CIVIL WRIT PETITION NO.641 OF 2011 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: JANUARY 14 ,2011 Ram Dhan Pandir .....Petitioner VERSUS State of Haryana and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Pankaj Bhardwaj, Advocate, for the petitioner. **** RANJIT SINGH, J. Through the present writ petition, the petitioner has not only prayed for mandamus to promote him on the post of Chief Engineer, he being the senior-most Superintending Engineer, but has also made a grievance about an order whereby current duty charge of the post of Chief Engineer given to the petitioner has been withdrawn. The petitioner would plead that current duty charge of the post of Chief Engineer has been withdrawn without affording any opportunity of hearing and, thus, would be bad on that count. A just prior to filing of the present writ petition, the petitioner had filed Civil Writ Petition No.141 of 2011, making a CIVIL WRIT PETITION NO.641 OF 2011 :{ 2 }: challenge to the action of the respondents in withdrawing current duty charge of the post of Chief Engineer from him, which he withdrew, when the counsel was asked to explain whether he would have any right to hold the current duty charge. Ofcourse, the petitioner had withdrawn this writ petition with liberty to file fresh one, as he wanted to come out with some better facts and, thus, follows the present writ petition. Apparently, nothing new or better really has been averred in the present petition. While arguing the present petition, the counsel has laid more stress on his promotion rather than the action of withdrawing current duty charge. The counsel pleads that the respondents are not justified in bringing a person on deputation to the post of Chief Engineer, when eligible persons like the petitioner are available for promotion and when their claim has not been considered for promotion. The petitioner claims that he has been meritorious while performing his duties and was promoted as Xen in 1985, followed by promotion to the post of Superintending Engineer in October 2008 with effect from 2003. The petitioner apprehends that cause of his trouble is an application submitted by him on 29.3.2010 for grant of leave of kind due from 29.3.2010 to 30.6.2010. As per the petitioner, he has ventilated his grievance to respondent No.2 in the said application as he was apprehending a threat of false implication. The petitioner has annexed the copy of this application with the petition as Annexure P-1 and perusal thereof would show that the petitioner was under an apprehension that some seniors of the Board would CIVIL WRIT PETITION NO.641 OF 2011 :{ 3 }: spoil his career by implicating him in some false cases as he had pointed out certain irregularities regarding sub-standard works during his inspections. In this application, the petitioner has also claimed that he has pointed out certain irregularities and excess payments made to the agencies in the case of development of Timber Market at Manakpur (M.C.Jagadhri) and development of Grain Market at Raipur Rani. It appears that what the petitioner has expressed in his application, Annexure P-1, is a mere apprehension and is not borne out by any tangible facts on record. If the apprehension of the petitioner had been genuine, he would not have been given the current duty charge of the post of Chief Engineer on 5.10.2010. The petitioner himself has disclosed that he being the senior-most Superintending Engineer was given this current duty charge for performing the duties of Chief Engineer. On this basis, the petitioner contends that he deserves promotion to the post of Chief Engineer. Indeed, the case of promotion of the petitioner to the post of Chief Engineer was considered by the Administrative Committee and thereafter the same was forwarded to the Legal Remembrancer, Haryana, for opinion. As per the petitioner, he suffered only because he had expressed himself freely about maladies in the Board while asking for leave. This letter, says the petitioner, has been annexed with the writ filed in public interest by one Anand Parkash against the conduct of the office bearers of the Board. In this writ petition, Anand Parkash has prayed for holding an enquiry by an independent agency into the gross irregularities and the corrupt practices followed CIVIL WRIT PETITION NO.641 OF 2011 :{ 4 }: by respondent No.2. This Court has issued notice in this writ petition filed as public interest, which is now pending adjudication. As per the petitioner, it is assumed that the petitioner has supplied this letter to Anand Parkash, who has used the same for highlighting the gross irregularities. On account of this, respondent No.2 is holding a grudge against the petitioner and so would link the action of taking current duty charge from him to this episode. The facts, however, are contrary to this position. The reasons for which the current duty charge has been withdrawn from the petitioner, rather are available on record and can be seen from Annexure P-9, which the petitioner himself has placed on record. It is seen that Vigilance Bureau had lodged an FIR against some defaulter with the allegation that below standard construction work was carried out in Panipat Division. The petitioner was working as Executive Engineer in this Division at the relevant time. He was placed under suspension on this count on 29.5.1998 but was reinstated on 23.4.1999. His suspension period was also treated as duty period. Subsequently, however, an order was passed on 12.6.2006 for issuing charge sheet to the petitioner under Rule 7 of the Punishment and Appeal Rules. Since the power for taking disciplinary action was with the Departmental Action Committee, the order for issuing charge sheet was confirmed in a meeting held on 20.6.2007. The draft charge sheet was prepared and sent to Legal Cell for vetting. During this time, a judgement passed by Special Judge, Panipat, dated 22.5.2006 was also received. The Special Judge has commented on the role of Investigating Officer of the CIVIL WRIT PETITION NO.641 OF 2011 :{ 5 }: Vigilance Department and of the officers of the Board for not prosecuting the petitioner and one Sh.P.S.Rawat, who had not been challaned. The Court had accordingly asked the Chief Secretary to investigate this issue. This matter was also placed before Departmental Action Committee in its meeting dated 26.9.2007. A decision was taken to pend the charge sheet till the Government was considering the issue. The Board had also approached the Chief Secretary for advice as to whether the enquiry under contemplation be got conducted by the Government or the Enquiry Officer detailed by the Board. Against this, the petitioner had approached this Court through Criminal Misc. No.9387 M of 2008 and got a stay order on the implementation of the judgement of Special Judge from this Court on 10.4.2008. The case of initiating or taking action against the petitioner is accordingly pending and has been delayed unduly. The Board had approached the Advocate General for getting the case expedited or for vacation of stay and in this period, the petitioner was promoted as Superintending Engineer on 13.5.2009 w.e.f. 23.7.2003 i.e. the date from his juniors were promoted. In this background, the Administrative Committee had decided to refer the matter of promotion of the petitioner to the post of Chief Engineer to L.R. for opinion. This being the background, the petitioner has not been considered for promotion and rather the Board has rightly taken action to withdraw current duty charge. This action has been taken in consultation with the Chief Minister, who has rightly directed the withdrawal of current duty charge due to CIVIL WRIT PETITION NO.641 OF 2011 :{ 6 }: pending enquiries against the petitioner. It is rightly noticed that all the enquiries should be taken to logical conclusion. Despite specific query by the Court, the counsel could not make any meaningful submission to show that the petitioner had a right to hold the current duty charge of the post of Chief Engineer and that if this charge was to be withdrawn, the petitioner was required to be afforded opportunity of hearing. Once the petitioner has not been able to show that he has a right to hold the current duty charge or that he has any legal right in this regard, which has been violated, right to be heard before withdrawing the current duty charge can not be pleaded. The justifications for withdrawing the current duty charge appears valid as the petitioner is facing departmental enquiry and there is likelihood of his facing prosecution. But for the stay granted by this Court, the issue may have, by now, been considered and decided by the respondents. The petitioner, being under serious clout, certainly is asking for premium over his misconduct, which is under serious scrutiny not only of department but of criminal prosecuting agency. For same reason, the petitioner can not claim any preferential right for promotion, till he comes clean in regard to the enquiries, which are pending and are at a stage of more than contemplation. The petitioner is lucky enough to be promoted to the post of Superintending Engineer despite the strong observations made by the criminal court in regard to his conduct and for his prosecution. He certainly can not ask for further advancement, till he proves his innocence. For the same reason, the petitioner can not make a CIVIL WRIT PETITION NO.641 OF 2011 :{ 7 }: grievance about the action of the department in bringing someone to the post of Chief Engineer on deputation. The reliance placed by the petitioner on the case of Gujarat Housing Board Engineers Association and another Vs. State of Gujarat and others, (1994) 2 SCC 24, would not be relevant, considering the facts and circumstances of this case. The preferential claim of departmental promotees over deputationists would arise for consideration only if some suitable candidate is available for appointment by way of promotion. Even in Gujarat Housing Board Engineers Association's case (supra), it is observed that appointment to the post on deputation could be made only if suitable eligible candidate is not available for appointment by way of promotion from amongst the eligible candidates. Since the right of the petitioner for promotion is eclipsed because of his conduct being under scrutiny, the action of the respondents in appointing Chief Engineer by way of deputation, can not be faulted on any count. There is, thus, no merit in any of the pleas raised by counsel for the petitioner. The writ petition is, therefore, dismissed. January 14,2011 (RANJIT SINGH ) khurmi JUDGE