AI Structured Summary
Not yet generated for this judgment
Judgment
,,,,,
Dr. D.P. Choudhury, J.—Challenge is made to the order dated 9.10.2013 passed by Central Administrative Tribunal, Cuttack Bench, Cuttack",,,,,
in O.A. No. 59 of 2012 filed by the present petitioner under section 19 of the Administrative Tribunal Act, 1985.",,,,,
Facts of the case :,,,,,
The case of the unsuccessful petitioner in brief is as follows :,,,,,
The petitioner was working as Chief Manager, Captive Power Plant, National Aluminium (hereinafter called ''NALCO'') w.e.f. 1.1.2000. While",,,,,
working as such, in the month of November, 2006, some juniors of petitioner, namely, Sanjeev Ray and Bal Subramanium were promoted",,,,,
superseding petitioner by Departmental Promotion Committee (hereinafter called ''DPC'') held in the month of June, 2008. It is also stated that the",,,,,
petitioner along with other junior officers had appeared in interview and also before the DPC and the performance of the petitioner was well to,,,,,
consider his promotion. In the said DPC of 2008, promotion of present petitioner was kept in sealed cover without any sort of legal process being",,,,,
adopted.,,,,,
It is stated by the petitioner that the petitioner was implicated in a CBI case by the opposite parties under section 13(2) and 13(1)(e) of,,,,,
Prevention of Corruption Act, 2008 on the false allegation as the petitioner was fighting against the corruption in the public sector unit NALCO.",,,,,
Although CBI submitted charge sheet in late, the name of the petitioner was kept in sealed cover in the month of June, 2008. Petitioner challenged",,,,,
the illegal action of the opposite parties and DPC before the Central Vigilance Commissioner (hereinafter called ''CVC''), New Delhi. The CVC",,,,,
referred the matter to the Chief Vigilance Officer (hereinafter called ''CVO''), NALCO for enquiry. It is stated that the CVO after completion of",,,,,
enquiry recommended for promotion of the petitioner with retrospective effect with reference to DPC held in the year 2008 vide Annexure-1. The,,,,,
opposite parties also sent additional documents to the CVO against the petitioner and that was also enquired and the CVO submitted additional,,,,,
report on 26.10.2009 before the CVC. It is alleged that the CVO and the CVC after going through the reports, recommended the DPC to give",,,,,
promotion to the petitioner with retrospective effect. Thereafter purportedly a meeting was held on the application made by the petitioner with the,,,,,
Secretary, Ministry of Mines, Union Government. In that meeting the authorities of NALCO and the officials of the Ministry of Mines prepared",,,,,
Minutes of the meeting vide Annexure-4 where under, the Ministry sought report from the opposite parties. It is further alleged that the NALCO",,,,,
sought legal opinion from the Legal Advisor of NALCO and the Legal Advisor opined on 19.11.2008 that the sealed cover procedure adopted by,,,,,
the DPC ignoring the promotion of the petitioner was not proper as it has not followed the decision of the Apex Court in Union of India v. K.V.,,,,,
Jankiraman, AIR 1991 SC 2010. In spite of opinion of the Legal Advisor, recommendation of the CVC and the instruction of the Secretary,",,,,,
Mines, petitioner were not given his due promotion with retrospective effect for which the petitioner was compelled to file Original Application No.",,,,,
486 of 2011 before the Central Administrative Tribunal (hereinafter called ''CAT'') and prayed therein to declare his promotion to the post of,,,,,
DGM with retrospective effect i.e. from 1.7.2008 and grant all arrear benefits from that date.,,,,,
It is stated by the petitioner that the learned Tribunal asked the petitioner to make a comprehensive detailed petition, the same shall be",,,,,
considered by O.P. No.1. Accordingly petitioner made detailed representation with relevant documents to the opposite party no.1 on 27.8.2011,,,,,
by Annexure-7. To the ill luck of the petitioner that representation was disposed of by O.P. No.1 with a conclusion that there is no lapse on the,,,,,
part of the DPC recommendation. Apparently the petitioner being charge-sheeted in October, 2008, his case was kept in sealed cover and cover",,,,,
could be opened only after exoneration from charge. Since the order of the O.P. No.1 was not in consonance with the recommendation of the,,,,,
CVC, the decision of the Ministry and it is against principle of law decided by the Hon''ble Apex Court, petitioner again preferred OA No.59/12",,,,,
before CAT, Cuttack Bench, Cuttack. Learned Tribunal after hearing learned counsel for the parties did not accept the contention raised by the",,,,,
petitioner and confirmed the order dated 1.10.2011 of O.P. No.1 in rejecting the representation of the petitioner. As such the CAT passed,,,,,
impugned order on 9.10.2013.,,,,,
It is alleged by the petitioner that the Tribunal has erred by ignoring the legal principles as enumerated in Janaki Raman''s case (supra) and also,,,,,
failed to appreciate the report of the CVC as well as the observation of the Ministry of Mines. It is the bone of contention of the petitioner that the,,,,,
learned Tribunal has erred in law by not appreciating the case of the petitioner in proper perspective and without discussing any fact or law,",,,,,
rejected the Original Application of the petitioner. Petitioner challenged the said order of the Tribunal and hence the writ petition.,,,,,
The contesting opposite parties representing NALCO filed counter reviewing the allegation made by the petitioner. It is stated in the counter that,,,,,
all the executives of NALCO are recruited under Recruitment and Promotion Rules, 1997 (in short referred to as ''R & P Rules, 1997''). Under",,,,,
Clause 1.1.22.0 of the R & P Rules, 1997 of NALCO, promotion from E- 4, E-5, E-6 & E-7 and above grades are based on vacancy and on",,,,,
merit only. The case of the petitioner along with other executives in E-6 were considered for promotion by the DPC 2008 on taking into account,,,,,
vacancy in E-7 grade. DPC, 2008 empanelled petitioner along with 22 executives in his grade for the promotion to the next higher grade, i.e., E-7",,,,,
to fill up future vacancy. The CVO while giving vigilance clearance for the executives eligible for promotion in June, 2008 has mentioned about the",,,,,
prosecution initiated against the petitioner as has been accorded by the CMD on 31.5.2008 filed by the CBI pursuant to a Disproportionate Asset,,,,,
case. Since the prosecution was pending against the petitioner, the case of the petitioner was kept in sealed cover on 13.8.2008 by the DPC of",,,,,
2008 for which it cannot be said that the seal cover procedure is illegal. It is also averred that the recommendation of DPC 2008 with reference to,,,,,
the petitioner was kept in seal cover on the basis of the charge sheet filed by CBI before competent court of law on 30.6.2008. Thereafter the,,,,,
petitioner made representation to the CMD of NALCO on 18.8.2008 to open his seal cover and give promotion. On the request of the petitioner,",,,,,
it was opened and found that the petitioner was suitable for promotion against future vacancies along with others. On the report of the CVO, CVC",,,,,
gave advise to give retrospective promotion to the petitioner after obtaining legal opinion. Accordingly, NALCO sought opinion from Additional",,,,,
Solicitor General and Assistant Solicitor General. It is made clear in the counter that both the law officers of the country opined that due to,,,,,
prosecution charges pending against the petitioner and charge-sheet being filed in the Departmental Proceeding, the action taken by the opposite",,,,,
parties is proper and legal. Accordingly opposite parties-NALCO sent a report to the Ministry of Mines. In the meantime charge sheet was issued,,,,,
by the CBI Court to the petitioner on 28.10.2008. So in the next promotion in 2009 the case of the petitioner was also kept in seal cover.,,,,,
It is further averred that the DPC, 2008 had never recommended Shri Padhi for next higher grade but it empanelled him for the next higher",,,,,
grade in case of future vacancies along with 22 other executives of the same grade. The submission of the petitioner that he was not promoted, is",,,,,
false because 17 executives who were empanelled along with the petitioner, were also not promoted. The Assistant Solicitor General and",,,,,
Additional Solicitor General have also advised to follow the rules of the company to consider the case of the petitioner. As per clause 1.1.29 of the,,,,,
R & P Rules, 1997 if an executive is completely exonerated of the charges, i.e., no blame whatsoever is attached to him, he will be promoted from",,,,,
due date after a recommendation by the DPC. Although the petitioner was acquitted by the CBI Court but the DPC, 2008 has not recommended",,,,,
the petitioner for promotion. So his case was not considered. It is also stated that all the promotion in vacancy based posts are considered on merit,,,,,
only, concept of supersession in promotion for filling up vacancy on post based has no meaning. Moreover, on 1.10.2011 O.P. No.1 passed a",,,,,
reasoned and speaking order pursuant to the order of the CAT. In that order, the O.P. No.1 has taken into consideration all the documents, facts,",,,,,
legal opinions obtained at various occasions, opinion of the Ministry of Mines and CVC, after which, found the petitioner has no merit in his case",,,,,
for which refused to give promotion retrospectively. It is the bone of contention of the opposite parties that since the action has been taken,,,,,
according to rules, law of the land and opinion of the law officers of the country, the writ petition filed by the petitioner bears no merit for which it",,,,,
should be rejected.,,,,,
SUBMISSIONS :,,,,,
Mr. Roy, learned Senior Counsel for the petitioner has initiated the argument and allowed the petitioner to submit his case. The petitioner while",,,,,
appearing in person, strenuously argued that the seal cover procedure as propounded in Jankiraman case (supra) by the Hon''ble Apex court, has",,,,,
not been properly followed by the opposite parties for which the said seal cover procedure is wholly wrong. He further submitted that he having,,,,,
secured higher mark in interview and found to be eligible for promotion from E-06 to E-07, there is no point in refusing his promotion, having kept",,,,,
his case in seal cover. He further submitted that as he is a whistle blower, exposing corruption in NALCO, he was made to suffer by withholding",,,,,
his promotion in a fictitious manner.,,,,,
It is also stated that the officers junior to him, were promoted in the DPC, 2008 for no fault of him although the Annexures-D of the R & P",,,,,
Rules, 1997 specifically enshrines that the E-07 & E-08 posts are integrated posts and there cannot be promotion from E-06 to E-07 for the",,,,,
officers working in particular discipline or cadre. Moreover, he submitted that the DPC was convened in June, 2008 but the cognizance of the",,,,,
offence in the criminal case filed by the CBI was taken on 08.07.2008. According to him, as per decision in Jankiraman case (supra), as",,,,,
propounded by the Hon''ble Apex Court, the DPC cannot keep the case of the petitioner in seal cover, in absence of cognizance of the offence",,,,,
taken against the petitioner. As the petitioner has been found suitable and empanelled for promotion in June, 2008 and CVO has also no comment",,,,,
against the petitioner, seal cover procedure followed by the opposite parties is illegal. He also stated that the legal opinion of the law officers of the",,,,,
Government of India have been obtained by suppressing the material facts for which the said legal opinion is not correct. Not only this but also he,,,,,
submitted that the regular charge-sheet was submitted only after the DPC was held. According to the departmental rules, there cannot be seal",,,,,
cover procedure to be maintained as long as charge sheet in departmental proceeding is not being issued to the delinquent. He submitted that he,,,,,
has been harassed by the opposite parties in spite of the opinion of the CVC and CVO by not giving his promotion with retrospective effect. Even,,,,,
if another interview was held in 2009, he was also ignored by not calling him to the interview. It discloses that the opposite parties have got apathy",,,,,
towards him. Legal opinion has also been collated from Legal Advisor of NALCO who opined that he should be given promotion with,,,,,
retrospective effect and in accordance with the opinion of the CVC. In spite of the legal opinion of the law officer of the NALCO, opposite parties",,,,,
turned deaf to the request of the petitioner. They also did not listen to the advise of Secretary, Mines, Ministry of Mines, Government of India for",,,,,
which he has to approach CAT but the CAT erred in law by dismissing his writ petition. He submitted that the order of the CAT in OA, is illegal,",,,,,
improper by not following the principle of law as enunciated by the Hon''ble Apex Court. The impugned order of the CAT also suffers from,,,,,
illegality by not considering the case of the petitioner to give him promotion with retrospective effect. In to, he submitted that the impugned order of",,,,,
the CAT should be set aside and the opposite parties may be directed to give promotion to the petitioner w.e.f.1.07.2008 to the cadre of E-07,,,,,
with arrear service benefits.,,,,,
Mr. Mishra, learned Senior Counsel for Opp. Party submitted that the promotion of the Executives of the NALCO are guided by P & R",,,,,
Rules, 1997 and according to such Rules on the date of DPC, the case of the petitioner was considered and given promotion for the future",,,,,
vacancy. He further submitted that by the date of D.P.C. convened prosecution has already initiated a criminal case against the petitioner and was,,,,,
pending and Disciplinary Proceeding was also pending for which his case was kept in sealed cover. According to him, a person has no right to",,,,,
claim promotion but has a right to be considered in the zone of selection for promotion. It is also submitted by Mr. Mishra, learned Senior",,,,,
Advocate that the seal cover procedure in this case is absolutely applicable because on the date when D.P.C. declared result on 13.08.2008,,,,,
Charge-sheet was already submitted by the C.B.I. in the Court of C.B.I, Bhubaneswar on 30.06.2008 for which the question of consideration of",,,,,
the case of the petitioner without following seal cover procedure, does not arise.",,,,,
Mr. Mishra, learned Senior Counsel for NALCO further submitted that the allegation of the petitioner that in spite of he securing higher mark,",,,,,
the Officers securing lesser mark are given promotion illegally, is not correct in as much as under the P & R Rules, 1997, while the Officers are",,,,,
given promotion from E-06 to E-07, they are to be given promotion according to vacancy occurred in the particular discipline of allied cadre even",,,,,
though the petitioner secured higher mark than the persons who got promoted. On the other hand, petitioner is an electrical and instrumental",,,,,
engineer being in the grade of E-06 in 2000 whereas the vacancy occurred in E-07 with regard to chemical engineer cadre for which the officers,,,,,
securing less marks were found suitable to be promoted by the DPC. Petitioner and others were eligible for promotion and found suitable but the,,,,,
promotion was made to E-07 basing on the persons available in such particular cadre where E-07 posts were vacant. Thus he submitted that the,,,,,
claim of the petitioner that he was found suitable, but not promoted whereas the officers securing less marks than him are promoted, is a",,,,,
misconceived one. Moreover, he submitted that the sealed cover procedure being adopted in his case, is wholly legal and proper and in the event",,,,,
of his selection also, he could not have been promoted by then. So he submitted to dismiss the writ petition and uphold the order of the CAT.",,,,,
Points for discussion :,,,,,
Sl. No.,Integrated cadre,Included Allied cadres,,,
1.,Engineering & Allied Service,"Chemical
Metallurgical
Mechanical/Production
Electrical
Civil Engineering including Architecture or Ceramics
Electronics and Instrumentation including telecommunication
Management Services(including Corporate Planning, Quality Management Services,
Business Development, Industrial Engg. And EDP/System)
Environmental Engineering",,,
2.,Mining & Geology,Mining & Geology,,,
3.,Commercial Management,"Materials, Marketing, Despatch, Excise, Traffic, Shipping & Transport.",,,
4.,"Human Resource, Personnel,
administration, Management","Training, HRD, PR & Corporate Communication & Law",,,
5.,Finance & Accounts,Finance & Accounts and Internal Audit.,,,
Sl. No.,Name S/Sri,Dt. Of joining in E6 grade,Interview Marks,Total Marks,Status
(1),(2),(3),(4),(5),(6)
01,S. Saha,1.7.2002,9.50,87.05,"Promoted to E7 grade
w.e.f. 01.7.2008
02,S. Choudhury,1.7.2002,9.50,86.10,-do-
03,R. Brahma,1.1.2003,5.50,85.86,-do-
04,AK Pattnaik,1.1.2000,7.50,88.59,-do-
05,B. Minz,1.1.1999,7.00,85.88,"Promoted to E-7 grade
w.e.f. 05.02.2009
06,AK Shaw,1.7.1999,7.00,87.68,-do-
07,PR Parija,1.1.2000,6.50,87.58,Not Promoted
08,SC Mishra,1.7.2001,6.50,89.39,-do-
09,MP Mishra,1.1.2002,7.00,88.99,Not Promoted
10,SK Jena,1.1.2002,6.50,89.20,-do-
11,Ch. PK Saran,1.1.2002,6.00,88.80,-do-
12,AK Patra,1.7.2001,6.00,88.64,-do-
13,M. Quasim,1.1.2000,6.00,86.30,-do-
14,MK Mohapatra,1.1.1998,6.00,89.29,-do-
15,BP Acharya,1.1.1999,6.00,88.88,-do-
16,RC Padhy,1.1.2000,6.00,87.46,-do- Kept in sealed cover
17,RS Das,1.7.2002,8.50,88.44,Not Promoted
merging of the three cadres cannot be said to have caused any prejudice to the members of any of the cadres. The total number of posts were also,,,,,
increased proportionately when the merger took place so that the percentage of posts available on promotion was not in any manner adversely,,,,,
affected by the merger of the cadres.,,,,,
The appellant, however, contends that as a result of the merger his promotional chances have been very adversely affected because his",,,,,
position [pic] in the seniority list has gone down. Rule 9 of the Central Labour Service Rules, 1987 under which the merger is effected, lays down",,,,,
the rules of seniority. It provides that the inter se seniority of the officers appointed to the various grades mentioned in Schedule I at the initial,,,,,
constitutional stage of the service shall be determined according to the length of regular continuous service in the grade subject to maintenance in,,,,,
the respective grade of inter se seniority of officers recruited in their respective original cadres. The proviso to this Rule prescribes that although,,,,,
Assistant Labour Commissioner (Central), Labour Officer and Assistant Welfare Commissioner shall be equated, all Assistant Labour",,,,,
Commissioners (Central) holding such posts on or before 31-12-1972 shall be en bloc senior to Labour Officers and (2) Senior Labour Officers,,,,,
and Regional Labour Commissioners shall be equated. But all Regional Labour Commissioners holding such posts on or before 2-3-1980 shall be,,,,,
en bloc senior to the Senior Labour Officers.,,,,,
Explaining the proviso the respondents have said that before 31- 12- 1972 Assistant Labour Commissioners were in a higher pay scale than,,,,,
Labour Officers. The parity between their pay scales came about only from January 1973. That is why to preserve their inter se position, Assistant",,,,,
Labour Commissioners appointed prior to 31-12- 1972 have been placed above Labour Officers. Similarly, Regional Labour Commissioners",,,,,
drew a higher pay scale than Senior Labour Officers prior to 1980. The parity has come about in 1980 and hence Regional Labour,,,,,
Commissioners holding such posts on or before 2-3- 1980 have been placed above Senior Labour Officers.,,,,,
The seniority rules have thus been carefully framed taking all relevant factors into consideration. The respondents have also pointed out that as,,,,,
a matter of fact, by reason of the merger, the appellant has not, in fact, suffered any prejudice and he has also received promotions.",,,,,
However, it is possible that by reason of such a merger, the chance of promotion of some of the employees may be adversely affected, or",,,,,
some others may benefit in consequence. But this cannot be a ground for setting aside the merger which is essentially a policy decision. This Court,,,,,
in Union of India v. S.L. Dutta, (1991) 1 SCC 505, examined this contention. In S.L. Dutta case a change in the promotional policy was",,,,,
challenged on the ground that as a result, service conditions of the respondent were adversely affected since his chances of promotion were",,,,,
reduced. Relying upon the decision in the State of Maharashtra v. Chandrakant Anant Kulkarni, (1981) 4 SCC 130, this Court held that a",,,,,
mere chance of promotion was not a condition of service and the fact that there was a reduction in the chance of promotion would not amount to a,,,,,
change in the conditions of service.""",,,,,
The above decision has been followed in Dholey Govind Sahebrao & others v. Union of India and others, (2015) 42 SCD 530 where",,,,,
Their Lordship observed at para-35:,,,,,
It is in the background of the aforesaid submission advanced at the hands of learned counsel, that we would consider the validity of the merger",,,,,
of cadres contemplated by Rule 4 of the TA Rules, 2003 and Rule 5 of the STA Rules, 2003. The position in the present controversy is not",,,,,
comparable to the position examined by this Court in the judgments referred to herein above. It needs to be understood, that the cadre of Data",,,,,
Entry Operators, was created out of the original ministerial cadre. It is, therefore apparent, that the members of the two cadres were originally",,,,,
discharging similar duties. It is only as a consequence of the administrative decision to computerize the functioning of the Customs and Central,,,,,
Excise Department, that a separate cadre of Data Entry Operators came to be created. The newly created cadre, exclusively functioned towards",,,,,
giving effect to the decision to computerize the functioning of the department. There was thereafter a division of duties discharged by the original,,,,,
members of the ministerial cadre. One cadre of employees exclusively thereafter discharged procedural duties of the department, whereas, the",,,,,
other cadre of employees exclusively thereafter discharged duties aimed at computerisation of the functioning of the department. Even though, it is",,,,,
apparent, that the Data Entry Operators exclusively functioned towards the process of computerisation of the functioning of the Customs and",,,,,
Central Excise Department, yet that could not be possible without their existing experience in the erstwhile ministerial cadre. Consequent upon the",,,,,
merger of posts, consequent, upon the promulgation of the TA Rules, 2003, and the STA Rules, 2003, the nature and duties of the two cadres",,,,,
were combined. Consequent upon their appointment as Tax Assistants and Senior Tax Assistants, members of the erstwhile ministerial cadre, and",,,,,
members of the cadre of Data Entry Operators, were required to perform both procedural duties and duties relating to computer applications. The",,,,,
deficiencies in the two cadres sought to be merged, were sought to be overcome, by subjecting the members of the two cadres to different",,,,,
examinations, whereby, the two cadres were trained for discharging their duties efficiently, on merger, whilst holding the posts of Tax",,,,,
Assistants/Senior Tax Assistants. It is, therefore, not possible for us to accept, that there was any serious difference between the two merged",,,,,
cadres, either on the issue of nature of duties, or on the subject of powers exercised by the officers holding the post, or the extent of territorial or",,,,,
other charge held, or responsibilities discharged by them, or for that matter, the qualifications prescribed for the posts. On account of the aforesaid,",,,,,
by and large similarity, we are satisfied, that the merger of the cadres, and the determination of the inter se seniority on merger, were justifiably",,,,,
determined, on the basis of the different pay-scales of the cadres merged, under the TA Rules, 2003 and the STA Rules, 2003. By the mandate of",,,,,
the above Rules, all posts in equivalent pay-scales were placed at the same level. Posts in the higher scale of pay, were given superiority on the",,,,,
subject of inter se seniority, with reference to posts in the lower scale of pay. In our considered view, the above determination, at the hands of the",,,,,
rule framing authority, on the issue canvassed before us, cannot be termed either arbitrary or discriminatory. We are, therefore satisfied in",,,,,
concluding, that the provisions of Rule 4 of the TA Rules, 2003 and Rule 5 of the STA Rules, 2003, cannot be faulted on the touchstone of",,,,,
Articles 14 and 16 of the Constitution of India.,,,,,
With due respect to the aforesaid decisions of the Hon''ble Apex Court, we are of the view that the integrated allied cadres as created under R",,,,,
& P Rules, 1997 vide Annexure-D is reasonable and the promotion from E- 06 to E-7 cannot be ipso facto made to keep the officers of different",,,,,
cadres remain as such as in E-06. On the other hand, the purpose of integration of the cadres will be frustrated if at all the promotion is given only",,,,,
taking into consideration the officers of particular cadres available in E-6 which are of different cadre. On the other hand, the promotion of the",,,,,
petitioner vis-a-vis promotion of other officers of E-6 should be considered marks secured in interview and assessment as made by DPC. Since,,,,,
the petitioner is from the Electronic and Instrumentation including Tele-communication cadre has got more mark than Sri Saha, S. Choudhury and",,,,,
others of allied service as per Annexure-D of R and P Rules, 1997 in the interview and also found suitable, he should be promoted to the grade E-",,,,,
The contention of the learned Senior counsel for the NALCO that the mark wise promotion could not be given as the officers of different,,,,,
cadres were required to be promoted to E-07 cannot be tenable. When there is R & P Rules, 1997 showing promotion to E-07 and E-08 under",,,,,
integrated cadre, the case of the petitioner has to be considered under said Rule. It is also contended that other officers like petitioner were not",,,,,
promoted even if they have secured more marks in the interview and assessment than the officers promoted for which petitioner cannot claim any,,,,,
discrimination, do not hold good inasmuch as illegality caused to petitioner has to be corrected and cannot be made in perpetuity, more so other",,,,,
officers are not parties to it and consideration of their case is academic only for the time being. Moreover, the purpose of interview and assessment",,,,,
is to award marks on their performance so that it can be based on merit only as per rules of company. We are thus of the considered view that the,,,,,
promotion of the petitioner from E-06 to the grade E-07 should be made from the date when the officers securing less marks than him in E-06,,,,,
during DPC 2008 June have been promoted. So the petitioner is entitled to get his promotion to E-07 from 1.7.2008 when Shri Saha and others,,,,,
securing less marks than him got promotion. The point no.I is answered accordingly.,,,,,
Point No.II,,,,,
We have already held in the aforesaid para that the petitioner is entitled to be promoted from E-06 to E-07 and it appears from the DPC,,,,,
papers that he has been empanelled for promotion for future vacancy but his promotion was kept in sealed cover because of the prosecution,,,,,
pending against him under the Prevention of Corruption Act. At this stage, the law on the seal cover procedure has to be dealt, after which it will",,,,,
be required to opine whether his name should be kept in seal cover or not.,,,,,
In Union of India v. K.V. Jankiraman reported in AIR 1991 SC 2010, Their Lordships observed in the following manner :",,,,,
(3) To what benefits an employee who is completely or partially exonerated is entitled to and from which date?'' The ,''sealed cover procedure""",,,,,
is adopted when an employee is due for promotion, increment etc. but disciplinary/criminal proceedings are pending against him at the relevant time",,,,,
and hence, the findings of his entitlement to the benefit are kept in a sealed cover to be opened after the proceedings in question are over''. Hence.",,,,,
The relevance and importance of the questions.,,,,,
xx xx xx,,,,,
The sealed cover procedure is to be resorted to only after the chargememo/ charge-sheet is issued. The pendency of preliminary investigation,,,,,
prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure.,,,,,
xx xx xx,,,,,
We are of the view that even ''if the results in the sealed cover entitle the employees to promotion from the date their immediate juniors were,,,,,
promoted and they are, therefore, so promoted and given notional ''benefits of seniority etc., the employees in no case should be given any arrears",,,,,
of salary. The denial of the benefit of salary will, of course, be in addition to the penalty,.if any,. imposed on the employees at the end of the",,,,,
disciplinary proceedings. We, therefore, allow these appeals as above with no order as to costs.""",,,,,
With due respect to the aforesaid decision, it is found that the seal cover procedure is only to be resorted to after charge is framed and issued",,,,,
to the delinquent in department proceeding or charge sheet has been issued to the accused. Such decision has been also followed in the decision,,,,,
reported in State of Madhya Pradesh and others v. Ramananda Pandey, (2014) 10 SCC 610 where Their Lordships observed at para-5 in",,,,,
the following manner :,,,,,
In AIR 1991 SC 2010 (sic) (Union of India v. K.V. Jankiraman), the Apex Court held that the sealed cover procedure can also be",,,,,
resorted to only in the event a charge sheet in a disciplinary proceeding and a challan in a criminal case is issued/filed. In the present case, the",,,,,
respondents are not in a position to demonstrate that on the date of consideration of petitioner for promotion and issuance of order Annexure P-2,",,,,,
the petitioner was either facing disciplinary action or criminal case. Needless to mention that respondent department is custodian of the entire,,,,,
record including service record of the petitioner. In this view of the matter, merely because petitioner has made a bald statement in Annexure R-1,",,,,,
it was not sufficient to cancel the petitioner''s promotion order. In absence of any material to show that petitioner was facing a disciplinary action or,,,,,
criminal case, the order Annexure P-1 cannot be upheld. There is no other justiciable reason assigned in the return for cancelling the said order.""",,,,,
The appellants herein preferred writ appeal against this order and the Division Bench has dismissed the appeal on the same ground, namely, there",,,,,
was no material on record to show that the respondent was facing any disciplinary proceeding or criminal case on the date of consideration of his,,,,,
name for promotion. The Division Bench, thus, observed that the learned Single Judge had not committed any illegality while passing the order",,,,,
impugned.""",,,,,
In the case of Dr. (Smt.) Sudha Salhan v. Union of India, (1998) 3 SCC 394. Their Lordshhips observed in the following manner :",,,,,
xx xx We are also of the opinion that if on the date on which the name of a person is considered by the Departmental Promotion Committee for",,,,,
promotion to the higher post, such person is neither under suspension nor has any departmental proceedings been initiated against him, his name, if",,,,,
he is found meritorious and suitable, has to be brought on the select list and the ""sealed cover"" procedure cannot be adopted. The recommendation",,,,,
of the Departmental Promotion Committee can be placed in a ""sealed cover'' only if on the date of consideration of the name for promotion, the",,,,,
departmental proceedings had been initiated or were pending or on its conclusion, final orders had not been passed by the appropriate authority. It",,,,,
is obvious that if the officers, against whom the departmental proceedings were initiated, is ultimately exonerated, the sealed cover containing the",,,,,
recommendation of the Departmental Promotion Committee would b e opened, and the recommendation would be given effect to.""",,,,,
In Coal India Ltd. & Ors v. Saroj Kumar Mishra reported in AIR 2007 SC 1708 Their Lordship observed:,,,,,
A departmental proceeding is ordinarily said to be initiated only when a charge sheet is issued""",,,,,
With due respect to the aforesaid decisions, we are of the view that seal cover procedure is only to be followed if there is charge-sheet issued",,,,,
to the delinquent in disciplinary proceeding or charge sheet is issued to petitioner in criminal case against the petitioner. Mere filing of F.I.R. or,,,,,
mere allegation resulting initiation of departmental proceeding without issue of charge-sheet to delinquent is not enough to adopt seal cover,,,,,
procedure.,,,,,
Now adverting to this case, it appears that in June, 2008, the DPC was held and same facts are also admitted by the petitioner and opposite",,,,,
parties. In fact charge-sheet in criminal case was supplied to the petitioner only on 17.10.2008. When the DPC was held, there is no criminal",,,,,
proceeding pending as there is no charge-sheet supplied to the petitioner in terms of the decision as discussed above.,,,,,
It appears from the counter that charge for regular departmental action was issued to the petitioner on 14.10.2008 after framing same basing,,,,,
on the CBI recommendation. So it is made clear that in the month of June, 2008 when the DPC was held for promotion, no charge-sheet in",,,,,
prosecution nor in departmental proceeding has been issued to the petitioner. On the other hand on the date of DPC held, there was neither",,,,,
charge-sheet in the department proceeding issued to the petitioner nor prosecution is allegedly to have any criminal charge pending against the,,,,,
petitioner according to law. Even assuming that DPC result was declared on 13.08.2008, on that day also neither any criminal proceeding was",,,,,
pending as per law nor any charge in Departmental Proceeding was issued to the petitioner.,,,,,
As per Rule 1.1.29.0 of R & P Rules, 1997 following procedure will be followed while an employee is facing disciplinary proceeding.",,,,,
1.1.29.0 PROCEDURE WHILE FACING DISCIPLINARY PROCEEDINGS",,,,,
1.1.29.1 Where an executive otherwise eligible for promotion is:,,,,,
(a) under suspension; or,,,,,
(b) a charge sheet has been issued and disciplinary proceedings are pending against him; or,,,,,
(c) prosecution proceeding in respect of such employee for a criminal charge is pending:,,,,,
1.1.29.4 The case of the concerned executive may be placed before the DPC to decide his suitability or otherwise for provisional promotion. The,,,,,
DPC will consider his case as per the normal policy without taking into account the pending disciplinary case against him. Based on the,,,,,
recommendations of the DPC provisional promotion may be given to the concerned executive with the approval of Chief Executive. The,,,,,
provisional promotion will be valid until further orders and shall not confer any right for regular promotion. The concerned executives shall not be,,,,,
confirmed in the higher post until promotion is regularized. In case the executive is fully exonerated, the promotion will be regularised and",,,,,
confirmation order in the higher post issue effective from due date. Wherever sealed covers are kept, the same shall be opened and the promotion",,,,,
shall count from the date the executive was first found fit for promotion. In case the executive is not fully exonerated, the provisional promotion",,,,,
shall stand withdrawn and the executive shall be deemed to have not been promoted. The penalty, if any, imposed shall count in his original post.",,,,,
1.1.29.5 The executive on whom any penalty other than censure is imposed shall not be considered for promotion in subsequent two DPCs when,,,,,
it is due. An executive who has been censured shall not be considered for promotion in subsequent one DPC when it is due.,,,,,
1.1.29.6 However, the position will be different, if prosecution has been launched and the same has resulted in some punishment inflicted by the",,,,,
competent court and the Central Government guidelines/instructions in this connection will be adhered to.""",,,,,
Now applying the provisions in this case, it is reiterated that there is neither charge-sheet issued in disciplinary proceeding to petitioner nor",,,,,
petitioner was facing criminal charge showing pendency of criminal proceeding on the date of DPC convened in June,2008. Hence we are of the",,,,,
opinion that the case of the petitioner should not have been kept in seal cover as the procedure followed by the opposite parties neither gets,,,,,
approval from the R & P Recruitment Rules, 1997 nor gets approval of the decisions of the Hon''ble Apex Court.",,,,,
We are further of considered view that keeping the name of the petitioner under seal cover by the DPC, 2008 is wholly illegal and unjust.",,,,,
When the sealed cover procedure adopted in 2008 is illegal, subsequent continuance of his name in seal cover procedure in 2009 is equally illegal.",,,,,
It is submitted by learned Senior Counsel for opp. party that in departmental proceeding petitioner was awarded punishment of censure in 2011 as,,,,,
revealed from record and same should be considered to disallow the prayer of promotion of the petitioner. It is submitted by petitioner that on the,,,,,
date of DPC no such punishment was awarded and it was inflicted later on to which he has protested. In spite of such remark, he was promoted in",,,,,
2011 as revealed from the submissions of parties. We are of the considered view that if any punishment is awarded subsequent to DPC convened,",,,,,
that will not legalise the seal cover procedure which we hold as illegal and unjust. So there is no force with the submissions of learned counsel for,,,,,
opp. party.,,,,,
The point no.II is answered accordingly.,,,,,
CONCLUSION,,,,,
In view of the aforesaid discussion, we find that the petitioner is entitled to get promotion to the grade of E-07 from 1.7.2008 when his juniors",,,,,
are promoted and the seal cover procedure was illegal. It appears CAT has not made thread bare analysis of facts properly for which landed in,,,,,
wrong conclusion by affirming the order dated 1.10.2011 passed by the opposite party no.1. We, disapprove the conclusion of Center",,,,,
Administrative Tribunal. We hereby observe that the impugned order dated 9.10.2013 under Annexure-9 passed by learned CAT and the order,,,,,
dated 1.10.2011 under Annexure-8 passed by opp. party No.1 are equally unjust, illegal and liable to be set aside. We, therefore, set aside the",,,,,
orders dated 1.10.2011 passed by opp. party No.1 and dated 9.10.2013 passed by the CAT and at the same time it must be held that the,,,,,
petitioner should be given retrospective promotion to the grade E-07 from 1.7.2008 for which we hereby direct the opposite parties to give,,,,,
promotion to the petitioner w.e.f. 1.7.2008 with all arrear salary and other service benefits as admissible from time to time. The writ petition is,,,,,
disposed of accordingly.,,,,,