IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Writ Petition No. 1851 of 2009 DATE OF DECISION : JULY 21, 2009 SUKHWINDER SINGH ....... PETITIONER(S) VERSUS STATE OF PUNJAB & ORS. .... RESPONDENT(S) CORAM : HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: Mr.SK Singla, Advocate, for the petitioner(s). Mr. BS Chahal, DAG, Punjab. Mr. NK Nagar, Advocate, for respondent No.3. AJAI LAMBA, J. (Oral) Sukhwinder Singh has filed this Civil Writ Petition under Articles 226/227 of the Constitution of India praying for issuance of a writ in the nature of mandamus directing respondents No.1 and 2 to promote the petitioner to the post of District Ayurvedic and Unani Officer from the post of Ayurvedic Medical Officer, with all consequential benefits, on the basis of seniority list maintained by respondents No.1 and 2. It has further been prayed that respondents No.1 and 2 be directed to consider the claim Civil Writ Petition No. 1851 of 2009 2 of the petitioner on the promotional post from the date when junior to the petitioner had been promoted. Learned counsel for the petitioner has pointed out that the petitioner was appointed as Ayurvedic Medical Officer (for short 'AMO') on regular basis on 24.12.1981 in the Ayurvedic department through regular process of selection, whereas respondent No.3 was appointed as AMO on 1.4.1985. The name of the petitioner in the seniority list, finds mention at Serial No.166, whereas that of respondent No.3 finds mention at Serial No.222. The petitioner as well as respondent No.3 belong to Scheduled Castes category. While respondent No.3 has been promoted, the petitioner has not been promoted. Learned counsel for the petitioner has further impressed on the Court that under Rule 8(2) of the Punjab Ayurvedic Department (Class III Technical) Service Rules, 1963 (for short 'the 1963 Rules'), seniority- cum-merit is the criteria. Considering the said criteria, the petitioner is entitled to be promoted as District Ayurvedic and Unani Officer (for short 'DAUO'). Learned counsel for the petitioner has stated that till date, no charge-sheet has ever been served on the petitioner. No departmental inquiry has ever been initiated. The service record of the petitioner is clean as no adverse remark has ever been conveyed to the petitioner. Considering the criteria for promotion, therefore, the petitioner, being senior and in merit, is entitled to promotion as DAUO. Learned counsel for the petitioner states that the petitioner made a representation claiming promotion, particularly in view of the fact that a person junior to the petitioner had been promoted, however, no Civil Writ Petition No. 1851 of 2009 3 response thereto was received. Subsequently, even a legal notice was got served through counsel on 11.12.2008. Neither promotion has been given nor decision on the notice has been conveyed to the petitioner. The stand taken by respondents No.1 and 2 in the written statement is that the petitioner was in the habit of abstaining from duty. A preliminary inquiry was conducted, whereupon allegations to these effect were found to be correct and the petitioner is being served with a charge- sheet containing serious charges under Rule 8 of the Punjab Civil Services (Punishment and Appeal) Rules, 1970 (for short 'the 1970 Rules'). Learned counsel for respondent-State has further pointed out that respondents No.1 and 2 have followed the procedure laid down in the 1970 Rules as also in Circular dated 15.4.1981 (Annexure R-2). The promotion of the petitioner has been withheld by the Departmental Promotion Committee, while resorting to “sealed cover procedure”. I have heard the learned counsel for the parties and have gone through the documents to which attention of the Court has been drawn. The issue required to be addressed in this petition is whether, in the facts and circumstances of the case, the respondents could resort to 'sealed cover procedure'? On 3.7.2009, considering the contentions made on behalf of the petitioner, Director, Directorate of Ayurvedic Department, Punjab, was summoned to remain present in Court. Shri Rakesh Sharma, the Director, is present in Court along with the record and supports the plea taken in the written statement. Shri Rakesh Sharma has drawn the attention of the Court Civil Writ Petition No. 1851 of 2009 4 towards the noting sheet, in which Shri Ravi Pruthi, Under Secretary, on 11.8.2008, in the context of Reserved Category, has recorded the following:- “the name of Dr. Sukhwinder Singh AMO may be kept in sealed cover. His case for promotion to the DAUO post would (be) considered after taking a decision on the charge- sheet pending against him (after following the necessary procedure as required under the Punishment & Appeal Rules, 1970). One post of DAUO may be kept vacant for him”. Before proceeding further, the relevant provision under the Punjab Civil Services Rules is required to be considered. Rule 2.2 (b) of the Punjab Civil Services Rules, Volume II, reads as under:- “2.2 (b) xx xx xx xx xx xx xx xx xx Explanation. - For the purpose of this rule - (a) a departmental proceeding shall be deemed to be instituted on the date on which the statement of charges is issued to the officer or pensioner, or if the officer has been placed under suspension from an earlier date, on such date; and xx xx xx xx xx xx xx xx xx xx” So far as the instructions/Circular are concerned, a reference to Annexure R-2 dated 15.4.1981 is relevant. The portion that needs attention from Annexure R-2 reads as under:- “......It was inter alia laid down therein that promotion of an officer/official (who is otherwise eligible/fit for promotion) should not be withheld if no prima facie case has been established against him upto the date he is due for Civil Writ Petition No. 1851 of 2009 5 promotion. It was further laid down therein that where a prima facie case has been established, i.e. on a preliminary investigation of the complaint, actionable material under the relevant punishment and appeal Rules, has been brought out and it is intended to take action against him under the aforementioned rules, his promotion should be withheld.” The reliance of respondents No.1 and 2, for keeping the case of the petitioner for promotion under sealed cover, is on the charge-sheet (Annexure R-1). On a perusal of the charge-sheet (Annexure R-1), I find that the same is dated 28.4.2009 under which there is a proposal to proceed against the petitioner under Rule 8 of the 1970 Rules, in view of the charges, based on the allegations attached with the document (Annexure R-1). I have also gone through the allegations. The allegations relate to the year 2004. Rule 2.2 (b) has been considered by a Division Bench of this Court. The date on which the charge-sheet can be said to have been issued is the date on which it is served on the concerned person. In this regard, reference may be made to the decision of a Division Bench of this Court in CWP 227 of 2008 (Ravinder Singh v. State of Punjab and others) decided on 24.7.2008, wherein the following has been held:- “3. After hearing learned counsel for the parties and perusing the record, we are of the considered view that once the petitioner has not been charge sheeted then it cannot be held that any disciplinary inquiry is pending against him. The aforementioned principle has been laid down in Explanation to Rule 2.2 (b) of the Punjab Civil Services, Volume-II (for brevity, 'the Rules'), which reads thus:- Civil Writ Petition No. 1851 of 2009 6 “Explanation. - For the purpose of this rule- (a) A departmental proceedings shall be deemed to be instituted on the date on which the statement of charges is issued to the officer or pensioner, or if the officer has been placed under suspension from an earlier date; and (b) a judicial proceeding shall be deemed to be instituted- (i) in the case of a criminal proceeding, on the date on which the complaint or report of the police officer on which the Magistrate takes cognizance, is made; and (ii) in the case of a civil proceedings, on the date of presentation of the plaint in the Court. Note : As soon as proceedings of the nature referred to in the above rule are instituted, the authority which institutes such proceedings should without delay intimate the fact to the Accountant General. The amount of the pension withheld under clause (b) should not ordinarily exceed one third of pension originally sanctioned, including any amount of pension to be so withheld, regard should be had to the consideration whether the amount of the pension left to the pensioner in any case would be adequate for his maintenance.” 4. A perusal of the aforementioned provision clearly shows that unless a charge sheet is issued to an employee it cannot be concluded that any disciplinary action is pending against such an employee. Hon'ble the Supreme Court in the cases of P.R. Nayak v. Union of India, (1972) 1 SCC 332 and Union of India v. K.V. Jankiraman, (1991) 4 SCC 109, has also laid down the same principles. Therefore, under the rules and the prevailing law enunciated by Hon'ble the Supreme Court, no doubt is left that the petitioner is entitled to release of his pension without any demur. He has admittedly retired from the post of Food and Supplies Officer on 31.1.2007 and all his retiral benefits ought to have been released. Even the record does not reveal that any charge sheet has been issued to the petitioner as per the requirement of Explanation to Rule 2.2 (b) of the Rules.” So far as the decision taken by the respondent-State in regard Civil Writ Petition No. 1851 of 2009 7 to promotion is concerned, a perusal of Annexure R-3 makes it evident that the name of the petitioner was considered at Serial No.1 in Scheduled Castes category but the same was kept in a sealed cover due to “a charge- sheet issued against him under Punjab Divil Services (Punishment and Appeal) Rules, 1970”. (Emphasis supplied). A consideration of the provisions of Rule 2.2 (b) of the Punjab Civil Services Rules, Volume II, as extracted above, and Circular dated 15.4.1981 (Annexure R-2), which has also been extracted above, make it evident that the departmental proceedings shall be deemed to be instituted on the date when statement of charges is issued to an officer. The date on which the fact is to be considered is up to the date the officer is due for promotion (refer to Annexure R-2). When these provisions are considered in the context of the facts of the present case, it becomes evident that on the date when the case of the petitioner was required to be considered for promotion, there was no proceeding pending against the petitioner. The case of the petitioner for promotion was to be considered, as is evident from the noting sheet, which has been extracted above, on 11.8.2008. The Departmental Promotion Committee was to meet on 29.7.2008. A perusal of Annexure R-1, however, makes it evident that the charge-sheet was to be issued under Memo dated 28.4.2009 i.e. approximately 3 months after filing of the writ petition on 3.2.2009, when even notice of the petition would have been served on the respondents. I have also taken note of the fact that the allegations related to the year 2004. The sequence of events make it evident that there was no departmental proceeding pending against the petitioner on the date when Civil Writ Petition No. 1851 of 2009 8 his case for promotion had been put up before the Departmental Promotion Committee, as the charge-sheet had not been issued to the petitioner. In such circumstances, I am of the considered opinion that the respondents could not have resorted to sealed cover procedure. The claim of the petitioner for promotion has been ignored in total disregard to Rule 2.2 (b) of the Punjab Civil Services Rules, Volume II, as also instructions dated 15.4.1981, issued by the respondents in this regard i.e. Annexure R- 2. A perusal of the extracted portion from Ravinder Singh's case (supra), makes it evident that unless a charge-sheet is issued to an employee, it cannot be concluded that any disciplinary action is pending against such an employee. In the case in hand, on the date when the Departmental Promotion Committee was to meet i.e. on 29.7.2008, no charge-sheet had been served upon the petitioner. This fact is admitted, as is evident from the document (Annexure R-1), which is the charge-sheet dated 28.4.2009. In these circumstances, the action of the respondents in ignoring the petitioner for promotion is clearly unreasonable, unjustified and arbitrary and in violation of the rights of the petitioner. There was no material available on the record to make respondents No.1 and 2 believe that departmental proceedings were pending against the petitioner on the date of consideration for promotion. I have also taken note of the fact that the allegations relate to the year 2004. No explanation is coming forth as to under what circumstances no action was taken till the service of notice of the writ petition, whereafter the matter was raked up and the charge-sheet was Civil Writ Petition No. 1851 of 2009 9 served. Considering the facts and circumstances of the case, as noticed above, this petition is allowed with directions to respondents No.1 and 2 to consider the case of the petitioner for promotion to the post of DAUO. The needful be done within 30 days of receipt of a certified copy of the order. July 21, 2009 ( AJAI LAMBA ) Kang JUDGE 1. To be referred to the Reporters or not? Yes 2. Whether the judgment should be reported in the Digest?