Ram Krishna Garg vs The State of Rajasthan

Heard counsel for the parties and perused the record.

The facts which cull out from the petitioners are that the

petitioner having been appointed as Assistant Engineer in the year

1970 was promoted as Executive Engineer against the vacancy of

year 1981-82. He was placed at No.78 in the seniority list of the

Executive Engineer. When DPC met for making promotions for the

year 1994-95 and 1995-96, persons junior to the petitioner were

promoted against merit quota. Again on 18.10.1987, promotions

were made against the vacancies of 1996-97, on the post of

Superintending Engineer and the petitioner was denied promotion,

while persons junior to him were promoted on seniority-cum-merit

basis. The said promotions were revised by review DPC conducted

on 31.10.2000, in view of the order passed by the Rajasthan Civil

Services Appellate Tribunal. However, petitioner was again denied

promotion on the post of Superintending Engineer against the

vacancies of year 1996-97 under seniority-cum-merit quota and

persons junior to him were promoted, at the same time junior

persons promoted for the year 1994-95 on merit basis.

The petitioner has stated there was an enquiry pending

against him, which was initiated vide memorandum dated 24 th

May, 1986, which culminated in a punishment order of removal

from service vide order dated 25.06.1995.

The petitioner filed a writ petition bearing S.B.C.W.P.

No.1683/1996 challenging the order dated 25.06.1995 and the

Court was pleased to stay the order of removal and ultimately, the

writ petition came to be allowed by this Court vide judgment

dated 26.11.1998. The matter was further remanded to the

Government for passing fresh order. The State Government

considered the matter and ultimately vide order dated 25.04.2000

exonerated him of all the charges.

It is the case of the petitioner that thereafter, he submitted

representation for opening the sealed cover but the same was not

done and he has, therefore, filed the writ petition.

Counsel for the petitioner further submitted that in view of

sub Rule 11 of Rule 24 (A) of the Rajasthan Service of Engineers

and Research Officers (Irrigation Branch Rules, 1954) (hereinafter

referred as ''Irrigation Rules of 1954''), the record was to be seen

as on the 1st April of the year for which, the promotions are to be

conducted further under Sub Rule 15 of Rule 24(A), the State

Government is empowered to issue instruction for dealing with

persons, who are under cloud. Under said power, the State

Government has issued circular to deal with cases of persons

against whom enquiry has been initiated and the same provides

for keeping the case of if candidate in sealed cover even in the

charge-sheet was issued DPC needs. The petitioner has mentioned

about other enquiries initiated against him for departmental

action vide different memorandum issued under the CCA Rules

and some of them were pending at the relevant stage. However, it

is stated that the allegations are of identical nature to that in

which, the petitioner has already been exonerated of the charges.

He further submits that as on 01.04.1994, 01.04.1995 and

01.04.1996, the petitioner did not have any adversity in his record

except the enquiry in which the petitioner was ultimately

exonerated and, therefore, even if subsequent enquiries were

pending, the same would not have come in his way for granting

promotion to the post of Superintending Engineer and his case

ought to be opened from sealed cover for the said period. The

counsel has further relied upon the judgment of the Delhi Jal

Board Vs. Mahinder Singh, (2000) 7 SCC 210 Para (5) as

under:

"5. The right to be considered by the Departmental Promotion Committee is a fundamental right guaranteed under Article 16 of the Constitution of India, provided a person is eligible and is in the zone of consideration. The sealed cover procedure permits the question of his promotion to be kept in abeyance till the result of any pending disciplinary inquiry. But the findings of the disciplinary inquiry exonerating the officer would have to be given effect to as they obviously relate back to the date on which the charges are framed. If the disciplinary inquiry ended in his favour, it is as if the officer had not been subjected to any disciplinary inquiry. The sealed cover procedure was envisaged under the rules to give benefit of any assessment made by the Departmental Promotion Committee in favour of such an officer, if he had been found fit for promotion and if he was later exonerated in the disciplinary inquiry which was pending at the time when DPC met. The mere fact that by the time the disciplinary proceedings in the first inquiry ended to it, another departmental enquiry was started by the Department, would not, in our view, come in the way of giving him the benefit of the assessment by the first Departmental Promotion Committee in his favour in the anterior selection. There is, therefore, no question of referring the matter to a larger Bench."

The counsel has relied upon the judgment passed by this

Court in D.G. Dhamankar Vs. State of Rajasthan decided on 26 th

April, 1980 S.B.Civil Writ Petiton No.1946/1973, wherein it was

held as under:

"While making an appointment on a vacancy which arose in the early year. The Government will take into consideration the suitability and the conditions of eligibility of the candidates with reference to the year in which the vacancy arose and treat the said appointment as pertaining to the year, in which the vacancy arose for the purpose of seniority".

In the circumstances, the counsel-states that the

respondents have illegally denied to open the sealed cover and the

petitioner ought to be granted the benefit of promotion against the

vacancy of the year 1996-97 at least i.e. from the date his juniors

were promoted at seniority-cum basis.

Per contra, the counsel for the State has seriously opposed

the contentions raised by the petitioner, they have for the purpose

of this Court placed a document showing, the position of pending

enquiries relating to the petitioner uptill date vide document dated

09.12.2016. Along with the same, they have also placed the

orders passed in the various enquiries. Copy of the document has

also been made available counsel for the petitioner. As the matter

has come up for hearing, it is deem it appropriate to tag document

itself on record.

From the document dated 09.12.2016, following position

emerges.

VERNACULAR MATTER OMITTED

The orders have also been placed, in view of the aforesaid

position relating to the departmental enquiries. Four enquiries

were initiated in the year 1996, one was initiated on 1 st February,

1997 and one was initiated on 1st February, 2001. The petitioner

has been exonerated only in one of the charge-sheet by closing of

the enquiry vide order dated 8th July, 2010.

Admittedly in the year 2000, when the review DPC met, all

the departmental enquiries except the enquiry initiated by

memorandum on 1st February, 2001 were pending, therefore, the

petitioner could not have been granted promotion and his case

even if would have been considered against the vacancies of the

year 1995-96 and 1996-97, would remain in sealed cover. As per

the circular issued by the State Government relating to sealed

cover procedure, it is only when an individual is exonerated of the

charges in the pending departmental enquiry, that the sealed

cover is required to be opened and not otherwise. Petitioner was

punished by stopping of 10% pension for one year in three of the

charge-sheets, which had been initiated in the year 1996. In

another charge-sheet he was punished with stopping 15% pension

for one year. In the circumstances, it is submitted by the counsel

for the respondents that the prayer made by the petitioner cannot

be allowed to be accepted in view of the fact that he was punished

ultimately in four of the enquiries, which were pending.

Heard both the counsels and considered the record and

documents placed in the file.

From the perusal of the record, it is seen that the petitioner,

who was senior to others, on the post of Executive Engineer was

denied promotion to the post of Superintending Engineer for the

vacancies of the year 1994-95 and 1996-97 onwards. The

promotions had been granted on seniority-cum-merit basis as well

as on merit basis. The promotions are governed by the Rajasthan

Service of Engineer and research officers (Irrigation Branch) Rules

of 1954 (hereinafter referred to as Irrigation Rules of 1954). Rule

24(A) lays down the revised criteria for making promotions under

the Rules of 1954 sub-Rule 11A comes into operation, where

promotion exercise is being conducted by the DPC for an earlier

year and the same read as under:

"24(A). Revised Criteria Eligibility and Procedure for Promotion to Junior, Senior and other posts encadred in the service. (11-A). If in any subsequent year, after promulgation of these rules, vacancies relating to any earlier year are determined under sub-rule (2) of rule relating to determination of vacancies which were required to be filled by promotion, the Departmental Promotion Committee shall consider the cases of all such persons who would have been eligible in the year to which the vacancies relate irrespective of the year in which the meeting of the Departmental Promotion Committee is held and such promotions shall be governed by the criteria and procedure for promotion as was applicable in the particular year to which the vacancies relate, and the service/experience of an incumbent who has been so promoted, for promotion to higher post for any period during which he has not actually performed the duties of the post to which he would have been promoted, shall be counted. The pay of a person who has been so promoted shall be re-fixed at the pay which he would have derived at the time of his promotion but no arrears of pay shall be allowed to him."

The year has also been defined under the Rules of 1954 as

under:- Rule 4(1) year

(I) "Year" mean''s financial year.

Further the Rules of 1954 also laid down under 24(A) sub-

Rule 15 empowering the State Government to lay down

instructions for dealing with persons, who are under cloud 24

11A(15) read as under:-

"(15) The Government may issue instructions for provisionally dealing with promotions, appointments or other ancillary matters in an equitable and fair manner of persons who may be under suspension, or against whom departmental proceeding is under progress, at the time. Promotions are considered to a post to which they are eligible or would have been eligible but for such suspension or pendency of such enquiry or proceedings."

Admittedly, sealed cover procedure has been laid down by

the State Government for dealing with cases of employees, who

are within the zone of consideration for promotion, who are under

cloud i.e. either are under suspension or are facing departmental

enquiry.

The departmental enquiry is said to be pending if a charge-

sheet has been issued. Similarly, an employee may also be under

cloud if a criminal case is pending, the officer is treated to be

under cloud from the day, charge-sheet is filed in the Court after

investigation.

From the document dated 09.12.2016, it is apparent that

when the review DPC met on 31.10.2000, the petitioner was

under cloud and the review DPC, which would have looked into the

record of the petitioner as it was existing for the year 1994-95,

1995-96 and 1996-97 and even if he was found suitable, could not

have promoted him and his case would necessarily to be kept in

sealed cover. This was, in view of pendency of five departmental

enquiries initiated vide charge-sheet issued on 23.07.1996,

05.08.1996, 20.08.1996, 23.07.1996 and 01.02.1997. One more

enquiry was initiated on 01.02.2001.

The aforesaid enquiries continued till the petitioner retired

and after retirement, he has been punished with stopping of 10%

pension for one year in three cases and stopping of 15% pension

for one year in one case.

It is thus more than clear that the petitioner has not been

exonerated and was punished in the departmental enquiries. The

question before this Court is "if a person has been punished

ultimately in the departmental enquiries, could his sealed cover be

opened with reference to earlier years?"

In my opinion an employee, who has been punished for a

delinquency committed prior to his case coming up for

consideration for promotion cannot be rewarded by way of

promotion merely because the punishment order has been passed

Subsequently. It would amount to putting premium on the

delinquency. Promotion cannot be said to be a fundamental right

of any individual and it is a reward for doing clean service.

Delinquency, which has resulted in punishment shows that the

petitioner did not have a clean service and, therefore, he cannot

be allowed to be promoted for an earlier year on the ground that

the record as its stood in the year for which promotions are to be

made is only required to be adjudged.

My view is fortified by the view taken by the Supreme Court

in the case of Union of India Vs. K.V. Jankiraman AIR 1991

SC page 2010 held as under:

"According to us, the Tribunal has erred in holding that when an officer is found guilty in the discharge of his duties, an imposition of penalty is all that is necessary to improve his conduct and to enforce discipline and ensure purity in the administration. In the first instance, the penalty short of dismissal will vary from reduction in rank to censure. We are sure that the Tribunal has not intended that the promotion should be given to the officer from the original date even when the penalty imparted is of reduction in rank. On principle, for the same reasons, the officer cannot be rewarded by promotion as a matter of course even if the penalty is other than that of the reduction in rank. An employee has no right to promotion. He has only a right to be considered for promotion. The promotion to a post and more so, to a selection post, depends upon several circumstances. To qualify for promotion, the least that is expected of an employee is to have an unblemished record. That is the minimum expected to ensure a clean and efficient administration and to protect the public interests. An employee found guilty of a misconduct cannot be placed on par with the other employees and his case has to be treated differently. There is, therefore, no discrimination when in the matter of promotion, he is treated differently. The least that is expected of any administration is that it does not reward an employee with promotion retrospectively from a date when for his conduct before that date he is penalised in praesenti. When an employee is held guilty and penalised and is, therefore, not promoted at least till the date on which he is penalised, he cannot be said to have been subjected to a further penalty on that account. A denial of promotion in such circumstances is not a penalty but a necessary consequence of his conduct. In fact, while considering an employee for promotion his whole record has to be taken into consideration and if a promotion committee takes the penalties imposed upon the employee into consideration and denies him the promotion, such denial is not illegal and unjustified. If, ,further, the promoting authority can take into consideration the penalty or penalties awarded to an employee in the past while considering his promotion and deny him promotion on that ground, it will be irrational to hold that it cannot take the penalty into consideration when it is imposed at a later date because of the pendency of the proceedings, although it is for conduct prior to the date the authority considers the promotion. For these reasons, we are of the view that the Tribunal is not right in striking down the said portion of the second sub- paragraph after clause (iii) of paragraph 3 of the said Memorandum. We, therefore, set aside the said findings of the Tribunal.

In consequence of above discussion, the writ petition is

dismissed cost made easy.