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Judgment
Sanjay Yadav, J.
Heard.
Being aggrieved by this non-promotion to the post of Reader (Economics), petitioner, Senior Lecturer, University Teaching Department. Rani Durgavati Vishwavidyalaya, has filed this writ petition seeking direction to the respondent to implement the recommendation dated 24.5.2004. Appointed as Lecturer (Economics) in the year 1988, petitioner became a Senior Lecturer. In the year 2004, on 24.3.2004, a Committee constituted for consideration of Senior Lecturer for promotion of teachers under Career Advancement Scheme recommended the petitioner along with three other Senior Lecturers for promotion to the post of Reader. The Executive Council of the University in its meeting convened on 24.5.2004 affirmed the recommendation; however, except the petitioner, other Senior Lecturers were promoted as Readers either from 27/7/98 or from the date they acquired qualification as per Career Advancement Scheme. In respect of petitioner it was stated that his promotion is stayed because of pending departmental enquiry.
Aggrieved petitioner preferred the representation; however, having not succeeded thereby, as no heed being paid, present writ petition is filed.
It is urged that, there was no departmental enquiry pending against the petitioner nor was the same initiated against him either on 24.3.2004 when the petitioner was interviewed and found suitable by the Committee, nor on 24.5.2004 when the executive Committee accepted the recommendation. It is contended that the council addressing to non existing facts erroneously stayed the promotion. It is further submitted that though nomenclatured as promotion it was basically an up-gradation and under Career Advancement Scheme enabling enhancement of pay, i.e. Senior Lecturer was upgraded as Reader and the Reader as Professor.
The respondents on their turn though have taken a stand that the conduct of the petitioner was not in commensurate with his status as Senior Lecturer as he remained unauthorized absent from 7.2.2004 which led the University to issue a charge sheet on 12/10/2004 which later on culminated in the decision of holding the petitioner unauthorized absence from 7.4.2004 to 22.2.2006, directing the said period to be treated either as leave without pay or extra ordinary leave. It is contended that earlier also the pay of the petitioner was stopped from March 2003 because of his remaining unauthorized absent. Furthermore, it is urged that the petitioner was placed under suspension on 23.8.2004 which was revoked by order dated 17.10.2006 w.e.f., 8.9.2006. (It is strange to note when the petitioner was placed under suspension on 23.8.2004 which was revoked on 17.10.2006; how could the said period be treated as without pay or extraordinary leave; as resolved on 8.9.2006. Be that as it may.)
It is however, not established by the respondents that as on 24.3.2004, when the petitioner was interviewed by the Committee for promotion to the post of Reader and or 24.5.2004 when the council accepted the recommendation, any charge sheet was issued to the petitioner or any departmental enquiry was pending against him.
True it is that pending departmental enquiry or currency of punishment have the bearing or promotion. In the former case, subject to the Rules/Regulations in vogue, the recommendations are kept in sealed cover, the opening whereof depends on the outcome of enquiry. In case of exoneration the sealed cover is opened. However, in the later case, i.e., currency of punishment, the consideration is deferred. None of these eventualities however were present when the petitioner was considered for promotion. There is no material on, record to show that the departmental enquiry was pending. The verdict of the Executive Council holding that because of pending departmental enquiry the promotion is stayed is thus on non-existing fact.
Issuance of charge sheet subsequent to promotion will not hamper the promotion recommended on merit merely because some administrative opinion was formulated to take a disciplinary action, as has been put forth by learned counsel for respondent, nor the same can be the ground for deferment of promotion.
In Union of India Vs. K.V. Jankiraman, etc. etc., , it has been observed:
6............ The contention advanced by the learned counsel for the appellant-authorities that when there are serious allegations and it takes time to collect necessary evidence to prepare and issue charge-memo/charge-sheet, it would not be in the interest of the purity of administration to reward the employee with a promotion, increment etc. does not impress us. The acceptance of this contention would result in injustice to the employees in many-cases. As has been the experience so far, the preliminary investigations take an inordinately long time and particularly when they are initiated at the 800 instance of the interested persons, they are kept pending deliberately. Many times they never result in the issue of any charge-memo/chargesheet. If the allegations are serious and the authorities are keen in investigating them, ordinarily it should not take much time to collect the relevant evidence and finalize the charges. What is further, if the charges are that serious, the authorities have the power to suspend the employee under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure. The authorities thus are not without a remedy.
In respect of the proposition as to the stage of initiation of disciplinary proceeding whether it would be when an administrative decision is taken or when the charge sheet prepared on the basis of such decision is issued, it has been held in Delhi Development Authority Vs. H.C. Khurana, :
15............... The issue of a chargesheet, therefore, means its despatch to the government servant, and this act is complete the moment steps are taken for the purpose, by framing the chargesheet and dispatching it to the government servant, the further fact of its actual service on the government servant not being a necessary part of its requirement. This is the sense in which the word ''issue'' was used in the expression ''chargesheet has already been issued to the employee'', in para 17 of the decision in Jankiraman.
In the case at hand since the respondents have failed to show the existence of a departmental enquiry (as observed by the Executive Council in its meeting on 24.5.2004) the inevitable conclusion would be that the decision to defer the promotion is not sustainable.
Whether respondents can be directed to give promotion and whether the petitioner would be entitled for actual wages from the date when recommended for promotion are the corollary issues.
In the State of Mysore and Another Vs. Syed Mahmood and Others, it was held:
We are of the opinion that the State Government should be directed at this stage to consider the fitness of Syed Mahmood and Bhao Rao for promotion in 1959. If on such examination the State Government arbitrarily refuses to promote them, different considerations would arise. The State Government would upon such consideration be under a duty to promote them as from 1959 if they were then fit to discharge the duties of the higher post and if it fails to perform its duty, the Court may direct it to promote them as from 1959.
In view whereof, the respondents are directed to promote the petitioner as per recommendation by the Committee on 24.3.2004 and as affirmed by the Executive Council on 24.5.2004.
Regarding backwages it is observed that, the petitioner was denied promotion on 24.5.2004 formulating into a decision on 27.5.2004 whereas, the petitioner has filed this petition on 15.3.2012, i.e., after almost 8 years, during which period, besides on alleged medical leave, petitioner was at ICFAI, Pune and Eritrea (North East Africa) in 2008; Ethiopia in 2009, Kualalumpur in 2010 and joined back in 2011. Thus instead of seeking redressal of grievance of non-promotion in 2004, the petitioner was taking various assignments, therefore he has no entitlement for the actual wages of the post of Reader, which he can be held entitled from the date of petition, i.e. 15.3.2012. In this context reference can be had of a decision in Paluru Ramkrishnaiah and Others Vs. Union of India (UOI) and Another, and Telecommunication Engineering Service Association (India) and another v. Union of India and another: 1994 Supp (2) 222.
In the result the petition is partly allowed to extent above. However, there shall be no costs.