IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No.12959 of 2008 Date of Decision: 21.05.2009 Rajinder Kumar Tindwal ...Petitioner VERSUS State of Haryana and others ...Respondents CORAM: HON'BLE MR.JUSTICE AJAY TEWARI 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr. R. K. Malik, Sr. Advocate with Mr. Ashish Chaudhary, Advocate, for the petitioner. Mr. A. K. Gupta, Addl. A. G., Haryana for respondent No.1. Mr. Gurinder Pal Singh, Advocate for respondents No.2 and 3. *** AJAY TEWARI J. The petitioner has challenged the order dated 09/10.06.2008 (Annexure P-7) whereby his case for promotion from the date his juniors were considered and promoted was rejected. The admitted facts are that the persons junior to the petitioner were promoted vide order dated 07.12.2006. It is not disputed that in the meeting of the Departmental Promotion CWP No.12959 of 2008 -2- Committee (DPC) held on 29.05.2006 which had preceded these promotions, the petitioner had also been considered for promotion as Executive Engineer and he had been found fit for promotion. However, since he was suspended shortly thereafter on 24.07.2006 he was not promoted. Vide order dated 13.08.2007, the petitioner was exonerated and his suspension period was considered as duty period. The petitioner filed various representations that his case be considered for promotion but, being unsuccessful he filed CWP No.7105 of 2008 which was disposed of with the following directions vide judgment and order dated 30.04.2008:- “In view of facts of this case, without expressing any opinion on merits, we dispose of this writ petition by issuing directions to respondent No.1 to take note and decide representation of the petitioner, as per law, by passing a speaking order. Needful be done within a period of six weeks from the date of receipt of a certified copy of this order. If there is no legal hitch in promoting the petitioner, order be passed in his favour forthwith thereafter.” It is pursuant to this direction that the impugned order dated 09/10.06.2008 was passed holding as follows:- “Sh. Tindwal has already been given time to reply to the charge sheets at Sr. No.1 and 3. Decision on the charge sheets will be taken within 30 days of CWP No.12959 of 2008 -3- the receipt of the replies from Shri Tindwal. Though as per Rules pending charge sheets under Rule 8 is not a bar for promotion but decisions with regard to these charge sheets will have bearing on the promotion. Therefore, at this stage, it would be in order to wait for finalization of enquiry reports as it can be easily done in next 45-50 days. It is, therefore, ordered that Shri Tindwal should submit the replies urgently so that his case regarding promotion can be finalized within next 45- 50 days” Written statement was filed on 19.09.2008 wherein the pleas taken are as follows:- “The recommendation of the DPC dated 29.05.2006 have lapsed on 31.12.2006 and that by the time his DPC again considered his case on 13.11.2007 in which the department brought to the notice of Departmental Promotion Committee that 4 cases were pending against the petitioner and, therefore, it was being to be appropriate not to promote the petitioner.” For justifying the stand that the original recommendation of the petitioner for promotion was lapsed reliance is placed on Section 8 of The CWP No.12959 of 2008 -4- Haryana Service of Engineers, Class-I, Public Works Department (Buildings and Roads Branch), (Public Health Branch) and (Irrigation Branch) Respectively Act, 1995 the relevant sub-sections which are reproduced herein below:- “2. The committee shall meet at intervals ordinarily, not exceeding one year, and consider the case of all eligible officers for promotion to the senior scale of the Service, as on the 1st day of January of that year.......... 4. The list so prepared shall be revised every year......... 9. Appointments to the Service shall be made by Government from its list in the order in which names have been placed by the Commission........... 10. Appointment by promotion may be made to the post in Service, or to any post in the cadre in an officiating capacity from the list prepared under this section.” The question which arises is whether the doctrine of lapse can be held applicable in the case of the petitioner. CWP No.12959 of 2008 -5- In my opinion, the above mentioned doctrine cannot be held applicable to the petitioner since that applies only to a situation where a person recommended cannot be promoted during the currency of that year on the ground that vacancies have not arisen. A perusal of Section 8 Sub-section 2, 4, 9 and 10 reveals that recommendation would have no nexus with existing vacancies but would depend upon the number of vacancies arising during the year. As regards the issue of the subsequent charge sheets in Union of India etc. etc. Vs. K. V. Jankiraman etc. etc. it was held as follows:- “The disciplinary proceedings or criminal proceedings commence only from the stage when the charge-memo or charge-sheet is issued......... On the first question, viz., as to when for the purposes of the sealed cover procedure the disciplinary/criminal proceedings can be said to have commenced, the Full Bench of the Tribunal has held that it is only when a charge-memo in a disciplinary proceedings or a charge-sheet in a criminal prosecution is issued to the employee that it can be said that the departmental proceedings/criminal prosecution is initiated against the employee. The sealed cover procedure is to be resorted to only after the charge-memo/charge- CWP No.12959 of 2008 -6- sheet is issued.” Thus the case of the petitioner for promotion during the currency of the year 2006 would have to be considered immediately after the exoneration and it would not be open to the respondents to take into account the charge sheets issued after 31.12.2006 while considering the case of the petitioner. Consequently, the petition is allowed. The respondents are directed to consider the case of promotion of the petitioner for the year 2006 after ignoring any charge sheet which may have been issued after 31.12.2006. ( AJAY TEWARI ) JUDGE May 21, 2009 ashish