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2014 DIGILAW 52 (UTT)

GOPAL RAM v. UNION OF INDIA

2014-02-25

ALOK SINGH

body2014
JUDGMENT Hon’ble Alok Singh, J. Since both the writ petitions are inter-connected and are between the same parties involving identical questions of facts and law, therefore, both the writ petitions were taken up for hearing together and are being disposed of by this common judgment, with the consent of learned counsel, appearing for the parties. 2. Undisputedly, petitioner was initially appointed on the post of Computer Operator on the contract basis on 16th July, 1990. However, he was thereafter promoted to the post of Senior Clerk in the year 1997 and ultimately was appointed by way of promotion to the post of Revenue Superintendent on 01.07.2005. 3. Undisputedly, respondent No. 3 Smt. Rama Negi was appointed by way of promotion to the post of Accountant on 1st October, 2009. 4. Admittedly, post of Office Superintendent in the Cantonment Board, Ranikhet, District Almora has to be filled up by way of promotion only. Undisputedly, feeding cadres for the post of Office Superintendent is Accountant/Revenue Superintendent/Tax Superintendent. Post of Office Superintendent in Cantonment Board, Ranikhet, District Almora fallen vacant which was to be filled up by promotion from seniormost Accountant/Revenue Superintendent/Tax Superintendent. 5. Petitioner preferred Writ Petition No. 1645 of 2012 (S/S) seeking writ of mandamus commanding the respondent No. 2 to determine and prepare the seniority list amongst the Accountant/Tax Superintendent/Revenue Superintendent to grant promotion to the seniormost to the post of Office Superintendent. 6. During the pendency of the Writ Petition No. 1645 of 2012, respondent No. 2 vide Resolution dated 25th March, 2013, annexure No. 11 to the writ petition, was pleased to appoint respondent No. 3 as Office Superintendent of Cantonment Board, Ranikhet, District Almora. Feeling aggrieved, petitioner preferred subsequent Writ Petition No. 352 of 2013 for quashing of the Resolution No. 8/order dated 25th March, 2013 granting promotion to respondent No.3 on the post of Office Superintendent as well as earlier Resolution No. 14 dated 11.01.2012 promoting respondent No.3 on the post of Tax Superintendent. 7. I have heard Mr. Arvind Vashisth, learned counsel for the petitioner, Mr. B.P.S. Mer, learned counsel for the Union of India/respondent No.1, Mr. Sanjay Bhatt, learned counsel for the respondent No.2 and Mr. Rakesh Thapliyal and Mr. Siddharth Bisht, Advocates for respondent No.3 and have carefully perused the record. 8. Mr. 7. I have heard Mr. Arvind Vashisth, learned counsel for the petitioner, Mr. B.P.S. Mer, learned counsel for the Union of India/respondent No.1, Mr. Sanjay Bhatt, learned counsel for the respondent No.2 and Mr. Rakesh Thapliyal and Mr. Siddharth Bisht, Advocates for respondent No.3 and have carefully perused the record. 8. Mr. Sanjay Bhatt, learned counsel appearing for the Cantonment Board vehemently argued that although petitioner was appointed as Revenue Superintendent w.e.f. 26.08.2005 and respondent No. 3 was appointed on the post of Accountant in the year 2009, however, fact remains that pay scale of Accountant is higher than the pay scale of Revenue Superintendent, therefore, respondent No.3 was rightly treated senior to the petitioner considering the higher pay scale and was rightly granted promotion on the post of Office Superintendent. He further contends that issue regarding removing the anomalies of different pay scales for the post of Accountant/Tax Superintendent/Revenue Superintendent is pending disposal and no final decision has been taken thereon. Therefore, as on date, respondent No.3 was on the higher pay scale, consequently, was rightly granted promotion. Second argument of the learned counsel for respondent No.2 is that since petitioner is facing departmental proceedings and was issued show cause notice on 28th November, 2011, therefore, he was rightly ignored for the promotional post of Office Superintendent. 9. Mr. Rakesh Thapliyal and Mr. Siddharth Bisht, learned counsel for the respondent No.3 supported the argument raised by Mr. Sanjay Bhatt, learned counsel for the respondent No.2. 10. On the other hand, Mr. Arvind Vashisth, learned counsel for the petitioner contends that as per the Memorandum issued by the Union of India dated 10th September, 1995, annexure No.2 to the counter affidavit filed in Writ Petition No. 1645 of 2012, seniority list has to be prepared in the cadre of Accountant/Revenue Superintendent and Tax Superintendent irrespective of the pay scale for the consideration of the promotional post of Office Superintendent. Therefore, argument raised by learned counsel for the respondents that employee getting higher pay scale shall be treated as senior to those who were getting lesser pay scale do not hold water. 11. I have given my serious thought to the submission made by the learned counsel for the parties. Therefore, argument raised by learned counsel for the respondents that employee getting higher pay scale shall be treated as senior to those who were getting lesser pay scale do not hold water. 11. I have given my serious thought to the submission made by the learned counsel for the parties. In view of the admitted position of law that feeding cadre for the post of Office Superintendent is Accountant/Tax Superintendent/Revenue Superintendent, therefore, pay scale has no role to play and date of appointment on the respective post shall be given effect to for the purpose of considering inter-se seniority to consider for the promotional post of Office Superintendent. 12. On being asked, learned counsel appearing for the parties fairly submitted that till day no final decision has been taken on the chargesheet issued to the petitioner. Having perused the chargesheet issued to the petitioner, I find none of the charge is serious in nature warranting the grave penalty against the petitioner. Chargesheet was issued against the petitioner for the negligence and absence from the duties of other employees who were subordinate to the petitioner. I find force in the submission of Mr. Arvind Vashisth, learned counsel for the petitioner that chargesheet was issued to the petitioner with ulterior motive to keep the petitioner out of zone of consideration for the promotion. Chargesheet was issued on 28.11.2011 and till date no decision is taken thereon goes to demonstrate malice on the part of the authorities. 13. Be as the case may be. If chargesheet for the minor irregularity not involving moral turpitude is issued, then such employee should not be deprived or in other words should not be kept outside the consideration of promotional post in view of the fact that minor irregularity not involving the moral turpitude shall not warrant any major penalty. 14. As discussed hereinabove, since petitioner was appointed on the post of Revenue Superintendent in the year 2005 and respondent No.3 was appointed on the post of Accountant in the year 2009, therefore, petitioner is quite senior to the respondent No. 3. Therefore, non-consideration of the petitioner’s name for the promotional post of Office Superintendent on account of lower pay scale does not sustain in the eyes of law. Therefore, non-consideration of the petitioner’s name for the promotional post of Office Superintendent on account of lower pay scale does not sustain in the eyes of law. Likewise, pendency of the alleged disciplinary proceedings for the minor irregularity that too committed by the subordinates of the petitioner should not be made ground to deprive the petitioner for being considered for the promotional post. Therefore, promotion granted to respondent No.3 cannot be held good, legal or sound. Consequently, same is being quashed. 15. Law is now well settled that ordinarily seniormost should be allowed to officiate on the higher post. Ordinarily, junior should not be allowed to officiate on the higher post ignoring the seniority. 16. Respondent authorities are directed to permit the petitioner meanwhile to discharge duties of Office Superintendent in officiating capacity. Respondent No. 2 shall conclude the departmental proceedings against the petitioner in any case within three months from today. If departmental proceedings pursuant to chargesheet dated 28.11.2011 is not concluded against the petitioner within three months for no fault on the part of petitioner, chargesheet shall be deemed to have been revoked and non est. Thereafter denovo exercise in accordance with law shall be undertaken to fill up the post of Office Superintendent by way of promotion. Petitioner, if otherwise is eligible, shall be considered for the promotion. 17. Both the writ petitions are disposed of accordingly. 18. Copy of this judgment may be placed in both the petitions.