Kedar Nath Jha vs Coal India Ltd. and Others

D.G.R. Patnaik, J.—Petitioner, who is presently holding the post of Deputy Chief Mining Engineer in Mining Cadre at E.J. Area, B.C.C.L., Dhanbad, has raised his grievance in this writ application, stating that his promotion to the next higher Grade has been illegally and arbitrarily denied to him by the Respondents, while on the other hand Respondents have proceeded to offer promotions to persons junior to him in the Gradation list.

The case of the petitioner is that on the basis of his qualification and length of service in his present Grade, his name was short-listed alongwith other officers of the Mining Cadre for promotion to the next higher Grade. The petitioner alongwith others had appeared for the Interview before the Departmental Promotion Committee on 28.02.2007. Subsequently, an Office order was issued with regard to the promotion containing the list of names of several officers of the Mining and other cadres but the petitioner''s name was omitted from the list. The petitioner, on enquiry, was informed that his promotion has been withheld in want of clearance Certificate of the Vigilance Department. This, according to the petitioner, is totally illegal and is against the Guidelines laid down in the Office Memorandum dated 14.05.2002 (Annexure-3) of the C.I.L., Kolkata and is also against the spirit of the judgment of the Supreme Court passed in the case of Union of India Vs. K.V. Jankiraman, etc. etc., and the judgment in the case of Coal India Ltd. and Others Vs. Saroj Kumar Mishra, .

Mr. Ajit Kumar, learned Counsel for the petitioner submits that even under the guidelines as laid down in the Office Memorandum dated 14.05.2002 of the C.I.L., Kolkata (Annexure-3) grant of vigilance clearance can be withheld on the following grounds:

(i) When an officer is under suspension.

(ii) When an officer in respect of whom a chargesheet has been issued or a disciplinary proceeding is pending.

(iii) When an officer in respect of whom prosecution for a criminal charge is pending.

Learned Counsel explains that on the date when the petitioner''s candidature for his promotion was considered by the Departmental Promotion Committee the petitioner was neither suspended nor was any departmental proceeding pending or even contemplated against him. Learned Counsel submits further that very recently on 12.12.2007, the petitioner has been served with a memorandum of charge under the signature of the Chairman of the B.C.C.L, Dhanbad on the ground of the alleged misconduct. This, according to the learned Counsel, cannot constitute a ground for withholding the promotion against the petitioner and allowing persons junior to him, to be promoted.

Counter affidavit has been filed on behalf of the Respondent Nos. 5 to 8, representing the Respondents-B.C.C.L. Plea in the counter affidavit is that the petitioner was found to have committed serious acts of negligence and dereliction in performance of his duties and a series of Vigilance cases have been instituted against him. In contemplation of disciplinary proceedings a memorandum of charge was served upon the petitioner on 12.12.2007 and after concluding the departmental proceeding, the penalty of "censure" was imposed against the petitioner vide order dated 23.05.2008. It is further sought to be explained that as per information received from the Vigilance Department, a vigilance case vide No. VIG/F/246/75/9137 was registered against the petitioner prior to 31.01.2007 and, therefore, since the petitioner was not cleared from the Vigilance, his promotion to the next higher Grade was not considered by the D.P.C.

From the counter affidavit, it is abundantly clear that on the date when the D.P.C. had considered the petitioner''s candidature and had called the petitioner to appear at the Interview for selection, no chargesheet was issued against the petitioner nor was any message communicated to him that the competent authority had formed any opinion for issue of charge in contemplation of any departmental proceeding against the petitioner. Even if a Vigilance case was registered against the petitioner on 31.01.2007, but it was not stated by the Respondents that pursuant to the complaint received by the Vigilance Department, the competent authority had arrived at a satisfaction that a chargesheet was likely to be issued on the basis of a preliminary enquiry held in that behalf or otherwise.

The Guidelines issued by the C.I.L., Kolkata (Annexure-3) lays days categorically that the Vigilance clearance can be withheld only on the ground (a) when an officer is under suspension, (b) when an officer in respect of whom a chargesheet has been issued or a disciplinary proceeding is pending against him (c) when an officer in respect of whom prosecution for a criminal charge is pending. This issue has now been well settled by the Supreme Court in the case of Coal India Ltd. v. Saroj Kumar Mishra (Supra) and also in an earlier case of Union of India and Ors. v. K.V. Jankiraman and Ors. (Supra).

The action of the Respondents, denying the promotion to the petitioner, even though on the date of consideration of his candidature by the D.P.C, the petitioner was neither under suspension nor was served with any chargesheet in contemplation of any disciplinary proceedings, nor was any prosecution for criminal charge was pending against him, being contrary and in violation of the Guidelines issued by the C.I.L., Kolkata (Annexure-3), which is admittedly applicable to the case of the petitioner, is totally unreasonable and illegal.

Undisputedly, the petitioner was entitled to be considered for his promotion having regard to the rule of seniority-cum-merit and the requisite qualifications and experience which the petitioner had possessed as on the date when the petitioner was called for and had appeared at the Interview conducted by the D.P.C.

From the facts pleaded, it appears that the petitioner was otherwise found eligible for his promotion to the higher Grade but the promotion was not granted to him only, since the vigilance clearance was withheld. This certainly, cannot be taken as a reasonable and legitimate ground for denying the promotion to the petitioner.

The stand taken by the Respondents that a Departmental proceeding was initiated in the month of December, 2007 resulting in the penalty of "censure" against the petitioner can not in itself, can be taken as sufficient to deny the right to the petitioner, which had accrued to him much before any departmental proceeding was even contemplated against him. Even otherwise, the Respondents are not in an altogether helpless situation. The employer may take appropriate steps against any delinquent employee, who has suffered punishment.

In the light of the above discussions, I find merit in this writ application. Accordingly, this writ application is allowed. The Respondents are directed to issue appropriate orders granting promotion to the petitioner to the next higher grade within one month from the date of this order.