Khaleel Khan vs State Of MP And Another

The petitioner has filed the present writ petition for direction to the respondents to hold review DPC in the year 1997, when petitioner's juniors,

namely Bhaskar Rao Panwar and others were promoted on the post of District Auditor on 28/07/1997 and to grant promotion to the petitioner on the

post of District Auditor as on 28/07/1997 and the respondent nos. 1 and 3 be directed to place the petitioner over and above Shri Bhaskar Rao Panwar

in gradation list of District Auditor and to give all consequential benefits including the monetary benefits.

2 That, the petitioner was initially appointed as Panchayat & Social Education Organizer in the pay-scale of Rs. 246 â€" 460/-, which is a Class-III

Executive post. The petitioner's name had been shown at Serial no. 18 of the order and he joined as such on 30/08/1976. Thereafter, the petitioner

was sent on deputation as Block Development Officer in the payscale of Rs. 920-1500/- vide order dated 19/09/1984. The petitioner completed

requisite training in the month of February, 1986 for the pot of BDO. Thereafter, respondent no. 2 issued an order dated 12/09/1991, by which, his

services were ordered to be repatriated from Panchayat & Rural Development Department to parent department i.e. Social Welfare Department.

Thereafter, he was confirmed on the said post vide order dated 24/03/2006 w.e.f13/03/2006. The petitioner thereafter promotted from Panchayat &

Social Education Organizer to the post of District Auditor vide order dated 31/03/2003. His name was shown at Serial no. 1 in the promotion order.

When he was working on the post of Panchayat & Social Education Organizer, then he was suspended vide order dated 16/01/1997 as criminal case

under section 419, 420 and 467 of IPC was pending against him and challan had been filed, but since the aforesaid prosecution was withdrawn by the

State Government in public interest on 06/08/1999, thereafter, aforesaid suspension order dated 16/01/1997 had been withdrawn by respondent no. 3

vide order dated 14/09/1999 and the petitioner's suspension period had been treated on duty period for all purpose. In the meantime, various employee

who were juniors to the petitioner, had been promoted to the post of District Auditor. They had been confirmed on 28/07/1997. The petitioner's case

for confirmation was not considered because of the fact that he remained under suspension between the period from 16/01/1997 to 14/09/1999. The

petitioner thereafter, submitted a representation to the effct that he should be given promotion on the post of District Auditor with retrospective effect

i.e. from 28/07/1997 from the date, his juniors were promoted.

3 Respondent no. 2 replied to the said representation on 27/06/2000 that since during the aforesaid period, the petitioner was under suspension and

therefore, his case for promotion had not been considered. It was further stated that as and when the next DPC would be held, then his name would

be considered for promotion. Being aggrieved by the said order, the petitioner has preferred the present petition before this Court.

4 Learned counsel for the petitioner submits that the other employees / persons who were juniors to the petitioner were promoted. In the gradation list,

the petitioner's name was above those employees. He further submits that the order, by which his representation has been rejected, is also illegal. The

period during which, he was sent on deputation and the period during which, he was under suspension, cannot be excluded for the purpose of counting

seniority and for the purpose of granting promotion to the petitioner. To bolster his submissions, he has relied upon the judgment delivered by this Court

in Writ Petition no. 3123/2004 decided on 03/08/2005 (Ramesh Kumar Mishra Vs. State of MP and others) as well as the order passed by Principal

Bench of this Court in Writ Petition no. 8804/2003 passed on 30/11/2004 (Anand Kumar Tiwari Vs. State of M.P). He further submits that under the

Recruitment Rules, there is a channal of promotion for promotion from the post of Panchayat & Social Education Organizer to the post of District

Auditor / Assistant Project Officer. He further submits that the petitioner is having good service record and he has not been served with adverse

remarks. He further submits that the criminal case was pending against him, which was withdrawn by the State in public interest as well as the order

of suspension was also revoked. Thus, the reasons were assigned that the petitioner was facing criminal trial and he was also under suspension during

that period. He submits that these grounds cannot be sustained in pursuance to the law laid down by Hon'ble Supreme Court in the case of Union of

India and others Vs. K.V. Jankiraman and others reported in (1991) 4 SCC 109 and submits that once the criminal case is withdrawn and order of

suspension is revoked, then the respondents are bound to consider the case of the petitioner retrospectively by constituting Review DPC.

5 Learned counsel for the respondents submits that the present petition suffers from delay and latches. In the present case, the orders of promotion of

the juniors to the petitioner were passed on 28/07/1997 i.e. at least five years back of filing of the petition. No plausible reasions have been assigned

by the petitioner for condoning delay and therefore, the petition deserves to be dismissed on the ground of delay and latches. He further submits that

gradation list of District Auditor published by respondent no. 3 on 12/04/2006 and the name of Bhaskar Rao Panwar and others, who were promoted

on 28/07/1997 are shown at serial no. 56 onwards, because they became senior to the petitioner. That's why, the petitioner's name has been shown at

serial no. 71. So far as gradation list of Panchayat & Social Education Organizer is concerned, the petitioner's name is at serial no. 10 and Mr.

Bhaskar Rao Panwar and others are shown from Serial no. 11 onwards because the post of Panchayat & Social Education Organizer is of lower

cadre post. The petitioner was senior to Mr. Bhaskar Rao Panwar and others in the cadre of Panchayat & Social Education Organizer, but as the

petitioner was not promoted to the post of District Auditor due to the suspension because of a criminal case pending against the petitioner at the time

of of Departmental Promotion Committee held in the year 1997. The juniors' name were considered in the promotion, so in the gradation list of the

District Auditor, the petitioner was placed at lower stage than Mr. Bhaskar Rao Panwar and others. Learned counsel for the respondents further

submits that the case of the petitioner was considered in the next DPC and he was promoted on the psot of District Auditor vide order dated

31/03/2003.

6 Heard learned counsel for the parties and perused the records.

7 In the present case, the petitioner was working on the post of Panchayat & Social Education Organizer in the Social Welfare Department. In the

year 1997. DPC was constituted for promotion on the post of District Auditor. In the said DPC, name of the petitioner was not considered because of

criminal case pending against him and due to which, he was placed under suspension. Subsequently, the State Government withdrew the criminal case

against the petitioner in public interest. Consequently, his order of suspension was revoked. In the reply, the respondents have stated that the case of

the petitioner was considered in the said DPC, however, because of the crminal cae pending against the petitioner and he was under suspension, his

case was not considered in the said DPC. Hon'ble Apex Court in the case of K.V. Jankiraman (supra) has held that if at the time of constitution of

DPC, criminal case is pending or employee is under suspension, then, his case should be considered and be placed in sealed cover envelope. In the

present case, the said procedure has not been adopted by the respondents and therefore, action of the respondents is illegal and arbitrary.

8 In light of the aforesaid discussions, present writ petition is allowed and disposed of. The respondents are directed to constitute review DPC for

considering the case of the petitioner for promotion on the post of District Auditor w.e.f. 28/07/1997 and if the petitioner is found fit / eligible, then he

should be promoted to the said post w.e.f 28/07/1997 with all consequential benefits. The entire exercise be completed by the respondents within a

period of four months from the date of receipt of certified copy of this order.

C c as per rules