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2018 DIGILAW 692 (CAL)

Supriya Mondal v. State of West Bengal

2018-09-18

DEBASISH KAR GUPTA, SHAMPA SARKAR

body2018
JUDGMENT : 1. Let affidavit of service be kept on record. 2. This writ application is directed against a final order dated August 16, 2018 passed by the West Bengal Administrative Tribunal in the original application. The subject matter of challenge in the original application was non-consideration of the case of the petitioner for promotion to the post of Divisional Fire Officer in terms of Memorandum No.224-P&AR(Vig) dated June 12, 1980 (hereinafter referred to as the said memorandum). According to the respondent authority, the cause of such non-consideration of the case of the petitioner for promotion was pendency of a disciplinary proceeding against him. The operative portion of the final order, which is impugned to this writ application, is quoted below: "In view of our above findings, the respondent no.2, Director General of Fire and Emergency Services, Government of West Bengal is directed to take necessary steps for consideration of promotion to the applicant along with other Station Officers within a period of eight weeks from the date of communication of the order and the recommendation of promotion of the applicant, if any, by the Public Service Commission, West Bengal will be kept in the sealed cover and the same will abide by the result of the disciplinary proceeding pending against the applicant. With the above direction, the original application is disposed of." 3. It is submitted by Mr. D.N. Ray, learned Advocate appearing for the petitioner, that the disciplinary proceeding in question has been initiated against the petitioner by virtue of a charge sheet dated May 23, 2014. The disciplinary proceeding is still pending. Drawing our attention towards the said memorandum, it is submitted by him that the said memorandum takes care of the promotion of those in-service candidates to higher posts against whom a disciplinary proceeding has been pending for more than three years provided the delay in disposal of the disciplinary proceeding is due to any dilatory tactics employed by the Government servant concerned or due to proceeding in a Court of law started at the instance of the officer concerned. According to Mr. Ray, the said memorandum prescribes a procedure for passing an order of promotion in the aforesaid cases "on provisional basis". It is the contention of Mr. Ray that the method of "sealed cover policy" for the candidates against whom the disciplinary proceeding is pending has not been prescribed in the said memorandum. According to Mr. Ray, the said memorandum prescribes a procedure for passing an order of promotion in the aforesaid cases "on provisional basis". It is the contention of Mr. Ray that the method of "sealed cover policy" for the candidates against whom the disciplinary proceeding is pending has not been prescribed in the said memorandum. But the learned Tribunal while accepted the contention of the petitioner, directed the respondent authority, namely, respondent No.2 to take necessary steps for consideration of promotion of the petitioner along with other Station Officers and to keep the result in a sealed cover which should abide by the result of the disciplinary proceeding pending against him. 4. Mr. Swapan Kumar Datta, learned Senior Advocate appearing for the respondents, in his usual fairness, submits that there is no doubt with regard to applicability of the said memorandum in the instant case. It is also submitted by him, on instruction, that considering the number of vacancies which is presently available for consideration of the case of the petitioner, amongst other eligible candidates, he has not yet come within the zone of consideration according to his position in the gradation list. However, it is also submitted by Mr. Datta that a few more vacancies to the higher post will be available. 5. We have heard the learned Counsel appearing for the respective parties at length and we have considered the facts and circumstances of this case carefully. 6. Since a point of law is required to be decided, this writ application is taken up for final hearing dispensing with the formalities of exchanging affidavits with the consent of the parties. 7. Admittedly, a disciplinary proceeding has been pending against the petitioner, who is working for gain in the post of Station Officer under the respondent authority, for more than three years. No material is brought on record to show that cause of pendency of the disciplinary proceeding beyond the period of three years is due to any dilatory tactics employed by the petitioner or due to any proceeding in a Court of law started at the instance of the petitioner. Therefore, he is covered by the provisions of paragraph 2(ii) of the said memorandum, which is quoted below: "2. After careful consideration of the matter, it has been decided by Government that – (i) ...... ...... ...... Therefore, he is covered by the provisions of paragraph 2(ii) of the said memorandum, which is quoted below: "2. After careful consideration of the matter, it has been decided by Government that – (i) ...... ...... ...... (ii) The confirmation/promotion/efficiency bar crossing/Selection Grade appointment of a Government servant or recruitment of in-service candidates to higher posts should not be held up in cases, where disciplinary proceedings have been started, have continued for more than three years, unless the delay in the disposal of the disciplinary proceedings is due to any dilatory tactics employed by the Government servant concerned or due to proceedings in a Court of Law started at the instance of the officer concerned. However, when confirmation/promotion/efficiency bar crossing/ Selection Grade appointments or recruitment of in-service candidates to higher posts is allowed to any one against whom disciplinary proceedings are pending, it should be ordered to be "on provisional basis"." 8. So far as the order impugned to this writ application is concerned, we find that the learned Tribunal accepted the submissions made on behalf of the petitioner with regard to the applicability of the provisions of the said memorandum in case of consideration of the case of the petitioner for promotion to the higher post, i.e. the post of Divisional Fire Officer but while directing the respondent authority, namely, the respondent No.2, the learned Tribunal directed to adhere to the sealed cover policy. We are afraid, the sealed cover policy has not been mentioned in the said memorandum. Therefore, the above policy has no manner of application in the instant case. 9. In view of the above, the order impugned to this writ application requires our interference and the same is modified directing the respondent No.2, namely the Director General of Fire & Emergency Services, Government of West Bengal to take necessary steps for consideration of the case of the petitioner for promotion to the post of Divisional Fire Officer on provisional basis, amongst other eligible officers, as and when he will come within the zone of consideration for such promotion taking into account his position in the gradation list and to extend benefit of promotion to the aforesaid higher post in his favour in the event he is selected for such promotion in accordance with law subject to the result of the disciplinary proceeding pending against him, if the same is pending at that point of time. 10. This writ application stands disposed of. 11. There will be, however, no order as to costs. 12. Urgent photostat certified copy of this order be given to the parties on priority basis.