As we find that it is the respondent himself who is responsible for
cancellation of the promotion order as he did not join the
promoted post, the impugned order of the High Court is clearly
erroneous and against the law. The same is, accordingly,
reversed.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9486 OF 2014
STATE OF MADHYA PRADESH Vs RAMANAND PANDEY
Citation; (2014) 10 SCC610
2) Matter heard finally as counsel on either side, who were ready to
argue the matter, made a specific request in this behalf.
3) The instant appeal arises out of the judgment dated July 10, 2012
rendered by the Division Bench of the High Court of Madhya
Pradesh whereby writ appeal filed by the appellants herein has
been dismissed and the order of the learned Single Judge passed
in the writ petition, which was preferred by the respondent herein,
has been affirmed. The learned Single Judge of the High Court
had allowed the writ petition of the respondent in which challenge
to the order dated November 25, 2006, whereby the respondent
was reverted from the post of Agriculture Development Officer (for
short, 'ADO'), was laid. The learned Single Judge held that such
a reversion was bad in law and quashed the same with the
directions to the appellants herein to restore the promotion of the
respondent as ADO from the date he was promoted to the said
post, with all consequential benefits.
4) The facts gathered from the pleadings are mentioned hereunder
in encapsulated form, as narration there of will reflect the precise
grievance of the respondent and the circumstances under which
the said grievance arose for consideration.
5) The respondent was employed in the Agriculture Department of
the State of Madhya Pradesh, i.e. appellant No.1 herein. Since
1990, he was posted in District Bhind. In the year 2005, when he
was working as Rural Agricultural Extension Officer (RAEO), his
turn matured for consideration of his case for promotion to the
next post, i.e. ADO. He was considered by the Departmental
Promotion Committee for promotion as ADO which adjudged him
fit for promotion to the said post. Based on the recommendation
of the Departmental Promotion Committee, the competent
authority passed orders dated December 23, 2005 giving him
promotion as ADO. In para 3 of the promotion order there was a
stipulation to the effect that the Deputy Director of the concerned
State District/Division, where the promoted employee was
working, had to examine as to whether any departmental inquiry
or prosecution was pending against such an employee or whether
he was facing suspension. Instruction was given to the Deputy
Director of the District/Division to the effect that in case any such
departmental inquiry or prosecution was pending which would
affect the promotion, then the promotion order was to be treated
as cancelled and the concerned employee was not to be
communicated the promotion order. In such cases, after decision
of the departmental inquiry or after the completion of the period of
punishment, reconsideration of the case for promotion was to be
made.
6) The promotion order dated December 23, 2005 of the respondent
also contained a stipulation that on promotion he was transferred
from the office of Bhind to Sagar and he was supposed to join the
promoted post of ADO in the Agriculture Department in District
Sagar.
7) After receiving the aforesaid promotion order, the respondent
submitted representation dated August 14, 2006 to the Deputy
Director stating that a complaint regarding disciplinary proceeding
was pending against him and till the said complaint is decided, he
was willing to go on leave. It would be relevant to reproduce text
of the said representation, which is to the following effect:
“It is to intimate that the plaintiff has been
discharged from duty on 06.07.06, which was post
of Agriculture Development Officer. Since it was
known by the reliable information on 08.07.06 that
the farmers have moved complaint as to
departmental inquiry against me before the
Collector, I shall continue to work on the post of
Agriculture Development Officer until the inquiry is
disposed of. I myself am ready to take earned
leave from the aforesaid date 06.07.06 to upniyokti
date. The promotion order in original of
Directorate, Agriculture Planning is sent back to
you.
Therefore, it is requested that my
application should be taken into account.”
8) On the receipt of the said representation, appellant No.2 passed
orders dated November 25, 2006 cancelling the earlier order of
promotion. This order reads as under:
“The appointment of Shri Ramanand Pandey, Rural
Agricultural Development Officer, Office of the
Deputy Director, Agriculture Bhind placed on Serial
No.39 of Directorate, Agriculture Order No. A-2/LG/
Pro./R/Est./11-05/6166, Bhopal dated 23.12.05 on
the post of Agriculture Development Officer is
hereby cancelled until the next order.”
9) After receiving the aforesaid order, the respondent did not react
thereto by making any representation to the authorities or
questioning the validity of the said order by approaching some
judicial forum. Instead, almost two years after the passing of
aforesaid cancellation order, on October 24, 2008, the respondent
filed the writ petition before the High Court challenging the order
cancelling his promotion. This writ petition was contested by the
appellants by filing the counter affidavit. After hearing both the
parties, the learned Single Judge allowed the writ petition and
quashed the cancellation order with the direction to the appellants
to promote the respondent from the date he was promoted vide
promotion order dated December 23, 2005. The sole reason
which prevailed with the learned Single Judge in allowing the
petition is that the respondent was not facing any disciplinary
action or criminal case at the time when the promotion order was
issued in his case. The Court noted that even in those cases
where disciplinary proceeding or criminal case is pending, the
employee is still to be considered for promotion and only course
open for the Department is to keep the result in a sealed cover. In
the instant case as there was no such departmental proceeding or
criminal prosecution pending against the respondent, there was
no reason to revoke his promotion. In a short order passed by the
learned Single Judge, the aforesaid reason given in support can
be traced to paragraphs 4 and 5 of the said order. We reproduce
hereunder these paragraphs which would reflect the mind of the
Court in allowing the writ petition:
“4. It is settled in law that right of consideration for
promotion is a statutory as well as constitutional/
fundamental right from Article 14 and 16 of the
Constitution of India. The said right cannot be
curtailed even in case employee is facing
disciplinary action or criminal case. In those cases
also the employee is required to be considered but
his fate is to be kept in the sealed cover.
5. In 1991 SC 2010 (sic) (Union of India Vs. K.V.
Jankiraman), the Apex Court held that the sealed
cover procedure can also be reported to only in the
event a charge sheet in a disciplinary proceeding
and a challan in a criminal case is issued/filed. In
the present case, the respondents are not in a
position to demonstrate that on the date of
consideration of petitioner for promotion and
issuance of order Annexure P-2, the petitioner was
either facing disciplinary action or criminal case.
Needless to mention that respondent department is
custodian of the entire record including service
record of the petitioner. In this view of the matter,
merely because petitioner has made a bald
statement in Annexure R-1, it was not sufficient to
cancel the petitioner's promotion order. In absence
of any material to show that petitioner was facing a
disciplinary action or criminal case, the order
Annexure P-1 cannot be upheld. There is no other
justiciable reason assigned in the return for
cancelling the said order.”
10) The appellants herein preferred writ appeal against this order and
the Division Bench has dismissed the appeal on the same
ground, namely, there was no material on record to show that the
respondent was facing any disciplinary proceeding or criminal
case on the date of consideration of his name for promotion. The
Division Bench, thus, observed that the learned Single Judge had
not committed any illegality while passing the order impugned.
11) Learned counsel for the appellants submitted that the High Court
failed to consider that it is the respondent who himself came out
with the plea that there was a departmental case pending against
him and for this reason he did not want to join the duties at Sagar,
i.e. the place of transfer, on promotion. He pointed out that at the
time of promotion, the respondent was posted in District Bhind
where he had remained for almost 15 years, i.e. since 1990, and
his intention was to stay at that place only. Therefore, he came
out with the story of his own that some farmers had moved a
complaint against him on the basis of which departmental inquiry
was pending before the Collector. He sent back the promotion
order, in original, to the Deputy Director of his own. According to
the learned counsel, since the respondent himself refused the
promotion, appellant No.2 had no option but to cancel the
promotion order. He further submitted that the writ petition filed
by the respondent suffered from latches and delays and even
when specific plea to this effect was taken, it was neither
considered by the learned Single Judge nor the Division Bench of
the High Court.
Learned counsel appearing for the respondent, on the other
hand, stuck to the reasons given by the Court below, which
prompted the High Court to grant relief in his favour.
12) After hearing the counsel for the parties and considering the
matter in its right perspective, we are of the opinion that this
appeal warrants to be allowed. The entire approach of the High
Court is erroneous in dealing with the matter at hand. In fact, the
issue focused and discussed, on the basis of which cancellation
order dated November 25, 2006 is passed, itself is extraneous.
From the conspectus of factual matrix taken note of above, it
becomes clear that insofar as the Department is concerned, the
respondent was duly considered for promotion, nay, he was in
fact promoted to the post of ADO vide orders dated December 23,
2005 as he was found fit for promotion. It is, thus, not that kind of
a case where the respondent was either not considered for
promotion or the recommendation of the Departmental Promotion
Committee was kept in a sealed cover. On the contrary,
promotion orders were issued, which, however, were cancelled
subsequently.
13) It is this cancellation order which was the subject matter of
dispute and validity thereof had to be judged. In this fact
scenario, holding the cancellation order to be bad in law on the
ground that the respondent was not facing any disciplinary action
or criminal case on the date of his consideration for promotion,
was totally off the mark. The judgment of this Court in Union of
India v. K.V. Janakiraman & Ors.1 Relied upon by the High Court
would not have any application to decide the issue at hand. Since
the High Court formulated wrong issue for determination, namely,
right of consideration for promotion (which was not the real issue)
and, therefore, committed an obvious error in answering that
issue with the aid of the aforesaid judgment, though this issue did
not at all occur in the given scenario.
14) What is to be noticed is that the order of promotion is dated
December 23, 2005. No doubt, in para 3 of this order, the Deputy
Director of the concerned District was asked to ascertain whether
the persons promoted were facing any suspension/prosecution or
departmental proceedings. At the same time, it was also
1 (1991) 4 SCC 109
mentioned in this para that in case it is so, promotion order shall
be deemed to be cancelled and it is not to be given to the
concerned employee. Insofar as Deputy Director is concerned,
he naturally did not find any such prosecution or departmental
proceedings pending against the respondent. Obviously, because
of this reason, promotion order was in fact duly served upon the
respondent. It was even acted upon by the appellant as the
respondent was even relieved from his duty from Bhind Office on
July 06, 2006 with instructions to report at Sagar Office.
Curiously, it is the respondent who made the representation dated
August 14, 2006 stating therein that some farmers had moved a
complaint against him and since that complaint was pending, till
the same is finalized, he was ready to take earned leave until the
inquiry is disposed of. Interestingly, he also stated that he would
continue to work on the post of ADO (which is a promotion post),
but at District Bhind. So much so, he returned the promotion
order, in original, to the authorities. After receiving the said
representation, the authorities took the view that the respondent
was not interested to join the promotion post at Sagar and,
therefore, cancelled the promotion order. The cancellation did not
come because of the reason of pendency of any alleged
departmental inquiry against the respondent, which was self
created reason given by the respondent. No doubt, it would have
been better for the appellants to write to the respondent, before
cancelling the order of promotion, stating that since there was no
departmental inquiry, he should report at the Sagar Office or even
if such a complaint is pending, that is no reason not to join the
office in District Sagar. At the same time, we find in any case the
respondent was not interested joining the duties at Sagar and
cancelling the promotion for that reason cannot be treated as
illegal or arbitrary in the facts of the present case. We would like
to summarise the circumstantial facts as follows:
15) Even when the respondent was relieved from the office at District
Bhind on July 06, 2006, not only he did not join the duties at
Sagar, it is more than one month thereafter, i.e. on August 14,
2006, he gave the representation. Further, he returned the
promotion order, in original. It is clear that he wanted to remain in
District Bhind, where he had continued since 1990, as he was
ready to go on leave instead of joining the place of transfer.
Moreover, for more than two years from the date of cancellation of
the order of promotion, the respondent kept totally mum and
maintained stoic silence. There was not even a semblance of
protest as to why his promotion order was cancelled or that he
wanted to join the promotion post after the alleged inquiry into the
so-called complaint was over. He filed the writ petition on October
24, 2008, i.e. almost two years after cancellation of his promotion
order. So much so, even before filing of the writ petition, he did
not make any representation of any nature whatsoever. It would
also be interesting to note that in his writ petition, the respondent
alleged that he was orally told that some departmental inquiry is
pending against him and, therefore, his promotion order had been
cancelled, but no departmental inquiry was ever started against
him. This is clearly an afterthought plea. In the first instance, if
that is the reason for cancellation of promotion order, it was not at
all necessary for him to wait for departmental inquiry to either start
or finish, inasmuch as, when he was not served with any charge
sheet, there was no question of withholding his promotion, which
was the position in law, as laid down in K.V. Janakiraman
(supra). Furthermore, this was not the reason stated in the
cancellation order. The appellants, in their counter affidavit, had
specifically pleaded that there was no departmental inquiry
pending and that was not the reason for cancellation of the
promotion order and, in fact, it was cancelled as the respondent
had refused to accept the promotion order by making
representation dated August 14, 2006. As mentioned above, it is
this aspect which was to be necessarily looked into, which has not
been examined by the High Court.
16) As we find that it is the respondent himself who is responsible for
cancellation of the promotion order as he did not join the
promoted post, the impugned order of the High Court is clearly
erroneous and against the law. The same is, accordingly,
reversed. As a result, the appeal is allowed and the writ petition
filed by the respondent in the High Court is dismissed.
There shall, however, be no order as to costs.
.............................................J.
(J. CHELAMESWAR)
.............................................J.
(A.K. SIKRI)
New Delhi;
October 10, 2014.
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