Union of India vs Ramesh Ahluwalia

G.S. Singhvi. J.—This is a petition for quashing the order dated 6.11.2000 passed by the Central Administrative Tribunal. Chandigarh Bench (for short, ''the Tribunal'') directing the petitioners to hold Review Departmental Promotion Committee for considering the case of respondent No, 1 for promotion to the post of Senior Time Scale (Group A) Divisional Engineer.

The facts of the case are that respondent No. 1-Ramesh Ahluwalia joined service on 17.11.1967 as Engineer Supervisor in Telecommunication Department. He was promoted to Telecommunication Engineering Service (Group B) w.e.f. 30.6.1981 and then as Senior Assistant Engineer (Group B) after completion of 12 yearsservice. He filed an application u/s 19 of the Administrative Tribunals Act, 1985 with the prayerthat the petitioners (non- applicants No. 1 and2 before the Tribunal) may be directed to convene Review D.P.C. for considering his case for promotion to the cadre of Senior Time Scale (Group A) Divisional Engineer by alleging that 23 persons junior to him had been promoted on 19.12.1997 without considering his candidature.

The non-applicants did not controvert the averments made in the application that the candidature of the applicant (respondent No. 1 herein) had not been considered by the D.P.C. in 1997 and that 23 officers junior to him had been promoted vide order dated 19.12.1997. Notwithstanding this, they opposed the prayer of respondent No. 1 on the ground that two departmental enquiries initiated vide charge- sheets dated 29.12.1997 and 4.2.1998 were pending against him and as per Govt. India Order No. 4(i) below Rule 11 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 he was not entitled to be considered for promotion to the next higher post.

After considering the rival pleadings and hearing the counsel for the parties and taking note of the fact that during the pendency of the application, the applicant had been promoted to the Senior Time Scales (Group A), the Tribunal allowed the application and directed the petitioners to convene Review D.P.C. to consider the case of respondent No. 1 for promotion with effect from the date his juniors had been promoted. The relevant extracts of the Tribunal''s order read as under :

"That it is undisputed fact that the DPC meeting for considering the case of TES (Group B) officers for promotion to the cadre of Senior Time Scale Group A Divisional Engineer was held in November, 1997 and the applicant was very much within the zone of consideration, but he was not considered due to non- availability of his complete ACRs and the DPC had approved ad hoc promotion of juniors to the applicant who had actually been promoted vide order dated 19.12.1997 (Annexure A.5). Admittedly, there was no disciplinary or criminal proceeding pending or initiated against the applicant at the time of convening of this DPC meeting and after his complete ACRs had been made available, he would have been considered and if found suitable, his promotion orders would have also been issued w.e.f. 19.12.1997, since his juniors have also been promoted w.e.f. 19.12.1997. Though the learned Counsel for the applicant has tried to make a submission that Order No. 4 below Rule 11 of CCS (CCA) Rules, 1965 is not applicable in this case as the promotion made vide Annexure A.3 were on the basis of regular DPC against regular vacancies. These were neither short term vacancies nor leave vacancies nor till further orders as required for application of Order 4 (supra). However, we are not required to adjudicate upon the issue of application of Order 4 as that is not relevant for the purpose of disposal of the prayer of the applicant. Law is well settled that if an employee is not involved in the disciplinary proceedings or criminal case, i.e., not issued a charge-sheet in departmental proceedings and charge memo, is not in the criminal side, in a criminal court of law, then he should not be deprived of his right for consideration for promotion with effect from the due date. Reference can be made to a number of cases including Union of India and others v. Dr. (Suit.) Sudlia Salhan 1998(1) ATU 601 : 1998(1) SCT 804 and a D.B. judgment of this Tribunal in the cases of M.R. Bhagat v. Union of India and others, re- ported as 1993(2) ATU 194. Though the ratio of these cases is that till issuing of charge-sheet, no departmental proceedings/case can be said to be pending and sealed cover procedure cannot be adopted and promotion can be given yet the same ratio shall be applicable to the present case also, particularly, when juniors of the applicant have already been promoted vide order dated 19.12.1997.

For the aforementioned reasons, the claim of the applicant merits acceptance and the O.A. is allowed. Respondents are directed to convene a review DPC meeting to consider case of the applicant for promotion to Senior Time Scale (Group A) Divisional Engineer by taking into consideration the relevant service record required up to the relevant date i.e. 31.3.1997 which was the relevant record before the DPC convened from August, 1997 to November, 1997 on the basis of which order dated 19.12.1997 (Annexure A-3) was issued. In case, the applicant is found suitable on the basis of such consideration, he will be given promotion w.e.f. the date persons junior to him have been promoted as such. It is further clarified that the disposal of the present OA will not have any effect on the disciplinary proceedings which have been initiated by the department on the basis of charge-sheet dated 29.12.1997."

Shri Gurpreet Singh argued that the direction given by the Tribunal for convening the Review DPC may be declared as vitiated by an error of law and the impugned order may be quashed because as per the instructions issued by the Government of India, respondent No. 1 cannot be promoted during the pendency of the departmental enquiry. Learned counsel submitted that the order dated 19.3.1999 promoting respondent No. 1 to Senior Time Scale (Group A) was passed under a mistake of fact and that could not have been made basis by the Tribunal for directing consideration of his case for promotion with retrospective effect. However, in reply to the Court''s query, learned Counsel candidly admitted that the sole reason for non-consideration of the candidature of respondent No. 1 for promotion to Senior Time Scale (Group A) was the nonavailability of his ACRs and not the pending departmental enquiry.

We have given serious thought to the submissions of the learned Counsel and have carefully perused the record. In our opinion, the view taken by the Tribunal on the entitlement of respondent No. 1 to be considered for promotion to Senior Time Scale (Group A) Divisional Engineer w.e.f. 19.12.1997 is correct and does not call for interference by the Court because it is a settled proposition of law that a senior employee has a right to be considered for promotion prior to his junior and if junior is promoted without considering the case of senior then the latter can seek the court''s intervention, it is also a settled proposition of law that the right of consideration guaranteed to senior employee by virtue of equality clause enshrined in the Constitution cannot be defeated on account of the subsequent developments. In Shri Parvez Qadir Vs. Union of India (UOI), , a three Judges Bench of the Supreme Court considered a similar question in the context of the provisions of All India Services Act, 1951 and Indian Forest Service (Initial Recruitment) Regulations, 1966 and held as under :

"It was next contended that even if the selections are to be Made from amongst the persons who are members of the State Forest Service as on the date of the initial recruitment, the confidentials of those persons which have to be considered for adjudging their suitability for appointment should be those which have been written up to the time when the selections were in fact made. This argument, in our view, has no substance, because a moment''s reflection would show that if persons who are to be considered for initial recruitment are those who belonged to the service on the date of the initial recruitment, then the confidentials to be considered are only those pertaining to a period prior to that date. If this were not so, and the contention of the petitioner is accepted, then there would be a discrimination because while the suitability of those in service on the date of the initial recruitment has to be considered as on the date of the actual selection, the suitability of those who are dead or retired cannot be considered by reference to the confidentials of a later period, for the obvious reason that there can be no such record written up after the person has retired or is dead. We can find no justification for accepting the contention of the learned Advocate for the petitioner that suitability of a person has to be adjudged by reference to the confidential written up even after the initial constitution of the service on October, 1, 1966".

By applying the ratio of the afore-mentioned decision to the facts of this case, we hold that the impugned order does not suffer from any error of law requiring interference by this Court.

Hence, the writ petition is dismissed.

Petition dismissed.