Satya Deo Prasad Singh vs State of Bihar and Others

G.C. Bharuka, J.—The present writ application has been filed by the Petitioner for issuance of writ of mandamus directing the Respondents for granting two promotions to the Petitioner, which according to him had fallen due on 1.4.1985 and 1.4.1990.

The Petitioner had been serving in the cadre of Junior Selection Grade in the Agriculture Department. It appears that under Departmental letter No. 922 dated 3.10.1985 he was put under suspension on the charges of defalcation and forgery during his posting as Project Executive Officer, Yogapatti. Thereafter, in a departmental proceeding by an order dated 3.2.1988 he was awarded punishment by way of withholding of three increments as also of censure. These facts are evident from the Government communication filed as Annexure 1 to the reply to the counter affidavit. Apart from the aforesaid facts, it also transpires that a criminal case has been instituted against the Petitioner and the Government had taken a decision to take further actions against the Petitioner with regard to the charge of defalcation after the decision in the criminal case. It also appears from Annexure-2 to the reply to the counter affidavit that in Jogapatti P.S. Case No. 25/86 instituted against the Petitioner the police has submitted charge-sheet u/s 409 of the Indian Penal Code and accordingly, the Sub-divisional Judicial Magistrate, being prima facie satisfied with regard to the accusation against the Petitioner, has taken cognizance against him and the trial is still pending.

Learned Counsel for the Petitioner has submitted that as per the gradation and seniority list dated 22.4.1987 (Annexure 2) the Departmental Promotion Committee had recommended the case of the Petitioner for promotion with effect from 1.4.1985. It has also been submitted that the Petitioner has also become entitled to second promotion from 1.4.1990 as per Annexure 5, since several. persons junior to him have been promoted without considering the claim of the Petitioner. He has assailed the legality of the order dated 18.7.1987 filed as Annexure 3 to the writ application which shows that the Petitioner has been denied promotion inspite of recommendations of the Promotion Committee as contained in Annexure 1. Learned Counsel for the Petitioner has also placed reliance on the resolution of the Government contained in Memo No. 5502 dated 17th May, 1982 issued by the Chief Secretary to the Government which, inter alia, provides that the punishment of censure will have its adverse effect on confirmation, crossing of efficiency bar and promotion only for three years from the date of awarding of the punishment. Accordingly, it has been submitted that since three years has also lapsed from the date of awarding of the punishment, therefore, Government is duty bound to accord promotion to him.

It is not in dispute that a criminal case for defalcation of Government funds is still pending trial against the Petitioner, It is also an admitted fact that in a departmental proceeding he has been awarded punishment not only of censure but also withholding of three increments. In this view of the matter, I may at the very outset hold that the aforesaid resolution of the Government dated 17th May, 1982 relied on by the learned Counsel for the Petitioner has no bearing on the facts of the present case. It is so because the decision of the Government taken in the said resolution will apply only in such cases where the punishment is only of censure and not in such cases where the punishment of censure is coupled with other punishments as in the present ease. The Petitioner has also placed reliance on a case in the case of K. Mndhavan v. The Commissioner of income tax, Cochin and Ors. reported in 1983 (1) SLJ 240, in support of the proposition that censure is not a punishment and promotion cannot be postponed on this basis. In my opinion for the reasons assigned above, this case is of no consequence in the facts of the present case and therefore, I need not discuss the proposition laid down in this case any further.

So far as the recommendation of the Promotion Committee as contained in Annexure 1 to the writ application is concerned, in paragraph 6 thereof, the Committee had clearly noticed that the Cabinet Vigilance Department had not made available to the Committee the up to date clearance certificates and therefore, it was recommended that the notifications for promotion should is sued only after receiving such certificates.

Therefore, apart from other reasons, even the recommendation of the Promotion Committee does not render. any help to the Petitioner in respect of the relief claimed by him. Moreover, it has been stated in the counter affidavit filed on behalf of the State that the promotion of the Petitioner has been withheld for the reason that the criminal case instituted against him is still pending. According to the Government decision contained in the resolution No. 4512 of the Personnel and Administrative Reforms Department dated 12th March, 1979 read with earlier resolution referred to therein, the institution of the criminal case on a charge of defalcation by itself is enough for withholding a promotion till the decision in such a case. The Petitioner has also taken the plea of discrimination by giving details of promotions given to other officers said to be junior to him but in my opinion, granting of promotion to other officers cannot amount to any discrimination because the promotion of the Petitioner has been with held because of the punishment awarded to him in departmental proceeding as also because of the pendency of the aforesaid criminal case.

For the reasons and discussions made above, in my opinion, the Petitioner is not entitled to any relief in the present writ application. It is accordingly dismissed. No costs.