath Garg vs The State of Bihar and Others

R.S. Garg, J.—Heard learned Counsel for the parties. Mr. S.K. Sharma, Secretary, Road Construction Department is also present.

The Petitioner has come to this Court inter alia submitting that number of the persons/juniors have been promoted on 17.7.2001 and despite to adverse entries or adverse remarks against the Petitioner he has riot been promoted nor his case has been considered. Placing reliance upon Annexure-1, the seniority list, the Petitioner submits that the Petitioner is placed at SI. No. 35, while number of the persons who are below 35 have already been promoted. Placing reliance upon Annexure-2 it is submitted that four juniors were given charge of the post of the Superintending Engineer and under Annexure-5 on 5.9.2002 the said four juniors have also been promoted regularly. The Petitioner submits that the policy of the State Government is not to consider the cases for promotion if such an incumbent is under suspension or is facing a departmental enquiry after service of the charge-sheet or is an accused facing a trial in a criminal matter. Learned Counsel for the Petitioner submits that two show-cause notices were issued to the Petitioner on 13.9.1997 and 29.3,1995, the replies to the same were filed on 13.12.1997 land 17.9.1995 and despite submission of the replies/show-cause no further action was taken in the matters and till date no enquiry has been initiated or commenced against the Petitioner. Placing reliance upon the judgment of the Supreme Court in the matter of Union of India Vs. K.V. Jankiraman, etc. etc., and yet other judgments of the Supreme Court and this Court it is contended that cases for promotion are required to be considered in their true perspective. It is contended that even if the departmental proceedings are contemplated the same would be no ground to refuse promotion or in any case not to consider the case of the incumbent. It is also submitted that various allegations made by the Respondents even in their counter should have been substantiated by producing substantial materials and a bald and bold statement that the Petitioner is facing certain charge in itself would not be sufficient. It is also submitted placing reliance upon the judgment of this Court reported in Krishna Murari Vs. State of Bihar and Others, that pendency of departmental enquiry should not provide any sufficient ground in favour of the Department not to give promotion to the Petitioner. It is contended that as the Petitioner is entitled to be considered and is also entitled to his promotion from the date when his juniors were promoted to the post of Superintending Engineer the Respondents are obliged to consider the Petitioner''s case.

Learned Counsel for the State fairly submitted that till date after issuance of show-cause notices and receipt of show-cause neither any order of punishment have been passed nor any departmental enquiry has been initiated against the Petitioner. It is also admitted before this Court that in relation to 1997 and 1995 show-cause the Petitioner was never placed under suspension. It is further submitted that on 23.12.2000 a criminal case was pending against the Petitioner, therefore, the Departmental Promotion Committee was justified in not considering the Petitioner''s case for promotion.

Placing reliance upon Annexure-10 filed by the Petitioner it is contended that undisputedly on 23.12.2000 when the meeting of the D.P.C. was held the Petitioner was facing a charge and in fact a charge-sheet was filed against him. For this submission learned Counsel for the State relies upon a statement made in paragraph 2 of the said judgment wherein the learned Judge has observed that the case came before him on 27.4.1995.

Undisputedly on 6th January, 2001 the Petitioner has been acquitted of all those charges. If that be so then the Petitioner''s case for promotion is not under eclipse and his case is required to be considered because from Annexure-8 Resolution dated 11.9.2002 it would clearly appear that cases of all such persons would only be affected who are either under suspension or persons against whom the disciplinary, proceedings have already commenced and charge-sheet has already been issued or the Government servants against whom proceedings are pending before any criminal Court. In the present matter if the case of the Petitioner is considered on the touch stone of Annexure-8, it would clearly emerge that the Petitioner is not under suspension, no disciplinary proceedings has been commenced against him, no chargesheet has been served upon him and the charge for which he was tried by the criminal Court has not been found proved and the Petitioner stands acquitted. As the barbed wire fenced around the Petitioner under Annexure-8 have already been removed, his case is required to be considered in its true perspective and earnestly.

It is expected of the Department that it shall refer the matter of the Petitioner to the D.P.C. for its fresh consideration. Learned Counsel for the State in presence of Mr. Sharma submits that within one week from today the case of the Petitioner shall be referred to the D.P.C.

With that assurances given by the learned Counsel for the State and the Secretary ordinarily nothing further is required to be done in the matter but taking into consideration the totality of the circumstances this Court deems it necessary to issue a direction to the Department that while referring the matter of the Petitioner to the D.P.C. it shall say in its report that the Petitioner''s case is required to be considered as on date when the Petitioner''s juniors were promoted, the Petitioner was not placed under suspension, no disciplinary proceeding has been commenced against him, no punishment has been awarded to him and the charge for which his case was not considered has been found not proved by competent Court and the Petitioner has been acquitted.

After such recommendations are made by the Department I hope and sincerely hope that within two months the D.P.C. shall pass final orders in the matter. The petition to the extent indicated above is allowed.

At this stage learned Counsel for the Petitioner submits that he be given liberty to make an application for drawing contempt proceedings in this writ application in case of non-compliance because he is to retire within next four months. The Petitioner is given the said liberty in case of non compliance of this order.