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2018 DIGILAW 49 (KER)

State of Kerala v. Jupudi Prasad IFS

2018-01-15

DEVAN RAMACHANDRAN, P.R.RAMACHANDRA MENON

body2018
JUDGMENT : Devan Ramachandran, J. 1. “Sealed Cover Proceeding” in service jurisprudence is now an accepted procedure whereby, in the circumstances when an employee's conduct is a matter in investigation or inquiry and thus being under a cloud, the suitability of such persons for promotion is still assessed by the competent Departmental Promotion Committee (DPC) along with other eligible candidates, without taking into account the subject of inquiry or the allegations pending in investigation against him, but the recommendations of the DPC then being placed in sealed cover, to be opened only after the conclusion of the inquiry or investigative proceedings; and if he is exonerated of all charges made against him, to be granted promotion, if otherwise found eligible by the Committee, with effect from the date on which his immediate juniors was promoted. 2. The object of this method is that since the inquiry or investigation proceedings against an employee may consume time to conclude, at the end of which he may be found not at fault or guilt, his interests will require to be safeguarded in the matter of promotion, which was denied to him solely on account of the proceedings pending against him. 3. Called in issue in this original petition is not the sealed cover proceedings per se, but whether an officer, who stands exonerated of all charges and whose promotional recommendation was made favourably by the DPC earlier, would be entitled to seek promotion retrospectively from the date on which the vacancy arose. This question presents because of the position adopted by the competent authorities which appear to be that an officer can claim no such retrospective promotion, even if there had been a vacancy at the time when the DPC had considered his suitability, unless a junior of his had been so promoted. 4. This stand of the authorities was challenged by the first respondent herein, in whose case the sealed cover method was adopted by the DPC, before the Central Administrative Tribunal, which found favour with him and issued the order impugned in this original petition. 5. 4. This stand of the authorities was challenged by the first respondent herein, in whose case the sealed cover method was adopted by the DPC, before the Central Administrative Tribunal, which found favour with him and issued the order impugned in this original petition. 5. The petitioners herein, who are the State of Kerala and two Principal Secretaries to Government, question the order of the Central Administrative Tribunal in O.A.No. 483/2008 dated 17.09.2009, whereby the learned Tribunal has directed that the first respondent herein, who was the applicant, be afforded retrospective promotion to the cadre of Chief Conservator of Forests with effect from 08.05.20016. 6. A conspectus of the facts involved would show that the first respondent entered service in the year 1983 and that he was working as Conservator of Forests ever since 1996. While so functioning, he was served with Annexure A1 charge sheet in June 1999, wherein certain allegations were made that he had permitted illegal acts of encroachment into the forest area. We do not propose to say anything in detail regarding this because these charges are yet to be proved against the first respondent. Suffice to say that after such charge memo was given, it appears that an enquiry was initiated against him, which led to a report by the Enquiry Officer dated 01.12.2005. 7. The first respondent has a specific case that a copy of this enquiry report was never given to him but while so proceedings for promotion to the cadre of Chief Conservator of Forests were initiated by the competent authorities. The pleadings would show that as early as in 2006, the Departmental Promotion Committee (DPC) met and started deliberations, but since the first respondent was involved in an enquiry proceeding, they adopted the sealed cover method with respect to him, as is mandated by the relevant guidelines. A copy of the guidelines relating to the promotion under the Indian Forest Service, which also contains the procedure for adopting the 'Sealed Cover Method', has been placed on record as Annexure A2 along with the original application. 8. As per Annexure A2 guidelines applicable to the case of officers, against whom disciplinary/court proceedings are pending, it is prescribed that the Screening Committee shall assess the suitability of such officers along with other eligible candidates, without taking into consideration the disciplinary/criminal proceedings, which is pending. 8. As per Annexure A2 guidelines applicable to the case of officers, against whom disciplinary/court proceedings are pending, it is prescribed that the Screening Committee shall assess the suitability of such officers along with other eligible candidates, without taking into consideration the disciplinary/criminal proceedings, which is pending. It is further provided that the assessment of the Committee and the grading awarded by it will be kept in a sealed cover and that such procedure will be adopted by subsequent Screening Committees till the disciplinary/criminal proceedings against the officer is concluded. Annexure A2 guidelines, thereafter, prescribe the procedure when an officer is exonerated of such charges. This is available in clause 18.1 thereof, which reads as under: “If the proceedings of the Committee for promotion contain findings in a sealed cover, on conclusion of the disciplinary case/criminal prosecution, the sealed cover or covers shall be opened. In case the officer is completely exonerated, the due date of his promotion will be determined with reference to the findings of the Screening Committee kept in sealed cover/covers and with reference to the date of promotion of his next junior on the basis of such findings. The officer shall be promoted even if it requires to revert the junior-most officiating persons. Such promotion would be with reference to the date of promotion of his junior and in these cases, the officer will be paid arrears of salary and allowances.” 9. The first respondent, since disciplinary proceedings were pending against him at the relevant time, was not promoted on the recommendations of the DPC and Annexure A3 promotion order dated 06.04.2006 was issued with respect to his immediate seniors. It must be restated here that admittedly none of his juniors were promoted as per this order, but that it takes into its fold only his conceded seniors. We also notice from Annexure A3 that these senior officers were accommodated, for the purpose of their promotion, against newly created ex-cadre posts of Chief Conservator of Forests (Wildlife) and Chief Conservator of Forests (Working Plan & Research). 10. As we have already indicated above, the petitioner alleges that he was never given a copy of the enquiry report against him. He, therefore, kept asking for the same, but to no avail. 10. As we have already indicated above, the petitioner alleges that he was never given a copy of the enquiry report against him. He, therefore, kept asking for the same, but to no avail. The pleadings show that he, thereafter, applied under the Right to Information Act for a copy of the same and when that was also rejected, he approached the State Information Commission, Kerala with a statutory appeal. While such appeal was pending, it transpires that Annexure A4 order dated 01.02.2007 was issued exonerating him of all charges. Interestingly, immediately thereafter, Annexure A6 order was issued by the State Information Commission, allowing the appeal and asking the authorities to offer the first respondent all the relevant documents, pursuant to which Annexure A7 file notings and proceedings were given to him. 11. As soon as the first respondent received all these documents, he approached the authorities with a request that his sealed cover be opened and his promotions be ordered, especially on the strength of Annexure A4 order absolving him of the charges levelled against him. He claimed that he should be promoted with effected from 06.04.2006, the date on which Annexure A3 order was issued promoting his seniors. The first respondent says that for certain reasons, which he accuses to be on account of the animosity and prejudice against him harboured by the competent authorities, Annexure A8 order was, in the meanwhile, issued transferring and posting several Conservators of Forests, who were juniors to him, while denying him any posting. He says that he was thus left without any posting from the date of Annexure A8, until the date on which the original application was filed, which he did claiming promotion to the post of Chief Conservator Forests with effect from 06.04.2006, being the date of Annexure A3 order and for disbursement of his eligible salary from the date of Annexure A8. 12. We have heard Sri. P.N. Santhosh, the learned Senior Government Pleader appearing on behalf of the petitioners, Sri. Elvin Peter P.J., the learned counsel appearing for the first respondent and the learned Assistant Solicitor General for the second respondent. 13. 12. We have heard Sri. P.N. Santhosh, the learned Senior Government Pleader appearing on behalf of the petitioners, Sri. Elvin Peter P.J., the learned counsel appearing for the first respondent and the learned Assistant Solicitor General for the second respondent. 13. While hearing of this matter was proceeding before us, the learned Government Pleader submitted that the issue regarding payment of salary raised by the first respondent from the date of Annexure A8 is no longer relevant since such payment was made pending the lis before the Tribunal. He also pointed out that as per Annexure R1 order dated 30.08.2008, the respondent has already been promoted as the Chief Conservator of Forests with effect from that day. He submits vehemently that the first respondent was treated equitably and that he was promoted with effect from the date of Annexure R1 order, taking into account all the relevant factors, including the fact that vacancies arose only after that date. He also refers to G.O.(Rt)No.653/2009/GAD dated 23.01.2009 (which also has been marked as Annexure R1, albeit along the additional reply statement dated 09.09.2009), to show that ex-cadre posts of Conservator of Forests (Wildlife), Wayanad was created for the purpose of regularising the period of compulsory waiting for various officers, including the first respondent and that such posts were declared to be equivalent to the post of Chief Conservator of Forests, under the mandate of Rule 9 of the Indian Forest Service (Pay) Rules, 1968. The crux of the submissions of the learned Government Pleader is that when a vacancy arose, the first respondent was immediately promoted, for which purpose the order dated 23.01.2009 was issued to regularise the compulsory waiting period from 05.12.2007 to 31.08.2008. The relevance of this date appears to be that the first respondent was promoted with effect from 30.08.2008. 14. The learned counsel for the first respondent opposes the submissions of the learned Government Pleader on various layers. According to him, since Annexure A3 order was issued on 06.04.2006, whereby the seniors were promoted and since vacancies were then available in the cadre of Chief Conservator of Forests, the mandate of Annexure A2 guidelines would enjoin that his client be promoted from that date. According to him, since Annexure A3 order was issued on 06.04.2006, whereby the seniors were promoted and since vacancies were then available in the cadre of Chief Conservator of Forests, the mandate of Annexure A2 guidelines would enjoin that his client be promoted from that date. He relies specifically on the afore extracted clause in Annexure A2 and submits that on conclusion of disciplinary proceedings against an officer, if it is found that he is completely exonerated, then the due date of his promotion will have to be determined with the reference to the findings of the Screening Committee, which was kept in a sealed cover and with reference to the date of promotion of his next junior on the basis of such findings. 15. The learned counsel says that the purpose and intend of the provisions being made so is because, in normal circumstances when an officer is found involved in a disciplinary proceedings, it is possible that he may be superseded by a junior and that such junior will be accommodated to the post to which he ought to have been promoted, had it not been for the disciplinary proceedings against him and that when he is exonerated consequent to enquiry, that he be restituted to his rightful place over his junior. 16. In the present case, there is a pertinent factual circumstance that begs attention. This is that no junior of the respondent was promoted ahead of him but only his seniors were promoted under Annexure A3 order. It appears that the authorities have taken this to mean, under the ambit of clause 18.1 of Annexure A2, that it is only if a junior had been promoted on 06.04.2006 that the first respondent can stake claim to be promoted, since the said clause specifically provides that the date of promotion of such exonerated officer will only be with reference to the date of promotion of his next junior. The learned counsel for the respondent contends that such an interpretation of clause 18.1 in Annexure A2 is completely misdirected. According to him, it does not matter whether a junior was promoted or otherwise because the command of the provision is that an officer should be promoted with effect from the date on which he would have been promoted, had not it been for the disciplinary proceedings pending against him. According to him, it does not matter whether a junior was promoted or otherwise because the command of the provision is that an officer should be promoted with effect from the date on which he would have been promoted, had not it been for the disciplinary proceedings pending against him. We notice that the learned Tribunal has also accepted this proposition of law. 17. It is indubitable from clause 18.1 of Annexure A2 that but for the disciplinary proceedings the officer concerned ought to have been promoted from the date on which the vacancy arose. There can be no quarrel on this. The qualification in clause 18.1 that the officer will be entitled to promotion, at least from the date on which his junior was promoted, is only an added protection that has been braided into the Scheme to ensure that notwithstanding the occurrence or availability of vacancy, if a junior had been promoted on a particular day, then the senior would be entitled to be promoted with effect from that day. This is not to say that even though there had been a vacancy at the time when the original DPC met and recommended the names of his seniors, the officer cannot be accommodated against such vacancy merely because none of his juniors had been promoted at that point of time. This interpretation to clause 18.1 adopted by the petitioners appear to be completely misconceived and without any rational basis. To that extent, we are certain that the submissions of the learned counsel for the first respondent are worthy of merit. 18. That being said, however, the question is whether, as on 06.04.2006 there was any vacancy against which the first respondent could have been accommodated. The pleadings on record, apart from the allegations made by the first respondent, would not indicate to such a possibility. The materials available before us do not show anywhere that there was a vacancy as on 06.04.2006 and pertinently, even as per Annexure A3, the first respondent's seniors were accommodated against newly created ex-cadre posts, which would substantially demonstrate that there were no vacancies as on that date to accommodate the first respondent. However, this does not mean that the learned Tribunal had erred in directing the first respondent's promotion retrospectively with effect from 08.05.2006. However, this does not mean that the learned Tribunal had erred in directing the first respondent's promotion retrospectively with effect from 08.05.2006. We notice that the learned Tribunal was persuaded to do so on account of certain information which was placed before it by the first respondent through the re-joinder filed by him producing Annexure A17 on record to show that three senior officers had been promoted with effect from 08.05.2006 to the post of Additional Principal Chief Conservator of Forests, thereby axiomatically leading to an inference that the posts of Chief Conservator of Forests fell vacant with effect from that date. In fact, these allegations of the first respondent have been conceded to by the petitioners by filing an additional reply statement dated 09.09.2009, wherein in paragraph 5 they have stated as under: “With reference to the above rule, it is submitted that none of his junior was promoted to Chief Conservator of Forests Grade as on date of his promotion. It is also submitted that there was no vacancy in the cadre to consider his claim for promotion to Chief Conservator of Forests Grade with effect from 06.04.2006. Vide G.O. (Rt)No.3168/2006/GAD dated 08.05.2006, an ex-cadre post's of Additional Principal Chief Conservator of Forests (Planning) & Additional Principal Chief Conservator of Forests (Social Forestry) were created to promote 1977 batch of IFS Officers namely Sri. V.K. Sinha, IFS and K.K. Srivastava, IFS to Additional Principal Chief Conservator of Forests Grade. The post of Chief Conservator of Forests (Social Forestry) & Chief Conservator of Forests (Planning) was vacant from 08.05.2006 to 11.04.2008 (ie., the date on which Sri. G. Harikumar was posted as Chief Conservator of Forests (Planning).” It, therefore, becomes irrefragable that even as per the petitioners, there was a vacancy in the post of Chief Conservator of Forests with effect from 08.05.2006, which remained unfilled until 11.04.2008, on which date a certain Sri. G. Harikumar was posted as Chief Conservator of Forests (Planning). Even going by the averments in the additional reply statement, one of the posts, namely Chief Conservator of Forests (Social Forestry), had not been filled even as on 11.04.2008. G. Harikumar was posted as Chief Conservator of Forests (Planning). Even going by the averments in the additional reply statement, one of the posts, namely Chief Conservator of Forests (Social Forestry), had not been filled even as on 11.04.2008. These facts were specifically noticed by the learned Tribunal and after an assessment of clause 18.1 of Annexure A2 guidelines, it entered into a conclusion, which in our view, was justifiable, that at least from the date on which that vacancy arose, namely with effect from 08.05.2006, the first respondent was entitled to be promoted as Chief Conservator of Forests. We cannot find anything wrong in these conclusions and we see that the learned Tribunal has entered into these holdings justifiably and for good reason. 19. The learned Tribunal, we additionally notice, has also considered as to how the period from 11.04.2008 until 30.08.2008, being the date on which the first respondent was actually promoted, should be regularised and directions have been given to modify the aforementioned Government Order dated 23.01.2009 suitably so as to regularise the period of compulsory waiting taking into account this period also. We find these directions as being completely reasonable and to be supported by a rationale basis. We find nothing at fault in the manner in which the learned Tribunal has considered these issues and we are, therefore, of the view that this original petition cannot succeed. In the compendium of the above, we dismiss this original petition confirming the orders of the learned Tribunal in the original application, which is impugned herein, but in the particular facts and circumstances, we deem it appropriate not to make any order as to costs and leave the parties to suffer their respective costs.