Vijay Laxmi Shukla vs State Of U.P.Throu Prin.Secy.Baal ...
2024 Latest Caselaw 17704 ALL

Allahabad High Court

Vijay Laxmi Shukla vs State Of U.P.Throu Prin.Secy.Baal ... on 17 May, 2024

Author: Abdul Moin

Bench: Abdul Moin

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2024:AHC-LKO:38054
 
Court No. - 6
 
Case :- WRIT - A No. - 15791 of 2018
 
Petitioner :- Vijay Laxmi Shukla
 
Respondent :- State Of U.P.Throu Prin.Secy.Baal Vikas Sewa And Ors.
 
Counsel for Petitioner :- Dhirendra Pratap Singh,Abhishek Pandey,Hari Mohan Mathur (H.M.M,Nidhi Tiwari,Prem Shanker Pandey,Puneeta Pandey
 
Counsel for Respondent :- C.S.C.
 
Hon'ble Abdul Moin,J.
 

1. Heard learned counsel for the petitioner and Shri Sandip Sharma, learned Standing Counsel for the respondents no. 1 & 2.

2. The instant writ petition has been filed praying for a writ of mandamus commanding the respondents to declare the result of the petitioner for the post of Additional Statistic Officer of departmental promotion committee (DPC) held on 12.02.2015 which has been kept in sealed cover.

3. Bereft of unnecessary details the facts of the case are that while the petitioner was working on the post of Assistant Statistic Officer, a departmental promotion committee was held on 12.02.2015 for consideration of case of the petitioner alongwith others for the post of Additional Statistic Officer. The departmental promotion committee kept the result, so far as it pertained to the petitioner in a sealed cover. Subsequent thereto the petitioner had been issued with a chargesheet dated 28.05.2015, a copy of which is annexure 4 to the petition. Being aggrieved the instant writ petition has been filed.

4. Reliance has been placed on a judgement of Hon'ble Apex Court in the case of Union of India etc vs K. V. Jankiraman etc, 1991 (4) SCC 109, to argue that Hon'ble Supreme Court has held that disciplinary proceedings can only be said to have been started with the issue of chargesheet. In the instant case once the chargesheet has been issued to the petitioner on 28.05.2015 consequently it would deemed that there was no departmental proceedings against the petitioner as on the date of departmental promotion committee which was 12.02.2015 and consequently the action of the departmental promotion committee of keeping the result of departmental promotion committee so as it pertains to the petitioner of the post of Additional Statistic Officer would run against the law laid down by Hon'ble Supreme Court in the case of K. V. Jankiraman (supra) and consequently it is prayed that the said sealed cover be opened with all consequential benefits.

5. On the other hand, Shri Sandip Sharma, learned Standing Counsel on the basis of averments contained in the counter affidavit argues that even though the departmental promotion committee had been held on 12.02.2015 yet a conscious decision has been taken by the department vide order dated 19.01.2015, a copy of which is annexure 2 to the petition, to initiate departmental proceedings against the petitioner. Consequently the Additional Project Manager had been appointed as an inquiry officer to enquire into the charges against the petitioner. After inquiry, a punishment order dated 13.06.2016, a copy of which is annexure 5 to the petition, of censure was passed against the petitioner.

6. It is contended that as the petitioner had been punished with the penalty of censure consequently there would not be any occasion for opening of sealed cover as per the law laid down by Hon'ble Supreme Court in the case of K. V. Jankiraman (supra) itself.

7. In this regard, learned Standing Counsel has placed reliance on the judgement of Hon'ble Supreme Court in the case of State of Madhya Pradesh and another vs Syed Naseem Zahir and others, 1993 Supp (2) SCC 225 to contend that Hon'ble Supreme Court after considering the judgement of K. V. Jankiraman (supra) has held that sealed cover procedure has correctly been adopted even though the chargesheet has been issued subsequently.

8. Responding to that, learned counsel for the petitioner argues that once Hon'ble Supreme Court in the case of K. V. Jankiraman (supra) has categorically held that initiation of departmental proceeding would only be there when a chargesheet has been issued to the petitioner and when a chargesheet in the instant case has been issued to the petitioner subsequent to the departmental promotion committee having been held i.e. the departmental promotion committee held on 12.02.2015 and the chargesheet itself has been issued on 28.05.2015 as such the respondents have patently erred in law in keeping the result of the promotion of the petitioner in sealed cover on 12.02.2015 itself.

9. Heard learned counsel for the parties and perused the record.

10. From perusal of record it emerges that the petitioner who was working on the post of Assistant Statistic Officer was eligible for being considered for promotion to the post of Additional Statistic Officer. In this regard a departmental promotion committee was held on 12.02.2015 and on the same date the departmental promotion committee kept the result of petitioner in sealed cover. Admittedly the chargesheet has been issued on 28.05.2015 i.e. more than three and half month subsequent to the departmental promotion committee being held. Admittedly the petitioner has also been visited with penalty of Censure vide the order dated 13.06.2016.

11. The question which arises is that when as in the instant case the chargesheet has been issued subsequent to the meeting of the departmental promotion committee whether keeping of result of departmental promotion committee in a sealed cover is justified.

12. This aspect of matter has been considered by Hon'ble Supreme Court in the case of Syed Naseem Zahir (supra) wherein in similar circumstances where a departmental promotion committee had been held on 28.10.1987 and the chargesheet has itself been issued on 15.04.1988 Hon'ble Supreme Court was of the view that as there was serious complaints against the said employee and the State Government has received a preliminary report on the said complaints from the Chief Engineer in January 1987 itself i.e prior to the departmental promotion committee being held then merely because the chargesheet had been issued subsequently would not result in the judgement of Hon'ble Supreme Court in the case of K. V. Jankiraman (supra) being attracted automatically and the authorities being required to open the sealed cover in as much as the facts of the petitioner having indulged in serious irregularities were attracted which was correctly considered by the authorities while keeping the recommendations of departmental promotion committee in sealed cover.

13. For the sake of convenience, the relevant observations of Hon'ble Supreme Court in the case of Syed Naseem Zahir (supra) is reproduced below:

"2. Syed Naseem Zahir (Syed) joined service in the Irrigation Department of the State of Madhya Pradesh as Assistant Engineer on August 26, 1953. He was promoted as executive Engineer in 1962. He was further promoted to the post of Superintending Engineer in April 1978. In the year 1986 his name was included in the panel for promotion to the post of Chief Engineer but neither he nor anyone junior to him was promoted. The Departmental Promotion Committee (DPC) met on October 28,1987 and considered his name for promotion. Since disciplinary proceedings were contemplated against him, the recommendation of the DPC qua him was kept in "sealed cover". On April 15, 1988 he was served with a charge sheet.

3. Syed filed a writ petition before the Madhya Pradesh High Court on April 20, 1988 challenging the adoption of "sealed cover" procedure by the DPC and claimed that he was entitled to promotion specially when a person junior to him had been promoted. The writ petition was transferred to the Madhya Pradesh Administrative Tribunal (Tribunal) which allowed the same by its judgment dated February 7, 1992 and directed the State of Madhya Pradesh to promote Syed to the post of Chief Engineer as per the position which existed in February, 1986 or in any case to act in accordance with the "sealed cover" recommendation of the DPC which met in the year 1987. This appeal by way of special leave is by the State of Madhya Pradesh against the judgment of the Tribunal.

5. The tribunal allowed the application of Syed on the short ground that the Departmental Promotion Committee which met on October 28, 1987 acted illegally in adopting the "sealed cover" procedure. Relying upon the judgment of this Court in Union of India v. K. V. Jankiraman and Ors. the tribunal came to the conclusion that "sealed cover" procedure could be adopted only after the date of issuance of charge-sheet, that being the date from which disciplinary proceedings could be taken to have been initiated. Since in this case, admittedly, on the date when the DPC met the charge sheet had not been served on Syed, resort could not be had to the "sealed cover" procedure. The reasoning and the conclusion of the tribunal are unexceptionable. The only question for our consideration is whether in the facts and circumstances of this case specially in view of the events subsequent to the meeting of the DPC, it would be in the interest of justice to promote respondent Syed to the post of Chief Engineer.

6. Syed was posted as Superintending Engineer, Mahandi Project Circle, Raipur where he was in charge of Ravishankar Sagar Project, Sondur Dam and the canals connected with the project. He was in charge of the total construction of the project. He continued in the said posting till August 3, 1986. In April, 1986 and thereafter State Government received various complaints against Syed indicating that he made excess payments towards the construction of the project. The State Government received a preliminary report on the said complaints from the Chief Engineer in charge on January 30,1987. The report disclosed that respond dent Syed committed irregularities which resulted in a loss to the State Government to the tune of rupees eighty lakhs. After examining the report the State Government ordered on the file on September 30, 1987 that departmental proceedings be initiated against him. As mentioned earlier he was served with the charge sheet on April 15, 1988. It is not disputed that the departmental enquiry has been completed and the charges against Syed have been proved. According to the State Government keeping in view the gravity of the charge and the heavy financial loss to the State Government it has been tentatively decided to impose major penalty upon him and for that purpose the proceedings have been referred to the Madhya Pradesh Public Service Commission. It is admitted by respondent Syed in his counter affidavit before this Court that he has received the enquiry report on August 25, 1992.

7. It is no doubt correct that in view of Jankiraman's case the DPC was not justified in keeping the recommendation pertaining to Syed in a "sealed cover", but it is difficult to ignore glaring facts in a given case and act mechanically. Even in Jankiraman's case while dealing with civil appeals Nos. 51-55 of 1990 this Court observed as under:

"In view of the aforesaid peculiar facts of the present case, the DPC which met in July, 1986 was justified in resorting to the sealed cover procedure, notwithstanding the fact that the charge sheet in the departmental proceedings was issued in August/December, 1987. The Tribunal was, therefore, not justified in mechanically applying the decision of the Full Bench to the facts of the present case and also in directing all benefits to be given to the employees including payment of arrears of salary."

14. When the facts of instant case are seen in the context of law laid down by Hon'ble Supreme Court in the case of Syed Naseem Zahir (supra) it emerges that the competent authority vide order dated 19.01.2015 considering the conduct of the petitioner pertaining to his indiscipline etc had appointed an inquiry officer for the purpose of holding of an inquiry against the petitioner on 19.01.2015 i.e prior to holding of departmental promotion committee which was held on 12.02.2015.

15. In this view of the matter more particularly when an inquiry had already been directed prior to holding of the departmental promotion committee and even if the chargesheet has been issued subsequent thereto on 28.05.2015 i.e. after the departmental promotion committee had been held on 12.02.2015 then the same cannot be a case that the respondents have acted erroneously in as much as admittedly they were having the complaint against the petitioner even prior to holding of departmental promotion committee and thus considering the law laid down by Hon'ble Supreme Court in the case of Syed Naseem Zahir (supra) this Court does not find any error having been committed by the authorities in keeping the recommendations of departmental promotion committee in sealed cover.

16. Even otherwise as the petitioner has been visited with a penalty of censure on 13.06.2016 as such there would not be any occasion for opening of sealed cover keeping in view the law laid down by Hon'ble Supreme Court in the case of K. V. Jankiraman (supra) wherein the sealed cover is to be open only where no punishment is imposed on the petitioner.

17. Keeping in view the aforesaid, no case for interference is made out. The writ petition is dismissed.

Order Date :- 17.5.2024/J. K. Dinkar