GANESH KUMAR LADE v. THE STATE OF MADHYA PRADESH

Judgment

#3. THE STATE OF MADHYA PRADESH THROUGH THE PRINCIPAL SECRETARY LAW AND LEGISLATURE DEPARTMENT, VALLABH BHAWAN, BHOPAL (MADHYA PRADESH) THE DISTRICT AND SESSIONS JUDGE DISTRICT COURT, (MADHYA PRADESH) SEONI,

MR. HARIRAM BARMAIYA, ASSISTANT GRADE-II/ ACCOUNTANT, DISTRICT AND SESSION (MADHYA PRADESH) COURT, SEONI .....RESPONDENTS 2 (SHRI PIYUSH D.DHARMADHIKARI- ADVOCATE FOR RESPONDENT NO.2 AND SHRI ABHINAV SHRIVASTAV - ADVOCATE FOR RESPONDENT NO.3.) ------------------------------------------------------------------------------------------------------------ This petition coming on for admission this day, Hon'ble Shri Justice Vishal Mishra passed the following: ORDER Assailing the order dated 04.12.2020 passed by the respondent No.2 granting promotion to respondent No.3, this, the petition has been filed.

#2. It is the case of the petitioner that he is holding the post of Assistant Grade-III. He was initially appointed on 21.08.2009. He has successfully completed training of Accountant in 2019. The entire service record of the petitioner is unblemished and he has been awarded very good and excellent remarks in the ACRs in every calendar year till date. He is victim of disability. The services of the petitioner as well as respondent No.3 are governed by the Madhya Pradesh District Court Establishment (Recruitment and Conditions of Service) Rules, 2016. A circular was issued by the State Government dated 10.06.2011 directing that if any employee is given punishment of "censure" then such employee shall not be considered for promotion in that year by the duly constituted committee and such employee shall be considered for promotion in the next calendar year. Two charge sheets were issued against the respondent No.3 vide order dated 04.11.2019 for violating the Rule 3(1) (i) (ii) (iii) 3 (C) of the Madhya Pradesh Civil Services (Conduct) Rules, 1965 (in short "the Conduct Rules, 1965"). On acceptance of allegations by the respondent No.3 no enquiry was contemplated. He was found guilty of charge under Rule 3 (1) (i) (ii) of the Conduct Rules, 1965. Thereafter, vide order dated 20.11.2020, punishment of censure was imposed upon the respondent No.3. Within a short period of 10-15 days from the date of imposition of punishment, a departmental 3 promotion committee has convened its meeting considering the case of the candidates for promotion to the post of Accountant. The committee recommended the name of respondent No.3 for promotion despite of the fact that the punishment of censure was imposed upon him and in terms of the circular of the Government he could not have been considered for promotion for a period of one year. The petitioner was having an unblemished career and stood next in queue for consideration for promotion. Therefore, consideration of respondent No.3 for promotion is virtually denying the benefit of promotion to the petitioner because respondent No.3 could not have been considered for promotion owing to punishment of censure. Relying upon the judgment passed by the Hon'ble Supreme Court in the case of State of Rajasthan and Others Vs. Shankar Lal Parmar passed in Civil Appeal No.8404 of 2011 decided on 30.09.2011, he prays for setting aside the promotion order of the respondent No.3 with the further relief to redo the departmental promotion committee and consider the case of the petitioner for grant of promotion.

#3. Per contra, counsel appearing for respondent No.2 by filing their return have opposed the contentions. It is the case of the petitioner that the departmental promotion committee has considered the case of respondent No.3 as well as the petitioner in accordance with the rules. The circular of the Government dated 22.07.1975 was taken into consideration by the authorities. The aforesaid circular was not placed on record by the petitioner. It is categorically mentioned in the circular that in case minor punishment of censure is issued then the candidature can be considered for grant of promotion.

#4. Counsel appearing for the respondent No.3 by filing return has supported the impugned order contending therein that the departmental 4 promotion committee has considered the case of the petitioner as well as the respondent No.3 and after due deliberation has passed the impugned order finding respondent No.3 fit for grant of promotion to the post of Accountant. No illegality was committed by the departmental promotion committee therefore, he has prayed for dismissal of the petition.

#6. Heard the learned counsel for the parties and perused the record. It is not disputed that the respondent No.3 was punished with the censure vide order dated 20.11.2020. After imposition of punishment, his case was considered by the departmental promotion committee for promotion to the post of Accountant and he was extended the benefit of promotion vide impugned order dated 04.12.2020. The law with respect to consideration of candidature of the person who has been punished with minor punishment could not have been considered by the departmental promotion committee for promotion is as per the circular of the Government dated 10.06.2011. The relevant portion of the circular dated 10.06.2011 is as under:- “’kkldh; lsodksa ds fo:) yafcr vuq’kklukRed dk; Zokgh@foHkkxh; tkap ds laca/k esa foHkkxh; inksUufr lfefr }kjk viukbZ tkus okyh izfdz;k rFkk y?kq ’kkfLr;ksa dk inksUufr ij iM+us okys izHkko ds laca/k esa lanfHkZr Kkiuksa }kjk funsZ’k tkjh fd;s x;s gSa] ftlesa ;g Li"V mYys[k gS fd ;fn ’kkldh; lsod ds fo:) ifjfuank dh ’kkfLr vf/kjksfir dh xbZ gS rks mldh inksUufr ds laca/k esa n.M vf/kjksfir djus ds ckn vk; ksftr Hkkoh foHkkxh; inksUufr lfefr dh cSBd esa fopkj fd;k tk ldsxkA 2@ Hkkoh foHkkxh; inksUufr lfefr ds laca/k esa dqN foHkkxksa esa Hkze dh fLFkfr cuh gqbZ gSA e/;izns’k yksd lsok ¼inksUufr½ fu;e & 2002 ds vuqlkj lacaf/kr o"kZ] ftles a foHkkxh; inksUufr lfefr dh cSBd vk; ksftr dh tkrh gS dh izFke tuojh dks vgZdkjh vof/k dh x.kuk djrs gq;s foHkkxh; inksUufr dh dk; Zokgh dh tkuk pkfg;s blls Li"V gS fd Hkkoh foHkkxh; inksUufr lfefr dh cSBd vkxkeh o"kZ izFke tuojh dks vgZdkjh lsok dh x.kuk djrs gq;s dh tk; sxh A’kklu ds le{k dqN ,sls izdj.k vk;s gSa] ftues 01 tuojh dh fLFkfr esa foHkkxh; inksUufr lfefr dh cSBd ekg uoEcj vFkok fnlEcj esa vk; ksftr dh a xbZ ,oa ,ssls ’kkldh; lsod ftudks ifjfuank dk n.M ekg tqykbZ ;k vxLr es a fopkj foHkkxh; inksUufr lfefr dh fn;k x;k Fkk] fd inksUufr ds laca/k es cSBd dks Hkkoh inksUufr lfefr dh cSBd ekurs gq;s fd;k x;kA bl laca/k es a Li"V fd;k tkrk gS fd ;fn ’kkldh; lsod ds fo:) ifjfuank dh ’kkfLr 5 vf/kjksfir dh xbZ gS vkSj foHkkxh; inksUufr lfefr dh cSBd ekg 01 tuojh dh fLFkfr esa ml o"kZ ekg tuojh esa vk; kssftr u dh tkdj vkxkeh ekgksa esa vk; ksftr dh tkrh gS rks ,slh fLFkfr esa ftu ’kkldh; lsodksa ds fo:) ml o"kZ ifjfuank dh ’kkfLr vf/kjksfir dh xbZ gS] dh inksUufr ds laca/k es a fopkj vkxkeh o"kZ esa 01 tuojh dh fLFkfr esa vk; ksftr dh tkus okyh foHkkxh; inksUufr lfefr dh cSBd esa fd;k tk ldsxkA 3@ mijksDr funsZ’kksa dk ikyu lqfuf’pr fd;k tk; sA”

#7. The authorities have considered the case of the respondent No.3 within a period of 12 days from the date of imposition of punishment. Despite there being a specific rider for non-consideration of the case for a period of one year. The aforesaid aspect of the case could not be countered by the counsel appearing for the respondents in the matter. Their only contention is that the departmental promotion committee has considered the case of the respondent No.3 and then have extended the benefit of promotion to him.

#8. The Hon'ble Supreme Court had an occasion to consider the similar issue in the case of Shankar Lal Parmar (supra) wherein it is held as under:- "16. Clause 7 further makes it clear that only those/such employees would be entitled to be granted Selection Grade whose service record has been satisfactory. This implicitly shows that the person who has an untainted, unblemished, clean and unpolluted record in service would be treated on a tainted, higher pedestal blemished, unclean or polluted record. This obviously appears to be a reasonable classification and is under the ambit and touchstone of Article 14 of the Constitution. There is neither any ambiguity nor any doubt in the same. those who have either

#17. However, with an intention to clarify the controversy, a subsequent office order/letter dated 24.07.1995 was sent by Finance Department (Rules Division) to Director General of Police, Rajasthan wherein it was provided that the record of service which made an employee eligible for promotion on the basis of seniority was also to be considered to be satisfactory for the purpose of granting 'Selection Grade'. It further laid down that if an employee has earned censure, then his case for grant of Selection Grade would be deferred 6 by one year. In other words, he would be entitled to get it but after 1 year, i.e. to say on completion of 10 years of service as compared to others, who would get it on completion of 9 years of service.

#18. It has not been disputed before us that censure is a minor penalty and has a minimum penalty as prescribed under the Rules of Rajasthan. Thus, it cannot be said that an employee who has earned censure would automatically be entitled for promotion or respective Selection Grade after the completion of 9, 18 or 27 years of service.

#19. However, we need to clarify that during the interregnum period between the first Office Order, issued on 25.01.1992 and the subsequent clarificatory office order/ letter dated 24.07.1995, some of the employees were granted the benefit of Selection Grade. The Appellant - State would not be entitled to claim refund from such employees who have already been granted benefit in this period. The subsequent office Order/ letter further makes it clear that all those employees who have earned censure in service shall also be entitled for the selection grade but the grant of Selection Grade to them would be deferred by one year. This appears to be an absolutely reasonable and perfect classification as otherwise every employee who has a clean image and another employee, who has earned censure would be treated at par. This is not permissible in the service jurisprudence and is also violative of Article 14 of the Constitution.

#20. It is settled principle of law that "like should be treated alike". This is the mandate and command of Article 14 of the Constitution, which we are required to follow. In any case, those who have earned censure cannot be treated at par with those who have had a clean service record. As mentioned hereinabove, an employee with blemished, polluted, tainted, unclean service record cannot be equated with other employee who has enjoyed clean, unblemished, unpolluted, untainted and impeccable service record. Such differentiation would not be violative of Article 14 while dealing with the principles of equality."

#9. On perusal of the aforesaid judgment, it is apparently clear that the case of the respondent No.3 could not have been considered by the 7 authorities for grant of promotion, therefore, in such circumstances, the order impugned granting promotion to the respondent no.3 is per se illegal and is hereby quashed.

#10. The matter is relegated back to the authorities for reconsideration of the case of the petitioner along with other employees by reconvening the departmental promotion committee. The entire exercise be completed within a period of 60 days from the date of receipt of the certified copy of this order.

#11. Accordingly, the petition is allowed. No order as to costs. (RAVI MALIMATH) (VISHAL MISHRA) CHIEF JUSTICE JUDGE Sha SHALINI LANDGE 2022.12.01 12:46:43 +05'30'