KRISHNA DUTT SHARMA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The petitioner, who was working as Vaidya Gr. I in the Ayurved Department, as per seniority issued. on Dec. 1, 1978, was senior to the respondents No. 2 to 6. The name of the petitioner appeared at S.No. 55, whereas the names of the respondents No. 2 to 6 appeared at S. Nos. 58, 59, 60, 62 and 70. As per the submission of the petitioner the Departmental Promotion Committee (hereinafter referred to as 'the D.P.C.) had met for consideration for promotion to the posts of District Ayurved Officer against the vacancies of the years 1981-82, 1982-83, 1983-84 and 1984- 85 and after considering the name of the petitioner, his name has been kept in a sealed cover because of some so- called 'contemplated' departmental enquiry against him. It is submitted by the petitioner that he is already holding the post of District Ayurved Officer since Nov. 23, 1983 when his name was put up for consideration before the D.P.C. It is submitted by him that he was selected by the D.P.C. in Sept., 1984 and he was adjudged. suitable but the regular promotion was being denied to him on the ground of some contemplated enquiry and his name was kept in sealed cover time and again. The petitioner filed an appeal before the Rajasthan Civil Services Appellate Tribunal Rajasthan, Jaipur being Appeal No. 998 of 1984 which was decided against the petitioner on 17.12.1986 (Annex. 3). It is the case of the petitioner that the so-called contemplated enquiry was, as a matter of fact, not in existence. He was never issued any charge-sheet and until and unless any charge-sheet is issued to the petitioner, there is no initiation of the enquiry. It is contended by the petitioner that the enquiry starts from the stage of issuing the charge-sheet till its final conclusion. The petitioner further contends that he could not be deprived of his promotion on the allegation of some 'contemplated' enquiry which may be in the mind of the competent authority but for which no overt action has been initiated i.e. no memo or charge-sheet has been issued to the petitioner. The petitioner relies on the instructions issued by the Government of Rajasthan vide Department Notificatioii No. F 10(1) Karmik/Ka-II/75-1 dated 5.3.1976 and certain other instructions issued on 18.9.1971, 1.4.1975 and 4.12.1975 for the proposition that the matters in regard to the promotion of a person against whom either there is order of suspension or departmental enquiry is pending were clarified. It is submitted that the instruction had clearly laid down that if any statement of allegation or charge-sheet has been issued under Rule 16 or 17 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (referred to hereinafter as 'the Rules of 1958') only then the delinquent official could be denied promotion. The Appellate Tribunal vide Annex. 3 came to the conclusion that junior persons have been promoted on regular basis and the petitioner had been so persuaded. Relying on the circular dated 4.1.1997 the Appellate Tribunal had non- suited the petitioner on the ground that even though no enquiry has been started or charge-sheet has been issued and still if there is any contemplation of departmental enquiry, the sealed cover procedure can be adopted for the reason that ultimately the petitioner would be issued the charge-sheet under Rule 16 or 17 of the Rules of 1958 and proceeded with under the Rules of 1958.

(2.) A reply has been filed on behalf of the respondent No. I and it has been specifically averred that in the year 1983-84 a departmental enquiry was contemplated and, therefore, a recommendation was made to the D.P.C. to consider the name of the petitioner and keep his name in the sealed cover. It was admitted that the petitioner was asked to officiate on the promotional post by- giving him the charge of District Ayurved Officer in 1983 when the post of District Ayurved Officer was lying vacancy, on account of retirement of one Ram Gopal but he was paid the salary of his original post and was not paid the salary of the promoted post. It is further admitted that a number of posts of District Ayurved Officers are lying vacant but on account of non-meeting of the D.P.C. the promotions are not being made. It is admitted that the petitioner was being posted as District Ayurved Officer at number of places against the vacant posts but he was not regularly promoted and he was allowed to draw the pay of his substantive post of Vaidya Gr. I i.e., the original post. In the written-statement it has not where been mentioned that right from 1983 till the filing of the writ petition, for ignoring the name of the petitioner for the purpose of promotion, any charge-sheet was issued to the petitioner or not.

(3.) Because of the reason that the written-statement only mentions that some departmental enquiry was contemplated against the petitioner, it became necessary for issuance of a direction to the respondents to produce the record of the so-called contemplated enquiry. The spondents have produced on record a copy of the charge-sheet dated 7.10.1991 i.e. which seems to have been issued after about 5 years of the filing of the writ petition and even the department has not come up with any explanation as to what had happened after the issuance of the charge-sheet dated 7.10.1991. Admittedly the petitioner has since retired and he is no more in service. It is also admitted at the bar that except of issuance of charge-sheet on 7.10.1991 a photo copy of which is marked as Annex. C. I by the Court, no further action has been taken in this regard.