ANITA MALVIYA Vs. STATE OF M.P

JUDGEMENT

(1.) THIS petition under Article 226 of the Constitution of India is directed to seek a command to the respondents to open the sealed cover recommendations of the Departmental Promotion Committee (hereinafter referred to as the DPC for brevity) for the purposes of granting promotion to the petitioner as Additional Superintendent of Police, on the grounds that the petitioner, who was appointed on direct recruitment basis as Dy. Superintendent of Police in the year 1994, got the senior scale of pay applicable to the post in the month of January 2000. A screening was done by the State Government for the purposes of posting of such persons in the selection grade pay scale and to designate them as Additional Superintendent of Police. Though on the date from which the eligibility was considered, there was nothing against the petitioner, but the recommendations made in her respect were kept in the sealed cover saying that the departmental enquiry was pending against her. In fact, such a consideration was not justified in view of the fact that the eligibility was to be taken with effect from 1.1.2005 and on the said date there was no departmental enquiry pending against the petitioner. Only on 12.5.2005, a charge sheet was issued against the petitioner constituting a departmental enquiry against her. Juniors to the petitioner were given the posting as Additional Superintendent of Police and claim of the petitioner was considered, but was kept in the sealed cover. As a matter of fact, the petitioner belongs to Scheduled Caste community and she was unnecesarily harassed by the then Superintendent of Police, Bhopal, as a result of which she lodged a report in Adim Jati Kalyan Police Station on 15.2.2005. This being the malafide intention, the petitioner was denied posting and promotion as Additional Superintendent of Police in illegal manner. The reliefs are claimed to the effect that the respondents be commanded to open the sealed cover envelope, look into the recommendations of the DPC and act on it and post the petitioner as Additional Superintendent of Police.

(2.) UPON service of the notice of the writ petition, the respondents have filed their return, categorically contending that the petitioner was to be considered for grant of posting as Additional Superintendent of Police. For the said purposes screening was done. While conducting the screening in terms of the provisions of M.P. Police Executive (Gazetted) Service Recruitment and Promotion Rules, 2000 (hereinafter referred to as Rules of 2000 for brevity), the case of the petitioner was also screened. However, the criteria of merit-cum-seniority for fixation of benchmark was to be taken into consideration and the recommendations of the petitioner were put in the sealed cover only because it was informed to the DPC that there was a departmental enquiry pending against the petitioner. It is contended that since the DPC meeting was held on 27.10.2005 and before that date, the charge sheet was issued to the petitioner on 12.5.2005, rightly it was decided by the DPC to put recommendations made in respect of the petitioner in the sealed cover. This is what the procedure prescribed under the administrative instructions and, therefore, no wrong was committed by the authorities. It is contended that eligibility is to be seen with effect from 1.1.2005, but it does not mean that one who was facing a departmental enquiry was required to be promoted if the DPC meeting was convened later on. This being so, it is contended that the entire petition is based on misconceived facts and is liable to be dismissed.

(3.) IT is emphatically contended by learned Senior counsel for the petitioner that the vacancies were already available before the date of issuance of the charge sheet to the petitioner and against such vacancies the claim of petitioner was considered as she has completed 8 years of service required for promotion on the post of Additional Superintendent of Police, on the date fixed by the DPC. As on 1.1.2005 since there were vacancies available, the proceedings were done for consideration of the case of persons like petitioner for promotion. If it is seen and examined that there were no charges levelled against the petitioner before 1.1.2005, recommendations of the DPC made in her respect were not required to be kept in the sealed cover. Ultimately, the departmental enquiry has been culminated in a warning which is not enumerated as a penalty under M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 (hereinafter referred to as Rules of 1966 for brevity), or under the Police Regulations, or the Rules of 2000 referred to herein above. Therefore, if the petitioner was not punished at all, only a warning was given to her in a departmental enquiry, the respondent No.1 employer was not correct in postponing the promotion of the petitioner and making it with prospective effect. The fact remains that the petitioner should have been given the promotion with retrospective effect as she was already found fit for promotion by the DPC of the year 2005 and her recommendations were kept in the sealed cover. That being so, the denial of promotion with retrospective effect to the petitioner is not only causing monetary loss to the petitioner, but also a loss of seniority, which is not justified. If there was no occasion to punish the petitioner as nothing was found in the departmental enquiry, such denial of promotion will amount to a penalty and, therefore, the petitioner would be a victim of double jeoparde. Such a course is not open or available to the respondent-State and as such, still the petitioner is entitled to grant of relief of promotion with retrospective effect with all the consequential benefits.