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Himachal Pradesh High Court · body

2022 DIGILAW 831 (HP)

Sohan Lal Verma v. State of H. P.

2022-12-16

JYOTSNA REWAL DUA

body2022
JUDGMENT : JYOTSNA REWAL DUA, J. CMP (T) No. 1107 of 2022 1. In view of the averments made in the application, the same is allowed and disposed of. CWPOA No. 5506 of 2019 With the consent of learned counsel for the parties, the matter is taken up for decision. 2. Petitioner’s prayer is that the respondents be directed to consider his candidature for promotion to the post of Superintendent Grade-II. 3. The case of the petitioner is that: (i) The petitioner was appointed as Clerk on 24.02.1987. He was promoted to the post of Junior Auditor/Senior Assistant on 02.03.2009. Further promotion from the post of Senior Assistant is to the post of Superintendent Grade-II. (ii) In terms of Clause 11 of the Recruitment & Promotion Rules (in short ‘R&P Rules’) for the post of Superintendent Grade-II, notified on 14.09.2011, the petitioner acquired eligibility for promotion to the post of Superintendent Grade-II on 02.03.2015. Despite the availability of vacancy of Superintendent Grade-II, the respondent-Department did not make promotions of eligible Senior Assistants to the post of Superintendent Grade-II. Petitioner’s representations to the respondents seeking his promotion did not yield any positive response, hence, he preferred the instant petition, initially registered as O.A. No. 2413 of 2015 before the erstwhile H.P. Administrative Tribunal, praying for the following substantive reliefs: “(a) That the respondent may kindly be directed to consider the candidature of the applicant to be promoted to the post of Superintendent Grade-II. (b) That the respondents may kindly be directed to complete the proceedings for the Departmental Promotion Committee for promotions to the post of Superintendent Grade-II.” 4. The respondents in their reply have not disputed the factual position. Their stand is that initially the meeting of Departmental Promotion Committee (DPC) could not be convened due to non-finalization of seniority list of Senior Assistants. The same was finalized on 15.07.2015, showing the position as on 31.12.2014. It was only thereafter that the meeting of DPC for promotion to the post of Superintendent Grade-II was convened on 10.08.2015 as per the applicable R&P Rules. In the said DPC meeting, name of the petitioner was considered, however, the recommendations of the DPC in that regard were kept in a sealed cover as a charge-sheet dated 09.06.2015 had been issued to the petitioner under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 [in short ‘CCS (CCA) Rules, 1965’]. In the said DPC meeting, name of the petitioner was considered, however, the recommendations of the DPC in that regard were kept in a sealed cover as a charge-sheet dated 09.06.2015 had been issued to the petitioner under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 [in short ‘CCS (CCA) Rules, 1965’]. The departmental inquiry was pending against the petitioner, hence, sealed cover procedure was adopted by the DPC. 5. It is not in dispute that the departmental inquiry against the petitioner has since long been concluded. The disciplinary authority imposed the penalty of stoppage of two increments without cumulative effect upon the petitioner on 13.08.2015. During hearing of the case, learned counsel for the petitioner placed on record a copy of the order passed by the Appellate Authority on 02.03.2016, whereby the penalty of withholding two increments without cumulative effect was reduced to withholding of future increment of pay without cumulative effect for a period of one year with further order that the penalty was to come into effect from the date of order of the Disciplinary Authority, i.e. 13.08.2015. Learned counsel for the petitioner also submitted that the order passed by the Appellate Authority has also been assailed by the petitioner by filing CWPOA No. 7064 of 2019. 6. Be that as it may. The fact remains that the Memorandum of Charge-sheet issued against the petitioner has culminated in passing of office order dated 13.08.2015 by the Disciplinary Authority, as modified by the Appellate Authority on 02.03.2016, whereby penalty of withholding of future increment of pay without cumulative effect for a period of one year has been imposed upon the petitioner. Learned counsel for the petitioner has submitted that imposition of minor penalty does not constitute a bar to the eligibility and consideration of the employee for further promotion. In support of such submissions, reliance has been placed upon Chapter 16.13 of the Handbook on Personnel Matters, Vol. I (Second Edition), issued by the Government of Himachal Pradesh, Department of Personnel, which reads as under: “16.13 Minor penalties do not constitute a bar to eligibility and consideration for promotion. The imposition of minor penalty of censure does not by itself stand against the consideration of such person for promotion. I (Second Edition), issued by the Government of Himachal Pradesh, Department of Personnel, which reads as under: “16.13 Minor penalties do not constitute a bar to eligibility and consideration for promotion. The imposition of minor penalty of censure does not by itself stand against the consideration of such person for promotion. So far as the eligibility of such a person to appear at a departmental/promotional examination is concerned, he cannot merely because of the penalty of censure, be debarred from appearing at such an examination. In case, however, the rules of such an examination lay down that only those eligible persons can be allowed to appear at the examination who are considered to be fit for the purpose, the fitness of an eligible candidate who has been awarded the penalty of Censure, to appear at the examination has to be considered on the basis of an over-all assessment, of his service record and not merely on the basis of penalty of censure. In cases where the responsibility of an officer for any loss is indirect, or where increments of an officer have been stopped as a measure of penalty, while it is not possible to lay down any hard and fast rules in this regard, it is for the competent authority to take a decision in each case having regard to its facts and circumstances. Recovery from the pay of a Government servant, of the whole or part of any pecuniary loss caused to Government, by negligence or breach of orders, or withholding of increments of pay, are also minor penalties laid down in Rule 11 of the C.C.S. (C.C.A.) Rules. As in the case of promotion of a Government servant who has been awarded the penalty of censure, the penalty of recovery from his pay of the loss caused by him to Govt. or of withholding his increments does not stand in the way of his consideration for promotion though in the latter case promotion is not given effect to during the currency of the penalty. While, therefore, the fact, of the imposition of such a penalty does not by itself debar the Govt. or of withholding his increments does not stand in the way of his consideration for promotion though in the latter case promotion is not given effect to during the currency of the penalty. While, therefore, the fact, of the imposition of such a penalty does not by itself debar the Govt. servant concerned from being considered for promotion, it is also taken into account by the Departmental Promotion Committee, or the competent authority, as the case may be, in the overall assessment of his service record for judging his suitability or otherwise for promotion or his fitness for admission to a departmental/promotional examination (where fitness of the candidates is a condition precedent to such admission).” 7. Rule 11 of the CCS (CCA) Rules, 1965 provides for major and minor penalties. Withholding of increments of pay is a minor penalty in terms of Rule 11(iv). The respondents have not controverted this position. 8. In this view of the matter, now there is no embargo upon the respondents from proceeding ahead to open the recommendations of the DPC dated 10.08.2015, which till date, have been kept in a sealed cover. Accordingly, the respondents are directed to open the recommendations of the DPC kept in the sealed cover in terms of its proceedings held on 10.08.2015 and to take appropriate decision on further promotion of the petitioner in accordance with law within a period of six weeks from today. 9. The writ petition stands disposed of in the above terms, so also the pending miscellaneous applications, if any.