High Court · 2012

Learned counsel for the respondent has no objection if the delay in filing this appeal is condoned. In view of the aforesaid, delay in filing this appeal is con- doned. Heard on admission. This appeal is directed against an order dated 11.10.2011 in W.P.No.3435/2007 by which the learned Single Judge quashed the impugned order, annexure P/1, and directed the appellants herein to convene a review DPC in the light of quashment of the order, annexure P/1, dated 12.9.2005. The learned Single Judge further directed that in case the petitioner is found fit for promo- tion then he be given due seniority above his junior and also mon- etary benefit to which the respondent is entitled. This order has been assailed by the appellant on the ground that the impugned order has been quashed by the learned Single Judge but the re- spondent would be entitled for benefit of DPC prospectively and not from the date on which the earlier DPC was convened. In sup- port of his contention he has placed reliance on the apex court judgment in the case of State of M.P. and another Vs. I.A.Qureshi, (1998)9 SCC 261. It is also submitted that in spite of quashment of the punishment order, respondent was not entitled for any monet- ary benefit. 2 Writ Appeal No.1325/2011 2 To appreciate the rival contentions of the parties it would be appropriate that if the factual position in the case is stated. Re- spondent no.1 was working as Senior Grade Stenographer with the appellant. He had faced a departmental proceedings in which on 20.1.2004 the disciplinary authority had passed an order by which he was directed to be reverted to a lower post. On an ap- peal by the respondent no.1, punishment order was modified and it was directed that in place of reversion, the respondent would suffer a punishment of withholding of two increments without cumulative effect. This order was passed on 26.9.2005. Thereafter, appellants herein had passed another order, annexure P/1, dated

12.9.2006 by which the order dated 26.9.2005 was modified and the punishment order was made effective from the date of sub- sequent order, annexure P/1, dated 12.9.2006. This order was challenged by the respondents before the writ court on the ground that there was no question of modification of the order dated 26.9.2005. The respondent had already suffered punishment and now making the aforesaid punishment prospective from

12.9.2006 will deprive the respondents for promotion to which a review DPC was to be convened. The learned Single Judge by order dated 12.3.2007 had stayed the order, annexure P/1, dated 12.9.2006 and thereafter, after hearing both the parties, passed the impugned order. For ref- erence we quote the relevant part of the order which reads thus :- “The learned counsel appearing for the respond- ents no.1 to 3, per contra, submits that the punishment of stoppage of two increments was imposed by the competent appellate authority and the consequent im- plementation order was also issued by the competent 3 Writ Appeal No.1325/2011 3 authority. However, on account of misunderstanding of the order of punishment respondent no.3 issued the impugned order annexure P/1 which has resulted in withholding of increments of the petitioner for a peri- od of three years. It is submitted that the mistake on part of respondent No.3 occurred on account of the fact that he misinterpreted the word ‘prospective’ in the order of punishment and accordingly implemented the order of punishment for the year 2006-07 and 2007- 08 whereas the punishment in fact should have related back to the original order of the punishment dated 24/11/2005 and should have come to an end on 29/07/2006. In view of the aforesaid statement of the learned counsel for the respondents 1 to 3 and in view of the provisions of FR 29A, which lays down that an order modifying the punishment in the departmental en- quiry, the impugned order dated 12/09/2006 being contrary to law is hereby quashed and set aside. In view of the aforesaid, it is clear that the peti- tioner was entitled to be considered for promotion in all and in any of the departmental promotion commit- tees held by the respondents subsequent to 29/07/2006. On a query being made from the learned coun- sel appearing for the respondents 1 to 3, he has placed the minutes of the DPC held on 05/09/2008 on record, a perusal of which indicates that though the peti- tioner’s case was considered and his record was found to be good he was not granted promotion on the post of Senior Assistant Manager only on account of the fact that he was said to be undergoing punishment in accordance with the impugned order Annexure P/1 dated 12/09/2006. As I have quashed the impugned order Annexure P/1, it is clear that the petitioner’s case requires to be reconsidered in view of the fact that as consequence of quashing Annexure P/1, it cannot be said that the petitioner was undergoing any punish- ment as on 05/09/2008 and in such circumstances, the petition filed by the petitioner is disposed of with a direction to the respondent authorities to conduct a re- 4 Writ Appeal No.1325/2011 4 view DPC as on 05/09/2008 and consider the case of the petitioner for promotion by ignoring the impugned order Annexure P/1 which has been quashed by this Court purely on the basis of his record and merits and in case the petition is found fit he be granted promo- tion with all consequential benefits from the date gran- ted to respondent no.4. The aforesaid exercise be un- dertaken and completed by the respondent authorities expeditiously in accordance with law as far as possible within a period of three months. “ This order is under challenge in this petition. In this case, it would be appropriate if a statement made by the appellant is taken on record that the appellant is not challen- ging that part of the order of the Single Judge by which the im- pugned order, annexure P/1, dated 12.9.2006 was quashed, but is challenging later part of the order by which a review DPC was directed to be convened with retrospective effect as on 5.9.2008 and to consider the case of the respondent for promotion vis-a-vis to his juniors. From perusal of the aforesaid it is apparent that the earlier DPC had not considered the case of the respondent on merits but has taken into consideration the fact that the punishment order was in force though it was stayed by the High Court but on the aforesaid ground the respondent was found not entitled for pro- motion. But once the order, annexure P/1, is quashed by the High Court, the respondent no.1 was entitled for his reconsideration for promotion on the post of Assistant Manager as on the date when his juniors were considered and promoted in the DPC dated

5.9.2008. Apart from this, once the punishment order was passed on 26.9.2005 then it could not have been given a prospective effect 5 Writ Appeal No.1325/2011 5 by a subsequent order dated 12.9.2006. The learned Single Judge rightly quashed the order, annexure P/1, and directed the appel- lant herein to convene a review DPC, in which we do not find any error warranting our interference. This appeal is found without merit and is dismissed at ad- mission stage with no order as to cost. (Krishn Kumar Lahoti) Judge (Smt.Vimla Jain) Judge HS