Govind Prasad Sharma v. Registrar

HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Mr.Shobit Tiwari for the petitioner. Mr.Sudesh Kasana, Dy.Govt. Counsel for the State. Heard learned counsel for the petitioner. This writ petition has been filed by the petitioner with the prayer that the respondents be directed to open the sealed cover and give effect to the recommendations of the DPC qua the petitioner for promotion on the post of Office Superintendent to Tehsildar, which have been kept in the sealed cover. Learned counsel for the petitioner, referring to the Government circular, argued that the instructions of the Government with regard to notification of sealed cover procedure could be applied only in the case of employees against whom either prosecution is pending or charge-sheet 2 is issued. In the present case, even though the trial Court has directed for addition of name of the petitioner, but that cannot be treated as pendency of the prosecution because police did not file any supplementary charge-sheet and admittedly, no charge-sheet has been issued by the Disciplinary Authority.

Learned counsel relied upon the judgment of Supreme Court in Union of India Vs. K.V.Jankiraman : AIR 1991 SC 2010. The respondents in reply to the writ petition contested the claim of the petitioner that only name of the petitioner has been added and have asserted that the Court by positive order passed on 15.10.2003 has taken against the petitioner for offence under Section 120-B IPC on the allegation that the petitioner tried to manipulate the decision of the Board of Revenue in conspiracy with other accused and tried to get the same implemented. Once when the cognizance of the offence against the petitioner taken by the Court, he cannot come out the clear acquittal either he is discharged or finally acquitted at the conclusion of the trial. Contention of the petitioner that by mere addition of name of the petitioner, prosecution cannot be taken as pending against the petitioner, is liable to be rejected.

The judgment of Supreme Court in the case of 3 Union of India (supra) relied upon by the petitioner turned out in the context at a different circular. It was held therein that sealed cover procedure cannot be invoked at the stage of preliminary investigation in a criminal case, which may take invariable long time. But, in the present case, at the time of holding DPC, a criminal case was found pending petitioner. It cannot be said that even if cognizance has been taken against an accused, still the prosecution against him would not be treated as pending. The judgment of Supreme Court does not help the petitioner. The writ petition in terms prayed for, therefore, cannot be allowed. Although the petitioner would at liberty to make representation, if eventually he is discharged or acquitted, to the respondents for giving effect to the recommendations of the DPC qua him, which shall be considered and decided by the respondents. In the result, this writ petition is accordingly dismissed. A.Arora/- Item No.44. (MOHAMMAD RAFIQ)J.