Decided on August 09,2012



BARIN GHOSH, J. - (1.) THE subject matter of challenge in the instant writ petition is selection for promotion to the post of Managing Director of the respondent Authority. The challenge is on two counts, namely, the Selection Committee was prevented, for no just reason, to consider the fact that the respondent Authority has issued three charge -sheets against the selected candidate and, in terms of the Rules, Selection Committee had no other option, but to select the petitioner. The second contention is on the basis that the criteria for promotion was seniority -cum -merit and the statutory Rules prescribed the benchmark of '8, which, in any event, petitioner was entitled to get and, if the petitioner had crossed the benchmark, having regard to the fact that he is senior most Chief Engineer Level II, he, alone, could be selected for promotion.
(2.) IN exercise of powers conferred by Section 96, read with Sub -Section (2 -A) of Section 4, of the Uttar Pradesh Water Supply and Sewerage Act (as applicable to the State of Uttarakhand) and in supersession of the existing orders on the subject, the State Government made The Uttarakhand Pey Jal Sansadhan Vikas Evam Nirman Nigam (The Post of the Managing Director) Rules, 2011. Rule 3 thereof provided that, in order to be appointed to the post of Managing Director, the person concerned is required to be selected by a Selection Committee comprising of those mentioned in the said Rule. Rule 4 says, the person, so to be appointed, must, before his appointment, hold the post of Chief Engineer Level II in the respondent Authority and, in addition to that, must have completed 25 years of continuous service as Assistant Engineer, Executive Engineer, Superintendent Engineer and Chief Engineer Level II in the respondent Authority. Therefore, in order to be eligible to appear before the Selection Committee, the candidate must have had served for 25 years in the respondent Authority in the capacities from Assistant Engineer to Chief Engineer Level II and must, at the time of presenting himself, be a Chief Engineer Level II. Rule 5 of the said Rules provides what the Selection Committee would look at to determine the merit. A great emphasis has been given to look at the integrity of the candidate concerned. It was contended that, inasmuch as the Selection Committee was not in the know that three charge -sheets have been issued against the person selected, the Selection Committee was not given an appropriate opportunity to determine the integrity of the selected candidate.
(3.) THE first charge -sheet was issued on 5th December, 2011, the second on 3rd March, 2012 and the third on 9th April, 2012. According to the Rules, the Principal Secretary / Secretary to the State Government in the Drinking Water Department was required to prepare a list of eligible people and to place the same before the Selection Committee, along with their character rolls and other records pertaining to them. The Principal Secretary / Secretary to the State Government, who was dealing with the matter, felt that those charge -sheets are not charge -sheets issued in departmental proceedings, but were mere show -cause notices issued to find out the responses thereto. We think, it has been rightly submitted by the counsel for the petitioner that the Principal Secretary / Secretary erred in construing the same to be not departmental charge -sheets, as all the ingredients of a departmental charge -sheet are present in the subject charge -sheets. However, from the charge -sheets, it appears that, though they were approved by the Chairman of the respondent Authority, but were not issued by him. A disciplinary action can only be initiated by the disciplinary authority. In the instant case, there is no dispute that the Chairman was the disciplinary authority. The charge -sheets in question, therefore, were required to be issued by the Chairman. Be that as it may, even assuming that the charge -sheets were appropriately issued, the question is, what would be the effect of non -consideration of the same by the Selection Committee? It is true that, if the selectors had looked into those charge -sheets, they may have had reacted in some other manner, other than the manner in which they have reacted. But there is no certainty that they could not react in the manner they acted. As aforesaid, the Rules directed the selectors to give emphasis on integrity of the person to be selected. Mere issuance of a charge -sheet does not affect integrity of an employee of a statutory authority. Law requires selectors to ignore altogether a charge -sheet issued against a Government employee, inasmuch as, the same bears only an accusation against him and integrity of a person cannot be questioned only on the basis of an allegation or insinuation against him. The Rules, it was not contended, debarred consideration of a candidate for promotion against whom a disciplinary proceeding is pending. We think that integrity of the officer, to be looked at by the selectors, is such integrity, which is reflected in the records of the candidate appearing before the selectors. Issuance of a charge -sheet may be reflected in the record, but the substance of the charge -sheet cannot be treated as part of the record. As aforesaid, mere issuance of a charge -sheet does not prevent the selectors from selecting a candidate against whom the charge -sheet has been issued.;

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