Madhya Pradesh High Court
Satyendra Singh Parihar vs Principal Secretary The State Of ... on 6 August, 2021
Author: Vishal Dhagat
1 WP-1850-2011
The High Court Of Madhya Pradesh
WP-1850-2011
(SATYENDRA SINGH PARIHAR Vs PRINCIPAL SECRETARY THE STATE OF MADHYA PRADESH AND
OTHERS)
2
Jabalpur, Dated : 06-08-2021
Heard through Video Conferencing.
Shri Sanjay Kumar Agrawal, learned counsel for the petitioner.
Shri Anvesh Shrivastava, learned Panel Lawyer for the State.
2. Petitioner has filed this writ petitioner making a prayer for issuance
of writ of mandamus commanding respondents to promote petitioner as
Assistant District Excise Officer (ADEO) w.e.f. date of promotion of
respondent No.3 namely Ravi Prakash Dubey and grant him all consequential
benefit such as difference of salary, seniority and increment. Petitioner was
appointed as Excise Sub Inspector on 21.09.1987. In gradation list for post
of Excise Sub Inspector as on 01.04.2009 name of petitioner appeared at
Serial No.12 and name of respondent No.3 appeared at Serial No.13.
Respondent No.2 i.e. Commissioner of Excise, Government of Madhya
Pradesh passed an order dated 16.09.2009 (Annexure-P/4) by which penalty
of censure was imposed upon petitioner.
3. DPC was convened for making recommendation from post of
Excise Sub Inspector to post of Assistant District Excise Officer on
12.01.2010. Petitioner was also in zone of consideration and his name was
considered. DPC did not recommend petitioner's name as he was not found
fit. Respondent No.3 was promoted on 01.04.2010 (Annexure-P/8) on post
of Assistant District Excise Officer. Many Officers junior to petitioner were
promoted vide said order. Case of petitioner was not consider as minor
penalty was imposed upon him. Petitioner preferred representation before
respondents authority and his representation was rejected and petitioner was
informed vide communication dated 02.12.2010 (Annexure-P/13) that he is
not found fit for promotion. Petitioner was again considered for promotion
and DPC made recommendation for his promotion on 24.12.2010 (Annexure-
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P/14).
4. Learned counsel appearing for petitioenr submitted that petitioner is
entitled to be promoted on post of Additional District Excise Officer from
01.04.2010 when juniors to petitioner were promoted. Imposition of minor
penalty of censure has no periodicity of effect and its only a one time penalty.
The effect of censure comes to an end the moment order was passed by
competent authority, therefore, petitioner was illegally denied promotion.
Criteria laid down by DPC for promotion to post of ADEO.
5. Learned counsel for petitioner relied on Apex Court judgment
reported in (1998) 9 SCC 261 [State of M.P. and Another Vs. I.A.
Qureshi]. On basis of same, counsel for petitioner makes a prayer that
petitioner may be promoted w.e.f. 01.04.2010 on post of ADEO when juniors
to petitioner were promoted and petitioner may be granted all consequential
benefit arising therefrom. Learned counsel for petitioner relied on circular
issued by Principal Secretary Establishment dated 02.05.1990 (Annexure-P/5)
and made submission that if minor penalty is imposed on a Government
Servant then his case shall be considered in subsequent DPC i.e. in DPC
which is convened after imposition of penalty and if said employee is found
fit then such employee can be promoted. If penalty of stoppage of increment
or to stop promotion is imposed upon him then he cannot be promoted
during the period of penalty and when penalty becomes ineffective only then
such employee can be considered for grant of promotion.
6. Learned counsel for the respondents submitted that penalty of
censure was imposed upon petitioner vide order dated 16.09.2009. Censure is
also one of the punishment mentioned in Rule 10 of Madhya Pradesh Civil
Services (Classification, Control and Appeal) Rules, 1966. It is further
submitted that DPC had categorically laid down criteria of obtaining 10 marks
on basis of last five year grading. Petitioner has wrongly interpreted the law
laid down by Apex Court in matter of I.A. Quershi (supra). Censure cannot
be equated with warning and it has been held that censure being a punishment
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cannot be equated with warning. DPC is required to do sealed cover
proceedings. An employee can be considered for promotion after conclusion
of disciplinary proceedings. Learned counsel appearing for State specifically
relied on paragraph No.7 and 8 on said judgment. Petitioner was granted
promotion later on when DPC made recommendation in favour of petitioner.
In view of same, counsel for State prays for dismissal of writ petition.
7. Heard the counsel for petitioner as well as respondents/State.
8. Apex Court took into consideration circular dated 02.05.1990 in
case of I.A. Qureshi (supra). Paragraph-8 of said judgment passed by Apex
Court is quoted as under:-
"8. We are unable to accept the said contention of Shri
Khanduja. "Censure" cannot be equated with a warning
since under Rule 10 of the M.P. Civil Services
(Classification, Control and Appeal) Rules, 1966,
"censure" is one of the minor penalties that can be imposed
on a government servant. It cannot, therefore, be said that
the penalty of censure which was imposed on the
respondent in the departmental proceedings was not a
penalty as contemplated in the circular dated 2-5-1990.
Once it is held that a minor penalty has been imposed on
the respondent in the departmental proceedings, the
direction given in the said circular would be applicable
and the sealed cover containing recommendations of the
DPC could not be opened and the recommendations of the
DPC could not be given effect because the respondent has
not been fully exonerated and a minor penalty has been
imposed. The respondent can only be considered for
promotion on prospective basis from a date after the
conclusion of the departmental proceedings.
9. Petitioner was imposed with penalty of censure on 16.09.2009 and
proceedings of DPC was held on 12.01.2010. Departmental enquiry against
petitioner was concluded when DPC was held, therefore, sealed cover
procedure is not to be followed in case of petitioner. In paragraph-9, criteria
for promotion adopted by DPC, it was laid down for against government
employee where currency of penalty had not come to an end were treated to
be unfit for promotion. Only question before this Court is "whether case of
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petitioner can be taken into consideration for grant of promotion in view of
imposition of penalty of censure on 16.09.2009?"
10. As per circular of State Government dated 02.05.1990, it was laid
down that if minor penalty has been imposed on a government servant then
case of such government servant shall be taken into consideration in future
DPC to be held and it was further clarified that if penalty of withholding of
increment or promotion is imposed upon him then case of such government
servant shall not be taken into consideration for promotion during the
currency of penalty and his case shall be considered when penalty period is
over. Though, censure is a minor penalty as described in Rule 10 of Madhya
Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966, but
there is no periodicity of said punishment. It is further clarified in circular
dated 02.05.1990 that only in cases where government servant is visited with
penalty of withholding of increment or promotion, his case shall not be
considered in future DPC till currency of penalty. Petitioner was imposed
penalty of censure on 16.09.2009. DPC was held on a future date i.e.
12.01.2010 and respondent No.3 was promoted vide order dated 01.04.2010.
On the date of convening of DPC, case of petitioner ought to have been
considered as he does not fall within criteria laid down in paragraph-9 of
DPC. Penalty on petitioner was not effective when DPC was convened on
12.01.2010. Petitioner does not fall within the mischief of Clause-9 of the
criteria laid down by DPC or in Clause-2 of circular dated 02.05.1990.
11. In view of aforesaid discussion, writ petition filed by petitioner is
allowed. Respondents are directed to convene a review DPC for
consideration of case of petitioner for grant of promotion from 01.04.2010
i.e. date when juniors to petitioner were promoted on the post of Assistant
District Excise Officer (ADEO).
12. Writ petition is disposed of.
(VISHAL DHAGAT)
JUDGE
Digitally signed by SHABANA ANSARI
Date: 2021.08.13 14:12:20 +05'30'
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shabana
