KOKJE, J. - (1.) THIS is an appeal from an order passed by the learned Single Judge in S. B. Civil Writ Petition No. 2335/92 decided on 17. 1. 97. The writ petitioner before the Single Bench was initially a member of the Rajasthan Administrative Service. In the year 1984, he was appointed by the State of Rajasthan as Competent Authority at Jaipur under the Urban Land (Ceiling and Regulation) Act, 1976 (in short `the Act' ). While functioning as the Competent Authority, he passed an order on 18. 8. 87 exempting some land transferred by its owners to Jagjivan Grah Nirman Sahkari Samiti Ltd. a registered Cooperative Housing Society, on the basis of certain government notifications. In some other cases, the writ petitioner had rejected the application for exemption of other land owners distinguishing their cases from the cases of those who were granted exemption u/s. 21 of the Act. Appeals were taken from those decisions and the Government supported the view taken by the writ petitioner in his order. However, one Prithvi Singh, a stranger to the proceedings, filed a complaint before the Lokayukta and sent a copy of the compliant to the State of Rajasthan through the Special Secretary to the Government, Department of Personnel, urging upon the Government to exercise its revisional jurisdiction under Section 34 of the Act. The Lokayukta took cognizance of the case and ordered an enquiry and investigation into it. One Vijay Pal Choudhary intervened in the matter and made a statement. The writ petitioner was called upon to give his comments which he submitted in details before the Lokayukta. On 23. 10. 89, the Lokayukta found it to be a fit case for investigation under Section 10 of the Rajasthan Lokayukta and Up-Lokayukta Act, 1973. Ultimately, the State Government issued a charge sheet against the writ petitioner and a memorandum in this regard was served on the writ petitioner on 6. 3. 92. The writ petitioner challenged this action of the Government in a writ petition and obtained an interim stay. In the meantime, the writ petitioner was promoted to the Indian Administrative Service in the year 1993 and retired on superannuation on 31. 7. 96.
(2.) THE writ petitioner challenged the action initiated against him, mainly on three grounds (i) that after his retirement, the proceedings could not continue, (ii) that on his promotion to Indian Administrative Service, the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (in short `the Rules of 1958') under which action was initiated against him, did not apply to him and (iii) that an adjudicatory order, which was subject to appeal and revision, could not form the basis of any disciplinary proceeding against him. The learned Single Judge upheld these contentions and held that the disciplinary proceedings were carried on maliciously against the writ petitioner for colateral purposes. The State of Rajasthan has filed this special appeal against the order passed by the learned Single Judge contending that the order passed by the learned Single Judge was erroneous. It was contended that the view taken by the learned Single Judge that the disciplinary proceedings could not continue, after the retirement, was erroneous and that contradictory views have been taken by the learned Single Judge on the point as to whether the departmental proceedings initiated under the Rules of 1958 could continue after the promotion of the writ petitioner to the Indian Administrative Service. It was further contended that the decision on the point as to whether the disciplinary proceedings could be initiated on the basis of a quasi judicial order or not, is contrary to the law laid down by the Supreme Court. It was further contended that the view taken by the learned Single Judge that the charge sheet was washed away because of the writ petitioner's promotion to the Indian Administrative Service was also erroneous as the promotion was granted under an interim order of the Court passed in the writ petition which had stayed the operation of the charge sheet itself. It was further contended that the learned Single Judge erred in interferring at the interim stage with the departmental proceedings. The first point to be discussed is as to whether on promotion to the Indian Administrative Service, the disciplinary proceedings pending under the Rules of 1958 against the writ petitioner could be continued. It is submitted that the writ petitioner ceased to be governed by the Rules of 1958 on his promotion to the Indian Administrative Service and therefore, could not have been proceeded against under the Rules of 1958. A reference was made to the All India Services (Discipline and Appeal) Rules, 1969 (in short `the Rules of 1969') in this behalf and it was contended that under Rule 7 of the Rules of 1969, the proceedings could be continued by the State Government. It was pointed out that rule 2 (b) of the Rules of 1969 defines the `disciplinary authority' to mean the authority competent under the rules, to impose on a member of the service, any of the penalties specified in Rule 6. It was also pointed out that Rule 2 (c) defines the `government' to mean in the case of a member of the service serving in connection with the affairs of the State, the Government of that State. Rule 7 of the Rules deals with the authorities to institute proceedings and impose penalties. It provides that where a member of the service has committed any act or omission which renders him liable to any penalty specified in Rule 6, then, if such an act or omission was committed before his appointment to the service, the State Government if he is serving in connection with the affairs of that State, shall be competent to institute proceedings and to impose penalty. On the basis of aforesaid Rule 7, it was contended that it was permissible for the State Government to institute disciplinary proceedings in respect of acts or omissions committed before the appointment to the Indian Administrative Service. The aforesaid argument does not advance the appellant's case in this appeal. What the State Government is claiming to do is to continue the departmental proceedings initiated under the Rules of 1958 against the writ petitioner even after his having become a member of the Indian Administrative Service. That is not permissible under the Rules of 1969. Rule 7 empowers the competent authority to initiate disciplinary proceedings against a member of the service, for an act or omission which was committed by him before his appointment to the service also but such proceedings have to be under the Rules of 1969 and the act or omission must be such as would render such an officer liable to penalties specified under rule 6 of the Rules of 1969. Rule 7 confers no authority to continue disciplinary proceedings on the basis of the charge sheet issued under any other Rules even after the entry of the government servant into the Indian Administrative Service. The logical conclusion of all this is that as soon as a member of the State Service is promoted to the Indian Administrative Service, he ceases to be governed by the State Service Rules and all proceedings under the State Rules against him should be deemed to have been dropped on his promotion. It is a different matter that under the All India Service Rules, such a person could be proceeded against for something done before his entry into the All Indian Service.
(3.) NORMALLY, a person against whom disciplinary proceeding is pending would not be promoted to the Indian Administrative Service. If such a person is promoted, despite the disciplinary proceedings being pending against him, the only inference could be that the charges against him are either found to be groundless or the misconduct has been condoned by the State Government. In the present case, the explanation of the State Government for promotion of the writ petitioner despite pending enquiry is that the charge sheet had been stayed by this Court by passing an interim order. It was also contended that as the promotion was given under an interim order, it was subject to the final decision of the writ petition. On 17. 3. 92, the following order was passed by the Court staying operation of the charge sheet: "17. 3. 92 Hon'ble M. R. Calla J. Mr. Paras Kuhad, for the petitioner Issue notice of the stay application. The rule is made returnable by 10. 4. 92. Notices be given "dasti" to the counsel for the petitioner. In the meanwhile, the operation of the memorandum dated 6. 3. 92 issued by the Department of Personnel (K- III) is hereby stayed. " Thereafter, on 13. 4. 92, the order was confirmed as under: "13. 4. 92 Hon'ble M. R. Calla J. Shri Paras Kuhad, for the petitioner Shri Pekar Farooq, Dy. GA for respondents. It has been submitted that the respondents have been served as back as on 21. 3. 1992. Shri Pekar Farooq wants time to file reply. The interim order dt. 17. 3. 92 is confirmed to last till the disposal of the writ petition. The respondents will be at liberty to file an application for vacation/modification of the stay order after filing of the reply to the writ petition. The case be listed as and when any application for vacation/ modification of the interim order is filed after filing of the reply to the writ petition. " It would be clear from the above that it was open to the State Government to have applied for vacation/modification of the stay order after filing its reply. No such application has been filed after the State Government filed its reply, with the result that the stay order continued. In such a situation, it cannot be said that because of the said order, the charge sheet could not have been taken into consideration while considering promotion of the writ petitioner to the Indian Administrative Service. The State Government was not only free but was duty bound to bring it to the notice of the Court that the writ petitioner was due for promotion and staying of the operation of the charge sheet will result in his promotion to the Indian Administrative Service despite a charge sheet being pending against him. As this was not done, the State Government cannot blame this Court for having stayed operation of the charge sheet and for the resultant promotion of the writ petitioner to the Indian Administrative Service. It was because of the inaction on the part of the officers of the State Government that the writ petitioner could be promoted to the Indian Administrative Service. The State Government, therefore, shall be deemed to have condoned the misconduct or dropped the charge sheet against the writ petitioner by not moving this Court for vacation/modification of the stay order. Actually, the respondent P. D. Paliwal has brought on record by additional affidavit the fact that he had filed O. A. No. 60/92 before the Central Administrative Tribunal when he was not being considered for promotion despite the charge sheet being stayed by this Court. The Original Application was allowed by the Tribunal on 25. 11. 92 and the respondent P. D. Paliwal was directed to be promoted. This order was challenged in the Supreme Court and the Supreme Court set it aside with a direction that the Government may consider the question independently and take a decision in the matter of promotion to Indian Administrative Service. Thereafter, the Government considered the question of promotion of respondent P. D. Paliwal and promoted him to Indian Administrative Service without any condition that the promotion would be subject to decision of the writ petition against the charge sheet. There is, therefore, no force in the contention that the promotion was subject to final result of the petition. The rulings cited on the point are, therefore, irrelevant to the issue involved in the case. In such circumstances, the charge sheet issued under the Rules of 1958 and the enquiry instituted thereon cannot continue on promotion of the writ petitioner to the Indian Administrative Service. The next question is as to whether the charge sheet and the proceedings instituted thereon could continue after retirement on superannuation of the writ petitioner. It is true that in certain circumstances, departmental proceedings instituted while in service could continue beyond the superannuation but such proceedings could continue only for the purpose of depriving pension to the delinquent officer and only when the conditions mentioned in the Pension Rules are fulfilled. Rules 3 and 6 of the All India Service (Death cum Retirement Benefit) Rules, 1958 were referred to in this regard. Rule 3 (2) provides that the Central Government may withhold or withdraw any pension or any part of it, for a specified period or indefinitely, on a reference from the State Government concerned, if after retirement, a pensioner is convicted of a serious crime or be guilty of grave misconduct. This rule obviously does not apply to the situation before us. It relates to conviction or being held guilty of misconduct after retirement. Rule 6 (i) provides that right of withholding or withdrawing pension or any part of it, whether permanently or for specified period and the right of ordering the recovery from pension, of the whole or part of any pecuniary loss caused to the Central or a State Government, is reserved to the Central Government if the pensioner is found, in a departmental or judicial proceeding, to have been guilty of grave misconduct or to have caused pecuniary loss to the Central or the State Government, by misconduct or negligence, during his service, including services rendered on re-employment after retirement. However, this right given to the Central Government is not unqualified. The first proviso to Rule 6 (i) requires consultation with the U. P. S. C. before such an order is passed. The proviso contained in Rule 6 (i) (a) further provides that such departmental proceedings, if instituted while the pensioner was in service, whether before his retirement or during his re- employment, shall, after the final retirement of the pensioner, be deemed to be a proceeding under this sub rule and shall be continued and concluded by the authority by which it was commenced in the same manner as if the pensioner had continued in service. ;