Madhya Pradesh High Court

C.S. Sankule vs The State Of Madhya Pradesh on 26 October, 2021

Author: Vishal Mishra

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             HIGH COURT OF MADHYA PRADESH

                        W.P.No. 18453/2020

             (C.S. Sankule Vs. State of M.P. and others)


Jabalpur, Dated : 26.10.2021


       Shri Siddharth Sharma, learned counsel for the petitioner.
       Shri Tapan Bathre, learned P.L. for respondent -State.

The present petition under Article 226 of the Constitution of India

has been filed challenging the inaction of the respondents - authorities in

not considering the case of the petitioner for promotion and not opening

the sealed cover and not convening the DPC for considering the case of the

petitioner for promotion.

It is submitted that the petitioner was initially appointed in the year

1986 as Assistant Engineer and was promoted as Executive Engineer,

vide order dated 7.12.1998 and thereafter as Executive Engineer, vide

and order dated 10.6.2006 he was promoted as Superintendent Engineer,

and as Chief Engineer, vide order dated 19.8.2009. The petitioner was due

for promotion to the next promotional post from the post of Chief

Engineer to the post of Engineer- in -Chief. While, he was posted at

Bhopal, a show cause notice was issued to him on 8.2.2010 on the basis of

a report submitted by the Public Accounts Committee and the petitioner

was asked to furnish his reply to the show cause notice. The same was

promptly replied by the petitioner pointing out the fact that no misconduct

has been done by him. During the pendency of the show cause notice, the

DPC was held on 26.3.2011 for considering the case of promotion to the

post of Engineer -in -Chief and the recommendations with respect to the

petitioner were kept in the sealed cover. One Shri M.M. Khera was

recommended for promotion to the post of Engineer- in -Chief and the

petitioner was kept at sl. no. 1 in the waiting list and his case was kept

in the sealed cover. Consequential promotion order was passed on

30.4.2011 in favour of Shri M.M. Khera. By the time, he had attained the

age of superannuation and he was retired and the person whose name

finds at Sl. No. 2 in the waiting list, who was junior to the petitioner, Shri

one Shri N.K. Sehra has been promoted as Engineer- in -Chief.

It is argued that the show cause notice was not with respect to

initiation of any departmental enquiry and on the basis of show cause

notice only minor penalty could have been imposed against the petitioner.

No charge sheet was issued to the petitioner at any point of time.

Despite of the same, the recommendations of the DPC was kept in the

sealed cover.

Some executive instructions were issued by the State Government

on 29.11.2012 and the authorities keeping in view the reply filed by the

petitioner to the show cause notice has arrived at a conclusion that no

case is made out against the petitioner and the entire proceedings were

dropped and a clean chit was given to the petitioner, vide order dated

13.9.2013. The petitioner immediately approached the respondents

authorities requesting to open the sealed cover by filing a representation

on 17.12.2013. When no heed was given by the authorities, second

representation was submitted on 3.11.2014 to grant promotion to the

petitioner by opening the sealed cover. The junior to the petitioner, N.K.

Sehra submitted an application for grant of voluntary retirement. The

same was accepted on 12.12.2014, meaning thereby the post stood

vacant for consideration. The petitioner again and again submitted

representations for opening of the sealed cover, vide representations dated

4.7.2016, 27.4.2017, 03.5.2017, but of no consequence.

On petitioner personally approaching the respondent -department, it

was informed that his file is not traceable in the department. A letter was

issued by the State Government dated 10.1.2020 to the Principal Secretary

that file relating to the petitioner is missing and the department is facing

difficulty to decide the petitioner's case. A committee was constituted by

the State Government to trace the file of the petitioner, vide order dated

10.1.2020. The Committee after due enquiry has submitted the report to

the department stating that the file relating to the petitioner is not

traceable. The State Government considering the fact that the petitioner's

file is not traceable, by order dated 13.3.2020 took the decision to hold a

review DPC for the year 2011 for consideration of the case of the

petitioner. The aforesaid was approved by the Principal Secretary, Public

Health Engineering Department and has recommended to promote the

petitioner. The same was sent to the Chief Secretary of the State of

Madhya Pradesh. The promotion of the petitioner was also approved by the

General Administration Department observing that the petitioner was never

at fault at any point of stage and deserves to be promoted. The note

sheet dated 17.9.2020 clearly reflects the aforesaid. The instructions issued

have not been implemented till date, owning to the fact that SLP No.

13954 of 2016, (The State of Madhya Pradesh Vs. R.B. Rai) is

pending before the Supreme Court and the State Government was in

dilemma to hold the DPC or not as the order of status quo was granted

by the Supreme Court in the matter of reservation and finally the meeting

was convened again and the decision has been taken on 23.10.2020 not

to hold the review DPC. Being aggrieved by the action of the authorities

the present petition has been filed.

It is submitted that once the respondent -department themselves

have taken a decision to drop the show cause notice issued against the

petitioner, then the stage at the time of keeping the case of the petitioner

in sealed cover automatically arrives and the respondents are duty bond

to hold the review DPC for consideration of petitioner's case. As at the

relevant time, there was no case pending before the Supreme Court and

there was no interim order. He has placed reliance passed by the

Supreme Court in the case of Union of India and others Vs. K.V.

Jankiraman and others reported in (1991) 4 SCC 109, wherein the

Hon'ble Supreme Court considering the similar circumstances has held

that the sealed cover is to be opened in case of complete exoneration of

the employees from all charges. He has further replied upon the judgment

passed in the case of M.R. Gupta Vs. Union of India and others

reported in (1995) 5, SCC, 628 and has argued that after exoneration

of the petitioner, i.e. after dropping of the show cause notice issued

earlier position has been restored and the petitioner was entitled for

consideration of his case for promotion to the post of Engineer -in-Chief

being the senior most employee in the department. He has drawn

attention of this court to the return filed by the respondents and has

submitted that they have not countered aforesaid submissions of the

petitioner in their return.

Per contra, counsel appearing for the respondent -State by filing

the return has denied all the contentions of the petitioner and has

contended that the validity of the select list has lost its efficacy by efflux

of time. The respondents have contended that the petitioner has never

approached the authorities for redressal of his grievances. It is argued

that in terms of rules of M.P. Public Health Engineering Gazetted Service

Recruitment Rules 1980, (in short "the Rules of 1980"), Rule 17(4) speaks

of validity of the waiting list or the select list and maximum life of the

same is for eighteen months. The DPC proceeding took place on

26.03.2011 and the life of the waiting list has expired 29.9.2012, in view of

the Rule 17 (4) of the Rule of 1980. In such circumstances, no

consideration of the case of the petitioner could be made after lapse of

almost nine years. The writ petition has been filed after an inordinate

delay without even explaining the reasons for delay. He has prayed for

dismissal of the writ petition.

It is seen from the records that the State Government has

constituted a Committee for enquiring into the matter as the file with

respect to the sealed cover procedure was lost by the authorities. The

enquiry report was submitted by the Committee, wherein, it was observed

that file relating to the petitioner is not traceable and considering the

enquiry report, a decision was taken by the State Government that as the

petitioner was never at fault and has already been exonerated and given

a clean chit, therefore, the decision was taken to convene a review DPC

to consider the case of the petitioner for promotion to the post of

Engineer - in- Chief. However, considering the pendency of the case

before Hon'ble Supreme Court, in SLP No. 13954/2016, (The State of

Madhya Pradesh Vs. R.B. Rai) again a decision was taken not to convene

a review DPC.

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

From perusal of the record, it is an admitted position that the

petitioner was due for promotion to the post of Engineer-in-Chief. At the

relevant time a show cause was issued to him and sealed covered

procedure was adopted by the authorities. The decision was taken by

the authorities of the State Government to drop the show cause notice

issued against the petitioner. It is not disputed that show cause notice

was dropped and no charge sheet was ever issued against the

petitioner at any point of time. An incumbent, who has been granted

promotion stood superannuated at the time when the promotion order

was passed on 30.4.2011 and the person whose name appears at sl. no. 2

in the waiting list was granted promotion as the petitioner's case was

kept in a sealed cover. The respondents - authorities in all fairness should

have opened the sealed cover and should have considered the case of the

petitioner for promotion to the post of Engineer- in -Chief, once the

decision is taken to drop the show cause notice. The aforesaid aspect was

considered by the Hon'ble Supreme Court in the case of Union of India

and others Vs. K.V. Jankiraman and others, (supra) and 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 chargesheet 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/chargesheet. 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:

"(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 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.

25. We are not much impressed by the contentions advanced on behalf of the authorities. The normal rule of "no work no pay" is not applicable to cases such as the present one where the employee although he is willing to work is kept away from work by the authorities for no fault of his. This is not a case

where the employee remains away from work for his own reasons, although the work is offered to him. It is for this reason that F.R. 17(1) will also be inapplicable to such cases.

26. We are, therefore, broadly in agreement with the -finding of the Tribunal that when an employee is completely exonerated meaning thereby that he is not 'found blameworthy in the least and is not visited with the penalty even of censure, he has to be given the benefit of the salary of the higher post along with the other benefits from the date on which he would have normally been promoted but for the disciplinary/ criminal proceedings. However, there may be cases' where the proceedings, whether disciplinary or criminal, are, for example, delayed at the instance of the employee or the clearance in the disciplinary proceedings or acquittal in the criminal proceedings is with benefit of doubt or on account of non-availability of evidence due to the acts attributable to the employee etc. In such circumstances, the concerned authorities must be vested with the power to decide whether the employee at all deserves any salary for the intervening period and if he does, the extent to which he deserves it. Life being complex, it is not possible to anticipate and enumerate exhaustively all the circumstances under which such consideration may become necessary. To ignore however, such circumstances when they exist and lay down' an inflexible rule that in every case when an employee is exonerated in disciplinary/ criminal proceedings he should be entitled to all salary for the intervening period is to undermine discipline in the administration and jeopardise public interests. We are, therefore, unable to agree with the Tribunal that to deny the salary to an employee would in all circumstances be illegal. While, therefore, we do not approve of the said last sentence in the first sub-paragraph after clause (iii) of paragraph 3 of the said Memorandum, viz.. "but no arrears of pay shall be payable to him for the period of notional promotion preceding the date of actual promotion", we direct that in place of the said sentence the following sentence be read in the Memorandum:

"However, whether the officer concerned will be entitled to any arrears of pay for the period of notional promotion preceding the date of actual promotion, and if so to what extent, will be decided by the concerned authority by taking into consideration all the facts and circumstances of the disciplinary proceeding/criminal prosecution. Where the authority denies arrears of salary or part of it, it will record its reasons for doing so."

In the case of M.R. Gupta Vs. Union of India and others,

(supra), the Hon'ble Supreme Court has considered the aspect that

"continuing wrong gives rise to recurring cause of action every

month on the occasion of payment of salary and other

entitlements".

The petitioner was denied promotion on the ground of issuance

of show cause notice and keeping the case of the petitioner in sealed

cover, but even after exoneration of the petitioner and even after

giving clean chit to the petitioner, the sealed cover was not opened.

Admittedly, the petitioner was one of the senior most employee in the

respondent - department and was fully qualified for promotion to the

post of Engineer- in- Chief. In such circumstances, the action taken by the