1 HIGH COURT OF MADHYA PRADESH : INDORE BENCH, INDORE (S. B.: Hon'ble Mr Justice S.C. Sharma) W.P No.1413/2009(s) Shiv Singh Vs. State of M.P. & Anr. Shri Prakash Verma learned counsel for the petitioners. Smt. Vinita Phaye, learned counsel for the respondents State. O R D E R (1.12.2011) The petitioner before this Court a constable serving the police department has filed the present petition claiming promotion to the post of Head Constable and on other higher post on account of his acquittal in criminal case as well as on account of his exoneration in the departmental enquiry. 2. The contention of the petitioner is that he was appointed as Constable on 14.12.87 and for an incidence which took place on 22.4.95 a criminal case was registered at Crime No.275/95 against him. The petitioner has further stated that a departmental enquiry was also initiated against him and during the pendency of the criminal case he was removed from service based upon the findings arrived at by the Inquiry Officer vide order dated 26.8.95 and his appeal against the removal order was also rejected on 2 15.11.95. The petitioner was finally convicted in the criminal case also and a criminal appeal was preferred i.e.Criminal Appeal No.954/97 and the same was allowed by this Court on 7.5.2003, meaning thereby he was acquitted by the High Court. The petitioner has further stated that a representation was preferred for reinstatement in service on account of his acquittal, however as nothing was being done, an Original Application was preferred before the M.P. State Administrative Tribunal and the same was transferred to this Court on abolition of M.P. State Administrative Tribunal. The case was heard by this Court i.e. W.P. No.4815/03 and the same was allowed on 24.1.2006. The petitioner has further stated that this Court directed reinstatement of the petitioner. Learned counsel for the petitioner has placed heavy reliance upon pragraphs 22 to 25 of the aforesaid judgment, which reads as under :- “In view of the aforementioned settled legal position and in view of marshalling of the facts of the present case, it is apparent that petitioner was not paid the subsistence allowance while continuation and conclusion of department enquiry. In such circumstance, passing an order of penalty on the vitiated enquiry proceedings is illegal. Simultaneously on the above discussion, facts of the present, it is apparent that the relevant documents which were relief upon in the departmental enquiry has not supplied to the petitioner. Relying those documents, order impugned has been passed petitioner has not been given due opportunity of hearing to cross-examine 3 because he was proceeded ex parte in the unreasonable manner. In such circumstances, the enquiry was concluded without affording due opportunity of hearing. Therefore, the entire enquiry is vitiated and on the basis of such enquiry, penalty orders are also liable to be set aside. In view of the facts of the present case, judgment of M.Paul Anthony (supra) is fully applicable. Therefore, the order of penalty as passed by the respondents is liable to be set aside. 23. Considering the cumulative effect of all the foregoing discussions, this petition is allowed and the order of penalty dated 26.8.1995 Annexure- A/10 and the order dated 15.11.1995 Annexure-A/ 12 are hereby quashed. 24. So far as grant of back wages is concerned, it is seen from the record that in a criminal case, the learned Sessions Court as per judgment dated 3.10.97 convicted him. The order of acquittal has been passed by the High Court on 7.5.2003. However, such a period in which the conviction was prevalent till acquittal by this Court, petitioner would not be entitled for back wages in view of the judgment of the Supreme Court in the case of Union of India Vs. Jaipal Singh (2004) 1 SCC 121. For the remaining period, he shall be entitled to get back wages and the entire period be treated as duty for all other purposes.” 3. In the earlier round of litigation the contention of the petitioner is that the back wages were denied only for the period starting from conviction to the date of acquittal meaning thereby w.e.f. 3.10.97 to 7.5.2003. The petitioner has further stated that a writ appeal was preferred i.e. W.A. 235/06 and the Division Bench of this Court in paragraph 7 has held as under :- “7. The provision contained in Regulation 241 provides that if a police officer is acquitted for the charge, he may not be punished departmentally when the offence for which he was tried constitute 4 the sole ground of punishment. In the case in hand, it is not on the basis of the sole ground of punishment that the departmental enquiry proceeded. The authorities have also power to proceed in cases where the acquittal was based on technical grounds. However, we do not see anything in the order of acquittal to come to the conclusion that the acquittal was based on a technical ground. Under these circumstances, the authorities are given liberty to proceed only on the basis of the surviving charges, if they so desire. In the event it is proposed to hold departmental enquiry on the surviving charges, the authority concerned shall take a final decision within three months from the communication of this order. In the meanwhile, respondent shall be reinstated though arrears of salary awarded by the learned Single Judge will depend upon the outcome of the enquiry, if any. With the above modification in the order impugned this appeal is disposed of with no order as to costs.” 4. The matter was remanded back by the Division Bench to the disciplinary authority to hold an enquiry in respect of the renaming charges and in respect of back wages and it was observed that the order in respect of arrears of salary has already been passed by the learned Single Judge and the same shall depend upon the outcome of enquiry, if any. It has also been argued before this Court that the departmental enquiry was also held and by an order dated 27.6.2008, the petitioner has been exonerated. The petitioner has preferred this petition for back wages for the entire period, claiming promotion to the next higher post and has also prayed for issuance of an appropriate writ, order or direction directing the respondents to treat the entire period as 5 duty period. Learned counsel for the petitioner has fairly stated before this Court that the respondents by passing the impugned order Annexure-P/1 have treated the entire period as duty period and, therefore, no further orders are required to be passed in respect of the aforesaid relief. 5. So far as the question of grant of back wages is concerned the order passed by the learned Single Judge and the order passed by the Division Bench makes it very clear that the petitioner would not be entitled for back wages w.e.f. 3.10.97 to 7.5.2003 meaning thereby from the date of conviction by the Sessions Court till the date of acquittal of the petitioner from this Court, therefore, the question of grant of back wages of the aforesaid period does not arise, however for the remaining period, if the back wages are not paid, the respondents are directed to grant the back wages for remaining period within 60 days from the date of receipt of certified copy of this order. The petitioner shall be entitled for back wages except for the period w.e.f. 3.10.97 to 7.5.2003. 6. In respect of 3rd relief the petitioner is claiming promotion with retrospective effect to the post of Drill Instructor. The contention of the petitioner is that the persons junior to him and his batch mates have been promoted on the basis of qualifying 6 the requisite test, which took place in the year 1994. The contention of the petitioner is that he has also qualified the aforesaid test, which took place in the year 1994 as this Court has also granted all consequential benefits, therefore, he is entitled for promotion at par with his juniors on account of qualifying the examination (test), which took place in the year 1994. The stand of the respondents is that on the basis of 1994 test the petitioner cannot be promoted as Drill Instructor, as the petitioner was not in employment at the relevant point of time when the promotion took place and he cannot be promoted only because he has passed the D.I. Course. The respondents have stated that the provisions governing the promotion at the relevant point of time were repealed by an order dated 16.5.97 and therefore as the relevant rules relating to promotion to Drill Instructor are not in existence, the petitioner is not entitled for promotion. 7. In the present case, the petitioner is not claiming his consideration afresh for the post of Drill Instructor, on the contrary he is claiming promotion on the basis of performance in the drill test/examination took place in 1994, therefore, merely because the provisions have now been repealed it cannot be said that the petitioner cannot be promoted on the post of Drill Instructor. Once, this Court has directed for reinstatement and 7 has granted other consequential benefits except back wages, the respondents are required to grant promotion to the petitioner on the post of Drill Instructor in case he has qualified the examination (test) and the persons, who were identically situated like the petitioner were promoted on the post of Drill Instructor prior to 1996. 8. Resultantly, the writ petition is allowed. The respondents are directed to pass necessary orders in respect of promotion of petitioner on the post of Drill Instructor by taking into account that the petitioner has successfully qualified the so called examination and the respondents shall not deny the right of promotion to the petitioner only because some orders have been issued subsequently in 1997 withdrawing the promotion rules relating to the post of Drill Instructor. It is needless to mention that the petitioner shall be entitled for seniority or other consequential benefits for the post of Drill Instructor. However his pay fixation be made notionally on higher post. He shall also be entitled for grant of notional increments, notional seniority as well as subsequent promotion, if any. 9. With the aforesaid, the writ petition is disposed of. 10. No order as to costs. 8 ( S.C. SHARMA ) JUDGE skm