S.N.BYADWAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This writ petition has been filed by the petitioner with the prayer that respondents be directed to open the sealed cover containing recommendations of Departmental Promotion Committee qua him for promotion to the scale of Rajasthan Administrative Service against vacancies of 1987- 88 and grant him promotion to selection scale w.e.f. 21.4.1988 when his juniors were so promoted and further that he should be held entitled to all consequential benefits with interest @ 18% per annum.

(2.) Shri Ajeet Kumar Sharma, learned counsel for the petitioner argued that a first information report was lodged against the petitioner on 2.2.1984 for offences under Sections 420, 120-B IPC and Section 5 (1) (d) read with Section 5 (2) of Prevention of Corruption Act. Even if the matter was pending enquiry against petitioner in Anti Corruption Bureau, his case for promotion to selection scale became ripe against the vacancies of 1987-88 yet was liable to be considered by Departmental Promotion Committee along with cases of other similarly situated persons. DPC however illegally invoked sealed cover procedure in his matter and recommended promotions of others, which included many of his juniors. Learned counsel submitted that sealed cover procedure in the case of petitioner could not be invoked because according to circular issued by Department of Personnel of Government of Rajasthan dated 4.1.1977, DPC which was convened on 16.9.1987, was not required to invoke sealed cover procedure because at that time petitioner was neither under suspension nor even any disciplinary proceedings were proposed to be initiated against him. Learned counsel cited subsequent circular of Department of Personnel dated 17.7.1989 and submitted that even according to this circular, sealed cover procedure could be invoked only if a charge-sheet has been issued to Government servant concerned or disciplinary proceeding was pending against him or a criminal case was pending against him on a charge-sheet filed in Court. It was argued that criminal case against petitioner at that point of time was only at the stage of investigation and action of DPC in invoking sealed cover procedure was thus bad in law. Learned counsel in support of this argument cited judgment of Supreme Court in Union of India v. K.V. Jankiraman, AIR 1991 (Supreme) 2010 and judgment of this Court in Mohan Singh v. State of Rajasthan & Ors., 2006 (5) WLC (Raj.) 405 . Learned counsel also submitted that challan in the above referred to case was filed against petitioner in the Court of competent jurisdiction on 29.8.1991 and it was thereafter the petitioner was suspended on 25.9.1991. The Court framed charges against the petitioner vide order dated 4.9.1992. Petitioner and other accused filed a petition against order framing charges under Section 482 Cr.P.C. before this Court. This Court vide its judgment dated 14.10.1993 passed in SB Criminal Misc. Petition No. 1272 of 1992, Dr. Zahoor Mohammed & Ors. v. State of Rajasthan not only quashed the order framing charge, but also entire proceedings against all petitioners, which included petitioner herein as well. Learned counsel submitted that since there was neither any enquiry however contemplated against petitioner nor was any decision taken to hold such enquiry because when criminal case against petitioner was quashed, respondents vide order dated 14.10.1994 reinstated the petitioner in service and revoked the order of his suspension and also paid to petitioner remaining salary and allowances for the period of suspension. Learned counsel submitted that even as per Circular of Government dated 4.1.1977, which was in force at the time meeting of DPC was convened on 16.9.1987, sealed cover procedure was not required to be invoked against petitioner because there was no proposal to initiate disciplinary proceedings against him and no such material has been placed on record by respondents.

(3.) Shri Zakhir Hussain, learned Additional Government Counsel opposed the writ petition and submitted that even though departmental enquiry was not pending against petitioner on the date when DPC was convened, but such departmental enquiry was contemplated against petitioner and, therefore, Departmental Promotion Committee was rightly invoked sealed cover procedure. It was contended that even otherwise, charge-sheet in departmental enquiry was actually served upon petitioner on 23.6.1992. Learned counsel submitted that recommendations of DPC, which were already placed in sealed cover much before quashment of proceedings in criminal case by this Court vide its judgment dated 14.10.1993, were thus required to be retained in sealed cover notwithstanding judgment of this Court quashing proceeding in criminal case. Learned counsel submitted that subsequently disciplinary proceedings were also concluded against petitioner and he was awarded compulsory retirement by way of penalty vide order dated 5.9.1997. There can be now no question of opening the sealed cover and giving effect to recommendations of DPC qua the petitioner. Learned counsel submitted that as per circular of Department of Personnel dated 4.1.1977, which would apply in the present case because DPC was convened on 16.9.1987, the sealed cover procedure could be adopted in the case of employee against whom disciplinary proceedings were proposed to be initiated or otherwise, the competent authority had taken a decision, but where a charge-sheet or statements of allegations under Rule 17 has not been issued. Allegations on the basis of which chargesheet was eventually issued to petitioner on 23.6.1992 were duly enquired into by Lokayukat of the State, who recommended a regular disciplinary enquiry against petitioner. District Collector, Jaipur by letter dated 6.5.1992 sent the draft charge-sheet along with record to Department of Personnel. It was on that basis that memo of charge-sheet was issued on 23.6.1996.