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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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