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Central Administrative Tribunal - Allahabad

Shiv Dhari Tiwari vs Union Of India on 10 February, 2023

                                            O.A. No.1470/2012


                               (Reserve on 2.2.2023)
     Central Administrative Tribunal, Allahabad Bench
                         Allahabad
                             ****
            Original Application No. 1470/2012
        Pronounced on 10th day of February, 2023.
     Hon'ble Mr. Justice Om Prakash VII, Member (J)
         Hon'ble Dr. Sanjiv Kumar, Member (A)

Shiv Dhari Tiwari aged about 59 years son of late K.R.
Tiwari presently working as Postal Assistant, under
Senior Post Master/ Jhansi HPO, Jhansi r/o 8/99 P&T
Colony, Gwalior Road, Jhansi (U.P.).
                                          Applicant
By Advocate:       Sri Santosh Kumar Kushwaha
                         Versus
1.      Union of India through Secretary, Ministry of
        Communication, Dak Bhawan, New Delhi.
2.      Chief Post Master General, U.P. Circle, Lucknow.
3.      Post Master General, Agra Region, Agra.
4.      Director, Postal Services, Agra Region, Agra.
5.      Senior Superintendent of Post Offices, Jhansi
        Division, Jhansi.
                                           Respondents
By Advocate:       Sri Praveen Shukla

                         ORDER

By Hon'ble Mr. Justice Om Prakash VII, Member (J) This O.A. has been filed by the applicants U/s 19 of the AT Act, 1985 with the prayer to quash the impugned orders dated 25.8.2006 along with order dated 31.8.2006 vide which claim regarding promotion under BCR scheme has been denied on the ground of unsatisfactory service record and further direct the respondents to grant promotion under BCR scheme from the date applicant has completed 26 years of services i.e. w.e.f. 1.5.2005.

2. The brief facts giving rise to the present O.A. are that the applicant was appointed as Postal Assistant w.e.f. 1.5.1979 and presently posted as Postal Assistant in old pay scale of Rs. 4500-7000/- w.e.f. 1.3.2004 after Page 1 of 10 O.A. No.1470/2012 granting of Time Bound One Promotion (in short TBOP) vide order dated 1.6.2006 on completion of 16 years of satisfactory continuous service. The applicant has completed 33 years of service and is entitled for promotion on Biennial Cadre Review (in short BCR) scheme after completion of 26 years of service which was recommended by the respondent No. 5 vide letter dated 19.4.2006. Respondent No. 2 issued letter dated 25.8.2006 which was again issued by respondent No. 5 vide memo dated 31.8.2006 (Annexure A-1), through which it was notified that applicant was not found fit for promotion under BCR scheme due to unsatisfactory service record. Applicant moved representation to CPMG, U.P. Circle, Lucknow for his promotion and asking for record on which basis, the services of the applicant was got unsatisfactory. It is further stated that applicant was neither under the currency of penalty nor any charge sheet was pending against him at the time of convening of DPC held for BCR promotion. Applicant again moved representation on 11.9.2008 to SSP, Jhansi Division for supplying the records on which basis his services was found unsatisfactory. Applicant filed O.A. No. 1605/2008 which was disposed of vide order dated 4.11.2008 with direction to the respondents to consider and dispose of the representation of the applicant dated 14.3.2008 by reasoned and speaking order. Applicant again filed O.A. No. 538/2010 which was dismissed vide order dated 3.9.2012 on the ground that applicant seeks plural relief in that O.A. with liberty to file fresh O.A with regard to second relief i.e. for promotion. In reply to RTI of applicant dated 26.5.2009, CPIO i.e. SSP, Jhansi Division vide letter dated 24.6.2009 (Annexure A-11) informed that his case was not considered for promotion due to his unsatisfactory service record.

3. Learned counsel for the respondents filed counter reply through which it is stated that applicant was appointed as Postal Assistant on 1.5.1979. He has completed 33 years and 5 months of service in Postal Assistant cadre and would be retire on 31.7.2013. It is further stated that applicant is a subsidiary offender in Jhansi HPO RD fraud case and a charge sheet was issued upon him on 22.11.2006. Respondents awarded penalty of recovery of Rs. 3090/- from the pay of the applicant in five installments of Rs. 500 and last installment of Rs. 590/- vide letter dated 23.2.2007 (Annexure No. 2 to the O.A.). The currency period of punishment was w.e.f. Feb 2007 to July 2007. It is further stated that as per the departmental rules, the DPC should assess the suitability of the employees for financial upgradation on the basis of their service record and annual confidential report for five preceding years. The then SSPos Jhansi recommended the case of applicant for financial upgradation under BCR scheme but in column 12 of the special report annexed at page 28 of counter affidavit (CA-V), he recorded remark that applicant is also subsidiary offender in Jhansi HPO RD fraud case. Chief Post Master General, U.P. Circle, Lucknow vide memo dated 25.8.2006 did not find the applicant fit for financial upgradation under BCR due to unsatisfactory service record on the aforesaid ground.

4. Heard the learned counsel for the parties.

5. Learned counsel for the applicant argued that applicant was granted T.B.O.P promotion on 1.6.2006 on completion of 16 years of satisfactory service and after completion of 26 years of service, applicant was entitled for BCR promotion. His name was recommended for BCR promotion with special remarks, DPC held on 25.8.2016 and at the time of DPC, neither any currency of penalty nor any charge sheet was pending against the applicant.

Learned counsel for applicant further argued that promotion of the applicant was withheld on the ground of unsatisfactory service record by the Circle Office, who has no service record of the applicant. During the course of argument, learned counsel for applicant produced letter dated 24.11.2020 issued by the CPIO, Sr. Supdt. of Post Offices in reply to letter dated 15.10.2020 sought by the applicant under RTI, in which it is clearly mentioned that as per available record, there was no charge sheet and currency of punishment pending against the official. Learned counsel for applicant has also produced letter dated 18th October, 2010 regarding delay and irregularities in implementation of modified assured career progression scheme- clarifications regarding and at point No. 5, it is mention that "Attention of the Circle is drawn to department of Personnel and Training O.M. No.22011/2/78-Estt (A) dated 16.2.1979 communicated to DGP&T letter No. 35-1/79-SPB-II dated 7.5.1979. According to these orders, the penalty of censure or recovery of pecuniary loss is not a bar for penalty for promotion if the findings of the DPC are in favour of the employee." Learned counsel for the applicant also placed reliance on the following case laws:-

i) Union of India and others Vs. Dr. Sudha Salhan (Smt) 1998 Supreme Court cases (L&S) 884.

ii) Union of India and others Vs. Anil Kumar Sarkar 2013 (1) GLH 792 (Civil Appeal No. 2537 of 2013 decided on 15.3.2013)

iii) Dineshwar Shukla Vs. State of U.P. 2018 (1) ADJ 602 (DB)(LB) Allahabad High Court (Civil Misc. Writ Petition (S/B) No. 23751 of 2017 decided on 4th December, 2017).

6. Learned counsel for respondents argued that applicant was a subsidiary offender in Jhansi HPO RD fraud case and a charge sheet was issued upon him on Page 4 of 10 O.A. No.1470/2012 22.11.2006. Penalty of recovery was also awarded to the applicant and the currency period of punishment was w.e.f. Feb 2007 to July 2007. The then SSPos Jhansi recommended the case of applicant for financial upgradation under BCR scheme with special report that applicant is also subsidiary offender in Jhansi HPO RD fraud case. Chief Post Master General, U.P. Circle, Lucknow vide memo dated 25.8.2006 did not find the applicant fit for financial upgradation under BCR due to unsatisfactory service record on the aforesaid ground. Learned counsel for the respondents also filed written submission through which he has reiterated the facts as stated in the counter reply. However, through the written statement, he has annexed the following case laws:-

i) Nutranarvind Vs. Union of India LAWS (SC)-1996-1- 144 (Civil 2546 of 1996 dated 15.1.1996).

ii) Union of India Vs. S.K.Goel LAWS (SC) 2007-2-16 Appeal (Civil) 689 of 2007

iii) O.A.No. 3509/2009 Ram Nath Vs. UOI and others (CAT-PB dated 11.10.2013).

iv) Ram Nath Vs. UOI and others LAWS (DLH) 2016-5- 305 (W.P. (C ) 8403/2014 dated 17.5.2016.

v) Kalpana Mehdiratta Vs. Air Force Bal Bharti School and others LAWS (DLH) 2015-4-12 W.P. © 481/2014.

7. We have considered the rival submissions of the parties and have gone through the entire record.

8. From perusal of record, it is evident that DPC for BCR promotion was held on 25.8.2006 and at the time of DCP, no charge sheet was pending against the applicant, as can be seen from the letter dated 24.11.2020 issued by the CPIO (Sr. Supdt. of Post Offices) in reply to the letter dated 15.10.2020 of the applicant seeking information under RTI. Vide letter dated 19.4.2006, SSP, Jhansi Division forwarded the name of the applicant for BCR promotion to Postmaster General, Agra Region with Page 5 of 10 O.A. No.1470/2012 special report. ACR of 2000-2001 of the applicant was "average", 2001-2002 "Good", 2002-03 "Average" ,2003- 2004 "Good" with remark that awarded punishment of Rs. 1000/- from pay. 2004-05 "Good" with remarks "Censure" and at para 12 it is mentioned that "Subsidiary offender in Jhansi HPO RD in fraud case.

9. In the case of Union of India and others Vs. Dr. Sudha Salhan (Smt.) (supra), Hon'ble Apex Court has held as under:-

"The question, however, stands concluded by a Three Judge decision of this Court in Union of India and Ors. Vs. K.B.Jankiraman & Ors. (1991 (4) SCC 109 in which the same view has been taken. We are in respectful agreement with the above decision. We are also of the opinion that if on the date on which the name of a person is considered by the Departmental Promotion Committee for promotion to the higher post, such person is neither under suspension nor has any departmental proceedings been initiated against him, his name, if he is found meritorious and suitable, has to be brought on the select list and the "sealed cover" procedure cannot be adopted. The recommendation of the Departmental Promotion Committee can be placed in a "sealed cover' only if on the date of consideration of the name for promotion, the departmental proceedings had been initiated or were pending or on its conclusion, final orders had not been passed by the appropriate authority. It is obvious that if the officers, against whom the departmental proceedings were initiated, is ultimately exonerated, the sealed cover containing the recommendation of the Departmental Promotion Committee would be opened, and the recommendation would be given effect to."

10. In the case of UOI Vs. Anil Kumar Sarkar (supra), the Hon'ble Apex Court has held as under:-

"15) In Chairman-cum-Managing Director, Coal India Limited and Others vs. Ananta Saha and Others, (2011) 5 SCC 142, this Court held as under:

"27. There can be no quarrel with the settled legal proposition that the disciplinary proceedings commence only when a charge-sheet is issued to the delinquent employee. (Vide Union of India v.

K.V.Jankiraman, (1991) 4 SCC 109 and UCO Bank v. Rajinder Lal Capoor, (2007) 6 SCC 694)" We also reiterate that the disciplinary proceedings commence only when a charge sheet is issued. Departmental proceeding is normally said to be initiated only when a charge sheet is issued."

11. In the case of Dineshwar Shukla Vs. State of U.P. (supra), Hon'ble High Court of Allahabad, Lucknow Bench has held as under:-

"In the case of Union of India and others Vs. Dr. Sudha Salhan (Smt.); (1998) 3 SCC 394 the Apex Court after considering the observation made by a Three Judge decision in Union of India and Ors. Vs. K.B. Jankiraman & Ors. (1991 (4) SCC 109, held that if on the date on which the name of a person is considered by the Departmental Promotion Committee for promotion to the higher post, such person is neither under suspension nor has any departmental proceedings been initiated against him, his name, if he is found meritorious and suitable, has to be brought on the select list and the "sealed cover" procedure cannot be adopted. The recommendation of the Departmental Promotion Committee can be placed in a "sealed cover" only if on the date of consideration of the name for promotion, the departmental proceedings had been initiated or were pending or on its conclusion, final orders had not been passed by the appropriate authority. It is obvious that if the officers, against whom the departmental proceedings were initiated, is ultimately exonerated, the sealed cover containing the recommendation of the Departmental Promotion Committee would be opened, and the recommendation would be given effect to.

Admittedly, at the time of considering the candidature of the petitioner i.e. on 07.09.2016, for promotion to the post of Chief Engineer Level-II nothing adverse was existing on record against the petitioner as the charge-sheet dated 28.09.2016 was served upon him vide letter dated 17.10.2016 of the Inquiry Officer. As a matter of fact, the Departmental Promotion Committee in its meeting dated 07.09.2016 had already considered and recommended the name of the petitioner for promotion. Subsequent issuance of charge-sheet and punishment has no relation with the recommendation of the Departmental Promotion Committee for promotion to the post in question Page 7 of 10 O.A. No.1470/2012 and, therefore, there is no justifiable reason for denying promotion to the petitioner.

For the reasons stated above, the State Government is directed to examine the claim of the petitioner for promotion to the post of Chief Engineer, Level-II in the light of the observation made hereinabove together with the recommendation of the Departmental Promotion Committee dated 07.09.2016 and if any person junior to the petitioner has been promoted on the post of Chief Engineer, Level-II, the petitioner shall also be promoted to the said post from the same date. The exercise in this regard shall be completed within a fortnight from the date of production of certified copy of this order."

12. In the case of Nutanarvind Vs. UOI (supra), the matter pertains to the vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules, which is not the case in the instant case, hence this case will not be applicable in the instant matter because in the instant case no charge sheet was pending against the applicant at the time of DPC, on the basis of which his case was not considered for promotion.

13. The case of UOI Vs. S.K.Goel (Supra), pertains to downgraded ACRs but in the instant case the promotion of the applicant was denied on the ground of censure penalty against the applicant but no charge sheet was issued at the time of DPC. Hence this case will also not be applicable in the present case.

14. In the case of Ram Nath Vs. UOI (supra), ,DPC has assessed ACRs for 6 years and on the basis of ACRs, DPC recommended the case of applicant 'unfit, which is not the case of the applicant in the instant O.A.

15. The case of Ram Nath Vs. UOI (supra), Hon'ble High Court of Delhi, this case also pertains to adverse ACRs, which is not the case in the instant O.A. Page 8 of 10 O.A. No.1470/2012

16. In the case of Kalpana Mehdiratta Vs. Air Force Bal Bharti School and others, the argument of the applicant that respondents have acted with a mela fide intention but Court has rejected the plea of the applicant that applicant has failed to point out any mala fide or bias, which is also not the case in the present O.A. In the present O.A. the case of the applicant was not considered because some censure penalty was pending against the applicant but no charge sheet was issued at the time of DPC.

17. In the instant case, DPC was held on 25.8.2006 and charge sheet was issued to the applicant on 22.11.2006 (Annexure No. 1 to the C.A.), which shows that at the time of DPC, no charge sheet was pending against the applicant. Letter dated 24.11.2020 also clearly shows that as per record, no charge sheet and currency of punishment was pending against the applicant. As far as plea taken by the respondents regarding punishment of recovery, at point No. 5 of clarification, it is clearly mentioned that the penalty of censure or recovery of pecuniary loss is not a bar for promotion if the findings of the DPC are in favour of the employee. Therefore, we are of the opinion that applicant is entitled for BCR promotion w.e.f. the date of DPC ignoring the remarks "Censure" and remarks at para 12 "Subsidiary offender in Jhansi HPO RD in fraud case, because no charge sheet was issued to the applicant at the time of DPC.

18. Accordingly, O.A. is allowed. Order dated 25.8.2006 along with order dated 31.8.2006 are quashed. Respondents are directed to consider the case of applicant for grant for BCR promotion w.e.f. the date, it became due. This exercise shall be completed within a period of 3 months from the date of receipt of certified copy of this order.

19. There shall be no order as to costs.

(Dr. Sanjiv Kumar)            (Justice Om Prakash-VII)
 Member (A)                              Member (J)

HLS/-




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