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2012 DIGILAW 595 (GAU)

H. Lianzela v. State of Mizoram

2012-05-16

INDIRA SHAH

body2012
JUDGMENT Indira Shah, J. 1. Heard Mr. C. Lalramzauva, learned senior counsel for the petitioner, Mr. Aldrin Lallawmzuala, learned Addl. Advocate General of the State of Mizoram appearing on behalf of respondent Nos. 1 & 2 and Mr. M. Zothankhuma, learned senior counsel appearing on behalf of respondent No. 3/Mizoram Public Service Commission. The appellant has challenged the recommendation of respondent No. 3 for promotion of respondent No. 4 to Junior Administrative Grade and rejected the petitioner's prayer to consider his promotion to said grade. 2. The petitioner was appointed to the Junior Grade of Mizoram Civil Services and has been holding the post of Under Secretary, State Election Commission, Mizoram. As per notification No. 23022/4/02 P & AR (CSW)/3 dated 25-06-2007, the inter se seniority of the petitioner was at serial No. 36 while the name of the respondent No. 4 was at serial No. 27 of the list. Although, respondent No. 4 was senior to petitioner as per the list, he (respondent No. 4) faced a departmental proceeding by which a minor penalty of withholding of promotion for a period of 2 years was imposed on him vide order dated 20-09-2007 with immediate effect. Before the expiry of term of the penalty on 17-08-2009, the respondent No. 2 forwarded the agenda papers for filing up of seven anticipated chain vacancies of Junior Administrative Grade of MCS during 2009-10 to the Joint Secretary, DP & AR (GSW), Govt. of Mizoram and the Joint Secretary forwarded the agenda papers to respondent No. 3 for selection for promotion to seven posts. In the said list of eligible senior grade of MCS officers, the respondent No. 4 was included for consideration for promotion at serial No. 1 and the petitioner's name appeared at serial No. 9. The Mizoram Public Service Commission in their minutes of meeting to consider promotion to the Junior Administrative Grade of Mizoram Civil Service (MCS) held on 2nd September, 2009 held that findings regarding suitability of respondent No. 4 for promotion be placed in a separate sealed cover as he was undergoing a penalty of withholding of promotion for a period of 2 years which was to be ended on 20-09-2009. On 30-09-2009, seven Senior Grade MCS officers were promoted to Junior Administrative Grade of MCS. 3. As per the letter dated 23-09-2009 of Additional Secretary to the Govt. On 30-09-2009, seven Senior Grade MCS officers were promoted to Junior Administrative Grade of MCS. 3. As per the letter dated 23-09-2009 of Additional Secretary to the Govt. of Mizoram to all Administrative Departments and Head of Departments under the Govt. of Mizoram to furnish a report on clear and anticipated vacancies of posts of gazetted and non-gazetted during the period of 2009-10 on or before 30-09-2009. The Under Secretary to the Govt. of Mizoram, DP & AR (CSW) disclosed that there were 9 clear vacancies in Junior Administrative Grade of MCS as on 29-09-2009. As per request of respondent No. 2, the respondent No. 3 opened the sealed cover and informed that respondent No. 4 was recommended for promotion to Junior Administrative Grade. Accordingly, respondent No. 2 vide notification dated 16-12-2009 promoted the respondent No. 4 to Junior Administrative Grade of MCS indicating that number of vacancies thus filled up was 8 out of 9 though initially 7 posts of Junior Administrative Grade was contemplated to be filled up. Being aggrieved, the petitioner submitted representation to respondent No. 2 wherein he clearly highlighted his grievances stating that the respondent No. 4 was not even eligible for consideration of promotion against one of the nine vacancies while petitioner was deliberately denied promotion and requested them to consider his promotion against the remaining one vacant post but the same was rejected and the petitioner was informed that agenda papers for filling up seven anticipated chain vacancies during 2009-10 was submitted by respondent No. 3 on 08-09-2009 whereas DP & AR (ARW) had submitted the statement regarding 9 vacancies of Junior Administrative Grade only on 29-09-2009. According to petitioner, respondent Nos. 1 & 2 had filled up eight posts by promoting seven seniors of the petitioner along with department of personnel & administrative reforms. 4. The Central Service Wing, Govt. of Mizoram vide office memorandum dated 24th January, 2005 has framed the procedure to be observed by the departmental promotion committee and clause 3.8 to 3.9 reads as under:- 3.8 Whereas a DPC has already been held in a year and further vacancies arise during the same year due to death, resignation, voluntary retirement, etc. The Central Service Wing, Govt. of Mizoram vide office memorandum dated 24th January, 2005 has framed the procedure to be observed by the departmental promotion committee and clause 3.8 to 3.9 reads as under:- 3.8 Whereas a DPC has already been held in a year and further vacancies arise during the same year due to death, resignation, voluntary retirement, etc. or because the vacancies were not intimated to the DPC due to error or omission on the part of the Department concerned, the following procedure should be followed: (i) In case of vacancies belonging to the category which could not be foreseen at the time of placing facts and materials before the DPC, another meeting of the DPC should be held for drawing up a panel for these vacancies as these vacancies could not be anticipated at the time of holding the earlier DPC. If, for any reason, the DPC cannot meet for the second time, the procedure of drawing up of year-wise panels may be followed when it meets next for preparing panels in respect of vacancies that arise in subsequent year(s). (ii) In case of non-reporting of vacancies due to error or omission (i.e. though the vacancies were there at the time of holding of DPC meeting they were not reported to it which results in injustice to the officers concerned by artificially restricting the zone of consideration, the wrong done cannot be rectified by holding a second DPC or preparing year-wise panel. In all such cases, a review DPC should be held keeping in mind the total vacancies of the year. 3.9. For the purpose of evaluating the merit of the officers while preparing year-wise panels, scrutiny of the record of service of the officers should be limited to the records that would have been available had the DPC met at the appropriate time. For instance, for preparing a panel relating to the vacancies of 2005-2006 the latest available records of service of the officers up-to the period ending March 2004 as the case may be should be taken into account and not the subsequent one. However, if on the date of the meeting of the DPC, Departmental Proceedings are in progress and under the existing instructions sealed cover procedure is to be followed, such procedure should be observed even if Departmental Proceeding were not in existence in the year to which the vacancy is related. However, if on the date of the meeting of the DPC, Departmental Proceedings are in progress and under the existing instructions sealed cover procedure is to be followed, such procedure should be observed even if Departmental Proceeding were not in existence in the year to which the vacancy is related. The officer's name should be kept in the sealed cover till the proceedings are finalized. 5. The respondent nos. 1 & 2 in their affidavit-in-opposition have contended that the Govt. of India, Department of Personnel & Training vide their O.M. No. 22034/5/2004 dated 15-12-2004 have stated that a Government Servant, on whom a minor penalty of withholding of increment etc. has been imposed should be considered for promotion by the Departmental Promotion Committee which meets after the imposition of the said penalty and after due consideration of full facts leading to imposition of the penalty, if he is still considered fit for promotion, the promotion may be given effect after the expiry of the currency of the penalty. In such cases, the seniority would be fixed according to the position of the officer in the penal on the basis of which he is promoted on expiry of the period of currency of the penalty. 6. In the cited case of Union of India and others vs. Mihir Kumar Bandopadhyay and Others (2009)16 SCC 329 , it was observed that if any penalty imposed on the government servant as a result of disciplinary proceedings or if he is found guilty in the criminal prosecution against him the findings of the sealed cover/covers shall not be acted upon. His case for promotion may be considered by the next DPC in the normal course and having regard to the penalty imposed on him. 7. In the case of State of M.P. and Another vs. I.A. Qureshi, (1998)9 SCC 261 , it was held that "Censure" is one of the minor penalties that can be imposed on a government servant and once it is held that minor penalty has been imposed on the respondent in the departmental proceedings, the direction given in the said circular would be applicable and the sealed cover containing recommendations of the DPC could not be opened and the recommendations of the DPC could not be given effect because the respondent has not been fully exonerated and a minor penalty has been imposed. The respondent can only be considered for promotion prospective basis from the date after the conclusion of departmental proceedings. Similarly in the case of Union of India & others vs. K.V. Jankiraman & Others, (1991)4 SCC 109 , it was observed that the least that is expected of any administration is that it does not reward an employee with promotion retrospectively from a date when for his conduct before that date he is penalized in praesenti. A denial of promotion in such circumstances is not a penalty but a necessary consequence of his conduct. 8. Here in this case, penalty of withholding of promotion for a period of 2 years with effect from 20-09-2007 was imposed upon the respondent No. 4. Before the expiry of the term of penalty, the departmental promotion committee considered the promotion of the respondent No. 4. The O.M. dated 15-12-2004 offered by the respondents says that on expiry of the currency of the penalty and after due consideration of full facts leading to imposition of penalty the promotion may be given effect to. Moreover, the sealed cover procedure is to be followed when the Departmental Proceedings are in progress till the proceedings are finalized. Here in the departmental proceeding against the respondent No. 4 was already finalized. 9. It appears from the documents annexed with the petition that respondent No. 2 made proposal for filling up of 7 anticipated chain vacancies of JAG and the MPSC considered the promotion and 7 officers were recommended for promotion excluding the respondent No. 4. The suitability for promotion of respondent No. 4 was kept in sealed cover. Thus, it appears that there were at least 8 anticipated chain vacancies of JAG. 10. The petitioner, in his additional affidavit-in-reply, has stated that 2 vacancies for the year 2008-09 occurred due to retirement of officers. Six posts of JAG remained vacant due to promotion. The statement showing clear and anticipated vacancies of post of Mizoram Civil Service as on 29-09-2009 furnished by the Under Secretary to the Govt. of Mizoram shows that there was 9 vacancies in Junior Administrative Grade (JAG) of Mizoram Civil Service during the period on 2009-10. Six posts of JAG remained vacant due to promotion. The statement showing clear and anticipated vacancies of post of Mizoram Civil Service as on 29-09-2009 furnished by the Under Secretary to the Govt. of Mizoram shows that there was 9 vacancies in Junior Administrative Grade (JAG) of Mizoram Civil Service during the period on 2009-10. Sub-clause (ii) to Clause 3.8 of O.M. dated 24th January, 2005 clearly says that in case of non-reporting of vacancies due to error or omission (i.e. though the vacancies were there at the time of holding DPC meeting they were not reported to it) which resulted in injustice to the officers by artificially restricting the zone of consideration, it cannot be rectified by holding a second DPC or preparing year-wise panel. In all such cases, a review DPC should be held keeping in mind the total vacancies of the year. 11. In view of above discussions, this Court is of the view that the case of respondent No. 4 was illegally put under sealed cover procedure and by opening which the respondent No. 4 was given promotion with retrospective effect. Therefore, the procedure adopted by the respondent No. 3 to put the matter of promotion of respondent no.4 in sealed cover and consequently giving him promotion are set aside and quashed. 12. Considering the matter in its entirety, the respondent nos. 1 to 3 are directed to hold a review DPC and to consider the promotion of petitioner to the post of JAG of MCS along with others against the existing vacancies which appears not less than 9 as per the letter dated 29-09-2009 of Under Secretary to the Government of Mizoram. With the above observations and directions, this writ petition stands disposed of. There shall be no order as to cost.