IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.10744 of 2010 1. Adalat Singh S/O Late Jagdish Singh R/O Road No. 4a, Sai Nagar, House No. 9, Gardanibagh, P.S.- Gardanibagh, Distt.- Patna Versus 1. The State Of Bihar Through Chief Secretary, Govt. Of Bihar, Patna 2. The Chief Secretary, Govt. Of Bihar, Patna 3. The Principal Secretary, Department Of Personnel And Administrative Reforms, Govt. Of Bihar, Patna 4. The Divisional Commissioner, Patna Division, Patna, Bihar 5. The Collector, Patna 6. The Additional Secretary, Department Of Personnel And Administrative Reforms, Govt. Of Bihar, Patna 7. The Under Secretary, Department Of Personnel And Administrative Reforms, Govt. Of Bihar, Patna ---------------------------------- For the Petitioner : Mr. Rana Vikram Singh, Advocate For the State : Mr. Sanjay Kumar II, GP 15 ----------- 3. 11.11.2011 Heard learned Counsel for the petitioner and the State. The petitioner who was a Circle officer at the relevant point of time is aggrieved by the order of punishment dated 7.1.2010. It visits him with stoppage of two increments with non cumulative effect and stoppage of promotion for two years. The petitioner is stated to have superannuated during pendency of the writ application in October 2011. Learned Counsel for the petitioner submits that in his capacity as a Circle officer the petitioner passed certain orders in 1983 which were questioned by the aggrieved before the Commissioner who found justification in the same under his order dated 12.4.1988. The Commissioner did not return any specific finding of abuse of power by the petitioner except for a unsubstantiated observation of “collusive and improper”. Thereafter on 2.12.1991 an explanation was called for from the petitioner. The petitioner submitted his reply 2 to the same on 20.3.1992 when nothing further transpired till issuance of the impugned order nearly 22 years later. It was lastly submitted that because of this explanation having been called from him, the petitioner was denied consideration for promotion between the years 1992 to 1999 and was ultimately promoted as SDO in 1999 and as an Additional District Magistrate in 2005. His entire service records were available with the Departmental Promotion Committee on the latter occasion. At no stage where any charges framed or issued. Counsel for the State submits that on the explanation furnished by the petitioner a report had been called for from the District Magistrate which was received in the year 2009 only. It is emphasised that the petitioner has not denied the charge. In fact he himself acknowledges that it was a procedural mistake committed by him. Once the charge has not been denied all other considerations including delay are irrelevant and therefore the Court may not interfere. The conduct of the petitioner in question related to an act by him in the year 1983. The cause of action for the respondents to pass the impugned order arose in 1988. On their own showing in response to the show cause notice the petitioner allegedly acknowledged his deficiency in the year 1992. If that be so, nothing further perhaps was required by the respondents to pass final orders in 1992.Quite apparently notwithstanding what the petitioner may have said about himself the respondents were still to make up their mind. If the District Magistrate took unreasonably long years from 1992 to 2009 to spare time and in the meantime the petitioner consequently was denied the right to be considered for promotion from 1992 to 1999 because of the same, he has clearly suffered enough. Promotion is 3 not a matter of right but a right to be considered for promotion at the appropriate time is a fundamental right under Article 14 of the Constitution of India. If the proceedings were kept pending for no justifiable reasons and for the fault attributable to the respondents as is now apparent, and the petitioner was promoted in 1992 and again in 2005 he is legitimately entitled to believe that any omission on his part stood condoned. The respondents cannot be permitted to conduct the proceeding against a government servant in the manner they have done keeping a scepter hanging over him for unreasonably long period of time. In (2006) 8 SCC 776 (P. D. Agrawal v. State Bank of India & ors) the Supreme Court has held that on facts of a case there may be a legitimate presumption of condonation holding at paragraph 25 as follows:- “25. However, for the purpose of holding that misconduct was condoned by the employer the court must come to a definite finding as regards the conduct of the employer. It must be held that either expressly or by necessary implication that the employer had knowledge of the misconduct of the employee. It is one thing that despite such knowledge, the delinquent officer is promoted to which he would not have been otherwise entitled to or if the disciplinary proceeding had been initiated as if the misconduct was not committed for and it is another thing to say that such a misconduct was not required to be taken into consideration as by reason of the service rule, promotion was to be granted on the basis of seniority alone, and, thus, the question of condonation of misconduct on the part of the employer would not arise.” The Court is satisfied that no better proof of the same is apparent than the fact that despite being aware that the petitioner had allegedly acknowledged the procedural mistakes on his part, his service records including the pendency of the proceedings were available before the respondents they nonetheless granted him promotion not only in 1995 but in 2005 again the DPC after 4 examining his entire records considered it appropriate to again promote him. In (2011) 4 SCC 180 (Delhi Development Authority v. Ram Prakash) considering a belated action holding it to be unjust it was held:- “21……… It is also very clear that after issuing the show- cause notices, the petitioner did not take any follow-up action thereupon. Instead, after a lapse of 25 years, the petitioner set up a claim on account of charges for the entire period. It would be inequitable to allow the petitioner which had sat over the matter to take advantage of its inaction in claiming misuser charges. 22. Even as to the contention raised on behalf of the petitioner that there was no limitation prescribed for making a demand of arrear charges, the Division Bench relying on the decision of this Court in State of Punjab v. Bhatinda District Coop. Milk Producers Union Ltd. observed that even where no period of limitation is indicated, the statutory authority is required to act within a reasonable time. In our view, what would construe a reasonable time, depends on the facts and circumstances of each case, but it would not be fair to the respondent if such demand is allowed to be raised after 25 years, on account of the inaction of the petitioner.” If that were not enough, the petitioner has already suffered enough when he has been denied consideration for promotion from 1992 to 1999 because of the undue pendency of the matter for which he was in no way responsible. That to the mind of this Court is sufficient punishment. It may only be noted that in any event the punishment finally imposed are minor in nature. The stoppage of promotion referred to in the impugned order necessarily has to be referred to the period of the allegation i.e. 1983 debarring the petitioner for consideration for two years in any event. The order dated 7.1.2010 is set aside. The application is allowed. Necessary consequences to follow. Snkumar/- (Navin Sinha,J.) 5