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Judgment
L. Narasimha Reddy, J
This OA, in a way, presents a typical situation. An analysis of the facts would disclose two extreme features which are opposite to each other, but strong in their own way. The relevant facts are as under:-
The applicant joined the service of the respondents as Junior Engineer (Civil) on 23.08.1988. He was promoted to the post of Assistant Engineer (Civil) on 27.02.1991, and as Executive Engineer on ad hoc basis on 07.01.1988. It is stated that no DPC was conducted for regular appointment to the post of Executive Engineers since 1998. It was only a decade thereafter, that a DPC was conducted in 2008, and the name of the applicant was considered for all the panel years. However, the recommendations of the DPC were kept in sealed cover on account of the fact that a minor penalty charge sheet was issued to the applicant in the year 2003, and further action was pending.
On 06.05.2008, the applicant was awarded minor penalty of Censure. The criminal cases that were pending against him ended in discharge or acquittal by the time, the DPC met next in December, 2016 for the purpose of recommending the names for the posts of Executive Engineers and Superintending Engineers. This time also, the name of the applicant was considered for the post of Executive Engineer, but the result thereof was kept in sealed cover, and his case was not considered for the post of Superintending Engineer. All through, he was continuing as Executive Engineer, on ad hoc basis.
The applicant submitted a representation dated 06.01.2017 to the respondents with a copy to the UPSC, requesting them to open the sealed cover; by placing reliance upon the office memorandum dated 14.12.1992 issued by the DoP&T. It is stated that though the Director of Local Bodies has opined that the case of the applicant is genuine, no action has been taken thereon by the respondents.
This OA is filed with a prayer to hold and declare that the sealed cover procedure adopted in applicant's case for the vacancy year from 1997-1998 up to 2003 for the purpose of consideration for promotion to the post of Executive Engineer without any basis, arbitrary and illegal, to direct the respondents to open the sealed cover in relation to the DPC meeting held in 2008, and to extend all consequential benefits. He further prays for a direction to the effect that he be treated as having been promoted to the post of Executive Engineer w.e.f. the date on which he was promoted on ad hoc basis on 07.01.1998, and to extend him all consequential benefits including the promotion to the post of Superintending Engineer.
The applicant contends that on being promoted on ad hoc basis, he was holding the post of Executive Engineer from 07.01.1998, and though he became eligible to be promoted on regular basis in that post, the same did not take place because of non-convening of the DPC meeting for a full decade. He further contends that even if the charge memo issued in 2003 constituted the basis for adopting the sealed cover procedure in the year 2008, the right that has accrued to him in respect of the vacancy years or panel years preceding the issuance of charge memo cannot be defeated.
It is the case of the applicant that an Executive Engineer, by name, Shri M. L. Khan, who too was promoted on ad hoc basis along-with him in 1998, was denied promotion by applying the sealed cover procedure in 2008, as in OA No.3619/2013 filed by him, relief was granted to the effect that the right that has accrued to him in respect of panel years preceding the date of issuance of charge memo cannot be defeated, and in compliance with the directions issued therein, the respondents passed order dated 16.01.2017. It is stated that in RA No.180/2014 filed in the said OA, a direction was issued to the effect that the applicant therein shall be entitled to be promoted as Executive Engineer with effect from the date of promotion of Mr. Dilip Ramnani, and that he is also entitled for similar relief.
The respondents filed counter affidavit opposing the OA. It is stated that once the applicant was facing the disciplinary proceedings, by the time, the DPC met in the year 2008, there was no alternative except to keep the result of DPC in a sealed cover, and once he was given punishment of Censure, the necessity to open it ceased to exist. It is also stated that the subsequent proceedings of DPC held in 2016 were also conducted in accordance with law and no illegality has crept into it.
It is not in dispute that the applicant was promoted as Executive Engineer on ad hoc basis on 07.01.1998, and the DPC was held for regular appointment for the post, only in the year 2008, i.e., after one decade. We are not concerned with the reasons for delayed conducting of DPC. In the year 2003, a charge memo for minor penalty proceedings was issued to the applicant. It was because of that, the sealed cover procedure was adopted. An employee cannot complain of the adoption of sealed cover procedure being adopted, in case the disciplinary proceedings were pending against him, by the time, the DPC met. The question that arises is as to whether the same procedure needs to be adopted in respect of panel years preceding the issuance of charge memo.
One way of looking at the issue is that the unstinted career of an employee preceding the charge memo and the corresponding right that has accrued to him to be considered for promotion during that period, cannot be permitted to be adversely affected on account of the delay in conducting of the DPC. Longer the delay in conducting the DPC, more complicated, the issue tends to become. Though there may be justification for making the employee to suffer consequences once the disciplinary proceedings are initiated, it does not appear to be reasonable or just to subject him to disadvantage, as regards the period that preceded the issuance of charge sheet.
In contrast, it can also be said that once the act of indiscipline is noticed, and the disciplinary proceedings are initiated, the effect thereof cannot be restricted by creating artificial barrier of time. Let an extreme case be taken in this context. There was no charge sheet for three years against the employee but was issued one, in respect of a trap case by the time the DPC met, and the employee was under arrest. Sealed cover procedure is adopted. Promoting such person on the ground that he was fit, before he was arrested, would be somewhat abnormal and extraordinary. In a given case, an employee may be under suspension on the basis of the disciplinary proceedings instituted before the DPC met. Requiring that he can be promoted in respect of the panel year preceding the initiation of disciplinary or criminal proceedings, may lead to totally unwarranted if not shocking results. Therefore, it would not be proper to split the periods, for this purpose.
We are now faced situation to choose between the two extremes, and to furnish reasons in support of the conclusion. The issue is more confounded, on account of there not being a precedent from the Supreme Court or High Courts, to our knowledge.
We are otherwise inclined to take the second view. However, we have come across a detailed judgment rendered by this Tribunal in OA No.3619/2013. That was also a case in respect of the respondents herein, and the applicant therein was an Executive Engineer who too was promoted on ad hoc basis, along with the applicant. He was also issued a charge memo long after he became eligible to be promoted and the sealed cover procedure was adopted as in the instant case. This Tribunal took the view that the effect of sealed cover procedure can be only in respect of the years subsequent to the issuance of charge sheet. Though there may be reservations about this view, the respondents permitted the order in the OA to become final, and the directions issued therein were implemented. The applicant therein is said to have been promoted as Executive Engineer and thereafter as Superintending Engineer, without taking into account the charge memo issued, when the DPC was due. Another factor that weighs with us is that the applicant continued to hold the post of E.E., albeit on ad hoc basis, even while the disciplinary proceedings were pending.
Though with a bit of reluctance, we follow the order dated 22.07.2014 passed in OA No.3619/2013, and direct that the applicant shall be promoted to the post of EE with effect from the date on which, his immediate junior in the post of Assistant Engineer (Civil) was promoted as EE and to extend him all consequential benefits, except arrears of salary or difference of pay. There shall be no order as to costs.