Central Administrative Tribunal - Delhi
Shri Mahavir Prasad vs Union Of India Through on 8 February, 2013
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.3029/2011 With O.A. No.3250/2011 Friday this the 8th day of February, 2013 Honble Shri George Paracken, Member (J) Honble Shri Shekhar Agarwal, Member (A) OA No.3029/2011 Shri Mahavir Prasad G-2386, Netaji Nagar New Delhi 110023. ..Applicant (By Advocate: Shri Padma Kumar S) Versus 1. Union of India through Secretary, Ministry of Defence, South Block, DHQ PO, New Delhi-110011. 2. Joint Secretary (Training) & Chief Administrative Officer, E Block, D.H.Q. PO, New Delhi 110011. 3. Director General, Quality Assurance, G Block, D.H.Q PO, New Delhi. ..Respondents (By Advocate: Shri S.M. Arif) OA No.3250/2011 Shri Mahavir Prasad G-2386, Netaji Nagar New Delhi 110023. ..Applicant (By Advocate: Shri Padma Kumar S) Versus 1. Union of India through Secretary, Ministry of Defence, South Block, DHQ PO, New Delhi-110011. 2. Joint Secretary (Training) & Chief Administrative Officer, E Block, D.H.Q. PO, New Delhi 110011. 3. Director General, Quality Assurance, G Block, D.H.Q PO, New Delhi. ..Respondents (By Advocate: Shri Satish Kumar) O R D E R (ORAL)
Shri G George Paracken:
Both these Original Applications have been filed by the same applicant. He belongs to the civil cadre of the Ministry of Defence called the Armed Forces Headquarters Civil Services. He has been holding the post of Deputy Director earlier known as Civilian Staff Officer (CSO) for the last 14 years. The issue raised by him in both these OAs is interlinked and, therefore, they are disposed of by this common order.
2. In OA No. 3029/2011, the applicant has challenged the impugned Annexure A-1 order dated 12.08.2011 terminating his temporary appointment to the grade of Deputy Director and reverting him to the grade of Section Officer. He has also challenged the Annexure A-2 order issued by respondent No.2 directing the present employer, namely, the respondent No.3 the DGQA (Coord) to relieve him immediately. Further, he has challenged the endorsement vide in the Annexure A-3 select panel of Section Officers approved for promotion to the grade of Dy. Director on regular basis for the DPC years 2001-02 to 2004-05 issued on 24.05.2011 to the effect that he will be promoted only after completion of the penalty ordered on 07.02.2011. He is aggrieved by para 4 of the promotion order dated 25.05.2011 promoting the Section Officers to the grade of Dy. Directors on regular basis which is as under:-
4. Promotion orders in respect of Shri Mahavir Prasad (DoB 15.04.1953) figuring in the Select Panel for the year 2002-03 will be issued separately on expiry of the penalty imposed on the officer vide Order No.A/27937/CAO/DD/04 dated 07 Feb 2011. He has, therefore, sought a direction to set aside all those three impugned orders in this OA. The relief and interim relief sought by him are as under:-
(a) quash and set aside the Order dated 12.8.2011 (Annexure A-1) terminating the appointment of Deputy Director and reverting Applicant to the post of Section Officer and Order dated 12.8.2011 (ANNEXURE A-2) directing his present employer to relieve the Applicant after completion of necessary formalities.
(b) quash and set aside the endorsement in the Select List of 24.5.2011 (ANNEXURE A-3) that the Applicant would be promoted only after the completion of the penalty ordered on 7.2.2011 and also quash and set aside Para 4 of the Order dated 25.5.2011 (ANNEXURE A-4).
(b) Direct the respondent to grant all the consequential benefits from (a) above.
(c) grant any other relief which this Honble Tribunal may be pleased to grant under the facts and circumstances of the case.
9. Interim prayer: This Honble Tribunal may be pleased to stay the operation of the impugned orders during the pendency of the OA. It is most respectfully submitted that there is a prima facie case in favour of the Applicant, the balance of convenience is also in his favour as he has not been relieved from the post of Deputy Director and also if the order is not stayed, the Applicant will incur irreparable loss as he will bear the brunt of the illegal order, during the fag end of his service life.
3. However, when this OA came up for initial consideration on 24.8.2011, the learned counsel for the applicant submitted that he was confining himself to relief (a) above as the other reliefs were not related to it. On the said date, this Tribunal had also passed interim direction to the effect that the respondents should maintain status quo as regards the position of the applicant on the post of Dy. Director, if he has not already been relieved from that post.
4. In OA No.3250/2011 has been filed by the applicant on the ground that he was not allowed to raise all the aforesaid issues in OA 3029/2011 as they were found to be plural remedies which is not allowed in terms of Rule 10 of the CAT (Procedure) Rules, 1987. Therefore, he has sought the following reliefs in this OA:-
(a) quash and set aside the endorsement in the Select List dated 24.5.2011 (Annexure A-1) and promotion order dated 25.5.2011 (Annexure A-2) to the extent it grants promotion only after the expiry of the penalty order dated 7.2.2011. Also declare the action of the respondents in having omitted the name of the Applicant from Office Memorandum dated 27.7.2011 (Annexure A-2A) from the list of employees shown to have been removed from probation, as illegal.
(b) Direct the respondents to grant all the consequential benefits from (a) above including grant of deemed regular promotion of Deputy Director from 1.4.2002 and declaration to the effect of his having been removed from probation.
grant any other relief which this Honble Tribunal may be pleased to grant under the facts and circumstances of the case.
5. The brief factual matrix of this case is that the applicant was initially appointed as Section Officer. Later on, he was promoted as Civilian Staff Officer (now known as Deputy Director) under Rule 10(2) of the AFHQ Civil Service Rules, 1968 with immediate effect vide Annexure A-5 order dated 02.12.1996. Along with him, other 15 similarly placed officers were also promoted to the aforesaid post. Since then regular promotions to the post of Deputy Director was held up because of the prolonged litigation which culminated in SLP decided by the Apex Court in the year 2008. Thereafter, a revised seniority list of ACSOs (Section Officer) was published by the respondents on 13.08.2008. From the said list, the select panels for regular promotion to the post of Deputy Director for the select list years 2001-02 and 2004-05 were drawn by the duly constituted DPC and it was issued by the respondents vide their letter dated 06.05.2011. The applicant was empanelled for the year 2002-03 and his name appeared in the panel for the said year at Sl. No.1. However, below his name there was a mark that he will be promoted only after expiry of the penalty imposed upon him vide order dated 07.02.2011. In fact, while the applicant was working as Deputy Director on ad hoc basis, he was proceeded against under Rule 14 of the CCS (CCA) Rules, 1965 vide memorandum dated 09.09.2008. The said proceedings culminated in the Annexure A-8 order of punishment dated 07.02.2011 imposing upon him the penalty of stoppage of one increment for two years without cumulative effect.
6. The contention of the applicant is that since the DPC was held for regularizing the promotions which were to be given in the select list year 2002-03, the disciplinary proceedings initiated against him on 09.09.2008 or the penalty imposed upon him on 07.02.2011 should not have any relevance on it. He has also stated that when all his juniors of the same batch deemed to have been promoted on 01.04.2002, he could not have been left out. Rather, he should also be granted promotion w.e.f. 01.04.2002 itself since as on that date no case was pending against him.
7. Learned counsel for the applicant has argued that when a legal fiction of deemed promotion has been adopted, it has to be given complete effect. Being the senior most in the panel for the select list year 2002-03, the applicant also should have been given deemed promotion from 01.04.2002 and on that date neither any charge memo initiating departmental proceedings or any criminal case was pending or any penalty was in currency in his case. Further, the applicant has submitted that the respondents have also issued order dated 25.05.2011 by which the officials included in the select list year 2001-02 and 2004-05 including Smt. Shashi Nayyar, Smt. Usha Neelakandan, Shri Ajay Goel, etc. have been appointed to the grade of Deputy Directors on regular basis vide order dated 25.05.2011 with retrospective effect w.e.f. 01.04.2002. He has also stated that subsequently vide order dated 27.07.2011, the respondents have also issued office memorandum conveying the sanction of the competent authority for the removal of their names from probation as Deputy Directors from retrospective effect from 01.04.2004. The applicant has, therefore, sought a (i) direction in this OA to quash and set aside the endorsement in the select list dated 24.05.2011 (Annexure A-1) and promotion order dated 25.05.2011 to the extent it grants promotion to the applicant only after the expiry of penalty order dated 07.02.2011. (ii) a declaration to the effect that the omission of his name from office memorandum dated 27.07.2011 (Annexure A-2) by which his juniors and seniors have been removed from the probation lists, is illegal (iii) a direction to the respondents to grant all the consequential benefits to him including grant of deemed regular promotion as Deputy Director w.e.f. 01.04.2002 and (iv)declaration to the effect he is also removed from probation as Deputy Director.
8. In support of his aforesaid submissions, the applicant has relied upon the judgment of the High Court of Punjab and Haryana in CWP No. 11715/2011 decided on 08.07.2011. The said writ petition has arisen out of an order dated 27.08.2010 passed by the Chandigarh Bench of this Tribunal. The question raised by the Tribunal in the said order was whether an employee could be denied promotion relating to the vacancy of a particular year on the basis of charge sheet issued to him and penalty imposed upon him after 8 years merely because DPC did not meet on time. Answering the question in negative and agreeing with the Tribunals findings, the High Court has held as under:-
3. The Tribunal has framed one question of law, namely, whether an employee could be denied promotion relating to the vacancy of a particular year on the basis of charge sheet issued to him and penalty imposed after 8 years merely because DPC did not meet on time. It has also been found as a fact that the applicant-respondent was eligible in respect of the vacancy for the year 1998-99 although he was promoted on ad hoc basis in the year 1999 itself. The departmental proceedings initiated in the year 2001 would not adversely impact his claim for promotion in respect of the vacancy for the year 1998-99 or 1999-2000. It was after recording the aforesaid finding that the petitioners were directed to open the sealed cover in which the finding of DPC relating to the applicant-respondent for his regular promotion to the JAG cadre of ITC Group-A against the vacancy for the year 1999-2000 were placed and given effect to the same. If he is otherwise found fit in accordance with the rules and law then he is to be considered for regular promotion from the date his juniors were considered with all consequential benefits.
4. We have heard learned counsel at a considerable length and find that no exception is provided to interfere in the view taken by the Tribunal. The writ petition does not merit admission and the same is accordingly dismissed.
9. The applicant has also relied upon an order of the coordinate Bench of this Tribunal in the case of Smt. Renuka Tyagi v. Union of India & others (OA No.1223/2012) decided on 20.12.2012. In the said OA also, the applicant was seeking to quash the same select list as in this case, i.e., dated 24.05.2011 as also the orders dated 25.05.2011 and 27.07.2011 to the extent that he was unfit for the select list 2003-04 in view of the penalty imposed in 2008; whereas her juniors were promoted. Allowing the aforesaid OA, the Tribunal has held as under:-
3. The short controversy, which arises for our consideration, is as to whether the punishment inflicted subsequent to the vacancy year, could be the basis to supercede or deny promotion to the officer/employee. Learned counsel for the applicant as well as respondents fairly submitted before us that this issue is no more res integra in view of the authoritative judgment of the Honble Supreme Court in the matter of Union of India & Ors. V/s K.V. Jankiraman & Ors., reported in SLR 1991 (5) Page 602 wherein the Honble Apex Court has held that one of the three grounds can be the impediment for denying promotion to the employees viz. (i) if the employee is under suspension or (ii) if the employee is facing a departmental proceeding or (iii) if he is being prosecuted in a criminal case.
4. In the case in hand, the DPC met on 4th and 5th May, 2011 for consideration of promotion to the post of Deputy Director for the select list year 2003-04. The applicant was not considered fit for promotion, as the DPC though considered the vacancy year of 2003-04 in the year 2011, but look into consideration the penalty imposed on the applicant in the year 2008 based on the charge memo issued to hr on 17.12.2007, and thus fell in error, as the punishment inflicted after occurrence of the vacancy in the select panel year 2003-04 could not have been taken into account for denying the promotion. It is noticed that the applicant has been free from all the impediments in the panel/vacancy year 2003-04. The DPC did not meet from 2002 to 2011. Had the DPC met in 2003-04, the subsequent event of a penalty in the year 2008 would not have been there.
5. On similar facts, the High Court of Punjab and Haryana considered a case in the matter of Union of India versus Arun Kumar & Ors. Decided on 8.7.2011 in CWP 11715/2011 and held that an employee cannot be denied promotion relating to the vacancy of a particular year on the basis of charge-sheet issued to him and penalty imposed after 8 years merely because DPC did not meet on time. Had the DPC met on time, the applicant would have been given promotion in 2004 itself. The penalty imposed in 2008 on the basis of charge of 2007 in respect of misconduct alleged to have been committed after 2003-04 i.e. after occurrence of vacancy, could not have been made basis for denying the promotion. We are, therefore, of the view that this application is squarely covered by the aforesaid judgments of Apex Court and High Court of Punjab and Haryana.
6. Learned counsel for respondents also, during the course of the submissions, though half-heartedly opposed, but could not distinguish the aforesaid judgments either on facts or law.
7. In the result, the application succeeds and is hereby allowed. The respondents are directed to convene a review DPC for the year 2003-04 wherein the applicants claim for promotion to the post of Deputy Director will be considered irrespective of the penalty imposed subsequent to the occurrence of the vacancy and if found fit, she shall be promoted and she will be entitled to consequential benefits.
10. The respondents have filed their replies in both the OAs. Their only contention is that as on the date of issuing the impugned order the penalty was in currency and in terms of the instructions contained in DOP&T OM No. 22034/5/2004-Estt (D) dated 15.12.2004, the applicant can be promoted only after the expiry of currency of the penalty. The said OM reads as under:-
Subject: - Promotion of persons undergoing a penalty - clarification regarding.
The undersigned is directed to refer to DoPT OM No.21/5/70-Estt (A) dated 15th May, 1971 (reiterated vide O.M. No. 22011/2/78-Estt (A) dated 16.2.1979) and to say that in terms of the provisions of these office Memoranda, a Government servant, on whom a minor penalty of withholding of increment etc. has been imposed should be considered for promotion by the Departmental Promotion Committee which meets after the imposition of the said penalty and after due consideration of full facts leading to imposition of the penalty, if he is still considered fit for promotion, the promotion may be given effect after the expiry of the currency of the penalty. It has, however, been separately clarified vide Office Memorandum No. 22011/2/92-Estt (D) dated 30th November, 1995 that in such cases, the seniority would be fixed according to the position of the officer in the panel on the basis of which he is promoted on expiry of the period of currency of the penalty.
2. Doubts have been expressed regarding the pay fixation and date of commencement of the eligibility service in such cases. It is clarified that since the promotion is to take effect only from a date subsequent to the expiry of the currency of the penalty, the officer would be entitled to pay fixation in the promotional grade with effect from the date of actual promotion only. Even if a person junior to him in the panel is promoted earlier, it will have no bearing on the pay to be allowed on promotion to the officer on whom a penalty was imposed, and there shall be no stepping up of his pay.
3. Similarly, as the officer undergoing penalty is not to be promoted during the currency of the penalty, the eligibility service in the promotional grade for further promotion shall commence only from the date of actual promotion and in no case, it may be related, even notionally, to the date of promotion of the junior in the panel.
11. We have heard the learned counsel for the parties. We have also perused the entire documents available on record and the relied upon judgments. In our considered view, both the judgments relied upon by the applicant vide CWP No. 11715/2011 (supra) and vide OA No.1223/2012 (supra) are apt in this case and the applicant is squarely covered by them. Further, in the facts and circumstances of this case, the DOP&Ts OM dated 15.12.2004 relied upon by the respondents have no application. Admittedly, the applicant was charge sheeted only on 09.09.2008 and he was punished on 07.02.2011. The select lists finalized for the post of Deputy Director for the years 2001-02 to 2004-05 have been drawn only vide respondents letter dated 24.05.2011. The applicant was first among the officials of the select list year 2002-03. Smt. Renuka who filed OA No. 1223/2012 was the first person in the select list year 2004-05. The said OA was allowed based on the judgment of the Apex Court in the case of Union of India etc. etc. v K.V. Jankiraman etc. etc. (1994) 4 SCC 109. Another important aspect of this case is that the promotion of the applicant and all similarly placed persons w.e.f. 01.04.2002 was held up only because of the pendency of various litigation right up to the Apex Court. Admittedly those litigations were over only after the judgment of the Apex Court in the SLP decided in the year 2008. As held by the Apex Court in Kalabharti Advertising v. Hemant Vimalnath Narichania and Ors., 2010 (9) SCC 437, no litigant can take any benefit from the pendency of a case. The relevant part of the said judgment is as under:-
15. No litigant can derive any benefit from the mere pendency of a case in a Court of Law, as the interim order always merges into the final order to be passed in the case and if the case is ultimately dismissed, the interim order stands nullified automatically. A party cannot be allowed to take any benefit of his own wrongs by getting an interim order and thereafter blame the Court. The fact that the case is found, ultimately, devoid of any merit, or the party withdrew the writ petition, shows that a frivolous writ petition had been filed. The maxim "Actus Curiae neminem gravabit", which means that the act of the Court shall prejudice no-one, becomes applicable in such a case. In such a situation the Court is under an obligation to undo the wrong done to a party by the act of the Court. Thus, any undeserved or unfair advantage gained by a party invoking the jurisdiction of the Court must be neutralised, as the institution of litigation cannot be permitted to confer any advantage on a party by the delayed action of the Court. (vide: Dr. A.R. Sircar v. State of Uttar Pradesh & Ors., 1993 Supp. (2) SCC 734; Shiv Shanker & Ors. v. Board of Directors, Uttar Pradesh State Road Transport Corporation & Anr., 1995 Supp. (2) SCC 726; the Committee of Management, Arya Inter College, Arya Nagar, Kanpur & Anr. v. Sree Kumar Tiwary & Anr., AIR 1997 SC 3071; GTC Industries Ltd. v. Union of India & Ors., AIR 1998 SC 1566; and Jaipur Municipal Corporation v. C.L. Mishra, (2005) 8 SCC 423).
12. In view of the above position, we allow both these OAs and quash and set aside the orders impugned in both of them. In the case of Smt. Renuka Tyagi DPC did not consider her at all for the year 2003-04. Therefore, the review DPC was required to be held. However, in the case of the applicant, the respondents themselves have included his name in the select list year 2002-03 but with a rider that he will be promoted after expiry of the penalty imposed vide Office Order No.A/27937/CAO/DD/04 dated 07.02.2011. Accordingly, we direct that the applicant shall be deemed to have been promoted as Deputy Director on regular basis w.e.f. 01.04.2002 as in the cases of his batch mates with all consequential benefits. The respondents shall also issue appropriate orders in this regard. The aforesaid directions shall be complied with, within a period of two months from the date of receipt of a copy of this order. There shall be no order as to costs.
Let a copy of this order be placed in each case file.
( Shekhar Agarwal ) ( G George Paracken )
Member (A) Member (J)
/vb/