1 2025:CGHC:12959-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WA No. 188 of 2025 Pramod Chandra Dutta S/o Late J.N. Dutta Aged About 71 Years Occupation Assistant Grade Ii (Retired), Presently R/o Sumangal Apartment, Phase-I, Link Road, Bilaspur (C.G.) ... Appellant(s) versus 1 - State Of Chhattisgarh Through Secretary Law Department, Mahanadi Bhawan, New Mantralay, Atal Nagar District- Raipur (C.G.) 2 - The Registrar General High Court Of Chhattisgarh, High Court Campus, Bodri (Chakarbhata), District- Bilaspur (C.G.) 3 - The District And Session Judge, Bilaspur, District- Bilaspur (C.G.) 4 - Smt. B. Toppo W/o Villson Lawang Aged About 66 Years Retired Assistant Grade-I, R/o Vidya Nagar, Behind Shiv Mandir, Dipupara, District- Bilaspur (C.G.) ... Respondent(s) For Appellant(s) : Mr. Prakash Tiwari and Mr. Palash Tiwari, Advocates For Respondent(s) : Mr. Amrito Das, Advocate and Mr. Sangharsh Pandey, G.A. Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal , Judge Judgment on Board MANPREET KAUR Digitally signed by MANPREET KAUR Date: 2025.03.19 18:31:04 +0530 2 Per Ramesh Sinha , Chief Justice 19.03.2025 1. Heard Mr. Prakash Tiwari and Mr. Palash Tiwari, learned counsel for the appellant. Also heard Mr. Amrito Das, learned counsel for respondents No. 2 and 3 as well as Mr. Sangharsh Pandey, learned Government Advocate for respondent / State on I.A. No.01/2025 is an application for condonation of delay of 52 days in filing the instant appeal. 2. For the reasons mentioned in the application I.A. No.01/2025 i.e. application for condonation of delay, the same is allowed and delay is condoned. With the consent of learned counsel for the parties, the appeal is heard finally. 3. The appellant has filed this writ appeal against the order dated 21.11.2024, passed by the learned Single Judge in WPS No. 5578/2019 (Pramod Chandra Dutta vs. State of Chhattisgarh and Others), whereby the learned Single Judge has dismissed the writ petition filed by the writ petitioner / appellant herein. 4. Brief facts of the case are that the appellant was initially appointed as Asst. Grade II on 12.07.1996 in the establishment of District Court Bilaspur. As per the gradation list prepared in respect of the post of Asst. Grade II, the name of writ petitioner finds its place at Sr. No. 1, while the name of respondent no. 4 has been placed at Sr. No. 2. Thus it clears from the gradation list, as on 01.04.2014 the writ petitioner is senior to the respondent No. 4. Further, since 3 from the date of appointment the writ petitioner served his duties with utmost honesty, sincerity and up to the satisfaction of his superiors. There is neither any departmental enquiry nor criminal proceeding were pending against the writ petitioner as on 01.01.2006. Even no charge-sheet ever been served upon him on the very date from which the promotion period has been given effect to. Though the writ petitioner was under the zone of consideration for his next promotion to the post of reader grade II and reader grade I w.e.f. 2006. The DPC was constituted in the year of 2014 for considering promotion the employees who have been well within the zone of consideration of promotion since from 2006 for the post of reader grade II. But the Departmental Promotion Committee did not consider the name of writ petitioner assigning reason as to a departmental enquiry was contemplated against him and charge sheet to that effect have also been served during the period of 2009-10. Hence his name was wiped out resultantly the junior to the writ petitioner was promoted leaving behind his name. The departmental enquiry was constituted against the writ petitioner in the year of 2009 and charge-sheet was served upon him by the respondent No. 3 on 22.06.2009 and 06.02.2010 and he was awarded minor punishment of stoppage of one increment with none cumulative effect. In the charge-sheet dated 22.06.2009 and he was also awarded the punishment of censor in the charge-sheet dated 06.02.2010. The departmental promotion committee though constituted on 29.11.2014 but the 4 promotion of the employees working to the post of Asst. Grade II were considered w.e.f. 01.01.2006 because during the period no any DPC constituted for consideration of promotion. If the departmental promotion committee constituted within time, certainly the writ petitioner might be considered his next promotion because during that period no any enquiry was pending or contemplated against him. Also, the promotion of the writ petitioner are being governed by the Chhattisgarh Public Services (Promotion) Rules 2003 (Referred herein after as Rules 2003). It is well defined in sub rule 5 of rule 6 of the Rule 2003 that, the departmental promotion committee shall assess the suitability of the public servant for promotion on the basis of their service record and with particular reference to the Annual Confidential Reports (ACRs) for five preceding years, the departmental promotion committee shall see the records with particular reference to the ACRs for the years equal to the required qualifying service. Being aggrieved by the order dated 29.11.2014 issued by the respondent No. 3, the writ petitioner filed a representation before the respondent No. 2 on 31.12.2014 detailing all his grievances and craved leave for consideration of promotion from the date when the respondent no. 4 being a junior to the petitioner was granted promotion. In event of none consideration of his representation dated 31.12.2014, the writ petitioner again submitted a reminder on 05.12.2016 for consideration of his name in the promotion list dated 29.11.2014. During pendency of the appeal/representation, 5 the petitioner superannuated on 30.06.2016. But, the respondent no. 2 without appreciating the ACRs of the writ petitioner for last five preceding years, passed the order dated 11.01.2019. Being aggrieved by the Act, conduct and Order passed by the Respondent Authorities, the Appellant instituted a Writ Petition on 21.07.2019 before the learned Single Judge, questioning the legality and validity of order dated 11.01.2019. Having being served the Notices to the respondents, they entered into Litigation and submitted their reply thereto. Accordingly, the Appellant was heard at length by the learned Single Judge, but this Court by means of the order impugned dated 21.11.2024 dismissed the Petition. Hence this appeal. 5. Learned counsel for the appellant submits that the order impugned dated 21.11.2024 passed by the learned Single Judge is arbitrary, illegal and contrary to the law applicable to the fact and circumstances to the case. The learned Single Judge has failed to appreciate the fact that, no sealed cover procedure was adopted by the DPC in the writ petitioner's case as established by the Hon'ble Supreme Court in the case of Union of India & Others v. K.V. Jankiraman & Others ((1991) 4 SCC 109], wherein the sealed cover procedure must be followed when considering promotion if departmental proceedings have been initiated through the issuance of a charge memo or charge sheet. In the present case, charge sheets were issued to the writ petitioner on 22.06.2009 and 06.02.2010, whereas the DPC meeting was 6 convened on 29.11.2014. Given these circumstances, the DPC was obligated to adopt the sealed cover procedure in the petitioner's case, which it failed to do. The Departmental Promotion Committee (DPC) was convened in 2014 to consider promotions from the post of Reader Grade II to Reader Grade I for employees who had been within the zone of consideration since 2006. As per established norms, the promotion committee was required to evaluate the Annual Confidential Reports (ACRs) for the five years preceding the earliest year of eligibility, which, in this case, should have been from 31.03.2001 to 31.03.2005. However, the DPC instead assessed the ACRs for the period from 31.03.2008 to 31.03.2013. Consequently, a junior employee was granted promotion with retrospective effect from 2007, thereby overlooking the rightful claim of the petitioner. The learned Single Judge, has failed to appreciate the fact that every entry (and not merely a poor or adverse entry) relating to an employee under the State or an instrumentality of the State, whether in civil, judicial, police or other service (except the military) must be communicated to him, within a reasonable period, and it makes no difference whether there is a bench mark or not. Even if there is no bench mark, non-communication of an entry may adversely affect the employee's chances of promotion (or getting some other benefit), because when comparative merit is being considered for promotion (or some other benefit) a person having a 'good' or 'average' or 'fair' entry certainly has less chances of being selected 7 than a person having a 'very good' or 'outstanding' entry in view of the judgement rendered by the Hon'ble Apex Court in the matter of Dev Dutt Vs. Union of India 2008 (8) SCC 725. Learned counsel for the appellant further relied upon a judgment passed by the Hon’ble Apex Court in the matter of Union of India and Others vs. Anil Kumar 2013 (AIR) (SCW) page 2232. 6. On the other hand, learned counsel for respondents opposes the submissions made by the learned counsel for the appellant and submits that the learned Single Judge after considering all the aspects of the matter has rightly dismissed the writ petition filed by the writ petitioner / appellant herein, in which no interference is called for. 7. We have heard learned counsel for the parties and perused the impugned order and other documents appended with the writ appeal. 8. From perusal of the impugned order, it transpires that the learned Single Judge dismissed the writ petition preferred by the writ petitioner / appellant herein holding that It is not in dispute that the Rules of 2003 provides for the promotion of employees or public servant in any of the office of establishment. Rule 6 of the Rules of 2003 envisages promotion on the basis of seniority subject to fitness. Sub rule 4 of Rule 6 envisages that the meeting of DPC shall be held every year. It shall consider suitability of public servant for promotion separately with reference to the vacancies of each year starting with the earliest year onwards. The DPC shall 8 consider the suitability of the public servant for promotion to fill up the unfilled vacancies of the earlier year or years separately and prepare the select list for the relevant year accordingly. It further provides that thereafter the DPC shall consider the suitability of the public servants for promotion of fill up the existing and anticipated vacancies of the current year. From perusal of sub-rule 4 of Rule 6, it is apparent that the suitability of public servant for promotion to be filled up the unfilled vacancies is to be considered based on the DPC. Even to fill up the unfilled vacancies of the earlier year or years separately and prepare select list. Rule 4 is very clear that suitability of the employees to be considered on the date when the DPC convenes the meeting, it is not in dispute that the promotion order of Respondent No. 4 was issued pursuant to the meeting held in the year 2014 and pursuant thereto the order of promotion was issued on 29.11.2014 and therefore as per Rule 6(4) also consideration in respect of suitability of public servant for promotion is to be considered on the date of convening of meeting of DPC and therefore the submission of learned counsel for writ petitioner that when the DPC considered for promotion to fill up the vacancies of earlier year, suitability of writ petitioner ought to have been considered of the year 2006, accordingly, it was repelled. Learned Single Judge further held that submission of non- promotion of writ petitioner because of pendency of two departmental enquiry against the writ petitioner since 2009 is not in dispute. As per the rules governing the promotion if any public 9 servant who is in the zone of promotion and in the meeting of DPC it was found that the departmental enquiry is pending against the said public servant then the course provides is of keeping the name of said employee in sealed cover. There is no dispute that in such a circumstances where the public servant is facing departmental enquiry proceedings and during pendency of departmental enquiry his name comes under the zone of consideration proper course is to keep his name in the sealed cover. Undisputedly, after completion of both the enquiries pending against him since 2009, writ petitioner was punished in both the departmental enquiries, in one of the enquiry there is order of punishment dated 20.07.2015 and in another enquiry the order of punishment is of the month September 2015. In one enquiry there is order of withholding one increment with non-cumulative effect and in another there is order of censure against writ petitioner. Considering the above facts of the case where writ petitioner was found guilty in both enquiries and order of punishment was inflicted, learned Single Judge held that no prejudice is caused to the writ petitioner and therefore the said ground raised was repelled. 9. Learned Single Judge further held that it is not in dispute that the penalty of censure and withholding one increment of pay or technician allowance is mentioned under the head of minor penalty. The issue with regard to promotion of an employee facing departmental enqiury came up for consideration in the case of 10 Union of India vs. K.V. Jankiraman and others [(1991) 4 SCC 109]. In this case, Hon'ble Supreme Court has observed in paragraph 23 that when an employee is completely exonerated and is not visited with the penalty even of censure indicating thereby that he was not blameworthy in the least, he should not be deprived of any benefits including the salary of promotional post. 10. Learned Single Judge further relied upon the judgment passed by the Hon'ble Supreme Court in the mater of Union of India and others vs. A.N. Mohanan [(2007) 5 SCC 425 relying upon the judgment in the case of K.V. Jankiraman (supra) and held that in the facts of the case, where on the date of convening of meeting of DPC writ petitioner was facing two departmental enquiry which culminated to punishment in both the enquiries and therefore it cannot be said that the service record of petitioner was unblemished. Even if the name of writ petitioner has not kept in sealed cover in the facts of the case where ultimately the order of punishment was issued in both the enquiries, no prejudice is caused to writ petitioner in not keeping his name in sealed cover. In the aforementioned decisions, Hon'ble Supreme Court has clearly held that to qualify for promotion the employee is expected to have unblemished record. An employee found guilty of a misconduct cannot be placed on par with the other employees and his/her case is to be treated differently. Therefore there is no discrimination in the promotion, he is treated differently. 11.State Government had issued a Circular dated 02.05.1990, 11 wherein it is clarified as to what will be the effect of the order of punishment of censure and withholding of increment on promotion of an employee. For the foregoing discussion and the decision of Hon'ble Supreme Court, circular of the State Government clarifying the effect on promotion if employee is inflicted with punishment of censure or withholding of increment, not to promote such employee till the order of punishment is in effect, the submission of learned counsel for writ petitioner that the writ petitioner is entitled for promotion even if minor penalty imposed upon him is not sustainable in the eye of law and it was repelled. 12. Learned Single Judge lastly held that sofar as the other submission made by learned counsel for writ petitioner that writ petitioner ought to have been considered for promotion on the next promotional post, the law in this regard is that the public servant upon whom the penalty has been imposed is not to be considered for promotion till there is shadow of penalty upon him, writ petitioner stood retired from services on 30.06.2016 and on the date of his retirement the effect of penalty was there upon him, for the said reason the writ petitioner is not entitled for the relief as prayed for. 13. 13. Considering the submissions made by the learned counsel appearing for the parties and the impugned order passed by the learned Single Judge, we notice that the same has been rendered with cogent and justifiable reasons. In an intra-court appeal, no interference is usually warranted unless palpable infirmities are 12 noticed on a plain reading of the impugned order. In the facts and circumstances of the instant case, on a plain reading of order, we do not notice any such palpable infirmity or perversity, as such, we are not inclined to interfere with the impugned order. 14. Accordingly, the writ appeal being devoid of merit is liable to be and is hereby dismissed. No cost(s). Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Manpreet