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2009 DIGILAW 1464 (JHR)

State Of Jharkhand v. Vinod Mani Diwakar

2009-11-18

JAYA ROY, M.Y.EQBAL

body2009
JUDGMENT : M.Y. Eqbal, J. By this writ application the petitioner-State of Jharkhand has prayed for issuance of a writ in the nature of certiorari for quashing the order dated 5.12.2008 passed by the Central Administrative Tribunal, Circuit Bench at Dhanbad in O.A. No. 105/2007, whereby the Tribunal held that the respondent-applicant should be deemed to be promoted as I.G. of Police from 23.2.1999 and if necessary a supernumerary post should be created. The Tribunal further held that the applicant is required to be conferred with promotion as Additional Director General of Police effective from 29.4.2005 with further observation that consequential order should be passed within two months from the date of the order. 2. The facts of the case lie in a narrow compass. 3. The applicant-respondent filed the aforementioned O.A. No. 105/2007 making a prayer for directing his promotion as Additional Director General of Police (ADGP) taking notice of his entitlement and seniority position. The applicant is an IPS officer of 1974 batch. In the year 1986 CBI instituted a case against the applicant being CBI Case No. 25/86-Patna known as "Vardi Ghotala" case, which is still pending. In that case charge sheet was submitted in March, 1986. In 2005 the applicant moved the Central Administrative Tribunal and in that case the Tribunal gave a direction to the petitioner-State to consider his case for ad-hoc promotion in the light of office memorandum 1992. The petitioner-State assailed the said order of Tribunal by filing a writ petition being WPS No. 2192/2006. The writ petition was disposed of with a direction that the Departmental Promotion Committee (DPC) will consider the case for ad-hoc promotion of the respondent-applicant and take a decision. In compliance of the aforesaid order the case of the applicant was considered and by Notification dated 13th February, 2007 he was given ad-hoc promotion to the post of Inspector General of Police till further order. After getting promotion the applicant again approached the Tribunal in O.A. No. 105/2007 with a prayer that he is entitled for promotion as Additional Director General of Police. The Tribunal, after hearing the parties, held that the DPT Circular dated 14.9.1992 clearly speaks about six months review by the DPC where disciplinary proceeding/criminal prosecution against the employee is not concluded. After getting promotion the applicant again approached the Tribunal in O.A. No. 105/2007 with a prayer that he is entitled for promotion as Additional Director General of Police. The Tribunal, after hearing the parties, held that the DPT Circular dated 14.9.1992 clearly speaks about six months review by the DPC where disciplinary proceeding/criminal prosecution against the employee is not concluded. Since the same has not been done, it shall be deemed that the applicant was deemed fit by DPC for conferment of promotion as I.G. of Police effective from 23.2.1999 when persons junior to him were given promotion. The tribunal further held that the applicant is entitled to promotion as ADGP effective from 29.4.2005. 4. Mr. R. Krishna, learned senior Standing Counsel appearing for the petitioner, assailed the Impugned order passed by the Tribunal as being illegal and wholly without jurisdiction. Learned Counsel drawn our attention to 1992 Circular and submitted that merely because the applicant was given ad-hoc promotion, no right accrued to him for regular promotion with retrospective effect. Learned Counsel further submitted that those officers who were junior to the applicant and were given promotion, no criminal proceeding was pending against them, According to the learned Counsel, the Tribunal cannot assume that the applicant was entitled to promotion. 5. On other hand, Dr. S.N. Pathak, learned Counsel appearing for the respondent-applicant, submitted that the applicant was denied promotion only because of pendency of a criminal case which is lingering for the last 23 years. Learned Counsel further submitted that no review by DPC was done and it was only when the High Court passed order, the applicant was given ad-hoc promotion. Lastly, learned Counsel submitted that the departmental proceeding initiated against the applicant was quashed by the Tribunal in O.A. No. 152 of 2001. Hence, the impugned order passed by the Tribunal needs no interference by this Court. 6. Before appreciating the rival contentions of the parties, I would like to discuss the relevant clause of the office memorandum dated 14.9.1992, a copy of which has been annexed as Annexure-6 to the writ application. This memorandum deals with the promotion for government servant against whom disciplinary/court proceedings are pending or whose conduct is under investigation. Clause 5, 5.1 to 5.3 are worth to be quoted herein below: “5. This memorandum deals with the promotion for government servant against whom disciplinary/court proceedings are pending or whose conduct is under investigation. Clause 5, 5.1 to 5.3 are worth to be quoted herein below: “5. In spite of the monthly review referred to in para 4 above, there may be some cases, where the disciplinary case/criminal prosecution against the Government Servant is not concluded even after the expiry of two years from the date of the meeting of the first DPC, which kept as findings in respect of the Government servant in a sealed cover, in such a situation the appointing authority may review the case of the Government servant, provided he is not under suspension, to consider the desirability of giving him ad-hoc promotion keeping in view the following aspects: (a) Whether the promotion of the officer will be against public interest; (b) Whether the charges are grave enough to warrant continued dental of promotion; (c) Whether there is any likelihood of the case coming to conclusion in the near future; (d) Whether the delay in finalization of proceedings, departmental or in a court of law, is not directly of indirectly attributable to the Government servant concerned; and (e) Whether there is any likelihood of misuse of official position which the Government servant may occupy after ad-hoc promotion, which may adversely affect the conduct of the department case/criminal prosecution. The appointing authority should also consult the Central Bureaus of investigation and take their views into account where the departmental proceedings or criminal prosecution arose out of the investigations conducted by the Bureau. 5.1 In case the appointing authority comes to a conclusion that it would not be against the public interest to allow ad-hoc promotion to the Government servant, his case should be placed before the next DPC held in the nearest course after the expiry of the two year period to decide whether the officer is suitable for promotion on ad-hoc basis. Where the Government servant is considered for ad-hoc promotion, the Departmental Promotion Committee should make its assessment on the basis of the totality of the individual's record of service without taking into account the pending disciplinary case/criminal prosecution against him. Where the Government servant is considered for ad-hoc promotion, the Departmental Promotion Committee should make its assessment on the basis of the totality of the individual's record of service without taking into account the pending disciplinary case/criminal prosecution against him. 5.2 After a decision is taken to promote a Government servant on an ad-hoc basis, an order of promotion may be issued making it clear in the order itself that: (i) the promotion is being made on purely ad-hoc basis and the ad-hoc promotion will not confer any right for regular promotion; and (ii) the promotion shall be "until further orders". It should also be indicated in the orders that the Government servant the right to cancel the add-hoc promotion and even at any time the Government servant to the post from which he was promoted. 5.3 If the Government servant concerned is acquitted in the criminal prosecution on the merits of the case or is fully exonerated in the departmental proceedings, the ad-hoc promotion already made may be confirmed and the promotion treated as a regular one from the date of the ad-hoc promotion with all attendant benefits. In case the Government Servant could have normally got his regular promotion from a date prior to the date of his ad-hoc promotion with reference to his placement in the DPC proceedings kept in the sealed cover(s) and the actual date of the persons ranked immediately junior to him by the same DPC, he would also be allowed his due seniority and benefit of national promotion as envisaged in para 3 above. 7. From perusal of the aforesaid clauses of office memorandum quoted herein before, it is evidently clear that in certain circumstances, the Government servant against whom disciplinary proceeding or criminal case is pending, can be allowed ad-hoc promotion. Clause 5.2 clearly provides that if a Government servant is allowed ad-hoc promotion, it shall be made clear that such ad-hoc promotion shall not confer any right for regular promotion and such ad-hoc promotion shall continue till further orders. It is only after the Government servant is acquitted in the criminal case or fully exonerated in the departmental proceeding, the ad-hoc promotion so made may be confirmed. 8. In the impugned order, the Tribunal has misinterpreted the aforementioned clauses of the memorandum dated 14.9.1992 as if despite pendency of criminal case, a Government servant is entitled to regular promotion. It is only after the Government servant is acquitted in the criminal case or fully exonerated in the departmental proceeding, the ad-hoc promotion so made may be confirmed. 8. In the impugned order, the Tribunal has misinterpreted the aforementioned clauses of the memorandum dated 14.9.1992 as if despite pendency of criminal case, a Government servant is entitled to regular promotion. Paragraphs 12 and 13 of the impugned order passed by the Tribunal are worth to be quoted herein below: “12. Since reliance is placed on the circular and the circular prescribed for a consideration two years after the date of the first DPC, it could be normally presumed that the applicant was to be considered for promotion effectively from 23.1.1999 i.e. 2 years after the first DPC was held. If this be the case, perhaps, the applicant may not be entitled to claim that he was entitled to the date of promotion given to Shri Neelamani who had been cleared by the DP on 26.11.1997. There was no irregularity for overlooking the applicant, what was necessary was to resort to a sealed cover proceedings. Technically, even as of now the cover could not be directed to be opened, as the criminal proceedings are not yet over. We have no notice that benefit had come to applicant only because of the DOP&T orders, as instructed to be followed because of directions in the OA. We, therefore, think it will be proper that we proceed on the basis that the applicant was to be deemed as found fit by the DPC for conferment of promotion as I.G. of Police effective from 23.2.1999. The date cannot be pushed back, but benefit to this extent is undeniable. 13. The next question is-as to whether applicant's claim for promotion as Addl. D.G. is to be noticed as available to him effectively from the date when Mr. Kataria was promoted as ADG in 2005. We have to understand the direction of the earlier bench as requiring the DPC to review the promotion of the applicant, not only confined to the post of IG of Police but also for clearing him for the post of ADG as well. There is no suggestion that excepting the pendency of the criminal cases, anything else was there against the applicant debilitating him. There is no suggestion that excepting the pendency of the criminal cases, anything else was there against the applicant debilitating him. Therefore, the applicant will be entitled to promotion to the cadre of ADG effectively from 2005 so as to ensure that he is not subjected to prejudice. He is to be put abreast with Mr. Kataria, as the DPC's clearance required to be assumed as concerning this cadre as well, as on other parameters required to be looked into. 9. After having given our anxious consideration, we have no hesitation in holding that the Tribunal has committed serious error of law in holding that the respondent shall be deemed to be promoted as I.G. of Police from 23.2.1999. While holding that the Tribunal proceeded on presumption that the respondent was fit for promotion. The Tribunal further committed serious error of law in declaring that the respondent should be conferred with the promotion as Addl. Director General of Police with retrospective effect i.e. from 29.4.2005. Perhaps, the Tribunal has misconstrued the law with regard to promotion, inasmuch as a Government servant cannot as a matter of right claim promotion. At best a Government servant can seek a direction from the Court or Tribunal to consider his case for promotion. Be that as it may, admittedly, the C.B.I., instituted a case against the respondent and in that case, charge-sheet has already been submitted. Merely because the criminal case is pending since 1986, the Tribunal ought not to have granted such relief which is not permissible in law. The impugned order, therefore, cannot be sustained in law. 10. For the reasons aforesaid, this application is allowed and the impugned order passed by the Central Administrative Tribunal is set aside. Jaya Roy, J. - I agree Application allowed.