il©B© PETITIONER RESPONDENTS ^€o ..a' ^^ ,^-"^ j^.^ IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR W.P.(S) No.^O^Of 2009 ^ : Nerus Kujur, Son of Late Allius Kujur, aged about 40 years, working as Assistant Registrar, Co-operative Societies, Bilaspur (Chhattisgarh) Versus :l)"State of Chhattisgarh, Through the Secretary, Co-operative Department, Mantralaya, D.K.S Bhawan, G.E. Road, Raipur (Chhattisgarh), :2) The Registrar, Co-operative Societies, Chhattisgarh Krishak Nagar, Labhabdi, Raipur (Chhattisgarh), :3) The Co-operative Commissioner and Registrar, Co-operative Societies Madhya Pradesh, Bhopal (M.P), :4) State of Madhya Pradesh, Through Secretary, Co- operative Department, Bhopal (M.P.). WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA ^5..-,-;i-"^p":, ^^'•$^5-:--"' .^^^- ^••••" ^^' HIGHCOURTOFCHHATTISGARH : BILASPUR WRIT PETITION r8).NO. 4047 of2009 PETITIONER RE8PONDENTS Nems Kujur Versus State ofChhattisgarh & Others Post for pronouncement ofjudgment & order cn ... .^..day ofMarch, 2011. Af^ E Sd/- Satish K. Agnihotri Judge ^••' 1 ^t'^; ^ a ^' .^: •sy HIGH COURT OF CHHATnSGARH^BILASFLiR WRTTPETIT30N (8) N0. 4047 of2009 PETITIONE.R RESPONDEm'S Nerus Kuiur Versus State ofCUiattisgarh & Others (Writ Petition under Ailicle 226 ofthe Constitution oflndia) Single Bench : Hon'ble Shri Satish K. Agnihotri, J. Present:- Shri H.B.Agrawal Senior Advocate with Ms. Sareena Khan Advocate for the petitioner. Shri Ajit Singh; Panel Lsiwyer forthe State/respondents No.l & 2. 81m Malay Slu'ivastava, Advocate for the respoadents No. 3 & 4. v^ (Deiivered on . ./.'.:day ofMarch, 2011) By tliis petition, the petitioner seeks a direction to consider the case of the petitioner for promotion to the post of Deputy Registrar, Co- operative Societies, as on 27.1.2000, when the Departinental Promotion Committee (for short "fhe DPC") was held and the petitioner was not considere4 for promotion' to the post of Deputy Registrar, Cooperative'Societies, .with all service and monetar>r benefits. The brief facts, in nutshell, as projected by the petitioner are that the petitioner was appointed on the post of Assistant Registrar, Co- operative Societies, in the pay-scale of Rs. 2200-75-2800-100-4000 and posted at Chhindwada. The petitioner, being a Schedule Tribe candidate, was placed at serial No;21, as on 1.4.1998 (Aimexiire P-2). Mr. Sunil Tiwai-i, who was at serial No.24, was promoted to the post of Deputy Registrar, on the basis of recomniendation made by the DPC held on 27.1.2000. Being aggrieved, the petitioner prefen-ed a representation, which was rejected by commumcation dated 29.6.2002 (Amexure P-4) holding that there was an adverse note in the confidential report and as such, he was not considered for promotion ,-y8sh 1 and m the subsequent DPC for the year 2001-02, no post was available and he would be oons.idered subsequeiitly. Thus, this petition, Slm. Agrawal, leanied Sr. coimsel with Ms. Sareesia Klian. leamedl counsel appearing for the petitioner 7v¥ouldsubm.it that the pumslmient order fbr withholdiiig increment without cumulative effect came to an end on 1,5.1999, as the order was passed on 9.6.1997. Tlie non- consideraxion ofthe petitioner m the DPCheld.cn 20J.2000 was bad in law and vitiated. It is evident from the- fact that the basic pay was released after an order of the witliliolding increment came. to an end w.e.f 1.5.1999. Sbn Agrawal' iiirther submits that the important aspect is not the cuiTency of the punisliment i,e. imposition of withholding of two isicrements, but the date, when the order was passed, as m the case on hand,' order was passed on 9.6.1997. Th.us, it would be applicable from 1.5.1997 to 1.5.1998 and from 1.5.1998 to 1.5.1999 only, not there-after. On the other hand, Shri .Singh leamed couiisel appearing for fhe State respondents would submit that the DPC its meeting held on 27.1.2000 observed that the order imposing minor punismiient of witMiolding two mcrements without cumulative .effect was effective till 1.5.2000. On the date when the DPC took place the order was eflective as the basic pay wi.th inCTement was restored only w.e.f. 1.5,2000. Thus, the petitioner could not have been considered for promotion as 011 27.1.2000. Slm Sirigii, relies on circular dated 27.2.1975 issued by the General Admmistration Department, Madhya Pradesh, whe.re it has beesi clarified that an employee should be considered for promotion oiily after the period ofpunishiiient is over. •^ "2. ^w ^wsr ^ vw -^ w^- f^r ^jm f f^ ^F!- ?rm^T ^^)' ^t "^M ^f^ff ^]st"ii' V 'V^Tf^ V/0'V/' ?^T /^T' ?7'57 f i?^' k?^r7 $T^' ^' 3mf^' ^ fff^H y^)^ri o^t ^ ^ ^ ^ ?Jjf^T W !W7? VW BT UJJ^TT/ 3TcT: ^T &'//WW '0^ ^a ^S' ^f 3T^ ^TW ^ ^ q7or ^' 27^' ^ ^^}"y/f) ^ ^p? ^w^xT ^rmv 4' ^/?W/^ry s^w ^pfm^ '^ ^75" ^ii'^-d W^ t77(7b ^' ^t w}"y<y ,?^77' 077" 7. • It was farther submilted that pursuant to the punishmesit order dated 9.6,1997, the stoppage oftwo increments started from 1.5J998 till 30.4.2000, as the g!*ant ofmcrement is always taken into coiisideration in the month of ApriL from 1 of May of tlie histaiit order. The pimishment was awardedon 9.6.1997 and as such the mcrement was • already fixed w,e.f. 1.5.1997. Thus, the pumslmie.nt cam.e mto fbrce w.e.f. 1.5.1998 and remained till 30.4.2000. Accordingly, the writ petition deserves to be dismissed» 8. Having heard ieamed. counsel for the parties, pemsed the pleadings and documents appended thereto. it is mdisputable that the DPC was held.on 27,1.2000 to consider cases of a.11 the eligible Assistant Registrars, fbr p.romotion to the post. ofDeputy Registrar- Cooperative Societies.. The case ofthe petitiosier cou.id not be considerecl as the imposition ofwithliolding oftwo inci'ements was effective and during cun'ency ofthe pumsmBent, the petitioner could not be considered for pro.motioii to the post ofDeputy Registrar, Cooperative Societies. The circuiar dated 272.1975, as quoted in the precedisig Para 6, which .appears to be in accordance with law, cleariy provides that in case when. the punishtBent of with.hold.mg of inCTements was iti effect, the employee should not be considered forpromotion to the htgher post. 9. The contention ofleaniecl counsel for the petitioner that the impugiied order was passed on 9.6.1997, thus, the same came to an end 011 1.5.1999 is noticed to be rejected. The amiual mcrements granted is |WNIitt». :/ added to tlie salary in the moiith of April w.e.f. 1st May ofthe msta.nt year. In the case smce the- order was passed o.n 9.6.1997, for th.at year^ the aimual iecrenieiits wa.s already gi'anted 111 Apri! and the same wa.s given etlect from U. 1998. The same c-ould have been done only from 1.5.1998 till 1.5.2000. The DPC (Aimexiire P-6) was held before April,« 2000. and duri.ng holding of the DPC, the piiiiislinieiit vvas m force and as such there was no mfiniiity or illegality 'm consideration bv the DPC. 10. The Supreme Court iii L.Raj'aiah v. Inspector General ofRegistration & Stamps, Hydrabad and Others1 observed as under: "Conseqiientty, v^hen the promotion t.o the post of Senior Assistant is on the basis of merit cmd ability under special rules, fihiess is one ofthe considerations for the purpose. Smce, he ^vas undergoing punishment cluring the relevant period, he is not eligi.ble for consicleration for promotion. Therefore, his junfors hwe stolen march over the appeUant as Senior Assistants. He ccmnot thereby have any grievance. However, he is entitled to be considered for promotion ciccording to the rules after J.3.1994 . 11. In Uniofn oflndia & Others v. K. Krishan2 the Supreme Court held as imder: s'SW;e do notfind any merit inthe argument thatthere is no justification or rationale behind this policy; nor do we see cmy reason to condemn it as imjzistifiecL arbftrwy and violative of Articles 14 and 16 ofthe CanstiMion. oflnclia. On the other hand, to pzmish a sen^ant and at the same Ume to promote him chiring fhe currency of the pimishment may j'ustifiably be termed as self-conrradictory. The impugned judgment is, therefore, set aside ?\ 12. Rdiance of leamed counsel for the petitioner in Unionof Inclia & Anofher v. Hemraj Singh Chauhan & Others misplaced as the ratio was laid dowsi by the Hon'ble Supreme Court iii Para 35 & 36. "35. The Court must keev in niind the constitiitioncil obligcition ofboth the appellants/Centf'cd Government '(1995) 8 SCC 246 21992Supp?3)SCC50 3(2010)4SCC290 as aho the State Government Both the Central Govermnent and the State Government are ta act as madel employers, which is consistent mth their role m a welfare State. 36. Jt is an accepted legal position that the right of eligible emphyees to be considered for promotion is virtually a part of their funckmiental right guaranteed imder Article 16 ofthe Constimtion. The gaarantee of a fair consideration in matters of promotion under Amcle 16 virnially flows from guarantee of equality underArticle 14ofthe Constitution". It is a con'ect legal position; but in the case on hand, the case of the petitioner was not considered on the ground that penaity ofwithdrawal of two aiinual incremeDts for two vears was in cun'esic-v- It is not a case of the petitioner that the petitioner was not even considered subsequently, inthe subsequent DPC. 33. For the reasons mentiosied hereinabove and applymg the well settled ratio as laid down in the aforestated cases, the petition is bereft of nierit and is accordmglv dismissed. 14, There shall be no order asto costs. Sd/- Satish K. Agnihotri Judge ashok