Central Administrative Tribunal - Chandigarh
Dev Raj vs M/O Defence on 18 July, 2017
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
CHANDIGARH
OA No. 060/01111/2016
Order Reserved on: 10.07.2017
Order Pronounced on: !1%.07, 2037
CORAM: HON'BLE MR.JUSTICE M.S. SULLAR, MEMBER (J}
HON'BLE MR. UDAY KUMAR VARMA, MEMBER (A)
Dev Raj, Chief Engineer/Joint Director General (Personnel and Training}
aged S8 years son of Sh. Narmo Ram, O/o Chief Engineer, Western
Command, Chandimandir, Panchkula, Haryana ~ 134107.
sascuccoonnes Applicant
Argued by: Ms. Jyoti Singh, Sr. Advocate with Mr, Rajiv
oH
Manglik & Mr. Himanshu Singh, Advocates
VERSUS
Union of India through the Secretary, Ministry Defence, South
Block, New Delhi~ 110 O11 moe
Engineer-in-Chief, THQ, Ministry of Defence {Army}, Rajaji Marg,
Kashmir House, New Delhi-~ 110-01 1.
Chief Engineer, South. Western. -Command, Jaipur (Rajasthan),
Pin ~ 908546, C/o 56 APO.
Chief Engineer, Western Command, Chandimandir, Panchkula,
' Haryana, Pin ~ 908548, C/o 56 APO.
Sh. Hukam Singh Pal, Jt. DG(RTI & Legal), HQ, CE, Central
Command, Lucknow, Uttar Pradesh, Pin - 908543, C/o 56 APO.
Sh. Sanjeev Gehlot, O/e ADG (Design & Consultancy}, Range,
Hills Road, Kirkee, Pune, Maharashtra,
Sh. Ratnesh Kumar, Jt. DG, HO, ADG (OF & DRDO} O/o DRDO,
Secunderabad, Andhra Pradesh, Pin - 900453, C/o 56 APO.
sensssecess Respondents
Argued by: Mr. Ram Lal Gupta, Advocate for respdts. 1-4,
Ney
Mr. G.S. Bal, Sr. Advocate with Mr. Sanjay Goyal
for respdt. No. 7.
None for the other respdts.
ho
O.A, 060/01111/2016
ORDER
HON BLE MR. UDAY KUMAR VARMA, MEMBER (A}:-
The applicant, who is a Chief Engineer (CE) in MES, Ministry of Defence, is before us aggrieved by the denial of vigilance clearance by the vigilance wing of Ministry of Defence for posting as Chief Engineer,Zone abbreviated as CE(Zone}. This denial has resulted in taking away from him his claim for the said posting and led to his Junior, one Ratnesh Kumar, being posted as Chief Engineer(Zone). Through this OA filed under Section 19 of Administrative Tribunals Act, 1985, the applicant has sought a direction to respondents Na. 1&
2 to issue orders for vigilance clearance and ther to issue directions a * to the official respondents No. -?..8' 2 to. include the name of the applicant in the posting proposal 3 Chief Engineer Zone as the names of jurors to the applicant-as per seniority list maintained by Engineer- in-Chief's Branch, New Delhi, have been processed for Posting as Chief Engineer Zone by respondents No. 2 ignoring the legitimate claim of the applicant.
2. Interim relief has been sought to the extent that during the _ pendency of the OA, the approval of posting proposal as CH, Zones by competent authority may be stayed. Vide order dated 15.12.2016, this court ordered "that posting out of proposal shall be subject to the final outcome of this OA."
3. MA No. 060/00076/2017 was also filed praying that the respondents may be restrained from filling the next (10th) vacancy of Chief Engineer Zone, as the person proposed to be posted against this Ney Ne, G.A. O60/01111/2016 vacancy was junior to the applicant and he was asked to join by 2ist February, 2017. This MA was disposed of on 10.02.2017. While passing a detailed order, this Bench restrained the official respondents "from filling up the next (10%) vacancy of Chief Engineer Zone which, according to the order of the respondents dated 06.01.2017, is to go to Ratnesh Kumar, who was junior to the applicant, till the next date of hearing." Against this order Ratnesh Kumar, respondent No. 7 in the present OA filed a CWP No. 11382/2017 in the High Court which was disposed of with the following observations:-
The instant writ petition assails the interlocutory order dated 10.02.2017 passed by the Central Administrative Tribunal, Chandigarh Bench in the pending Original Application, whereby after detailed discussion, the THbunal has restrained the official respondents "from filling up. the next (10th) vacancy of Chief Engineer Zone which, according the order of the respondents dated 06.01.2017, is to go to Ratgei Kumar, who is junior to the applicant, till the next-daté 6! i S ? .
¥ ef [2] The petitioner before us is Ratnesh Kumar. (3] The orders placed on record by the petitioner reveal that the matter has been adjournéd on two occasions for the reasons beyond the control of the Tribunal. The Original Application is now listed for arguments on 10.07.2017. [4] Though the writ petition has been filed on the basis of subsequent events, namely, six vacancies have become available after passing of the above-stated orders and thus the petitioner can be posted without affecting the rights of the respondent-applicant before the Tribunal. Nevertheless, we are of the view that the entire controversy would stand] resolved once the Tribunal decides the main case on the date fixed.
{S| We thus dispose of this writ petition with a request to the Tribunal to decide the main case on the date fixed, i.e., 10.07.2017. However, in the event of further adjournment due to some unforeseen circumstances, the petitioner shall be at liberty to get the order dated 10.02.2017 modified on the basis of subsequent events, referred to in the writ petition.
Ordered accordingly."
Hence, we proceed to decide the instant OA.
O.A, O6O/O1111/2016
4. The applicant has based his case on several arguments.
His first argument is that the inquiry conducted by Staff Court of Inquiry (SCOI) against the applicant is ab initio void because the applicant is a civilian officer and is not subject to the jurisdiction of Army. The SCO! essentially constituted under Army Act, can not enquire the conduct of a civiian, He has further stated that para 10(3) of Indian Defence Service of Engineers (Recruitment and Condition of Service) Rules, 1991 published vide SRO 4E of 1991 stipulates as . follows:
"The members of the services (Le. Indian Defence Services of Engineers) shali be liable to attend and participate in the Court of Inquiry under Army rules against the Army Officers appointed to the services under the Military, Engineer Services (Army Personnel} Regulations, 989) 'The members of the services who ; a a a:
Yk : i BS aes :
are not governed by t lles:shall be governed by the rules and other otowisiatis: ae "may be made applicable to therm from time to time by the Government.
{b) IDSE Rules, 9004: - The above provision has been amended as under vide Para 10 (4) of S.R.O.95 published in gazette of India: 10 July 2004, which supersedes SRO 4, mentioned above. The same reads as under: oO "The condition of the service of the members of the service in respect of matters for which no provision is made in these rules shall be same as are applicable to the officers of the Central Civil services from time to time."
(c} From the Army Act, 1950, Chapter-l, it can be seen that civilians are nat covered by Army Act.
In addition to above, applicant has further stated that ADG (D&V}, AG's Branch Army HQ has also issued policy in August 2013 on conduction of SCOL, wherein it is amply clear that the civilian officers are not liable for any disciplinary action on the basis of SCOI when TBOs is already finalized. Para 6(b) of the sare reads as under:
Noa a O.A. 060/011 1/2016 "(b) Civilians in the Defence Services are governed by CCS {(CC&A) Rules, 1965. In accordance with these Rules, only the appointing authority is competent to direct and inittate disciplinary action. In MES related cases, generally, two enquiries are ordered, one by the Department and the other as Staff F of 1. A Departmental Inquiry is a legal necessity in order to proceed against civilians under the provision of CCS (CC&A) Rules, 1965 wherein only the appointing authority is competent to direct and initiate disciplinary proceedings."
3. To further supplement his contention, the applicant has placed before us a document which is entitled 'Convening Order: To Investigate Irregularities Committed by Military Personnel Posted with Chief Engineer Jaipur Zone Commanders Works Engineer, Jaipur and Garrison Engineer, Bharatpur.' This confidential document in Para No.1 clearly meritions:
eT A court of inquiry y C6 séq under will assemble at a place; date and time to be fixed bythe 'Presiding Officer to. ascertain irregularities committed by Mialit tary personnel posted with Chief Engineer, Jaipur Zone, Commander Works Engineer, Jaipur and Garrison Engineer,. 'Bharatpur ire. ie case of Contract Agreement Number CE JZ/BPR- '18 20040 Os."
it is evident from the above, the applicant argues, that SCOI was never constituted to conduct inquiry against the applicant but was instituted 9 ascertain irregularit ties committed by military personnel posted with Chief Engineer Jaipur Zone, Commanders Works Engineer, J aipur and Garrison Engineer, Bharatpur and therefore, any report of SCO] in respect of the applicant, whose conduct can not be a subject matter of inquiry by SCO] is ab initie void and illegal.
The applicant further contends that "the timeline for completion of SCOI as per ADG (D&V) AG's Branch Army Hq Policy Instructions:
issued in August 2013 is as under:
O.A, O60/O11 11/2016 fa} Assembly of COL Within fifteen days of issued of convening order.
(b] Completion of COL: Within 90 days of assembly.
(c} Issue of directions by: Within 30 days of completion Convening Authority."
However, in this case the report was submitted on 26.07.2016, grossly violating timelines prescribed for the same and therefore, even on this account the inquiry seems tc have become irregular and illegal.
6. he second argument of the applicant is that even for argument sake, the SCOI is treated as a preliminary inquiry, it still attracts provisions of Ministry of Personnel, Public Grievances and Pensions letter No.11012/11/2008-Estt.A dated 14.12.2007, dealing with the requirement of. vigilance clearance report. 'The relevant para namely paragraph 2 of this ON which was read out by the applicant is as under: Poe Soon Phe i= "ts "The circumstances unter which] vigilance clearance shall not be withheld shall be as undér:- oe fa} Vigilance clearance shall not be withheld due to the filing of a complaint, unless it is established on the basis of any information that the concerned department may already have in its possession, that there is, prima facie, substance to verifiable allegations regarding (3) corruption {ii} possession of assets disproportionate to. known source of incorne {iii} moral turpitude
(iv) violation of the Central Civil Services (Conduct) Rules, 1964.
(b} Vigilance clearance shall not be withheld if a preliminary inquiry mentioned in para 2(a} above takes more than three months to be completed.
7. The applicant has argued that first of all the allegations against him did not pertain either to corruption, possession of assets disproportionate to known source of income, moral turpitude, violation of the Central Civil Services (Conduct) Rules, 1964. Secondly, even if 4 the said inquiry is deemed as preliminary inquiry, the Same >] OA. O60/01111/2016 preliminary inquiry, if not completed within three months, entitles the applicant for a vigilance clearance and it was incumbent upon the respondents to give the applicant vigilance clearance as in his case the SCQI has clearly taken far more than three months to complete the inquiry. In other words, there was no way vigilance clearance should have been denied to the applicant.
8. The applicant has further argued that the distinction being drawn by the applicant between the post of Chief Engineer and post of Chief Engineer Zonal and identifying only the post of Chief Engineer Zonal ig a sensitive post in terms of serial no.7(a) of appendix H of "Cadre Management of MES Civilians Officers-Guidelines" is fallacious ~ a sy h. _ :
et eo ™ Oye . eS . cot we ye .
and not acceptable for the. simple-season 'hat firstly this distinction has not been manifestly made : rial no.7 (a) of appendix H and affidavit of Lt. Gen, 'Su a, AVSM, Engineer-in-Chief, Engineer-in-Chief's Branch, can be taken as mere interpretation of rule that can not override the actual position of rule. Accordingly to the applicant, in a zone, more than one CE could be posted and one of them could be designated and posted as CE(Zone). In such a situation all CEs posted in a zone occupy executive and sensitive post and are subject to the provision of Para 18 of the Guidelines for posting in MES. The applicant asserts that the post of Chief Engineer is also as sensitive and executive as post of Chief Engineer Zonal is and therefore, if he has been promoted as Chief Engineer in spite of inquiry pending against him even though void ab initio, withholding his posting as Chief Engineer Zonal, is clearly wrong, discrimimatory and illegal.
O.A, 060/01 111/2016 Sg. The respondents have rebutted the claim as well as the arguments of the applicant vehemently both in their Written Statement as well as through Affidavits filed subsequently. In their rebuttal, they have relied upon the affidavit fled by Lt. Gen. Suresh Sharma, AVSM, Engineer-in-Chief, Engineer-in-Chief's Branch, New Delhi, dated 29.5.2017 wherein paragraph 5 states that the pest of Chief Engineer mentioned at serial no.7 (a} of Appendix H refers to Zonal post only, which is a sensitive and executive post. Counsel for the respondents, further argued at the time of hearing that the provision of para 2 of Ministry of Persormel, Public Grievances and Pensions letter dated 14.12.2007 were applicable to the case of the applicant and as an inquiry report was received.on 26,07,2016 before the Chief Engineers aes git 4 were given posting as} Chi bene Zonal, it was considered appropriate and in ordet to withhold vigilance report of the applicant subsequently based on the report of SCOI that indicts the applicant.
Subsequently, the competent aixtHiotity has now decided to initiate disciplinary proceedings against the applicant under Rule 14 of CCS (CCA) Rules, 1965. He placed before us a copy of the note sheet dated 12.5.2017 signed by one Ajay Kumar, Under Secretary (Vig-I}, Ministry of Defence, which is a communication from Ministry of Defence, Vigilance Wing to Joint ba (D&V} stating in paragraph 2 "I has been decided with the approval of the Competent Disciplinary Authority ie. Hon'ble RM to initiate disciplinary proceedings against Shri Dev Raj, under Rule-i4 of CCS (CCA) Rules, 1965. Accordingly, -
-in-C's Branch is requested to provide Draft charge~sheet, vigilarice report, Bio-Date etc. as per CVC's guidelines in respect of Shri Dev Raj a O.A, 060/011 11/2016 for imitiating disciplinary proceedings at the earliest for further processing of the case,"
10. The counsel for the respondents submitted that in the overall interest of the organization and given the fact that the post of Chief Engineer, Zone is that of great responsibility, the same was withheld and now that there is decision to issue charge sheet to the applicant, their decision stands vindicated. The applicant is under a cloud and therefore, cannot be given charge of Chief Engineer, Zone, which is a sensitive and executive post. Such a decision is in consonance with the Revised Policy for the posting of MES. officers dated 9.10.2015.
ii. Towards the cornclusien of hearing of the OA, the respondents by way of reply fo Mya No1060/00909 /2017 have stated that residual service of the applicant as Chief Engineer is only one year and four months (his date 'of-retitement being 31.10.2018}, hence he is not eligible for all future appoininients of Chief Engineer Zone /CCE as per posting policy issued by Govt. of India, MOD letter No.P.No.6(12)/2015/D(Works II) dated 09.10.2015 wherein minimum O2 years residual service is required to hold the appointment of Chief Engineer Zone/CCE. It may be noted that this plea was never taken in the written statement by the respondents as well in other replies placed before us.
x
12. As regards the argument of the applicant that the SCOI can not enquire against a civilian officer as it is constituted under Army Rules and therefore such enquiry is ab initio void and without jurisdiction and further that the inquiry to begin with only involved the \e, 10 O.A, 060/011 11/2016 conduct of army personnel and not of the Applicant, the respondents referred to .a MES Engineer-in-chief's letter dated 29.5.2003. The relevant extract from this letter reads as below:
"3. Where both Army and civilian officers are involved COI /BO! must be ordered by Staff authorities for the Army / Air Force/Navy ie. by GOC-in-C/AOC-in-C/FOC-in-C for the respective service. Disciplinary action against civilian officers should be taken after receipt of concurred Staff Court of Inquiry. Show cause Notice should be issued to all the blamed officers for the charges for which they are blames individual based on which charge is to be proved. Issue of Show Cause to be dispensed with if an individual is retiring in next 6 months. So far combatants are working concerned, action to be taken as per Army Rules.
4. Appropriate engineer authorities (CE Command/CE Zone for Army Works, CE Air Force/CE Navy for Air Force {Navy Works} be consulted before ordering any inquiry and Terms of Reference be finalized in consultation with that authority."
ut?
S By invoking the above letle® thees sondents sought to justify the "ey SCO! holding an enquiry: against theapplicant.
1cy
13. 'The respondents havéi:also during the course of oral "
submission referred to iwe judgments namely Dr. N.C. Singhal vs, Union of India and others (Civil Appeal No.2067 of 1979 decided on 19.03.1980} reported as AIR 1980 SCC 1255 and V. Jagannadha Rao and others vs. State of A.P. and others (Civil Appeal Nos.9643-9644 of 1995 decided on 07.11.2001), reported as AIR 2002 SC 77. We have carefully gone through these two judgments. However, we are afraid that the facts, circumstances and the issues involved in the instant O.A. are distinct and different from those in these judgments and therefore, without going into discussion on what Apex Court has held in these two judgments, unhesitatingly observe that these ruling are not applicable to the instant case.
Ne~ il O.A. 060/011 1/2016 14, We have given our thoughtful consideration to this whole matter, have perused the records in this regard and have carefully followed the arguments of rival counsel during oral submissions. 1S, It may be appropriate at this stage to reproduce below the relevant extracts from the two documents which are crucial for adjudication in this matter. The first one is the DOPT circular dated
14.12.2007, the same is reproduced below:
"No.11012/11/2007-Estt.{A} Government of India Ministry of Personnel & Public Grievances & Pensions (Department of Personnel & Training} New Delhi, Dated the 14th December, 2007 hee aes Te S Subject: - Guidelines regarding-grant df vigilance clearance to _ members of the Central Civil Services/Central Civil posts.
F sey.
XXK
93. The circumstances under which vigilance clearance shall not be withheld shall be as under:-
(a) Vigilance clearance shall not be withheld due to the filing of a complaint, unless it is established on the basis of any information that the concerned department may already have in its possession, that there is, prima facie, substance to verifiable allegations regarding (i) corruption fii} possession of assets disproportionate to known source of income (ili) moral turpitude
(iv) violation of the Central Civil Services {Conduct} Rules, 1964.
(bo) Vigilance clearance shall not be withheld if a preliminary inquiry mentioned in para 2(a} above takes more than three months to be completed.
fc} XOCx (dd) Xxx fe) Axx RXK"
Ww 12 OLA. 060/011 11/2816 The second document is guidelines from Ministry of Defence "Cadre Management of MES Civilians Officers".
Relevant paras, namely para 18, para 5 of Appendix F and para 7 of Appendix H "18. Discipline and Vigilance: As per existing CVC guidelines, officers who are not cleared from vigilance angle in terms of Ministry of Personnel and Public Grievances & Pensions letter No.11012/11/2007-08 Estt. (A) dated 14.12.2007 fas amended from time to time) shall not be eligible for executive appointments."
Appendix F "S. Chief Engineer (CE/CCE) {a}. This is a senior administrative grade level post which controls ali execution and management of services and policy 1 making of the department as a whole. The post of CE Zone/CCE is a key assignment in the MES as all constructions and management of MES is controlled by this office. _ (b} Officers for mannirig.' these, i Feanes! CES will be caresay officers for these posts"
0) Seniority will not: be the e enly riteria for being considered for i feers should have minimum 4 and all APAR of CWE/STE _ Officers who have shown unwillingness ¢ to shoulder responsibility as CWE in the past will not be considered for nomination for zonal CE/ CCE.
{fii}. The technical background and specialization will also be considered for selecting CEs/CCE for various specified zones.
(iii) Cadre will be taken to send officers at CE level to various Zones/CCEs, depending upon their experience.
(iv) The normal tenure of CH/CCE will be two years, depending upon the organizational requirement, (v} Residual service to be two years as on the date of planning of posting based on availability of Zonal Chief Engineer/CCE posts.
Appendix H "1. XXX
2. XX
3. XX 4, XXX 3 EEX
6. XXX
7. At Zonal CE level \w, (a} Chief Engineer.
(b) Addl. CE dealing with procurement of stores and HR functions.
O.A. 060/01111/2016 c} Dir (Contracts).
(ce) D {a} Dir. (Pers. & Legal).
{e} Dir (DEV):
( It. will also be appropriate to list the relevant dates here, which are as"
follows. The applicant was promoted as Chief Engineer on 13.06.2016. Ministry of Defence issues letter 'dated 15.11.2016, whereby the applicant was not found clear from vigilance angle. CEs were posted as CE,Zone on 06.01.2017, when one Ratnesh Kumar, junior to the applicant was promoted as Chief Engineer Zone, ignoring applicant's. claim for posting as Chief Engineer Zone. As regards SCOI enquiry, the relevant dates are a} 2O. Ol 2014. the date of institution of SCO] applicant was taken.
1é. First of ally it Weill be very dificult to completely disregard the contention of the applicant that the SCO] is essentially an inguiry. agency created under Army Rules and is not a creation under CCS (CCA) Rules. It will also have to be considered, as pointed out by the applicant, that SCOI was constituted to inquire into irregularities committed by Military Personnel pasted with Chief Engineer Jaipur Zone Commanders Works Engineer, Jaipur and Garrison Engineer, Bharatpur. Applicant 'is also correct in pointing out that SCO! can be assisted by civilian officers by way of coming and appearing before it.
and offering their evidence. However, to assert .ermphatically that an indictment by the SCO! of a civilian officer in absence of attendant requirements to have fall legal force seers unfair and incorrect. We a 14 O.A. O60/01111/2016 are, therefore, of the view that the claim of the applicant that inquiry conducted by SCOI on him is ab initio void, is an argument: that cannot be brushed aside.
17. Even if it is assumed that the inquiry conducted by SCOl] has been and can be treated as a preliminary inquiry in terms of DoPT ireular dated 14.12.2007, it has to be strictly in the ternis mentioned therein. The relevant parts of this circular has been reproduced in Para 15 of this order.
18. As is evident from a bare reading of this circular that in terms of Para 2(b), the preliminary enquiry , in order to be made the basis of withholding vigilance clearance, , needs to be completed within three months. It is net disputed that this inquiry was instituted on 20.01.2014 and the report Awa bs m1 nitted to Ministry of Defence on 96.07.2016 before the posting order of the Chief Engineer Zones and on the strength of it, the applicant was denied his posting as Chief Engineer Zone. It is clear from EHis' chronology that requirement of paragraph 2(b) of DOPT circular dated 14.12.2007 is not fulfilled and therefore, the vigilance clearance withheld in the case of the applicant is mot in consonance with the Govt. directives in this regard,
19. Respondents have also offered no explanation or rebuttal as to under what circumstances the SCOT enquiry being beyond jurisdiction and not instituted to enquire against the conduct of the applicant, considered and amplified the scope of inquiry to include the applicant and gave findings on the conduct of the applicant? And further, why it should not be deemed void ab initio? The respondents did not offer any evidence if the Competent Officer in the Ministry of Ney O.A. 060/011 EH/2016 Deferice in respect of such disciplinary matters with regard to the applicant was ever consulted or kept in loop at the time of institution or currency of the enquiry? The plea taken by the respondents that P letter dated 29.05.2003 of H-in-C's office provides for a joint enquiry against military and civilian officers, when read in the context of the contents of this letter appear unconvincing and off the mark. The reading of this above extract from the letter | dated 29.05.2003 {reproduced in para 12 of this order}, while provides for a mechanism, where both army and civilian officers are involved in a court of inquiry, but ends at that-in terms of its applicability toe the instant case. The requirements for such an Inquiry are, firstly that the court of inquiry should be ordered a by GOC-in-C/AOC-in-C/POC-in-C and secondly that the «¢ approp a fleeting authorities that are CE Command/CE Zone for Army Works, CE Air Force /CE Navy for Air Force /Navy Works be consulted before committing such mquiry and terms of reference be finalized in consultation with that authority. The respondents have not offered any details that establish or corroborate 'the requirements of an inquiry in terms of above letter dated 29,05,2017
20. In our interim order dated 10.02.2017, we have raised the issue of making a distinction by the respondents between requirement of vigilance clearance for promotion as Chief Engineer viz. a viz. requirement of vigilance clearance before posting as Chief Engineer, Zone. The respondents through an affidavit have asserted that guidelines at serial no.7(a) of appendix H of "Cadre Management of MES Civilians Officers-Guidelines", which refers to Chief Engineer only
16. .
O.A, O6O/O111 1/2016 included Chief Engineer, Zone, We need to take this affidavit with a pinch of salt for the simple reason that: this affidavit seerns to contradicting what the guidelines have mentioned. The guidelines do not appear to suggest that the nomenclature of Chief ingineer mentioned at serial no.7{a) H should be read as Chiel Engineer Zone only, because a zone may be accommodating more than one CE, one of whom may be designated as CR{Zone). Therefore, to interpret that the term 'Chief Engineer' mentioned in Appendix H 7(a) refers only to CE (Zone} is probleme atic and equivocal. The affidavit of respondents dated 06.03.2017 resultantly can be treated, at best, as only an interpr etation of this provision : advan anced by the respondents and not @ conclusive and clinching argument. Our understanding of the ae ae Appendix 'H' Serial no. 7lapis £ fu ae Ss Sy att i a) the fact that. Respondents have not! rebutted: 'the applicant's g contention that at CE, Zonal level more than one CE may be post ted and therefore, the stipulation of serial 7(a} of 'Appendix ty' appears to be valid for all CEs and not confined to the post of CE, Zone alone.
1. | AS mentioned earlier, the respondents have raked up the issue of having at least two years of residual service for becoming eligible for the post of Chief Engineer Zone. We are constrained to reject this plea. First, because the denial of posting of Chief Engineer Zone to the applicant is not on this ground to begin with, and secondly, that it clearly seems to be an afterthought to invoke this provision towards fag end of hearing of this matter.
22. | The applicant in the course of oral arguments and while submitting some documents relating his ScoOl inquiry, has sought to OA. O6O/OTLLT/2016 impress upon Us that the nature of charges is not serious and seem to have alleged and established in order to deny the applicant 4 posting as Chief Engineer, Fone, in our "view, at this stage, there is no necessity to analyse the charges and findings contained in the scol inquiry report because the same have no material bearing on the merit of this case.
23, Culled out from numerous arguments of the respondents, - the essertial justification that the respondents nave offered to deny the applicant @ posting as Chief Engineer, Zone is the fact that Scol inquiry report was in their possession when the decision to post as Chief Engineer, Zone, was being. taken whereas at the time of the applicant's promotion as Chit, Bagineeh even though the fact of a AG pendin} inquiry was inj "thei . soak ie sul since inquiry was not 7: a Senne, completed, therefore, thé "police Ya deemed fit to be promoted as Chief Engineer. This Justification secms to us to be fallacious and lacks conviction, it may be true that 'yespondents had received the SCcOl inquiry report at the time of making postings as Chief Engineer, Zone but it is also evident that the inquiry report was not acted upon by the respondents till 12.05.20 17, when the appropriate disciplinary authority took a decision to proceed to initiate disciplinary proceedings departmentally against the applicant. This argument that the respondents were in possession of the report is not valid because inquiry report's findings were not accepted by the appropriate competent authority till long after the denial of posting te the applicant as Chief Engineer, Zone had taken place.
Ve, i8 OA. OGO/OTT1 1/2016
24. We take a very conscious note of the information submitted by the respondents that the competent authority i.€. Raksha Mantri has approved initiating disciplinary proceedings against the applicant on 12.05.2017. However, the. charge-sheet igsued in this regard, if any, have not been placed on record. The respondents have nat claimed that the charge sheet has been issued, and if issued when? Notwithstanding this development, the fact remains that on the date the applicant's -panior was posted as Chief Engineer Zone, no decision to initiate departmental proceedings by the competent suthority was it existence. At best, what was in existence Was & report of an inquiry by scol on which 4 view was pending by the competent authority and therefore, to take this plea. now tat because a decision to initiate f-
fo i departmental proceedings: hap 2 enon 12.05.2017, therefore, the denial of vigilance © cleare TAMoe, a by the letter dated 15.11. 20 16 and consequely dential of post sing as Chief Engineer Fone from 06.01.2017, when nis unIOE "Ratnesh Kumar was posted as Chief Engineer, Zone is justifiable, cannot be accepted. The date on which vigilance clearance was denied ie. 15.11. 9916, the matter of taking disciplinary action on the applicant was gtill pending at d there was no decision by the competent authority to initiate disciplinary proceedings against the applicant Hl that date. Given these facts, the denial of vigilance cleararice 18 not in conformity and consonance of the DoPT circular dated 14.12.2007.
25. 7 We also should not disregard another development that took place during the pendency of this OA. The respondents, On 07.06.2017 promoted several other officers as Chief Engineer and the Vey
19. ; , O.A, O6O/OT111/2016 applicant has alleged that some of them namely the ones figuring at fa} to Le) and Lf) 1G) and 1{k) respectively of the list have been posted as CE{(Zone}. We have examined the said order but to the best of our understanding, while promotions have been given to the post of CE, no one seems to have been posted as CE(Zone}. if, however, it turns out that postings to the position of CE (Zone) has | been made despite our interim order dated 10.03.2017, it is a serious matter as it is in clear violation of the spirit of our snterim order, if not of the letter of the said order. If this be true, we express and record our complete disapproval of this order and our strong: displeasure agaist the authority(ies} who have passed this order.
26. Given the above discy S190, ittisSneld:
(a), That the denial of swigitan catanée impugned letter dated 15.11.2016) to applicant for consideration for posting as Chief Engineer Zone is in contravention. of DoPT instructions in this regard. Such a denial is "apbitrary, illegal and against the rules and is therefore, quashed. The applicant shall be treated. by the respondents as vigilance cleared as of the date this vigilance clearance has been given in respect of his junior Ratnesh Kumar ie. 15.11.2016.
{b) The applicant 1s entitled to be posted as Chief Engineer Zone from the date his J junior has been posted as Chief Engineer Zone. The respondents are, therefore, directed to post him as Chief Engineer,. Zone with effect from the date his junior has been posted as such.
£ Me.
20OA. NGO/OL 11 1/2016 (c} «= The interim order dated 10.02.2017 to the extent that it restrains the official respondents to past respondent no.7 Ratnesh Kumar as Chief Engineer, Zone, shall automatically stand vacated, once the applicant is posted as Chief Engineer, Zone.
(d) There will be no restraint on the respondents te proceed with the departmental inquiry ordered by competent authority on 12.05.2017. as per proper procedure and in keeping with the roles and. laws in this matter.
27. The O.A. accordingly succeeds and is thus allowed in terms of above paragraph (paragraph 26}.
28. There shall be no costs.to. either of the parties.
Ng (UDAY KUMAR VARMA) (JUSTICE M.S. SULLAR) MEMBER (J)
-- Dated: \% .07.2017 KR'