Patna High Court
Shailesh Mishra vs The State Of Bihar And Ors on 11 November, 2024
Author: Harish Kumar
Bench: Harish Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.2265 of 2019
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Shailesh Mishra, S/o- Surya Narayn Mishra, R/o- Ruchira Apartment, Flat no-
3/B, Anugrah Narayan Path, North Sri Krishnapuri, P.S.- Sri Krishnapuri,
Patna. At Present Posted as Executive Engineer (Monitoring) Road
Construction Department, Road Circle, Purnea, Bihar.
... ... Petitioner/s
Versus
1. The State of Bihar.
2. The Principal Secretary Road Construction Department Bihar, Patna.
3. The Deputy Secretary (Management Cell) Road Construction Department
Bihar, Patna.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Uday Bhan Singh, Advocate
For the Resp- State : Mr. Mahtab Alam, Advocate
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CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR
ORAL JUDGMENT
Date : 11-11-2024
Heard Mr. Uday Bhan Singh, learned counsel for the
petitioner and Mr. Mahtab Alam, learned counsel for the State.
2. The petitioner by filing the present writ petition
prays for issuance of a writ in the nature of certiorari seeking
quashing of the order contained in Memo No. 7173(S) dated
17.09.2018
issued under the signature of Joint Secretary, Road
Construction Department, whereby the claim of the petitioner
for grant of 2nd MACP has been rejected.
3. The short facts which led to the filing of the present
writ petition are that the petitioner was initially appointed to the
post of Assistant Engineer on 25.06.1987. On being found
Patna High Court CWJC No.2265 of 2019 dt.11-11-2024
eligible, the petitioner was extended the benefit of 1st ACP w.e.f.
09.08.1999. While the Screening Committee convened meeting
on 08.11.2012 to consider the claim of the Assistant Engineers
(Civil), Road Construction Department for grant of 2nd MACP;
nonetheless, the name of the petitioner finds place at SI. No.
218, it has not been found favour on account of the alleged
pendency of departmental proceeding as well as criminal
proceeding.
4. Learned counsel for the petitioner while assailing
the order impugned contended that the rejection of the claim of
the petitioner was totally misplaced, as the date on which the
petitioner became entitled to get the benefit of 2 nd MACP on
09.08.2009 and the date on which the Screening Committee
considered the claim of the petitioner along with others for grant
of benefits under the 2nd MACP on 08.11.2012, there had neither
been any departmental proceeding nor a criminal case pending
against him. Drawing the attention of this Court to the
impugned order, it is further contended that the promotion of a
government servant may be denied only on account of the
pendency of disciplinary/criminal proceeding or in case the
employee(s) is under suspension. The disciplinary proceeding is
said to be pending only with effect from the date on which the
Patna High Court CWJC No.2265 of 2019 dt.11-11-2024
memo of charge has been issued. So far the criminal proceeding
is concerned, it is said to be pending with effect from the date
when the charge-sheet is submitted, is the contention of learned
counsel.
5. Referring to the afore-noted contention, learned
counsel for the petitioner contended that admittedly the date on
which the claim of the petitioner was under consideration before
the Screening Committee, there was neither memo of charge
issued to the petitioner nor the charge-sheet was filed in a
criminal case. Thus, in no circumstances, it can be said that the
departmental proceeding/judicial proceeding was pending
against the petitioner.
6. On the other hand, learned counsel for the State
countering the afore-noted submissions of the petitioner
vehemently contended that the impugned order as contained in
Annexure-5 clearly reveals that apart from the pendency of
Vigilance P.S. Case No. 54 of 2010, there was recommendation
made by the Patna Municipal Corporation for initiation of
departmental proceeding. It is further contended that in the
afore-noted criminal case, vide order dated 60 dated 05.07.2013,
sanction for prosecution has also been accorded and the
petitioner is still facing criminal case along with the
Patna High Court CWJC No.2265 of 2019 dt.11-11-2024
departmental proceeding. Learned counsel for the State
supported the impugned order by making the submissions as
afore-mentioned.
7. This Court has heard learned counsels for the
respective parties.
8. The grant of MACP benefit is not a matter of right
and it is after the Screening Committee finds that the officer
meets the benchmark that an upgradation can be granted.
9. From the materials available on record, it appear
that the date on which the Screening Committee convened
meeting and the claim of the petitioner was under consideration
along with other Assistant Engineers (Civil), there was neither
any memo of charge issued against the petitioner nor any
charge-sheet was submitted in Vigilance P.S. Case No. 54 of
2010.
10. The Hon'ble Supreme Court in the case of Union
of India and Others v. K.V. Jankiraman and Others [(1991)
4 SCC 109] has in no uncertain terms clarified the position as to
on which date the departmental/judicial proceeding shall be
deemed to have been initiated. The Hon'ble Supreme Court
unequivocally held that it is only when a charge-memo in a
disciplinary proceedings or a charge-sheet in a criminal
Patna High Court CWJC No.2265 of 2019 dt.11-11-2024
prosecution is issued to the employee that it can be said that the
departmental proceedings/criminal proceeding is initiated
against the employee. To deny promotion, the
disciplinary/criminal proceeding must be at the relevant time
pending at the stage when the charge-memo/charge-sheet has
already been issued to the employee.
11. It would be apt and proper to quote paragraphs 16
and 17 of the afore-noted decision to clarify the position.
"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
Patna High Court CWJC No.2265 of 2019 dt.11-11-2024
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.
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,
Patna High Court CWJC No.2265 of 2019 dt.11-11-2024
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."
12. In view of the settled legal position as also the
Resolution No. 7457 dated 11.09.2002 issued by the
Government of Bihar in the General Administrative Department,
this Court has no hesitation to hold that the departmental
proceeding is said to have been initiated with effect from the
date when the memo of charge is issued or in case of judicial
proceeding, the charge-sheet is submitted.
13. In the case in hand, the date on which the claim of
the petitioner was considered by the Screening Committee, there
was neither any memo of charge issued nor the charge-sheet was
submitted in Vigilance P.S. Case No. 54 of 2010; hence, there
was no departmental proceeding/criminal case pending against
the petitioner, the date on which the Screening Committee
convened the meeting.
14. In view of the aforesaid facts, this Court finds that
the impugned order as contained in Memo No. 7173(S) dated
17.09.2018 is unsustainable and accordingly it is hereby set
aside.
15. The matter is remitted to the concerned
Patna High Court CWJC No.2265 of 2019 dt.11-11-2024
department authorities, who shall place the case of the petitioner
in the forthcoming Screening Committee for grant of 2nd MACP,
in accordance with law.
16. Suffice it to say that on the recommendation of the
Screening Committee, the concerned department shall ensure
consequential benefits to the petitioner, preferably within a
period of twelve weeks from the recommendation made by the
Screening Committee.
17. The writ petition stands allowed to the extent
indicated above.
(Harish Kumar, J)
rohit/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 14-11-2024
Transmission Date
