STATE OF RAJASTHAN Vs. M C SAXENA

JUDGEMENT

(1.) These two appeals, one by the State of Rajasthan and the other by the concerned employee arise out of the same judgment and as such are being disposed of by this common judgment. The respondent Shri M. C. Saxena in Civil Appeal No. 2536 of 1993 is an engineer who joined the service of the Rajasthan Government in the year 1957 as Assistant Engineer. While he was continuing as Executive Engineer at Bharatpur, certain complaints were received by the Anti Corruption Department to the effect that the material used by the Engineer at Seola and Baretha Bandhs are sub-standard materials. On the basis of the said complaint certain preliminary enquiry was held and then the State Government issued a set of charges against the respondent and four other officials in June 1979. On receipt of the explanation from the respondent, an enquiry officer was appointed to enquire into the charges against the respondent by order of the State Government dated 21st January, 1980. The enquiry officer ultimately submitted a report on 24th July 1984 indicating therein that the samples which have been taken by the concerned officer and were sent to the FSL was not in accordance with the prescribed procedure and therefore the report of the FSL cannot be relied upon. Accordingly the Enquiry Officer exonerated the respondent. During the pendency of the aforesaid department proceedings the respondent was promoted to the post of Superintending Engineer on provisional basis by order dated 24th November, 1984. The State Government who is the Disciplinary Authority of the respondent considered the report of the Enquiry Officer and disagreed with the findings of the said enquiry officer. The State Government came to the conclusion that the charges against the respondent have been duly established and accordingly awarded the punishment of withholding of two increments without cumulative effect by order dated 8th October, 1995 (1985). On a Review Petition being filed by the respondent under Rule 33 of the Rajasthan Civil Services (CCA) Rules, 1958, the Government allowed the same partly by order dated 17th December 1986 and reduced the punishment imposed to withhold one increment without cumulative effect. The respondent then filed a second Review Petition which however was dismissed by order dated 20th June 1988. In the year 1989 the Departmental Promotion Committee considered the cases of promotion in respect of vacancies in the post of Superintending Engineer for 81-82 and 82-83 but did not find the respondent fit for promotion for the year 81-82. The said DPC however, found the respondent suitable for promotion in respect of the vacancies in the year 82-83. In accordance with the said decision the State Government finally passed the order on 27th December 1989 granting retrospective promotion to the respondent to the post of Superintending Engineer. The respondent then filed a writ petition in the Rajasthan High Court challenging the validity of certain provisions of Classification, Control and Appeal Rules as well as the recommendations of the Departmental Promotion Committee for selection on promotion against the vacancies of 81-82 and 82-83 for the post of Superintending Engineer and the consequential order of the State Government dated 27th December 1989. The said writ petition was registered as Civil Writ Petition No. 3323 of 1989 and has been disposed of by the judgment dated 21st January, 1993, which is being impugned by the State of Rajasthan in Civil Appeal 2536 of 1993. The employee Shri M. C. Saxena also has come up in the other appeal challenging the order of punishment inflicted upon him by the State of Rajasthan, in withholding one increment without cumulative effect. It may be stated that during the pendency of the writ petition before the High Court the respondent was promoted to the post of Additional Chief Engineer against the vacancy of 1992-93. The High Court by the impugned order came to the conclusion that since the delinquency in respect of which respondent stood charged in the Departmental proceeding was of the year 1973, the punishment awarded would lapse after expiry of seven years from the date on which the alleged delinquency was committed and therefore non consideration of the respondent for promotion in the year 1980 is vitiated. The High Court further directed to hold the Departmental Promotion Committee to consider the case of the respondent for promotion to the post of Superintending Engineer w.e.f. 1980 and on such consideration if he is found suitable to grant him retrospective promotion and should be considered also for promotion to the higher level.

(2.) Mr. Gupta appearing for the State in Civil Appeal No. 2536 of 1993 contends that in view of the Departmental proceeding initiated against the respondent and ultimately order of punishment inflicted upon by the disciplinary authority withholding one increment without cumulative effect, the conclusion of the High Court that the respondent was entitled to be considered for promotion w.e.f. 1980 is wholly unsustainable in law. He further contended that in view of the relevant circular of the Government, the period of seven years can only be counted from the date of the order of punishment and the date of delinquency is wholly immaterial, and the High Court committed error in holding that the period of seven years could be counted from the date of delinquency. Mr. Gupta further submitted that the respondent having been duly considered in the year 1989 but having been found unsuitable for promotion to the post of Superintending Engineer in respect of vacancy occurring in 81-82, there has been no infringement of Article 16 of the Constitution and consequently the impugned direction of the High Court cannot be sustained.

(3.) Mr. Surya Kant, the learned counsel appearing for the employee who is the Appellant in Civil Appeal No. 2564 of 1993 though fairly stated that the period of seven years has to be counted from the date of the award of punishment and not from the date of delinquency but contended that the enquiry officer having exonerated the delinquent of the charges levelled against him, the disciplinary authority could not have inflicted punishment without giving on apportunity of hearing to the delinquent and as such the impugned order of punishment is liable to be set aside, being in violation of principle of natural justice. The learned counsel accordingly urged that the High Court committed gross error in not setting aside the order of punishment imposed upon the delinquent government servant.