R.K. Maheshwari vs Department Of Personnel And ...
2006 Latest Caselaw 1642 Del

JUDGMENT

Manmohan Sarin, J.

1. Petitioner, R.K. Maheshwari, is aggrieved by the dismissal of OA. No. 2081/2004 by the Central Administrative Tribunal, vide its order dated 16.1.2006 and dismissal of the Review Application No. 36/2006, preferred by the petitioner, vide order dated 6.3.2006 by the Tribunal.

2. Petitioners claim in the OA before the Tribunal was for promotion w.e.f. July, 1992 on the basis of his being declared successful and his name being included in the selection list at Sl. No. 59 in the Limited Departmental Competitive Examination for Section officer Grade-I against the vacancies for the year 1992. Petitioner had been officiating as Section Officer on adhoc basis since 1990. Learned Counsel for the petitioner Ms. Rani Chhabra submits that petitioner should have been promoted on the basis of the Select List issued by UPSC since there were no disciplinary proceedings pending and/or contemplated against the petitioner, which could be a bar for appointment to the post of Section Officer. The respondents, far from promoting him as Section Officer on 31.7.1993, reverted him from the officiating position as a Section Officer to an Assistant. It may be noted that respondents issued a Charge-sheet to the petitioner on 17.9.1993 and initiated a departmental enquiry after appointing an Inquiry Officer. The enquiry proceedings were delayed and the enquiry report was issued only on 24.12.1997 culminating in the order of censure on 22.7.1998. The respondents rely on DOPT OM No. 22011/4/91-Estt.(A) dated 14.9.1992, to urge that since a Charge-sheet had been issued to the petitioner before he was actually promoted pending the enquiry, he could not be promoted. The enquiry proceedings did not result in the exoneration of the petitioner, but in imposition of censure. Hence, during this interregnum, petitioner in terms of the said OM was not eligible for promotion. Petitioner was promoted to the post of Section Officer on 28.12.2001 vide order No. A 12025 (II) 3/14-Admn. III on the basis of his name being included in the select list of Section Officers for the year 1997 against the seniority quota.

3. Learned Counsel Ms. Rani Chhabra submitted that OM No. 22011/4/91-Estt.(A) dated 14.9.1992 on which reliance is placed by the respondents to deny the benefit of promotion to the petitioner from 1992, would not be applicable in the case of the petitioner as the same is applicable to promotions through interview and other evaluation by the DPC. In the instant case, she says, petitioner was seeking promotion as a result of an internal Limited Competitive Examination, where the procedure of sealed cover, as is specified under the OM dated 14.9.1992, would not be applicable. It would be relevant at this stage to reproduce relevant extracts from the OM dated 14.9.1992:

No. 22011/4/91-Estt.(A)

GOVERNMENT OF INDIA

MINISTRY OF PERSONNEL, PUBLIC GRIEVANCE AND PENSIONS

DEPARTMENT OF PERSONNEL & TRAINING

North Block, New Delhi-110001

Dated, the 14th Sept. 1992

OFFICE MEMORANDUM

Sub: Promotion of Government servants against whom disciplinary/Court proceedings are pending or whose Conduct is under investigation. Procedure and guidelines to be followed.

The undersigned is directed to refer to Department of Personnel & Training O.M. No. 22011/2/86-Estt.(A) dated 12th January, 1988 and subsequent instructions issued from time to time on the above subject and to say that the procedure and guidelines to be followed in the matter of promotion of government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgment dated 27.8.1991 of the Supreme Court in Union of India etc. v. K.V. Jankiraman etc. . As a result of the review and in supersession of all the earlier instructions on the subject (referred to in the margin), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.

2. 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 Departmental Promotion Committee:

(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.

2.1 xxxxxxxxxxxxxxxxxxxxxxxx

2.2 xxxxxxxxxxxxxxxxxxxxxxxx

3. xxxxxxxxxxxxxxxxxxxxxxxx

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4. The circular in its remaining paras provides for the sealed cover procedure awaiting the outcome of the disciplinary case/criminal prosecution. The said Memorandum also provides that if any penalty is imposed or he is found guilty in the criminal prosecution, the finding of the sealed covers/cover shall not be acted upon and the case is to be considered by the next DPC in normal course. The Memorandum also records the need to ensure expeditious conclusion of the disciplinary case/criminal prosecution and reviews by the authorities. It also makes a provision for ad hoc promotions depending on the nature of charges etc. Para 1 of the Memorandum does not contain any restrictive covenant confining its application to only cases of promotion by DPC. The subject and para 1 of the Memorandum refer to promotion of Government servant against whom disciplinary/court proceedings are pending or whose conduct is under investigation. Promotion could even be by way of an inter-departmental or other examination. The rationale of the OM is to provide for a mechanism where a person, whose conduct is under investigation, does not get promoted pending the investigation, while at the same time, the sealed cover procedure ensures that in case he is exonerated, upon conclusion of the enquiry, he does not suffer.

5. In the instant case, petitioner was subjected to a penalty of censure and as such, there could be no entitlement to promotion during the period of the enquiry. Ms. Rani Chhabra wishes to place reliance on Clause 20 under Rule 11 of the CCS (CCA) Rules, 1965, being the instructions contained in DGP&T OM No. 7/31/63-SPB-II dated 25.6.1965. These are reproduced for facility of reference:

(20). Official under suspension/facing departmental proceedings to be allowed to appear in departmental examination: The question whether an official who submits an application for permission to sit at the examination for departmental candidates, and against whom either disciplinary proceedings have been initiated or who is under suspension should be allowed to take the examination or not, has been under consideration for some time past. It has now been decided in consultation with the Ministry of Home Affairs that such an official might be admitted to the examination even though he may be under suspension or disciplinary proceedings might have been initiated against him, if he satisfies all the other conditions prescribed for admission to such examination. The official can, however, be promoted only after the disciplinary proceedings are over and he is completely exonerated.

If on the basis of the disciplinary proceedings any punishment is imposed (other than removal, dismissal, or retirement in which case the question would not arise) the appointing authority should consider each case on its merits to see whether a person should be promoted in spite of the penalty imposed on the basis of the results of the examination which he has passed. If it is decided to promote him, then he should be promoted only after the expiry of penalty (other than censure) but his seniority in the higher grade may be determined on the basis of the rank obtained in the competitive examination.

6. Relying on the above, Ms. Chhabra contends that the above instructions provide for being permitted to take examinations during the pendency of disciplinary proceedings. The said instructions also provide that if the punishment imposed is other than removal, dismissal or retirement, the authority should consider each case on its merit to see whether a person should be promoted. From the said instructions, it would be seen that in case of censure, one does not have to even await for expiry of the penalty. It also provides for determination of the seniority in the higher grade on the basis of the rank obtained in the competitive examination. She therefore, submits that as the penalty imposed was only of censure, this was a fit case for granting seniority to the petitioner at least from December, 1993 when the select list was prepared after his being declared successful.

6. Ms. Jyoti Singh, appearing for the respondents, had submitted that the provisions of OM of 14.9.1992 would be applicable in all cases where disciplinary proceedings are initiated irrespective of whether the promotion was by mode of departmental examination or by selection by DPC. The question to be determined is whether the instructions contained in the Memorandum of 25.6.1965 would be applicable to the petitioner. The said Memorandum firstly is issued by the Director General of Posts and Telegraphs. Hence, it is not of universal application and is an instruction applicable to the said department. It is not a case where the instructions are issued by the department of Personnel and Training, which would be applicable to all departments unless otherwise provided for. It may be noted that consolidated instructions on sealed cover procedure were issued on 12.1.1988 in supersession of the earlier instructions. The OM of 14.9.1992 superseded the instructions of 12.1.1988. Even as per the instructions of 12.1.1988 and that of 14.9.1992, if any penalty is imposed on a Government servant as a result of the disciplinary proceedings, the findings kept in the sealed cover are not to be acted upon. The instructions do not provide for consideration of the case of a Government servant for promotion upon imposition of the penalty on the basis of results of examination, which he had passed earlier. Individual instructions of DGP&T cannot be made applicable to Government servant working in other departments.

7. In view of the foregoing discussion, we are of the view that in view of the imposition of the penalty of censure, petitioner could not claim promotion on the basis of the inter-departmental examination result of July, 1992. The Memorandum of 14.9.1992 is applicable since before the petitioner could actually be promoted, the Charge-sheet had been issued and enquiry culminated in censure and not exoneration. The individual instructions of DGP&T would not override or supersede the Memorandum of 14.9.1992 issued by the DOPT. The impugned orders do not suffer from any infirmity warranting interference in the exercise of writ jurisdiction.