Jitendra Kumar Sagar vs Union of India

Challenge in this writ petition under Article 227 of the Constitution of India is made to an order Annexure P-8 dated 18-09-2012 by which claim made by the petitioner for grant of promotion retrospectively at par with respondent No. 2 has been rejected. Records indicate that the petitioner was working as Deputy Labour Commissioner (Central) in the department of respondent No. 1 and he was involved in a vigilance case, which ultimately led to his prosecution for certain offence punishable under the Prevention of Corruption Act at the instance of the competent authority before the Special Court Pune. The Special Court, Pune vide judgment dated 19-03-2008 acquitted the petitioner of all the charges levelled against him. The prosecution filed an appeal against this acquittal before the High Court of Judicature at Bombay and on 14-01-2009 the acquittal was maintained and the appeal filed by the prosecution was dismissed. In the meanwhile, it is seen that for filling of certain vacancies in Grade-III posts a DPC was held on 12-10-2007 and based on the recommendation made by the DPC, respondent No. 2, who is said to be junior to the petitioner was promoted. After his acquittal in the year 2009, the petitioner represented to the department seeking promotion to the Grade-III post at par with respondent No. 2, who was promoted while the petitioner was facing prosecution and when this representation was rejected the petitioner approached the Central Administrative Tribunal by filing application u/s 19 of the Administrative Tribunal Act and the application having been rejected by the impugned order, this writ petition is filed.

Shri Saurabh Tiwari, appearing for the petitioner points out that when the petitioner was facing criminal case, the DPC met on 12-10-2007, the recommendation of the DPC was kept in a sealed cover. After his acquittal, the sealed cover was opened and on the ground that the departmental promotion committee has found the petitioner "unfit" for promotion he was not granted promotion at par with respondent No. 2. His case was thereafter considered and in a vacancy that arose in the subsequent year 2007-08, he has been promoted. Shri Saurabh Tiwari, learned counsel for the petitioner points out that the DPC which met on 12-10-2007, the proceedings with regard to the petitioner were kept in a sealed cover and the DPC had declared the petitioner unfit for promotion only because the vigilance case was pending against him. It is pointed out that due to this vigilance case, the integrity of the petitioner was indicated to be doubtful and because of this adverse entry, the petitioner was denied promotion. However, after his acquittal, the representation of the petitioner was considered and the adverse entry was expunged but inspite of expunction, no review DPC has been held and his case at par with respondent No. 2 has not been considered, accordingly Shri Tiwari submits that the action of the respondent is unsustainable.

Shri O.P. Namdeo, learned counsel appearing for respondent No. 1 has tried to justify the action of the department and submitted that the petitioner having been promoted in the year 2008 cannot have any grievance in the matter. As the action is taken based on the recommendation made by the DPC which met on 12-10-2007.

We are unable to accept the contention of Shri O.P. Namdeo and we find that the Central Administrative Tribunal has failed in dealing with the matter as per law. Admittedly when the DPC met for considering the case of eligible employees who were fit for promotion in the year 2007, the petitioner was entitled for consideration, as he was senior to respondent No. 2.

From the pleadings and documents available on record, it is clear that the DPC which met on 12-10-2007 made certain recommendation but as the petitioner was facing prosecution in a case under the Prevention of Corruption Act, the recommendation was kept in a sealed cover. After acquittal of the petitioner finally on 14-01-2009, the sealed cover was opened and recommendation indicates that the DPC found the petitioner unfit for promotion because his integrity was declared as doubtful due to the involvement in a vigilance case. It is an admitted position that the petitioner had received this adverse entry for the year 2002-03 and after his acquittal in the criminal case, on representation being made by the petitioner, this adverse entry for the year 2002-03 was expunged by order passed on 07-09-2009. If the adverse entry which was considered by the DPC on 12-10-2007 and which resulted in the petitioner being declared unfit for promotion is expunged, then after expunction of this adverse entry on 07-09-2009 and after acquittal on 14-01-2009, the petitioner was entitled for reconsideration of his case by a review DPC and his case should have been considered at par with respondent No. 2 as was existing on 12-02-2007, it seems that this was not. Once the adverse entry and vigilance case which prevented the petitioner from seeking promotion on 12-10-2007 was removed or expunged, then the petitioner was entitled for reconsideration of the matter by a review DPC and this having not been done, the action of the respondents in denying the benefit to the petitioner was not correct. Ignoring all these legal aspects of the matter the Tribunal has rejected the claim of the petitioner. It is a fit case where the order passed by the Tribunal, which suffers from material illegality has to be interfered with.

Accordingly, this petition is allowed. Order impugned Annexure P-9 dated 18-09-2012 passed by the Central Administrative Tribunal is quashed and the case of the petitioner is remanded back to the respondents with the following directions:

The department shall convene a review DPC for considering the case of the petitioner for promotion to the Grade-III post. The claim of the petitioner shall be considered as was existing on 12-10-2007 and while considering the matter the review DPC shall take note of the expunction of the adverse C.R. for the year 2002-03, acquittal of the petitioner in the criminal case and after evaluating the claim at par with his junior respondent No. 2, decision shall be taken for promotion of the petitioner retrospectively at par with his junior within a period of 3 months from the date of receipt of the certified copy of this order.

Needless to emphasize that if the petitioner is found fit for promotion, promotion shall be granted to the petitioner retrospectively with all consequential benefits.

With the aforesaid, this petition stands disposed of. C.C. as per rules.