Anand Potdar vs State Of Chhattisgarh And Ors
2021 Latest Caselaw 2362 Chatt

                           1

                                                   NAFR

        HIGH COURT OF CHHATTISGARH, BILASPUR

                 WPS No.4906 of 2011

   Anand Potdar, S/o Late Shri Vinayak Rao Potdar,
    aged about 53 years, Assistant Grade­II, R/o
    Qtr. No.RH 13, PWD Colony, Korba, Distt. Korba
    (C.G.)

                                       ­­­­ Petitioner

                       Versus

  1. State   Of    Chhattisgarh   through   Secretary,
     General    Administration    Department,   D.K.S.
     Bhawan, Raipur (C.G.)

  2. Chhattisgarh State Election Commission through
     Secretary, Mahanadi Khand, Mantralaya Premises,
     Raipur (C.G.)

  3. Collector and District Election Officer, Korba,
     District Korba (C.G.)

  4. Deputy   District  Election   Officer (Local
     Election), Collectorate, Korba, Distt. Korba
     (C.G.)

  5. S.    A.   Salim,    Incharge   Superintendent,
     Collectorate, Distt. Korba (C.G.)

  6. S.   K.   Paikara,   Assistant   Superintendent,
     Sthaniya     Nirvachan     (Local     Election),
     Collectorate, Distt. Korba (C.G.)

                                       ­­­­ Respondents

For Petitioner Mr. R. S. Baghel, Advocate For Respondent­State Mr. Sunil Otwani, Addl. AG For Respondent No.2 Mr. B. D. Guru, Advocate For Respondent No.5 None For Respondent No.6 Mr. Anadi Sharma, Advocate

Hon'ble Justice Shri Sanjay K. Agrawal

Order On Board

16/09/2021

1. The petitioner herein is merely aggrieved by

his non promotion on the post of Assistant

Superintendent and promotion of respondent No.6

on the post of Assistant Superintendent by

order dated 28.07.2011 (Annexure­P/11) passed

by the respondent No.3 on the ground that the

promotion was required to be done on the basis

of merit­cum­seniority, whereas it has been

done on the basis of seniority­cum­merit and if

the principle of merit­cum­seniority could have

been applied, the promotion could have been

granted to the petitioner, therefore, the

petitioner be granted notional promotion on the

post of Assistant Superintendent from the date

the respondent No.6 was promoted i.e.

28.07.2011.

2. When the matter is taken up for hearing, Mr.

Guru, learned counsel for the respondent No.2,

would submit that the petitioner has been

convicted vide judgment dated 30.11.2016 passed

by the learned Special Judge (Prevention of

Corruption), District Korba in Criminal Case

No.01/2014 for the offence punishable under

Section 7 read with Sections 13 (1) (d) & 13

(2) of the Prevention of Corruption Act, 1988

and on the basis of the petitioner's

conviction, the District Magistrate/Collector,

Korba vide order dated 23.12.2016 terminated

the services of the petitioner w.e.f.

30.11.2016 itself, as such he is the terminated

employee and notional promotion, if any, cannot

be granted to the petitioner and the petitioner

is not entitled to the same. In reply to the

said submission, Mr. Baghel, learned counsel

for the petitioner, would submit that the

appeal against the judgment of the Special

Court is pending consideration before the High

Court, therefore, even if the petitioner has

been convicted and thereafter terminated from

the service, this will not prejudice this Court

to determine the issue of grant of notional

promotion to the petitioner, which he is

otherwise entitled.

3. Mr. Sunil Otwani, learned State counsel, would

submit that since the petitioner has been

convicted on criminal charges and thereafter

terminated from the service on the ground of

conviction, the direction for consideration of

promotion by convening review DPC and further

direction to grant the notional promotion would

not be in accordance with law.

4. I have heard learned counsel for the parties,

considered their rival submissions made herein­

above and went through the records with utmost

circumspection.

5. True it is that the post of Assistant

Superintendent was to be filled up by the

respondent No.2 on the basis of merit­cum­

seniority as per the criteria for promotion

floated by the respondent No.2 itself vide

Annexure­P/1 and the post of Assistant

Superintendent has been filled up on the basis

of seniority­cum­merit and following the said

principle, the respondent No.6 has been

promoted to the post of Assistant

Superintendent vide order (Annexure­P/11) and

as such the principle of merit­cum­seniority

has not been followed and promotion on the post

of Assistant Superintendent has been done

contrary to applicable criteria, therefore,

this Court would have proceeded to consider the

claim of the petitioner on merits, but since

the petitioner as on today stands convicted for

the aforesaid offences by the jurisdictional

Criminal Court and on account of his conviction

on the criminal charges, he has also been

terminated from service, therefore, it would

not be appropriate to consider the matter on

merits and it would also be inappropriate to

remit the matter to the respondent No.2 to

convene the meeting of DPC to consider the case

of the petitioner and respondent No.6 in

accordance with law. It is stated at Bar that

the respondent No.6 has already been promoted

to the post of Naib Tahsildar and presently he

is working. It is placed on record.

6. Accordingly, the writ petition is dismissed

leaving the parties to bear their own cost (s).

Sd/­ Sanjay K. Agrawal Judge Nirala