IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10061 of 2010 1. YUGAL KISHORE SINGH S/O LATE JAI BALLAVA PRASAD SINGH R/O GANGJALA, P.S. SAHARSA SADAR, DISTT.- SAHARSA Versus 1. THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY, GOVT. OF BIHAR, PATNA 2. THE PRINCIPAL SECRETARY, WATER RESOURCE DEPARTMENT, GOVT. OF BIHAR, PATNA 3. THE ENGINEER-IN-CHIEF (CENTRAL), WATER RESOURCE DEPARTMENT, GOVT. OF BIHAR, PATNA 4. THE JOINT SECRETARY, WATER RESOURCE DEPARTMENT, GOVT. OF BIHAR, PATNA 5. THE CHIEF ENGINEER, WATER RESOURCE DEPARTMENT, BHAGALPUR 6. THE SUPERINTENDING ENGINEER, IRRIGATION CIRCLE, KHARAGPUR, MONGHYR ----------- 2 04.05.2011 Heard learned counsel for the petitioner and learned counsel for the State. Petitioner has filed this writ application challenging a notification dated 03.05.2005, as contained in Annexure-8, by which, he has been granted second ACP with effect from 01.04.2002. The submission of learned counsel for the petitioner is that the petitioner had become eligible for grant of second ACP with effect from 10.01.1999 itself. However, since the Scheme was made effective from 09.08.1999, he should have been granted the same from that date at least. Instead the said benefit has been granted to him from 01.04.2002. He submits that for shifting the 2 date of grant of second ACP to the petitioner to a subsequent date, an order of punishment of sensor, awarded to him by an order contained in memo dated 29.09.1999, as contained in Annexure-4, was taken into account. He submits that the said punishment of sensor was directed to be entered in his service book in the year 1998-99. Subsequent to that order of punishment of sensor, petitioner was granted merit promotion to higher grades by Annexure-6 and 7 which are notifications dated 13.09.2000 and 30.06.2003 respectively. By these notifications, he was granted merit promotion from the rank of Assistant Engineer to Executive Engineer with effect from 19.05.1998/30.05.1998. Hence, he submits that since after the punishment of sensor was awarded petitioner was granted promotion the punishment has to be treated to have lost its force and hence could not affect grant of ACP to him so as to shift his due date from 1999 to 2002. In support of his submissions, learned counsel for the petitioner has referred to two judgments of the Apex Court, first delivered in the case of Posts and Telegraphs Board & Others Vs. C.S.N. Murthy [1992 (2) SCC 317] and referred 3 to the principles enunciated in paragraph 34 of the judgment. He particularly relies upon principles contained in clause-IV of the paragraph which reads as follows :- The government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter – of course attaching more importance to record of and performance during the later years. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse. If a government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority. The second judgment of the Apex Court on which he places reliance is of the case of Badrinath Vs. Government of Tamil Nadu and Others [2000 (8) SCC 395] and particularly refers to paragraph 58 of the judgment in which also the Apex Court has summarized the principles laid down in the judgment. He particularly refers to principles laid down in clause-V of the said paragraph which reads as follows:- If the adverse remarks relate to a period prior to an earlier promotion they must be treated as having lost their 4 sting and as weak material, subject however to the rider that if they related to dishonesty or lack of integrity they can be considered to have not lost their strength fully so as to be ignored altogether. He has further referred to Rule 17 of Appendix I of the PWD Code which lays down the procedure for recruitment by promotion and has submitted that the promotions to the petitioner by the said notifications, as contained in Annexure-6 and 7, were on merits which will amount to completely wiping out the earlier punishment awarded to him as laid down by the Apex Court as above. A counter affidavit has been filed in this case by the respondents. Mr.Prasad, learned Government Advocate No.12, appearing for the respondents, referring to paragraph 8 of the counter affidavit, submits that the petitioner’s promotion was due from 01.07.1997 itself which was delayed and was granted to him by Annexure-6 read with Annexure-7 with effect from 19.05.1998/30.05.1998. He also submits that the recommendation of the Commission in respect of the promotion of the petitioner and others had been received in the Department on 15.09.1999, whereas the 5 punishment was awarded to him on 29.09.1999. Thus, the decision with regard to grant of promotion to the petitioner had already been taken prior to the order of punishment was issued. Hence, he submits that the punishment awarded to the petitioner could not affect the grant of promotion to the petitioner from the effective date as the process for it had already started and the Commission had already sent its recommendation. Learned counsel for the petitioner, in reply, submits that while the matter of promotion of petitioner and others was being considered by the Commission, a proceeding against the petitioner was pending. He submits that, in any case, the promotion was notified by Annexure-6 read with Annexure 7 only after the decision of the Cabinet which was taken on 12.09.2000 and 20.06.2003 respectively. Hence, on the date promotion of the petitioner was notified, the punishment order was in operation. Since, inspite of the same, promotion of the petitioner was notified, it will be deemed that the punishment had lost its force. In the circumstances, the said punishment could not be taken into account for shifting of due 6 date of grant of second ACP to the petitioner by three years. After hearing learned counsels for the parties and after considering the facts and circumstances of the case, this Court finds that the said two judgments of the Apex Court does not come to much help of the petitioner. It is true that at the time of grant of merit promotion to a Government employee, his service records have to be looked into and considered including any confidential remark, adverse remark or punishment entered therein. If, inspite of existence of such remarks or entries in the confidential report, merit promotion is granted, the same has to be treated as having lost its force. The law laid down by the Apex Court in the two judgments and the principles as reproduced hereinabove, is the general law. However, in the present case, this Court finds that the petitioner’s promotion was due from before, as stated in the counter affidavit, i.e. from 01.07.1997 itself. It is obvious that after the process of promotion started, matter went to the Commission and Commission took some time in making its recommendations. Since the eligibility of the incumbents for their 7 promotion from the due date was under consideration by the Commission any entry or adverse remarks or punishment prior to that due date had only to be taken by the Commission into consideration for considering their eligibility for promotion. Admittedly, prior to 01.07.1997, there was no entry in the service record of the petitioner or any punishment operating against him which could come in his way for promotion. The punishment order was passed on 29.09.1999 and was made effective for the year 1998-99, which means that the year of operation of the punishment was from 01.04.1998 to 31.3.1999. This period was subsequent to the due date of promotion of the petitioner. Hence, if the respondents would have taken this punishment into account to hold the petitioner as ineligible for promotion as on 01.07.1997 that would have been an illegal act on the part of the respondents. Since there was no punishment pending against him as on 01.07.1997, the respondents rightly allowed promotion to the petitioner. However, the petitioner became eligible for second ACP as on 09.08.1999. The period of punishment of sensor was from 01.04.1998 to 31.03.1999. This period was 8 prior to the date on which the petitioner became eligible for grant of benefits of second ACP. Hence, in terms of the resolution of the Personnel and Administrative Reforms Department dated 17.05.1982, which learned counsel for the petitioner himself has produced, the effect of the sensor had to continue for three years. In the circumstances, the respondents have rightly shifted the date of grant of second ACP to the petitioner from 09.08.1999 to 01.04.2002, i.e. exactly on completion of 3 years after the affect of punishment ended on 31.03.1999. As a result, this Court does not find any merit in the writ application and the same is dismissed. Arvind/ ( J. N. Singh,J.)