Mrityunjai Kumar vs State Of U.P.Thru.Prin.Secy. ...
2021 Latest Caselaw 11057 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?A.F.R. 
 
Court No. - 7
 

 
Case :- SERVICE SINGLE No. - 4132 of 2021
 

 
Petitioner :- Mrityunjai Kumar
 
Respondent :- State Of U.P.Thru.Prin.Secy. Namami Gange Evam Gramin & Ors.
 
Counsel for Petitioner :- Mahendra Pratap Singh,Abhishek Dwivedi
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Rajesh Singh Chauhan,J.

1. Heard Sri Mahendra Pratap Singh, learned counsel for the petitioner and Sri Vinod Kumar Shukla, learned Standing Counsel for the State-respondents.

2. Rejoinder affidavit sent by the Registry is taken on record.

3. By means of this petition, the petitioner has prayed following reliefs:-

"i. issue a writ, order or direction in the nature of Certiorari to quash the impugned orders dated 04-01-2021 and 05-06-2020 passed by the opposite party no.1 contained as annexure no.1 & 2 to this writ petition.

ii. issue a writ, order or direction in the nature of Mandamus commanding the respondents to open seal cover and promote the petitioner on the post of Superintendent Engineer in view of recommendation of Departmental Promotion Committee convened on 19-07-2018 from the date other incumbents were considered and promoted in pursuance to recommendation of Departmental Promotion Committee held on 19-07-2018, with all consequential benefits.

iii. issue a writ, order or direction in the nature of Mandamus commanding respondents not to make any promotion on the post of Chief Engineer until the petitioner is promoted on the post of Superintendent Engineer in view of recommendation of Departmental Promotion Committee convened on 19-07-2018."

4. The precise contention of learned counsel for the petitioner is that for making promotion of the petitioner on the post of Superintending Engineer his issue was kept under sealed cover by the Departmental Promotion Committee (hereinafter referred to as "DPC") dated 19.7.2018. However, no decision was taken by the date of review DPC i.e. 11.7.2019. The reason to keep the promotion of the petitioner under sealed cover was that the petitioner was awarded adverse entry vide order dated 12.12.2018, however, the said punishment was not prescribed under the Service Rules. Therefore, the petitioner challenged the order dated 12.12.2018 before this Court by filing Writ Petition 34856 (S/S) of 2019; Mrityunjai Kumar Vs. State of U.P. and others, placing reliance upon the dictum of the Hon'ble Apex Court in re; Vijay Singh Vs. State of U.P. and others, (2012) 5 SCC 242, wherein the Apex Court has held that the employee may not be awarded any punishment which is not prescribed under the Rules. On the basis of aforesaid dictum of the Hon'ble Apex Court, this Court vide judgment and order dated 7.1.2020 set aside the order dated 12.12.2018 directing the opposite parties to make promotion of the petitioner on the post of Superintending Engineer in the Minor Irrigation Department ignoring such punishment order dated 12.12.2018.

5. On 9.1.2020, the Government has passed an order expunging such special adverse entry from the service record of the petitioner awarding him "Utkrishth" entry for the period in question. However, the petitioner was not given promotion pursuant to the order dated 7.1.2020. Vide order dated 5.6.2020, claim of the petitioner for promotion on the post of Superintending Engineer has been turned down on the basis of pending departmental enquiry initiated on 24.1.2020.

6. Learned counsel for the petitioner has submitted that since the aforesaid departmental enquiry may not be treated as bar promoting the petitioner on the post of Superintending Engineer inasmuch as as per trite law, only such material can be considered which was existing at the time of DPC and admittedly, when the DPC in question has met on 19.7.2018, no such material was available with the Department. Therefore, the petitioner filed another writ petition bearing Service Single No.8490 of 2020; Mrityunjai Kumar Vs. State of U.P., and the said writ petition was decided finally vide judgment and order dated 10.6.2020 directing the opposite parties to take fresh decision in the issue of the petitioner. Operative portion of the judgment and order dated 10.6.2020 is being reproduced herein below:-

"Be that as it may the fact of the matter is that the earlier proceedings have come to an end. Therefore the least that is require to be done by the competent authority is to take a decision as to whether the sealed cover is required to be opened or not, if not, the reasons therefore in the light of the aforesaid Government Order dated 28.05.1997 and such other government orders or rules as may be applicable as also the law on the subject. The matter cannot be kept in limbo indefinitely. In fact when a recommendation is kept in sealed cover as and when the next DPC meets, it is necessarily to be opened and if the proceedings are still pending it is again to be kept in sealed cover otherwise they are to be acted upon unless there is some legal impediment in this regard. But all these are issues which are to be considered by the State Government. Let a decision be taken on an representation being filed by the petitioner in this regard, as aforesaid, within one month of such representation being submitted. The representation itself be submitted within 10 days.

It is made clear that this Court has not decided the merits of the claim of the petitioner. All points are open for consideration at the competent level in accordance with rules/law.

With these observations, this petition is disposed of."

7. In compliance of the aforesaid order, the impugned order dated 4.1.2021 has been passed by opposite party no.1 rejecting the claim of the petitioner for promotion on the post of Superintending Engineer on the basis of pending departmental enquiry since 24.1.2020. Learned counsel for the petitioner has taken specific plea to that effect in para-43 of the writ petition, which reads as under:-

"43. That name of the petitioner was considered by the Departmental Promotion Committee convened on 19-07-2018, but recommendation pertaining to the petitioner were kept in seal cover in consideration of the fact that departmental enquiry proceedings were pending on the date, when Departmental Promotion Committee was convened i.e. on 19-07-2018. Now the Departmental Enquiry Proceedings having been concluded vide order dated 12-12-2018 and the order dated 12-12-2018 having been quashed by the Hon'ble court vide order dated 07-01-2020, the petitioner is fully entitled for promotion in pursuance to recommendation of the Departmental Promotion Committee convened on 19-07-2018."

8. Replying to the aforesaid contention, no specific explanation has been given by the State in the counter affidavit vide para-15, which reads as under:-

"15. That the contents of paragraphs 43 and 44 of the writ petition are not admitted as stated hence denied and in reply thereto it is stated that the necessary proceeding with respect to the determination of the process of closing envelope proceedings, etc. in the elections for promotions of government employees of the State was initiated as per the arrangement given in Chapter-11 of Office Memorandum No. 13/21/89-ka-1997 dated 28.5.1997."

9. The law is trite that the specific recital of the petition should be denied specifically citing reasons and legal position, if any, and simple denial is no denial in the eyes of law. In para-15 of the counter affidavit, I am unable to comprehend as to what has been indicated by the State referring Chapter-11 of the Government order dated 28.5.1997. This is not Chapter-11 but it is para-11 of the Government Order dated 28.5.1997. However, para-11 of the aforesaid Government Order simply provides that at the time of meeting of DPC, if any adverse material comes into the notice of the Committee, the issue of the employee may be kept under sealed cover. In the present case, admittedly, the DPC had met on 19.7.2018 for promoting the petitioner on the post of Superintending Engineer and on account of adverse entry awarded to the petitioner on 12.12.2018, his promotion was kept under sealed cover pursuant to para-11 of the Government Order dated 28.5.1997. Further, on account of impugned order dated 12.12.2018, the petitioner could not get promotion vide review DPC dated 11.7.2019, however, as soon as the order dated 12.12.2018 has been set aside by this Court on 7.1.2020 and such adverse remark has been expunged by the Government on 9.1.2020, the sealed cover of the petitioner should have been opened and he should have been promoted on the post of Superintending Engineer.

10. Having heard learned counsel for the parties and having perused the material available on record, I am of the considered opinion that the DPC can consider only such material which was available before it on or before the date of DPC. No adverse material of any kind whatsoever can be considered which came into the notice before the competent authority or before the DPC after the meeting of DPC. In the present case, the foundation and basis of the impugned order dated 4.1.2021 is that one departmental enquiry was pending against the petitioner w.e.f. 24.1.2020 under Rule 7 of Rules, 1999, therefore, in view of para-11 of the Government Order dated 28.5.1997, the issue of the petitioner should be kept under sealed cover until such departmental enquiry concludes.

11. The aforesaid reason is patently illegal, arbitrary, discriminatory and unwarranted on the face of it inasmuch as the case of the petitioner is not to be considered afresh vide DPC dated 20.3.2020 but the case of the petitioner would be considered pursuant to the DPC dated 19.7.2018 when his promotion was kept under sealed cover. There is no dispute that the reason for which the promotion of the petitioner was kept under sealed cover on 19.7.2018 is not in existence since 7.1.2020 when the very reason i.e. order dated 12.12.2018 has been set aside by this Court in Service Single No.34856 of 2019. Therefore, para-11 of the Government Order dated 28.5.1997 has been wrongly invoked vide impugned order dated 4.1.2021. Since the order dated 7.1.2020 passed by this Court in Service Single No.34856 of 2019 has attained finality, therefore, in compliance of the aforesaid order the sealed cover of the petitioner should be opened and he should be promoted on the post of Superintending Engineer in the Minor Irrigation Department pursuant to the recommendation of the DPC dated 19.7.2018. The Hon'ble Apex Court in re; Delhi Jal Board Vs. Mahinder Singh, (2000) 7 SCC 210, has observed 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 in his favour and by the time the sealed cover was opened to give effect 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."

12. The Hon'ble Apex Court in re; Brij Nath Pandey Vs. State of U.P., (2001) 9 SCC 398, vide para-2 has observed as under:-

"2. Heard counsel on both sides. The appellant was denied promotion in the selection which took place in 1995 when, according to him, his junior was promoted. According to the appellant the adverse entries in his annual confidential reports of 1985-86 and 1986-87 could not have been taken into consideration in view of the fact that the appellant was subsequently allowed to cross the efficiency bar since 1-1-1992 vide an order dated 20-5-1992. In our view this contention of the appellant is correct and the adverse entries in 1985-86 and 1986-87 cannot come in the way of the appellant for further promotion once he was allowed to cross the efficiency bar on 20-5-1992. So far as the adverse remarks of 1993-94 are concerned at the time of the selection in 1995 the said adverse remarks were there on record but they were subsequently deleted on 6-7-1996. Therefore, the appellant is entitled to a fresh consideration for his promotion in 1995. The respondents are therefore directed to consider the case of the appellant afresh with reference to the selection of 1995 when his junior was promoted."

13. The Division Bench of this Court in re; Gyan Prakash Pandey Vs. State of U.P. and Others, [2018 (6) ADJ 670 (DB) (LB)], State of U.P. through Principal Secretary, Irrigation & Water Resource Vs. Suresh Pandey, 2019 Legal Eagle (ALD) 926, has clearly held that only those material can be considered by the DPC which are available before the DPC.

14. The Division Bench of this Court in re; State of U.P. & Another Vs. Nand Kumar Singh, Special Appeal No.478 of 2010, vide para-7 has interpreted para-11 of the Government Order dated 28.5.1997 as under:-

"7. In our opinion, once three cases are manifest under which the sealed cover procedure has to be followed, Paragraph 11 will have to be considered in that context, otherwise this would result in adding another case. The only way to harmonize the rules, considering paragraphs 2 and 11, is to hold that if on the date of D.P.C. there was a charge-sheet and this was not within the knowledge of the Selection Committee even at the stage of issuing the letter of appointment, the sealed cover procedure can be followed. In our opinion, this would be a proper and harmonious construction of the two rules."

15. Not only the above, the Hon'ble Apex Court in re; R.K. Singh Vs. State of U.P. & Others, 1991 Supp (2) SCC 126, has held that after expungtion of adverse material, the employee would be entitled for the benefits w.e.f. the date when it was due to him.

16. Admittedly, in the present case, the issue of the petitioner was kept under sealed cover on 19.7.2018 for the reason he was awarded adverse entry vide order dated 12.12.2018 and after setting aside the order dated 12.12.2018, which was adverse material before the DPC held on 19.7.2018, the petitioner was legally entitled for the promotion as per recommendation of DPC dated 19.7.2018.

17. Therefore, in view of the above, the writ petition is allowed.

A writ in the nature of certiorari is issued quashing the orders dated 4.1.2021 and 5.6.2020 passed by opposite party no.1, which are contained in Annexure Nos.1 & 2 to the writ petition. A writ in the nature of mandamus is issued commanding the opposite parties to open the sealed cover of the petitioner and promote him on the post of Superintending Engineer in view of the recommendation of Departmental Promotion Committee convened on 19.7.2018 from the date the other incumbents were considered for promotion pursuant to such recommendation.

18. The petitioner shall be entitled for all consequential service benefits.

19. No order as to costs.

Order Date :- 6.9.2021

RBS/-

[Rajesh Singh Chauhan,J.]