RAJESH HENRY Vs. STATE OF M P

JUDGEMENT

(1.) Challenging the orders (Annexures P-1 and P-2), by which promotion to the post of Assistant Commissioner Excise is granted to Respondent No. 3, superseding the Petitioner and the order seeking suo motu review of a departmental proceeding closed against the Petitioner, this writ petition has been filed.

(2.) Petitioner was initially appointed as a District Excise Officer on 1-9-1999. He claims to be a person belonging to the Scheduled Tribe community. In the year 2005, while Petitioner was posted as District Excise Officer, Mandsaur a show-cause notice was issued to him on 5-11-2008, pointing out various irregularities in the matter of recovery of revenue. Petitioner is alleged to have filed reply denying the allegations. However, a charge-sheet was issued to the Petitioner on 3-3-2006, to which the Petitioner submitted his reply and pointed out his defence. Being satisfied with the reply submitted by the Petitioner, the Disciplinary Authority exonerated the Petitioner of all the charges and passed an order (Annexure P-4) on 11-4-2007, holding that the allegations levelled against the Petitioner are not correct and, therefore, the proceedings be dropped. However, it was found that the predecessor of the Petitioner one Shri Pratyush Kabra was responsible for certain irregularities and, therefore, vide order dated 27-12-2007 (Annexure P-3), punishment was imposed upon Shri Kabra.

(3.) It is the case of the Petitioner that while the departmental proceedings were pending and just before he was exonerated of the charges on 11-4-2007, a DPC met on 7-4-2007 for considering the case of eligible persons for promotion on the post of Assistant Commissioner Excise. It is common ground that this DPC was in fact a review DPC of an earlier DPC that was held for promotion to the said post. Be it as it may be, in the said review DPC due to pendency of the departmental proceedings sealed cover procedure was followed and the recommendations of the Petitioner were kept in the sealed cover. However, in spite of the fact that Petitioner was exonerated on 11-4-2007, the sealed cover was not opened in the case of the Petitioner, instead by the impugned order dated 18-4-2007 (Annexure P-1), Respondent No. 3 who was junior to the Petitioner was promoted as Assistant Commissioner Excise. It is the case of the Petitioner that once he was exonerated on 11-4-2007 and on 18-4-2007 when Respondent No. 3 was promoted and when no proceedings were pending, on the said date the sealed cover should have been opened and promotion granted to the Petitioner. Accordingly, on the aforesaid consideration, challenge is made to the order dated 18-4-2007 (Annexure P-1), granting promotion to Respondent No. 3. That apart, it is the case of the Petitioner that when he represented against the supersession, when Respondent No. 3, who is junior to the Petitioner as is evident from the Gradation List (Annexure P-5), was promoted, Petitioner submitted representation on 15-5-2007 vide Annexure P-6. The Secretary in the Commercial Tax Department made certain queries with regard to the Departmental Enquiry of the Petitioner vide Annexure P-7, on 25-7-2007. Respondent No. 2 - Excise Commissioner furnished the information within two days vide Annexure P-8, on 27-7-2008, and it was pointed out that no Departmental Enquiry was pending and the Petitioner has been exonerated. Thereafter, Respondent No. 1 again raised a query on 8-8-2007 and sought further details in the matter. These communications were followed by two more communications on 18-7-2007 and 5-10-2007 and finally all these were answered by Respondent No. 2 on 29-12-2007. Grievance of the Petitioner is that even though with Annexure P-9 on 29-12-2007 it was already brought to the notice of the State Government that Petitioner has been exonerated, but still when nothing was done Petitioner filed a writ petition before the Indore Bench of this Court, being W.P. No. 2745/2008 (S), and this Court vide order dated 13-5-2008 (Annexure P-10) directed the Respondents to consider the representation of the Petitioner for grant of promotion. Petitioner vide Annexure P-11, dated 18-8-2008, brought to the notice of the Respondents the entire facts so also the order passed in the writ petition (Annexure P-10). It is the grievance of the Petitioner that instead of promoting him and granting him the benefit, by the impugned order dated 16-12-2008 (Annexure P-12), State Government has decided to exercise the powers of suo motu revision conferred on it under Section 29(1)(iii) of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 (hereinafter referred to as 'Disciplinary Rules') and by an order dated 31-12-2008 ordered an enquiry under Rule 14, challenging this action, Petitioner has filed this writ petition.