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2009 DIGILAW 1407 (PAT)

Union Of India v. Santosh Kumar Sinha

2009-11-11

ANJANA PRAKASH, SHIVA KIRTI SINGH

body2009
JUDGEMENT Shiva Kirti Singh, J. 1. This writ petition has been preferred by the Union of India through the Chairman, Railway Board, Ministry of Railway and some other Railway officials seeking quashing of order dated 18.7.2008 passed in O.A. No. 46 of 2008 by the Central Administrative Tribunal, Patna Bench (hereinafter referred to as the Tribunal). 2. As appearing from the order of the Tribunal the facts lie in a narrow compass. The Railway authorities had initiated through a notification, selection for AEN Group "B" posts against 30% quota. A provisional panel of 11 persons was finalized by letter dated 13.12.2007. The size of panel and seniority of the candidates was stated to be provisional and the name of the applicant (respondent herein) was at serial no. 3. The candidates at serial nos. 2 and 3 were posted on the promotional posts vide orders dated 23.11.2007 and 3.12.2007 respectively. The respondent was subjected to a charge-sheet for major penalty and hence he was not posted on the higher post in view of Railway Boards guideline issued under letter no. E(D&A) 92 RG 6-149 (A) dated 21.1.1993 which has been annexed as Annexure-2 to the writ petition. A copy of the charge- sheet dated 22.1.2008 is annexed as Annexure-1 to the writ petition. Posting of persons lower to the respondent in the select list/panel was done by order issued on 28.1.2008. Aggrieved by action of the appellants in omitting to post him on the higher post the respondent preferred O.A. No. 46 of 2008 before the Tribunal and the same has been allowed by the impugned order dated 18. 7. 2008. 3. On behalf of petitioners it has been submitted that the Railway Board circular dated 21.1,1993 contained adequate provisions to justify action of the petitioners in withholding promotion of the respondent and the said circular was placed before the Tribunal but the Tribunal has mis-read the said circular and has failed to appreciate the provisions in paragraphs 2, 3(i), 3(ii) and 3(iii) of the said circular which read thus: "2. Cases of Railway servants to whom the procedure will be applicable The procedure given below shall be applicable to: (i) Railway servants under suspension; (ii) Railway servants in respect of whom a charge-sheet for major penalty has been issued and the disciplinary proceedings are pending; and (iii) Railway servants in respect of whom prosecution for a criminal charge pending. 3.1. Cases of Railway servants to whom the procedure will be applicable The procedure given below shall be applicable to: (i) Railway servants under suspension; (ii) Railway servants in respect of whom a charge-sheet for major penalty has been issued and the disciplinary proceedings are pending; and (iii) Railway servants in respect of whom prosecution for a criminal charge pending. 3.1. Procedure to be followed. Such a Railway servant shall not be promoted even if already borne on a selection panel/suitability list till after the results of the proceeding against him are known. There is, however, no objection to promote him if he is not under suspension and the proceedings already initiated are for the imposition of only a minor penalty. 3.2. Such a Railway servant as aforesaid, if not, already borne on a selection panel/suitability list, should be called alongwith other eligible candidates to appear at the written trade/suitability test before the selection committee or the selection board. His suitability for promotion as also his position in the selection panel/suitability list should be assessed as in the ordinary course. 3.3. On the basis of position assigned in the selection panel/suitability list, a list of qualified persons should be prepared keeping in view the following: (a) It should exclude the names of those mentioned in items (i) to (iii) of para 2 above. (b) It should include the names of those who are not under suspension and against whom disciplinary proceedings for the imposition of only a minor penalty have been initiated." 4. On behalf of petitioners learned counsel Mr. A. Amanullah placed the entire circular contained in Annexure-2 and pointed out that this circular of January, 1993 had been issued after the judgment in the case of Union of India V/s. K.V. Jankiraman, reported in AIR 1991 Supreme Court 2010 so as to bring about necessary change in the policy relating to promotion of the Railway servants who are under suspension or against whom departmental proceedings/prosecution have been initiated. The other earlier instructions on the subject vide Railway Boards letter dated 21.9.1988 was superseded and thereafter in respect of certain promotions, which covered the promotion in question, instructions have been issued for withholding of promotion to Railway servants under suspension or in respect of whom a charge-sheet for major penalty has been issued and the disciplinary proceedings are pending; and/or those in respect of whom prosecution for a criminal charge is pending. Clause 3(i) lays down the procedure and provides that Railway servants covered by the circular and Clause-2 thereof shall not be promoted even if already included in a selection panel/ suitability list until the results of the proceedings are known. By way of exception it has been provided that if the Railway servant is not under suspension and the proceedings already initiated are only for imposition of a minor penalty then promotion may not be objected to. 5. Mr. Jitendra Singh, learned Senior Counsel appearing for the sole respondent first attempted to persuade us to take a view that the policy contained in Annexure- 2 was same as one considered in the case of K.V. Jankiraman (supra) and therefore if the promotion could not be withheld and kept in a sealed cover then once the case of the promotion was considered favourably by the concerned promotion committee, the promotion has to be given to those included in the select list, like the respondent. In other words, he tried to persuade us to interpret paragraph 3.1 in a way so that its operation should be restricted till the date of selection only. But the express words of paragraph 3.1 already noted earlier do not permit any such interpretation. The wordings are clear that even if a Railway servant is already included in the selection panel/ suitability list, in case he falls under any of 3 categories of paragraph 2 then such a railway servant shall not be promoted till after the conclusion of the proceedings pending against him. Only exception is when the proceedings are for imposition of only a minor penalty. Hence, the contention advanced on behalf of the petitioners is found to have merit so far as meaning and implication of paragraphs-2 and 3(i) of the Circular dated 21.1.1993 is concerned. 6. Only exception is when the proceedings are for imposition of only a minor penalty. Hence, the contention advanced on behalf of the petitioners is found to have merit so far as meaning and implication of paragraphs-2 and 3(i) of the Circular dated 21.1.1993 is concerned. 6. The Tribunal has noticed this circular in paragraph-4 of the impugned order but has not cared to go into its content minutely and as a result it has either misread or has failed to appreciate its contents otherwise it would not have observed as finds mentioned in paragraph-10 of the impugned order which is as follows: "As the respondents have not brought on record any decision of Railway Board like the one of DOPT (paragraph-7 above), the applicant cannot be denied promotion even after his action comes under cloud subsequently and before the actual issue of promotion order." 7. On the aforesaid findings alone the writ petition would have been allowed but in fairness to learned Senior Counsel for the respondents I would like to bring on record his further submission to the effect that the respondent deserves to be promoted before persons below in the select list because of certain notings which suggest that proposal to promote 14 others including persons below the respondent in the select list was recorded on 16.1.2008 i.e. before issuance of charge- sheet dated 22.1.2008. The aforesaid contention cannot be accepted for the simple reason that various options and suggestions may be initiated through notings in the file but such notings cannot have the sanctity and status of decision of the competent authority till such decision is finally taken and the order is issued. The value of such notings in the file cannot be anything more than that of a suggestion of subordinate employees or may be even of concerned authorities which may or may not be ultimately accepted so as to result into a formal order, drafted and issued. The respondent cannot claim any benefit by raising the issue of discrimination and violation of Articles 14 and 16 of the Constitution of India on the basis of date of such notings in the files. 8. The respondent cannot claim any benefit by raising the issue of discrimination and violation of Articles 14 and 16 of the Constitution of India on the basis of date of such notings in the files. 8. Learned Senior Counsel for the respondent also placed reliance upon a judgment of the Supreme Court in the case of Union of India V/s. Sangram Keshri Nayak, reported in (2007)6 SCC 704 to submit that in the said judgment the Supreme Court has laid down a law that at the time of actual promotion the concerned authorities must consider claims of all concerned in an effective, purposeful and meaningful manner and not only for superficial compliance with law that in matters of promotion the employees concerned has only a right to be considered. The facts of that case disclose that the persons lower in the select list were promoted earlier whereas the charge-sheet in respect of aggrieved employee came later. It was in this background that the Supreme Court emphasized necessity of giving effective, purposeful and meaningful consideration and not holding a mere show of consideration. Since, in that case the charge-sheet was not in existence when the persons lower in the select list were considered and granted promotion, there was no option but to hold that the concerned employees had been subjected to wrongful denial of promotion. In the present case, as facts noticed show, no person below the respondent was given promotion prior to issuance of charge-sheet against the respondent. Hence, the ratio of the aforesaid judgment in the case of Union of India V/s. Sangram Keshri also does not help the respondent. 9. Learned counsel for the petitioner has rightly drawn our attention to paragraphs of the impugned order which shows that the only grievance of the respondent before the Tribunal was that "as the charge- sheet is subsequent to the date of placing his name on the panel, his promotion could not have been withheld". This grievance, in view of earlier discussions and findings, is found to be without any legal basis. In view of provisions in the Railway Board Circular dated 21.1.1993 the petitioners had the necessary power and in fact an obligation to withhold the promotion of the respondent although he was already borne on a selection panel, till the results of the proceedings against him could be known. In view of provisions in the Railway Board Circular dated 21.1.1993 the petitioners had the necessary power and in fact an obligation to withhold the promotion of the respondent although he was already borne on a selection panel, till the results of the proceedings against him could be known. There is no dispute that the charge-sheet in respect of the respondent was for a major penalty and hence he could not have been given the benefit of exception mentioned in paragraph 3(i) of the circular dated 21.1.1993. 10. As a result of aforesaid discussions the writ petition is allowed. The impugned order of the Tribunal dated 18.7.2008 contained in Annexure-3 is quashed. In the facts of the case there shall be no order as to costs. 11. Before parting with the matter, we would like to remind the petitioners to expedite the proceeding for major penalty initiated against the respondent and if the same has not been concluded as yet, it should be concluded in accordance with law as expeditiously as possible, preferably within a period of three months, if the respondent co-operates. Anjana Prakash, J. 12 I agree.