Bhopinder Singh Dhillon, J. - (1.) (oral) - The petitioner, who is working in the Irrigation Department of the Punjab Government and who is a confirmed Sectional Officer, was promoted as an officiating Sub-Divisional Officer in Aug., 1973. He was also given the Selection Grade. However, subsequently, it came to the notice of the Appointing Authority, i. e. the Chief Engineer, Canals, that the petitioner had been wrongly promoted and given Selection Grade as his service record, including the proceedings of departmental enquiry during which he was placed under suspension, was not brought to the notice of the Appointing Authority at the time when promotion order was passed. Consequently, the Appointing Authority issued a show cause notice to the petitioner as to why the selection grade granted to the petitioner be not withdrawn and why he should not be reverted. In response to the show cause notice, the petitioner filed a reply and he was also personally heard by the Appointing Authority After taking into consideration the reply and the plea taken by the petitioner, the Appointing Authority passed the impugned order dated 2nd April, 1979 deciding to withdraw with immediate effect the undue benefits of selection grade in the cadre of Sectional Officers and promotion as officiating Sub-Divisional Officer. This order is sought to be impugned in this writ petition.
(2.) Shri R Rs.Sharma, the learned counsel for the petitioner, has raised the following two arguments in support of his contentions:- (i) That the fact regarding the institution and pendency of the departmental enquiry was in the notice of the authorities concerned and his client having been promoted inspite of that, it is not open to the authorities to rescind the earlier order. (ii) That in any case, even if the petitioner's promotion as officiating Sub-Divisional Officer is withdrawn on the basis of the enquiry, in the termination of which an order was passed that he will not be entitled to get two increments, which, by itself, does not disentitle the petitioner from promotion during years subsequent to 1973 when the post for promotion fell vacant.
(3.) As regards the first contention, the same is without any merit. This is essentially a question of fact whether at the time when the promotion order and the selection grade order were passed, all the relevant facts were brought to the notice of the Appointing Authority concerning the service record of the petitioner. The averments made in the petition were specifically denied by the Chief Engineer, Canals, who passed the order. It has been averred in reply to paragraphs 14 and 15 of the return as follows:- "Paras 14 and 15. The appointment of Inquiry Officer is admitted. The report of the Inquiry Officer was considered by the punishing Authority who did not agree with his findings. Consequently, a Show Cause Notice dated 28-2-1978 (Annexure P/7) was served upon the petitioner who submitted his reply on 20-4-1978. The reply of the petitioner was examined and considered thread-bare and the petitioner was also afforded an opportunity to be heard in person After thorough consideration of all the aspects of the case, the punishing authority Respondent No. 2 came to the conclusion that this was a case of wrong and erroneous promotion based on incomplete facts and devoid of vital facts with regard to the involvement of the petitioner in the Departmental Enquiry case resulting in his suspension as well as subsequent instatement. which facts were never brought to the notice or the competent authority at the time of ordering his promotion to the selection grade as Sectional Officer on 5-8-1971 as well as at the time of his promotion to the post of Officiating Sub-Divisional Officer on 16-8-1973 Annexure P/5. As a result of these findings that both the promotions were granted to the petitioner based on erroneous facts and that very vital facts with regard to the suspension etc. were not brought to the notice of the competent authority by the office due to one reason or the other which can be termed as an administrative lapse and which most probably occurred due to connivance of the petitioner. It was concluded that it was not a case to be covered under punishment and Appeal Rules and was merely a case of erroneous promotion based on sketchy facts and in which vital facts were not brought to the notice of the competent authority in order to enable him to take conscious decision while conferring promotions on both the occasions viz. to the post of selection grade Sectional Officer on 5-8-1971, and on 16-8-1973, Annexure P/5 when he was promoted to the post of Officiating Sub-Divisional Officer. The reply of the petitioner dated 15-9-1978 received as a result of the opportunity provided to him. was considered by the competent authority viz. Respondent No. 2 The petitioner was also afforded an opportunity of being heard in person by respondent No. 2 on 6-11-1978 as requested by the former. His reply was not considered satisfactory not he could convince the competent authority against the proposed action on any valid and legal ground during his personal hearing on 6-11-1978 when he merely requested for a sympathetic consideration of his case. Resultantly,after affording reasonable opportunity to the petitioner, the erroneous promotion orders granting him the Selection Grade and promotion to the higher rank of Officiating Sub-Divisional Officer were rightly withdrawn on 2-4-1979 Annexure P/11. The case of the petitioner for the grant of Selection Grade in the rank of Sectional Officer and further promotion to the post of Officiating Sub-Divisional Officer will now be considered on merits and when the vacancy occurs alongwith his other colleagues";