STATE OF MADHYA PRADESH & ORS.versusRAMANAND PANDEY

                      [2014] 10 S.C.R. 892


A           STATE OF MADHYA PRADESH & ORS.
                              v.
                     RAMANAND PANDEY
               (Civil Appeal No. 9486 of 2014)
                      OCTOBER 10, 2014.
B
           [J. CHELAMESWAR AND A.K. SIKRI, JJ.]

       Service Law:

c      Promotion - Cancellation of - Respondent, on
  promotion, not joining at the place of transfer and returning
  the promotion order - Promotion cancelled - High Court
  setting aside the cancellation order on the ground that no
  departmental proceedings were pending against respondent
D - Cancellation did not come because of the reason of
  pendency of any alleged departmental inquiry against the
  respondent - Respondent was not interested in joining the
  duties at the place of transfer and cancelling the promotion
  for that reason cannot be treated as illegal or arbitrary.
E      Allowing the appeal, the Court

       HELD: Insofar as the Department is concerned, the
  respondent was duly considered for promotion and was
  in fact promoted to the post     ADO. The cancellation did
F not come because of e reason of pendency of any
  alleged depart        al inquiry against the respondent,
  which was self created reason given by him. When he
  was not served with any charge sheet, there was no
  question of withholding his promotion. In any case, the
G respondent was not1nterested in joining the duties at the
  place of transfer and cancelling the promotion for that
  reason cannot be treated as illegal or arbitrary in the facts
  of the instant case. The impugned order of the High C'ourt

                               892
H
    STATE OF MADHYA PRADESH v. RAMANAND                893
                       PANDEY
        •
is clearly erroneous and against the law. The same is,               A
accordingly, reversed. (para 12,14,15 and 16] [898-F; 900-
B; 901-B-F]

    Union of India v. K. V. Janakiraman & Ors. 1991(3) SCR
790 = 1991 (4) sec 109 - held inapplicable.
                                                                     B
                      Case Law Reference:
    1991 (3) SCR 790            held inapplicable      para 13

    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
9486 of 2014.                                                        C

    From the Judgment & Order dated 10.7.2012 of the High
Court of Madhya Pradesh at Gwalior in W.A. No. 378 of 2012.

    Mishra Saurabh, Vanshaja Shukla, Ankit Kr. Lal for the           D
Appellants.

    Prasant Shukla, Nikilesh Ramachandran for the
Respondent.

    The Judgment of the Court was delivered by                       E
    A.K. SIKRI, J. 1. Leave granted.

    2. Matter heard finally as counsel on either side, who were
ready to argue the matter, made a specific request in this behalf.
                                                                     F
     3. 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 G
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 H
    894      SUPREME COURT REPORTS                 [2014] 10 S.C.R.


A   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.
B
         4. 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.
c        5. 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
D   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
E   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
F   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
G   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.
H
   STATE OF MADHYA PRADESH v. RAMANAND                       895
            PANDEY [A.K. SIKRI, J.]
    6. The promotion order dated December 23, 2005 of the            A
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.
                                                                     B
     7. 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         C
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          D
    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          E
    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
                                                                     F
     be taken into account."

    8. 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:
                                                                     G
     "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-
                                                                     H
    896       SUPREME COURT REPORTS                [2014] 10 S.C.R.


A         05/6166, Bhopal dated 23.12.05 on the post of Agriculture
          Development Officer is hereby cancelled until the next
          order."

         9. After receiving the aforesaid order, the respondent did
    not react thereto by making any representation to the authorities
8
    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
C   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
D   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
E   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
F   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:
G
          "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
H         employee is facing disciplinary action or criminal case. In
  STATE OF MADHYA PRADESH v. RAMANAND                       897
           PANDEY [A.K. SIKRI, J.]
    those cases also the employee is required to be                 A
    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           B
    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       C
    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       D
    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."
                                                                    E
     10. 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          F
promotion. The Division Bench, thus, observed that the learned
Single Judge had not committed any illegality while passing the
order impugned.

     11. Learned counsel for the appellants submitted that the      G
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        H
    898       SUPREME COURT REPORTS                  [2014] 10 S.C.R.


A   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
B   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
c   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.

D        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.

       12. After hearing the counsel for the parties and
  considering the matter in its right perspective, we are of the
E 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
F 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
G 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.

H         13. It is this cancellation order which was the subject matter
     STATE OF MADHYA PRADESH v. RAMANAND                    899
              PANDEY [A.K. SIKRI, J.]
of dispute and validity thereof had to be judged. In this fact      A
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 & Ors1• Relied upon by       B
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           c
aforesaid judgment, though this issue did not at all occur in the
given scenario.

      14. What is to be noticed is that the order of promotion is
dated December 23, 2005. No doubt, in para 3 of this order, D
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 E
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 F
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 G
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
1.   (1991) 4 sec 109.                                              H
    900     . SUPREME COURT REPORTS                [2014] 10 S.C.R.


A   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
s   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
c   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
o   illegal or arbitrary in the facts of the present case. We would
    like to summarise the circumstantial facts as follows:

       15. Even when the respondent was relieved from the office
  at District Bhind on July 06, 2006, not only he did not join the
E 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
F 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
G 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
H
   STATE OF MADHYA PRADESH v. RAMANAND                         901
            PANDEY [A.K. SIKRI, J.]
respondent alleged that he was orally told that some                  A
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      B
him to wait for departmental inquiry to either start or finish,
inasmuch as, when. he was not served with any charge sheet,
ther~ 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       c
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             D
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.

     16. As we find that it is the respondent himself who is
responsible for cancellation of the promotion order as he did         E
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        F
dismissed.

      There shall, however, be no order as to costs.

· Rajendra Prasad                                   Appeal allowed.