IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No. 2334 of 2009.. Date of Decision : 11..11.2011 _________________________________________________________ Lekh Ram ….Petitioner. Versus State of H. P. & Others …Respondents. _________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No. _____________________________________________________________ For the Petitioner: Mr. Dilip Sharma, Advocate. For the Respondents: Ms. Shubh Mahajan, Deputy Advocate General. ______________________________________________________________ Dev Darshan, J. (oral) The petitioner has made 3/4 prayers in this petition. First the petitioner seeks quashing of Annexure P-6 which is an order passed by the Director of Higher Education, Himachal Pradesh imposing minor penalty on the petitioner. Second prayer of the petitioner relates to the issuance of appropriate writ directing the respondents/State to implement the recommendations of DPC held on 31.5.2007 (Annexure P-1) by which the petitioner was promoted to the post of personal assistant. It is urged that the petitioner be granted benefits from the date when the recommendations of the Departmental Promotion Committee were made 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes. 2 with all consequential reliefs. Third prayer is substantive in nature which states that if during the pendency of writ petition, respondent No.3 is promoted to the post of personal assistant by ignoring the claim of the petitioner in that event his promotion be quashed. 2. The brief facts as necessary for the adjudication of this petition are that petitioner joined as clerk in Education Department on 2.5.1977 and he was promoted as Steno typist in the month of September, 1979. He was further promoted as Junior Scale Stenographer in the month of August, 1989 and promoted to the post of Senior Scale Stenographer on 8.3.1990. The petitioner pleads that the post of personal assistant in the Directorate of Higher Education fell vacant on 4.1.2007 as one Shri R.C. Mastana, who was holding this post was promoted to the post of Private Secretary. 3. The case then proceeds that the Departmental Promotion Committee was convened on 31.5.2007 to consider all eligible candidates for promotion to the post of personal assistant. According to these proceedings, the petitioner being found eligible in all respect to this post on that date was recommended by the Department Promotion Committee for being promoted to the post of Personal Assistant in the pay scale of Rs. 6400-10640 as prevailing on that date. The proceedings have been signed on 31.5.2007 by the Joint Director (Admn.), Higher Education Department, Director, Elementary Education, H. P. and Director, Higher Education, H. P. 4. The petitioner is aggrieved by the fact that despite this recommendation having been made, he was not promoted to this post and the reason held out by the respondents/State for ignoring his claim to this 3 post was that some disciplinary inquiry was conducted against him on an complaint made on 18th March, 2008 and charge sheet (Annexure P-2) was issued to the petitioner on 4th June, 2008 as is evident from the office stamp affixed thereon. The petitioner was informed that there are some allegations of misconduct and misbehaviour against him with respect to which inquiry ought to be conducted. Two articles of charges were framed against him are that he has disobeyed the orders of his superior Dr. Yogesh, Joint Director (C-III) with whom he misbehaved and second that he failed to discharge his duty properly and honestly and that tantamounts to mis-conduct and violation of Rule 3 (1) I & iii of CCS (conduct) Rules, 1964. It is undisputed before me that after the issuance of the show cause notice, reply was filed by the petitioner and thereafter the disciplinary action has been taken which culminated into an order vide which minor penalty was imposed upon the petitioner by virtue of which one annual increment has been withheld without cumulative effect. These are the undisputed facts so far as the dates and events are concerned. 5. Adverting to the first prayer of the petitioner, which is for appropriate writ for quashing penalty imposed, I find that separate writ petition would be maintainable and is not being adjudicated in the present case. 6. Adverting to the second prayer, which is opposed by the State on the ground that the Departmental Promotion Committee’s recommendations could not be implemented because during the validity of the panel of the DPC, a complaint was received against the petitioner on 18th March, 2008 which culminated into issuance of the charge sheet and imposing of penalty on the petitioner. This reason is reiterated further in 4 the pleadings of the respondents/State. This reason is again reiterated in reply to para 17 to the petition which refers to the representation (AnnexureP-8) which was preferred by the petitioner stating therein that the Departmental Promotion Committee held for the promotion to the post of personal assistant much prior to the point of time when the petitioner was charge sheeted and punished. The said representation was rejected on the ground that he was not eligible for the promotion to the post of personal assistant having been charge sheeted and punished after following procedure under the law. What I find from the pleadings which is not a disputed fact pleaded by the petitioner is the information which he had procured through RTI is that some kind of repeat DPC was being contemplated by the respondents and there is note to this effect dated 14.1.2008. However note dated 16.1.2008 says that DPC has already held and the procedure for the selection is complete and only official order/notification is required to be issued and there is no need of repeat DPC. This, thereafter, is followed by another note dated 28.1.2008 which states that if draft regarding promotion orders is accepted then it be submitted for approval/signatures. Then another note dated 22.2.2008 takes a U-turn stating that new DPC be constituted and all relevant facts may be considered. On 19.3.2008 another decision seems to have been taken for holding new DPC when finally on 22.4.2008 process of promotion of petitioner Lekh Ram was deferred. What is not clear from the reply filed by the State/respondents is that as to why new DPC was sought to be conducted/held. In any event , accepting the legality of the submissions made by the State that some kind of inquiry was pending against the petitioner on 22.4.2008, then in that event a sealed cover 5 procedure should have been followed as directed by the Supreme Court in Union of India versus K.V. Janakiraman, AIR 1991 SC 2010. What is further evident from the facts on record is that the Departmental Promotion Committee had already approved the names of the candidates to be promoted not only to the post of personal assistant but also to the posts of senior scale stenographer and junior scale stenographers. In other words, the Departmental Promotion Committee at that time was not exclusive to the petitioner but to the other incumbents therein also. 7. Learned counsel appearing for the petitioner submits that no reason has been disclosed on the record of the case as to why new Departmental Promotion Committee was sought to be constituted by the respondents/State when the name of the petitioner has already been recommended by the DPC much prior to the date when the petitioner was charge sheeted and even the complaint which forms the basis of the charge sheet ( which complaint was made on 18.3.2008). 8. Learned Deputy Advocate General submits that it is not mandatory for the State to have issued promotion orders to the petitioner and that when the petitioner filed his representation for implementation of the recommendations made by the DPC, he was ineligible and a delinquent employee having been punished in accordance with law. This submission cannot be accepted. It is obvious that on the date when the petitioner was considered there were no disciplinary proceedings pending against him. In fact, there was no complaint against the petitioner leave alone any subsequent proceedings. 9. In these circumstances, it was the recommendations of the Departmental Promotion Committee (Annexure P-1) which had to be 6 implemented. There is no reason which can be ferreted from the record or from the pleadings of the State/respondents to show as to why review DPC was to be held. In these facts and circumstances of the case, this writ petition is allowed and directions issued that the petitioner herein shall be promoted to the post of personal assistant in accordance with the recommendations of the Departmental Promotion Committee, Annexure P-1 with all consequential benefits. The third prayer made by the petitioner is rejected as it will be open to the petitioner herein to challenge the disciplinary proceedings by a separate writ petition. The respondents are directed to implement annexure P-1 on or before 31st January, 2012. November 11, 2011 (Dev Darshan Sud), (jai) Judge