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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.

2) Matter heard finally as counsel on either side, who were ready to  

argue the matter, made a specific request in this behalf.

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 respondent herein,  

has been affirmed.  The learned Single Judge of the High Court  

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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.   

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.

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 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  

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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.

6) 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.

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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 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.”

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:

“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.”

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9) 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  

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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.”

10) The appellants herein preferred writ appeal against this order and  

the  Division  Bench  has  dismissed  the  appeal  on  the  same  

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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.

11) 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  

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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.

12) 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  

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subsequently.

13) 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.

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, 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  

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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  

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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:

15) 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  

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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  

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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  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.

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