Union Of India And Ors vs Dr. Harbansh Singh

Heard the parties.

Petitioner has prayed for following relief:-

“The instant writ petition is directed against the order dated 24.11.2015 passed in OA No.332/2011 by the Hon’ble Central Administrative

Tribunal, Patna Bench, at Patna whereby and whereunder the learned Tribunal without taking into consideration the facts as well as the law arisen in

the case, has erroneously directed to the respondents/petitioners to complete the re-fixation of promotion of the applicant (in OA) within a period of

four months.â€​

Briefly stated the facts of the case is that respondent was appointed on the post of Assistant Medical Officer on 29.1.1979 and was posted at New

Jalpaiguri, North East Frontier Railway Hospital and subsequently as Assistant Divisional Medical Officer on 24.9.1987.

A departmental proceeding was initiated against the respondent vide charge-sheet dated 26.01.1994 but he was exonerated from the charges by order

dated 18.05.2006 passed by the disciplinary authority.

Respondent was considered for promotion by the Departmental Promotion Committee on 23.8.1994, however, his case was kept in sealed cover due

to major penalty charge-sheet and only on 18.5.2006 when he was exonerated from the charges, respondent was granted promotion to Senior Scale as

Divisional Medical Officer on regular basis w.e.f. 30.8.1994 from the date DPC found him fit for promotion and again respondent was granted

promotion to Junior Administrative Grade w.e.f. 17.3.1999 by office order dated 6.3.2007.

Case of respondent for promotion to selection grade was considered alongwith others from approved panel in the meeting of DPC held on 25.6.2002,

7.3.2003, 29.4.2004, 29.9.2005, 8.8.2006 and 18.7.2007 but he was found unfit by the DPC as his performance was found below the benchmark.

The representation of the respondent was rejected by the railway board by its order dated 4.9.2009 which was placed on record and was self-

explanatory. In the supplementary affidavit, filed on behalf of Union of India, minutes of the DPC has been enclosed which shows reasons for

respondent being found not fit for promotion in selection grade by the DPC in its meeting held from 2003 to 2007.

It is submitted on behalf of counsel for the Union of India that all these facts were placed on record by filing written statement, however, learned

tribunal has directed to give notional promotion in selection grade w.e.f. 25.6.2002 and senior administrative grade w.e.f. 25.6.2009 overlooking the

fact that respondent was not denied promotion due to pendency of any departmental proceeding but on the ground that DPC did not found him fit for

promotion due to performance being below the benchmark.

The relevant paragraph of order passed by the tribunal is reproduced below:-

“After going through the entire record and pleadings, since the respondents have not disclosed any material other than a very cursory averment

that the applicant was not selected by the DPC held in 2003, 2004, 2005, 2006 & 2007, we are inclined to believe that the denial of Selection Grade

was on account of pendency of departmental proceeding. Since the departmental proceeding finally ended in exoneration of the applicant and dropping

of the charges, the balance of convenience lies in favour of the applicant that his third promotion should also have been likewise ante-dated as it was

done in the case of first two promotions. Since the applicant has already retired, it is not worthwhile to ask for his representation on the old adverse

ACRs, nor is it worthwhile to hold review DPCs. It would meet the ends of justice if the applicant is given notional promotion to Selection Grade

w.e.f. 25.06.2002, and SA grade w.e.f. 25.06.2009, i.e. the dates on which his juniors were given these promotions and his pension is re-fixed.

Respondents are directed accordingly to complete the re-fixation of pension within a period of four months. The OA is accordingly disposed of.

Accordingly, MA/00187/2015 and MA/050/00215/2015 are disposed of. No order as to arrears, interest and costs.â€​

After hearing counsel for the Railways as well as counsel for the respondent, the order dated 24.11.2015 passed in OA No.332/2011 by the Central

Administrative Tribunal, Patna Bench, at Patna is neither sustainable in law nor on fact and is accordingly, set aside and the case is remanded to the

Tribunal to consider the matter afresh and pass an order in accordance with law after hearing both the parties.

The writ petition is disposed of.