Allowed

Mahesh Prasad Sonkar v. State of U.P. Thru. Prin. Secy. Irrigation and Water Resources Lko and 2 Others

Allahabad HC25 Jan 2024/9274/2023

Case brief

AI extract

What is this about?

This judgment allowed a writ petition challenging the retention of a promotion result in a sealed cover. The high court held that criminal proceedings are only pending after a charge-sheet is filed, ruling that a pending final report before a trial court does not justify withholding promotion under the Sealed Cover Procedure.

What did the court decide?

The impugned order dated 09.10.2023 was quashed. A mandamus was issued directing the respondents to declare the petitioner's promotion result and give effect to it within six weeks.

Mahesh Prasad Sonkar Vs State of U.P. Thru. Prin… — Service and Employment | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:7767

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Court No. - 25

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Case :- WRIT - A No. - 9274 of 2023 Petitioner :- Mahesh Prasad Sonkar Respondent :- State Of U.P. Thru. Prin. Secy. Irrigation And Water Resources Lko And 2 Others Counsel for Petitioner :- Vishwanath Pratap Singh Counsel for Respondent :- C.S.C.

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Hon'ble J.J. Munir,J.

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1. A rejoinder affidavit has been filed by learned Counsel for the petitioner in Court today. It is taken on record.

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2. Parties have exchanged affidavits.

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3. Admit.

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4. Heard forthwith.

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5. Heard Mr. Vishwanath Pratap Singh, learned Counsel for the petitioner and Mr. Prakhar Mishra, learned Additional Chief Standing Counsel appearing on behalf of the respondents.

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6. This writ petition is directed against the impugned order dated 09.10.2023 passed by the Engineer-in-Chief, Irrigation and Water Resources Department, Lucknow, U.P., rejecting the petitioner's representation dated 07.07.2023 and declining thereby to give effect to the petitioner's result of promotion exercise held for promotion from the post of a Junior Engineer (Civil) to the post of an Assistant Engineer (Civil) by the U.P. Public Service Commission for the year 2021-2022, the result being kept in sealed cover.

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7. The short facts are that the petitioner is a Junior Engineer (Civil) in the Department of Irrigation and presently posted at District-Gonda. He was earlier posted at Maharajganj. A complaint was laid against the petitioner by the proprietor of a

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certain National Engineer Corporation, Turkmanpur, Gorakhpur, carrying false allegations, on the basis of which a First Information Report was lodged with the Police on 22.08.2010. The police, on the basis of the First Information Report, registered Case Crime No.1857 of 2010, under Sections 406, 409, 419, 420, 427, 466, 467, 468, 471 I.P.C. and Section 7/13 of the Prevention of Corruption Act, 1988 at P.S. Kotwali, District-Maharajganj.

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8. After investigation in the crime last mentioned, the police did not find any material, exculpated the petitioner and submitted a final report in Court. It appears that alongside the F.I.R., some departmental proceedings were also initiated, that seem to have taken their own course. But, there is no cavil between parties on facts that the departmental proceedings did not lead to any punishment for the petitioner and a recovery order, that was made, was revoked by the respondents themselves.

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9. The crux of the controversy left to be examined in this petition is if the petitioner's promotion to the post of Assistant Engineer (Civil) is now to be made, where the promotion exercise has already been held and his result, lying in a sealed cover, is not being given effect to, because the respondents say that a criminal case is pending against him.

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10. The learned Counsel for the petitioner submits that a final report has already been filed in Court, whereas the learned Additional Chief Standing Counsel urges that the fate of the report is not known.

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11. This was, more or less, the position of submissions of parties that were advanced before me yesterday. This Court, therefore, called for a status report about the pending final

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report from the Additional Sessions Judge, Prevention of Corruption Act, Court No.2 Gorakhpur. Today, that report has been laid before this Court by the Additional Sessions Judge/the Special Judge P.C. Act, Court no.5, Gorakhpur where the case appears to be pending. The report dated 24.1.2024 received from the Additional Sessions Judge shows that the final report, that has been filed in Court by the Police, is pending orders before the Court, where notice has been issued to the Investigating Officer. The moot question, therefore, involved in this appeal is whether on account of mere pendency of a final report before the learned Sessions Judge in the criminal case, the petitioner's result for the promotion exercise held by the U.P. Public Service Commission and kept in a sealed cover should not be given effect to.

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12. Learned Counsel for the petitioner argues that resort to the Sealed Cover Procedure is permissible and imperative where, in disciplinary proceedings, a charge-sheet is issued to the employee, and in a criminal matter, the charge-sheet is filed in Court. Mere pendency of preliminary investigation prior to the issue of a departmental charge-sheet or just the registration of an F.I.R. would not suffice to bar the petitioner's right to be promoted. There is absolutely no necessity to withhold the petitioner's promotion by keeping the sealed cover intact, because there are no departmental or criminal proceedings pending against him.

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13. On the other hand, the learned Additional Chief Standing Counsel submits that no doubt after investigation, the Police have submitted a final report in Court, but it is not known what would be the outcome. It is quite possible that the learned Judge may direct further investigation and it is also possible that the learned Trial Judge may take cognizance on the basis

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of police papers and summon the petitioner to stand his trial in the case. If that happens, the petitioner would become an accused in the sense understood in service law that would debar him from immediate promotion. Therefore, his result has to be retained in a sealed cover.

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14. Upon hearing learned Counsel for the parties, this Court is of opinion that the respondents' stand is flawed. Reference in this connection may be made to the decision of the Supreme Court in the Union of India and Others v K.V. Jankiraman, (1991) 4 SCC 109 where it has been held that merely because disciplinary or criminal proceedings are proposed to be initiated against an employee, his promotion cannot be withheld. It can only be done if disciplinary or criminal proceedings are pending. Criminal proceedings are said to be pending once a chargesheet is filed in Court by the Investigating Officer and not before that.

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15. This Court considered the principle laid down in K.V. Jankiraman (supra) in the context of the Sealed Cover Procedure and the right of the petitioner to be promoted, where the result had been placed in a sealed cover, in Yogendra Singh Yadav v. State of U.P. and Others, 2022 (12) ADJ 55 In Yogendra Singh Yadav (supra), discussing the principles in K.V. Jankiraman , it was observed by this Court:

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"10. .......In the said case, the Supreme Court was considering a Government Order issued by the Government of India, Department of Personnel and Training dated 30.01.1982 where Sealed Cover Procedure was proposed to be adopted in the case of officers who are under suspension, or against whom disciplinary proceedings are pending for a long time, or a decision had been taken by the Competent Authority to initiate the disciplinary proceedings, or against whom prosecution had been launched in a Court of Law, or sanction for prosecution had been issued at the appropriate

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time when the DPC was being held. It was also provided in the said Government Order that after the findings are kept in sealed cover, in any subsequent DPC held thereafter, if the employee still facing disciplinary/criminal proceedings, his case shall be considered again and the DPC shall record its finding and keep the same also in sealed cover. The Government Order dated 30.01.1982 was further modified by Government Order dated 12.01.1988, and a further guideline was issued that the same Sealed Cover Procedure was to be applied where the Government Servant is recommended for promotion by the DPC, but before he is actually promoted he is either placed under suspension or disciplinary proceedings are initiated against him or decision has been taken to initiate proceedings or criminal prosecution is launched or sanction for such prosecution has been issued, or decision to afford such sanction is taken.

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11. The Supreme Court considered the question as to when for the purpose of Sealed Cover Procedure, the disciplinary / criminal proceedings can be said to have commenced, and the Court observed that it is only when Charge Memo is issued in disciplinary proceedings or a Charge Sheet is filed in a Criminal Court it could be said that disciplinary proceedings / criminal proceedings are pending against the employee concerned. The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authority to adopt the Sealed Cover Procedure. The Court also considered the contentions raised by the Counsel for the appellant (Union of India) that where there are serious allegations it takes time to collect necessary evidence and to prepare and issue a Charge Memo/ Charge Sheet and it would not be in the interest of purity of Administration to award the employee with the promotion, increment etc., but observed that such argument did not impress their Lordships. It was observed as follows:-

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"..........The acceptance of this contention would result in injustice to the employees in many cases. As has been the experience so far, the preliminary Investigations take an inordinately long time and particularly when they are initiated at the instance of the interested persons, they are kept pending deliberately. Many times they never result in the issue of any charge-memo/charge-sheet. If the allegations are serious and the authorities are keen in investigating them, ordinarily it

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should not take much time to collect the relevant evidence and finalise the charges. What is further, if the charges are that serious, the authorities have the power to suspend the employees under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure. The authorities thus are not without a remedy......."

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12. The judgement of the Supreme Court in K. V. Janki Raman(Supra) has been reinstated in Union of India Vs. Sangram Keshari Nayak 2007(6) SCC 704 and Harsh Kumar Sharma Vs. State of Punjab, 2017 (4) SCC 366 , where the Supreme Court has again held that only after charge sheet is filed, criminal proceedings can be said to be pending.

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13. It is evident from the observations made by the Supreme Court in the case of K.V. Janki Raman(Supra) that either the employee concerned should be suspended, or Charge Sheet in disciplinary proceedings should have been issued to him, or charge sheet in Criminal Case should have been filed before the competent trial court before Sealed Cover Procedure could have been adopted."

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16. The principles, that have been elaborated by this Court following the guidelines of the Supreme Court in K.V. Jankiraman , Union of India v. Sangram Keshari Nayak (2007) 6 SCC 704 and Harsh Kumar Sharma, IFS v. State of Punjab and another, (2017) 4 SCC 366 , are unmistakable. And, it is that until a charge-sheet is filed in a criminal case in Court, no criminal proceedings can be said to be pending against an employee. In case of departmental proceedings, which is not the case here, proceedings can be said to be pending if a charge-sheet by the employer is issued or the employee is placed under suspension. It is only in these contingencies that wherever under the rules relating to promotion sealed cover procedure is permissible, the promotion exercise can be carried forward, but the result necessarily retained in a sealed cover pending the decision of the

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disciplinary proceedings or the criminal case, as the case may be.

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17. Here, as noticed from facts, the petitioner is no longer facing any disciplinary proceedings, which have since long come to an end, and there is no issue about those proceedings. The pending criminal proceedings commenced with the registration of an F.I.R. and the investigation led to a final report, exculpating the petitioner. The report is pending orders, no doubt, before the Additional Sessions Judge, who has seisin of the matter. The report, that has been secured on orders of this Court, does not show that so far any cognizance has been taken by the Court rejecting the final report. The current status of the petitioner is that he is not facing any criminal proceedings. If a charge-sheet had been filed against him or the final report had been rejected and cognizance taken, it could be said that the criminal proceedings were pending against him. That is not the case here.

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18. The result is that there is absolutely no basis for this Court to conclude that the petitioner's result relating to the promotion exercise held by the U.P. Public Service Commission can be withheld or retained in sealed cover. The impugned order dated 09.10.2023 passed by Engineer-in-Chief, Irrigation and Water Resources Department, for all these reasons, is held to be manifestly illegal.

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19. In the result, this writ petition succeeds and is allowed . The impugned order dated 09.10.2023 passed by the Engineerin-Chief, Irrigation and Water Resources Department, U.P., Lucknow, is hereby quashed . Let a mandamus issue to the respondents to declare the petitioner's result for the promotion

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exercise of the year 2021-2022 and give effect to it within a period of six weeks.

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20. There shall be no orders as to costs.

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Order Date :- 25.1.2024 -Amit K/ Anoop

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( J.J. Munir, J. )

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Digitally signed by :- ANOOP KUMAR SINGH High Court of Judicature at Allahabad, Lucknow Bench

Mahesh Prasad Sonkar v. State of U.P. Thru. Prin. Secy. Irrigation and Water Resources Lko and 2 Others

Case brief

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Mahesh Prasad Sonkar v. State of U.P. Thru. Prin. Secy. Irrigation and Water Resources Lko and 2 Others

Case brief

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