Allahabad High Court
Pal Singh vs Central Industrial Security Force & ... on 9 July, 2018
Author: Ajay Bhanot
Bench: Ajay Bhanot
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 28 Case :- WRIT - A No. - 24990 of 2009 Petitioner :- Pal Singh Respondent :- Central Industrial Security Force & Others Counsel for Petitioner :- P.K. Mishra,Dr. Rajesh Kumar Srivasta,Hritudhwaj Pratap Sahi,Nitinjay Pandey,P.K.Singh,Vijay Kumar Singh Counsel for Respondent :- A.S.G..I,S.C.,Satish Kumar Rai Hon'ble Ajay Bhanot,J.
1. The petitioner was a member of the Central Industrial Security Force. The petitioner claimed arrears of salary admissible to the post of Assistant Sub Inspector with effect from 27.8.1988 to 2.8.1995 and on the post of Sub Inspector w.e.f. 3.8.1995 to 31.07.2008. The petitioner retired as Sub Inspector in the Central Industrial Security Force on 31.7.2008 with interest.
2. The claim of the petitioner was rejected by the competent authority by order dated 30.8.2007 and by the appellate authority by order dated 4.8.2008.
3. The petitioner has assailed the order dated 30.8.2007 passed by the respondent no.1 and the order dated 4.8.2008 passed by the respondent no.2, rejecting his claim for arrears of salary in the instant writ petition.
4. I have heard Sri Rajesh Kumar Srivastava, learned counsel for the petitioner and Sri Satish Kumar Rai, learned counsel for the respondent.
5. The petitioner was appointed in the C.I.S.F. on the post of Security Guard in the year 1970. The petitioner was promoted to the rank of Lance Naik and then to Head Constable/G.D.
6. The petitioner was denied timely promotion to the post of Assistant Sub Inspector, Executive. He was not found fit for promotion to the post of Sub Inspector/Executive by successive DPCs. A review D.P.C. held in February, 2008 found the petitioner fit for promotion to the post of Assistant Sub Inspector/Executive. Consequently, the petitioner was notionally promoted to the aforesaid rank of A.S.I./Executive w.e.f. 27.8.1988. Subsequently another review D.P.C. found him fit to be promoted to the rank of Sub Inspector/Executive. On the recommendation of the review D.P.C. the petitioner was notionally promoted to the rank of Sub Inspector/Executive w.e.f. 3.8.1995. The petitioner claims, he was illegally denied the promotion to the post of Assistant Sub Inspector and Sub Inspector as well. The miscarriage of justice was redeemed by the respondent department belatedly in the year, 2008, when the petitioner was on the verge of his retirement.
7. The claim of the petitioner for arrears of salary for the aforesaid period has been rejected by the orders impugned.
8. The contention of learned counsel for the petitioner is that the respondent authorities while passing the orders impugned have failed to adhere to the mandate of the office memorandum dated 14.9.1992 and have indeed acted in violation thereof.
9. Have heard learned counsel for the petitioner and Sri S. K. Rai, learned counsel for the respondents.
10. A perusal of the order impugned shows that the respondent authorities have merely relied on an office memorandum dated 10.4.1989 bearing No.22011/5/86-Estt. (D) issued by the Government of India, Ministry of Personnel, Public Grievances and Pensions Department of Personnel & Training. The relevant provisions of the office memorandum are extracted hereunder:-
"Subject: Departmental Promotion Committees and related matter- Consolidated instructions on-
The undersigned is directed to say that instruction on the constitution and functioning of Departmental Promotion Commitees and the procedure to be followed in processing and Implementing the recommendations of D.P.Cs. were issued in a consolidated in the form, vide this departments OM No.22011/6/75-Estt (D) dated 30th December, 1976. Instructions have also been issued subsequently clarifying/modifying certain aspects of the procedure. The various instructions have been updated and consolidated in the form of "Guide Lines on Departmental Promotion Committees", a copy of which is forwarded herewith.
Sd/-
(S. K. PARTHASARTHY) JOINT SECRETARY TO THE GOVT. OF INDIA"
"18.4.3 If the officers placed junior to the officer concerned have been promoted, he should be promoted immediately and if there is no vacancy the junior most person officiating in the higher grade should be reverted to accommodate him. On promotion, his pay should be fixed under F.R. 27 at the stage it would have reached, had he been promoted from the date the officer immediately below him was promoted but no arrears would be admissible. The seniority of the officers would be determined in the order in which his name, on review, has been placed in the select list by DPC. If in any such case minimum period of qualifying service is prescribed for promotion to higher grade, the period from which an officers placed below the officers concerned in the select list was promoted to the higher grade, should be reckoned towards the qualifying period of service for the purpose determining his eligibility for promotion to the next higher grade.
18.4.4. In the case of confirmation, if the officers concerned is recommended for confirmation on the basis of review by the DPC, he should be confirmed and seniority already allotted to him on the basis of review should not be disturbed by the delay in confirmation."
11. Subsequently the office memorandum dated 10.4.1989 was superseded by the office memorandum promulgated on 14.9.1992. The relevant provisions of the office memorandum memorandum no.22011/4/91-Estt. (A) dated 14.9.1992 issued by Government of India, Ministry of Personnel, Public Grievances and Pensions Department of Personnel & Training are extracted hereunder :-
Subject: Promotion of Government servants against whom disciplinary/court proceedings are pending or whom 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. Vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). 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 O.M. for their guidance.
3. On the conclusion of the disciplinary case/criminal prosecution which results in dropping of allegations against the Government servant, the sealed cover or covers shall be opened. In case the Government servant is completely exonerated the due date of his promotion will be determined with reference to the position assigned to him in the findings kept in the sealed cover/covers and with reference to the date of promotion of his next junior on the basis of such position. The Government servant may be promoted, if necessary, by reverting the junior most officiating person. He may be promoted notionally with reference to the date of promotion of his junior. However, whether the officer concerned will be entitled to any arrears of pay for the period of notional promotion preceding the date of actual promotion and if so to what extent, will be decided by the appointing authority by taking into consideration all the facts and circumstances of the disciplinary proceeding/criminal prosecution. Where the authority denies arrears of salary or part of it, it will record its reasons for doing so. It is not possible to anticipate and enunciate exhaustively all the circumstances under which such denials of arrears of salary or part of it may become necessary. However, there may be cases where the proceedings, whether disciplinary or criminal, are, for example delayed at the instance of the employee or the clearance in the disciplinary proceedings or acquittal in the criminal proceedings is with benefit of doubt or on account of nonavailability of evidence due to the acts attributable to the employee etc. These are only some of the circumstances where such denial can be justified."
12. The reason for super-session of the office memorandum dated 12.4.1989 is not far to seek. The grant of notional promotion is made when an employee was rightfully entitled for promotion on a past date but was illegally denied his entitlement. The notional promotion is a tool in the hands of the State to set right the wrong done by the denial of promotion to the employee. The clock cannot be set back by mortal hands. Justice in such cases can be given by creation of a legal fiction. The power to grant notional promotion is in the nature of a legal fiction which creates a state of things where an employee is deemed to be promoted from the retrospective date. A wrongful denial of promotion in the past is redeemed by grant of notional promotion from such retrospective date.
13. In certain cases, the grant of entitlement of arrears of pay for the period of notional promotion is a right established by the law. Right granted by the law cannot be denied by the fiat of the executive. Where there is an entitlement of grant of arrears of pay from the date of notional promotion, denial of such benefits and mere grant of notional promotion would be bereft of any meaning.
14. Thus we see, at times, the grant of notional promotion to an employee from retrospective date is accompanied by an entitlement to receive arrears of promotional pay. If the right to receive arrears of promotional pay scale is established, the State employer cannot refuse the same. The State employer cannot deny justice, on the plea that it has the authority to discipline its employees but lacks the power to do justice.
15. The provisions or service regulations should equip the employer with the power to do justice to the employees. The power to do justice should not be disarmed by service regulations. Denial of justice is a failure of the rule of law.
16. The first principles of good administration require that the employer should have the will to check indiscipline, but also the power to redress grievances and the sense to dispense justice Law has to empower the employer to accomplish these tasks. Take one away and you shake the foundations of good administration. Office memorandum dated 12.4.1989 did just that. The office memorandum of 12.4.1989 disempowered the competent authority from granting any arrears of pay for the period of notional promotion, despite the entitlement of an employee.
17. Principles of efficient administration are not in discord with the rule of law. In fact efficient administration and rule of law have a symbiotic relationship. Only an efficient administration can uphold the rule of law. Equally only the rule of law can ensure efficient administration.
18. In Union of India and others Vs. K. V. Jankiraman and others reported at 1991 (4) SCC 109 the Hon'ble Supreme Court was faced with a similarly worded of his memorandum, which presented the competent authority but no option but to deny arrears of pay at the time of grant of notional promotion. The Hon'ble Supreme Court held thus :-
"We are, therefore, broadly in agreement with the finding of the Tribunal that when an employee is completely exonerated meaning thereby that he is not 'found blameworthy in the least and is not visited with the penalty even of censure, he has to be given the benefit of the salary of the higher post along with the other benefits from the date on which he would have normally been promoted but for the disciplinary/ criminal proceedings. However, there may be cases' where the proceedings, whether disciplinary or criminal, are, for example, delayed at the instance of the employee or the clearance in the disciplinary proceedings or acquittal in the criminal proceedings is with benefit of doubt or on account of non-availability of evidence due to the acts attributable to the employee etc. In such circumstances, the concerned authorities must be vested with the power to decide whether the employee at all deserves any salary for the intervening period and if he does, the extent to which he deserves it. Life being complex, it is not possible to anticipate and enumerate exhaustively all the circumstances under which such consideration may become necessary. To ignore however, such circumstances when they exist and lay down' an inflexi ble rule that in every case when an employee is exonerated in disciplinary/ criminal proceedings he should be entitled to all salary for the intervening period is to undermine discipline in the administration and jeopardise public interests. We are, therefore, unable to agree with the Tribunal that to deny the salary to an employee would in all circumstances be illegal. While, therefore, we do not approve of the said last sentence in the first sub-paragraph after clause (iii) of paragraph 3 of the said Memorandum, viz.. "but no arrears of pay shall be payable to him for the period of notional promotion preceding the date of actual promotion", we direct that in place of the said sentence the following sentence be read in the Memorandum:
"However, whether the officer concerned will be entitled to any arrears of pay for the period of notional promotion preceding the date of actual promotion, and if so to what extent, will be decided by the concerned authority by taking into consideration all the facts and circumstances of the disciplinary proceeding/criminal prosecution. Where the authority denies arrears of salary or part of it, it will record its reasons for doing so."
19. The office memorandum of 12.4.1989 on which reliance was placed is in the teeth of the law laid down by the Hon'ble Supreme Court in the case of K. V. Jankiraman and others (supra). The office memorandum of 14.9.1992 is in compliance of and in conformity to the law laid down by the Hon'ble Supreme Court in the case of K. V. Jankiraman and others (supra).
20. The orders impugned dated 30.8.2007 and 4.8.2008 are non speaking orders. They do not reflect independent application of mind by the competent authority. The orders fail to consider the relevant facts as required by the office memorandum dated 14.9.1992. The impugned orders reject the claim of the petitioner on the footing of Clause 18.4.3 in the office memorandum dated 12.04.1989. The Office memorandum dated 12.4.1989 was superseded by office memorandum dated 14.9.1992. The respondents have relied on an office memorandum that was not in existence. The respondent have failed to act in accordance with the office memorandum which holds the field.
21. Clearly the respondent authorities have misdirected themselves in law. The order dated 30.8.2007 passed by the respondent no.1 and order dated 4.8.2008 passed by the respondent no.2 are arbitrary and illegal. The order dated 30.8.2007 passed by the respondent no.1 and order dated 4.8.2008 passed by the respondent no.2 are quashed.
22. The matter is remanded to the respondent authorities for a fresh consideration in accordance with law. A mandamus is issued commanding the respondents to consider the case of the petitioner independently in adherence to the mandate of the office memorandum dated 14.9.1992 and consistent with the observations made in the judgment. Since long years have lapsed and the petitioner has also superannuated from service in the year 2008, it is open to the petitioner to make a fresh representation to the respondent authorities in support of his claim for arrears of salary within a period of two months from today. In case such claim is made in the aforesaid period along with a certified copy of this order, the respondent Inspector General (N.Z.), Central Industrial Security Force, Ministry of Home Affairs, CISF, North Centre, Headquarter New Delhi shall decide the same within a further period of three months by a reasoned and a speaking order.
23. The writ petition is allowed.
Order Date :- 9.7.2018 Pramod