RAJENDRA KUMAR SHARMA Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) The petitioner has preferred the present writ petition praying for the following reliefs:-

(2.) Brief facts of the case, as projected by the petitioner, are that that the petitioner was initially appointed on the post of Secretary Grade-IV and was posted at Krishi Upaj Mandi Samiti, Lormi, Distt. Bilaspur on the pay scale of Rs.220.005-240-6- 270-10-300-10-350-12/5/375/- and in due course of time the petitioner has been promoted to the post of Sr. Secretary on 29/1/2005. The Respondent Authorities from time to time issued the gradation list/Seniority list of the Senior Secretary. In the seniority list issued from 2003 to 2007-08, the name of the petitioner finds place above the Respondent No.5 to 13. Thus the petitioner is admittedly senior to the Respondent No. 5 to 13. It is pertinent to mention that the Respondent No.3 in a most arbitrary manner and contrary to the Viniyam 1998 without any basis issued an order dtd. 3/5/2007 and granted 5 seniority to the Respondent No.4 much above the petitioner and the Respondent No.5 has been placed at Serial No.1 in the seniority list as on 1/4/2007, whereas in the original seniority list the name of the Respondent No. 5 was placed at Serial No.36. In between the petitioner was placed under suspension in respect of alleged irregularities and he was also served with the charge sheet and faced the departmental enquiry and ultimately in the departmental appeal, he has been exonerated from all the charges. The petitioner was facing departmental enquiry between 13/2/2008 to 8/7/2010. According to the Chhattisgarh Public Service (Promotion) Rules, 2003, the promotion in respect of promotion from Grade II to Grade I should be purely based on seniority-cum-suitability. During the pendency of the department enquiry against the petitioner, the Departmental Promotion Committee (DPC) was duly constituted in July 2008 for consideration of promotion from Grade II to Grade I ie. promotion from the post of senior secretary to the post of Dy. Director but the departmental promotion committee did not follow the norms of the Promotion Rules and the name of the petitioner was not considered for promotion at all and the names of the Respondents Nos. 5 to 13 were recommended, who are much juniors to the petitioner. On the basis of recommendation of the DPC, the Respondent Board issued the promotion order to the Respondents Nos. 5 to 12 on the post of Dy. Director. Hence, this petition has been filed by the petitioner.

(3.) Learned counsel for the petitioner submits that according to the seniority list dtd. 21/9/2006 and 22/7/2008, the Respondent No.5 to 13 are juniors to the petitioner therefore the Respondent No.5 to 13 are not entitled for promotion to the post of Dy. Director/Sr. Secretary (Prever Grade) according to the promotion rules applicable. Since the petitioner has already been exonerated from all the charges in the departmental proceeding, he is eligible for promotion from the date his juniors were promoted and on the basis of seniority- cum-suitability/fitness, the petitioner is eligible and qualified for consideration for promotion to the post of Dy Director/Sr. Secretary (Prever Grade). It is a settled principle of law that if any criminal prosecution or departmental enquiry is pending against the delinquent employee at the time of consideration of promotion, the respondent authority/ DPC are bound to follow the procedure of sealed cover and if the concerned employee is exonerated from the alleged charges then he would be entitled for all consequential benefits as well as promotion from the date his juniors were promoted. The Departmental Promotion Committee at the time of consideration of promotion to post of Dy. Director/Sr. Secretary (Prever Grade) has not followed the Chhattisgarh Public Service (Promotion) Rule 2003, which is applicable to the petitioner and Respondents Board, whereas the D.P.C. recommended the name of the Respondent No.5 to 13 for promotion to the post of Dy. Director/Sr. Secretary (Prever Grade), which is contrary to the promotion Rules. According to the promotion rule the petitioner is well qualified and eligible for consideration of promotion to the post of Dy. Director. Therefore, the writ petition may kindly be allowed. Reliance has been placed on the judgment rendered by the Hon'ble Supreme Court in the matter of Ajay Kumar Shukla vs Arvind Rai and others, passed in Civil Appeal No.5966/2021, decided on 8/12/2021, the judgments rendered by this Court in the matters of K. P. Patel vs State of Chhattisgarh and others, reported in (2006) 1 CGLJ 264, Rajendra Tiwari vs State of Chhattisgarh and others, reported in (2017) 1 CGLJ 444 and further in the matter of Shri Yogendra Babu Sharma vs Union of India and others, passed in WPS No.1646/2019, decided on 19/10/2023.