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2014 DIGILAW 561 (GAU)

Chandra Kr. Baruah v. State of Assam

2014-05-26

TINLIANTHANG VAIPHEI

body2014
Judgment Tinlianthang Vaiphei, J. 1. In this writ petition, the petitioner is questioning the legality of the gradation list dated 15-5-2013 issued by the respondent No. 6 making him junior to the respondent No. 7 and seeking the intervention of this Court to restrain the respondent authorities from giving effect to the impugned gradating list to promote the respondent No. 7 to the next higher post. The facts leading to the filing of this writ petition may be briefly noticed at the outset. The petitioner was initially appointed as Finance and Accounts Officer (Grade-III) in the year 1987, and was promoted to the post of Senior Finance and Accounts Officer in the year 2000: the cadre of this class is called Class-I and Class-II under the Government of Assam. In the year 2009, he was further promoted to the post of Joint Director of Accounts and Treasury of Assam in the cadre of Class-I and Grade-I Officer of the Assam Finance Service. The procedure for promotion of the members of the Assam Finance Service is governed by a set of rules called "The Assam Finance Service Rules, 1963" as amended from time to time ("the Rules" for short). In the year 1996, the respondent No. 4 circulated the provisional gradation list inviting objection from any members named therein within 30 days of the publication. In this list, the name of the petitioner found a place at Serial No. 63 whereas the name of the respondent No. 7 was placed at Serial No. 66 thereby making it clear that the petitioner was senior to the respondent No. 7. No objection was, however, made by the respondent No. 7 to the said draft gradation list. 2. Some six years after his promotion to the post of Senior Finance and Accounts Officer, another draft gradation list was again published on 2-2-2006 wherein the petitioner was placed at Serial No. 31 while the respondent No. 7 was placed at Serial No. 34 which indicated the seniority of the petitioner over the respondent No. 7. The respondent No. 7 never objected to this draft gradation list though he was given 30 days' time to submit his objection. Again, another draft gradation list dated 17-7-2008 was circulated placing the petitioner in Serial No. 7 above the respondent No. 7 who was placed at Serial No. 10. The respondent No. 7 never objected to this draft gradation list though he was given 30 days' time to submit his objection. Again, another draft gradation list dated 17-7-2008 was circulated placing the petitioner in Serial No. 7 above the respondent No. 7 who was placed at Serial No. 10. Another provisional gradation list for Senior Financial Adviser/Joint Director of the Assam Finance Service was again published on 19-10-2012 wherein the name of the petitioner found a place at Serial No. 4 whereas the name of the respondent No. 7 was placed at Serial No. 5. Thus, from 1996 to 2012, the petitioner was admittedly always way ahead of the respondent No. 7 in so far as seniority is concerned. According to the petitioner, the provisional gradation list dated 19-10-2012, in the absence of objection from any quarter including the respondent No. 7, was deemed to have been final. 3. The grievance of the petitioner is that the final gradation list dated 19-10-2012 was altered in the impugned gradation list dated 15-5-2013 by placing the name of the respondent No. 7 at Serial No. 2 above the petitioner, who has been placed at Serial No. 3 without preparing any draft/provisional gradation list and without inviting objection from interested persons including him. The impugned gradation list has resulted in making the petitioner junior to the respondent No. 7. It is contended by the petitioner that generally a provisional gradation list can be made final only if no objection is received from any officers named in the provisional gradation list. The impugned gradation list, according to the petitioner, is a complete departure from his seniority position over the respondent No. 7 hitherto maintained by the respondent authorities ever since 1987, and cannot be said to be a gradation list prepared in accordance with the provisions of the Rules. Aggrieved by this, the petitioner promptly filed the representation dated 16-5-2013 and another representation to the respondent No. 1 for restoring his seniority position as reflected in the provisional gradation list dated 19-10-2012. His representation was, however, rejected by the respondent No. 1 which prompted him to file this writ petition for restoring his seniority vis-a-vis the respondent No. 7. 4. The writ petition is opposed by the State-respondents, who filed their affidavit-in-opposition through the Officer-in-Special Duty in the Finance Department. His representation was, however, rejected by the respondent No. 1 which prompted him to file this writ petition for restoring his seniority vis-a-vis the respondent No. 7. 4. The writ petition is opposed by the State-respondents, who filed their affidavit-in-opposition through the Officer-in-Special Duty in the Finance Department. The case of the answering respondent is that when the provisional gradation list in respect of Senior Finance Adviser and Joint Director was published on 19-10-2012, objection was received from the respondent No. 7 requesting the respondent authorities to restore his seniority along with his junior, namely, one Shri Bidyut Deka Raja. The answering respondent admits that the petitioner was senior to the respondent No. 7 till 2006, but claims that in the month of June, 1997, a group of seventeen Finance & Accounts Officers/Treasury Officers -were promoted to the post of Senior Finance and Accounts Officer in terms of the notification dated 23-6-1997. Three officers, namely, (i) Bidut Dekaraja, (ii) Wilson Daimari and (iii) Nimal Das, who were junior to the respondent No. 7, were among those promotees. The case of the respondent No. 7 could not be considered at that time since a departmental proceeding was pending against him, and sealed-cover procedure had to be adopted in his case. 5. The departmental enquiry ended in imposing a minor penalty of "Censure" upon the respondent No. 7. As three of his juniors had already been granted promotion, the respondent No. 7 was also granted promotional benefit by restoring his seniority with effect from 23-6-1997. Hence, promotional benefit was given to the respondent No. 7 with effect from 13-6-1997 i.e. two years before the promotion of the petitioner with the result that his seniority position in the final gradation list of Senior Finance and Accounts Officer was shown above the petitioner. This was done in accordance with the Office memorandum dated 12-3-2002 on fixation of seniority of reserved candidates issued by the Government of Assam in the Department of Personnel: Personnel (B). The final gradation list was accordingly rectified by the impugned gradation list. These are the sum and substance of the case of the State-respondents. 6. At this stage, it may be noticed that by the notification dated 23-7-2013, the respondent No. 7 was already promoted to the post of Director of Pension, Assam, which was, however, made subject to the outcome of this writ petition. After hearing Mr. These are the sum and substance of the case of the State-respondents. 6. At this stage, it may be noticed that by the notification dated 23-7-2013, the respondent No. 7 was already promoted to the post of Director of Pension, Assam, which was, however, made subject to the outcome of this writ petition. After hearing Mr. HRA Choudhury, the learned senior counsel for the petitioner and Mr. B. Gogoi, the learned standing counsel for Finance Department, I have no hesitation to hold that the impugned gradation list cannot be sustained in law inasmuch as no opportunity was given to the petitioner to raise objection against the proposal to place the seniority position of the respondent No. 7 to the detriment of the petitioner: principles of natural justice have been violated. Secondly, the very basis for fixing the seniority position of the respondent No. 7 over the petitioner is indefensible. As already noticed, the respondent No. 7 could not be promoted along with his junior due to the pendency of the departmental enquiry conducted against him. The respondent authority had to resort to sealed-cover procedure. The departmental enquiry, however, ended in imposing a minor penalty of CENSURE upon him. What is the effect of awarding a minor penalty of CENSURE upon the right to promotion of the petitioner when sealed-cover procedure is resorted to? The law is enunciated by the Apex Court in State of M.P. v. LA. Qureshi, (1998) 9 SCC 261 : This is what it said: "We are unable to accept the said contention of Shri Khanduja. "Censure" cannot be equated with a warning' since under Rule 10 of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966, "censure" is one of the minor penalties that can be imposed on a government servant. It cannot, therefore, be said that the penalty of censure which was imposed on the respondent in the departmental proceedings was not a penalty as contemplated in the circular dated 2-5-1990. Once it is held that a 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 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 on prospective basis from a date after conclusion of the departmental proceedings." 7. Rule 7 of the Assam Services (Discipline and Appeal) Rules, 1964 classifies the penalties which can be imposed upon a government servant. One of them is the penalty of "CENSURE". Thus, there can be no two opinions that censure is a penalty/punishment. In this view of the matter, the contention of the learned senior counsel for the petitioner that promotional benefit given to the respondent No. 7 by fixing his seniority with effect from 23-6-1997 is illegal, has force. In any case, since the departmental enquiry did not end with exonerating him from the charges but did end up in the imposition of a minor penalty of censure upon him, the sealed-cover containing the recommendations of the DPC could not have been opened and given effect to for promoting him to the next higher post. In other words, the respondent No. 7 could only be considered for promotion on prospective basis from a date after the conclusion of the departmental proceedings. When confronted with this, Mr. B. Gogoi, the learned standing counsel for the Finance Department, submits that quashing the impugned gradation list or of quashing the promotion of the respondent No. 7 at this stage followed by directing the respondent authorities to promote the petitioner, in view of his imminent retirement, will not be in the interest of the petitioner either: more litigations will rather crop up. He, therefore, suggests that without disturbing the impugned gradation list or the promotion of the respondent No. 7, this writ petition may be disposed by directing the respondents to convene a DPC within seven days from today or so to consider the case of the petitioner along with other eligible officers coming within the zone of consideration, if any, for promotion to the post of Director of Budget or any vacant equivalent post. The submission of the learned standing counsel appears to be pragmatic and reasonable. For the reasons stated in the forgoing, this writ petition is disposed of with the following directions: "(a) The respondent No. 1 is directed to convene a DPC within seven days from today for considering the case of the petitioner for promotion to the post of Director of Budget or any equivalent vacant post with effect from the date of vacancy. (b) While considering the case of the petitioner, the DPC shall also consider the case of other eligible candidates, if any, who, however, come within the zone of consideration on the date of occurrence of the vacancy. (c) If the petitioner is found to be fit for the promotion, he shall be given the promotion with consequential benefits except monetary benefits on or before 20-6-2014 so as to enable him to enjoy the benefits of the promotional post before his retirement. (d) The promotion of the respondent No. 7 and the impugned gradation list need not be interfered with even though the same are found to be not in order." A copy of this judgment shall be furnished to the learned standing counsel for Finance Department for communication to the respondent No. 1 forthwith. No costs.