Sujana Ram v. State of Haryana & Ors.

CORAM: HON'BLE MR. JUSTICE SURYA KANT HON'BLE MR.JUSTICE RP NAGRATH PRESENT: Mr. Jai Vir Yadav, Advocate for the appellant. SURYA KANT, J. (ORAL) This Letters Patent Appeal is directed against the order dated 2.8.2011, passed by learned Single Judge, dismissing CWP No. 6013 of 2011 (Sujana Ram Vs. State of Haryana and others) wherein the appellant sought a direction to consider and promote him to the post of Chief Engineer w.e.f. the date when his juniors, namely, respondents No. 3 and 4 were promoted. It appears that the appellant is one step higher than respondents No. 3 and 4 in the seniority list of Executive Engineers (Class-I Service) and he maintained that seniority in the rank of Superintending Engineer also. The appellant was charge-sheeted for LPA No. 235 of 2012 -2- major penalty on 24.3.2006 and was found guilty of the mis-conduct by the Enquiry Officer vide report dated 20.12.2006. He was issued a show-cause notice on 31.12.2008, to which the appellant promptly responded on 7.1.2009. The punishment order of censure with recovery of 10% of the loss of ` 6 lacs caused to the State Exchequer was thereafter imposed on the appellant vide order dated 31.8.2009 (Annexure P-4). Meanwhile, when enquiry proceedings were pending, respondents No. 3 and 4 were promoted as Chief Engineers on

20.8.2009. Since the appellant was not allegedly considered, he approached this Court in CWP No. 571 of 2009, seeking promotion from the date his juniors were promoted. The writ petition was disposed of on 14.1.2010, with a direction to the State Government to take decision on the representations submitted by the appellant in this regard. In compliance of those directions the State Government passed the impugned order dated 13.7.2010 (Annexure P-10) rejecting the appellant's claim for promotion as Chief Engineer from the date his juniors were promoted or otherwise, for the reasons that (i) the appellant was facing disciplinary action at the time when his juniors were promoted; (ii) the disciplinary proceedings culminated into an order of punishment i.e. the mis-conduct was proved; (iii) there were two vigilance enquiries, out of which enquiry No. 35/2002 was decided vide memo No. 369 dated 17.4.2007 by issuing a warning to the appellant as “the recovery of loss along with interest stood recovered from the Contractor”; (iv) the second vigilance enquiry No. 6/2003 has resulted in issuance of another charge-sheet for major penalty on LPA No. 235 of 2012 -3-

25.2.2010, wherein the allegations pertain to execution of sub-standard work in water supply schemes; (v) the pendency of charge-sheet under Rule-7 is a clear bar for consideration for promotion. The aggrieved appellant approached this Court but his writ petition has been dismissed in limine by the learned Single Judge. Still aggrieved, the appellant has come up in this appeal. We have heard learned counsel for the appellant at some length and gone through the record. As regards the executive instructions of 1971 or dated

19.7.1973 relied upon by the appellant, the law has been well settled in Union of India etc. Vs. KV Jankiraman etc. 1991 (4) SCC 109, holding that in case an employee has been charge-sheeted either in the criminal proceedings or in a domestic enquiry, outcome of consideration for promotion ought to be kept in a sealed cover, opening whereof shall depend upon the outcome of the domestic enquiry or the trial, as the case may be. In the instant case, assuming that the appellant was considered along with his juniors or found suitable as per overall service record yet his fate was required to be kept in a sealed cover which could not be opened as he was found guilty of the mis-conduct and punishment had been awarded. Even in the case of minor punishment the Government Instructions dated 19.7.1973 (Annexure P-11) relied upon by the appellant categorically provides that wherever the punishment of recovery from pay is imposed, such punishment may be kept in view at the time of promotion as a part of the whole record. When the nature of charges proved against an official impinge upon his integrity, LPA No. 235 of 2012 -4- competence or capacity, the same deserve to be viewed seriously for the purpose of promotion to a higher post which involves greater responsibility. That apart, the appellant cannot have a grievance for non- consideration for promotion. Pursuant to the order dated 14.1.2010, passed by this Court in CWP No. 571 of 2010, his claim and suitability for the subject promotional post has been duly considered by the competent authority. When promotion is denied to any official on the basis of relevant considerations, the Court in exercise of its power of judicial review need not substitute or impose its own opinion in place of that of the competent authority. The contention that the learned Single Judge, has erroneously observed as if punishment of recovery imposed on the appellant pertained to ` 6 lacs whereas it was 10 % of ` 6 lacs only, also does not cut any ice for the reason that it is not the amount but the nature of punishment which is relevant. For the reasons aforestated, we do not find any merit in this appeal. Dismissed. August 22, 2012 ( SURYA KANT ) JUDGE ( RP NAGRATH ) JUDGE