Central Administrative Tribunal - Allahabad
Mes-461913 vs Union Of India Through The Secretary on 20 April, 2011
RESERVED
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH ALLAHABAD
*****
(THIS THE 20TH DAY OF APRIL, 2011)
Honble Dr.K.B.S. Rajan, Member (J)
Honble Mr. D.C.Lakha, Member (A)
Original Application No.230 of 2009
(U/S 19, Administrative Tribunal Act, 1985)
MES-461913, Shiv Sharan Sharma
Aged about 50 years, son of Shri Dev
Shankar Sharma, Resident of Qr. No.121/4,
Lane-6 Ashoka Marg, Hasting Road, New
Cantt., Allahabad.
Presently serving in GE(West)
New Cantt., Allahabad
. Applicant
Present for Applicant : Shri.S.D.Tiwari, Advocate
Versus
1. Union of India through the Secretary,
Ministry of Defence, South Block,
D.H.Q,PO-New Delhi.
2. The Engineer in Chief, E-InCs Branch,
Integrated Headquarters of
MOD (Army) Kashmir House,
DHQ Post, New Delhi-11
3. The Garrison Engineer (West)
New Cantt., Allahabad
Respondents
Present for Respondents :Shri Raj Dev Tiwari, Advocate
O R D E R
(Delivered by Hon. Dr. K.B.S. Rajan, Member-J) The applicant joined the Military Engineering Services as Surveyor Assistant Gr.II (SA_II) on 5.2.1980 and was promoted to SA-I on 25.1.1988 and later on was further promoted as Assistant Engineer, (Quantity, Survey and Contracts) vide order dated 17.2.2003. He continued in that post for five and half years.
2. All of a sudden the applicant was demoted from the said post of Assistant Engineer to the post of J.E (QS&C) vide order dated 27.2.2009. Annexure A-7 refers. There was no prior notice of demotion nor any reason had been given by the respondents. No disciplinary proceedings had been initiated against the applicant prior to reversion. The said reversion has resulted in the depletion of emoluments of the applicant and also lower down his status both in he department as well as in social circle. The applicant submitted an appeal to the respondent no.2 on 4.2.2009. This application is for challenging Annexure A-7 order dated 27.2.2009 on the grounds mentioned in paragraph 5 of the OA.
Respondents have contested the OA.
According to them in this regard it is highlighted that as per Honble Central Administrative Tribunal Ernakulam Bench judgement dated 22.12.2005 in OA No.466 of 2003 and 794 of 2003 and upheld by Honble High Court of Kerala vide its order dated 03.8.2006. Review DPCs for JSW for the vacancy year 1989-90 to 2001-2002 was carried out by quashing all earlier DPCs for promotion as JSW. Accordingly the promotion of the applicant as JSW since 17.2.2003 as per earlier DPCs stood quashed as per the Central Administrative Tribunal/High Court judgment.
That the Review DPC for the year 1989-90 to 2001-02 considered the name of the applicant also for the vacancy year 1999-2000, 2000-01 and 2001-02. However due to award of penalty to the officer the recommendation of Review DPC for these years in respect of the applicant is in Sealed Cover.
That consequent upon Review DPC for the vacancy years 1989-90 to 2001 panel of promotion for the year 1989-90 to 2001 panel of promotion for the year 1989-90 to 2001-02 was published vide Directorate General Personnel, E-in Cs Branch letter No.B/42033/R-DPC/JSW/1989-90 to 2001-02/E1 DPC (i) d dated 30 Jan.2009 and subsequently promotion-cum-posting order were issued vide Directorate General Personnel, E-in-Cs Branch letter No.MES/13/2009 dated 27 Feb.2009. Since all the earlier DPC for JSW were quashed, those who could not make out in the Review DPC as JSW were demoted as JE (QS&C).
3. The applicant in his Rejoinder has stated as under:-
That the applicant while serving with Headquarters CWE (i.e. Commander Works Engineer) Ranchi was awarded a minor penalty i.e. stoppage of one increment with non cumulative effect for one year vide CWE Ranchi Depatoli Cantt. Order dated 18.12.1998. The effect of penalty had expired on 31.01.2000, vide CWE Ranchi Depatoli Cantt. Part-II order Sr.No.7 dated 15 February 1999 and Sr.No.6 dated 7 February 2000. Thus applicant was entitled to have been considered for next promotion during the year 2000-2001.
That, the applicant was erroneously kept in sealed cover for the period 1999-2000, 2000-2001 and 2001-02. This shows that the Review DPC was not held at regular interval as specified in the procedure, because effect of the minor penalty had expired on 31 January 2000 and the applicant was entitled to have been considered by the Review DPC for the year 2000-2001. But this was not done.
That in a similar case, the Honble Principal Bench of this Tribunal has allowed the Original Application No. 534 of 2009 (N K Vohra Vs. Union of India and Others) vide the judgment dated 18.9.2009.
4. Counsel for the applicant argued that here is a case wherein the reversion has taken place without any show cause notice. In fact in certain other cases similarly circumscribed at the time of admission itself stay was granted and status-quo of the applicant concerned maintained. There is no provision for adopting sealed cover in respect of Review DPC since such Review DPC would mean setting the clock back and assessing the suitability of the individuals for promotion as on the date when the original DPC was held. Even if there were any currency of minor penalty resulting in with holding of increment etc, the promotion is only deferred till the currency of penalty and effected after the penalty was over. In the case of the applicant there is absolutely no need for resorting the sealed cover for various years upto 2000, 2001 and 2002 as stated by the respondents in their counter. The decision in the following cases would support the case of the applicant inasmuch as no reversion can take place without prior show cause notice:-
(a) Judgment dated 9.12.1998 in Civil Misc. Writ petition 15467/97 of Division Bench of Allahabad High Court (in this case the petitioner concerned worked in the promoted post just for 19 days and his reversion was upset by the High Court. Come back to the same the applicant has worked for more than half years as Assistant Engineer)
(b) Civil Appeal No.11484/96 decided by the Honbe Apex Court wherein the withdrawal of promotion was on the ground that promotion was given on erroneous and mistaken view here again the reversion was set aside.
) Order dated 18.9.09 in OA No.534/09 of the Principal Bench of the Central Administrative Tribunal (N.K.Vohra Vs. Union of India & Ors). This case belongs to the applicants own department and relates to the same matter as of the applicant. Vide para 3 thereof the Tribunal held as under:-
Official respondents counsel states that due to withholding of vigilance clearance, promotion of the applicant had been placed under sealed cover and on implication of Ernakulam Bench decision, he has been reverted. On the other hand, UPSC stand is clear, according to which as the applicant was facing a disciplinary proceeding, his case for promotion in the review DPC has been placed under sealed cover. In our considered view, when name of the applicant has not been included in the list of candidates facing disciplinary case/punitive/SPE, placing him under sealed cover without any basis is an infraction of his fundamental right of fair and equitable consideration for promotion. As there is nothing adverse against the applicant, unnecessarily withholding the vigilance clearance of the applicant, as no material has come forth by way of reply of the respondents to indicate otherwise sealed cover was unwarranted in the circumstances. As a result of sealed cover and non-timely promotion, the applicant was reverted back asJE (QS&C) which is not sustainable in law. This OA stands partly allowed. The reversion of the applicant as AEE (QS&C) is illegal by virtue of a stay by us, who is still working as AEE (QS&C). Let the sealed cover as to the applicant now be opened and given him promotion w.e.f the dates others have been accorded promotion with all consequential benefits within a period of three months from the date of receipt of a copy of this order. No costs.
5. Counsel for the respondents submitted that the reversion has to be resorted to as a consequence of review DPC which was to be conducted by the department in pursuance of order dated 22.12.2005 in OA No.466/03 and 794/03 of the Ernakulam Bench of the Tribunal which was upheld by the Honble High Court of Kerala vide its order dated 3.8.2006. The Review DPC for JSW was to be conducted for the vacancy years 1989-1992, 2001-02. As the applicant was awarded penalty, recommendation of review DPC for these years in respect of the applicant was kept in sealed cover.
6. Arguments were heard and the documents perused. In view of the fact that the justifiable reasons when the earlier promotion orders got to be cancelled and Review DPCs were to be held, no fault would be found in the ct of the respondents in canceling the applicants promotion to the post of AE granted to him vide order dated 22.4.2003. Perhaps the applicant also +may not have any grudge in that regard but what pains him is certainly that in the garb of currency of penalty the applicants pay has been kept in the sealed cover. When Review DPC took place for the entire period from 1989-90 to 2001-2002 and the name of the applicant was considered on the basis of his seniority for the years 1999-2000, 2000-2001 and 2001-2002, resort to sealed cover could take place only if charge sheet is pending or penalty was under currency. In fact when the penalty was sonly to be extended withholding of increment or some other minor penalty, promotion can take place but effective only from the date of the expiry of the currency of penalty. In the instant case admittedly the stoppage of one increment with non cumulative effect for one year vide CWE Ranchi Depotally Cantonment order dated 18.12.1998 expired on 31.1.2000 vide CWE Ranchis Depotally cantonment order part II at Sl.No.7 dated 15.2.1999 and Sl.No.6 dated 7.2.2000. When that is the case , the claim of the applicant that he was entitled to have been considered for the next promotion during the year 2000-2001 is fully justified and legitimate. There is no scope at all for the respondents to keep in the sealed cover the recommendation of the DPC in respect of the applicant for promotion to the post of Assistant Engineer against the vacancies of the year 2000-2001. If by chance he is snot found suitable then the drill has to be conducted again in the succeeding years.
In so far as review DPC is concerned sealed cover procedure cannot be adopted if there is any pending case at the time of consideration of the promotion of the individual in the year in which the Review DPC is considered because the clock has to be set back the year of actual DPC which in this case is 2000-2001. In this regard decision by the Apex court in the case of Delhi Jal Board v. Mahinder Singh, (2000) 7 SCC 210 is relevant, in which the Apex court has held as under:-
The mere fact that by the time the disciplinary proceedings in the first inquiry ended in his favour and by the time the sealed cover was opened to give effect to it, another departmental enquiry was started by the Department, would not, in our view, come in the way of giving him the benefit of the assessment by the first Departmental Promotion Committee in his favour in the anterior selection .
In view of the above, the OA is allowed. Respondents are directed to open the sealed cover in respect of the applicant for the DPC of 2000-2001 and act on the basis of the same and in the event of the applicant be found fit his seniority position shall be correctly fixed. If the applicant is not found fit for the particular year, the sealed cover adopted for the subsequent year should also opened and acted upon as the Officer has been earlier functioning in the same post of Assistant Engineer, monetary benefit may not be either available or if available would be the minimum. The same shall, if available, be paid to the applicant as he had been discharging the duties from 2003 onwards.
The above order shall be complied with, within a period of two months from the date of communication of this order.
( D.C.LAKHA) (Dr.K.B.S.RAJAN)
Member (A) Member (J)
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