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Whether the order of High court holding that 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 by misreading the fact of unwillingness of writ petitioner for promotion post ?.= 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. – 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 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.=2014 OCT. PART – S.C.- CIVIL APPEAL NO. 9486 OF 2014 (arising out of SLP (C) No. 26760 of 2013) |STATE OF MADHYA PRADESH & ORS. |…..APPELLANT(S) | |VERSUS | | |RAMANAND PANDEY |…..RESPONDENT(S) |

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 9486 OF 2014
(arising out of SLP (C) No. 26760 of 2013)
|STATE OF MADHYA PRADESH & ORS. |…..APPELLANT(S) |
|VERSUS | |
|RAMANAND PANDEY |…..RESPONDENT(S) |
J U D G M E N T
A.K. SIKRI, J.
Leave granted.

Matter heard finally as counsel on either side, who were ready to argue the
matter, made a specific request in this behalf.

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.

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.

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.

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.

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.”

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.”

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.”

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.

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.

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.

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.

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 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:

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.

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.

———————–
[1] (1991) 4 SCC 109

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