Central Administrative Tribunal - Delhi
Vinod Kumar Goel vs Union Of India Through Secretary on 28 April, 2015
Central Administrative Tribunal Principal Bench: New Delhi OA No.3703/2014 Reserved on:06.01.2015 Pronounced on:28.04.2015 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. B.K. Sinha, Member (A) Vinod Kumar Goel S/o late Sh. P.C. Goel R/o A-284, Surya Nagar, Ghaziabad, Uttar Pradesh. Applicant (By Advocate: Sh. Amit Anand Tiwary and Sh. Avinash Tripathy) Versus 1. Union of India through Secretary, Ministry of Finance, Department of Revenue, North Block, New Delhi 110 001. 2. Central Board of Excise and Customs, Through the Chairman, North Block, New Delhi 110 001. Respondents (By Advocate: Sh. R.N. Singh) O R D E R By Dr. B.K. Sinha, Member (A):
The instant OA has been filed under Section 19 of the Administrative Tribunals Act, 1985 assailing the order dated 08.08.2014 of the respondent no.2 denying the applicant appointment to the grade of Chief Commissioner of Customs & Central Excise, subsequently restructured as Principal Commissioner, despite having been empanelled for appointment to the said grade.
2. The applicant has prayed for the following relief(s):-
(a) Set aside the order bearing no.F.No.C- 18011/18/2014-Ad.II passed by the respondents on 08.08.2014;
(b) Direct the respondent to promote the applicant against the vacancy caused due to superannuation of Sh. A.K. Agarwal in the afternoon of 31.3.2014 in terms of the recommendation of DPC circulated vide DoPT O.M. No.18/32/2013-EO (SM.II) dated 08.10.2013;
(c) Direct the respondents to promote the applicant against existing vacancies to the post of Principal Commissioner (restructure from post of Chief Commissioner) vide cadre restructuring order dated 18.12.2013;
(d) Declare the order bearing no.182/2014 dated 26.08.2014 bad in law to the extent that it does not to include the name of the applicant herein as one of the officers promoted to the post of Principal Commissioner;
(e) Pass such further order(s) as may deem fit and proper in the facts and circumstances of the case.
3. The applicant is an officer of 1982 batch of the Indian Revenue Service. He was appointed as Probationer on 01.09.1982 in the Department of Customs & Central Excise and has rendered outstanding service over the last 32 years. It is the case of the applicant that his services have been well recognized and appreciated. Besides, he is also a widely acclaimed Wild Life Photographer whose photographs have been exhibited and printed in magazines of repute. The applicant was posted as Commissioner, Customs (Imports & General), New Delhi from 16.03.2010 to 28.05.2012 and is currently posted as Commissioner, Directorate of Publicity and Public Relations since 06.12.2012. The applicant further submits that an investigation was made against him between April, 2012 and December, 2013 for alleged misuse of his official position to promote one NGO floated by his family members for wild file heritage. The applicant was cleared for promotion to the post of Chief Commissioner of Customs & Central Excise (HAG) level for the year 2013-14 by the DPC held on 21.06.2013 along with 22 others and included in the panel prepared for the same. While preparing the panel, the DPC took into account the vacancy arising on 31.03.2014 and placed the applicant at Sl. No.21 in the panel, below one Vijay Chhabra circulated vide DoP&T OM dated 08.10.2013. In the meantime, a cadre restructuring order was issued on 18.12.2013 whereby the grade of Chief Commissioner of Customs & Excise was revised to that of Principal Commissioner, Customs & Excise, and 53 posts were created in this grade. The applicant made a representation dated 27.03.2014 to the Chairperson, Central Board of Excise & Customs reciting therein that as all officers above him in the panel had been promoted, he should also be promoted against a regular vacancy arising in the afternoon of 31.03.2014 consequent upon superannuation of one A.K. Agrawal. It is the case of the applicant that another vacancy also arose due to resignation of one S.S. Rana, DG (Vigilance). The applicant contends that the vacancy arising due to superannuation of A.K. Agrawal had been reckoned by the DPC at the time of empanelment of officers. This was followed by representations dated 02.04.2014 and 09.05.2014 to the same effect without having evoked any response.
4. Aggrieved, the applicant preferred OA No.1716/2014 before this Tribunal on 13.05.2014 seeking mandamus for his promotion against one of the existing vacancies, which was disposed of by order dated 16.05.2014 directing the respondents to consider the claim of the applicant within a months time. The applicant further contends that on 19.05.2014, he received a chargesheet dated 09.05.2014 under Rule 14 of the CCS (CCA) Rules, 1965 [hereinafter referred to as Rules of 1965] for alleged misuse of his official position to promote an NGO, namely, Wildlife Heritage floated by his immediate members of the family, thereby contravening the provisions of Rules 3(1(i), 3(1)(ii) and 3(1) (iii) of the CCS (Conduct) Rules, 1964 [hereinafter referred to as Conduct Rules]. The applicant submits that the respondents passed the impugned order dated 08.08.2014 stating that vacancies had been created on 01.04.2014 and 02.04.2014 and no vacancy existed for the said post as on 31.03.2014. The impugned order further stated that the applicant was not eligible for promotion on account of chargesheet having been issued against him and his case had been placed in sealed cover by virtue of the DoP&T OM dated 14.09.1992. The applicant alleges that while passing the order, the respondents deliberately suppressed the order dated 18.12.2013 creating additional 53 posts of Chief Commissioner, restructured as Principal Commissioner.
5. The applicant has adopted the following grounds in support of his OA:-
(i) The applicant alleges selective hostile discrimination against the respondents as the persons below him placed in the panel and persons in the extended panels have been promoted vide order dated 26.09.2014 leaving him out;
(ii) It had been the continuing practice that vacancies were reckoned in the past w.e.f 31st March and has cited particular instances of similarly placed officers, namely, M.C. Thakur and Jagjit Pavadia, who were promoted against vacancies arisen on 31st March in the years 2011 and 2012 respectively. Further, the respondent had filed an affidavit before the Honble High Court of Gujarat in SCA No.804/2014 and sworn on oath that a post arises on the very date of superannuation of the incumbent officer;
(iii) That in any case, there were clear vacancies existing on 01.04.2014. However, instead of promoting the applicant against one of these vacancies, the respondents consumed lot of time in making unnecessary references as to whether the life of the panel could be extended. In the meantime, the respondents issued a chargesheet which became the basis for denial of promotion to the applicant.
(iv) The applicant contends that once the life of the panel had been extended and vacancies were there against which the applicant could have been promoted, no circumstances existed for denying promotion to him. In this regard, the applicant has relied upon the decision of the Honble Supreme Court in Union of India & Others versus Anil Kumar Sarkar [2013 (4) SCC 161] and Bachahan Devi & Anr. Versus Nagar Nigam, Gorakhpur & Anr. [2008 (12) SCC 372] holding that the respondents were duty bound to exercise discretion in favour of the applicant.
6. The respondents have filed a short reply admitting the factual position but denying the grounds raised by the applicant. It has been submitted that 53 posts were created in HAG level. While the panel recommended by the DPC for promotion to the post of Chief Commissioner (HAG) was not completely utilized, the matter was referred to the DoP&T for their advice as to whether the panel of names recommended by the UPSC for promotion to HAG for the year 2013-14 could be utilized against additional vacancies created in the grade consequent to approval by the Cabinet for restructuring of CBEC. DoP&T vide their advice dated 05.05.2014 agreed to utilize the remaining panel of seven officers to fill vacancies for the year 2013-14 against the additional posts created in the cadre restructuring. However, it had been decided that further necessary action for filling up of these additional vacancies on account of cadre restructuring could be taken up only after allocation of revised cadre strength amongst the different formations. It is the case of the respondents that approval of the competent authority in this regard was communicated only on 01.08.2014. Consequently, promotion of officers in the panel beyond Sl.No.20 (Vinay Chhabra) was considered against the additional vacancies created in the cadre restructuring and four officers were promoted to the post of Principal Commissioner vide order dated 26.09.2014. In the meantime, a chargesheet had already been issued to the applicant on 09.05.2014. Therefore, in terms of the DoP&T OM dated 14.09.1992, the case of the applicant was correctly treated as deemed sealed cover.
7. The learned counsel for the respondents has further stated that in view of para 7 of the DOP&T OM dated 14.09.1992 even if a government servant is recommended for promotion by DPC where circumstances mentioned in para 2 of the OM arose after the recommendations of the DPC, but before he is actually promoted, it shall be considered to be a case placed in sealed cover by the DPC and he shall not be promoted till he is completely exonerated from the charges against him. This position has also been reiterated in para 7 of DOP&T OM dated 02.11.2012. It is further submitted by the respondents that the incumbent of a post superannuating on 31st March holds charge till the midnight of 31st March, and, hence, the vacancy can only be said to have arisen w.e.f. 1st April. Shri R.N. Singh, learned counsel for the respondents, strongly submitted that the previous affidavit filed before the Honble High Court of Gujarat was incorrect and the department is not bound by the same.
8. The applicant has filed a rejoinder supporting his earlier contentions and rebutting the points of the respondents. The applicant has further submitted that since the life of the panel for the year 2013-14 had already been extended prior to issue of chargesheet dated 09.05.2014, going by the respondents own admission that the vacancy arose on 01.04.2014, the applicant became eligible for promotion on 05.05.2014 before the chargesheet was issued, and, therefore, he should have been promoted to the post of Principal Chief Commissioner.
9. We have carefully gone through the pleadings of the parties as also the documents adduced by them. We have also patiently heard the oral arguments advanced by the learned counsel of both the parties, on the basis whereof, the following two issues, according to our opinion, are germane to decision in the instant case:-
1. Whether the respondents are bound by their own affidavit sworn before the Honble High Court of Gujarat in SCA No.804/2014 and their previous practice to the effect that vacancies will deem to arise in the afternoon of 31st March in respect of officers superannuating on that date?
2. Whether the respondents were correct in not promoting the applicant while promoting his juniors, despite the fact that clear vacancies existed w.e.f. 01.04.2014?
10. Insofar as the first of the issues is concerned, we have taken note of the arguments of the parties. While on one hand it has been argued on behalf of the respondents that a post is occupied till midnight of 31st March in respect of an employee retiring on that date and, therefore, the vacancy can only be said to have arisen w.e.f. 1st April only. The applicant, on the other hand, invokes continuing past practice of the respondents as per the affidavit sworn by them before the Honble High Court of Gujarat in SCA No.804/2014. In this regard, our considered view is that a person continues to hold office till the midnight of 31st March. As per Rule 35 of CCS ( Pension) Rules, 1972, superannuation pension is granted to a government servant, who is retired on his attaining the age of compulsory retirement. As per OM dated 02.05.1974, the Civilian Government servants in Groups B, C and D services would retire from service with effect from the afternoon of the last day of the month in which their date of retirement according to Fundamental Rule 56 falls. FR 56, in this regard, provides as under:-
F.R. 56(a) Except as otherwise provided in this rule, every Government servant shall retire from service on the afternoon of the last day of the month in which he attains the age of sixty years:
Provided that a Government servant whose date of birth is the first of a month shall retire from service on the afternoon of the last day of the preceding month on attaining the age of sixty years.
Provided further that a Government servant who has attained the age of fifty-eight years on or before the first day of May, 1998 and is on extension in service, shall retire from the service on expiry of his extended period of service.
Or on the expiry of any further extension in service granted by the Central Government in public interest, provided that no such extension in service shall be granted beyond the age of 60 years.
11. A retiring government servant draws full salary for the services rendered till the date of his retirement. Therefore, the vacancy can only be said to have arisen on the following date of such retirement. In the case that another government servant is appointed in place of the retiring employee on 31st March, then he will not be entitled to draw salary for that day as there cannot be two government servants drawing salary for the same day against the same post. We, on this account, tend to agree with the argument of the learned counsel for the respondents that the vacancy could not have arisen on 31st March, 2014.
12. On the other hand, we also take into account that pension of the retiree employee becomes due from 1st day of the next month. Hence, we are of the opinion that the argument of the applicant that vacancy had arisen on 31st March is not quite correct, and the affidavit sworn by the respondents before the Honble High Court of Gujarat cannot form a binding legal precedent. This position has been held in a number of cases by the Honble Supreme Court including the case of Sushil Ansal versus State through CBI etc. etc. [2014(6) SCC 173]. This has further been supported by the decisions of the Honble Supreme Court in S.P. Gupta versus President of India [AIR 1982 (SC) 149] and State of Punjab versus Devinder Pal Singh Bhullar & Others etc. [2011 (14) SCC 770].
13. Though we are not aware as to what affidavit has been sworn by the respondents before the Honble High Court of Gujarat in absence of the original, yet, assuming that an affidavit to this effect has been sworn, it shall by no means constitute a binding legal precedent, besides it is a settled legal position that there cannot be estoppels against law. Since FR-56(a), as noted above, provides that every government servant shall retire from service on the afternoon of the last day of the month in which he attains the age of sixty years, the post remains occupied till last day of the month. Therefore, even if on affidavit in another proceeding some statement is made contrary to the law, that cannot be used as an estoppel in view of the doctrine that there cannot be estoppels against law.
14. Insofar as the second of the issues is concerned, the applicant has heavily relied upon the decision in case of Bachahan Devi & Anr. Versus Nagar Nigam, Gorakhpur & Anr. (supra) which is a case related to land dispute where the assertion was that the property in question had vested into the appellant consequent upon abolition of Zamindari and the defendants had no claim over the same. These facts are not even remotely related to the facts in the OA under consideration. Therefore, the aforesaid case relied upon by the applicant cannot form a legal binding precedent for the instant OA. To support this view of ours, we rely upon the decision of the Honble Supreme Court in Divisional Controller, K.S.R.T.C. versus Mahadeva Shetty and Another [2003 (7) SCC 197], Bank of India and Another versus K. Mohan Das & Others [2009 (5) SCC 313] and Bharat Petroleum Corporation Ltd. & Another versus N.R. Vairmani & Another [2004 (8) SCC 579].
15. We see that a reference has been made to DoP&T OM dated 14.09.1992 which has also formed crux of the discussion in Union of India & Others versus Anil Kumar Sarkars case (supra). For the sake of easy reference and developing greater clarity, the instructions are being extracted from the above OM, which read as under:-
No. 22011/4/91-Estt(A) Government of India Ministry of Personnel, Public Grievances and Pensions Department of Personnel & Training North Block, New Delhi-110001 Dated: 14.09.1992 OFFICE MEMORANDUM Subject: Promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation. Procedure and guidelines to be allowed.
Board's L/No. E(D&A) 88RG6-21 dt. 21.9.88 & 2.7.90.
In supersession of all instructions contained in Bd's letters referred to in the margin on the above subject, the procedure and guidelines laid down below shall be followed in the matter of promotion from Group 'B' to Group 'A' and within Group 'A' of Railway Officers against whom disciplinary/Court proceedings are pending.
2. Cases of Govt. to whom sealed cover procedure will be applicable.
At the time of consideration of the cases of Govt. servants for empanelment details of Govt. 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;
(iii) Government servants in respect of whom prosecution for a criminal charge is pending.
7. Sealed cover procedure applicable to officers coming under cloudholding of DPC but before promotion.
A Govt. 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 the conclusion of disciplinary case/criminal proceedings and the provisions contained in this letter will be applicable in his case also. The Honble Supreme Court in the concluding paragraph held as under:-
23. In the light of the above discussion and in view of factual position as highlighted in the earlier paras, we hold that the ratio laid down in Jankiraman's case (supra) are fully applicable to the case on hand, hence we are in agreement with the ultimate decision of the High Court. Consequently, the appeal filed by the Union of India fails and the same is dismissed. However, there will be no order as to costs.
16. It is evident from the above that the Honble Supreme Court on the issue as to when the sealed cover proceedings shall become applicable heavily relied on the decision in Union of India vs. K.V. Janakiraman & Others [1991 (4) SCC 109]. Here, there is no dispute regarding applicability of Union of India vs. K.V. Janakiraman & Others case (supra). However, the Honble Supreme Court having not struck down para 7 of OM dated 14.09.1992, which has further been reiterated in OM dated 02.11.2012 and OM dated 23.01.2014, they would continue to be binding and good. For the sake of clarity, we reproduce the relevant paras of OM dated 23.01.2014, which read as under:-
2. This Department has been receiving references seeking clarification on grant of promotion in case of review DPC with regard to the official who is clear from vigilance angle on the date of promotion of the junior in the original DPC but subsequently attracts the provisions contained in para 2 of DoPT OM dated 14.09.92.
3. The matter has been examined in consultation with the Department of Legal Affairs and it is further clarified that, in the case of a review DPC, where a junior has been promoted on the recommendations of the original DPC, the official would be considered for promotion if he/she is clear from vigilance angle on the date of promotion of the junior, even if the provisions of para 2 of DoPT OM dated 14.9.92 get attracted on the date the actual promotion is considered, as provided in DoPT O.M. No.22011/2/99-Estt (A) dated 21.11.2002.
17. Here, in the instant case we are swayed by the fact that the applicant had not been promoted till 01.04.2014. Thereafter, the matter was referred to the DOP&T that whether in view of restructuring of cadre, the panel for the year 2013-14 would continue to hold good after 01.04.2014 and the answer was received in affirmative on 05.05.2014. It is an admitted position that the chargesheet was subsequently issued against the applicant on 09.05.2014. Had any junior of the applicant been promoted either on 05.05.2014 or on 09.05.2014, the applicant would have definitely a case. Admittedly, no promotion of any of the juniors has taken place till 09.05.2014. Instead, promotions of alleged juniors have taken place on 26.09.2014 i.e. after 09.05.2014 when the embargo in view of para 7 of Circular dated 14.09.1992 and paras 2 & 3 of OM dated 21.03.2014 came into force.
18. In a recent case titled as Dhirendra Khare versus Union of India & Others [OA No.1606/2014 decided by this Tribunal on 16.01.2015] where the applicant had also received ACC approval, this Tribunal was of the view that since subsequently a chargesheet had been issued against the applicant, he was not entitled to promotion till he had been exonerated of the charges.
19. In view of the afore discussions, we can conclude that the applicant had taken major grounds i.e. the post becoming available consequent upon superannuation of one A.K. Agrawal w.e.f. 31.03.2014 and, therefore, his becoming eligible for promotion to the post of Chief Commissioner on the basis of the decision of the Honble Supreme Court in Union of India & Others versus Anil Kumar Sarkars case (supra). However, on examination, we conclusively find that the post cannot be said to have arisen w.e.f. 31st March, 2014 in case of person retiring on that date whereas the same can only be said to have arisen on 01.04.2014. We are further of the view that the respondents cannot be bound by the affidavit sworn by them before the Honble High Court of Gujarat as there can be no legal precedent in respect of a continuing legal wrong. We have also held that the instructions in para 7 of DOP&T OM dated 14.09.1992 continue to hold good having been reiterated in OM dated 02.11.2012 and OM dated 21.03.014. Therefore, the decision in Union of India & Others versus Anil Kumar Sarkars case (supra) will not cover the facts of the instant OA. We are, therefore, of the view that this Application is bereft of any merit and is dismissed, but without costs.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman /naresh/