Central Administrative Tribunal - Chandigarh
Unknown vs Union Of India Through The Secretary on 27 August, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
OA No. 358/HR/2008.
Chandigarh: this 27th day of August, 2010.
HONBLE MRS. SHYAMA DOGRA, MEMBER (J).
HONBLE MRS. PROMILLA ISSAR, MEMBER (A).
Arun Kumar son of Shri A.S. Dubey
Working as Deputy General Manager, Sonepat
O/o General Manager Telecom. Distt.
Sonepat, Haryana.
..Applicant.
(By: Shri Ramesh Sharma, advocate)
Versus
1. Union of India through the Secretary
To Government of India, Ministry of Communications
& Information Technology, Department of
Telecommunications, Sanchar Bhawan, New Delhi.
2. Chief General Manager, Haryana Telecom. Circle
Ambala.
3. Union Public Service Commission
through its Secretary, Dholpur House, Shahjahan Road
New Delhi.
.Respondents.
(By: Shri Deepak Agnihotri, counsel for Respondent no. 1.
Shri D.R. Sharma, counsel for Respondent no. 2.
Shri B.B. Sharma, counsel for Respondent no. 3.)
O R D E R
(By: Honble Mrs. Promilla Issar, Member (A) The applicant has filed this OA praying for the following reliefs:-
i)Quash the order dated 20.9.2005 (A-1) by which the President, the competent Disciplinary Authority has ordered imposition of penalty of censure on the applicant, in violation of rules and law.
ii)Quash the order dated 18.9.2007 (A-2), to the extent applicant has been regularized as Junior Administrative Grade of ITS Group A, w.e.f. 8.8.2007 instead of from the date, junior to the applicant has been so regularized.
iii)Declare that the applicant is entitled to regular promotion to Junior Administrative Cadre of ITS Group A in the pay scale of Rs. 12000-16500, from the date his junior has been so promoted, with all the consequential benefits of arrears of pay and allowances, with interest thereon @ 18% from the date the same became due to the actual date of payment, as there is no impediment in promotion of the applicant on regular basis, as on the relevant date when his case was to be considered, there was nothing against him.
2. The facts of the case as projected by the applicant are that he was charge-sheeted on 4.6.2001 under Rule 16 of the CCS (CCA) Rules, 1965 to which he submitted his reply on 24.1.2002 denying the charges. The main charge against the applicant was that:-
while functioning as TDE in the office of TDM, Faizabad during the period 1997-98, he failed to detect the obliteration done in the address in the application for a temporary telephone connection of Shri Ramesh Chandra Agarwal dated 1.7.97. In fact, a temporary telephone connection was sanctioned by the TDM, Faizabad to Shri Ramesh Chandra Agarwal and against this sanction, a sanction memo. was signed and issued by the applicant on 22.7.97 and a telephone no. 21345 was opened at the premises of the subscriber. The dealing clerk again utilized this application of Shri Ramesh Chandra Agarwal after manipulation in his address and put up for sanction. Shri Arun Kumar (applicant) again issued sanction memo under his signature on 6.8.97. This sanction was further utilized for opening of telephone no. 21417. Thus, the applicant issued two sanction memos. against one sanctin of the TDM, Faizabad. He also failed to mark the file to the TDM, Faizabad for reconsideration of sanction accorded. In fact, TDM, Faizabad had sanctioned temporary connection for six months and thus violated the provisions contained in TCHQ letter dated 7.7.93. But the applicant has failed to point out that the TDM has exceeded his extent of power which was fixed as 3 months. His aforesaid lapses resulted in opening of temporary telephone connection for six months at incorrect address to a non-bona fide subscriber who after making heavy ISD/STD calls absconded without payment. Though the Inquiry Officer was appointed in January, 2002, but the proceedings were kept pending. He has further stated that the respondents conducted regular DPC on 26.12.2002 for confirmation of officers in JAG cadre for the recruitment years 1985 to 1990 (six batches) and again conducted meeting of DPC in the year 2004 for the recruitment years 1991 to 1993 (three batches). He has further stated that the UPSC gave its advice on 22.8.2005, stating that he had not committed any irregularity while issuing the sanction memo. and he was at no stage involved in providing STD/ISD facility to the subscriber. It was further observed by the UPSC that though instructions regarding provision of STD/ISD facilities were issued by the TDM to SDE, but Shri Arun Kumar as the Supervising Officer should have ensured that his subordinates followed these instructions to avoid any misuse of the STD/ISD facility by the subscriber, which he has failed to do and the ends of justice would be met in this case if the penalty of censure is imposed on him. Thus, the penalty of censure was imposed on the applicant vide order dated 20.9.2005 (A-1).
3. He has stated that he was regularized in the J.A.G. cadre of ITS Group A in the pay scale of Rs. 12000-16500 vide order dated 18.9.2007. The case of the applicant is that since the penalty of censure is not tenable on the basis of grounds mentioned in this OA, and he has been punished for a misconduct, thus, he is entitled to be regularized from a date on which his junior was so regularized, as there was nothing pending against him on the relevant date. According to the applicant, censure is no penalty in the eyes of the law as he is entitled to promotion in view of the law that if there is no fault on the part of concerned employee in delay of departmental proceedings, he is entitled to promotion during the pendency of such proceedings.
4. The respondents have stated in their reply that a DPC meeting was convened in November December, 2002 for promotion of ITS Group A to Junior Administrative Grade (JAG) against vacancies of the years 1998-2002 and the applicant was considered for promotion to JAG against all the above-mentioned vacancy years. They have further stated that, keeping in view the pending vigilance case/disciplinary proceedings against him, the recommendations of the DPC were kept in sealed cover as per prevailing instructions issued by the DOPT vide OM dated 14.9.1992. He was again considered in the DPC meeting held in December, 2004 against the vacancies for the years from 2002 to 2005 and the recommendation of the DPC was again kept in sealed cover in view of the pending vigilance case/disciplinary proceedings against him. The pending vigilance/disciplinary proceedings against him were completed on 20.9.2005 and a penalty of censure was imposed on him. According to the respondents, since censure is a penalty as per CCS (CCA) Rules, 1965, sealed cover containing recommendations of the previous DPCs were not acted upon as per instructions issued by DOPT vide OM dated 14.9.92. They have further stated that the applicant was considered afresh in the DPC meeting held in August, 2007 against the vacancies for the year 2005-06 on completion of vigilance case/disciplinary proceedings and was promoted to JAG on regular basis vide order dated 13.8.2007 on the recommendations of the DPC.
5. The applicant has filed a rejoinder generally reiterating the averments made in the OA.
6. We have given our careful consideration to the respective submissions made by the parties. We have also carefully perused the records of the case.
7. The Original Application involves two questions of law. One is the challenge to the alleged irregularity and illegality in the disciplinary proceedings and the second claim is for promotion to the post of Junior Administrative Grade of ITS Group A, on regular basis from a date when no charge sheet was pending against the applicant and the year-wise vacancies for the relevant period were also in existence.
8. In so far as first claim of the applicant is concerned, the challenge of the applicant is to the order dated 20.9.2005 (Annexure A-1) by which the penalty of censure has been imposed upon him. He has failed to point out any irregularity in the procedure followed by the respondents and illegality in the order passed by respondents imposing penalty of censure. Moreover, he has not challenged the impugned order before the higher authorities. Therefore, the Court is not inclined to interfere in that order. After expiry of the relevant period of punishment, he was also given promotion to the post of JAG of ITS Group A in 2007. Moreover, it is well settled in law that judicial review, is not directed against the decision but is confined to the decision-making process. Judicial review cannot extend to the examination of the correctness or reasonableness of a decision as a matter of fact. The purpose of judicial review is to ensure that the individual receives fair treatment and not to ensure that the authority after according fair treatment reaches, on a matter which it is authorized by law to decide, a conclusion which is correct in the eyes of the Court. Judicial review is not an appeal against a decision but a review of the manner in which the decision is made. It will be erroneous to think that the Court sits in judgment not only on the correctness of the decision-making process but also on the correctness of the decision itself.
9. Thus, even otherwise this Tribunal would be slow in interferring in the orders passed by the disciplinary authorities unless the concerned delinquent has not been given fair treatment. In this case though there has been delay in conclusion of the proceedings, yet the applicant has been given due opportunity to defend himself. The disciplinary authorities have imposed the penalty of censure after discussing the evidence available on record on the basis of which the applicant was held guilty. He has accepted the penalty by not challenging the same before the higher authorities.
10. The other relief prayed for by the applicant is to quash the order dated 18.9.2007 (Annexure A-2), vide which he has been regularized as Junior Administrative Grade of ITS Group A, w.e.f. 8.8.2007 instead of from an earlier date when a person junior to him was regularized. He has also prayed that he may be declared to be entitled to regular promotion to the JAG of ITS Group A in the pay scale of Rs.12000-16500, from the date his juniors were so promoted, with all the consequential benefits of arrears of pay and allowances, with interest thereon @18% from the date the same became due till the actual date of payment.
11. It is not in dispute that the applicant was promoted to Junior Administrative Grade of Indian Telecom Service Group A on ad-hoc basis in the year 1997. On 4.6.2001 the applicant was issued a charge sheet under Rule 16 of the CCS (CCA) Rules, 1965, for imposition of minor penalty (Annexure A-4) in which penalty of censure was imposed upon him which has attained finality. The applicant was also issued a charge sheet on 25.9.2001. Ultimately allegations in that charge sheet were dropped in May, 2006.
12. The case set up by the applicant is that the respondents conducted regular DPC for confirmation of officers working in JAG cadre on 26.12.2002 for the recruitment years 1998-99, 1999-2000, 2000=-2001, 2001-2002 (in all six batches). However, the case of the applicant was wrongly kept in sealed cover. It is claimed that since the applicant was not facing any departmental proceedings on the relevant date, therefore, he was entitled to be promoted if found fit vis-`-vis his juniors and his case was not required to be kept in sealed cover. The applicant was regularized as J.A.G. Cadre of ITS Group A in the pay scale of Rs.12000-16500 w.e.f. 8.8.2007. It is argued that unless departmental proceedings or criminal proceedings are pending against a person, his promotion cannot be withheld. His claim is that, during the year 1999-2000, there were no such proceedings pending against him and as such his case was required to be considered for promotion against the vacancies for the year 1999-2000 and charge-sheet issued to him in 2001 would have no effect on his entitlement to promotion to the JAG cadre of ITS.
13. In order to impart justice in a fair manner and taking into consideration the plea of the applicant with regard to giving of promotion to the eligible incumbents on the basis of year-wise vacancies, we had called for the records of the proceedings of the DPC held in 2002. The same would go to show that the case of the applicant was considered for the year 1999-2000 but it was kept in sealed cover. Had the DPC been conducted in time during 1999 or 2000 itself, for the vacancies of those relevant years, there would have been no occasion for keeping the case of the applicant in sealed cover. However, the respondents conducted a combined DPC for different years i.e. from 1998-99 to 2001-2002 on 23.12.2002, when the charge-sheet had been issued to the applicant. The only question to be answered is whether issuance of charge-sheet to the applicant in 2001 can be taken into consideration by the Departmental Promotion Committee to deny him promotion against the vacancy for the years 1999-2000. This issue is no longer res-integra and stands settled by the Principal Bench of the C.A.T. in the case of Gajraj Singh Vs. Union of India & others, 2003 (1) SLJ 123 (CAT). It was held in that case that the position of record of a person is to be seen on the date when he is due for promotion and the year of vacancy against which his claim is to be considered. In that case the concerned officer was promoted on ad-hoc basis but was issued a charge-sheet subsequent to such promotion. The DPC held its meeting for considering his case for promotion on regular basis against earlier years vacancy. He was, however, denied promotion on the ground of initiation of departmental proceedings subsequent to the date when he was due for promotion. The Bench held as follows:
it was surprising that regular DPCs were not held from 1994 to 2000 on year wise basis. This has cost the applicant considerably. Further, there have been no proceedings pending against him, either disciplinary or otherwise. No adverse remarks had also been communicated to him for the relevant period. Therefore, keeping the case of the applicant in sealed cover was improper. The Honble Supreme Court had, time and again held that an ad hoc employee, continuing for a considerable time without break and functioning against existing vacancies would have to be treated as regular employees and on this basis, the applicant should get regularization from 90, when he has been working as ad hoc ACP.
The delay on account of respondents should not be permitted to come in the way of the advancement in career of the officer applicant, which was his right.
14. In that case also, the findings of the DPC were kept in sealed cover in terms of DOPTs OM No.22011/4/91-Estt.A dated 14.9.92, as the Officer was charge-sheeted on 1.3.2000. The stand of respondents was that the penalty of Censure was imposed against him on 20.7.2000 and as such the findings of the DPC which were kept in sealed cover, were not to be given effect to. On the basis of these facts, the Bench had further held as under:
The point for determination in this OA is whether an individual can be denied promotion, relating to the vacancy of a particular year, on the basis of a charge sheet issued and penalty imposed more than eight years later, merely, because the DPC did not meet on time or as they are expected to do i.e. annually. Applicant has been functioning as ad hoc Asstt. Commissioner of Police, in Gr. II post in DANIPS since 16.11.90. DPCs meetings were held in September, 1991 and January 1992 or filing up the regular vacancies of ACPs from 88-91 but the applicant did not reach the promotion zone. Thereafter, no DPC was held till April-May 2000. All the vacancies between 92-98 were considered for being filled up then and the applicants case related to the vacancies of 93-98. It is seen that the applicants case came up for DPCs consideration and DPC placed its recommendation in sealed cover. This has been on the basis of a charge sheet issued on 1.3.2000. Respondents, therefore, are bound to have the sealed cover of the DPC from the earliest period when the findings were so placed opened and take action, in terms of the said recommendations. If the findings of the DPC are in his favour, the same has to be given effect.
15. After noticing the instructions dated 14.9.92 that DPC is to hold meetings on a year to year basis before the vacancies arise, the Bench observed in that case that no proceedings, whatsoever, were even contemplated against the applicant till 1.3.2000 and therefore the charge sheet issued on 1.3.2000 or the penalty imposed on 20.7.2000, could not have been acted upon retrospectively regarding the applicants promotion for any of the years from 1993-94 to 1997-98. Taking note of the instructions dated 14.9.1992, it was further recorded that the same does not come to the assistance of the respondents. The DPCs generally meet and consider cases of promotion of the individuals in the eligibility zone and make recommendations for future vacancies and this process is, therefore, directed to be undertaken on a year to year basis before the vacancies arise. In such a situation, if any of the circumstances of para 2 of the DOPTs OM arise after the DPCs recommendations are recorded, but promotions have not taken place, directions of para 7 would operate against the promotions, as if the individuals case is placed in a sealed cover. However, the same would not apply in a case, where the individuals case is considered for promotion for an earlier period, much before any of the proceedings were contemplated and he or she is recommended for promotion during such earlier period.
16. We find that the case in hand is fully covered by the decision in the case of Gajraj Singh (supra). We do not find any grounds made out to take a different view. It is not in dispute even in this case that the respondents have clubbed the vacancies for the year 1998-1999 to 2001-2002. The cases of persons who fell within the zone of consideration against the vacancies for the years 1999-2000 and 2000-2001 onwards have to be considered with regard to the record available on that relevant date or year and not with reference to an event which has taken place later in 2001 i.e. issuance of chargesheet to the applicant. It is not disputed that the applicant was eligible qua the vacancy for the year 1998-99. He was promoted in 1997 itself, though on ad-hoc basis. Thus, the initiation of departmental proceedings in 2001 would not have any adverse impact on his claim for promotion against the vacancies for the years 1998-99 or 1999-2000.
17. This Original Application is thus partly allowed. The respondents are directed to open the sealed cover in which the findings of the DPC relating to the applicant for his regular promotion to the J.A.G. Cadre of ITS Group A, against the vacancies for the years 1999-2000, were placed and give effect to the same. If he is otherwise found fit as per his record, rules and law, he may be considered for regular promotion from the due date, with all the consequential benefits, at par with his immediate junior. The needful may be done within a period of three months from the date of receipt of a copy of this order. It is made clear, however, that we are not expressing any opinion about his suitability for promotion at that time. This is something that is entirely for the DPC and the respondents to consider and decide upon.
18. In terms of these observations and directions, this O.A. stands disposed of with no orders as to costs.
(PROMILLA ISSAR) (SHYAMA DOGRA)
MEMBER (A) MEMBER (J)
Dated: 27.08.2010
ms
16
OA No.358/HR/2008.