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Judgment
39 paragraphs · 3,232 wordsP.M.Manoj, J
The writ petition has been filed by a person seeking promotion to the post of Deputy General Manager, challenging Exts. P14, P16, P19, P22 and P24. He further seeks a direction to the respondents to promote him to the post of Deputy General Manager (Tourism) in accordance with Ext. P1 Promotion Policy against one of the vacancies that existed as on 09.03.2012, and thereafter to promote him as General Manager with effect from 09.03.2015. He also seeks consequential benefits, including monetary benefits.
The petitioner was originally appointed as Assistant Manager on a regular basis under the Indian Railway Catering and Tourism Corporation Ltd. (for short, IRCTC), the 1st respondent. Thereafter, he was promoted as Manager (Tourism) with effect from 09.03.2009.
It is contended that, as per the Promotion Policy produced as Ext.P1, the petitioner was entitled to be considered for promotion to the post of Deputy General Manager (Tourism) in the Tourism Department of the 1st respondent. The post of Manager (Tourism) is the feeder category for promotion to Deputy General Manager, which is a post in the middle management level (Group E4), from the junior management level (Group E2/E3). Promotions are to be affected on the basis of performance and confidential reports upon completion of three years of regular service. However, there is an exemption for outstanding candidates possessing the requisite qualifications and consistently high standards of performance.
The petitioner contends that he holds a Master’s Degree in Business Management (Administration) and a Diploma in Hotel Management and Catering Technology. Being an outstanding and consistent performer, he claims that he is entitled to promotion as Deputy General Manager even prior to the completion of three years in the feeder category post. The Performance Management System records for the year 2012 were finalised only in January 2015. Even then, the column relating to integrity was left unfilled. Subsequently, the entry was made as “Normal.” However, his work performance was recorded as “Very Good.” In such circumstances, the petitioner submits that he ought to have been promoted to the post of Deputy General Manager (Tourism) against one of the three vacancies that then existed in the South Zone, as he was the only Manager in the Tourism Department who was qualified to be promoted to the said post. At the relevant time, there were only two Managers in the Tourism Department of the 1st respondent eligible to be considered for promotion to the post of Deputy General Manager (Tourism).
In 2012, the 1st respondent issued a communication (Ext.P7) dated 23.03.2012, identifying candidates for promotion to the next grade. The communication requested the Annual Performance Appraisal Reports (APARs) for the preceding three years for scrutiny by the Departmental Promotion Committee (DPC). The petitioner’s name was duly included in this list under the South Zone. According to the petitioner, under the extant promotion policy (Ext.P1), an incumbent is only disqualified for promotion if their APARs fall below the requisite standards. As the petitioner met these standards, he was entitled to promotion to one of the then-existing vacancies for the post of Deputy General Manager (DGM).
The petitioner alleges that the 2nd respondent issued a charge memo on 20.04.2012 with the specific intent to deny him promotion. The memo contained three frivolous charges of a minor nature, involving neither financial loss to the IRCTC nor moral turpitude. On May 18, 2012, the petitioner submitted a formal explanation refuting these allegations. While the petitioner's promotion remained stalled, one Mr. N. Sanjeeviah, whose name was notably absent from the initial field of choice in Ext.P7, was promoted to the post of DGM (Tourism) with effect from 11.03.2013. The petitioner contends that, according to the seniority list for Manager (Tourism), only two qualified candidates were available for the existing vacancies: Mr. Sanjeeviah and himself. He further asserts that, in similar circumstances, other Managers in the Internet Ticketing Department who joined the service along with him were promoted in accordance with the Ext.P1 policy. Based on the number of available vacancies and the criteria set out in Ext.P1, he argues that both candidates listed in Ext.P11 should have been promoted.
However, due to the alleged pendency of disciplinary action, the petitioner was not considered even for an ad hoc promotion. Furthermore, the "sealed cover" procedure was not adopted, which the petitioner claims constitutes discriminatory treatment by the respondent. His request for an ad hoc promotion under Ext.P12 was also summarily discarded. The petitioner contends that the revised promotion policy introduced via Ext.P13 does not have retrospective effect. Therefore, the respondents are duty-bound to fill vacancies arising prior to Ext.P13 using the Ext.P1 promotion policy of 2007.
Since promotion from Manager to DGM is based on seniority- cum-merit, experience, and Annual Performance Appraisal Reports (APARs), the petitioner maintains that he became eligible on 09.03.2012. This was the date he completed the required three years in the feeder category, supported by "excellent" APAR ratings for the preceding three years.
Subsequently, the disciplinary proceedings concluded on 21.07.2014 with the imposition of a penalty: the reduction of the petitioner’s pay by two stages for a period of one year, without cumulative effect. Both the appeal and the review petition filed against this punishment were rejected. During the pendency of the review petition, the petitioner filed WP(C) No. 27183 of 2014, seeking, inter alia, a direction to grant him a promotion to DGM(T) effective from 09.03.2012. While this writ petition was pending, the petitioner was promoted to DGM(T) effective 21.07.2015.
The Court eventually disposed of the writ petition with a direction to the respondents to consider the petitioner’s case for promotion to DGM(T) against one of the existing 2012 vacancies. Pursuant to this judgment, the petitioner submitted a representation dated 15.11.2016. However, this was rejected via Ext.P22 order, which stated that although the petitioner and Mr. Sanjeeviah were considered together, the petitioner was denied promotion due to the then-pending major penalty proceedings. The order further noted that since the petitioner served a major penalty (reduction in pay) from 21.07.2014 to 20.07.2015, he became eligible for promotion only after the punishment expired in 2015.
The petitioner contests this interpretation, arguing that the penalty imposed was a reduction of two increments and not a reduction in pay by two stages in the time scale. He contends that the interpretation of the punishment in Ext.P14, P16, and P19 is highly arbitrary and that the penalty is shockingly disproportionate to the charges. The petitioner denies all allegations, maintaining that he committed no misconduct or dereliction of duty. Furthermore, no mala fide intention was established; the incident was merely a technical lapse that was later ratified by a superior officer. Relying on the precedent in Goa Shipyard Ltd. v. Babu Thomas [(2007) 10 SCC 662], the petitioner argues that the subsequent ratification of an act is equivalent to prior authority. Finally, the petitioner contends that the denial of promotion is itself a penalty under the IRCTC (Discipline and Appeal) Rules, 2003. He points out that under the amended rules effective 08.07.2014, a "reduction to a lower stage in the time scale of pay by one stage for a period not exceeding three years, without cumulative effect and not adversely affecting pension," is classified only as a minor penalty. He further highlighted the disproportionate nature of the treatment he received. It was further asserted that no corresponding amendment was brought to Rule 8(V) of the said Rules, which reads as follows :
“Save as provided for in Clause (iii-b) reduction to a lower stage in the time scale of pay for a specified period, with further directions as to whether on expiry of such period the reduction will or will not have the effect of postponing the future increments of his pay”
These are the circumstances under which the petitioner challenges Exts.P14, P16, P19, P22, and P24. The petitioner contends that the denial of his promotion, coupled with the disciplinary penalty, effectively subjects him to double punishment for unproven charges—an outcome which, according to him, is shockingly disproportionate.
Per contra, the learned counsel for the respondents contends that the petitioner is not entitled to the reliefs sought in the writ petition. The respondents rely primarily on the Ext.P1 promotion policy, upon which the petitioner’s own claim is based. Specifically, Clause 14(2)(c) of the policy stipulates that promotion cannot be affected if an employee is undergoing a punishment such as reduction to a lower stage in the time scale of pay, lower time scale of pay, withholding of increments, or withholding of promotion.
Similarly, Clause 14(4) provides that if disciplinary proceedings—the results of which are held in a "sealed cover"—are not concluded within six months from the date the case was placed in the sealed cover, and if the delay is not attributable to the employee, the appropriate authority (the authority empowered to approve the select list or panel) may, upon review, grant an ad hoc promotion. However, the policy clarifies that such ad hoc promotion is at the sole discretion of the appropriate authority, who may revoke it at any time without assigning any reason. Furthermore, such a promotion shall not confer any permanent right or claim upon the employee.
Referring to Ext.P12 dated 18.10.2013, the petitioner sought an ad hoc promotion to the post of DGM(T) in light of the aforementioned provisions. However, this request was not considered due to the disciplinary proceedings for a major penalty initiated via Ext.P8 on 20.04.2012. These proceedings culminated in an order dated 21.07.2014, which imposed a penalty of reduction in pay by two stages for a period of one year, without cumulative effect. Notably, there was no extraordinary or unexplained delay by the authorities in considering the petitioner’s request for ad hoc promotion under the said provision. In fact, the petitioner’s case was considered by the Departmental Promotion Committee (DPC) along with other eligible candidates. It was solely due to the pendency of the disciplinary proceedings that the petitioner was not recommended for promotion at that time.
Furthermore, the petitioner’s contention—that he is entitled to promotion immediately upon the completion of three years of service—runs contrary to the Ext.P1 promotion policy. Under Clauses 11(1) and 11(2), promotions from the E2 to E5 levels are made based on performance and confidential reports (APARs), in addition to the minimum eligibility criteria of three years of service. Promotion is a "positive act of selection" rather than an automatic entitlement and the DPC must assess the suitability of the officer based on their performance record upon the completion of three years of regular service.
In accordance with Rule 11 of the IRCTC (Discipline and Appeal) Rules, 2003, proceedings for imposing a major penalty were initiated against the petitioner. Accordingly, Ext.P8 memorandum of charges was issued to the petitioner in relation to the year 2011, when he was working as Manager (Tourism) at IRCTC, Bangalore. As stated earlier, he was ultimately imposed with a penalty of reduction in pay by two stages for a period of one year without cumulative effect. In the meantime, the Departmental Promotion Committee (DPC) constituted by the competent authority to consider promotions in the Tourism cadre from E3 to E4 evaluated the candidates for promotion in accordance with the promotion policy of 2013 (Ext.P13), which is the revised promotion policy effective from 01.09.2012. The DPC was convened in February 2013.
Accordingly, Sri N. Sanjeeviah, who is senior to the petitioner, was promoted to the post of Deputy General Manager (Tourism) as per Ext.P10 order dated 11.03.2013, taking into account the fact that a charge sheet had been issued to the petitioner and disciplinary proceedings were pending against him. The DPC therefore decided to consider the case of the petitioner only after the completion of the disciplinary proceedings, in accordance with the promotion policy of IRCTC. Consequently, the petitioner was not granted promotion in 2012.
Moreover, by submitting Ext.P12, the disciplinary proceedings initiated against the petitioner had almost reached finalisation. Subsequently, punishment was imposed on the petitioner by Ext.P14 order dated 21.07.2014. Therefore, the petitioner’s claim for earlier promotion was declined.
It is also contended that all these aspects had already been raised in the earlier writ petition. In that writ petition as well, the respondents had defended their action by specifically stating that a major penalty had been imposed on the petitioner. Therefore, the contention of the petitioner that he understood the punishment in a different manner cannot be accepted. Likewise, the contention that the penalty imposed on him is incorrect and disproportionate cannot be accepted. Since the petitioner was found guilty in the discharge of his duties, a major penalty was imposed on him and he suffered the said penalty.
Promotion of an employee is not a matter of right. An employee only has the right to be considered for promotion in accordance with the extant rules and promotion policy. An employee cannot be promoted during the currency of a penalty; otherwise, the very purpose of imposing the penalty would be defeated, as such penalty is intended to correct the conduct of the incumbent. Denial of promotion in such circumstances is not a penalty, but only a natural consequence.
This position is also supported by the amendment to the IRCTC (Discipline and Appeal) Rules, produced as Ext.P24, which was made in tune with the guidelines contained in the Railway Servants (Disciplinary and Appeal) Rules, 1968. Therefore, the contention of the petitioner that Ext.P24 is arbitrary and illegal cannot be accepted.
In support of the contention, the learned Standing Counsel appearing for the respondent submitted that the position with respect to sealed cover proceedings was considered by the Apex Court in Union of India and others v. Sudha Salhan [(1998) 3 SCC 394], wherein it was held that the recommendation of the Departmental Promotion Committee (DPC) can be placed in a sealed cover only if, on the date of consideration of the employee’s name for promotion, departmental proceedings had been initiated or were pending, or though concluded, final orders had not been passed by the appropriate authority. It was further held that if the officer against whom departmental proceedings were initiated is ultimately exonerated, the sealed cover containing the recommendations of the DPC can be opened and the recommendation can be given effect to.
In the case of the petitioner, since a punishment was imposed on him, there was no requirement to adopt the sealed cover procedure. This view was also adopted by the Apex Court in State of M.P. v. J.S. Bansal [(1998) 3 SCC 714], wherein it was further clarified that the sealed cover could be opened only in cases of complete exoneration of the employee from all charges, and notional promotion could then be granted from the date on which his juniors were promoted. However, when a penalty is imposed, the sealed cover need not be acted upon. This position was reiterated in Food Corporation of India and another v. Abhay Ram [(2002) 10 SCC 455] and Union of India v. Mihir Kumar Bandyopadhyay and others [(2009) 16 SCC 329].
With respect to the contention of the petitioner that two punishments were imposed on him, the same was answered on the strength of the reported decision in Union of India and others v. K. Krishnan [AIR 1992 SC 1898], wherein it was held that there is only one punishment visiting the respondent as a result of the conclusion reached in the disciplinary proceedings leading to the withholding of increments, and the denial of promotion during the currency of the penalty is merely a consequential result thereof. The view that a government servant, who is suffering a penalty pursuant to disciplinary proceedings, cannot at the same time be promoted to a higher cadre is a logical one. The Apex Court held that such decisions are neither unjustified nor arbitrary and do not violate Articles 14 and 16 of the Constitution of India. This position was further upheld in K. Kunhunni v. Rubber Board and Others [1995 KHC 212].
In Union of India v. K.V. Janakiraman [AIR 1991 SC 2010], it was held that denial of promotion is not a penalty but a necessary consequence of the conduct of the delinquent. It is further clarified that if the direction is given for promotion, ignoring the period of punishment, the delinquent would stand rewarded notwithstanding his misconduct for the earlier period for which disciplinary proceedings were pending at the time of the meeting of the DPC.
I have heard Sri.P. Chandrasekhar, learned counsel for the petitioner, Smt. Asha Cheriyan, learned Standing Counsel for the respondents.
Upon evaluating the aforementioned contentions, it appears that promotion is not an inherent right of an incumbent. Rather, the individual's entitlement is limited to the right to be considered for promotion according to the procedure contemplated under the applicable promotion policy. According to the promotion policies produced as Ext.P1 and Ext.P13, no promotion shall be granted if an employee is undergoing a punishment such as:
• Reduction to a lower stage in the time scale of pay;
• Reduction to a lower time scale of pay;
• Withholding of increments; or
• Any other specified penalty.
Regarding the terminology used in the Ext.P14 punishment order, the petitioner was awarded a penalty of reduction in pay by two stages for a period of one year without cumulative effect. This penalty cannot be viewed as lightly as the petitioner suggests (i.e., as a mere withholding of two increments without cumulative effect).
Regardless of the interpretation sought to be placed by the petitioner, it remains a formal punishment imposed upon him for a specific duration, during which his promotion was legally denied. However, upon the expiry of the punishment period, the petitioner was duly promoted to the rank of Deputy General Manager (DGM) with effect from 21.07.2015.
As per the ratio laid down by the Apex Court in the cases of K.V. Janakiraman, K.Kunhunni, and K. Krishnan, supra the denial of promotion on the ground of an imposed penalty—and during the currency of such penalty—does not amount to double jeopardy or double punishment. Such a denial is merely a natural consequence of the disciplinary process. If the petitioner were to be granted promotion with retrospective effect during the period of punishment, it would effectively amount to rewarding the petitioner for the proved misconduct. Such an outcome would be contrary to the fundamental principles of disciplinary proceedings, which are intended to maintain and enforce discipline within the service of the establishment.
Similarly, the non-acceptance of the claim of the petitioner for ad hoc promotion as per Ext.P12 and the contention regarding the non-adoption of sealed cover proceedings are justified in the light of the imposition of penalty as per Ext.P14, its confirmation as per Ext.P16, and the review conducted by the Board and the confirmation thereof as per Ext.P22. In Ext.P22, it has been specifically held that immediately upon the completion of the period of punishment, promotion was affected in accordance with the Promotion Policy of 2012. Hence, the contention of the petitioner that promotion was denied on the basis of the Promotion Policy cannot be accepted.
In such circumstances, and considering that the petitioner has subsequently been granted promotion as well, I do not find any reason to interfere in the matter. Accordingly, the Writ Petition is dismissed.