Central Administrative Tribunal - Delhi
S.S.N. Murthy vs S.K. Srivastava -Respondent In Ma on 29 November, 2010
Central Administrative Tribunal Principal Bench MA No.3011/2010 In CP No.0476/2010 In OA No.0271/2010 New Delhi this the 29th day of November, 2010. Honble Mr. Shanker Raju, Member (J) Honble Dr. (Mrs.) Veena Chhotray, Member (A) S.S.N. Murthy -Applicant in MA (By Senior Counsel Shri Nidesh Gupta with Shri R.N. Singh, Shri V.S.R. Krishna and Shri B.K. Jha, Advocates) -Versus- S.K. Srivastava -Respondent in MA (By Advocate Shri S.K. Gupta) O R D E R Honble Mr. Shanker Raju, Member (J):
With the background of an order passed by us on 24.11.2010 where in giving effect to the order passed by us on 12.05.2010, whereby when all the impediments of sealed cover were removed, directions were issued to open the sealed cover and give effect to the recommendations of the DPC for promotion of applicant from the date of promotion of junior, i.e., 28.07.2010. A long drawn history and methodology for Group A post led to approval by the ACC as to the recommendations of the DPC to be given effect from the date of promotion of junior and in turn CBDT to issue promotion and posting order simultaneously. All defence and excuses having not been found reasonable in the circumstances and finding willful and contumacious disobedience on the part of the Chairman CBDT, who was present before us in a showing magnanimity and to prevent miscarriage of justice with an object that our order gets implemented in true letter and spirit, we accorded time to the respondents to comply with our orders by issuing promotion and posting order till Monday, i.e., 29.11.2010, failing which Chairman, CBDT, the alleged contemnor to appear before us and the matter was directed to be listed on 29.11.2010.
2. Today, in the morning learned Senior Counsel Shri Nidesh Gupta alongwith Shri V.S.R. Krishna mentioned the matter and sought listing of MA for exempting personal presence of the Chairman, CBDT, basically on the ground that there has been a blunder on the part of the respondents not to have mentioned about FIR No.153/2009 under Section 509 of IPC against the applicant in which an order on discharge application of applicant has been passed on 01.07.2010 for framing the charges. In this view of the matter by giving another incident of criminal proceedings against the applicant circular of Central Vigilance Commission No.28/7/2006 dated 21.07.2006 has been relied upon and particularly paragraph-4 is strongly relied upon, which is reproduced as follows:
4. The above instructions also provide that a Government servant who is recommended for promotion by the DPC but in whose case any of the above circumstances arise after the date of receipt of recommendation of the DPC but before he is actually promoted, would be considered as if his case has been placed in a sealed cover by the DPC. He shall not be promoted until he is completely exonerated of the charges against him.
3. Learned Senior Counsel contends that even if the DPC was held in 2007 and the promotion order to the junior was issued on 28.07.2010, but the fact is that before actual promotion and after recommendation of DPC since the applicant has been facing criminal proceedings and prosecution is pending for a criminal trial, paragraph 3 (iii) of the circular stipulates that promotion shall not be granted till one is completely exonerated of the charges against him. Learned counsel when confronted with the position as to stay of the criminal proceedings in a proceeding filed before the High Court under Section 482 Cr. PC stated that mere stay of the proceedings would not absolve applicant of the criminal charges and would not be construed as complete exoneration of the applicant from criminal charges. As such, he seeks exemption from personal appearance of the alleged contemnor, i.e., Chairman, CBDT.
4. On the other hand, learned counsel of respondent in MA has produced before us the decision of the High Court in Writ Petition (Cr.) No.1459/2010 an order passed on 29.09.2010 and stated that the criminal case was registered pursuant upon a proceeding under Section 156 (3) of Cr. PC only in 2009 and as the promotion of the applicant concerns DPC held in March, 2007 and actual promotion was given to junior on 28.07.2007 the criminal case being a subsequent event would not affect either promotion or posting order of applicant for which he places reliance on a decision of the Apex Court in Bank of India and another v. Degala Suryanarayana, (1999) 5 SCC 762.
5. We have carefully considered the rival contentions of the parties and perused the material on record.
6. We are pained to witness such a lackadaisical, careless and unreasonable attitude on the part of the respondents whereby earlier having failed to furnish any reasonable explanation as to non-compliance of the directions issued by us and a shifting stand taken consistently in their communications dated 03.11.2010, 08.11.2010 and 16.11.2010, finding the same not reasonable and also holding that the respondents have committed, by not complying with the directions of the Tribunal, a contumacious and willful disobedience. However, by sheer indulgence on magnanimity keeping in light the backdrop of interest of justice with a view to prevent miscarriage of justice an opportunity to issue promotion and posting order till 29.11.2010 was given, which would dispense with the presence of the alleged contemnor, i.e., Chairman, CBDT on Monday the 29th November, 2010. Though we may not have gone into the explanation now tendered before us by the alleged contemnor in seeking exemption from personal presence, yet in the interest of justice we have confronted Shri Nidesh Gupta, learned senior counsel to the interpretation accorded before us to clause-4 of the circular insofar as it denies actual promotion, unless one is completely exonerated in the charges levelled. We have pointed out that once the DPC was held in March, 2007, recommendations of which have been approved by the ACC, the only formality which is to be completed by the CBDT to issue a promotion and posting order. The actual promotion of applicant, once the sealed cover has been resorted to in the past even as per the decision of the Apex Court in Union of India v. K.V. Jankiraman, 1991 (2) SCALE SC 423, would relate back to the date of sealed cover and would be construed for grant of actual promotion from date of promotion of junior, which we have rightly pointed out as 28.07.2007, in our order dated 12.05.2010 and which has been approved by the ACC.
7. As per the DoP&T OM No.22011/2/2002-Estt. (A) dated 24.02.2003 in the light of the decision of the Apex Court in Delhi Jal Board v. Mohinder Singh, JT 2000 (10) SC 158 on the issue as to what will be construed as actual promotion it has been clarified as under:
In case the subsequent proceedings (commence after the promotion of the junior) results in imposition of any penalty before exoneration in the first proceedings, based on which the recommendations of the DPC were kept in sealed cover and the government servant concerned is promoted retrospectively on the basis of exoneration in first proceedings the penalty imposed may be modified and effected with reference to the promoted post.
8. This leaves no doubt in our mind that the actual promotion as referred to in the circular of CVC, which cannot supersede the OM issued by the DoP&T, which is the controlling authority for effecting promotion, the actual promotion would relate back in the present scenario to the date of promotion of the junior.
9. With the above clear position of rules and law, the date of promotion of junior of applicant is undisputedly 28.07.2007 and the criminal proceedings now being referred to have emanated in 2009, being a subsequent event would not affect the promotion of applicant and clause-4 of CVC circular would have not application.
10. Reiterating our order dated 24.11.2010, MA for exemption from personal appearance of the alleged contemnor is dismissed. No costs.
(Dr. Veena Chhotray) (Shanker Raju) Member (A) Member (J) San.