Jharkhand High Court
Rajkumar Ravidas vs The State Of Jharkhand Through The ... on 1 September, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S). No. 138 of 2021
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Rajkumar Ravidas ......... Petitioner.
Versus
1. The State of Jharkhand through the Principal Secretary,
Department of Forest, Environment and Climate Change, Nepal
House, Doranda, P.O. & P.S. Doranda, District Ranchi.
2. The Principal Chief Conservator of Forest (HDFF), Department of
Forest, Environment and Climate Change, Govt. of Jharkhand, Van
Bhawan, Doranda, P.O. & P.S. Doranda, District Ranchi.
3. The Additional Chief Conservator of Forest, Department of Forest,
Environment and Climate Change, Govt. of Jharkhand, Van
Bhawan, Doranda, P.O. & P.S. Doranda, District Ranchi.
.......... Respondents.
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CORAM: THE HON'BLE MR. JUSTICE DR. S.N.PATHAK
(Through: Video Conferencing)
For the Petitioner : Ms. Khalida Haya Rashmi, Advocate
For the State : Mrs. Vandana Singh, Sr. SC-III
Mr. Ashwini Bhushan, AC to Sr.SC-III
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04/ 01.09.2021 Heard the parties.
2. The petitioner has approached this Court with a prayer for direction
upon the respondents to consider the case of the petitioner for promotion to
the post of Assistant Conservator of Forest from the date his juniors were
considered and also from the date when he became entitled for the same.
Further prayer has been made to consider the case of the petitioner for
notional promotion from the post of Range Forest Officer to the post of
Assistant Conservator of Forest in the scale of Rs.9300-34,800 with Grade
Pay of Rs.5400.
3. As per the factual matrix the petitioner was appointed to the post of
Range Officer of Forest on 26.02.1985 under Scheduled Caste Category in
the Department of Forest. After his appointment, petitioner served with the
Department for 36 long years on the same post on which he was appointed
without even a single promotion/ financial upgradation i.e. ACP/MACP. It
is the specific case of the petitioner that two vigilance cases bearing Nos.
12/1995 and 19/1995 respectively, pertaining to insecticide matters are
pending in the Court of Special Judge (ACB, Palamau at Daltonganj), but
neither any formal charge-sheet has been submitted nor charges have been
framed and the matter is pending since last 25 years. It is the case of the
petitioner that juniors to him namely, Sushil Oraon and Mangal Kashyap,
against whom also the vigilance cares are pending, have already been
granted promotion to the post of Assistant Conservator of Forest way back
on 10.01.2013 vide notification no. 90, with a stipulation that promotion
will be subject to outcome of the vigilance case.
4. Since neither promotion has been granted nor the case of the
petitioner has been considered and juniors to him against whom vigilance
cases were also registered and pending have already been promoted, the
petitioner has rushed to this Court for redressal of his grievances.
5. Ms. Khalida Haya Rashmi, learned counsel appearing for the
petitioner studiously argues that the action of the respondents shows malic
intention and frivolous act of pick and choose method which has been
adopted by the respondents while considering the case of others and
rejecting the case of petitioner. Learned counsel submits that even charges
have not been framed against petitioner and the criminal case is pending
since last 25 years. Learned counsel further argues that the case of the
petitioner for consideration by way of adhoc promotion was also
recommended by the Jharkhand Public Service Commission on 16.10.2016
but inspite of the same, the respondent-State has denied the promotion to
the petitioner.
6. To buttress her arguments learned counsel places heavy reliance on
the following judgments:
(I) State of Jharkhand Vs. Vinod Mani Diwakar & Ors. [2010 (2)
JLJR 89]
(II) Union of India and Ors. Vs. K.V. Jankiraman and Ors. [(1991)
4 SCC 109]; &
(III) State of Punjab & Ors. Vs. Chaman Lal Goyal [(1995) 2 SCC
570].
7. On the other hand, Mr. Ashwini Bhushan, learned counsel appearing
for the respondent-State vehemently opposes the contention of learned
counsel for the petitioner and submits that petitioner's case was not
considered as a criminal case was pending against him and till finalization
of the criminal case, petitioner is not entitled for any regular promotion.
However, since counter-affidavit has not been filed, he is not in a position
to justify the stand of the petitioner regarding promotion of similarly
situated persons or even juniors.
8. Be that as it may, having heard the rival submissions of the parties
and upon perusal of the documents brought on record, this Court is of the
considered view that case of the petitioner needs consideration. Admittedly,
promotion is not a right of an employee but there is always a right of
consideration. In the instant case pick and choose method has been adopted
which cannot be overlooked. Similarly situated persons and even juniors to
the petitioner, have been considered and granted promotion but the case of
the petitioner has not even been considered for promotion. Merely lodging
of vigilance case cannot take away the right of petitioner for consideration
of his case for promotion. The vigilance case has not even seen the light of
the day inasmuch as after lapse of 25 years from the date of lodging of the
said vigilance case, even charge-sheet has not been framed neither any
charge-sheet has been submitted and on the garb of vigilance case, the
petitioner has been deprived of the fruits of promotion for last 25 long
years. No one knows when the vigilance case will be concluded and
petitioner is going to superannuate on 31.07.2022 i.e. after 11 months. It
appears that respondents wants the petitioner to retire without getting the
fruits of promotion, which cannot be allowed.
9. The Hon'ble Apex Court in case of Union of India and Ors. Vs.
K.V. Jankiraman and Ors. (supra) has held as under:
16. On the first question, viz., as to when for the
purposes of the sealed cover procedure the
disciplinary/criminal proceedings can be said to have
commenced, the Full Bench of the Tribunal has held that
it is only when a charge-memo in a disciplinary
proceedings or a charge-sheet in a criminal prosecution
is issued to the employee that it can be said that the
departmental proceedings/criminal prosecution is
initiated against the employee. The sealed cover
procedure is to be resorted to only after the charge-
memo/charge-sheet is issued. The pendency of
preliminary investigation prior to that stage will not be
sufficient to enable the authorities to adopt the sealed
cover procedure. We are in agreement with the Tribunal
on this point. The contention advanced by the learned
counsel for the appellant-authorities that when there are
serious allegations and it takes time to collect necessary
evidence to prepare and issue charge-memo/charge-
sheet, it would not be in the interest of the purity of
administration to reward the employee with a promotion,
increment etc. does not impress us. The acceptance of
this contention would result in injustice to the employees
in many cases. As has been the experience so far, the
preliminary investigations take an inordinately long time
and particularly when they are initiated at the instance of
the interested persons, they are kept pending deliberately.
Many times they never result in the issue of any charge-
memo/charge-sheet. If the allegations are serious and the
authorities are keen in investigating them, ordinarily it
should not take much time to collect the relevant
evidence and finalise the charges. What is further, if the
charges are that serious, the authorities have the power
to suspend the employee under the relevant rules, and the
suspension by itself permits a resort to the sealed cover
procedure. The authorities thus are not without a remedy.
It was then contended on behalf of the authorities that
conclusions Nos. 1 and 4 of the Full Bench of the
Tribunal are inconsistent with each other. Those
conclusions are as follows: (ATC p. 196, para 39)
"(1) consideration for promotion, selection grade,
crossing the efficiency bar or higher scale of pay cannot
be withheld merely on the ground of pendency of a
disciplinary or criminal proceedings against an official;
(2) * * *
(3) * * *
(4) the sealed cover procedure can be resorted to only
after a charge memo is served on the concerned official
or the charge-sheet filed before the criminal court and
not before;"
17. There is no doubt that there is a seeming
contradiction between the two conclusions. But read
harmoniously, and that is what the Full Bench has
intended, the two conclusions can be reconciled with
each other. The conclusion No. 1 should be read to mean
that the promotion etc. cannot be withheld merely
because some disciplinary/criminal proceedings are
pending against the employee. To deny the said benefit,
they must be at the relevant time pending at the stage
when charge-memo/charge-sheet has already been issued
to the employee. Thus read, there is no inconsistency in
the two conclusions.
Further, the Hon'ble Apex Court in case of State of Punjab & Ors.
Vs. Chaman Lal Goyal (supra) has held as under:
9. Now remains the question of delay. There is
undoubtedly a delay of five and a half years in serving
the charges. The question is whether the said delay
warranted the quashing of charges in this case. It is trite
to say that such disciplinary proceeding must be
conducted soon after the irregularities are committed or
soon after discovering the irregularities. They cannot be
initiated after lapse of considerable time. It would not be
fair to the delinquent officer. Such delay also makes the
task of proving the charges difficult and is thus not also
in the interest of administration. Delayed initiation of
proceedings is bound to give room for allegations of bias,
mala fides and misuse of power. If the delay is too long
and is unexplained, the court may well interfere and
quash the charges. But how long a delay is too long
always depends upon the facts of the given case.
Moreover, if such delay is likely to cause prejudice to the
delinquent officer in defending himself, the enquiry has to
be interdicted. Wherever such a plea is raised, the court
has to weigh the factors appearing for and against the
said plea and take a decision on the totality of
circumstances. In other words, the court has to indulge in
a process of balancing. Now, let us see what are the
factors in favour of the respondent. They are:
(a) That he was transferred from the post of
Superintendent of Nabha Jail and had given
(sic up) charge of the post about six days
prior to the incident. While the incident took
place on the night intervening 1-1-1987/2-1-
1987 the respondent had relinquished the
charge of the said office on 26-12-1986. He
was not there at the time of incident.
(b) The explanation offered by the Government
for the delay in serving the charges is
unacceptable. There was no reason for the
Government to wait for the Sub-Divisional
Magistrate's report when it had with it the
report of the Inspector General of Prisons
which report was not only earlier in point of
time but was made by the highest official of
the prison administration, Head of the
Department, itself. The Inspector General of
Prisons was the superior of the respondent
and was directly concerned with the prison
administration whereas the Sub-Divisional
Magistrate was not so connected. In the
circumstances, the explanation that the
Government was waiting for the report of
the Sub-Divisional Magistrate is
unacceptable. Even otherwise they waited
for two more years after obtaining a copy of
the said report. Since no action was taken
within a reasonable time after the incident,
he was entitled to and he must have
presumed that no action would be taken
against him. After a lapse of five and a half
years, he was being asked to face an
enquiry.
(c) If not in 1992, his case for promotion was
bound to come up for consideration in 1993
or at any rate in 1994. The pendency of a
disciplinary enquiry was bound to cause him
prejudice in that matter apart from
subjecting him to the worry and
inconvenience involved in facing such an
enquiry.
11. The principles to be borne in mind in this behalf
have been set out by a Constitution Bench of this Court in
A.R. Antulay v. R.S. Nayak1. Though the said case
pertained to criminal prosecution, the principles
enunciated therein are broadly applicable to a plea of
delay in taking the disciplinary proceedings as well. In
paragraph 86 of the judgment, this Court mentioned the
propositions emerging from the several decisions
considered therein and observed that "ultimately the
court has to balance and weigh the several relevant
factors -- balancing test or balancing process -- and
determine in each case whether the right to speedy trial
has been denied in a given case". It has also been held
that, ordinarily speaking, where the court comes to the
conclusion that right to speedy trial of the accused has
been infringed, the charges, or the conviction, as the case
may be, will be quashed. At the same time, it has been
observed that that is not the only course open to the court
and that in a given case, the nature of the offence and
other circumstances may be such that quashing of the
proceedings may not be in the interest of justice. In such
a case, it has been observed, it is open to the court to
make such other appropriate order as it finds just and
equitable in the circumstance of the case.
12. Applying the balancing process, we are of the
opinion that the quashing of charges and of the order
appointing enquiry officer was not warranted in the facts
and circumstances of the case. It is more appropriate and
in the interest of justice as well as in the interest of
administration that the enquiry which had proceeded to a
large extent be allowed to be completed. At the same
time, it is directed that the respondent should be
considered forthwith for promotion without reference to
and without taking into consideration the charges or the
pendency of the said enquiry and if he is found fit for
promotion, he should be promoted immediately. This
direction is made in the particular facts and
circumstances of the case though we are aware that the
rules and practice normally followed in such cases may
be different. The promotion so made, if any, pending the
enquiry shall, however, be subject to review after the
conclusion of the enquiry and in the light of the findings
in the enquiry. It is also directed that the enquiry against
the respondent shall be concluded within eight months
from today. The respondent shall cooperate in concluding
the enquiry. It is obvious that if the respondent does not
so cooperate, it shall be open to the enquiry officer to
proceed ex parte. If the enquiry is not concluded and
final orders are not passed within the aforesaid period,
the enquiry shall be deemed to have been dropped.
13. The High Court has relied upon the decision of
this Court in State of M.P. v. Bani Singh2 on the question
of delay. That was a case where the charges were served
and disciplinary enquiry sought to be initiated after a
lapse of twelve years from the alleged irregularities.
From the report of the judgment, the nature of the
charges concerned therein also do not appear. We do
not know whether the charges there were grave as in this
case. Probably, they were not. There is another
distinguishing feature in the case before us: by the date
of the judgment of High Court, the major part of the
enquiry was over. This is also a circumstance going into
the scales while weighing the factors for and against. As
stated hereinabove, wherever delay is put forward as a
ground for quashing the charges, the court has to weigh
all the factors, both for and against the delinquent officer
and come to a conclusion which is just and proper in the
circumstances. In the circumstances, the principle of the
said decision cannot help the respondent.
10. The issue regarding adhoc promotion during the pendency of the
criminal case also fell for consideration before this High Court in case of
State of Jharkhand vs. Vinod Mani Diwakar and Ors. (supra) wherein,
the Division Bench of this High Court affirmed the order of Central
Administrative Tribunal holding therein that the petitioner was entitled for
promotion as the criminal case which is pending for more than 20 long
years has not been decided till date and as such the case of the petitioner
cannot be ignored. In the instant case, a vigilance case against the petitioner
has been pending since 1995 and 25 years have elapsed but the respondents
have not taken any decision regarding grant of adhoc promotion of the
petitioner. It would be apposite to direct the respondent-authorities to
consider the case of the petitioner for adhoc promotion during the pendency
of the criminal case, as already the case of the petitioner has been
recommended by the JPSC for promotion.
11. Under such circumstances, I hereby direct the respondents to hold a
fresh DPC for consideration of the case of the petitioner for grant of
promotion regular/ adhoc, taking into consideration the ratio laid down by
the Hon'ble Apex Court in case of Union of India and Ors. Vs. K.V.
Jankiraman and Ors. (supra) and State of Punjab & Ors. Vs. Chaman
Lal Goyal (supra) and further the judgment passed by this Court in case of
State of Jharkhand Vs. Vinod Mani Diwakar & Ors. and pass a reasoned
order to that effect within a period of three months from the date of receipt/
production of a copy of this order.
12. Needless to say, if the petitioner is found entitled for regular/ adhoc
promotion, the same shall be granted to him with all consequential benefits,
within a period of four weeks thereafter,
13. With the aforesaid observations and directions, the writ petition
stands allowed.
(Dr. S.N. Pathak, J.)
Kunal/-
