Union of India vs Manjit Kour

Mr. N. Paul Vasanthakumar, C.J. - This appeal is filed against the order made in SWP No. 2.142/1999, dated 03.08.2001 wherein the

respondent challenged the denial of promotion.

Brief facts of the case are that the respondent-writ petitioner filed a writ petition (SWP No. 2142/1999) seeking quashment of an order dated

07.04.1997 wherein the name of the respondent was deleted from the consolidated list E, circulated vide order dated 08.05.1996 and that the

respondent-writ petitioner was charged for an offences under section 40 of BSF Act on 11.10.1996. It was further stated that no offence has been

made out against the writ petitioner, therefore, the punishment awarded to him is against law and perverse of the evidence and that he was no

supplied the copies of summary trial proceedings as provided under section 129 of BSF Act, therefore, he could not file the appeal before the

competent authority against the sentence and finding of the summary proceedings.

The appellants herein filed the objections to the writ petition stating therein that the name of the writ petitioner was brought on consolidated list

E, but was deleted as he had committed a offence under section 40 of the BSF Act for which he was tried and was awarded Severe reprimand. It

was further stated in the objections that the writ petitioner had appeared in the DPC held at SHQ on 9th of November 1998 but could not qualify

the same and was declared fail in the DPC, therefore, he is not entitled for promotion to the rank of Subedar.

The writ Court allowed the writ petition on the ground that the name of writ petitioner was brought on consolidated list E, circulated vide order

dated 19.05.1994 for giving promotion and on the date of preparing E list, the writ petitioner was not facing any departmental enquiry, therefore

the denial of promotion after having been brought on List E, merely because he was punished for an offence said to have been committed on

1.6.1995 cannot be sustained.

Learned counsel appearing for the appellant submits that even though the writ petitioner was placed in the List E, before passing orders giving

promotion to the writ petitioner, he was proceeded with departmental enquiry and was imposed punishment of ""severe reprimand i.e. on

28.1.1997.

Learned counsel heavily relied on the office Memorandum No. 22011/4/91-Estt (A), dated 14.09.1992, issued by Government of India,

Ministry of Personnel, Public Grievances and Pensions, Department of Personnel & Training and argued that the order of the writ Court is liable to

be set aside. Paragraph 2 and 7 of the office memorandum reads thus:-

At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for

promotion falling under the following categories should be specifically brought to the notice of the Department under suspension:

(i) Government: servants under suspension;

(ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and

(iii) Government servants in respect of whom prosecution for a criminal charge is pending.

A Government servant, who is recommended for promotion by the Departmental Promotion Committee but in whose case any of the

circumstances mentioned in para 2 above arise after the recommendations of the DPC are received but before he is actually promoted will be

considered as if his case had been placed in a sealed cover by the DPC. He shall not be promoted until he is completely exonerated of the charges

against him and the provisions contained in this OM will be applicable in his case also.

On a perusal of paragraph 7, it is evident that the writ petitioner, whose name was recommended for promotion by the Departmental Promotion

Committee, could not be given promotion as he was facing the departmental enquiry and final punishment was imposed upon him on 28.01.1997

and the said order was not challenged by the writ petitioner, which has attained finality. Thus, the placement of the writ petitioner in the list E, for

promotion for the year 1996 cannot be acted upon.

It is also the contention of the learned counsel for the appellant that in the subsequent year, the writ petitioner participated in the DPC and was

not found fit for promotion. In such circumstances, the writ Court order cannot be sustained as the writ petitioner was proceeded with

departmental enquiry before the actual date of promotion and he was also punished with ""severe reprimand"" by order dated 28.01.1997. The

order of the writ Court is accordingly set aside. Resultantly, the appeal is allowed. No costs.