Full Judgment
Narayan Roy, J.
1. Heard counsel for the parties.
2. By this application, the petitioner prays for issuance of a writ of mandamus directing the respondent authorities to promote him in the substantive rank and the scale of Executive Engineer in Public Health Engineering Department with effect from 1.4.2000 i.e. the date on which his next junior was granted such promotion and to given him the consequential benefits.
3. The case of the petitioner briefly stated is that he was confirmed as an Assistant Engineer pursuant to notification No. 1057 dated 18.12.2000 with effect from 21.10.1989 and was placed at serial No. 28 of the list, as contained in Annexure 2.
4. The case of the petitioner thereafter was taken up for consideration of promotion to the post of Executive Engineer along with other eligible persons by the department Promotion Committee (hereinafter as referred to as 'DPC') headed by the Chairman of the Bihar Public Service Commission and the DPC in its meeting dated 16.12.2000 examined the matter and after considering the entire aspects of the matter including the vigilance clearance found the petitioner and others fit for promotion and, accordingly, recommended their names vide Annexure 3, where the petitioner was placed at serial No. 22. Thereafter, a show cause notice was served upon the petitioner dated 13.8.2001, as contained in Annexure 4 for an incident of the year 1991 for misutilising the amount of Rs. 21621/- and he was asked to file his reply within fifteen days. The petitioner replied the show-cause notice vide memo No. 1178 dated 6.9.2001.
5. In the meantime, pursuant to the recommendation of the DPC a notification, as contained in annexure 6 dated 13.6.2002 was issued by the State Government promoting several persons including juniors to the petitioner to the post of Executive Engineer. However, one post was kept reserved for this petitioner. The petitioner thereafter represented his case before the Commissioner-cum-Secretary, Public Health Engineering Department vide representation dated 5.7.2002, as contained in Annexure 7. On 21.12.2002 a departmental proceeding was initiated against he petitioner, as contained in Annexure 8, issued vide memo No. 9406 dated 21.12.2002.
6. Learned counsel appearing for the petitioner submitted that since the DPC considered the case of the petitioner and other eligible persons including juniors to the petitioner and recommended their names for promotion to the posts of Executive Engineer and a necessary notification was issued by the State Government vide Annexure 6 dated 13.6.2000, the case of the petitioner could have also been notified as till the date no departmental proceeding was ever initiated or pending against him. It is further submitted that the departmental proceeding was initiated against the petitioner on 21.12.2002, much after the issuance of the notification promoting others to the posts of Executive Engineer, Public Health Engineering Department on 13.6.2002. Learned counsel further submitted that it is settled in law that promotion of a Government servant can be withheld on account of pendency of a departmental proceeding and a sealed cover procedure, which is a well established concept in service jurisprudence, is applied, but, in the instant case, the procedure of sealed cover even would not apply, as the petitioner was considered by the DPC much prior to initiation of the departmental inquiry and, therefore, the petitioner was entitled to be promoted to the post of Executive Engineer and negation of the same would amount to violation of the fundamental rights and principles of Natural Justice.
7. A counter affidavit has been filed on behalf of the respondents stating therein, inter alia, that due to pendency of the departmental inquiry, promotion of the petitioner was kept in abeyance and one post has been reserved for him.
8. JC to SC 3 submitted that the matter of promotion of the petitioner is under active consideration and the government will take a decision in the light of the procedure laid down in resolution No. 7457 dated 11.9.2002, issued by the Department of Personnel and Administrative Reforms, as contained in Annexure A.
9. The question, which now falls for consideration, is as to whether in anticipation of a departmental proceeding promotion to a higher post to the Government Servant can be withheld.
10. In the instant case, from the pleadings of the parties, it appears that the case of the petitioner for promotion to the post of Executive Engineer was recommended by the DPC in its meeting dated 16.12.2000 and pursuant to the recommendation of the DPC other eligible persons except the petitioner were notified for promotion to the higher post vide notification dated 13.6.2002, whereas the departmental proceeding was initiated against the petitioner vide resolution dated 21.12.2002, as contained in Annexure 8. It is not a case that at the time of issuance of the notification promoting the eligible persons to higher post the departmental/criminal proceeding was pending against the petitioner. In a case, where a Government servant is found eligible for promotion pending a departmental/criminal inquiry, the finding as to his entitlement to his service benefit of promotion is kept in a sealed cover to be opened after the proceeding in question is over.
11. But, in the instant case, even the sealed cover procedure would not be applicable as other eligible persons even juniors to the petitioner were notified for promotion on 13.6.2002, whereas the departmental proceeding was initiated against the petitioner vide resolution dated 21.12.2002. The promotion of the petitioner was due in the year 2000 and when the DPC held its proceeding, there was no departmental inquiry/proceedings pending against the petitioner, and, therefore, the sealed cover procedure would not be applicable to the case of the petitioner nor his promotion could have been withheld for departmental proceeding initiated subsequently in the year 2002.
12. In this connection, reference may be made to the case of Bank of India and Anr. v. Degala Suryanarayana, AIR 1999 SC 2407.
13. It is not in dispute that at the time when the promotion of the petitioner was due and his case was considered for promotion and he was recommended for the same in 2000 by the DPC, no departmental proceeding/criminal inquiry was pending against him and after issuance of the notification dated 30.6.2002 pursuant to the recommendation of the DPC dated 16.12.2000 a departmental proceeding was initiated against the petitioner vide resolution dated 21.12.2002. However, it appears that merely a show-cause notice was served on the petitioner on 13.8.2001 to explain the financial loss caused to the State, which was duly replied by the petitioner immediately thereafter.
14. Mere issuance of a show-cause notice will not amount to commencement of a departmental proceeding against the petitioner as the State Government in the instant case decided to initiate a departmental proceeding against the petitioner vide its resolution dated 21.12.2002, as contained in Annexure 8, and much before that in 2000 itself the petitioner was due for promotion and his case was considered and recommended by the DPC on 16.12.2000 itself. It is, therefore, held that as the petitioner was due for promotion in the year 2000 itself, he was entitled for the same before initiation of the departmental proceeding.
15. Having heard counsel for the parties and considering the facts and circumstances of the case and in view of the legal proposition, as noticed above, the action of the State authorities denying the promotion to the petitioner must be held to be highly arbitrary, unreasonable and without jurisdiction.
16. In the result, this application is allowed and the respondent authorities are directed to issue necessary notification promoting the petitioner to the post of Executive Engineer with effect from the date his juniors were promoted forthwith.
17. No order as to costs.