Shyam Manohar Tiwari vs State of M.P. and Six Others

Hon''ble Shri S.C. Sharma, J.—The petitioner before this Court who is a retired government servant has filed this present petition claiming promotion to the post of Joint Director/ Dy. Commissioner in the Scheduled Caste/Scheduled Tribe and Other Backward Class Welfare Department of the State of M.P. The petitioner''s contention is that he was senior to respondent No. 6 and 7 however, his case was not considered by a DPC which met on 26.12.2005 and he has attained the age of superannuation on 31.12.2006. The petitioner''s contention is that the DPC has not considered the case of the petitioner and the petitioner was entitled to be considered for promotion at par with respondent No. 6 and 7 who have been ultimately promoted vide order dt. 23.3.2006 and they are junior to the petitioner. The petitioner has prayed for issuance of an appropriate writ, order or direction directing the respondents to promote the petitioner to the post of Joint Director/ Dy. Commissioner. The petitioner has also argued that the criteria under the Recruitment Rules for promotion is seniority-cum-merit and since the petitioner is senior to respondent No. 6 and 7 he was entitled for promotion to the next higher post which has been denied to him. Learned Counsel for the petitioner has placed reliance upon a judgment delivered by the Apex Court in the case of Union of India Vs. K.V. Jankiraman, etc. etc., and his contention is that he was entitled to be considered for promotion however, his case has not been considered at all and, therefore, the respondents deserve a command to consider the case of the petitioner by holding a review DPC. Learned Counsel has also placed reliance upon a judgment delivered by the Apex Court in the case of Rajendra Kumar Srivastava and Others Vs. Samyut Kshetriya Gramin Bank and Others, and his contention is that the criteria seniority-cum-merit has been explained by the Apex Court in the aforesaid case and promotion has to be done on the basis of seniority out of candidates achieving requisite bench mark of merit. Learned Counsel has also placed reliance upon a judgment delivered in the case of Virendra Kumar Swarnkar Vs. M.P. State Agricultural Marketing Board and Another, and his contention is that the petitioner was certainly entitled to be considered for promotion and the minor punishment will not come in his way in respect of grant of promotion.

A detailed reply has been filed in the matter and the learned Counsel for the respondent/State has vehemently argued before this Court that the petitioner has deliberately not disclosed the order of punishment dt. 7.2.2005 by which a punishment of stoppage of two increments without cumulative effect was inflicted upon the petitioner. The respondents have further stated that the petitioner has thereafter preferred an appeal and the quantum of punishment was reduced vide order dt. 8.3.2006 to the extent of withholding of one increment without cumulative effect. The respondents have further stated that the petitioner on the date the DPC took place i.e. 26.12.2005 was under the currency of punishment and, therefore, as a punishment order was in existence, they have not considered the case of the petitioner for grant of promotion. The respondents have also stated that the petitioner has attained the age of superannuation on 31.12.2006 and, therefore, the question of granting promotion to the petitioner does not arise. The respondents have prayed for dismissal of the writ petition.

Heard learned Counsel for the parties at length and perused the record.

In the present case, it is an admitted fact that the petitioner was senior to respondent No. 6 and 7 and a DPC took place on 26.12.2005. The respondent No. 6 and 7 were promoted by an order dt. 23.2.2006 to the post of Joint Director/ Dy. Commissioner in the Tribal Welfare Department. It is also an admitted fact that the petitioner was punished initially by an order dt. 7.2.2005 and a punishment of stoppage of two increments without cumulative effect was inflicted upon him but the same was moderated to stoppage of one increment without cumulative effect by an order dt. 8.3.2006 meaning thereby at the time the DPC took place the petitioner was under the currency of punishment i.e. on 26.12.2005.

Learned Counsel for the petitioner has placed reliance upon a judgment delivered by the Apex Court in the case of Union of India vs. K.V. Jankiraman (supra). Paragraph 29 of the aforesaid reads 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.

The aforesaid paragraph in the aforesaid case reveals that the Apex Court has observed that in case an employee is punished, the least that is expected of any administration is that it does not reward an employee with promotion who has been penalised. A denial of promotion in case an officer has been punished is not a penalty but a necessary consequence of his conduct. In the present case it is true that the petitioner was entitled for consideration on 26.12.2005 but the fact remains at the relevant point of time he was under the currency of punishment and, therefore, to qualify the promotion the least that is expected of an employee is to have an unblemished service record even in case where the criteria is seniority-cum-merit.

Resultantly, this Court is of the considered opinion that as the petitioner was under the currency of punishment even though if he was considered by the DPC he could not have been granted promotion as has been done in the cases of respondent No. 6 and 7 because at the relevant point of time, he was undergoing the punishment order. The petitioner''s case was certainly required to be considered by the next DPC after the period of punishment was over. However, as the petitioner has already attained the age of superannuation on 31.12.2006, his case has not been considered by the respondents subsequently. Resultantly, no case for interference is made out in the matter. The petition is, accordingly, dismissed.