Dismissed

Dr Pramod Kumar Saxena v. State Personnel Department

Rajasthan HC13 Nov 2018SAW/73/2018

Case brief

AI extract

What is this about?

The High Court dismissed the appellant's appeal challenging the Single Judge's order granting notional benefits for the period after suspension and actual benefits from the date of promotion, upholding the justification based on the pendency of the criminal case and the nature of the acquittal.

What did the court decide?

Appeal dismissed; notional benefits for intervening period maintained; actual benefits from date of promotion.

Dr Pramod Kumar Saxena Vs State Personnel… — Pension and Retirement Benefits | Rajasthan HC (2018)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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D.B. Special Appeal Writ No. 73/2018

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S.B. Civil Writ Petition No.6029/2013

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Dr. Pramod Kumar Saxena Son Of Shri Prem Narain Saxena, Principal Specialist Medicine, Government Amrit Kaur Hospital, Beawar, District Ajmer And Resident Of 2/34, Saket Nagar, Housing Board Colony, Beawar, District Ajmer.

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Versus

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The State Of Rajasthan Through The Principal Secretary To The Government, Department Of Personnel, Secretariat, Jaipur.

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The Secretary To The Government, Department Of Medical And Health Service, Group-2, Secretariat, Jaipur.

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The Director Public Health, Directorate- Medical And Health Services, Rajasthan, Jaipur.

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----Respondents

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For Appellant(s) : Shri Ashish Saksena For Respondent(s) :

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HON'BLE MR. JUSTICE MOHAMMAD RAFIQ HON'BLE MR. JUSTICE GOVERDHAN BARDHAR

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Judgment

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13/11/2018

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(PER HON’BLE MOHAMMAD RAFIQ, J.)

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For the reasons stated in the application, the delay of 20 days in filing of the appeal is condoned. The application no.2550/2018 filed u/s.5 of the Limitation Act is allowed.

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This appeal is directed against that part of the judgement of the learned Single Judge by which, while partly allowing the writ

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(2 of 5)

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[SAW-73/2018]

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petition of the appellant, the respondents were directed to convene the review DPC and consider the case of the appellant for promotion to the post of Junior Specialist (Medicine) against the vacancies in the year 1999-2000 and further directed that in case the appellant is otherwise found suitable, he shall be entitled to only notional benefits. However, actual monetary benefits would be admissible from the date of actual promotion. Grievance of the appellant is that since the promotion was withheld on account the pending criminal case in which he was acquitted, he ought to have been also paid all the consequent benefits including arrears for the intervening period.

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The facts of the case are that the appellant was appointed on the post of Medical Officer vide order dated 3.9.1990. He joined on the said post on 23.11.1990. In the provisional seniority list dated 1.4.1996, his name was shown at S.No.1542. On acquiring the experience of 8 years on the post of Medical Officer, appellant became eligible for promotion on the post of Junior Specialist (Medicine) against the vacancies of the year 1999-2000. However, before the DPC could be convened, the appellant came to be suspended on the basis of first information report registered against him in a trap case for offence under Sections 7, 13(1)(d) read with Section 13(2) of Prevention of Corruption Act on 14.10.1999. He continued under suspension till 22.5.2006 when the same was revoked after his acquittal in Sessions Case No.34/2004 vide judgement dated 1.4.2006.

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Learned counsel for the appellant has submitted that the respondent issued promotion order of his juniors on 24.5.2001 against the vacancies of the year 1999-2000. Even if the criminal case was pending against the appellant, candidature of the

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(3 of 5)

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[SAW-73/2018]

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appellant should have been considered for promotion and recommendation qua him would have been kept in a sealed cover subject to outcome of the criminal case as per the Circular dated 17.7.1989 and 26.11.1993 issued by Department of Personnel of the State Government and as per the mandate of the Supreme Court in Union of India etc.etc. vs. K.V. Jankiraman, etc.etc.-AIR 1991 SC 2010.

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Learned counsel argued that many persons junior to the appellant were promoted against the vacancies of the year 200001, 2001-02, 2002-03 & 2004-05. Eventually, the appellant was acquitted in the criminal trial of the charge for offence under Sections 7, 13(1)(d) read with Section 13(2) of Prevention of Corruption Act vide judgement dated 1.4.2006. The appellant submitted a representation to the respondents on 2.7.2006 demanding his promotion from the date his immediate junior was promoted with consequential benefits. However, the respondentdepartment considered the case of the appellant for promotion and promoted him to the post of Junior Specialist (Medicine) against the vacancies of the year 2005-06 vide order dated 8.1.2007. Appellant again submitted a representation for convening review DPC for the vacancies of the year 1999-2000 on 23.5.2007 followed by subsequent representation made on 16.5.2011, 8.10.2011 and 15.6.2012. The respondents however did not paid any heed to the demand of the appellant. The appellant then filed writ petition before this Court. The learned Single Judge while partly allowing the writ petition has granted only notional benefits for the intervening period with the direction that actual benefits shall be payable from the date of promotion.

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(4 of 5)

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[SAW-73/2018]

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Learned counsel for the appellant in support of his arguments has relied on the judgement of Supreme Court in Smt. Sudha Shrivastava vs. Comptroller and Auditor General of India(1996) 1 SCC 63 and judgement of this Court in Narendra Kumar Mathur vs. Rajasthan Rajya Vidhyut Prasarn Nigam Ltd.-RLW 2007 (2) Raj. 1492.

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Having heard the learned counsel for the appellant and perused the material on record, we find from the judgment of acquittal of the appellant passed by the Special Court for Prevention of Corruption Act, Ajmer dated 1.4.2006 that the allegation against the appellant was that he was caught red handed accepting the illegal gratification when the appellant was posted as Medical Officer in Government Hospital Jawaja. The learned trial court had to acquit the appellant because the complaint Ram Lal (PW2) turned hostile and did not support the case of the prosecution. Obviously, this witness was won over. The acquittal of the appellant was owing to this fact and was not an honorary acquittal from the charge for offence under Sections 7, 13(1)(d) read with Section 13(2) of Prevention of Corruption Act. The learned Single Judge in our considered view was perfectly justified in directing the respondents to convene review DPC and consider the case of the appellant for promotion to the post of Junior Specialist (Medicine) against the vacancies of the year 1999-2000 and further directing that if he was adjudged suitable, promote him for such vacancies, but with notional benefits for the intervening period and pay actual benefits from the date of promotion.

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We do not find any infirmity in the impugned order and any illegality in the approach taken by the learned Single Judge.

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(5 of 5)

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[SAW-73/2018]

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The appeal is accordingly dismissed.

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(GOVERDHAN BARDHAR),J

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(MOHAMMAD RAFIQ),J