1 WP. No.20176/2015 & [CASE NUMBER] HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT JABALPUR Case No. W.P. No.20176/2015 & [CASE NUMBER] Parties Name W.P. No.20176/2015 [PRECEDENT] [PRECEDENT] Date of Judgment 23/04/18 Bench Constituted Single Bench. Judgment delivered by Justice [ENTITY] Whether approved for No. reporting Name of counsels for parties For Petitioners: Shri [ENTITY], Advocate. For Respondents No.1 to 5: Shri [ENTITY], Government Advocate. For Respondent No.6: Shri [ENTITY], Advocate Law laid down - Significant paragraph - numbers O R D E R
(23/04/2018) Regard being had to the similitude of the questions involved, these matters were analogously heard and decided by this common order. Facts are taken from [CASE NUMBER].
2. The challenge in this case is made to the order dated 10.9.2015 passed by District Education Officer, Raisen (Respondent No.5) whereby he has not relieved the petitioner despite promotion order dated 28.8.2015. It is urged that the reasons shown in impugned order dated 10.9.2015 for not relieving the petitioner are that the petitioner was promoted by order dated 28.8.2015 and was posted in Government Boys Higher Secondary School, Silwani, District Raisen on 3.9.2015. Petitioner's two increments were withheld as a measure of punishment. Thus, he was directed to join on the original institution namely; Government High School, Pratapgarh. In the said order, it is further stated that against the aforesaid punishment order in [CASE NUMBER], an interim order has been passed and matter is subjudice. Till final decision of the said case, petitioner cannot be relieved as per the promotion order.
3. The petitioner has attacked this order by contending that (i) petitioner was promoted by the order of State Government Annexure P/1, therefore, an inferior authority i.e. DEO cannot take a different view and deprive the petitioner from fruits of promotion; (ii) the punishment order against the petitioner has been stayed by this court in [CASE NUMBER]; (iii) there is no nexus of promotion with the order passed in [CASE NUMBER].
4. Per contra, the stand of the department in the return is that petitioner has not placed the complete and correct facts before this court. On the date of passing of promotion order dated 28.10.2015, the petitioner was undergoing punishment because of withholding of two increments with cumulative effect which was imposed by issuing the order dated 22.2.2014. In clause (2) of the promotion order itself, it was mentioned that before relieving the employees on promotion, it may be verified that they are not under cloud because of pendency of any disciplinary/criminal proceedings. It was also required to be ensured that they are not undergoing punishment. Clause (2) aforesaid, therefore, empowers the respondent No.5 to take a decision about relieving on such promotion.
5. It is averred that earlier by order dated 8.9.2000, a penalty of reversion from the post of Headmaster to UDT was imposed on the petitioner. Against this penalty order, the petitioner filed [CASE NUMBER]. The said writ petition was partly allowed by order dated 13.12.2012 and penalty order dated 8.9.2000 was quashed. The matter was remitted back to the inquiry officer to proceed further after affording opportunity to the petitioner. Thereafter, the competent authority passed the order dated 22.4.2014 and imposed a recovery of Rs.27,959/- against the petitioner in addition to imposing a penalty of withholding of two annual increments. The relevant penalty order dated 22.4.2014 is filed as Annexure R/2. The departmental appeal of the petitioner was rejected. Thus, for this reason also, the petitioner was under cloud and could not have been promoted.
6. Shri [ENTITY] filed synopsis/written submissions in these matters. Apart from reiterating the factual backdrop, emphasis is led on the point that in [CASE NUMBER] the punishment period was between 22.4.2014 to 21.4.2015 whereas promotion order was passed on 28.8.2015. Hence, currency of punishment was not a hurdle for the petitioner. Similar ground is taken in the other matter.
7. No other point is highlighted.
8. Aforesaid factual backdrop makes it clear that on the date petitioner was considered for promotion and was given promotion, he was under cloud and therefore as per clause (2) of the promotion order, the promotion order could not have been implemented.
9. An interesting question cropped up before the Supreme Court in 2013 (14) SCC 32 (Bhajan Singh vs. [ENTITY]) that whether an employee is entitled to reap the benefit of promotion when admittedly on the date of his consideration for promotion and on the date of promotion he was under cloud. The Selection Committee was not apprised about the disciplinary proceedings pending against the employee. The Supreme Court opined as under:
"21. The Principal Secretary to the Water Supply Department is the Chairman of the [ENTITY]. He was Respondent 3 to the writ petition and is Respondent 3 in this civil appeal. He was fully aware of the charge-sheets pending against Respondent 4. In fact he had signed the same. It was his duty and responsibility to place these charge-sheets before the Selection Committee of which he was a member. If the Secretary of the Department suppresses the relevant material, obviously the selection will not be on merit. This in fact raises a serious doubt about the integrity of the then Chairman of the [ENTITY]. In the circumstances we expect Respondent 1 [ENTITY] to hold appropriate inquiry as to why the Chairman of the [ENTITY] did not place the relevant material before the Selection Committee and take necessary corrective measure.
22. We are equally or more appalled at the manner in which the Division Bench concerned of the High Court has handled the matter. The High Court has totally ignored the law on this aspect. The relevant [SECTION] was brought to the notice of the High Court. Submissions were made thereon, and yet the High Court held that the law permitted the selectors to ignore altogether the charges inasmuch as according to the Division Bench, the same bears only an accusation against him and that the integrity of a person cannot be questioned only on the basis of an allegation against him. As stated earlier we are not concerned with the merits of the allegations. The Selection Committee was not apprised of the three charge-sheets at all. This was clearly in breach of [SECTION], and the High Court has erred in ignoring this aspect.
23. In view of these facts, the selection of Respondent 4 was clearly faulted. The selection was in breach of the requirements of [SECTION] and, therefore, it will have to be set aside. The High Court has also seriously erred in not allowing the writ petition of the appellant herein. In the circumstances, we allow this appeal, set aside the judgment rendered by the Division Bench of the Uttarakhand High Court."
10. This is trite law that if employee is facing departmental enquiry/criminal case or he is undergoing punishment, during that period, he cannot be promoted. The promotion order in favour of petitioner is, therefore, clearly erroneous. If factum of pendency of inquiry or currency of punishment was not brought to the notice of [ACT], petitioner cannot take advantage of the same. The petitioner, in this factual backdrop, has no right to enjoy the fruits of such promotion which was issued during the period when he could not have been promoted. The decision of DEO is in consonance with clause (2) of the promotion order. The point raised in the written submission is devoid of merits for the simple reason that the [ACT]s pursuant to which promotion order dated 28.8.2015 Annexure P/1 were conducted on 5.11.2014 and 30.1.2015 which is evident from the order dated 28.8.2015. On the date of [ACT]s., the petitioner was admittedly undergoing punishment. The date of issuance of promotion order is of no significance. Thus, written submission will not improve the case of the petitioner.
11. I also find substance in the stand taken by the respondents that petitioner has not disclosed all relevant and material facts in the petition. The petitioner did not disclose that on the date of consideration and promotion, he was either facing departmental enquiry or undergoing the punishment, whereas in the impugned order dated 10.9.2015 (Annexure P/3), it was clearly mentioned that petitioner's two increments are withheld with cumulative effect. Thus, petitioner should have disclosed this fact about the said inquiry with accuracy and precision. The petitioner has not disclosed those facts in the pleadings. The petitioners have not filed the relevant charge-sheet, punishment order and appellate order, etc. to show whether on the dates [ACT]s were convened (5.11.2014 and 30.1.2015) whether they were under cloud i.e. facing departmental enquiry or undergoing punishment. For these reasons also, petitioner is not entitled to enjoy relief in the equity jurisdiction under [SECTION] of the [ACT]. This is trite law that the petitioner must approach the court with clean hands, clean mind, clean heart and clean objective. A person who approaches the court with a pair of dirty hands or does not disclose the complete material facts is not entitled for any relief. See [PRECEDENT], [PRECEDENT] ([PRECEDENT], [PRECEDENT], [PRECEDENT] ([PRECEDENT] and [PRECEDENT] ([PRECEDENT].
12. For these cumulative reasons, I find no reason to interfere in these petitions. Petitions fail and are hereby dismissed.
([ENTITY]) Judge YS/ Date: 2018.04.24 16:52:05 +05'30'