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2010 DIGILAW 622 (RAJ)

B. L. Sharma v. Union of India

2010-03-18

A.M.KAPADIA, GOPAL KRISHAN VYAS

body2010
JUDGMENT 1. - In this writ petition, filed under Articles 226 and 227 of the Constitution of India, the petitioner is challenging the impugned judgment dated 07.03.2000 passed by the Central Administrative Tribunal, Jodhpur Bench, Jodhpur in Original Application No. 391/94. 2. According to facts of the case, the petitioner passed examination for recruitment to the post of Inspector, Post Offices & Head Clerks to Superintendents of Post Offices held in the year 1965 and placed at S.No. 8 in the merit-list which was circulated on 12.05.1966. The petitioner was senior to Sarva Shri Jagdish Singh, Arjundas Gurnani, Kanhaiyalal Sharma and Jagdish Arora and others according to the said merit list and, for the next promotion, he was to be considered on the basis of the seniority-cum-fitness as per rules in force. Vide order dated 07.06.1988 Jagdish Singh, Arjundas Gurnani, K.L. Sharma, S.K.Mali were promoted to the posts of PSS Group B though all of them were junior to the petitioner in the cadre of Inspector of Post Offices but the petitioner was not promoted due to pendency of inquiry against him. 3. Case of the petitioner is that he was entitled for promoted to the post of PSS Group B as per his seniority during the year 1987-88 but his case was not considered for promotion to the said post because he was served with charge-sheet vide letter dated 07.09.1987. In the said departmental inquiry, after due process, penalty of reduction to the lower post of Inspector of Post Offices with effect from 19.06.1989 was inflicted. In appeal, however, the penalty was reduced to withholding of one grade' increment without cumulative effect for six months w.e.f. April 01, 1990. Against both the order, review petition was filed which was also rejected. Being aggrieved and dissatisfied by the aforesaid orders, the petitioner preferred Original Application No. 530/1990 and the said O.A. was finally decided on 13.08.1993 and following order was passed : "5. As such, we quash the order of punishment awarded by the Disciplinary Authority as also by the Appellate Authority but however, the respondents shall not be precluded from proceeding with the inquiry from the stage of giving a notice by the Disciplinary Authority to the applicant for disagreeing with the report of the Inquiry Officer. This disposes of the O.A. No order as to costs." 4. This disposes of the O.A. No order as to costs." 4. During the process of inquiry, the respondents had convened DPC in September 1987 to consider selection of officers for promotion to the post of PSS Group B; but, since the petitioner was facing a departmental inquiry, therefore, DPC was under obligation to consider his case for promotion but result of consideration was to be kept in sealed cover. 5. The punishment order made against the petitioner was set aside by the Tribunal vide judgment dated 13.08.1993 but the respondents were not precluded to initiate proceedings with the inquiry from the stage of giving notice by the Disciplinary Authority for disagreeing with the report of the Inquiry Officer. Since the petitioner already stood retired, therefore, upon taking final decision in pursuance of the judgment of the Tribunal, the inquiry against the petitioner was dropped by the respondents vide Annex.- 6 dated 16.11.1993, therefore, sealed cover envelope was to be opened if the result of the departmental promotion committee for promotion of the petitioner on the post of PSS Group B was kept in sealed cover. 6. The petitioner filed a representation to the respondents for granting promotion after passing of the order/letter Annex.-6 dated 16.11.1993, in which, as per decision taken by the President of India not to take disciplinary action under Rule 9 of the CCS (Pension) Rules, 1972 but the said sealed cover envelope was not opened nor the petitioner was granted promotion. Then the petitioner preferred Original Application before the Central Administrative Tribunal. 7. Learned counsel for the petitioner submits that after issuance of the notice, a specific order was made by the Tribunal to produce the record of the Departmental Promotion Committee before the Tribunal but only photostat copies of the record were produced inspite of order passed by the Tribunal and finally the Tribunal while taking into consideration the photostat copies of the proceedings of the DPC held in September 1987 dismissed the original application on the ground that in the photostat copy, in front of his name, remark "NYF" was recorded which is "Note Yet Fit". Therefore, the Tribunal dismissed the original application while holding that the application is devoid of i t merit. 8. Therefore, the Tribunal dismissed the original application while holding that the application is devoid of i t merit. 8. As per learned counsel for the petitioner, after taking decision to drop the inquiry against the petitioner in view of the rules enumerated in Swami's Compilation on Seniority & Promotion in Central Government Service, as per Rule 7.6.1 the respondent Department was under obligation to consider his case during the pendency of the inquiry and result of consideration was to be kept in sealed cover and if it was not done, then, obviously after dropping the enquiry against the employee it is the duty of the employee who was denied promotion on the basis of pendency of the inquiry. Therefore, in this case, the Tribunal has committed an error firstly on the ground that the Tribunal though called the record of the DPC and the same was not produced before the Court except certain photostat copies, and, secondly, while relying upon the said Photo-State Copies, in which, it was mentioned that the application is not yet fit for the post, therefore, before the Tribunal it was very much clear that punishment order made against the petitioner was set aside by the Tribunal in the earlier Original Application with the liberty to the respondents to initiate inquiry at the stage of giving notice by the Disciplinary Authority to the applicant. But, after the judgment in the original application on 13.08.1993, when decision was taken to drop the inquiry, then, obviously the Tribunal was to give direction for considering the case of the petitioner from the date his junior persons were promoted as per recommendations made by Departmental Promotion Committee in the year 1987. 9. On the aforesaid grounds, it is prayed by learned counsel for the petitioner that while quashing the judgment impugned passed by the Central Administrative Tribunal dated 07.03.2000, the respondents may be directed to re-consider the case of the petitioner for promotion from the date when his junior persons were promoted and the petitioner became eligible. 10. 9. On the aforesaid grounds, it is prayed by learned counsel for the petitioner that while quashing the judgment impugned passed by the Central Administrative Tribunal dated 07.03.2000, the respondents may be directed to re-consider the case of the petitioner for promotion from the date when his junior persons were promoted and the petitioner became eligible. 10. Per contra, learned counsel appearing on behalf of the respondents vehemently argued that due to pendency of the inquiry the petitioner was not found fit for promotion in 1987 and although the Tribunal called the proceedings of the DPC but the proceedings were produced by way of the photostat copies, in which, it was found that the petitioner was not found fit due to pendency of the inquiry, therefore, the Tribunal has rightly rejected the original application filed by the petitioner for seeking direction to open the sealed cover envelop which was to be kept at the time of consideration in the year 1987 by the DPC. 11. We have considered the rival submissions made by both the parties. 12. It is nowhere disputed by the respondents that the petitioner was senior than Jagdish Singh, Arjundas Gurnani, K.L. Sharma, S.K. Mali who were all junior than the petitioner; but, their candidature was considered for the post of Postal Superintendent Service Group B in the year 1987 and they were granted promotion. The case of the petitioner was, however, not found fit due to pendency of the inquiry, therefore, he was not granted promotion. It also emerges that in the DPC which was pending at the time of considering the case of promotion but, later on, the petitioner was penalised with the penalty of reduction to lower rank vide letter dated 19.06.1989. Against said order, review and appeal were filed but the same were dismissed and, ultimately, the said punishment order was challenged by way of filing Original Application No. 530/1990 and was finally decided on 13.08.1993, by which, the order of penalty was set aside and liberty was given to the Department to hold inquiry from the stage of giving notice by the Disciplinary Authority to the petitioner-applicant. 13. 13. When the above order was passed by the Tribunal in the earlier original application, the petitioner's matter was considered and it was found fit to drop the inquiry vide Annex.-6 dated 16.11.1993, by which, it was decided that the President has not deemed it fit case to take disciplinary action under Rule 9 of the CCS Rules, 1972 against petitioner B.L. Sharma, retired ASPOs (HQ) Barmer. Accordingly the proposal to take disciplinary action against him stands dropped; meaning thereby, after taking decision to drop the inquiry, obviously as per para 17.6.1 of the Swami's Compilation on Seniority & Promotion in Central Government Service, either the sealed cover envelope was to be opened if the result was kept in sealed cover or the Department was under obligation to consider the case of the petitioner for promotion by way of holding review DPC but no action was taken by Department after taking decision to drop the inquiry against the petitioner. Relevant para 17.6.1 reads as follows "17.6.1.- On the conclusion of the disciplinary case/criminal prosecution which results in dropping of allegations against the Government servant, the sealed cover or covers shall be opened. In case the Government servant is completely exonerated, the due date of his promotion will be determined with reference to the position assigned to him in the findings kept in the sealed cover/covers and with reference to the date of promotion of his next junior on the basis of such position. The Government servant may be promoted, if necessary, by reverting the junior most officiating person. He may promoted notionally with ryelence to the be date of promotion of his junior. However, whether the officer concerned will be entitled to any arrears of pay for the period of notional promotion preceding the date of actual promotion, and if so to what extent, will be decided by the appointing authority by taking into consideration all the facts and circumstances of the disciplinary proceeding/criminal prosecution. Where the authority denies arrears of salary or part of it, it will record its reasons for doing so. It is not possible to anticipate and enumerate exhaustively all the circumstances under which such denials of arrears of salary or part of it may become necessary. Where the authority denies arrears of salary or part of it, it will record its reasons for doing so. It is not possible to anticipate and enumerate exhaustively all the circumstances under which such denials of arrears of salary or part of it may become necessary. However, there may be cases where the proceedings, whether disciplinary or criminal, are, for example, delayed at the instance of the employee or the clearance in the disciplinary proceedings is with benefit of doubt or on account of non-availability of evidence due to the acts attributable to the employee, etc. These are only some of the circumstances where such denial can be justified." 14. Upon perusal of above para, it is obvious that the Tribunal has failed to consider the fact that after taking decision to drop the inquiry, the department was under obligation to consider the case of the petitioner from the date his junior persons were promoted. It is true that the proceedings of the DPC were not placed before the Tribunal but certain photostat copies were produced for perusal of the Tribunal in which, in front of the name of the petitioner, a i lark "NYF" was given. Obviously, at the time of consideration in .the year 1987 by the DPC there was pendency of inquiry against the petitioner, therefore, he was not fit for promotion. Later on, when punishment order was set aside by the Tribunal and liberty was given to the department to initiate the inquiry from the stage of giving notice and department decided not to hold any inquiry against the petitioner, then, obviously it was the obligatory duty for the department to consider the case of the petitioner ignoring the fact that there was inquiry against him. 15. In this view of the matter, we are of the opinion that judgment rendered by the Tribunal deserves to be quashed. 15. In this view of the matter, we are of the opinion that judgment rendered by the Tribunal deserves to be quashed. The petitioner is entitled to seek direction to the respondents to consider the case of the petitioner from the date his juniors were promoted to the post of Postal Superintendent Service Group B. On the basis of the above discussion, while quashing the order dated 07.03.2000 passed by the Tribunal, this writ petition is disposed of with direction to the respondents to hold meeting of the Departmental Promotion Committee to consider the case of the petitioner for promotion to the post of Postal Superintendent Service Group B from the date when his junior persons were promoted and if the petitioner is found otherwise eligible for promotion, then, grant him all consequential benefits notionally and, after granting promotion, fixation shall be made for the promotional post and his pension shall be calculated on the basis of re-fixation and all retiral benefits shall be paid to the petitioner within a period of six months from the date of receipt of certified copy of this order. 16. It is made clear that the petitioner shall not be entitled to arrears if he is found suitable by the DPC till his date of superannuation but shall be entitled for all other retiral benefits from the date of his superannuation. This exercise shall be completed positively within a period of six months.Writ petition allowed. *******