Jammu & Kashmir High Court - Srinagar Bench
Shri Ajay Vibhanshu vs Union Of India And Ors on 18 October, 2024
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
fSerial No. 29
Supplementary Cause List I
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
LPA 265/2024
In[WP(C) 2299/2022]
CM(6356/2024)
Shri Ajay Vibhanshu ...Appellant/Petitioner(s)
Through: Mr. Bhat Fayaz, Advocate
Vs.
Union of India and Ors. ...Respondent(s)
Through: Mr. T.M. Shamsi, DSGI with
Mr. Faizan Ahmad Ganie, Advocate
CORAM:
HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE.
HON'BLE MR. JUSTICE RAJESH SEKHRI, JUDGE
ORDER(ORAL)
18.10.2024 Per-Sanjeev Kumar-J
1. This intra-court appeal, filed by the appellant, a Deputy Commandant in CRPF, is directed against the order and judgment dated 9th August, 2024, passed by the learned Single Judge of this Court ["the Writ Court"] in WP(C) No. 2369/2022, titled "Shri Ajay Vibhanshu and Ors. Vs. Union of India and Ors." whereby the writ petition filed by the appellant has been dismissed by the Writ Court.
2. Before we advert to the grounds of challenge urged by Mr. Bhat Fayaz, learned counsel for the appellant, we deem it appropriate to state a few facts which are germane to the disposal of the controversy sought to be raised in this appeal.
3. The appellant joined the services of CRPF on 1st August, 1998, as Assistant Commandant. In terms of the rules governing his service, the appellant became entitled to consideration for promotion to the next rank of Deputy Commandant by the Departmental Promotion Committee (DPC) for LPA No. 265/2024 Page No. 1 of 8 the vacancy years 2003-04 to 2008-09. However, due to pendency of a departmental inquiry against him, the recommendations of the DPC in respect of the appellant were kept in a sealed cover, in accordance with Paras (2) and (2.1) of the Departmental of Personnel and Training (DoPT) Office Memorandum No. 22011/4/1001 dated 14th September, 1992.
4. The disciplinary proceedings initiated against the appellant culminated in imposition of a penalty of stoppage of five increments without cumulative effect, as ordered by the respondents vide Order No. D.IX- 27/2000-CRC dated 22nd April, 2009. Immediately after imposition of penalty, the promotion case of the appellant to the rank of Deputy Commandant was placed before the next DPC held on 28th August, 2009, for the vacancy year 2009-10. However, the appellant was declared "unfit" for promotion by the DPC.
5. The appellant was once again considered for promotion to the rank of Deputy Commandant in the subsequent DPC held on 7th March, 2011, for the vacancy year 2010-11. The DPC graded the appellant fit for promotion, with the rider that he would be promoted after the end of current punishment being undergone by him. Accordingly, vide order dated 7 th May, 2014, the appellant was promoted to the rank of Deputy Commandant for the vacancy year 2010-11 and was assigned seniority appropriately with respect to the DPC dated 7th March, 2011, for the vacancy year 2010-11.
6. The appellant was further promoted to the rank of 2-I/C on 1st April 2018, by the DPC for the vacancy year 2018. Aggrieved by the assignment of seniority in the rank of Deputy Commandant based on the DPC of 7 th March, 2011, for the vacancy year 2010-11, the appellant made several representations to the respondents, seeking re-examination of his case and LPA No. 265/2024 Page No. 2 of 8 requesting that his promotion and seniority be backdated to the DPC of the year 2003 for the vacancy year 2003-04. These representations were considered by the respondents and found to be without merit.
7. Having faced rejection of his representations, the appellant filed WP(C) No. 2299/2022 before the Writ Court challenging, inter alia, the communication dated 24th June, 2022, whereby his representation claiming restoration of his seniority stood rejected. The appellant also sought a Writ of Mandamus to the respondents to restore his seniority based on the seniority dated 24th May, 1999.
8. The writ petition was contested by the respondents. In the reply affidavit, the respondents clearly submitted before the Writ Court that though the appellant was entitled to be considered for promotion to the Deputy Commandant by the DPC for the vacancy year 2003-04, but consideration of his candidature was kept in a sealed cover by the DPC for the reason that at the relevant point of time, the appellant was facing departmental inquiry. Reference was made to Paras (2) and (2.1) of the DoPT Office Memorandum dated 14th September, 1992.
9. It was pleaded before the Writ Court that as per the provisions of the Office Memorandum, the assessment of the DPC in respect of a government servant against whom a chargesheet has been issued and disciplinary proceedings are pending, is required to be kept in a sealed cover. According to Paragraph (3.1) of the aforesaid Office Memorandum of DoPT, if any penalty is imposed on the government servant as a result of disciplinary proceedings, the findings of the sealed cover are not to be acted upon and the promotion of such government servant is required to be considered by the LPA No. 265/2024 Page No. 3 of 8 next DPC in the normal course, having regard to the penalty imposed upon him.
10. The Writ Court considered the rival case set upon by the parties in the light of the material on record and came to the conclusion that the respondents had committed no illegality in rejecting the representations of the appellant for restoration of his seniority from the year 1999 or even from the year 2003, when he first became eligible to be considered for promotion to the rank of Deputy Commandant. Relying upon various provisions of Office Memorandum of DoPT dated 14th September, 1992, (supra), the Writ Court concluded that the appellant was rightly considered for promotion in the DPC dated 7th March, 2011, for the vacancy years 2010-11 and was accordingly assigned the seniority. The Writ Court did not agree with the contentions raised by the learned counsel on behalf of the appellant and, as a result whereof, dismissed the writ petition vide judgment and order impugned in this appeal.
11. Mr. Bhat Fayaz, learned counsel for the appellant assails the impugned judgment of the Writ Court on the ground that the Writ Court has not considered the two judgments relied upon by him, which, according to him, support the case of the appellant. He would argue that the appellant has been subjected to double jeopardy, in that, on one hand, the appellant has been imposed the penalty of stoppage of increments without cumulative effect for five years and simultaneously, he has been denied the benefit of promotion along with seniority retrospectively with effect from the date the juniors to him were considered in the DPC held in the year 2003.
12. Having heard learned counsel for the parties and perused the material on record, we are of the considered opinion that the judgment LPA No. 265/2024 Page No. 4 of 8 passed by the Writ Court takes care of all aspects of the arguments raised by learned counsel for the appellant. It is not in dispute that the appellant, who at the relevant point of time was serving as Assistant Commandant in CRPF, became eligible to promotion to the next rank of Deputy Commandant to be considered by the DPC for the vacancy year 2003-04. However, he could not be promoted along with his colleagues in the DPC that was held on 15 th May, 2003, and even in the subsequent DPCs held on 30 th April, 2004, for the vacancy year 2004-05, 4th May, 2005 for the vacancy year 2005-06, 24th May, 2006 for the vacancy year 2006-07, on 13th July, 2007 for the vacancy years 2007-08 and 12th December, 2008, for the vacancy year 2008-09. This was so, because during this period the appellant was facing disciplinary proceedings in which he had already been chargesheeted. The respondents very appropriately considered the appellant for promotion to the next rank of Deputy Commandant, but kept the same in a sealed cover in terms of Paragraph (2) and (2.1) of DoPT Office Memorandum dated 14 th September, 1992.
13. As noticed above, the disciplinary proceedings ultimately culminated into imposition of penalty vide order dated 22 nd April, 2009. The case of the appellant was, accordingly, considered in the next DPC held on 20th August, 2009, for the vacancy year 2009-10, that was the DPC conducted subsequent to imposition of the penalty. It is a different matter that he could not make the grade and was declared "unfit" for promotion. This is how the appellant was considered once again for promotion in the next DPC held on 7th March, 2011, for the vacancy year 2010-11. There he was found fit for promotion and was, accordingly, given promotion with a rider that promotion will take effect after the end of current punishment. LPA No. 265/2024 Page No. 5 of 8
14. The appellant was eventually promoted in the year 2014, and his seniority was fixed from the DPC held on 7th March, 2011, for the vacancy year 2010-11. The appellant should have been more than happy with the treatment meted out to him by the respondents. However, as they say the greed has no limits and this is how the appellant was prompted to file a petition seeking his promotion and seniority retrospectively even from the date when he was facing the departmental proceedings which ultimately culminated into imposition of penalty. The situation would have been different had the appellant been acquitted of the charge on the conclusion of the disciplinary proceedings. In that event, the appellant would have definitely been entitled to his promotion from the date he was considered and his result was kept in a sealed cover.
15. The judgments relied upon by the learned counsel for the appellant, in particular AIR 1988 SC 1673 titled "Shiy Kumar Sharma Vs. Haryana State Electricity Board", dealt with entirely different fact situations and were not applicable to the present case. In Shiy Kumar Sharma, the Hon'ble Supreme Court dealt with an employee who was working as Assistant Engineer and was on probation. Disciplinary proceedings came to be initiated against him which culminated into imposition of minor penalty of stoppage of one increment without any future effect. After the expiry of one year, the said employee was given the increment. However, when the employer confirmed the services of the probationary Assistant Engineers on satisfactory completion of the period of probation, the others were confirmed w.e.f. 1st April, 1969, whereas the aggrieved employee aforementioned was confirmed w.e.f 1st December, 1969. In those circumstances, it was held by the Hon'ble Supreme Court that the penalty by way of stoppage of one increment for one year without any future effect, should not disturb the LPA No. 265/2024 Page No. 6 of 8 seniority of the employee, more particularly when an employee on probation is confirmed and the confirmation dates back to the period when the person is put on probation.
16. In the instant case, the rule position governing the service conditions of the appellant is clear and unequivocal. It is clearly provided that in case an employee is facing disciplinary proceedings in which he has been charge sheeted, he may be considered for promotion by the DPC, if he is otherwise eligible, but the result of such consideration by the DPC is to be kept in sealed cover. The sealed cover is to be opened only in the event the person is acquitted of the charge. As is apparent from the Paragraph (3) of the DoPT Office Memorandum dated 14th September, 1992, (supra), if the disciplinary proceedings culminate into imposition of penalty, then the sealed cover is not required to be given effect to and in such eventuality the employee becomes entitled to be considered for promotion in the next DPC. It is not the case of the appellant that in the next DPC he was not considered. The appellant was not only considered in the next DPC, but was also given promotion with the benefit of seniority from the said date.
17. So far as the judgment by the Madras High Court in the case titled "S. Samatharman Vs. State of Tamil Nadu" 2010 SCC Online Mad 3400 is concerned, the issue was entirely different. In the said case, the writ petitioner had contended that there was an inordinate delay of five years in issuing the charge memo and also that the charge memo which was issued in the year 1997 was in respect of the occurrence that had taken place in the year 1992. The Madras High Court relying upon its earlier judgments held that when an employee was imposed a punishment of stoppage of increments for two years without cumulative effect, which could be construed as a minor LPA No. 265/2024 Page No. 7 of 8 punishment, he could not be denied further promotion solely based on the same, if he is otherwise fit for promotion. We fail to understand how this judgment would help the appellant.
18. It is not a case of the appellant that after the minor penalty of stoppage of increments for five years without cumulative effect was imposed on the appellant, he was not considered for further promotion. Rather in the same year i.e., in the year 2009 itself the appellant was considered for further promotion to the post of Deputy Commandant ignoring the imposition of a minor penalty on him. It is a different matter that the appellant could not make grade and was declared "unfit" for promotion. In the subsequent year, the appellant was again considered and was found fit and, accordingly, promoted in the year 2014, after the end of the penalty period. The respondents were kind enough to grant him seniority w.e.f. the year 2011 for the vacancy year 2010-11.
19. Viewed from any angle, we do not find any illegality or infirmity in the order and judgment passed by the Writ Court. The Writ Court has considered all aspects of the matter and has rightly concluded that the appellant was not entitled to promotion retrospectively w.e.f. the date he first became entitled to be considered for promotion and was not given promotion due to the pendency of disciplinary proceedings. For all these reasons, we find no merit in this appeal and the same is, accordingly, dismissed.
(RAJESH SEKHRI) (SANJEEV KUMAR)
JUDGE JUDGE
SRINAGAR:
18.10.2024
"Mir Arif"
Whether the judgment is reportable? Yes/No
MIR ARIF MANZOOR
I attest to the accuracy and
authenticity of this document
22.10.24
LPA No. 265/2024 Page No. 8 of 8