CWP No.9348 of 2008 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH * * * * * CWP No.9348 of 2008 Date of decision : September 9, 2008 * * * * * Surjit Singh ............Petitioner Versus State of Punjab and another ...........Respondents * * * * * CORAM: HON'BLE MR. JUSTICE M.M KUMAR HON'BLE MR. JUSTICE JORA SINGH * * * * * Present: Mr. T.P Singh, Advocate for the petitioner. Mr. Suvir Sehgal, Additional Advocate General, Punjab for respondent no.1. Mr. A.K Goel, Advocate for respondent no.2. * * * * * M.M KUMAR, J. The petitioner has approached this Court with a prayer for quashing orders dated 14.3.2008 which has been issued along with the endorsement (Annexure P-9). According to the endorsement the case of the petitioner for promotion from the post of Assistant Secretary to that of Secretary, Market Committee has been kept in a sealed cover because his overall service record has not been found to be good. A further prayer for quashing order dated 17.3.2008 (Annexure P-10) has also been made. CWP No.9348 of 2008 2 Brief facts of the case are that the petitioner has been working on the post of Assistant Secretary and his case was required to be considered for promotion to the post of secretary, Market Comittee. It is admitted case of both the parties that the petitioner while posted in the Market Committee, Bhadson, Distt. Patiala lodged an FIR No.50 dated 5.3.2001 against the then Chairman of the Market Committee, Bhadson under Section 341/506 IPC. The Market Committee, Bhadson has filed CWP No.3941 of 2001, wherein directions was issued by the Division Bench of this Court on 23.3.2001 to Punjab Mandi Board to take further action in accordance with law on the basis of the enquiry report within a period of six months of that date. On 2.5.2001, an FIR No. 121 was registered against the petitioner at Police Station Bhadson, district Patiala under Sections 420/465/466/471/474 IPC and Section 13(2) of the Prevention of Corruption Act, 1988 at the instance of the then Chairman Market Committee, Bhadson. However, the petitioner was granted anticipatory bail by this Court. It is also conceded position that no challan in the Court of Magistrate has been presented so far against the petitioner. On the contrary, a cancellation report dated 29.4.2002 has been filed because after enquiry conducted by the Superintendent of Police, Fatehgarh Sahib, allegations in the FIR lodged against the petitioner have been found to be false. Similarly, a charge sheet dated 8.8.2001(Annexure P-6) has been issued to the petitioner which is pending. However, action CWP No.9348 of 2008 3 on the aforementioned charge sheet has been stayed on the ground that the matter is pending investigation of the Police Department and no action was to be taken till the receipt of the report from the police (Annexure P-7). The cancellation report has already been filed before the JMIC, Nabha on 27.3.2005. The reason disclosed by the petitioner is that respondent no.2-Punjab State Agricultural Marketing Board has ordered promotion of the person junior to the petitioner as Secretary, Market Committee but the case of the petitioner has been kept in a sealed cover without any rhyme or reason. When the matter came up for consideration on 2.9.2008, we have directed the counsel for respondent no.2 to produce the sealed cover which has been produced. The sealed cover has been opened by the Bench Secretary and we have perused the opinion expressed by the Departmental Promotion Committee. An enquiry is pending against the petitioner under Rule 8 of the Punjab Civil Services (Punishment and Appeals) Rules 1970 which has been stayed and there is an order dated 22.11.2005 stopping the four increments of the petitioner without cumulative effect against which a revision petition is pending before the Financial Commissioner. We have asked Mr. Goel, learned counsel for respondent No.2 as to how the Departmental Promotion Committee would take into consideration the orders stopping increments of the petitioner without cumulative effect because the Financial Commissioner has communicated to the Secretary of respondent no.2 an order dated 7.3.2006, which has a clear stipulation that the order of punishment passed against the petitioner, is not to be taken into account for the CWP No.9348 of 2008 4 purposes of his promotion. The aforementioned order reads as under: “Heard. The appellant was issued show cause notice vide letter dated 29.6.2004 for minor penalty. Vide impugned order dated 4.5.2005 Chairman of the respondent Board stopped four increments of the appellant without cumulative effect. As per Personnel and Administrative Reforms Department circular letter No.7/2/84- 2PP/9362, dated 9.7.85 (Annexure P-7), if there is a proposal to stop annual increments for more than three years the procedure for awarding major punishment should be initiated. In this case procedures for major punishment have not been adopted though four increments have been stopped vide impugned order. In view of the above impugned order is stayed till the decision of this case. Impugned order will have no effect on any promotion of the appellant as well as to any D.P.C proceedings till the decision of this case. The case is adjourned to 17.4.2006 for arguments.” Despite the fact that the order of punishment has been stayed with specific stipulation that it was not to have any effect on the promotion of the petitioner as well as on the Departmental Promotion Committee's proceedings, the Departmental Promotion committee has illegally adopted sealed cover procedure. It has also CWP No.9348 of 2008 5 come on record that in police investigation nothing has been found against the petitioner and already cancellation report has been filed. Thus, no challan has been presented so far. Even the departmental enquiry has been stayed by the competent-authority. Therefore, we do not find any impediment in the ways of the petitioner to consider his case for promotion without being effected by the aforementioned pending cases. In view of the above, writ petition is allowed, respondent no.2 is directed to place the case of the petitioner before the Departmental Promotion Committee with relevant material and after removing irrelevant material who shall consider him for promotion to the post of Secretary with effect from the date person junior to him have been promoted. The Departmental Promotion Committee shall not take into consideration the order imposing punishment of stoppage of four increments without cumulative effect as per direction issued by the Financial Commissioner and as also the pending proceedings in the criminal case where cancellation report has already been filed or the corresponding charge sheet issued to the petitioner which has been stayed. The needful shall be done by the Departmental Promotion Committee within a period of two months from the date of receipt of a copy of this order. ( M.M KUMAR ) JUDGE September 9, 2008 ( JORA SINGH ) ritu JUDGE