Ashok Kumar Jaiswal vs The Union Of India And Another
2014 Latest Caselaw 5423 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 36
 

 
Case :- WRIT - A No. - 54012 of 2007
 
Petitioner :- Ashok Kumar Jaiswal
 
Respondent :- The Union Of India And Another
 
Counsel for Petitioner :- P.V. Singh
 
Counsel for Respondent :- Govind Saran,S.C.
 

 
Hon'ble Rakesh Tiwari,J.

Hon'ble Karuna Nand Bajpayee,J.

(By Hon'ble Rakesh Tiwari, J.)

Heard learned counsel for the parties and perused the record.

The facts of the case in brief as culled out from the record are that the petitioner was appointed on 26.07.1976 on the post of Junior Clerk (CG-II) in the ministerial cadre in the Railway under the Deputy Controller of Stores, Central Railway, Jhani (now Deputy Controller of Stores, North Central Railway, Jhansi). He was promoted as Senior Clerk (CG-I) in November 1981 and opted for non ministerial side. Thereafter the promotion of the petitioner was due in the pay scale of Rs.1400-2300 Revised Pay Scale for non ministerial Cadre (D.S.K.-III) in the year 1988. At that time he was served with the charge sheet and disciplinary proceedings were initiated against him for the following charges :-

(i).Shri A.K. Jaiswal, Senior Clerk while working as a Security Clerk at main gate of Dy. COS/Jhansi, that on 24.11.1987, he in collusion with the contractor Shri Om Prakash Bihari Lal attempt lesser items and quantity of returnable items then due against lot No.36 and manipulated the figures of receipt fradulently for higher receipt.

(ii).He altered the entries in the register of Railway Protection Force for returnable items against lot No.36 to indicate exaggerated figues of receipt and also made entries for some items with quantity when there were no receipt at all with a view to defraud railways and gain to private parties. He was apprehended while making these false entries in the register by Shri Om Prakash Sharma, Nayak."

Due to pendency of inquiry, the name of petitioner was not included in the list of promoted candidates regarding which he moved a representation dated 6.12.1988 before the Deputy Controller of Stores, Jhansi. On conclusion of disciplinary proceeding, an order dated 10.09.1991 was passed imposing "penalty of reduction to two stages lower in the same time scale", hence, his pay was reduced from Rs.1410/- to Rs.1350/- in the revised pay scale of Rs.1200-2040 for the period of two years from the date of order. A further direction was also issued that on the expiry of aforesaid period, the reduction will not have the effect of postponing the future increments.

Aggrieved by the aforesaid order, departmental appeal was preferred, by the petitioner on 21.10.1991 under the Railway Servants (Discipline & Appeal) Rules, 1968 (hereinafter referred to as Discipline & Appeal Rules) before the Controller of Stores (M.T.P.), Central Railway Board V.T. During the pendency of the appeal, the petitioner was served out punishment imposed upon him. A number of representations were submitted by him claiming proforma promotion with retrospective effect but in vain. The claim of petitioner was rejected vide order dated 3.11.2000. He then moved another representation dated 6.11.2000 to respondent no.2 claiming that in view of Rule-6 of Discipline & Appeals Rules, penalty imposed upon him under the order dated 10.09.1991 fell under the purview of minor penalty, hence, in view of the letter dated 4.3.1993 issued by the Railway Board, as such after serving out the penalty, he was entitled to all his service benefits with retrospective effect as well as promotion order kept under seal cover procedure to which he was entitled w.e.f. 29.11.1988 i.e. the date when his juniors were promoted by the order dated 3.11.2000 ignoring the effect of penalty.

The petitioner then challenged the validity, legality and correctness of the order dated 3.11.2000 in Original Application No.422 of 2001 before the Central Administrative Tribunal, Allahabad which was dismissed vide order dated 30.07.2007. The discussion and reasons given by the Central Administrative Tribunal for rejecting the claim of the petitioner are contained in paragraph nos.7 to 11 of impugned judgment of Tribunal dated 30.7.2007, which for ready reference are being produced herein below:-

7. The question is as to when a cause of action arose to the applicant, for coming to the tribunal for claiming promotion to the grade of DSK-III from retrospective date i.e. 29.11.1998. Period of limitation prescribed under section 21 of the Act of 1985, is to be reckoned from the date the cause of action arose. Undisputedly, the applicant was promoted to that grade w.e.f. 17.5.1995, though according to him, he ought to have been promoted w.e.f. 29.11.1988. The respondents never say that prior to letter dated 3.11.2000 (A-1), the request of the applicant for giving promotion from 29.11.1988 was ever turned down, by passing an express order. In the circumstances, it can be said that cuase of action arose, on communication of letter dated 3.11.2000 (A-1), when the respondents rejected his representation dated 6.7.2000. We think O.A. Is not time barred. Moreover, it has already been admitted for hearing, vide order dated 19.4.2001.

8. Coming to the merits, Shri R.K. Nigam has fairly conceded during the course of oral submissions, that in a case where any penalty is imposed as result of disciplinary proceedings (as is the case in hand) the findings of sealed cover will not be acted upon and his case for promotion will be considered by the next DPC in normal course. Assuming for the sake of arguments that sealed cover procedure ought to have been followed in the case of applicant in 1988, recommendation of DPC could not have acted upon, because the pending proceedings resulted in penalty. Had the applicant not been found guilty in those proceedings, there could have been occasion for us, to examine whether by not allowing sealed cover procedure, the respondents committed any illegality and whether, he should be promoted from date.

9. The case of the applicant was considered in 1995 and he was promoted on 17.5.1995 to the grade of DSK-III. There was nothing wrong as according to the respondents no such promotions took place in between 29.11.1988 to 17.05.1995.

10. We fail to understand as to how the applicant is claiming relief for promotion to DSK-II and DSK-I, when he failed to qualify for regular promotion to DSK-II, in 1998.

11. The O.A. Is devoid of merits and is dismissed, but with no order as to costs."

It is the aforesaid judgment that is challenged on the ground that as the appeal of the petitioner remained pending, he in the hope of its decision by the appellate authority, was compelled to move Original Application No.422 of 2001 before the Central Administrative Tribunal, Allahabad; that as per Rules-4 and 5(2) of the Discipline & Appeal Rules, the "sealed cover procedure is applicable in the case of petitioner as the disciplinary proceedings were pending at the relevant time. Thus the respondents have committed an illegality by declining promotion to the petitioner from the retrospective date of promotion of his juniors; that he was entitled to the promotion in view of Rule-6 of Discipline & Appeal Rules as penalty imposed upon him fell in the realm of 'minor penalty' and that ignoring of the provisions of circular dated 4.3.1993 issued by the Railway Board which provided that a government servant on whom a minor penalty is imposed after the conclusion of disciplinary proceedings would be entitled to all his service benefits with retrospective effect.

Per contra, Shri Govind Saran, learned counsel for the Railways, submitted that petitioner was issued a charge sheet on 24.08.1989 for major misconduct. A vigilance inquiry was conducted in which the petitioner was found guilty of recording receipts of excess quantities of returnable items fraudulently, against lot No.36 sold to the purchaser. A major penalty against him was imposed for his involvement in the matter. After serving out the punishment, he was promoted as DSK-III on 17.05.1995. It is vehemently argued that no promotion had been made in this grade by the office from 1988 to 1995. Thereafter the petitioner has been promoted as DSK-II on adhoc basis i.e. selection post grade of Rs.5500-9000 vide office order dated 6.4.1998 but as he could not qualify in the selection, he was reverted from DSK-II to DSK-III which was his substantive post.

After hearing the counsel for the parties and perusal of record, we have put a specific query to learned counsel for the petitioner as to how he could be promoted when he could not qualify for the post of DSK-II, but no reply has been given by the counsel in this regard.

It appears from record that petitioner was served with a charge sheet for major misconduct and not for minor misconduct. His contention, therefore, that he ought to have been promoted in view of the provisions of Rules 4, 5 and 6 of the Discipline & Appeal Rules is not tenable. We also find that no person had been promoted during the period from 1988 to 1995, therefore, the Tribunal has rightly come to the conclusion in Para Nos.9 and 10 that after his promotion on 17.05.1995 the grade of DSK-III the appellant could not have been granted relief for promotion to DSK-II and DSK-I as claimed by him, when he failed to qualify for regular promotion to DSK-II in the year 1998.

We are in agreement with the conclusion arrived at in the judgment impugned dated 30.07.2007 passed by the Central Administrative Tribunal, Allahabad in Original Application No.422 of 2001 which is upheld.

For all the reasons stated above we do not find any illegality or infirmity in the judgment impugned. The writ petition is accordingly dismissed.

Cost on parties.

Order Date :- 1.9.2014

M. Kumar