DAYA CHAUDHARY, J. - (1.) THE petitioner has approached this Court under Articles 226/227 of the Constitution of India for issuance of a writ in the nature of certiorari quashing the action of the respondents in denying promotion to him on the post of Secretary, Municipal Council only on the ground of pendency of disciplinary proceedings, which have resulted into order of warning and also that in between, juniors to him have been ordered to be promoted vide order dated 29.09.2008. A prayer has also been made for issuance of a writ in the nature of mandamus directing respondents to promote the petitioner to the post of Secretary, Municipal Council along with all consequential benefits.
(2.) BRIEFLY , the facts of the case are that the petitioner was initially appointed as Secretary by way of direct recruitment at Nagina, District Mewat. However, vide order dated 04.07.2001, he was posted with current duty charge as Secretary, Municipal Council, Palwal. The petitioner was charge sheeted under Rule 7 of the Haryana Civil Services (Punishment and Appeal) Rules, 1987 (here -in -after referred to as 'the Rules, 1987') vide order dated 14.05.2007. The petitioner submitted reply but the same was not found to be satisfactory and hence, the inquiry was ordered to be conducted. However, on the basis of Inquiry report, a warning for negligence on his part was ordered vide order dated 23.02.2011. During pendency of the proceedings, other employees, namely T.R. Sharma, B.R. Dhiman, Dayanand Shangwan, Inderjit Singh, Lachhman Dass and Jai Singh were promoted as Secretary on 29.09.2008. However, in the order of promotion of B.R. Dhiman, it was specifically mentioned that on final decision of disciplinary proceedings against the petitioner and on finding him innocent in the inquiry, said B.R. Dhiman will not claim seniority over him. The petitioner, being at serial No.1 in the seniority list, made representation dated 08.04.2011 claiming his promotion from the date of promotion of his juniors but he was not promoted. Learned counsel for the petitioner has raised various arguments in support of his contentions that the petitioner is entitled for promotion from the date his juniors have been promoted. There was only minor penalty and for that, he cannot be penalized. He further submits that the subsequent charge sheet had no bearing on the case of promotion of the petitioner. He also submits that the disciplinary proceedings, in pursuance of second charge sheet, cannot be a ground to deny promotion of the petitioner from the date of promotion of his juniors. He also submits that juniors to the petitioner were promoted in the year 2008 and at the time of promotion of his juniors, the earlier minor penalty cannot be considered a ground to deny his promotion when the promotion to the post of Secretary was on the basis of seniority -cum -merit. It is also the argument of learned counsel for the petitioner that the disciplinary proceedings culminated into final decision and only a minor penalty was imposed, not a major penalty. All juniors to the petitioner have already been promoted and the petitioner is also entitled for promotion from the date his immediate junior namely B.R. Dhiman was promoted.
(3.) LEARNED counsel for the petitioner has relied upon the judgment of Hon'ble the Apex Court as well as the judgments of this Court in cases Sai Chalchitra vs Commissioner, Meerut Mandal and others 2005(3) SCC 683, Punjab Gramin Bank and another vs Vipin Kumar Puri 2012(3) RSJ 464, H.C. Chhatwal vs State of Punjab 1995(4) SCT 439, Des Raj vs Food Corporation of India through its Chairman, New Delhi 1996(3) SCT 451 and Nirmal Singh vs Food Corporation of India 2000(4) SCT 1009, in support of his contentions. Written statement on behalf of the respondents has been filed, which is already on record.;