HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No. 3955/2008 (OA No.2058/1996) Date of Decision: May 5, 2009 Ashok Kumar & Ors. ……. Petitioners Versus State of H.P. & Ors. …….. Respondents. Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting? Yes For the petitioners : Ms. Ranjana Parmar, Advocate. For the respondents : Mr. R. K. Sharma, Sr. Addl. A.G. with Mr. Ankush Dass Sood, Addl. A. G. & Mr. R. P. Singh, Asstt. A. G. Sanjay Karol, J. (Oral) The petitioners were appointed as J.B.T. teachers on the following dates: Petitioner No. 1 : 1st September, 1964. Petitioner No. 2 : 26th September, 1963. Petitioner No. 3 : 3rd March, 1967. Petitioner No. 4 : 29th September, 1962. The Vigilance Department of the State, based on certain information, initiated action and found the petitioners to have indulged in various acts of corruption. FIR Nos. 7, 10 & 17 of 1986 were registered on 13.2.1986 and 29.5.1986. The matter was investigated and it was only some time in the year 1994 that the challan was actually presented in the Court for trial against all the petitioners. 2 The Special Judge, Una vide order dated 5.1.1995 in Corruption Case No. 5 of 1994 titled as State v. Salig Ram, and other connected cases discharged the petitioners. It is a matter of record that no separate departmental/ disciplinary proceedings were initiated against the petitioners, yet petitioners’ promotion to the post of Head Teacher/Central Head Teacher was ignored by the respondents and persons junior to them were promoted. Admittedly, person junior to Mr. Ashok Kumar was promoted on 1.9.1990, person junior to Mr. Shiv Dev was promoted on 3.6.1989, person junior to Mr. Charan Dass was promoted in December, 1994 and person junior to Mr. Sukh Dev was promoted in the year 1985-86. The petitioners served legal notice dated 20.5.1996 calling upon the State to review their decision, rectify their mistake and accord benefits to them. The Director, Primary Education Officer, Una in terms of letter dated 17.6.1996 (Annexure A-9) sought information from the Deputy Superintendent of Police but however, no further action was taken thereafter. Feeling aggrieved, petitioners filed the present petition, inter alia praying for the following relief:- “(i) that the respondents may be directed to convene review DPC and consider the applicants for promotion as Head Teacher and Central Head Teacher from the due dates with all consequential benefits; (ii) that respondents may further be directed to release the arrears of salary on account of the grant of 8/18 years of service benefits to them alongwith interest at the rate of some Nationalised Bank rate; 3 (iii) that the respondents may be directed to produce the entire record pertaining to the case for the perusal of this Hon’ble Court, (iv) that the respondents may be directed to pay the cost of this application throughout.” The respondents have opposed the petition primarily on the ground that an appeal against the judgment dated 5.1.1995 passed by the Special Judge, Una, H.P. is pending before this Court. It is the respondents categorical stand that the petitioners are not entitled for promotion till the final adjudication of the case. The respondent-State has also denied the petitioners’ claim for proficiency step-up after 8 and/or 18 years. This evidently is due to the petitioners’ alleged involvement in the said corruption case. It is also a matter of record that relying upon the decision of the Apex Court in Union of India & Ors. v. K.V. Jankiraman & Ors. (1991) 4 SCC 109, the respondent- State amended their relevant applicable Rules wherein the following clause was inserted:- “Para 6.4(4). No V.C.C. can be withheld unless and until charge memo/charge sheet has been served.” In K.V. Jankiraman (supra), the Apex Court has held that it is only when the charge-memo in the disciplinary proceedings or a charge- sheet in criminal prosecution is issued to the employee that it can be said that the departmental proceedings/criminal prosecution is initiated against the employee. Sealed cover procedure is to be resorted to only after the charge-memo/charge-sheet is issued. The Court clarified that promotion cannot be denied except for where disciplinary criminal proceedings are 4 pending and charge-memos are at the stage when charge memo/charge sheet already stands issued to the employee. K.V. Jankiraman (supra) has been followed subsequently in Union of India & Ors. v. Dr. Sudha Salahan (1998) 3 SCC 394, Bank of India & Anr. v. Degala Suryanareayana (1999) 5 SCC 762 & Union of India & Ors. v Sangram Keshari Nayak (2007) 6 SCC 704. The said proposition of law, therefore, holds even good, today. In fact in Sudha Salhan (supra), the Apex Court reiterated that the recommendations of the DPC can be placed in a sealed cover only if on the date of consideration of the name for promotion, the departmental proceedings had been initiated or were pending or on its conclusion final order had not been passed by the appropriate authority. The Court upheld the decision of the Central Administrative Tribunal, New Delhi, whereby under similar circumstances, the authorities therein were directed to promote the petitioners retrospectively from the date of appointment of the junior and also disburse the arrears of salary and allowances. The Apex Court in Sangram Keshari Nayak (supra) has also held that promotion is not a fundamental right. Right to be considered for promotion, however, is a fundamental right. Such a right brings within its purview an effective, purposeful and meaningful consideration. Suitability or otherwise of the candidate concerned, however, must be left at the hands of the DPC, but the same has to be determined in terms of the rules applicable therefor. Terms and conditions of an employee working under the Central Government are governed by the rules framed under the proviso appended to Article 309 of the Constitution of India or under a statute. The right to be promoted to a next higher post can, thus, be curtailed only by reason of valid rules. Such a rule again, however, cannot 5 be construed in a manner so as to curtail the right of promotion more than what was contemplated by law. In New bank of India v. N.P. Sehgal & Anr. (1991) 2 SCC 220, the Apex Court while dealing with the case of petitioners, whose promotion was ignored due to the pendency of criminal investigation and disciplinary proceedings, held that till such time the employee was not served with the charge sheet, it could not be stated that the disciplinary proceedings were either in process or had been initiated, thus depriving the petitioners’ promotion. But in R. Veerabhadram v. Govt. of A.P. (1999) 9 SCC 43, the Apex Court has held that mere acquittal in a criminal case by itself would not entitle the petitioner for a deemed promotion with retrospective effect from the date of promotion of a junior. In K. Veeraswami v. Union of India (1991) 3 SCC 655, it has been explained that charge sheet is nothing but a final report of Police Officer under Section 173 sub Section (2) of Cr.PC. On the completion of the investigation, the Police Officer investigating into the cognizable offence has to submit a report in the form prescribed by the State Government stating the particulars required to be filled in there. The report is an intimation to the Magistrate that upon investigation into a cognizable offence, the Investigating Officer has been able to procure sufficient evidence for the Court to inquire into the offence and the necessary information being sent to the Court. Record reveals that in 1990 persons junior to petitioners No. 1, 2 & 4 were promoted. Challan against petitioner No.1 Shri Ashok Kumar was filed on 5.9.1994 in FIR No. 7/86, dated 13.2.1986; Petitioner No.2 Shri Shiv Dass was filed on 22.9.1994 in FIR No. 11/86 dated 6 13.2.1986, Petitioner No.4 Shri Sukh Dev was filed on 5.9.1994 in FIR No.10/86, dated 13.2.1986. Admittedly, the respondents did not resort to the sealed cover procedure at the relevant time. In fact they were not even required to do so keeping in view the ratio of law laid down by the Apex Court as noticed hereinabove. Hence, in the absence of any disciplinary proceedings or challan having been filed in the Court, the respondents could not have ignored the petitioners claim on mere registration of the FIR which was pending investigation. The import of K.V. Jankiraman (supra), is not that the petitioners’ claim was to be ignored even if an FIR registered against them was pending investigation. In this view of the matter, the stand taken by the respondents that the case of petitioners No. 1, 2 & 4, for promotion cannot be considered till the final adjudication of the appeal arising out of an order of discharge is untenable in law. The submission made by Mrs. Ranjana Parmar, learned counsel for the petitioners in support of the claim set up by petitioners No. 1, 2 & 4 is sustainable in law and their prayer needs to be allowed. With regard to claim of petitioner No.3 Shri Charan Dass, the facts are slightly different. Admittedly, person junior to the said petitioner was promoted in December, 1994. Record reveals that challan against him stood filed on 22.9.1994 in the Court of Special Judge, Una, H.P. in Corruption Case No. 10/1994 titled as State of H.P. v. Charan Dass & Anr. decided. Petitioner No.3, therefore, can be stated to have been served with “charge sheet in a criminal prosecution” instituted against him. Hence, the said petitioner’s prayer for promotion from the date his juniors were promoted cannot be allowed. 7 However, with regard to the grant of proficiency step-up record reveals that even he had completed 18 years of service in the year 1985, i.e. prior to 1994 when the challan was presented in the Court. Hence, this prayer alone can be granted. In view of the aforesaid reasons, the respondents are directed to convene a Review DCP and consider the case of the petitioners’ No. 1, 2 & 4 for promotion as Head Teacher and Central Head Teacher from the date when persons junior to them were considered and promoted and accord all consequential benefits. All the petitioners shall be entitled to the benefits of proficiency step-up, in accordance with law. As a corollary of the same, the respondents shall also disburse all consequential benefits, if any, to the petitioners within a period of three months from today, failing which, petitioners shall be entitled to interest @ 9% per annum. The petition stands disposed of accordingly. ( Sanjay Karol ), Judge. May 5, 2009 (rana)